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UNIVERSITY OF ILLINOIS LIBRARY AT URBANA-CHAMPAIGN
OV29H977
DEC 2 31
L161 O-1096
BENTHAM'S
THEOEY OF LEGISLATION
BEING
PRINCIPES DE LEGISLATION
AND
TRAITES DE LEGISLATION, CIVILE ET
PENALE
TRANSLATED AND EDITED FROM THE FRENCH OF
ETIENNE DUMONT
BY
CHARLES MILNEB ATKINSON
VOL. I.
PRINCIPLES OF LEGISLATION
PRINCIPLES OF THE CIVIL CODE
HUMPHREY MILFORD
OXFORD UNIVERSITY PRESS
LONDON, EDINBURGH, GLASGOW
NEW YORK, TORONTO, MELBOURNE, BOMBAY
1914
v.l
INTEODUCTION.
BENTHAM did not himself write any treatise, nor was he
responsible for any publication, that bore the name ' Theory
of Legislation.' The title came into vogue many years
after Bentham's death, and was applied to a translation of
portions of a book written in the French tongue by one
Dumont, a Swiss. This book was published, in 1802, at
Paris, in three volumes, and was entitled Traites de Legisla-
tion Civile et Penale, Precedes de Principes Generaux de
Legislation, et d'une Vue d'un Corps complet de Droit :
termines par un Essai sur V Influence des Terns et des Lieux
relativement aux Lois. Par Mr. Jeremie Bentham, Juris-
consulte Anglois. Publies en Francois par Et. Dumont, de
Geneve, d'apres les Manuscrits conftes par VAuteur.
The publication came about in this wise: Towards the
close of the eighteenth century, Etienne Dumont (1759-
1829), Bentham's Swiss expositor, had long been on terms
of the closest friendship with Samuel Romilly, whom he
had met at Geneva in 1781. Dumont held office, for a
short time, as pastor of the Protestant Church at St. Peters-
burg, and afterwards came to reside in London, where
he was introduced by Romilly to Lord Lansdowne, who
had hoped to secure his services as tutor for his younger
jon, Lord Henry Petty. It was on his return from Russia
in 1788 that Bentham, through his intimate and excellent
friends Romilly and Lansdowne, made the acquaintance
of the man who was destined, in Macaulay's phrase, to
become to him ' what Aaron was to Moses, the expositor
of great truths, which would else have perished for want of
iii
319817
iv Introduction.
a voice to utter them with distinctness.' During the autumn
of 1788, Bentham himself handed to Dumont several of his
manuscripts on legislation. Shortly afterwards Dumont left
London for Paris, with a view to securing the complete
restoration of Genevese liberty; and many other manu-
scripts were sent, through Romilly, for his perusal. Dumont
communicated extracts to the Courrier de Provence, and
offered to superintend the publication of the manuscripts
as a whole; but it was not until 1802 that the Traites de
Legislation appeared in book-form.
More than sixty years later there was published, in one
volume, a translation of certain selected portions of
Dumont's work, under the style of Bentham's Theory of
Legislation, the title by which the volume is still known.
It comprises an English version of Principes de Legislation
(vol. i., pp. 1-140); Principes du Code Civil (vol. ii.,
pp. 1-236); Principes du Code Penal (vol. ii., pp. 239-434;
vol. iii., pp. 1-199). The Penal Code had been subdivided
by Dumont into four parts : Des Delits ; Eemedes Politiques
contre le Mai des Delits ; Des Peines ; Des Moyens In-
directs de prevenir les Delits.
In Sir John Bowring's edition of Bentham's works,
which was issued at intervals between 1838 and 1843,
there had already appeared translations of most of those
portions of the Traites de Legislation which were extracted
to form the volume known as the Theory of Legislation
i.e., Principes du Code Civil (Bowring, vol. i., pp. 297-358);
Eemedes Politiques contre le Mai des Delits (Bowring, vol. i.,
pp. 367-388); Des Moyens Indirects de prevenir les Delits
(Bowring, vol. i., pp. 533-580). Des Delits consists, in the
main, of adaptations from the Introduction to the Principles
of Morals and Legislation (Bowring, vol. i., pp. 1-154); while
chapters xiii. and xiv. of the Introduction, as they appear in
Bowring's edition, are themselves taken direct from the
work of Dumont (vol. ii., pp. 259-261 ; pp. 268-284; vol. i.,
pp. 89-97).
Introduction. v
In the present edition the text of Dumont has been
translated afresh; but the title Theory of Legislation, so
long recognized, has been retained.
' The plan,' wrote Bentham, in 1795, to the Due de
Liancourt, ' was that Dumont should take my half -finished
manuscripts as he found them half English, half English-
French and make what he could of them in Genevan
French, without giving me any further trouble about the
matter. Instead of that, the lazy rogue comes to me with
everything that he writes, and teases me to fill up every
gap he has observed.'
In editing Bentham's writings, Dumont simplified the
text, softened and corrected the style, and ' toned down '
passages relating to religious topics. Sometimes he merged
several manuscripts into one, and reconciled any discrepant
views; though M. Elie Halevy, who has devoted much
research to the subject, declares that Dumont exaggerates
the importance of the work accomplished by him in this
regard: Apres examen des manuscrits, nous osons dire que
Dumont exagere Mmportance de ce travail de fusion (La
Jeunesse de Bentham, p. 372). We may, by way of illus-
tration of the methods employed, give, in parallel passages,
Bentham's original manuscript, dealing with the account
to be taken of the ' consequential ' evil of an offence, and
the version of his expositor :
Bentham. D'un delit dont re-
suite un mal consequentiel, le mal
total sera plus grand que s'il n'en
resultoit point de tel mal. Si, en
consequence d'un emprisonnement
qu'il a subi ou d'une blessure qu'il
Dumont. Le mal total d'un
delit est plus grand s'il en resulte
un mal consequentiel, portant sur
le meme individu. Si par les
suites d'un emprisonnement ou
d'une blessure, vous avez manque
a recue, un homme a manque, i une place, un mariage, une affaire
par exemple, une place qu'on lui lucrative, il est clair que ces pertes
destinoit, un mariage qu'il recher- sont une addition a la masse du
choit, ou un gain que lui preparoit mal primitif (vol. ii., p. 254).
son commerce, il n'est pas besoin
de dire que ces pertes ajoutees a
1' emprisonnement ou a la blessure
font une masse de mal plus con-
siderable que n'en feroit 1' em-
prisonnement ou la blessure meme.
vi Introduction.
In these circumstances, little direct responsibility can
attach to Bentham for imperfections in the French version
of his writings ; still less can he be held responsible in respect
of any defects in the style or diction of the English trans-
lations. Mr. Hildreth, who translated the parts of the
Traites that constitute the Theory of Legislation, asserts
that Bentham ' was not skilful in the art of composition ;
he did not possess the gift of eloquence.' So, too, Hazlitt
said : * He (Bentham) writes a language of his own that
darkens knowledge. His works have been translated into
French: they ought to be translated into English.' No
doubt, in later life, Bentham's use of language was so
peculiar, and the construction of his sentences so intricate,
as to give rise to much obscurity, quite apart from any
difficulty that was caused by his strangely invented phrase-
ology his ' new lingo,' as he called it. But in the days
when he produced the greater part of the manuscripts en-
trusted to Dumont his style was pure and nervous, and his
writings were marked by singular care, precision, and
polish. ' English literature,' wrote Sir Samuel Romilly,
' hardly affords any specimens of a more correct, concise,
and perspicuous style than that of the Fragment on Govern-
ment.'' The Fragment was published in 1776, when
Bentham was in his twenty -ninth year. John Stuart Mill
was evidently in full agreement with Romilly, for he, too,
declared that ' a Benthamiana might be made of passages
worthy of Addison or Goldsmith.'
In 1772, while yet a very young man, Bentham was
already collecting materials for a treatise designed to assail
the * lawless science of the law,' under the title of Critical
Elements of Jurisprudence. Many years afterwards he used
to say that, being set to read ' old trash ' of the seven-
teenth century, he looked up to the huge mountain of law
in despair : the ' Daemon of Chicane ' had already appeared
in all his hideousness, and war had been declared against
him.
Introduction. vii
In 1777 the Societe Economique of Berne offered a prize
of fifty louis for the best plan of a code of Criminal Law;
a further sum of a like amount was added to the prize by
Voltaire and Thomas Hollis. When this offer came to the
knowledge of Bentham, he resolved to compete. So early
as 1775 he had prepared the manuscripts from which
Dumont, in 1811, compiled the Theorie des Peines ; and in
March, 1779, he addressed to the Societe Economique a
letter containing the plan of his proposed Code, though he
appears to have set to work too late to take part in the
competition.
However, a twelvemonth later he sent to the press a num-
ber of manuscripts which were printed, but not at that time
published. After an interval of nine years, with ' a patch at
the end and another at the beginning,' as the author ex-
plained in a letter to Lord Wycombe, they appeared in a
volume entitled An Introduction to the Principles of Morals
and Legislation. In the autumn of 1781 Bentham had taken
down a copy of the then recently printed sheets to Lord
Shelburne's seat at Bo wood. His host formed a high
opinion of the work, and insisted upon reading this ' driest
of all dry metaphysics ' to the ladies after tea; but Lord
Camden, the great Whig lawyer, who joined the party at
Bowood, confessed to Lord Shelburne that even he found
a difficulty in understanding the book, and its publication
was delayed until 1789. ' The edition was very small,'
wrote Bentham, ' and half of it had been devoured by rats.'
The Introduction did not prove a success, and one
reason for its failure was tersely stated by Dumont in his
' Discours Preliminaire,' prefixed to the Traites de Legis-
lation. ' In using several chapters of that work (i.e., the
Introduction) for the purpose of developing the General Prin-
ciples of Legislation, I have sought to avoid that which
interfered with its success forms too scientific, subdivisions
too multifarious, analyses too abstract.'
On the appearance of the Traites de Legislation in June,
viii Introduction.
1802, Dumont's hopes of success were to a large extent
realized. ' It is very entertaining to hear Bentham speak
of it,' wrote Romilly to Dumont : ' he says that he is
very impatient to see the book, because he has a great curi-
osity to know what his own opinions are upon the subjects
you treat of.' The Empress Dowager of Russia expressed
a wish that Durnont, who was visiting St. Petersburg in
1803, should be presented to her, and orders were given for
a careful rendering of the Traites into the Russian tongue.
Romilly, the accomplished but overworked lawyer,
talked of translating the book into English, and it is greatly
to be regretted that he could not find time to execute his
purpose ; for no other man could have been found so con-
spicuously well fitted for the task. In occasional passages
the meaning of Dumont's work is far from being clear or
unambiguous. It is probable that he did not fully appreciate
some of Bentham's allusions to English laws and usages;
while bald, loose, or too literal translation has, at times,
only added to the existing obscurity. Thus, where Ben-
tham wrote ' breach of trust,' we find ' la violation de con-
fiance ' rendered as ' violation of confidence ' ; * peines de
la maladresse ' as ' pains of mal-address ' ; ' le viol est
pire que la seduction ' becomes ' robbery is worse than
seduction ' ; ' tous les delits impliquant violation de
depot,' ' all offences which imply a violation of deposit,'
etc.
In the present edition, where access has been had to the
original writings of Bentham, or the same ideas have been
found expressed in other portions of his work, the text has
been based on the passages referred to rather than on the
presentment of his expositor in the Traites, in case clearness
or simplicity seemed to be favoured by the departure.
It will appear from the following pages that all Bentham's
schemes of legislation were founded on the principle of
i utility. 'The right end of all human action is,' said he,
' ' the creation of the largest possible balance of happiness ;'
Introduction. ix
and this tendency to produce happiness is what he meant
by utility. 1 He regarded this ' sacred truth ' as the sure
foundation, not only of morals, but of the science of legisla-
tion. In his view, Nature has placed mankind under the
governance of two sovereign masters, ^pleasure and pain.
He sought to measure the good or evil of an action by the
quantity of pleasure or pain physical or intellectual
resulting from it. In this way he established a basis for
the theory of legal rewards and punishments. It will be
generally allowed that he attached too high a degree of im-
portance to the doctrine, but it was necessary for him to
find some first principle which he could receive as self-
evident. Armed with this principle of ' utility,' he felt
himself fully equipped to encounter and overcome any
difficulty, to remove every obstacle from his path. ' He
found the philosophy of law a chaos,' wrote J. S. Mill
in 1838, ' he left it a science; he found the practice of the
law an Augean stable, he turned the river 'into it which is
mining and sweeping away mound after mound of its
rubbish.' Perhaps his grandest achievement, said Bulwer
Lytton, was the example which he set of treating law as no
peculiar mystery, but as a simple piece of practical business,
wherein means were to be adapted to ends, as in any of the
other arts of life ; and Lytton was nearer the mark than Mill.
Bentham believed that the whole duty of man might be
enforced by the operation of Sanctions ('physical,'
'political or legal,' 'moral or popular,' and 'religious').
That is to say, he conceived certain pains and pleasures
so annexed to actions as to form bonds, constraining a man,
as it were, to the observance of some particular rule of life
or conduct. ' Many men,' said he, ' fear the wrath of
Heaven; many men fear loss of character; but all men are
acted upon, more or less, by the fear of the gaol, the scourge,
the gallows, the pillory, and so forth.'
1 The authorities in support of statements contained in this Intro-
duction are cited in the present editor's Jeremy Bentham, 1905.
x Introduction.
But it will, further, appear in the following pages that
Bentham recognized the broad distinction to be observed
between the science of Morals (or, as he called it, Deon-
tology) and the science of Political Philosophy, which em-
braces the art of Legislation. It may tend to the greatest
happiness of the community that a man should, of his own
free will, adopt a certain course of action; and yet it may
well be unwise and injurious to compel him to adopt such
a course of action against his inclination. It may, indeed,
be the man's duty so to act, and yet it may not be right
for the legislator to exercise compulsion ; for the very exer-
cise of compulsion may involve elements of mischief to the
community which would countervail the good to be accom-
plished by enforcement of the action. In Bentham's view,
much of the mischievous legislation which he assailed had
come into existence through a disregard of this fundamental
and cardinal distinction.
So, too, from the point of view of ' utility,' all punish-
ment is in itself an evil; for every punishment involves the
infliction of pain, and pain is an evil. We must therefore
see to it that the punishment is not in excess of that which
is absolutely necessary. The enactment of a fixed and posi-
tive penalty for a noxious action of slight or varying im-
portance, or of a purely private nature, might well entail
the creation of an evil greater than the one sought to be
i suppressed.
In Bentham's days it was not generally recognized that
the main end of punishment was the repression and preven-
tion of crime. There were many persons ready to act on
the belief that it mattered little how many murders or
felonies were committed, provided only that some man
was hanged in respect of each one of them. The principle
of punishment commonly accepted was that of retaliation
an eye for an eye, and a tooth for a tooth the yielding to the
impulse of anger, the gratification of the passion of revenge.
Bentham allowed that punishment should be exemplary
Introduction. xi
in its character and in its surroundings ; but he maintained
that the certainty of a mild punishment, properly allotted,
was far more effective than the mere chance of suffering
death. The people will not give their aid to the enforce-
ment of a severe and unpopular code; and, moreover, when
the criminal classes see that the law hits at random and
with no certain aim, they are quite ready to gamble on its
chances.
The objects which the legislator should seek to attain are
Security, Subsistence, Abundance, and Equality. Each of
these must, more or less, make sacrifices to the others, and
the adjustment of their conflicting claims presents a problem
extremely difficult of solution. Inspired by Hume, Ben-
tham recognized ' security ' as fundamental in the civil
code. It is the fount of life, of subsistence, of abundance,
of happiness ; when ' security ' and ' equality ' are in
opposition, there should be no hesitatio^i ' equality '
must give way. The establishment of ' equality ' is a
chimsera; all that can be done is to diminish inequality.
'The treasure of the comparatively rich is an insurance
office to the comparatively indigent ' ; but the treasure-
house must not be despoiled until the calamity insured
against has actually occurred.
A few days before his death, in 1829, Dumont wrote :
' What I most admire is the manner in which Mr. Bentham
has laid down his principle, the way he has developed it,
v and the rigorous logic of his deductions from it. The first
book of the Traites displays the art,of reasoning upon this
principle, of distinguishing it from the false notions that
usurp its place. It shows, too, how evil may be analyzed,
and exhibits the strength of the legislator in the four
sanctions. . . . Egoism and materialism ! How absurd !
Look in the catalogue of pleasures for the rank which the
author assigns to those of benevolence, and see how he finds
in them the germ of all social virtues ! The treatise on
Des Moyens Indirects de prevenir des Delits contains three
xii Introduction.
chapters sufficient to pulverize all these miserable objec-
tions. One is on the cultivation of benevolence, another on
the proper use of the motive of honour, and the third on the
importance of religion when properly directed that is to
say, such religion as conduces to the benefit of society. I
am convinced that Fenelon himself would have subscribed
to every word of this teaching !' (cf. post, vol. ii.,
pp. 274-294).
To the reader of the present day many passages in the
following pages will seem mere platitudes, or, at the best,
to enshrine very obvious truths. But, as Mr. Justice
Stephen observed: 'If anyone would take the trouble of
reading it [The Theory of Legislation], with an early edition
of Blackstone on one side, and a late edition of Stephen's
Commentaries on the other, he would be able to satisfy
himself that it has met with a degree of success which
perhaps no other book ever gained in this country ' (see
Mr. H. J. Randall's interesting article on Jeremy Bentham
in the Law Quarterly Review for July, 1906). It may, too,
be recalled that Professor Dicey's masterly lectures on
Law and Public Opinion manifest, in convincing fashion,
the great influence exerted by Bentham' s writings for more
than a generation after his death.
Dumont's name is appended to such of the footnotes in
the text as are taken from his work. Most of them are
based on passages extracted by him from the Benthamic
manuscripts, but for some of them he was himself entirely
responsible.
C. M. A.
November, 1913.
CONTENTS OF VOL. I.
PRINCIPLES OF LEGISLATION.
CHAPTFR PAGE
I. OF THE PRINCIPLE OF UTILITY - - i
II. THE ASCETIC PRINCIPLE - - 6
III. THE ARBITRARY PRINCIPLE; OR, THE PRINCIPLE OF
SYMPATHY AND ANTIPATHY - " I " -9
i. The Arbitrary or Capricious Principle - - 9
2. Causes of Antipathy - - 15
IV. OPERATION OF THESE PRINCIPLES IN MATTERS OF LEGIS-
LATION - - - Ha %
V. OBJECTIONS TO THE PRINCIPLE OF UTILITY ANSWERED - 22 *
VI. PLEASURES AND PAINS: THEIR VARIOUS KINDS - 28 %
i. Simple Pleasures - - 29
2. Simple Pains - - 32
VII. PAINS AND PLEASURES CONSIDERED AS SANCTIONS - 37
-x VIII. THE ASSESSMENT OF PLEASURES AND PAINS - 42
IX. OF CIRCUMSTANCES INFLUENCING SENSIBILITY - - 45
2. Secondary Considerations which affect Sensibility - 52
3. Practical Application of the Theory of ' Sensibility ' 57
X. ANALYSIS OF POLITICAL GOOD AND EVIL: HOW THEY ARE
DIFFUSED THROUGH SOCIETY - - 65
XI. REASONS FOR REGARDING CERTAIN ACTIONS AS CRIMES - 72
XII. OF THE LIMITS WHICH SEPARATE MORALS FROM LEGISLA-
TION ... ... 79 I
XIII. FALSE METHODS OF REASONING IN MATTERS PERTAINING
TO LEGISLATION - - - ( 88
xiii
xiv Contents.
PRINCIPLES OF THE CIVIL CODE.
PAGE
DUMONT'S INTRODUCTION 114
PART I.
OBJECTS OF CIVIL LAW.
CHAPTER
I. RIGHTS AND OBLIGATIONS - - 1191
II. OBJECTS OF CIVIL LAW DISTINGUISHED - - 123
III. RELATIONS BETWEEN THE OBJECTS OF THE CIVIL LAW - 126
IV. OF LAWS RELATIVE TO SUBSISTENCE - - 129
V. OF LAWS RELATIVE TO ABUNDANCE - - 131
VI. PATHOLOGICAL PROPOSITIONS UPON WHICH THE ADVAN-
TAGE OF EQUALITY is FOUNDED - 133
VII. OF SECURITY - 142
VIII. OF PROPERTY - ... 145
IX. ANSWER TO AN OBJECTION - - - 148
X. ANALYSIS OF THE EVILS RESULTING FROM ATTACKS UPON
PROPERTY - - - 151
XI. SECURITY AND EQUALITY IN OPPOSITION - 157
XII. THE RECONCILIATION OF SECURITY AND EQUALITY - 161
XIII. SACRIFICES OF SECURITY TO SECURITY - - 163
XIV. OF SOME CASES OPEN TO DISCUSSION - - 167
i. Of Indigence ... . 167
2. Of the Charges Incidental to Public Worship- 175
3. The Cultivation of the Arts and Sciences - 177
XV. SOME. INSTANCES OF ATTACKS UPON SECURITY - - 181
XVI. OF FORCED EXCHANGES ... - 192
XVII. POWER OF THE LAWS OVER EXPECTATION - - 196
Contents. xv
PART II.
THE DISTRIBUTION OF PROPERTY.
CHAPTER
XVIII. OF TITLES WHICH CONFER A RIGHT OF PROPERTY
XIX. ANOTHER MODE OF ACQUISITION: TITLE BY CONSENT
XX. ANOTHER MEANS OF ACQUISITION: SUCCESSION -
XXI. CONCERNING WILLS
XXII. OF RIGHTS RESPECTING SERVICES, AND THE MEANS OF
ACQUIRING THEM - - * 247
XXIII. COMMUNITY OF GOODS TEN ANCY IN COMMON: THEIR
INCONVENIENCES ..... 257
XXIV. DISTRIBUTION OF Loss - - 261
PART III.
INTRODUCTION.
XXV. MASTER AND SERVANT ..... 264
XXVI. OF SLAVERY - ^ (&
XXVII. OF GUARDIAN AND WARD - - 277
XXVIII. OF FATHER AND CHILD - - -282
XXIX. OF MARRIAGE - - - - - . 285
i. Between what Persons shall it be permitted? - 285
2. For what Period ? An Inquiry as to Divorce 292
3. On what Conditions ? - - - - 302
4. At what Age ? - 304
5. At whose Choice ? ... 305
6. How many Parties to the Contract - - 307
7. What Formalities should be observed ?- - 309
TREATISES ON LEGISLATION.
PRINCIPLES OF LEGISLATION.
CHAPTER I.
OF THE PRINCIPLE OF UTILITY.
THE end and aim ffi a legislato^should be the HAPPINESS utility
of the people. Injnattera ^of legislation, GENERAL UTILITY 1 the
shouTcTbe h^sjguiding principle. The scignce^oi .legislation
consists, therefore, in determining cchat makes for the
gOpdcpf the particular communitycwhose interests are at
stake, while its art consists in contrivingc-some means of
realization. This Principle of Utility, when enunciated
in vague and general terms, is rarely challenged. It is even
looked upon as a sort of commonplace both in morals and rather
* than real.
in politics. But one must not thereby be deceived; for
the assent, though almost universal, is often apparent only.
The same ideas are not attached to the principle : the
1 Cf. Introduction to the Principles of Morals and Legislation, chap. i.
(i): note by Bentham made July, 1822. 'The greatest happiness or
greatest felicity principle: this for shortness, instead of saying at length
that principle which states the greatest happiness of all those whose
interest is in question, as being the right and proper, and only right
and proper and universally desirable, end of human action: of human
action in every situation, and in particular in that of a functionary or set
of functionaries exercising the powers of Government. The word utility
does not so clearly point to the ideas of pleasure and pain as the words
happiness and felicity do.' Many years before Bentham had written:
' Utility is not a Law. For utility is but a quality, a property; a prop-
erty an act has of increasing happiness. ... A dictate of utility is not
a law. For a dictate of utility is but someone's opinion that there i?.
utility in a certain mode of conduct' (MSS. University College, No. 69;
cited Halevy, vol. i., p. 298). (C. M. A.)
VOL. I. B
2 Principles of Legislation. [CHAP.
same value is not given to it : no uniform and logical mode
of ajpifea- of reasoning results from it. Ta apply it with complete
principle. e ffiJency, that is, to make it the very foundation of a
system of reasoning, three ponditions. must be fulfilled.
First, we^jnust attach io the word Utilit^a, clear and
precise connotation, so that it shall convey exactly the
same meaning to all those who make use of it.
Secondly, we^must assert/the supremoiand undivided
sovereignty oj: this principlecby rigorously^discarding every
other. It is useless to subscribe to it as generally applic-
able; no exception to its applicability can, in any circum-
stances, be allowed.
Thirdly, we must discover/some calculus or process of
* moral arithmetic '<d>JL means of whicl^we_may^ _amye at
uniform results. 1
referred to The grounds of dissent from this doctrine^ may all be
princ'^s. ref erred <to two false principles 2 which exert on the under-
standing of men an influence, at times apparent, at other
times wholly unperceived. And, if one can but succeed
in running to earth and destroying these two, the true
principle will stand alone in all its purity and strength.
The three principles are, indeed, like three roads which
cross each other in many places, although only one of them
leads to the desired goal. Ofttimes the wayfarer finds him-
self straying from one road into another, and in these
wanderings loses half his time and strength. Yet the right
way is the easiest, for, throughout its length, there are
1 This seems to be the first use of the now well-known expression
' moral arithmetic ' : it does not occur in the Introduction to the Prin-
ciples of Morals and Legislation. But arithmetical terms, and a
' felicific calculus ' with elements or dimensions of value, were largely
employed in early MSS.; e.g., 'Observe that the number expressing
the Certainty and Propinquity of a pleasure must be a fraction. The
limit on the side of menace the maximum being but an unit. ... A
Pain or Pleasure loses in certainty, upon the single account of its being
distant. But this is in a fixed ratio, the same for all pains and pleasures '
(MSS. University College, No. 69; cited Halevy, vol. L, p. 300).
(C. M.A.)
2 The Ascetic Principle (p. 6) and the Principle of Sympathy and
Antipathy (p. 9).
i.] Of the Principle of Utility. 3
milestones which cannot be shifted, and directions that
cannot be defaced, written in a tongue that all may under-
stand ; while the two false routes show nothing but conflict-
ing signposts, inscribed in the language of enigma. But,
without straining the use of allegory, let us seek to give
a clear idea of the true principle, and of its two rivals.
Nature has placed mankind (under the governance of v 1 ^
two sovereign masters^, Pleasure and Pain. To them we
owe all our ideas : to them we refer all our decisions, every
resolve that we make in life. The man who affects to
have withdrawn himself from their despotic sway does not
know what he is talking about. To seek pleasure and to
shun pain is his sole aim, even at the moment when he is
denying himself the greatest enjoyment or courting
penalties the most severe. This maxim, .unchangeable
g-nd irresistible as it is, should become the chief study of
the Moralist and of the Legislator. To these two motives
the principle of utility/subjects everything. 1
Utility is an abstract term. It means the property or .
tendency of any particular thing Jo shiel(|Jrpm some evil
or to secure some good. Evil means pain ; suffering or
the cause of suffering. Good means pleasure, or the cause
1 Of. Introduction to the Principles of Morals and Legislation, chap. i.
(i). Professor Sidgwick has called this theory Psychological Hedonism,
seeing that it merely affirms the seeking of pleasure as a psychological
fact; as distinguished from Ethical Hedonism, the theory of those who
hold the view that men ought always to seek pleasure. Sidgwick,
criticizing Mill's adoption of Psychological Hedonism, says : ' The
truth is that there is an ambiguity in the word Pleasure, which has
always tended seriously to confuse the discussion of this question.
When we speak of a man doing something at his own " pleasure," or as
he " pleases," we usually signify the mere fact of choice or preference;
the mere determination of the will in a certain direction. Now, if by
" pleasant " we mean that which influences choice, exercises a certain
attractive force on the will, it is an assertion incontrovertible because
tautological, to say that we desire what is pleasant or even that we
desire a thing in proportion as it appears pleasant ' (Methods of Ethics,
book i., chap. iv.). But, if we understand ' pleasure ' in the sense of
meaning the agreeable feeling which accompanies the satisfaction of
our wants, it is not, says the author, by any -means evident that this is
always what we desire. In discussing the question whether the motive
to action is always ' pleasure/ modern critics distinguish between
taking pleasure in an idea and aiming at the idea of pleasure. (C. M. A.)
4 Principles of Legislation. [CHAP.
of pleasure. When we sav that any thing; is in harmony
with the utility or the interest of an individualize mean
that it tends: to augment the sum total of his well-being.
When we sayjthat anything Js in harmony with the utility
or the interest <>f a community* we mean that it tends to
augment the sum tota^pf the well-being oi. the individuals
of which the community is composed.
^ Principle is a primary idea which one makes the
starting-point, or the keystone, of a system of reasoning.
To use a concrete metaphor, it may be likened to a fixed
point to which the first link of a chain is attached. Now,
such a principle must be obvious : if it be enunciated and
its meaning made clear, that alone must suffice to secure
its recognition. It is like the axioms of mathematics
which are not proved by any direct process, but by
showing that their rejection would involve one in an
absurdity.
The Principle of Utility, accordingly, consists in taking
as our starting -point, in every process ^f ordered reasoning,
the calculus^pr comparative estimate of pains and pleasures,
and in not allowing.any other idea to intervene.
I am an adherent to the Principle of Utility when I
measure my approval or disapproval of any act^ public or
private, by its tendency to produce pains and pleasures;
when I use the terms just, unjust, moral, immoral, good,
bad, as comprehensive terms which embrace the idea of
certain pains and certain pleasures, and have no other
meaning whatsoever. And it must always be understood
that I use these words Pain and Pleasure in their ordinary
signification, without having recourse to arbitrary defi-
nitions for the purpose of ruling out certain forms of
pleasure, or denying the existence of certain pains. None
of your subtilty, none of your metaphysics ! We need
not consult Plato or Aristotle. Pain and Pleasure mean
what everybody feels as such: peasant and prince alike,
the unlearned man and the philosopher.
I.] Of the Principle of Utility. 5
An adherent to the Principle of Utility holds virtue to ' virtue '
be a good thing by reason only of the pleasures which
result |rom the practice of it : he esteems vice to be a bad
thing by reason only of the pains which follow in its train.
Moral gooo\is good only^on accountants tendency to secure
physical benefits : moral evil is evil only on account of its
tendency to induce physical mischief. But when I say
' physical/ I refer to pains and pleasures of the heart and
mind as well as to the pains and pleasures of sense : I
have in view man, just as he is, in his actual constitution.
Should an adherent to this principle find, in the com-
monly accepted list of virtues, some action from which
more pain than pleasure would ensue, he would not shrink
from treating the alleged virtue as a vice; he would not
*allow himself to be deceived by a vulgar error, nor would
he readily believe that we must rely on the practice of
sham virtues to afford support for genuine ones. More-
over, should he find in the ordinary list of stock offences
some trivial act, some harmless form of pleasure, he would
not shrink from transferring the alleged offence into the
category of lawful acts : he would feel sympathy with the
alleged criminals, and reserve his indignation for the
unctuous worthies who seek to harass them.
CHAPTER II.
THE ASCETIC PRINCIPLE.
THIS Principle 1 competes with grid opposes, in the most
cism.' direct fashion, the one cw,e have just been expounding.
Thfise who practise i^nave a horror of pleasure. Every-
thing which gratifiescthe sense appears to them hateful
and, .criminal. They base morality upon privations, and
virtue upon self-renunciation. In a word, in direct op-
position to the adherents of utility, they approve every -
thing6Khich tend| Jbp diminish enjoyment^ while condemn-
ing everything u[hich tends to increase it.
phSoso- Now, the principle has been more or less adopted by two
phers. classes of men, who in other respects have but little re-
semblance, and, indeed, affect a mutual contempt. The
one^ class consists of Philosophers, the other olJDevptees
or.. Religionists. Ascetic philosophers, inspired by the
hope of applause, have nattered themselves by seeming
to soar above humanity in scorning the pleasures of or-
dinary mortals. It is in the shape of honour and reputa-
tion that they seek reward for all the sacrifices which they
appear to make to the severity of their tenets.
Devotees, Ascetic Devotees are foolish folk tortured by imaginary
or Religion- . . J . c T~
ists. terrors. In their eyes, man is but a fallen being who
ought to punish himself without ceasing for the crime of
his birth, and ney^r to avert his thoughts from the abyss
of everlasting woe which is gaping at his feet. Martyrs
1 Asceticism is derived from a Greek word which signifies exercise
(Dumont). The word ' ascetic ' has been applied to monks, whose
practices were called their exercises, and consisted in contrivances for
tormenting themselves: Cf. Introduction to the Principles of Morals and
Legislation, chap. ii. (2). (C. M. A.)
6
The Ascetic Principle. 7
to this crazy creed, they have nevertheless, like other men,
a fund of hope. Quite apart from a certain earthly pleasure
which is attached to a reputation for sanctity, these
atrabilious pietists flatter themselves that every moment
of voluntary suffering, here below will be worth at least an
age of happiness cjn the life to come. Thus even the
Ascetic Principle rests on a sort of false idea of
utility. It gained its ascendancy only by virtue of a
mistake. 1
Devotees have carried the doctrine of Ascetism further Devotees
than the Philosophers. The philosophic party have further
scarcely gone( beyond c the reprobation of pleasure, while Phiioso-
religious sects 'have made it a matter of duty to inflict p
pain upon themselves. The Stoics have denied that
suffering is an evil : the Jansenists have averred that it is
actually a good. Moreover, the philosophical party have
never reprobatedcall pleasurois in the lump, but only such
as they styled gross and sensual; while they have even
extolled those of the heart and of the understanding. It
was a preference for one class, rather than complete ex-
clusion of the other. Ever scorned or disparaged under
its own name, Pleasure was welcomed and belauded as
' the Honourable/ ' the Glorious/ ' the Reputable/ ' the
Becoming/ or under the guise of ' Self-respect/
That I may not be charged with exaggerating the ab- Origin of
J . 6 Asceticism.
surdities of ascetics, I will endeavour to suggest the least
irrational origin that can be assigned to their system. It
was easy to perceive that the attraction of certain pleasures
might, in some circumstances, lead men astray, that is to
say, might incite to mischievous acts acts of which the
1 This mistake consists in describing the Deity, in terms, as a being
of infinite benevolence; while, at the same time, ascribing to him such
prohibitions and threats as would be associated with an implacable
being, who used his power merely to satisfy his malevolence. These
ascetic theologians might be asked, Wherein does the good of life consist,
if not in the pleasures it affords us ? and what security have we of the
loving-kindness of God in the future life, if he has forbidden us the
enjoyments of our present sojourn on earth ? (Dumont).
8 Principles of Legislation.
good did not counterbalance the evil. 1 The very object
of a healthy systenxof morals and of good laws is, of course,
to prohibit indulgence in such pleasures, on account of
their injurious consequences. Ascetics, however, have
made a mistake. They have attacked pleasing in itself;
they have condemned pleasures as such, they have made
them the object of a general prohibition, and treated indul-
gence in them^as the mark of a base nature. It is, indeed,
only as a concession to the weakness of human nature
that they have been kind enough to allow certain special
exceptions.
1 ' The principle of asceticism seems originally to have been the reverie
of certain hasty speculators, who having perceived, or fancied, that
certain pleasures, when reaped in certain circumstances, have, at the
long run, been attended with pains more than equivalent to them, took
occasion to quarrel with every thing that offered itself under the name
of pleasure ' (Introduction to the Principles of Morals and Legislation,
chap. ii. [9]). (C. M. A.)
^^ " r"*-
CHAPTER III.
THE ARBITRARY PRINCIPLE J OR, THE PRINCIPLE OF
SYMPATHY AND ANTIPATHY.
i. The Arbitrary or Capricious Principle.
ACCORDING to this Principle, certain action^are approved 'pffhy and
or disapproved <merely because a man finds himself disposed a
to approve or disapprove, without giving any reason for
the decision, except the decision itself. ' I love/ ' I hate ' ;
such is the pivot on which this Principle turns. ^An action
is adjudged good or bad, not because it is agreeable or
hostile to the interests of those whom it affects, but because
it pleases or displeases him who judges. He decides as a
despot, and admits no appeal: he does not conceive himself
bound to justify his ruling by any consideration bearing
upon the welfare of society. ' It is my internal persuasion ;
it is my innermost conviction; I feel that it is so/ A
person of such a disposition seeks no advice. ' Confusion
fall upon him who does not agree with me; he is not a
man, he is a monster in human form/ So despotic is the
tone of his judgments ! *
But, it may be said, are there really men so unreason-
able as to promulgate their own particular views as though disguised.
they were universal laws, and to assume the prerogative
of infallibility ? What you call the Principle of Sympathy
arid Antipathy is not a principle of reasoning at all; it is
rather the negation, the destruction; of all principle. There
would result from it^a very anarchy of ideas, since (every
man having the right to treat his own sentiment or disposi-
1 Of. Introduction to the Principles of Morals and Legislation, chap-
ii. (11-19). (C. M. A.)
9
10
Principles of Legislation.
[CHAP.
tion as a standard to regulate the sentiments or disposi-
tions of everybody else) there would no longer be any
Qommon standard^nor any supreme Court to which appeal
could be made. The absurdity of such a Principle is, of
course, quite manifest, so that no man sees fit to say, in
so many words : ' I desire you to think as I do, without
giving me the trouble of arguing with you/ Everyone
would rebel against such mad pretensions. Accordingly,
recourse is had to various methods of disguise. Despo-
tism is veiled under some happy and ingenious phrase,
as the greater part of our ethical systems bear witness.
One man tells you that he has, in himself, something
with which he has been endowed to teach him what is
good and what is bad. This he calls either Conscience or
Moral Sense ; and then he goes to work at his ease, and
pronounces such a thing to be good and such another thing
to be bad. Why ? ' Because my moral sense tells me
so; because my conscience approves or disapproves.' 1
Another man 2 comes along and alters the phrase. It is
no longer Moral Sense but Common Sense which teaches
him what is good and what is bad. This common sense
is a sense of some kind or other, which is, he says,, pos-
sessed by all mankind ; it being, of course, understood that
those, whose sense is not the same as his, must not be
taken into account.
Another man 3 informs you that this Moral Sense and this-
Common Sense are mere dreams, but that his Understand-
1 Lord Shaftesbury, Hutchinson (sic), Hume, etc. (Bowring, vol. i.,
p. 8).
2 Dr. Beattie (Bowring, i. 8). Cf. MSS. University College, No. 69
(cited Halevy, i. 299): ' Another says he has a sense on purpose: and
it is this sense that pronounces what is right and what is wrong. This
is the way that Lord Shaftesbury, Dr. Hutchinson (sic), and the trium-
virate of Doctors lately slaughter' d, not to say butcher' d, by Dr.
Priestley, make Laws of Nature.' (C. M. A.)
3 Dr. Price (Bowring, i. 8). Cf, MSS. University College, No. 69
(cited Halevy, i. 298): ' He has understanding, and his understanding,
without the trouble of hearing 'pro and con, pronounces an action to be
right or to be wrong; and so there is a Law of Nature for it or against
it. This is the way Dr. Price makes Laws of Nature.' (C. M. A.)
in.] The Arbitrary Principle. n
ing enables him to decide what is good and what is bad.
This understanding tells him so and so ; and all good and
wise men have an understanding constructed like his.
With regard to those who do not arrive at the same con-
clusions as he does, so much the worse for them: it is a
sure sign that their understandings are either defective or
corrupt.
Another man tells you that there is an eternal and im- The Rule
mutable Rule of Eight : that this rule of right dictates so
and so. 1 And then he begins giving you his sentiments
upon anything that comes uppermost : and these sentiments
(you must take for granted) are so many branches of the
eternal rule of right.
Again, you may hear a crowd of Professors, Jurists,
Magistrates, and Philosophers, talking perpetually of the
Law of Nature. They wrangle, it is true, over every point
in their system; but no matter, they all talk away with
the same boldness and confidence, and favour you with
their views, as being so many chapters of the Law of Nature.
Sometimes, however, the phrase is varied, and they speak
of Natural Right, Natural Equity, the Rights of Man, etc.
We have one philosopher who undertakes to erect a ^
system of morals on what he calls Truth. According to ' Truth -'
him, there is no harm in anything in the world but in
telling a lie. 2 If you kill your father, you commit a
crime because this would only be a particular way of
saying he was not your father. Every act which this
philosopher does not like, he disapproves under the pretext
that it is a sort of lie; doing the act amounts to saying
1 Cf. Tom Jones : the History of a Foundling, by Henry Fielding,
chap. iii. ' The former (Square) measured all actions by the unalter-
able rule of right and the eternal fitness of things, the latter (Thwackum)
decided all matters by authority.' (C. M. A.)
2 Religion of Nature Delineated, 4to., London, 1724, by William
Wollaston (Gf. Bowring, i. 9). Wollaston was born in 1660, and died
in 1724. This book was originally printed privately in 1722, and dealt
with the ' intellectual theory of morality.' The author was educated
at Sidney Sussex College, Cambridge. (C. M. A.)
12 Principles of Legislation. [CHAP.
that it ought to be done when, in truth, it ought not to be
done.
Of all these despots, the most candid is the man who
speaks out and says : ' I am of the number of the Elect :
and God himself takes care to inform the Elect, in all
things, what is good and what is bad. It is he who
makes himself known to me and speaks by my mouth.
So let all who are in doubt come to me, and I will deliver
to them the very oracles of God/
All these systems and many more are at bottom only
the Arbitrary Principle > the Principle of Sympathy and
Antipathy, couched in different forms of words. JTheir
aimjs to secure^ the triumph of a man's own view,# without
the trouble of opposing them, to the views of other people :
so that these pretended principles serve as a pretext for,
and as aliment to, despotism ; at least, to that despotism of
disposition which is but too apt to discover itself in prac-
tice whenever it can do so with impunity. The consequence
is that, with the purest intentions, a man becomes a tor-
ment to himself and a scourge to his fellow-creatures. If
of the melancholy cast, he lapses into silent grief, and, with
bitterness, deplores the folly and depravity of man. 1
Should he chance to be of the irascible type, 2 he declaims
furiously against all who do not think as he does. Such
an one becomes the bloodthirsty persecutor, who does his
evil deeds with the air of a saint: a tyrant who fans the
flames of fanaticism with the mischievous energy that is
begotten of belief in duty's call, and brands with charges
of perversity and bad faith all those who do not blindly
accept every opinion that he holds sacred.
It is, however, essential to remark that the dictates of
the Principle of Sympathy and Antipathy often coincide
with those of the Principle of Utility. The heart of man is
ever disposed, to feel a liking <for what benefits him, a
hatred for what, is hurtful to him; so that, from one^end
1 Dr. Price. 2 Dr. Beattie. CJ. note, ante, p. 10. (C. M. A.)
in.] The Arbitrary Principle. 13
of J^he world to the other H Similar sentiments of approba-
tion or disapprobation c are displayed for particular acts,
according as they axe beneficial or hurtful. Directed by
this sort of instinct^IMbrals and Jurisprudence have often
enough reached the goa] of Utility without having any
very clear idea of it ; but these sympathies and antipathies
do not always make sure guides. If a man refer his fortune,
good or bad as the case may be, to an imaginary cause,
he at once becomes subject to groundless likes and dislikes.
Superstition, charlatanism^ sectarian bias., and party spirit,
rest almost entirely^pn blind or irrational sympathies and
antipathies.
The most trifling incidents, a difference in fashion,
some slight divergence of opinion, a diversity in taste,
may be enough to present a man to the eyes of another in
the guise of an enemy. What is history but a collection
of the most absurd animosities, the most futile persecu-
tions ? Some prince conceives an antipathy against
certain men who make use of words of little meaning and
of no moment ; he calls them Arians, Protestants, Socinians,
Deists. Scaffolds are erected for them ; ministers of the
altar make ready the funeral pile; the day on which the
heretics perish amidst flames becomes a national festival.
Is it not a fact that there was a civil war in Russia to settle
a protracted controversy as to the number of fingers which
should be used in making the sign of the Cross ? Have
not the citizens of Rome and of Constantinople been split
into implacable factions about stage-players, charioteers,
and gladiators ? And to give importance to these shameful
squabbles, was it not pretended that the success of the
Greens or of the Blues foreboded, as the case might be,
abundance or famine, the triumph or the overthrow of an
empire ?*
1 Of. Gibbon's Decline and Fall of the Roman Empire, chap. xl. :
* Their respective victories announced either a plentiful harvest or a
prosperous navigation, and the hostility of the husbandmen and mariners
was somewhat less absurd than the blind ardour of the Roman people,
14 Principles of Legislation. [CHAP.
Antipathy may no doubt be found in harmonj^with the
Principle of Utility; but even then at is not a just ground
of action. When through resentment we prosecute a robber
in the courts, the action is indisputably a good one, but
the motive is dangerous. Though antipathy may at times
prompt useful deeds, /it more often prompts calamitous
ones. The consideration of Utility is, in truth, the only
ground of action wijich is always sound and sure. Other
motives may well be productive of good in particular cases ;
but to secure good effects^hiformly and consistently^ we
must adhere to the principle of Utility. If they are not
to become harmful, sympathy and antipathy_ must them-
selves^ be regulated cby the principle of Utility; though it
neither requires nor admits of any other regulator than
itself, and it is impossible to extend it too widely.
To sum up : the ascetic principle^ makes a frontal attack
on Utility. The principle of sympathy, neither rejecting
nor accepting, pays no heed to it, and thus drifts rudderless
between good and evil. The ascetic principle is so un-
reasonable that its maddest upholders have never been
foolish enough to follow it to its full extent. The principle
of Sympathy and Antipathy does not preclude its ad-
herents from having recourse to that of Utility, which
alone neither require^nor admitiany exception. Qui non
sub me contra m,e (He who is not subservient to me is
against me ; if not my subject, he becomes my foe) : such is
the motto of Utility.
According to that principle, Legislation is a matter of
observation and of calculation; according to the ascetics
it is a matter of fanaticism; according to the principle of
sympathy and antipathy,^ is a matter of disposition, of
who devoted their lives and fortunes to the colour which they had
espoused. . . . The bloody and tumultuous contest continued to disturb
the public festivity till the last age of the spectacles of Rome. . . .
Constantinople adopted the follies, though not the virtues, of ancient
Rome; and the same factions which had agitated the circus raged with
redoubled fury in the hippodrome' (Murray's edition of 1854, vol. v.,
pp. 48, 49). (C. M. A.)
:
.] Causes of Antipathy. 15
imagination, of taste. The first view should commend
itself to philosophers, the second to monks; while the
third is like to be approved by the People, by the wits, by
the commonplace moralist, and by men of the world.
2. Causes of Antipathy.
ANTIPATHY exerts so powerful an influence over morals
.d legislation that it is important to investigate the
causes which give birth to it.
FIRST CAUSE The Repugnance of the Senses. Nothing J a e P c u e g of
is more common, especially with feeble minds, than the the senses.
transition from a physical to a moral antipathy. Vast
numbers of harmless animals endure constant persecution
because they happen to be thought ugly. Anything un-
usual has the power of exciting our hatred and disgust.
What is called a monster is merely a being which differs,
in some measure, from others of its kind. Hermaphro-
dites, whose sex cannot be distinguished, are looked upon
with a sort of horror, simply because they are rare.
SECOND CAUSE Wounded Pride. A man, who does not wounded
. . ; .-" , . M f , . t . , . or mortified
accept my opinion, says, in an indirect fashion, that, on the pride,
particular point at any rate, he does not think much of my
intelligence. A declaration of this sort wounds my self-love,
and displays the man as an enemy who, not content with
avowing a sort of contempt for me, will instil others with that
contempt, in suchmeasure as his opinion triumphs over mine.
THIRD CAUSE Authority rebuffed. Even when our
pride is not hurt, a difference of tastesL and the clash of
opinions and of interests gonstrain us^to acknowledge that
our influencecjs limited; that we are often forced to give
way to others; that our authority, which we would fain
extend in all quarters, is really restricted in every direc-
tion. This perception of our weakness is the cause of
secret pain and the germ of ill-blood against other people.
FOURTH CAUSE Confidence in Mankind weakened or LOSS of
destroyed. We love to believe that our fellow-men are in human
nature.
16 Principles of Legislation. [CHAP.
of such a nature as is calculated to conduce to our own
happiness. Any act on their part which tends to diminish
our confidence in them can hardly fail to cause us secret
annoyance. An instance of imposture shows us that we
cannot always rely on what they say or promise : an
example of folly raises doubts as to their reasoning power,
and consequently as to their future conduct. A capri-
cious or thoughtless act drives us to the conclusion that we
cannot place confidence in their affections.
FIFTH CAUSE The. Desire of Unanimity thwarted.
Unanimity gives us pleasure. This agreement between -
our own opinions and those of other people is the only
assurance we can have, outside ourselves, of the truth of
those opinions, and of the usefulness of any act based upon
their correctness. We love, moreover, to talk about sub-
jects to our taste : it is a source of pleasurable hopes and
memories. The conversation of persons whose tastes are
similar to our own enhances the pleasure by fixing our
attention upon these subjects and by presenting them to
us in fresh aspects.
SIXTH CAUSE Envy. One would suppose that a man,
who enjoys himself without hurting anybody else, would
have no enemies. Yet it might be said that, in a sense,
his enjoyment makes poorer those who do not share it.
It is a common remark that wealth and power recently
acquired excite envy in a greater degree than when they
have been long enjoyed; and, for this reason, the word
Parvenu always has an injurious acceptation. It signi-
fies success newly gained ; and that is quite enough for envy
to add, as accessory ideas, humiliating memories and an
affectation of contempt.
Envy leads to asceticism. In view of the differences in
age, wealth, and general surroundings, men cannot all
attain the same measure of enjoyment; but privations, if
sufficiently severe, may reduce them all to the same level.
And thus, in questions of ethics, envy inclines us to
iu.] Causes of Antipathy. 17
rigorous theories, as a means of lowering the assessable
value of pleasures. It has been said, and with justice,
that if a man should chance to be born with some organ of
pleasure, which other mortals did not possess, he would
be pursued as a monster.
Such is the origin of antipathy: indeed, you now possess a j
catalogue of the various sentiments which go to its manu- f
facture. In the hope of moderating its violence, we should
recollect (that no two individuals t can be brought to corre-
spond (|n every particular; that, jf we give way to this
unsociable feeling, it will ever increase in virulence, and
will contract more and more the sphere of our goodwill
and of our pleasures ; that, as a general rule,~our antipathies
recoil on ourselves, while it is within our power to abate,
or even extinguish, them, by banishing from our minds all
thoughts of the objects which excite them. Happily, though
the causes of sympathy are natural and unchangeably the
causes of antipathy -jtre casual and transitory.
Writers on morals may be divided into two classes ; those Popularity
who endeavour to root out the poisonous plant, Antipathy, athy.*
and those who seek to propagate it. The first class are
apt to be defamed : the second class stand high in public
favour, because, under cover of a veil that is fair to out-
ward view, they wait upon envy and revenge. The books
which become famous most readily are those dictated by
the demon of antipathy, such as libels, party pamphlets,
satirical memoirs, etc. Telemachus did not owe its bril-
liant success to its moral tone or to the charm of its style,
but to the general belief that it contained a satire upon
Louis XIV. and his Court. 1 When Hume, in his History,
1 'Deux choses particulierement cheres a Louis XIV., le luxe et
I'ambition guerriere, excitaient 1' aversion de Fenelonjtout le Telemaque
semble dirige centre elles. L'auteur repousse, avec le luxe, les arts et
1'industrie qui en naissent et le servent, et, pour en arreter 1'essor, il ne
recule pas devant les pueriles rigueurs des lois somptuaires. .11 poursuit
I'ambition sous toutes ses formes et varie a plaisir les peintures qui
doivent la faire redouter ' (Dictionnaire Vniversel des Literatures, par
G. Vapereau, Paris, 1876, at p. 777). (C. M. A.)
VOL. I. O
1 8 Principles of Legislation.
tried to allay party spirit and to treat men's passions after
the manner of a chemist analyzing poisons, he roused
against himself the main body of his readers. Men did not
like to have it shown that they were ignorant rather than
wicked, and that past ages, which are always extolled in
order to disparage the present, had really been more
productive of misfortune and crime.
Happy, indeed, is the writer who gives himself up to the
two false principles. To him pertain the whole range of
eloquence, the free use of imagery, vehemence of style,
exaggeration of expression, and all the vulgar phrases
usually applied to portray the passions. Every one of his
opinions is an authoritative pronouncement, an eternal
verity, fixed and immutable as Nature or as Nature's God.
As a writer he exerts the powers of a despot, and proscribes
all those who do not think as he does. An adherent of the
Principle of Utility is not, by any manner of means, in a
position so favourable for a display of eloquence. The
means of attainment differ as widely as the ends to be
attained. He can neither dogmatize, nor dazzle, nor cause
a surprise. He is required to define all the terms he uses,
and always to use the same word in the same sense. He
must take a long time in settling down, in making his
foundations sure, in getting his instruments ready; and he
has everything to fear from the impatience which grows
weary of preliminaries, and expects to arrive at important
conclusions in no time. This slow and cautious advance
is, however, the only form of progress which will lead him
to the desired goal ; for, though it be given to eloquence to
convey truth to the people, the privilege of revealing truth
is, at any rate, reserved to analysis, ' Non fumum ex ful-
gore sed ex fumo dare lucem cogitat/ 1
i Hor., Art. P., 143- (0. M. A.)
CHAPTER IV.
OPERATION OF THESE PRINCIPLES IN MATTERS OF
LEGISLATION.
THE Principle of Utility has never been thoroughly J
developed u pr consistently pursued, by any Legislator; but, Pj^j f
as we have already pointed out, it has made its mark on the Legislation
laws Jby an occasional alliance <with the Principle of Sym-
pathy and Antipathy. Ideas of Vice and Virtue, resting
upon confused notions of good and evil, have been in
general accord so far as to afford a common basis of con-
struction; and Legislators, conforming with these popular
ideas, have framed such fundamental laws as are necessary
for the existence of society.
The Principle of Asceticism, though warmly embraced The Prm-
by its adherents as a rule of private conduct, has never had Asceticism,
much influence when applied to the business of govern-
ment. On the contrary, the attainment of strength and
prosperity has been the aim and object^ of every govern-
ment. The suffering actually caused by princes has sprung
from mistaken notions of power and greatness, or from
the gratification of their own private passions, of which
public misfortunes have been the consequence but not the
object. Having regard to the conditions which prevailed
in that city, the strict regime of Sparta (which has been so
well styled ' a convent of warriors ') was necessary for its
preservation, or such, at any rate, was the opinion of the
man who made its laws; and, therefore, in this point of
view, even that regime conforms with the Principle of
Utility. And although Christian states have suffered the
19
20 Principles of Legislation. [CHAP.
establishment of monastic orders, the vows were supposed
to be taken without any form of compulsion. To torture
oneself was a meritorious act; to torture another man
against his will was a crime. St. Louis was in the habit of
wearing a hair shirt, but he did not make any of his subjects
wear one.
The Principle which has exercised most influence in
matters of government is that of Sympathy and Antipathy.
Indeed, we are constrained to refer to this Principle every
act of which happiness is not the sole end and aim: and
this however specious be the declared object, whether
' good behaviour/ ' equality/ ' liberty/ ' justice/ ' power/
' commerce/ or even ' religion/ Such objects as these all
command respect and ought to enter into the views of the
legislator; and yet they are objects which too often lead
him astray because he looks to them as ends, not as means.
In the quest of happiness, he puts them in its place instead
of making them subject to it.
It thus happens that, in the world of political economy,
a ^government, wholly concerned, with wealth and com-
merce, looks upon society (as,, nothing more, than a work-
shop, (regards men <mly as productive machines^ and cares
lit^le_.how(^piagues them/if it can but make them rich.
The customs, rates of exchange, the funds, absorb all its
thoughts. It is careless of a multitude of evils which it
might readily cure; seeking only to create new sources of
enjoyment, while all the time it is placing fresh obstacles
in the way of enjoying.
Some governments, again, fancy that public happiness
is centred in power and glory. Full of scorn for such
states as are quite content with a peaceful obscurity, they
must have intrigues; negotiations, wars, and conquests.
They heed not the anguish that goes to make up this same
glory, nor are they concerned for the innocent victims of
their bloody triumphs. The lustre of victory, the annexa-
tion of some province, will serve to veil the desolation of their
iv . ] Operation of the Princip les in Matters of Legislation . 2 1
own people, and cause them to forget the true end of
government.
Many men do not trouble to inquire whether a state is The pas-
well administered, whether its laws afford protection to ' liberty
persons and property, whether, in a word, its people are {jjg 1 *^ 1 k-
happy. Wh^t they demand above everything else is political
political liberty : that is to say, the most equal distribution
of political power that can be conceived. Wherever they
fail to find the particular form of government which they
are pleased to affect, they see only slaves : and, if the
alleged slaves chance to be quite satisfied with their own
condition, if they have no wish to change it, these political
wiseacres look upon them with pity and treat them with
scorn and insult. Such is their fanaticism that they are
ever_ready^to stake the whole happiness of a nation upon
ji civil war, in order to transfer power into the hands of
people who, by reason of invincible ignorance, would be
unable to make any use of it except to bring about their own
destruction.
Here, then, we have some examples of the chimeras
which, in the world of politics, are substituted for the true ;Jf
quest of happiness. They are jiot the growth of any ness -
opposition to the principle of happinesa as such ;J ..but rather ,
the fruits of thoughtlessness, or mistake. People often
grasp only a small part of the Plan of Utility; they confine
themselves exclusively^ to that part : and, while pursuing
some special branch of the public welf ar, they may really
be working adversely to the happiness of the community as
a whole. It is for the moment forgotten that each of the
various ends sought-after has merely ^a relative value ; that
it is only happiness in the aggregate which has an intrinsic
value.
CHAPTER V.
OBJECTIONS TO THE PRINCIPLE OF UTILITY ANSWERED.
ro real SOME trifling verbal difficulties may be raised in connec-
o utility tion with the Principle of Utility ; but no substantial and
ained? Bls well-defined objection can be taken to it. Indeed, how
can it be combated save by reasons drawn from the prin-
ciple itself ? To say that it is dangerous is to say that to
consult utility may prove contrary to utility.
The difficulty in this matter arises from a sort of per-
utiiity ' versity of language. Virtue is commonly represented as
virtue.' opposed to Utility. Virtue, it is said, consists in the sacri-
fice of our interests to our duty. In order to express these
ideas clearly, it is necessary to observe that there are
interests of different orders, and that in certain circum-
stances various interests are incompatible. Virtue is the
sacrifice of a smaller to a greater interest ; of a momentary
to a lasting interest; of a doubtful to an assured interest.
Every idea of virtue which is not derived from this
notion is as obscure in conception as it is indeterminate in
motive.
utility , Those who, for the sake of peace and quiet, want to dis-
tinguish politics from morals, and then assign Utility as
the principle of one, and Justice as the principle of the
other, simply make manifest the confused state of their
ideas. The sole difference between politics and morals is
that the one directs the movements of governments while
1 the other directs the actions of individuals; but they have
one common aim and object, namely, happiness. That
which is politically good cannot be morally bad; unless,
22
Objections to the Principle of Utility answered. 23
indeed, the rules of arithmetic, which are true for large
numbers, are false for small ones.
Evil may be wrought by us, even whilst we suppose Jp C a
ourselves to be following the Principle of Utility. ' A weak of utility.
and narrow mind may deceive itself by taking into COIL-
sideration a part only of the good and evil. A man easily
moved to anger may be deceived by attaching extreme
and undue importance to a particular advantage, which
hides from him the inconveniences attending upon it.
What constitutes a bad man is the habit of pursuing
pleasures hurtful to other people; and this very habit
presupposes the absence of many kinds of pleasures.
But we ought not to charge upon the Principle of 'Utility
faults which result from the violation of its dictates faults,
indeed, which it alone can serve to correct. If a man
makes an ill reckoning, it is not arithmetic which is to
blame, it is himself. If the censure passed on Machiavel
be well founded, his errors did not arise from applying the
Principle of Utility, but from applying it in mistaken
fashion. This fact was clearly perceived by the author of
Anti-Machiavel, who refutes * The Prince ' by showing that
its maxims are of fatal consequence, and that bad faith is
bad policy.
Those who, after reading Cicero's Offices and the Platonic
moralists, have a confused notion of the Useful as opposed
to the Honest, often cite the saying of Aristides as to a
certain project which Themistocles would reveal to no
one but him: ' The project of Themistocles/ quoth Aristides
to the assembled people, * is very advantageous, but it is very
wicked/ They fancy they see here a manifest opposition
between the Useful and the Just, but they are mistaken.
It is simply a comparison of good and evil. ^ Wicked is a
term which presents to the mind the collective idea of the
aggregate of evil resulting from a situation in which men
can no longer trust one another. Aristides should have
said : ' The project of Themistocles would prove useful for
24 Principles of Legislation. [CHAP.
a moment, but harmful for centuries . What it would bestow
is naught in comparison with what it would take away. 1
I* is said > now and a g am > tnat tne Principle of Utility is
only a revival of Epicurism; and everyone knows how
destructive of good behaviour that doctrine became. It
was always the doctrine of the most corrupt men.
Now, it is true that, among the ancients, Epicurus alone
has the honour of having perceived the true source of
morality; but to suppose that his doctrine leads to the
consequences alleged is to suppose that happiness may
become its own enemy. Sic prcesentibus utaris volupta-
tibus ut futuris non noceas. Seneca is here in accord with
Epicurus, and what more can be asked in the name of
morality than the cutting off of every pleasure which is
hurtful to oneself or to other men ? And is not that the
Principle of Utility itself ?
that 6 there ' That is all very well/ they may go on to say, ' but every-
! no obiiga- one will constitute himself the judge of what utility is ; and
tion bind- . J *
ing on then, when he thinks that adherence to the principle will
of utility, no longer serve his own interests, there will be no obligation
to bind him/
Everyone will constitute hitfiself judge of what utility
is. That is so, and so it ought to be; otherwise man would
not be a rational agent. The man who is not a judge of
what is suitable for himself is less than a child he is an
idiot. The obligation which really binds men to their
engagements is nothing less than the recognition of a
1 The anecdote is not worth recalling, except to clear up the sense
of words. It has been proved to be unfounded in fact (see Mitford's
History of Greece). Plutarch wished to pay a compliment to the Athe-
nians ; but he would have found it very difficult to reconcile the greater
part of their history with this noble sentiment (Dumont). ' Whether
Aristeides was the rogue or Themistocles the fool afterward to divulge
the secret, Plutarch, with a thoughtlessness ordinary with him, omits
to inform us; but he asserts, with perfect confidence, that the proposal
of Themistocles was to burn the allied Grecian fleet assembled in the
Bay of Pagasse; and, with a further thoughtlessness, which has justly
excited the indignation of the good Rollin, he appears to give his appro-
bation to such an infernal project as a great idea ' (Mitford's History of
Greece, 1790, vol. ii., p. 44, note). (C. M. A.)
v.] Objections to the Principle of Utility answered. 25
certain higher interest which outweighs every inferior
interest. A man is not bound solely by the utility of a
particular promise or engagement; for should the/ engage-
ment become burdensome to either of the parties, he
would still remain bound by the utility of engagements in
general; by the confidence which every man of refinement
wishes to have placed in his word, so that he may be
regarded as trustworthy, and thus enjoy the advantages
which attach to uprightness and to good repute.
It is not the promise or engagement in itself which con-
stitutes the obligation; for some engagements are void,
while others are unlawfiil. Why is this ? Because they
are looked upon as harmful. It is, then, the utility of the
engagement which gives it force.
Acts of the loftiest virtue may all be easily reduced to
terms in which their good effects and their ill effects might be
submitted to a calculus ; nor is virtue degraded or enfeebled
by being thus represented as a product of reason, or by being
interpreted in a manner at once simple and intelligible.
Mark the circle around which we are driven if we decline conse-
to recognize the Principle of Utility ! I ought to keep my rejecting
promise. Why ? Because my conscience bids me do so. gefr inter'
How do you know that your conscience bids you? Because est
I am prompted by a certain internal feeling. Why ought you
to obey your conscience ? Because God is the author of my
being, and to obey my conscience is to obey my God. Why
ought you to obey God ? Because it is my first duty. How
do you know that ? Because my conscience tells me so, etc.
Such is the everlasting circle whence there is no escape, the
source of stubborn and invincible error. For, if feeling is to be
our only guide, there is no longer any means of distinguishing
the behests of an enlightened conscience from the prompt-
ings of a blind one. Every persecutor has the same right
to persecute ; every fanatic the same ground for his belief.
If you would reject the Principle of Utility because it
may be ill applied, what will you put in its stead ? Where
26 Principles of Legislation. [CHAP-
is the rule that cannot be abused ? Where is that infallible
guide to be found ? Will you substitute for utility some
despotic principle which appoints men to act in such and
such a particular manner in servile submission and with-
out knowing why ? Will you substitute for it some anar-
chical and capricious principle founded solely upon your
own internal and peculiar feelings ?
If so, what motives will you hold out to influence men
to follow your guidance ? Would not these same motives
be found to be dependent on self-interest in some form or
another ? If men do not agree with you, how will you
reason with them ? How will you reconcile them to your
views ? Before what tribunal would you cite the various
sects, opinions, and contrarieties, scattered over the habit-
able globe, unless it be before the tribunal of their own
common interest ?
^ e mos ^ unyielding opponents of the principle of Utility
are those who take their stand upon what they call the
religious principle. They profess to take the will of God as
the sole determinant of good and evil. It is, say they, the
only rule which possesses all the requisite qualities, being
infallible, universal, supreme, etc. My answer is that the
Religious Principle is not a separate and distinct principle
at all : it is really only one or other of those already spoken
of, presented in a new guise. What is called the will of
God can only be his presumed will, seeing that God does
not declare himself to us by direct action and special
revelation. Now, how does a man presume the will of
God ? By reference to his own will. But his own will is
always controlled by one or other of the three principles
already mentioned. How do you know that such and
such a thing displeases God? ' Because it would be calcu-
lated to impair the happiness of man/ answers the adherent
of Utility. ' Because it involves a gross and sensual
pleasure which God disapproves/ answers the ascetic.
' Because it wounds my conscience, is contrary to my
v.] Objections to the Principle of Utility answered. 27
natural feelings, and ought, without further inquiry, to be T >e BJIJ-
held accursed;' such is the language of antipathy. ,
But revelation, it may be said, is the direct expression of
God's will. There is nothing arbitrary about it. It is a
guide which is to be preferred before any human reasoning.
I will not answer, in indirect fashion, that revelation is
not universally accepted; that even amongst Christian
nations there are many people who do not accept it; and
that we must needs have some principle of reasoning which
is common to all men. But I do say that revelation cannot
be regarded as a system, either of politics or of morals ; that
all its precepts require to be examined, modified, and limited
one by the other. I say that, taken in a literal sense, they
would turn the world upside down, get rid of the right of
self-defence, destroy industry, commerce, and mutual
alliances; while ecclesiastical history affords indisputable
proof of the frightful evils which have, in fact, resulted
from religious maxims imperfectly understood.
What a difference there is between Protestant and
Catholic theologians ! between the moderns and the ancients !
The gospel morality of Paley is not the gospel morality of
St. Nicholas; that of the Jansenists was not that of the
Jesuits. The interpreters of Scripture may be divided into
t three classes. The first adopt the Principle of Utility as
their guide in criticism; the second follow asceticism; the
third follow the confused impressions of sympathy and
antipathy. The first class, far from excluding pleasures,
offer them in proof of the goodness of God. The Ascetics
are the deadly enemies of pleasure; and, if ever it be counte-
nanced, it is not for its own sake, but as a means to some
certain necessary end. The third class approve or condemn
pleasures, according to their individual fancy, without
being influenced by any consideration of possible conse-
quences. We see, then, that revelation is not a separate
and distinct principle; for that term can only be properly
applied to something which stands in no need of proof
itself, and yet serves to prove everything else.
CHAPTER VI.
PLEASURES AND PAINS : THEIR VARIOUS KINDS.
; interest- WE daily experience a variety of perceptions which give
ceptions. us no concern at all: which are, so to speak, constantly
gliding over us without engaging our attention. In this
way we find that most everyday familiar objects no longer
produce sensations lively enough to cause us either pleasure
or pain. The names ' pleasure ' and ' pain ' can, indeed,
be properly applied only to what may be called * interesting
perceptions ' ; that is to say, perceptions which force them -
selves into notice amidst the crowd, and are such as we
desire either to prolong or to make an end of, as the case
may be.
simple and Interesting perceptions are either simple or complex:
percep* simple when they cannot, in any instance, be resolved into
more than one : complex when they are composed of several
simple pains or simple pleasures, or, perhaps, of a mixture
of pleasures and pains. It is the nature of the exciting
cause which determines us to regard several pleasures as a
complex pleasure, and not as divers simple ones. When
pleasures are excited at the same time and by the action
of the same cause, we are apt to treat them all as constituting
a single complex pleasure. Thus, a theatrical display,
which gratifies several of our senses at once by the beauty
of the scenery, the dresses, the action of the players, the
music, and the society, constitutes such a complex pleasure,
catalogue The work of analysis involved in the preparation of a
painTand complete catalogue of the simple pains and pleasures has
necessarily been very great. And this same catalogue,
28
Simple Pleasures. 29
when completed, makes such dry reading as to repel most
people ; for it is not the work of a novelist seeking to Jnterest
and excite, it is a bill of particulars an inventory of our
sensations.
i. Simple Pleasures.
1. Pleasures of Sense. Those which are immediately JJ
referable to our organs, independently of all association
viz., the pleasures of Taste, of Smell, of Sight, of Hearing,
of Touch so, too, the blessing of Good Health, that delight-
ful flow of spirits, that perception of a light and sportive
existence, which is not to be referred to any one sense in
particular, but to all the vital functions. And, finally, the
pleasure of Novelty, such as we derive from the application
of new objects to any of the senses. These two last-named
pleasures do not form a separate class, but they play so
important a part that it becomes necessary to mention
them specifically.
2. Pleasures of Wealth meaning thereby the kind of O f e weaith.
pleasures a man is apt to derive from the consciousness of
possessing an estate or some article of property which is an
instrument of enjoyment or security, and more particularly
so at the time of its first acquisition.
3. Pleasures of Skill. Those which result from some oflfkmfor
difficulty overcome, from a sense of relative perfection in Dextent y-
the mode of handling or using instruments such as may be
applied to promote pleasure or utility. Thus, for example,
a man who plays the harpsichord experiences a pleasure
perfectly distinguishable from that which he enjoys on hear-
ing the same piece of music performed by another person.
4. Pleasures of Amity. These pleasures accompany the of le !mity.
persuasion of a man's being in possession of the goodwill
of such and such assignable person or persons in particular ;
and as a fruit of this goodwill, of his being in a way to have
the benefit of his or their spontaneous and gratuitous
services.
3 o
Principles of Legislation.
[CHAP.
Pleasures
of Good
Repute.
Pleasures
of Power.
Pleasures
of Piety.
Pleasures
of Benevo-
lence.
Pleasures
of Malevo-
lence.
Intellectual
Pleasures.
5 . Pleasures of Good Character or Repute. These pleasures
accompany a man's possession or acquisition of the esteem
and goodwill of the world about him; that is, of such
members of society as he is likely to have any commerce
with : and, as a fruit of this disposition, they are allied with
a reasonable expectation of benefit from the spontaneous
and gratuitous services of such persons in case of need.
6. Pleasures of Power. Those experienced by a man who
feels himself in a position to dispose people, through their
hopes and fears, to give him the benefit of their services :
that is to say, through the hope of some good office, or
through the fear of some disservice, that he may be in the
way to render them.
7. Pleasures of Piety. Those which accompany the
belief that one has acquired or possesses the goodwill of
God; and that, as a fruit of such goodwill, one is entitled
to expect the bestowal of peculiar favours either in this life
or in the life to come.
8. Pleasures of Benevolence to wit, such pleasures as
we are able to derive from contemplating the happiness of
those whom we love. These may also be called the
pleasures of sympathy, or the pleasures of the social affec-
tions. Their force is more or less expansive; for they have
the property of concentrating within the compass of a narrow
circle or of diffusing themselves over the whole human race.
Benevolence may, too, be extended towards animals, when
we have a fondness for the species or particular members of
it : the signs of their happiness afford us distinct pleasure.
9. Pleasure of Malevolence. These pleasures result from
the sight or the thought of pain endured by beings whom
we do not like, whether they be men or animals. These
may also be styled the pleasures of the irascible appetite, of
antipathy, of the anti-social affections.
10. Intellectual Pleasures. When we apply our minds
to the acquisition of new ideas, and discover, or fancy we
discover, interesting truths in morals or physical science,
vi.j Simple Pleasures. 31
the pleasure we experience may be called the intellectual
pleasure, or the pleasure of knowledge. The transport of
joy felt by Archimedes on solving a difficult problem is
readily understood by all men who have engaged in ab-
stract studies. 1
11. Pleasures of Memory. After having enjoyed such
and such pleasures, or even, in some cases, after having
suffered such and such pains, we experience pleasure in
recalling them exactly in the order and circumstances in
which they were actually enj oyed or suffered. Such pleasures
are as various in kind as the recollections which give rise
to them.
12. Pleasures of Imagination. Sometimes memory will
suggest the idea of certain pleasures which we may group,
at will, in a different order, and accompany by circumstances
of the most agreeable character, such as we have noted in
our own life or in that of others. These become pleasures
of imagination. The painter who copies nature may be
said to represent the operations of memory; while he who
makes selections here and there, and then groups at pleasure,
represents the work of the imagination. New ideas in Art
and Science, discoveries which gratify our curiosity, may all
create pleasures of the imagination; and thus its range of
enjoyment is ever stretching wider and wider.
13. The Pleasure of Hope consists in the contemplation Pleasure
of any sort of pleasure referred to time future, accompanied Anticipa
by the expectation of presently enjoying it.
14. Pleasures of Association. An object may not in itself
afford any pleasure, and yet, when associated in the mind tion
with some pleasurable object, may, by virtue of this
association, partake of a pleasurable quality. Thus, the
various incidents of a game of chance, when played for
nothing, derive their pleasurable quality from their asso-
ciation with the pleasure of acquiring wealth.
1 This paragraph does not appear in the original edition of Duinont's
work. It was inserted in the edition of 1830. (C. M. A.)
32 Principles of Legislation. [CHAP.
15. Lastly, there are pleasures grounded upon pains.
When one has been enduring pain of any kind, the cessation
or abatement of the pain, in itself, constitutes a pleasure,
and often a very lively one. These may also be styled
pleasures of relief, or of deliverance ; and they may, of course,
be distinguished into as many species as there are of pains.
Such are the constituent essences of all our enjoyments.
They unite, combine, and react upon each other in a
thousand different ways; so that it requires some little
care and practice to disentangle all the simple pleasures
which go to constitute a single complex one.
A Country The charm of a country landscape is compounded of
various pleasures of the senses, the imagination, and sym-
pathy. The great variety of objects, the forms and colours
of the flowers, the graceful shapes of the trees, the mingling
of light and shade, delight the eye; the ear is soothed by
the blithe song of birds warbling in the woods, the murmur
of the fountains, and the gentle rustling of the wind among
the leaves. The air, laden with the fragrance of newborn
vegetation, wafts delightful odours, while its limpid purity
speeds the blood coursing through the veins, and makes
every movement brisker. Imagination and benevolence
conspire to add fresh beauty to the scene by presenting to
us ideas of wealth, abundance, and fertility. The inno-
cent joy of the birds, the flocks, and the domestic animals,
furnish an agreeable contrast to memories of the toil and
stir of life. We lend to the denizens of this champaign the
pleasure which we ourselves derive from the novelty of the
scene ; while gratitude to the all-powerful and beneficent
Being, whom we look up to as the author of all these
blessings, augments our trustful admiration.
2. Simple Pains.
Pains of I . Pains of Privation. These pains correspond to all
lon * such forms of pleasure as, by their absence, excite a feeling
of chagrin : they may be ranged within three principal
vi.J Simple Pains. 33
categories, and distinguished thus: First, when the fear of
not enjoying any particular pleasure for which we yearn
is greater than our expectation of actual enjoyment, the
resulting pain is called the pain of desire, or of unsatisfied
desire. Secondly, when we have a confident hope or
expectation of enjoyment, and that expectation is abruptly
made to cease, we experience the pain of disappointment.
Thirdly, when we have the present enjoyment of a pleasure,
or, what comes to the same thing, feeling an assurance of
possession, count strongly on its enjoyment, and are then
deprived of it, the privation takes the form of a pain of
regret. As to that languor of spirit named ennui, it is a
pain of privation not referable to any particular origin,
but, rather, to the absence of every agreeable sensation.
2. Pains of the Senses. These pains are nine in number: s?n?es f the
those of hunger and of thirst ; those of taste, of touch, of
the organ of smell, produced by the application of sub-
stances which excite disagreeable sensations ; those of
hearing and of sight, produced by sounds and visible
images which offend the organs of these senses, inde-
pendently of association; those resulting from excessive
heat or cold, unless, indeed, these be referable to the touch ;
diseases of all kinds; finally, fatigue, whether of mind or
body.
3. Pains of Awkwardness. These we experience some- J^Jkward-
times in the course of unsuccessful attempts, or laborious ness -
efforts, to apply to their various uses the tools and instru-
ments which minister to our enjoyments or necessities.
4. Pains of Enmity. Those which a man feels when he Enmity!
believes himself obnoxious to the ill-will of such or such
an assignable person or persons in particular ; and fears
that, as a result, he may be made to suffer, in some way or
other, from this ill-will.
5. Pains of III Repute. Those which a man feels when
he believes himself to be obnoxious, or in a way to become
obnoxious, to the ill-will or contempt of the world about
VOL. i. D
34 Principles of Legislation. [CHAP-
him. These may likewise be called pains of dishonour or
pains of the popular sanction.
6. Pains of Piety. These pains result from the fear of
having offended the Supreme Being, and thereby in-
curred punishment, either in this life or in a life to come.
If supposed to be well-founded, they are called Religious
Fears; if assumed to be ill-founded, they are known as
Superstitious Fears.
7. Pains of Benevolence. These we experience when
we behold or ponder on the sufferings of our fellow-crea-
tures or of the animal creation. Emotions of Pity make
our tears flow for the woes of others as well as for our own.
They may, with equal propriety, be styled Pains of Sym-
pathy, or of the Social Affections.
8. Pains of Malevolence. These are experienced by a
man when he reflects on the good fortune of those whom
he dislikes. They may also be called Pains of Antipathy,
or of the Anti-social Affections.
9. 10, ii. The pains of Memory, of the Imagination,
and of Anticipation, are the exact reverse and counterpart
of pleasures of the like name.
When the same cause produces several simple pains,
they are regarded as a single complex pain. Thus, exile,
imprisonment, confiscation, are so many complex pains,
capable of being resolved by reference to our categories of
simple pains.
Knowledge If the preparation of these catalogues has been a dull
and and exhausting task, it is pleasing to recall that it is one
Fsgromfd- of great utility. The whole system of Morals, as well as
Morals and any scheme of Legislation, rests upon this single founda-
n ' tion, the Knowledge of Pains and Pleasures. It is the
groundwork of all clear ideas on these subjects. When
we speak of vice or of virtue, of actions innocent or criminal,
of a scheme of rewards and punishments, to what do we
refer ? Pains and Pleasures, and nothing else. Any
vi.] The Knowledge of Pains and Pleasures. 35
reasoning in morals or legislation which cannot be trans-
lated into these simple terms, Pain and Pleasure, is
obscure and sophistical reasoning, from which no conclu-
sion can safely be drawn.
We will say that you wish to study the question of
Offences, the subject which exerts a dominating influence
over every form of legislation. This study will be, at
bottom, nothing but a comparison, an estimate of pains
and of pleasures. Again, if you would consider the crimin-
ality or the evil of particular acts, that is only another way
of saying, the pains which those particular acts entail on
such or such individuals: if you would know the motive
of the criminal, that signifies merely the allurement of
some pleasure or other which has seduced him to commit
the crime. So, too, the profit of the crime means the
acquisition of some pleasure or advantage which has re-
sulted from its commission : while the legal punishment to
be inflicted is neither more nor less than one of the pains
which it is ordained that a culprit shall undergo. This
theory of pains and pleasures is, then, the groundwork of
the whole science of legislation.
The more one examines these two catalogues, the more remark! on
food for reflection will they be found to contain. We see
at once that pleasures and pains may be divided into two
classes: those which relate to others, and those which are
strictly personal to the individual. The first class com-
prises pleasures and pains of benevolence and malevolence,
while all the rest belong to the second class. In the next
place, we notice that there exist several kinds of pleasures
to which there are no correspondent pains. This remark
applies to the Pleasures of Novelty : the sight of new
objects is a source of pleasure, while the mere absence of
new objects does not induce the sensation of pain. So,
also, to the Pleasures of Love : the mere lack of such
pleasures does not cause positive pain, unless, indeed,
desire has been baulked, when there may result a pain of
36 Principles of Legislation.
the mental class the pain of unsatisfied desire. Certain
temperaments, doubtless, suffer from the want of sexual
indulgence; but, speaking generally, continence, that is
to say, the deliberate abstention from such indulgence, is
accompanied by a desire for sexual pleasure, and this
state is by no means one of positive pain.
Nor have the Pleasures of Wealth and of Acquisition any
correspondent pains, in case there be no disappointment.
It is always pleasant to acquire, but mere non-acquisition
is not felt as a pain. And, lastly, the Pleasures of Power
stand on the like footing. Their possession is an advantage ;
but their absence does not, in itself, amount to an evil.
Such absence is only felt as an evil by reason of some
special circumstance, such as deprivation or disappointed
expectation.
CHAPTER VII.
PAINS AND PLEASURES CONSIDERED AS SANCTIONS.
THE will cannot be influenced except by motives ; and
to speak of a motive is to speak of Pain or Pleasure. A
being, in whom we were powerless to excite an emotion
either of pain or of pleasure, would, so far as we are con-
cerned, be utterly independent.
The pain or the pleasure, which is attached to the
observance of a law, forms what is called the sanction of
that law. 1 The laws of one State are not laws in another;
and for this reason, that they have there no sanction, no
obligatory force. Now, we find four distinguishable
sources from which pleasures and pains are wont to flow :
the Physical, the Moral or Popular, the Political, the
Regarding pains and pleasures in the character of punish-
ment and reward attached to certain rules of conduct,
we may, therefore, distinguish four sanctions :
1 The terms ' sanction ' and * enforcement of obedience ' are applied
by Locke and Bentham to conditional good as well as to conditional
evil; but Austin urges that ' to talk of commands and duties as sanc-
tioned or enforced by rewards, or to talk of rewards as obliging or con-
straining to obedience is surely a wide departure from the established
meaning of the terms' (Campbell's edition of the Jurisprudence, 1911,
vol. i., p. 91). (C. M. A.)
2 Writing to Dumont, October 28, 1821, Bentham said: ' Sanctions.
Since the Traites, others have been discovered. There are now:
I. Human: six, viz.: (i.) Physical; (ii.) Retributive; (iii.) Sympathetic;
(iv.) Antipathetic; (v.) Popular, or Moral; (vi.) Political, including Legal
and Administrative. II. Superhuman vice Religious: all exemplifiable
in the case of drunkenness; viz., the punitory class.
NOTE. Sanctions in genere duae, punitoriae et remuneratorise; in serie,
septem ut super; seven multiplied by two, equal fourteen ' (Bowring
vol. i., p. 14). Cf. also Bentham's Deontology i., pp. 118-821. (C. M. A.)
37
38 Principles of Legislation. [CHAP.
natural* 1 r T * ^ e Physical or natural sanction comprises the pains
sanction. an( j pleasures which we may experience, or expect, in the
ordinary course of nature, not purposely modified by any
human interposition.
Moraior 2 . The moral sanction comprises such pains and pleasures
sanction, as we experience, or expect, at the hands of our fellows,
prompted by feelings of hatred or goodwill, of contempt or
regard : in a word, according to the spontaneous disposition
of each individual. This sanction may also be styled
popular ; the sanction of public opinion, or of honour ; or
the sanction of the pains and pleasures of sympathy.^
tegai ical r 3- ^he Political sanction comprises such pains and
sanction, pleasures as we may experience, or expect, at the hands of
the magistracy, acting under the law. This might, with
equal propriety, be termed the legal sanction.
4' ^ e re ^^ ous sanction comprises such pains and
pleasures as we may experience, or expect, in virtue of the
forebodings and promises of religion.
oftne raticm A man ' s house is destroyed by fire. Is it by reason of
sanctions ^ s own i m P ru dence ? If so, it is a punishment of the
natural sanction. Is it by direction of the magistrate ?
If so, it is a punishment of the political sanction. Is it
owing to the ill-will of his neighbours who withheld assist-
ance ? If so, it is a punishment of the popular sanction.
Is it supposed to have been occasioned by the immediate
act of some offended Divinity ? If so, it will be a punish-
ment of the religious sanction, or, in vulgar parlance, a
judgment of God. This illustration shows that the same
sorts of pain belong to all the sanctions : the difference lies
only in the circumstances which bring them into operation.
Our classification of the sanctions will be found very
useful in the course of this work. It affords a simple and
uniform nomenclature, absolutely necessary to the dis-
crimination and correct labelling of the various kinds of
1 The pains and pleasures of sympathy might, perhaps, be considered as
forming a distinct sanction (Dumont).
vii.] Pains and Pleasures considered as Sanctions. 39
moral force, which, as intellectual levers, constitute the
machinery of the human heart. They do not, of ^course,
act upon all men in the same way or with the same effect ;
and, indeed, the four sanctions are sometimes found as
allies, at other times as rivals, or even as open enemies.
When they act together, they operate with irresistible
force; when they are in direct conflict, they mutually en-
feeble each other; while, even if they be rivals, they can
hardly fail to lead men into hesitating and confused action.
We might readily conceive four distinct bodies, or codes,
of law which would correspond respectively to the
sanctions ; though the highest point of perfection would, f Law
manif estly, be reached could they be consolidated or merged
in a single code. This goal is, as yet, far distant ; but, after
all, it may not be impossible to attain it.
The Legislator should, however, never lose sight of the
fact that he has under his direct command the political
sanction only. The other three must, of necessity, be his
rivals or his allies, either hostile to him or subservient to
him ; and should he leave them out of his calculations, his
results will be full of error. If, however, he can bring them
to unite in support of his aims, he will wield enormous
power; but his only chance of joining forces is under the
standard of Utility.
The natural sanction is the only one which never ceases
to be operative; the only one which works of itself; the
only one which is unchangeable in its leading character-
istics. Insensibly it gathers all the others to itself, checks
their deviations, and induces whatever uniformity there
may be in the thoughts and opinions of mankind.
The popular sanction and the religious sanction are
more variable and inconstant, more dependent upon the
caprices of the human mind. Of the two, the popular
sanction is the more regular and constant in its operation,
the more frequently in accord with the Principle of Utility.
The action of the religious sanction is more irregular,
40 Principles of Legislation. [CHAP.
more dependent upon times and persons, more subject to
dangerous vagaries. It grows feeble when rarely called
into play, and is quickened by opposition.
The political sanction has, in some respects, an advan-
tage over both. Its action is more equal and uniform; it
is clearer and more precise in its precepts; it works more
surely and is more exemplary: in a word, it is more suscep-
tible of being brought to perfection. Every advance it
makes has a direct influence on the progress of the other
two ; but it embraces only a certain class of actions. It has
no sufficient hold on private conduct. It cannot operate
except upon proofs which it is often impossible to obtain;
while concealment, violence, or fraud, may afford a means
of escape from it.
So that, on probing the various sanctions to find out
what they can, and what they cannot, effect, we see at
once the necessity for not rejecting any one of them, but
of making use of all, while directing each of them towards
the same end. They resemble magnets in that all their
power of attraction is gone when their unlike poles come
in contact, while a tenfold force is acquired by bringing
their like poles together.
We may observe, in passing, that the systems which
have done most to divide men were founded upon some
exclusive preference given to one or other of these sanctions.
Each sanction has had its partisans,, eager to exalt it above
all the others. Each has had its enemies, seeking to lower
it in public esteem by displaying its weak points, by ex-
posing its errors, and by unfolding the evils which have
arisen from its operation, without making any mention
of its good effects. Such is the true explanation of all
those paradoxes whereby men have been led to exalt, in
turn, Nature over Society, Politics over Religion, Religion
over Nature and Government, and so on.
Every one of these sanctions is susceptible of error, that
is to say, of some application contrary to the Principle of
vn.] Pains and Pleasures considered as Sanctions. 41
Utility; but, by making use of the nomenclature which
we have just explained, it is easy, in a word, to point out
the nature of the error. Thus, for example, the infamy*
which, after a criminal has been punished, attaches to his
innocent relatives, is an error of the popular sanction.
The offence of usury, that is to say, taking interest above
the legal rate, is an error of the political sanction. 1 Penalties
directed against heresy and magic are errors of the re-
ligious sanction. Certain sympathies and antipathies are
errors of the natural sanction. The first germ of the
malady lies in some one of the sanctions, whence it usually
spreads to the others; and it is important, in every case,
to fix upon the true seat of the mischief before choosing,
or applying, the remedy. 2
1 See Bentham's vigorous denunciations of the prohibitory laws
(Bowring, iii. 1-29). 'A statutory restriction on interest,' said Mill,
' though approved by Adam Smith, has been condemned by all en-
lightened persons since the triumphant onslaught made upon it by
Bentham in his letters on Usury, which may still be referred to as the
best extant writing on the subject ' (Political Economy, book v., chap, x.,
2). (C. M. A.)
2 Some persons will be surprised that, in speaking of the moral
sanctions, we have not mentioned ' conscience.' A sufficient reason for
not employing the term is that it is vague and confusing (Dumont).
Circum-
stances
determin-
ing the
value of
pleasures
and pains.
CHAPTER VIII.
THE ASSESSMENT OF PLEASURES AND PAINS.
THE diffusion of Pleasures and the avoidance of Pains
are the only ends which a legislator should have in view.
It behoves him, then, to acquire a just and precise appre-
ciation of their respective values. Seeing that Pleasures
and Pains are the instruments he has to work with, he ought
to make a very careful study of their magnitude and
strength, which, indeed, from another point of view, con-
stitute their value.
Now, if we examine the value of a pleasure, considered
by itself and in relation to a single individual, we shall find
that it depends on four circumstances : (i) Its Intensity ;
(2) its Duration ; (3) its Certainty ; (4) its Proximity.
The value of a pain depends upon like considerations.
But, in dealing with Pains and Pleasures, it is not enough
to assess their value as though they were, necessarily,
isolated and independent. Pains and pleasures may
have as consequences other pains and pleasures. If,
therefore, we wish to estimate the tendency of any act
from which pain or pleasure directly results, we must take
into account two other circumstances: These are (5) its
Fecundity or Productiveness ; (6) its Purity. A productive
pleasure is one which is likely to be followed by other
pleasures of the same kind. A productive pain is one which
is likely to be followed by other pains of the same kind.
A pure pleasure is one which is not likely to produce
pain. A pure pain is one which is not likely to produce
pleasure.
42
The Assessment of Pleasures and Pains. 43
When the calculation is to be made in relation to a
number of individuals, yet another circumstance is to be
taken into account (7) its Extent. That is, the number
of persons who are likely to be affected by this particular
pleasure or pain, as the case may be.
Suppose we wish to take exact account of the value of Calculus of
* * ... values.
a certain action. We must follow, in detail, the various
operations which have just been indicated. These provide
the elements of a moral calculus, and Legislation may thus
become a mere matter of Arithmetic. The evil, or pain,
inflicted is the expenditure; the good, or pleasure, engen-
dered is the income.
The rules of such a calculus are the same as those of any
other.
This method of ours is slow but sure ; while the estimate f p {rjg tion
supplied by what is called ' sentiment/ though readily Calculus
obtained, is liable to mistake. Moreover, it is not neces-
sary to begin our calculation all over again every time.
The affairs of life as a rule demand rapid decisions. And
when a man has become familiar with this process, and has
acquired the precision of thought which results from its
use, he is able to compare the aggregates of good and evil
so rapidly that he is rarely conscious of every step in the
reasoning. He does the arithmetic without knowing it.
The method of strict analysis only becomes necessary when
some novel or complicated question arises, or in clearing
up a debatable point, or when expounding the operation
of the calculus to those who have no previous acquaintance
with it.
This theory of a moral calculus has never been lucidly
explained; but some such expedient has always been
adopted in practice at any rate, in all cases where men
have had a clear view of their own interest. What is it,
for example, that constitutes the value of an estate in
land ? Why, it is the sum of the pleasures which can be
derived from its enjoyment. And does not this value
44 Principles of Legislation.
vary according to the extent of the tenure in point of time,
the interval before possession can be taken, and the
certainty or uncertainty of its coming into possession
at all?
When the calculus is in operation we may rest assured
that mistakes, whether in legislation or in the moral conduct
of mankind, are always referable to some circumstance or
other which has been misconceived, forgotten, or wrongly
appraised, in making the assessment of pleasures and
pains.
CHAPTER IX.
OF CIRCUMSTANCES INFLUENCING SENSIBILITY.
A PARTICULAR cause of pleasure does not impart the
same pleasure to everybody ; nor does a particular cause of bmty
grief always produce the same measure of grief. Herein
consists the difference of sensibility. This difference may be
one of degree or one of kind. It is one of degree, when the
impression, produced by a given cause on several individuals,
is uniform in character but unequal in extent ; one of kind,
when the same cause results in several individuals experi-
encing sensations which are not even of like character.
This difference in sensibility depends on certain circum-
stances, which influence the moral or physical condition
of individuals ; in the feelings of whom changes take place,
corresponding to any changes in the circumstances. This
is a fact established by experience.
Things do not affect us in the same way in sickness and
in health, in penury and in affluence, in infancy and in
old age. But so general a view as this is not enough : we
must charge ourselves with a more searching analysis of
the human heart. Lyonnet wrote a quarto volume on the
anatomy of the caterpillar; 1 but morals have not, as yet,
found so patient and philosophical an investigator. For
myself, I lack courage to imitate him. I shall think I
have done enough if I suggest a new point of view and
1 Traite Anatomique de la Chenille qui range le Bois de Saule: pub-
lished in 1760, containing 600 pages and 18 plates. It describes, e.g.,
4,041 muscles. Pierre Lyonnet was born at Maestricht in 1707, and
died in 1789. (C. M. A.)
45
46 Principles of Legislation. [CHAP.
supply a surer method of investigation to those who wish
to pursue the subject.
Son 1 ?? c!r- z - ^ man's original constitution, or Temperament as it
fnfrue^Sn 68 * s canec ^ ^ es at tne root f tne whole matter. By the
sensibility. WO rd Temperament I mean the radical primitive disposi-
ng^ tion which attends a man from his birth a disposition
dependent alike on the physical and mental organization. 1
But, although this original constitution is the very founda-
tion of everything, it is of so mysterious a nature that we
find much difficulty in discriminating the effects produced
on sensibility thereby from those which originate in divers
other sources. We will leave it to the physiologist to
differentiate the many kinds of temperament, to dis-
cover their various effects, and to display the modes in
which they severally mingle. Neither the Moralist nor
the Legislator dares set foot on this, as yet, unexplored
land.
Health.' 2. Health. This circumstance is one we find it hard to
define except in negative terms. It may be said to be the
absence of any pain or sensation of uneasiness, of which
the primary seat can be located in some ascertained part of
the body. In point of general sensibility, we may observe
that the ailing man is less sensible to the influence of any
pleasurable cause, and more so to that of any painful one,
than he would be if in good health.
strength.' 3. Strength. Although closely connected with that of
health, the circumstance of strength is distinguishable
from it, seeing that a man may be weak enough, when
compared with the average of his fellows, and yet be in
no wise sick or ailing. The degree of his strength may be
measured with tolerable accuracy by ascertaining the
weight he can lift, or by the application of other simple
tests. Weakness is sometimes a negative term importing
1 Although many philosophers recognize only one substance, and
regard these distinctions as purely verbal, they must, at any rate, allow
that, if the mind is a part of the body, it is a part of a nature very
different from the rest (Dumont).
ix.] Of Circumstances influencing Sensibility. 47
the absence of strength ; sometimes a relative term signify-
ing that a person is not so strong as another with whom
he is compared.
4. Bodily Imperfection. By this phrase I mean some
remarkable deformity; the want of some limb or faculty, tion
the use of which is enjoyed by the ordinary run of men.
This circumstance tends in general to diminish,, more or
less, the effect of all pleasurable impressions, to aggravate
such as are disagreeable. Its effects upon sensibility, in
any special case, depend, of course, upon the nature of
the particular imperfection.
5. The Degree of Knowledge. This imports the quantity '
and quality of the ideas, which the person in question ' inte
happens to have in store. We refer to such ideas as are,
in some sort, of an interesting nature : that is to say, of a
nature calculated to influence his own happiness or that
of other men. The enlightened man is one who has in
store many such interesting ideas; while the ignorant man
has but few, and those of little importance.
6. Strength of Intellectual Powers. Intellectual strength
is measured by the degree of facility shown in calling standing,
to mind ideas already acquired, and in acquiring new
ones. Several qualities of mind may be referred to this
head, such as accuracy of memory, the capacity of paying
attention, clearness of discernment, liveliness of imagina-
tion, etc.
7. Firmness of Mind. This quality is attributed to a ' Firmness
man when he is less affected by present pleasures or pains or ' Forti-
than by great pleasure or great pain which is remote or
uncertain. Turenne lacked firmness of mind when he was
induced, by the entreaties of a woman, to betray a state
secret. The youths of Lacedsemon, who suffered themselves
to be scourged with rods before the altar of Diana without
uttering a single cry, showed that fear of shame and hope
of glory exerted greater power over them than present
pain, however poignant.
48 Principles of Legislation. [CHAP-
steadi- 8. Steadiness, or Perseverance. This circumstance has
relation to the length of time during which a given motive
acts upon the will, with uniform and continuous force.
We say that a man lacks perseverance when the motive
which impels him loses its force, without any change
calculated to impair its influence ; or when he is one of those
who yield, by turns, to a great variety of motives,
iifciina?* 9* ^ e ^ ent f ^ nc ^ na ^ ns ' When we actually experi-
MMs 1 osf ence a pl easure or pain, the manner in which it affects us is
tion. largely dependent on any idea of it that we may have formed
beforehand. In most cases we are affected in a manner
that corresponds with our expectation, but not always.
What it may be worth to obtain possession of a woman
must turn rather upon the fire of the lover's passion than
upon the beauty of the woman's form. If we know the
bent of a man's inclinations, we can calculate with tolerable
precision the amount of pleasure or pain a given event will
occasion him . The four circumstances which follow are, thus,
merely subdivisions of this head : passions, or inclinations,
considered in reference to certain given pleasures and pains.
of N Honour' 9 W' Notions of Honour. Such sensibility to pains and
pleasures as springs from the opinions formed by our fellow-
men their regard or their contempt is called honour.
Now, different nations and different individuals have very
varying ideas of honour; and it therefore becomes neces-
sary to distinguish, first, the force or quality of this motive,
secondly, its direction or quantity.
ReH^on 8 ' * 9 (P)' Notions of Religion. Everyone knows how our
conceptions of sensibility may be improved, or changed for
the worse, by religious ideas. The most marked influences
of a religion are to be observed at the period of its birth.
Peaceful communities have become bloodthirsty ; cowardly
communities have grown bold; nations of slaves have
regained their freedom; savages have submitted to the
yoke of civilization. Of a truth, no cause has produced
upon mankind effects so sudden and so marvellous; while
x.] Of Circumstances influencing Sensibility. 49
the varieties of bias which religion can impart to individuals
are equally astounding.
9 (7). Sentiments of Sympathy. I give the name sympathy ' Sy in-
to the disposition which leads us to find pleasure in the
happiness of other sensitive beings, and impels us to pity
their distress. If this disposition operates towards a single
individual, it is called friendship ; if it is extended to
creatures in pain, we know it as pity or compassion ; if it
embraces a limited class of persons, it constitutes what is
styled esprit de corps or party spirit, as the case may be ;
if it embraces a whole nation, it is public spirit, or patriotism ;
while if it extends to all mankind, the term applied is
humanity. But the kind of sympathy which plays the
most important part in ordinary life is that which tends to
focus the affections on certain definite individuals, such as
parents, children, a husband, a wife, or one's intimate
friends. This tendency serves to increase a man's general
sensibility whether to pleasure or to pain. The ego seems
to expand, and the isolated individual to assume a collec-
tive character. We seem to live, so to speak, a second
life in the hearts of those we love ; and, in our estimate of
events which concern us, it is quite possible to be less
sensible of their immediate effect upon ourselves than of the
impressions made upon those who are bound to us by the
ties of affection. In this way, it may prove the most bitter
pang of some great sorrow to think of the misery entailed on
those who love us, while the chief delight of some personal
triumph may consist in the pleasure which their joy
imparts to us. Such is the phenomenon of sympathy.
Intensity of feeling is augmented by this interchange ; as
when mirrors, arranged to throw upon each other the rays
of light, collect them in a common focus, and thus by
their reciprocal reflections produce a great increase of heat.
The strength of this sympathy is one reason why legis-
lators in general like better to have married men to deal
with than single, and fathers of families rather than such
VOL. I. E
5O Principles of Legislation. [CHAP.
sym- as are childless; 1 for the law wields its most complete sway
"contl. ~ over those with whom it comes into contact at the greatest
number of points. Moreover, men, deeply concerned for
the happiness of those who are to follow after them, think
not of the present only, but of the future ; while those, who
are not bound by the like ties, feel an interest which
extends only to their own lifetime. As to the sympathy
induced by these family ties, it is to be noted that it may
come into play quite independently of any question of
affection. Honour gained by the sire sheds its rays on
the son : what reflects disgrace upon the son reflects dis-
grace also on the father. Members of the same family,
although their interests may lie apart and their inclina-
tions differ widely, have yet a common ground of sym-
pathy in all that appertains to the honour of each one of
them.
Antip; 9 (8). Antipathies. Antipathetic biases are just the re-
verse of those expansive sentiments of which we have been
speaking, that take their rise in the affections. But,
while there are sources of sympathy which are constant
and primeval they may be found everywhere, at all
times, and in all circumstances antipathies are of course
casual in their origin, and therefore transitory. Moreover,
they vary with times, places, persons, and events, there
being nothing about them which is fixed and determinate.
Yet these two principles are, on occasion, found linked
together in active co-operation : thus, the sentiment of
humanity may make inhuman men hateful to us; friend-
ship may cause us to hate those who are hostile to our
friends; while antipathy itself may supply a bond of
union between two persons who have a common enemy.
Madness ' 10. Madness or Disorder of Mind. Mental imperfections
rangement may be reduced to ignorance, weakness of mind, irrita-
1 Cf. Bacon's Essays : ' Of Marriage and Single Life.' ' He that hath
wife and children hath given hostages to fortune; for they are impedi-
ments to great enterprises, either of virtue or mischief.' (C. M. A.)
ix.] Of Circumstances influencing Sensibility. 51
bility, and unsteadiness. But the term madness is re-
served for that extraordinary degree of imperfection which
is as obvious and unquestionable as the most conspicuous
bodily defect. It not only imparts and carries to excess
all the imperfections above mentioned; but, in addition,
it gives a preposterous, and even dangerous, bent to the
inclinations. Upon some particular point, the sensibility
of the madman may be extreme, while in other regards it
may seem non-existent. He appears to be seized by ex-
cessive distrust, by a devilish malignity, to be deprived
of every sentiment of benevolence. He no longer has
any respect for himself or for others ; he outrages all
decorum and all propriety ; but he is not insensible to fear
or to kindly offices; he yields to firmness, while gentle
treatment makes him tractable. Yet he has hardly any
care for the future, and he can be controlled only by direct
and immediate action.
ii. Pecuniary Circumstances. These are measured by ' Pecuniary
i u- i- * u i-- Circura-
the proportion which a man s means bear to his wants, stances.'
His means depend upon three factors: (i) His property,
that is, what he has in store independently of his labour;
(2) the profits of his labour; (3) the pecuniary aids which he
may reasonably expect from relations or friends. His wants
depend upon four factors: (i) His habits of expenditure.
To possess what is unnecessary for indulgence in these
habits is superfluity, to lack what is necessary for such
indulgence is privation; the greater part of our desires
would not come into existence at all but for the recollec-
tion of some past enjoyment. (2) The persons whom he is
charged to support, either by the laws or by the customs
of his country, such as children, poor relations, or old
servants. (3) Casual and unexpected demands. A given
sum may have much greater value at one time than at
another; as, for example, if it is needed to carry on an
important lawsuit, or for a journey on which the fortunes
of a family depend. (4) His expectations of an inheritance,
52 Principles of Legislation. [CHAP.
of gains in some enterprise, etc. It is manifest that such ex-
pectations may operate as real wants, proportioned to the
strength of the expectations ; for, if his hopes be defeated,
he may experience a sense of privation akin to that
occasioned by the loss of an estate already in possession.
2. Secondary Circumstances which affect Sensibility.
secondary Writers, wishing to account for differences of sensi-
circum- bility, have ascribed them to circumstances of which we
have, as yet, made no mention : sex, age, rank, education,
habitual occupations, climate, race, government, religion
all circumstances very obvious, quite open to observation,
and most convenient for explaining the various phenomena
of sensibility. Yet, after all., they are only secondary
influencing circumstances ; I mean that, in themselves, they
afford no adequate explanation of divergence, but must,
in turn, be explained by means of the circumstances
described in the first section; each of the secondary circum-
stances containing in itself several of the primary influencing
circumstances. Thus, when we speak of the influence of
sex upon sensibility, we simply call to mind by a single
word various primary circumstances : strength, knowledge,
firmness of mind, perseverance, ideas of honour, sentiments
of sympathy, etc. So, when we speak of the influence of
rank, we mean thereby a certain combination of primary
circumstances, such as degree of knowledge, ideas of honour,
family connection, habitual occupation, pecuniary circum-
stances. It is the same with all the others; each secondary
circumstance may be explained by a certain number of the
primary ones. This distinction, although essential, has
never yet been analyzed. Let us, then, proceed to a more
detailed examination.
sex.' I. Sex. The sensibility of women seems to be greater
than that of men. Their health is more delicate. In point
of strength of body, degree of knowledge, intellectual powers,
ix.] Secondary Circumstances affecting Sensibility. 53
and firmness of mind, they are commonly inferior. Their
moral and religious sensibility is keener and more alert;
sympathies and antipathies have greater sway over them.
A woman's notion of honour consists rather in modesty
and chastity; that of a man, in uprightness and courage.
The religion of woman inclines more readily towards super-
stition; that is to say, towards trifling observances. For
her own offspring all their lives long, and for children in
general while very young, her affection is commonly
stronger than that of the male. Women have more com-
passion for unhappy beings whom they see in pain, and the
very care they bestow in relief of suffering seems to create
a fresh bond of sympathy; but their benevolence is con-
fined within a narrower circle, and is less often regulated
by the principle of Utility. It is seldom that their affec-
tions expand so as to embrace the welfare of their country
in general, much less that of mankind at large; and even
such interest as they assume in party matters takes its rise
almost always in some personal sympathy. Their attach-
ments, as well as their antipathies, depend rather on fancy
and caprice; while a man has more regard to individual
interests or to public utility. Their occupations, in the
nature of recreation, are quieter and more sedentary. On
the whole, woman is more useful in family life, and man in
affairs of state : domestic economy is best placed in the
hands of woman, general administration in the hands
of man.
2. Age. Each period of life acts upon sensibility in a 'Age.
distinctive fashion ; but it is extremely difficult to take any
exact account of the effects produced, inasmuch as the
limits of the several periods vary with the individual, and
are, indeed, in all cases, quite arbitrary. In treating of
infancy, adolescence, youth, maturity, decline, and de-
crepitude, as distinct periods of human life, we can only
indulge in vague generalities. Thus, we may observe that,
during infancy, the various imperfections of mind, already
54 Principles of Legislation. [CHAP.
mentioned, are so marked that this age has need of constant
and vigilant protection. The affections of adolescence and
early youth, while lively and prone to passion, are seldom
controlled by the dictates of prudence. The legislator is
therefore compelled to keep persons of that age from
straying into the paths whither their inexperience and the
play of their passions would lead them. In the stage of
decrepitude there is, in many respects, a relapse into the
imperfections of infancy.
Rank.' 3. Rank. The effects of this circumstance are so largely
dependent on the political constitution of the particular
State that it is almost impossible to propound any propo-
sition as worthy of general acceptation. We may say,
however, that the quantum of sensibility is commonly
greater in the higher ranks than in the lower, the influence
of ideas of honour being specially powerful.
Educa- 4. Education. To the physical part of a man's education
belong the circumstances of health, strength, and hardi-
ness : to the intellectual part, those of quantity and quality
of knowledge, and in some measure, perhaps, those of
steadiness and firmness of mind : to the moral part, the
bent of his inclinations, his ideas of honour and religion,
his sentiments of sympathy, etc. To all three branches,
indiscriminately, appertain his habitual occupations, his
recreations, his connections, his habits of expense, and his
pecuniary resources. But, when we are speaking of his
education, we must not forget that, in all these points, its
influence is, possibly, modified by a concatenation of ex-
terior occurrences ; or, it may be, by his natural disposition
and in a manner altogether out of the reach of calculation.
Habitual 5. Habitual Occupations. As well those which a man
Jccupa-
;ton ' or pursues for the sake of profit, as those which he pursues for
lion/ the sake of present pleasure and of his free choice. These
exert an influence on all the other circumstances health,
strength, knowledge, inclinations, ideas of honour, sym-
pathies, antipathies, fortune, etc. Thus, we see common
TX.] Secondary Circumstances affecting Sensibility. 55
traits of character in the members of particular professions,
especially those which constitute definite ranks or condi-
tions, such as ecclesiastics, soldiers, sailors, advocates, or
judicial authorities.
6. Climate. At first too much importance was attached ' Climate.
to this cause, and then, afterwards, it was rated as of none at
all. Indeed, a precise estimate is rendered difficult because,
in comparing nation with nation, we can only present cer-
tain broad facts which may be explained in various ways.
It seems beyond doubt that in warm climates men are
not so strong or hardy : there is less need for them to labour,
as the soil is more fertile : they are more prone to the
pleasures of love, a passion which begins to manifest itself
at an earlier period and with greater warmth. Their
sensibilities of all kinds are more intense; their imagina-
tion is more vivid, they are more quick-witted, but possess
less strength and steadiness of mind; their habitual occu-
pations savour more of sloth than of activity. They have
probably from birth a bodily frame of less vigour, a cast
of mind less fixed and firm of purpose.
7. Race. A man of negro race, born in France or ' Eace -'
England, is a very different being, in many respects, from
a man of French or English blood. A child of Spanish race,
born in Mexico or Peru, is at the hour of its birth a different
sort of being from a child of the original Mexican or Peru-
vian race. Race may influence the natural stock which
serves as a foundation for everything else. But afterwards
it operates in much greater measure through the medium of
moral, religious, sympathetic, and antipathetic biases.
8. Government. The influence of this circumstance oper-
ates much in the same way as the influence of education.
The magistrate 1 may be regarded in the light of a national
tutor; and, indeed, under a watchful and solicitous govern-
1 The magistrate is the instrument employed by the legislator to put
the laws into operation. Helvetius (says M. Halevy), inspired by the
same idea, magnified the influence of the legislator, perhaps beyond
reasonable bounds. He did not regard the lawgiver as having com-
56 Principles of Legislation. [CHAP.
ment * ^ e actual preceptor, nay, even the father himself,
i s but a deputy, as it were, to the magistrate, with this
difference, that his controlling influence is subject to
a time limit, while that of the magistrate dwells with a
man to his life's end. This cause operates with immense
effect, and spreads in almost every direction; or, rather, it
influences everything except temperament, race, and
climate. Nay ! even health may be dependent upon it in
more ways than one for example, in relation to police
administration, the supply of food, and the removal of
nuisances. The system of education, the mode of regu-
lating employment, the scheme of rewards and punish-
ments, such things will determine the physical and moral
characteristics of a nation. Under a well-constituted, or
even under a well-administered though ill-constituted,
government, it will usually be found that men are more
under the governance of honour, and that honour is itself
awarded to actions more conformable with public utility;
that religious sensibility is less affected by fanaticism and
intolerance, and more free from superstition and slavish
adulation. There will spring up a common sentiment of
true patriotism, and men will grasp the existence of national
interests. Enfeebled factions will find a difficulty in turn-
ing again to their old rallying cries ; while the goodwill of
the people will be directed rather to the magistrate than to
party leaders, and more to the whole community than to
either. Private vengeance will be neither lasting nor
widely spread; the national taste will be directed toward
useful expenditure such as expeditions undertaken in the
interests of learning or for improvement in agriculture,
the sciences, or the beautification of the country. There
will be perceptible, even in the productions of the human
pleted his task when he had promulgated laws and imposed penalties.
That writer, indeed, regarded him as, above all things, a teacher, who,
by stimulating the sense of honour and guiding human passions in the
direction of general utility, formed the character of the people (De
V Esprit, disc, hi., chap. 25; and see Halevy. p. 138). (C. M. A.) ,
ix.] Secondary Circumstances affecting Sensibility. 57
mind, a general disposition to discuss calmly important
questions affecting the public welfare. 1
9. Religious Profession. We may draw from this source
pretty clear indications in relation to religious sensibility,
sympathies, antipathies, ideas of honour and of virtue.
From the sect to which a man belongs, one may, in certain
cases, judge of his knowledge, the strength or weakness of
his mind, and of the bent of his inclinations. I agree that
it is common enough for a man, from motives of conve-
nience or good breeding, to make public profession of a
religion to the dictates of which he pays very little inward
regard. But in such a case the influence of religious pro-
fession, although weakened, is not completely destroyed.
The effects of early habits, of the ties of society, and of the
force of example, continue in operation even after the
principle with which they were originally associated has
ceased to have any application. The man who at heart is
no longer a Jew, a Quaker, an Anabaptist, a Calvinist, or
a Lutheran, does not altogether abandon the sort of par-
tiality he entertained for those of his own persuasion, or
the corresponding antipathy against those of every other.
3. Practical Application of the Theory of 'Sensibility.'
It is impossible to calculate the motion of a vessel without influence
f>f ^fMlfll*
ascertaining the circumstances which affect her speed, such bmty on
as the force of the winds, the resistance of the waves, the Legislation
section of the hull, the weight of the cargo, etc. So, also,
in matters of legislation, we cannot proceed with any degree
of assurance without considering all the circumstances
which tend to influence sensibility. At this stage I confine
myself to what concerns the Penal Code; and that code
demands, in all its parts, scrupulous attention to this
diversity of circumstances.
xxv. ; and Halevy's Jeunesse de Bentham, pp. 138, 139. (C. M. A.)
Principles of Legislation.
[CHAP.
Effect of
Punish-
ment.
Transplan-
tation of
laws.
1. To assess the Mischief of an Offence. Offences, though
called by the same name, are not in reality the same, in
case the sensibility of the individuals injured be not the
same. For instance, a certain act directed against a
woman might amount to serious insult, while in the case
of a man it might be a matter of indifference. So, some
bodily injury inflicted on a sick man might place his life in
danger, although to one in robust health it would be of no
consequence. Or, again, a libellous attack, which would
bring financial ruin or dishonour on one man, might prove
quite harmless if levelled against another.
2. To award Proper Satisfaction to the Person injured.
Forms of satisfaction, the same in name, are not really the
same, in case the sensibility be essentially different.
Whether certain monetary satisfaction for an affront
should be regarded as adequate, or as in the nature of an
insult, would depend upon the rank of the particular person
affronted, his wealth, and the notions prevalent as to such
matters. If I am insulted, my pardon publicly asked will
prove sufficient satisfaction if craved by my superior or
my equal ; but not so if sought by one of inferior condition.
3. To estimate the Strength of Punishment and its Effect
upon the Delinquent. Forms of punishment, the same in
name, are not really the same, in case the sensibility be
essentially different. Banishment is not a like punishment
when inflicted on an old man and on a young one, on a single
man and on the head of a family, on an artisan without
means of support in exile and on a wealthy man who, in
effect, merely changes the scene of his amusements. Im-
prisonment is not a like punishment when inflicted on a man
and on a woman, on a healthy person and on an ailing one,
on a rich man whose family will not suffer by reason of his
absence, and on a man who lives by the labour of his hands
and will leave his wife and children at the mercy of the world.
4. To transplant a Law from One Country to Another.
Laws, couched in the same terms, are not really the same.
ix.] Application of Theory of 'Sensibility.' 59
in case the sensibility of two nations be essentially different.
A particular law, which makes for the happiness of the
home in Europe, might, if transplanted into Asia, prove a
scourge to the community. In Europe women are wont to
enjoy liberty, and, indeed, in domestic matters to exercise
supreme authority ; while in Asia they are inured, by their
training, to the seclusion of the seraglio, and even to a sort
of slavery. In the East, marriage is not a contract of the
same nature as on the continent of Europe ; and if an attempt
were made to apply the same laws throughout, it would
certainly result in the unhappiness of all parties concerned.
The same punishments, it is said, for the same offences : and
this adage makes a show of justice and impartiality which
leads shallow minds astray. To give it any rational mean- offences
ing, we must, first of all, ascertain what is to be understood
by ' the same punishments/ ' the same offences/ A rigid,
inflexible law, which paid no regard to sex, age, fortune,
rank, or education, nor to the moral and religious prejudices
of offenders, would be doubly vicious at once ineffective
and tyrannical. Too severe for one delinquent, too mild for
another; always erring, by going too far in one case, by
falling short in another, it would conceal, under an appear-
ance of equality, the most monstrous inequality. 1 When
one man of great fortune and another of moderate means
are mulct in like penalties, is the punishment the same ?
Do they suffer the same quantity of pain ? Is not the
manifest inequality of treatment made even more hateful
by the absurd pretence of equality ? And is not the whole
object of the law defeated, seeing that the one may lose his
very means of subsistence, while the other walks off with
an air of triumph ? Suppose that a robust youth and a
1 The context will make it clear that Bentham is not here advocating
' one law for the rich and another for the poor ' ; though his reasoning
would, of course, lead to the imposition of a sentence nominally less
severe on a man of refined mind and gentle culture, as compared with
the punishment meted out to a hardy member of the vagrant class.
Similarly, any money penalty imposed on a rich man must be enormously
more severe than that exacted from a man of humble means. (C. M. A. )
60 Principles of Legislation. [CHAP.
feeble old man were both condemned to drag chains of
iron for the like number of years, a reasoner skilled in
obscuring the most obvious truths might manage to support
the ' equality ' of this punishment ; but the people, who are
not given to sophistry, faithful to their natural instincts
and feelings, would inwardly rebel at the sight of such
injustice ; and their indignation, changing its object, would
pass in turn from the criminal to the judge, and from the
judge to the legislator.
objection I have no mind to ignore certain specious objections.
impossible Thus, it may be said : ' How is it possible to take account
ail circum- of all the circumstances which influence sensibility? How
affecting can one put a value on the inner qualities and dispositions
sensibility. , .,, , ? , , ,
which are hidden from observation, such as strength of
mind, extent of knowledge, secret sympathies, or the bent
of inclinations ? Wherewithal shall they be measured in
different human beings ? In the treatment of his children
a father may consult these inward dispositions, these
diversities of character. But the master of a public
school, though charged with only a limited number of
pupils, is not in a position to do so; while the legislator,
dealing with a considerable community, finds himself under
still greater obligation not to venture beyond general laws.
He ought, indeed, to be most wary lest he should cause com-
plications by allowing special provision in particular cases.
If he were to leave it to the judges to apply the laws in
various ways, in accordance with the infinite diversity of
characters and circumstances, there would no longer be
any limit to the arbitrary nature of their judgments.
Under colour of grasping the true spirit of the legislator,
the judges would make the laws an instrument of caprice
and double-dealing/ ' Sed aliter leges, aliter philosophi
tollunt astutias : leges quatenus manu tenere possunt ; philo-
sophi quatenus ratione et intelligentia.' l
Reply to \Ve are concerned to clear up this matter rather than to
the ob-
jection. ! Cicero, De Officiis, 3 (17) (Dumont).
ix.] Application of Theory of 'Sensibility.' 61
give a categorical answer, for it is in the nature of a diffi- Reply to
culty raised rather than a formal objection. The principle contd.
is not denied; but it is suggested that its application may
prove impossible.
1. I allow that the greater part of these differences of
sensibility cannot be precisely graduated or assessed ; and,
indeed, that it would be impossible, in some cases, to
establish their existence at all. But, happily, these inner
dispositions, which are hidden from observation, have, if
I may say so, certain outward manifestations. They are
what I have called secondary circumstances : sex, age, rank,
race, climate, government, education, religious profession
obvious and palpable circumstances which represent inner
dispositions. In this way the legislator finds relief in the
most difficult part of his task. He need not pause to con-
sider metaphysical or moral qualities; he may betake
himself at once to circumstances which are quite obvious.
Thus, he will decree the modification of some punishment,
not by reason of the offender's greater sensibility, or by
reason of his knowledge, his strength of mind, his steadi-
ness, etc., but according to the sex or age of the culprit.
It is true that presumptions raised by these circum-
stances are subject to error; it may be that a child of
fifteen is more enlightened than a man of thirty; it may
be that an individual woman has more courage or less
modesty than an individual man. But, as a general rule,
these presumptions will be sufficiently well founded to pre-
vent the making of tyrannical laws, and, above all things,
to secure for the legislator the approbation of the public.
2. Not only are these secondary circumstances easy to
grasp, they are also few in number, and may be grouped in
general classes. In respect of the various offences, they
furnish grounds of justification, extenuation, or aggrava-
tion, as the case may be; and, thus, complications dis-
appear and everything readily conforms with the principle
of simplicity.
62 Principles of Legislation. [CHAP.
Reply to 3. There is nothing arbitrary about the method. It is
contd. not the judge, it is the law itself, which modifies the par-
ticular punishment in accordance with sex, age, religious
profession, etc. As to other circumstances which it is
absolutely necessary to leave to the judge for investigation,
such as the more or less in madness, strength, fortune,
relationship, etc., the legislator, who cannot pass judgment
in particular cases, will give directions to the tribunals in
the form of general rules, and leave them a certain amount
of latitude in order that they may adjust their decision to
the special circumstances. What we here recommend is
no Utopian scheme. There never was a legislator so bar-
barous or so stupid as to ignore all the circumstances
which influence sensibility ; he has always had a more or
less confused notion of them to guide him in the establish-
ment of civil and political rights. In the appointment of
punishments, they have never been wholly neglected;
hence the differences which have been allowed in the case
of women, children, freemen, slaves, soldiers, priests, etc.
Draco would seem to have been the only lawgiver who
has disregarded all these considerations, at any rate so far
as penal legislation is concerned. All offences appeared
to him to stand on the same footing because they were all
violations of the law. He condemned all delinquents to
death without distinction. He confounded and overthrew
every principle of human sensibility. His horrible work
did not last long, and I doubt whether his laws were ever
obeyed to the letter. 1 But, without going to this extreme,
how many similar mistakes have been made ! I should
never come to an end if I began to cite instances. Is it not
common knowledge that there have been sovereigns willing
to lose a province, or cause men's blood to flow in streams,
1 Draco was the first to compile a written code of laws at Athens.
His laws were said to be written, not in ink, but in blood. After about
twenty-seven years his drastic code was repealed by Solon, except in
so far as it related to the shedding of blood. Statements as to the
provisions of this code are, for the most part, legendary. (C. M. A.)
ix.] Application of Theory of 'Sensibility.' 63
rather than pay heed to some special sensibility of their
people, tolerate some custom in itself of no importance, or
respect some prejudice, some garment, some form of
prayer ? A prince of our own time, active, enlightened,
and prompted by a desire for fame and for the happiness of
his subjects, undertook to reform everything in his country,
and succeeded in inflaming everybody against himself. 1
On the eve of his death, recalling all the crosses of his
career, he expressed a wish to have engraved upon his
tomb that he had been unsuccessful in all his under-
takings. For the benefit of posterity, it should have been
added that he had never known how to pay due regard to
the prejudices, the inclinations, the sensibility of mankind. 2
When the legislator studies the human heart, when he
makes provision for differences in degree and kind of sensi- biiity is
.,. . known as
biiity by means of exemptions, limitations, and mitiga- 'humanity,
tions, this considerate use of power charms us as a paternal
condescension, and begets the approval that we accord to
the laws under the somewhat vague terms of ' humanity/
' equity/ ' fitness/ ' moderation/ ' wisdom/ Herein I find a
striking analogy between the art of the legislator and that of
the physician. This catalogue of circumstances which in-
fluence sensibility is necessary to each of them. Indeed, it
is a scrupulous attention to everything which can affect,
or goes to make up, the condition of the particular patient
that distinguishes the physician from the empiricist. But
it is especially in maladies of the mind, in those cases
1 The Hapsburg Emperor, Joseph II., who was the son of the Em-
peror Francis I. of Lorraine and Maria Theresa of Austria. He was
born in 1741 , and died in 1790. He began to reign in 1765. Cf. ' Penal
Code,' 4th Part, chap. Ixiii. (8), post, vol. ii., p. 319 ; and see Coxe's
House of Austria, 1807, vol. ii., pp. 567-662. (C. M. A.)
2 ' A wise statesman will always consult the genius and temper of his
people, and make even prejudice and superstition subservient to the
general good. Joseph, unfortunately for himself and for Europe, acted
in direct contradiction to this plain rule; he attempted to abolish deep-
rooted institutions, and to extirpate prejudices and opinions which had
been consecrated by ages ' (Coxe's House of Austria, vol. ii., p. 659).
^VA iVi. &)
64 Principles of Legislation.
where the moral nature of the patient is affected when
it is a question of overcoming injurious habits or of
forming new ones that it becomes necessary to study
everything which may possibly exert any influence on the
inclinations of the sick man. A single mistake in this
respect may upset every calculation, and what is intended
to serve as a remedy may, in the result, be found to produce
an aggravation of the original disorder.
CHAPTER X.
ANALYSIS OF POLITICAL GOOD AND EVIL! HOW THEY ARE
DIFFUSED THROUGH SOCIETY.
IT is, then, with government as it is with medicine ; its
only business is the choice of evils. Every law is an evil,
because every law is a violation of liberty ; so that govern- *J e c *jice
ment, I say again, can only choose between evils. What
should be the aim of the legislator when making this
choice ? He should satisfy himself of two things: First,
that in all cases the events which he strives to prevent are
really evils ; and, secondly, that these evils are greater than
those he is about to employ as the means of prevention. He
must therefore attend to both the mischief of the offence and
the mischief of the law, the evil of the ailment and the evil of
the suggested remedy. An evil rarely stands alone. A share
of evil can hardly fall to a man's lot without spreading in
all directions, as from a centre ; and as it spreads it assumes
divers forms. We may see an evil of one kind issuing from
an evil of another kind, and even evil proceeding from
good, or good from evil. All these movements are of great
significance, and it is, indeed, of the very essence of legisla-
tion to recognize and distinguish them; but, happily, the
changes are few in number and their differences are strongly
marked. Three main distinctions, with some subdivisions,
will suffice to solve the most difficult problems.
The consequences of mischievous action, or what we
may call the mischief of an act, may frequently be separ-
1 Of. Introduction to the Principles of Morals and Legislation, chap. xii.
(C. M. A.)
VOL. I. F
66
Principles of Legislation.
[CHAP.
second the
order.
Original
of primary
Branches of
mischief :
and
'Danger.'
able into two parts : (i) That which is sustained by an
assignable or determinate individual, or a number of
assignable or determinate individuals; and this I term
primary mischief, or mischief of the first order ; (2) that
which, taking its origin from the former, extends itself
either over the whole community or over a number of
unassignable or indeterminate individuals ; and this I term
secondary mischief, or mischief of the second order.
The primary mischief of an act may, again, be separated
into two branches : (i) The original branch, which is peculiar
to any injured individual who is a sufferer in the first in-
stance and on his own account; the person, for example,
who is beaten or robbed ; (2) the derivative branch, which
is any share of the mischief that may befall other assignable
individuals by reason of their connection with the first
sufferer, whether such connection arise by way of personal
interest or merely from sympathy.
The secondary mischief may, in like manner, be separated
into two branches: (i) The alarm; (2) the danger. The
' alarm ' is a positive pain, a pain of apprehension : the
. * rTT. .
apprehension ot suffering mischiefs or inconveniences
similar to those which have just been exhibited to view.
The ' danger ' is the chance that the original mischievous
act may lead to other mischievous acts of the like kind.
These two branches, the alarm and the danger, are inti-
mately connected and yet perfectly distinct : either may
subsist without the other. We may be in a great fright
about a conspiracy which is purely imaginary, while, on the
other hand, we may remain quite unconcerned in the very
heart of a conspiracy which is on the point of breaking out.
But alarm and danger commonly go together as natural
effects of the same cause. The execution of a ' mischievous
act ' makes the perpetration of similar acts more probable,
and, at the same time, makes us apprehensive of their
occurrence : the evil deed begets danger, the prospect of
danger begets alarm.
x.] Analysis of Political Good and Evil. .67
A wicked act begets danger by the force or influence of
example : it paves the way for the commission of another from bad
CXcHDplG.
wicked act (i) By suggesting the idea of its commission;
(2) by adding to the strength of the temptation. Let us
try to follow the train of thoughts which might pass through
the mind of a man on learning of some robbery that had
proved successful. We will suppose that he had never
heard of this mode of making a livelihood, or had not
thought anything about it. Example serves to teach him*
and, for the first time, puts into his head the idea of having
recourse to the same expedient. He sees that the thing
is feasible enough if only one sets about it in the proper
way; and the enterprise having been carried through by
another man with success, its dangers and difficulties are
not fully present to his mind. The example becomes, as
it were, a footprint to direct him down a path on which he
would never have dared to be the first to tread. It has
another effect, hardly less remarkable, upon his understand-
ing; for it weakens the hold of the motives which restrain
him from crime. So long as the culprit remains un-
punished, the law loses part of its terror for him ; while the
fear of shame suffers like diminution, for the number of men
guilty of kindred offences affords him, so to speak, a body
of support against the odium of crime. So true is this that,
wherever robberies are frequent and go unpunished, they
cease to excite any feeling of shame: they stand on the
same footing as any other mode of acquiring property.
The early Greeks had no scruples in such matters, while the
Arabs of to-day actually glory in them.
Let us apply this theory. You have been beaten, iiiustra-
wounded, robbed, insulted. The aggregate of your per-
sonal sufferings, considered in relation to you alone, con-
stitute the original branch of the primary mischief. But
you have friends, and sympathy causes thorn to share in
your affliction. You have a wife, children, parents, and a
part of the indignity to which you have been subjected by
68 Principles of Legislation. [CHAP.
the attack is reflected upon them. You have creditors
who, owing to your loss, have to wait for their money. All
these people suffer, in greater or less degree, mischief
derived from yours. These two lots of mischief, yours and
theirs, together make up the primary mischief. But that
is not all. The report of the robbery, with all its attendant
circumstances, circulates from mouth to mouth. The idea
of danger is awakened, and, as a consequence, that of alarm.
This feeling of alarm is more or less lively, according to
what has been learned of the character of the robbers, their
number and their resources ; according to the degree of ill-
treatment you have received at their hands ; according to
the proximity of the particular person to the scene of the
robbery, his strength and personal courage, whether he
travels alone or with a wife, the quantity of valuables he
may have occasion to carry about with him, etc. This
danger and this alarm together make up the secondary
mischief.
If the mischief which has been done to you is of a nature
to spread abroad and affect others, as, for instance, if you
have been defamed by an imputation which involves a class
of persons more or less numerous, it is no longer a question
of mere private mischief, but of extended mischief; and the
mischief is increased in proportion to the number of persons
embraced within the scope of the imputation.
Again, suppose that the moneys which were stolen from
you belonged, not to you, but to some society or to the
State, I should call the loss a divided or distributed mischief ;
and in that case the mischief would be diminished in pro-
portion to the number of persons involved not increased
as in the case last supposed.
If, however, as a consequence of the wound you have
received, you suffer some mischief quite distinct from the
first, as the necessity for giving up some profitable adven-
ture, or the loss of a marriage or of some lucrative office,
that might fitly be called a consequential mischief. A mis-
x.] Analysis of Political Good and Evil. 69
chief which, when once inflicted, can never be repaired is
spoken of as permanent ; for example, some irreparable
personal injury, an amputation, death ; while it is described
as transient or evanescent when it may be completely
abated; as, for instance', a disorder which is curable, or
a loss which can be fully compensated.
These distinctions, although in a measure novel, are in
no wise useless refinements ; for it is only by these means
that we can place a precise value on the varying degrees of
malignity in crime, and mete out the due awards of punish-
ment. This analysis supplies us with a test or moral
criterion, a means of decomposing human actions, as we
decompose a mixture of metals, in order to ascertain their
intrinsic value and the precise proportion of alloy.
If, among actions which are bad or reputed to be so,
there be some which give rise to no sort of alarm, what a
difference there is between these actions and such as do
excite alarm ! Original mischief affects but a single human
being; derivative mischief can extend only to a small
number of persons ; but secondary mischief may embrace a
whole community. Suppose that some fanatic assassin-
ates a man whom he regards as a heretic, the secondary
mischief, the alarm in particular, may become of infinitely
greater import than the primary mischief.
Again, there is an entire group of offences of which the
whole mischief consists in the danger. I refer to actions
which, without causing hurt to any assignable individual,
are injurious to the public at large. Take, for example,
an offence against Justice, as where misconduct on the part
of a judge, a prosecutor, or a witness, leads to the acquittal
of a criminal. Mischief there is without doubt, for there
is danger: danger lest the delinquent, emboldened by his
escape, should repeat the crime, and danger lest other men
of evil mind should receive encouragement from the rogue's
success. Yet it is probable that the danger, grave as it
may be, will have escaped the attention of the general
Principles of Legislation.
[CHAP.
public; while even those, who, from habits of reflection,
could hardly fail to detect its presence, will not suffer any
alarm from it. They have no fear of seeing the danger
brought home to their own experience in any particular
instance.
But the real importance of these distinctions can only
be grasped as we trace their development, and we shall
presently have occasion to notice a special application of
them.
If we extend our survey, we shall discover a further
mischief which may result from the commission of an
offence. When the alarm reaches a certain point and is of
long duration, its effect is not confined to a man's passive
faculties : it makes impression also on his active faculties,
deadening them and throwing them into a state of dejection
and torpor. Thus, the harassed husbandman, when he
finds himself constantly subject to pillage and annoyance,
no longer tills the land except to save himself from dying
of hunger. He seeks in idleness a sole remaining solace for
his misfortunes ; with the loss of hope he loses all heart for
toil, and is content to see brambles in possession of his
choicest ground. This branch of mischief might be called
mischief of the third order ; and all these distinctions are
equally applicable whether the mischief is due to the act of
man or to some purely physical occurrence.
Happily, it is not to ' evil ' only that this power of prop-
agation and diffusion appertains : ' good ' is in like case.
Follow an analogous process, and you will find proceeding
from a good action, good of the first order, divisible into
original and derivative; and good of the second order, pro-
ductive of confidence and security. Good of the third order
is manifested in the energy, the gaiety of heart, the passion
for action which remuneratory motives alone inspire. A
man, animated by this joyous feeling, discovers that he is
in possession of a strength wholly unsuspected by him.
The propagation of good is less rapid, less noticeable, than
x.] Analysis of Political Good and Evil. 71
that of evil ; and a grain of good, if I may so speak, is less
productive in hopes than a grain of evil in alarms. But
this difference is amply compensated; for good is a neces-
sary consequence of natural causes which are always at
work, while evil is produced only occasionally and casually.
Society is so constituted that, in working for our own
particular happiness, we work also for general happiness ;
and we cannot add to our own means of enjoyment without,
at the same time, adding to the means of others. Two
nations, like two individuals, grow rich by the interchange
of commerce, while trade is based wholly on reciprocal
gains.
It is fortunate, too, that the effects of evil are not always P^ ,*
evil ; they are, indeed, often invested with the opposite ' good '
. , . / . may come,
quality. Thus, punishments awarded by the courts in
the case of offences, although they produce primary mis-
chief, are not looked upon by the public as mischievous,
inasmuch as they produce secondary good. True, they
involve alarm and danger ; but for whom ? Only for a class
of malefactors who, of their own free will, become obnoxious
to them. Let such men but behave themselves, and they
will no longer be exposed either to danger or to alarm. We
should never have been able to conquer, even in some small
measure, the mighty dominion of evil had we not learned
how to employ certain evils in order to fight against certain
others. It has been found necessary to make use of par-
ticular pains and fashion them into a sort of auxiliary
force to aid us in opposing other pains which were assailing
us on every side. So it is that, in the practice of an art
directed to the cure of evils of a wholly different character,
poisons skilfully prepared and applied have served as
useful remedies.
CHAPTER XI.
REASONS FOB REGARDING CERTAIN ACTIONS AS CRIMES.
<M c e rime5 f WE have now made an analysis of evil. This analysis
shows that there are certain actions from which there
results more evil than good : it is actions of this kind, or, at
least, those which have been reputed such, that legislators
have prohibited. A prohibited action is what is called an
offence or crime ; and, to make these prohibitions respected,
it has been necessary to institute penalties or punishments.
But is it proper to regard certain actions as crimes ?
or, in other words, is it proper to subject them to legal
punishments ?
What a question ! Is not the whole world agreed upon
such a point ? Is it worth while to set about proving a
recognized truth, a truth so firmly rooted in the minds of
men ? All the world may be agreed, it is true; but upon
what is their agreement founded ? Ask each one his
reasons . You will find a strange diversity of sentiments and
principles ; and you will find this not only amongst the
people, but even amongst philosophers themselves. Is it
a waste of time to seek some uniform basis of agreement
upon so vital a subject ?
The agreement which, in fact, exists is only founded on
prejudices which vary with times and places, opinions and
customs. I have always been told that such and such an
action was a crime, and crime I therefore deem it to be
that is the sort of reasoning by which the people, and even
their lawmakers, are guided. But if usage has led us to
regard innocent actions as crimes, small offences as great
72
Reasons for regarding Certain Actions as Crimes. 73
ones, and great offences as small ones, while it has every-
where proved of a variable character, usage itself ought
clearly to be subjected to some rule, and not be taken as the
rule itself. Let us, then, appeal to the principle of utility :
it will affirm the decisions of prejudice when they happen
to be just, and reverse them whenever they are hurtful.
I suppose myself a stranger to all our present denomina- Profit and
tions of vice and virtue. I am summoned to consider count of
pleasures
human actions only with relation to their good or bad and 'pains,
effects. I proceed to open two accounts ; and on the side
of pure profit I place all pleasures, while on the side of
loss I place all pains. I faithfully weigh the interests of all
parties: the man whom prejudice brands as vicious and
he whom it extols as virtuous stand before me, for the
moment, on an equality. I desire to judge even prejudice
itself, and to weigh in this new balance all actions what-
soever, with the intention of framing catalogues of those
which ought to be permitted and of those which ought to
be prohibited. This operation, which at the outset seems
so complicated, will become easy if I pay due regard to
the distinction which has been drawn between evil of the
first, second, and third order.
Suppose I have to examine an act which threatens the
security of some individual. I compare all the ' pleasure/
or, in other words, all the profit which accrues to its author
from this act, with all the ' evil/ or, in other words, all the
loss, which results therefrom to any party injured. At a
glance I note that the evil of the first order outweighs the
good of the first order. But I do not stop there. The
action in question, we will suppose, involves the whole
community in danger and alarm ; and the evil, which was
at first confined to a single person, spreads over all men
in the shape of fear. The pleasure resulting from the action
is not enjoyed by more than one, while the pain reaches a
thousand ten thousand everybody. The disproportion,
already prodigious, appears almost infinite if I pass on to
74 Principles of Legislation. [CHAP.
evil of the third order, by considering that, if the action in
question were not repressed, there would result from it not
only all this immediate mischief, but general and lasting
despondency, the cessation of work, and, in the end, the
dissolution of society.
o??ertaSn n ^ w *^ now cons ider in turn our strongest desires, those
^ wn ^ c ^ tne satisfaction is accompanied by the greatest
pleasures : and it will be seen that the gratification of these
desires, when obtained at the expense of security, is much
more fruitful of evil than of good.
i. Let us first take Enmity, or Hatred : this affords the
most usual ground for assailing a man's honour or his
person. I have conceived, no matter how or why, some
enmity against you, and am beside myself with passion.
I insult you, I humble you, I wound you. The sight of
your suffering causes me, for a time at least, a feeling of
pleasure. But, even for such a time, can it be supposed that
the pleasure I experience is equal to the pain you endure ?
Indeed, if an atom of your pain could be depicted in my
mind, is it probable that the atom of pleasure which
corresponded to it would appear to me to have the same
intensity ? And, in point of fact, there are only some
scattered atoms of your sufferings which present them-
selves to my vexed and distraught imagination: for you,
not one can be lost; for me, the greater part wholly dis-
appear. And this pleasure of mine, such as it is, soon
betrays its natural impurity ; for humanity a principle
which, perhaps, nothing can stifle even in the most cruel
minds awakens secret remorse in mine. Fears of every
kind ; the fear of vengeance on your part or on the part
of those connected with you; the fear of public condem-
nation ; and, if there remain any spark of religion in me,
religious fears also all these fears will soon spring up to
disturb my sense of security and to mar my triumph. The
fury of my passion has now abated; the sense of pleasure
is gone, no more to return; remorse succeeds to both.
xi.] Reasons for regarding Certain Actions as Crimes. 75
But on your side the suffering still remains, and may
endure for many a day. And this is true even of slight
wounds that time can fully heal : what, then, of those
cases in which, from the very nature of the injury, the
hurt is incurable; when the limbs have been cut off, the
features disfigured, or the faculties destroyed ? Weigh
the evils their intensity, their duration, their conse-
quences ; measure them in all their dimensions, and you
will find that, from every point of view, the pleasure is
inferior to the pain.
Let us pass on to the effects of the second order. The
news of your misfortune has infected the minds of all men
with fear, as it were with a poison. Every man who has
an enemy, or who may have one, is in terror, and makes
conjecture as to the injuries which it is possible for the
passion of hatred to suggest. To those feeble creatures
who find so many causes for grudges and disputes, whom
a thousand petty rivalries are for ever setting by the ears,
the spirit of vengeance proclaims a train of endless evils.
Thus it is that any cruel action, likely to cause general
suffering and induced by a passion of which the principle
is to be found in the hearts of all men, will create an alarm,
enduring until the punishment of the guilty has transferred
the danger in the direction of those who delight in enmity
and injustice. This alarm is a form of suffering common to
all ; and we ought not to forget another pain resulting from
it, the pain of sympathy felt by generous hearts when
contemplating the effects of such base actions.
2. If we now examine those actions which take their
origin in that dominant motive, that Desire to which Nature
has confided the perpetuation of the human race and so
large a share of their happiness, we shall find that (when
there results injury to personal security or to the domestic
status) the good which accrues from its satisfaction bears
no comparison with the consequential evil. I speak here
only of the form of attack which manifestly compromises
76 Principles of Legislation. [CHAP
the security of the person. I mean rape. It is idle, with
some puerile ribald jest, to deny the existence of this
crime, or to try to get rid of the horror of it. Whatever
may be said, women the most prodigal of their favours
would not relish their being snatched from them in bestial
frenzy. But in this case the magnitude of the alarm
renders useless all discussion as to the original mischief.
Whatever may be thought of the offence when actually
committed, the possibility of such an offence will always
be a source of terror ; and the more widespread the lust that
prompts to crime, the greater and more serious is the
alarm.
In times when the laws have not been sufficiently power-
ful to repress it, or morals sufficiently advanced to condemn
it, this crime has given rise to acts of vengeance of which
history has preserved some memorials. Whole nations
have taken part in the quarrel, and fierce hatreds have been
transmitted from father to son. It would seem that the
close confinement of Grecian women, unknown in the days
of Homer, owed its origin to a period of trouble and revo-
lution, when the feebleness of the laws had multiplied
disorders of this kind and spread terror through the land.
Cupidity. 3. With regard to the motive of Cupidity ; if we compare
the pleasure of acquiring by unlawful seizure with the
pain of losing by such means, the one will not be found to
be an equivalent of the other. But there are cases in which,
if we could confine ourselves to effects of the first order,
the ' good ' would have indisputable preponderance over
the ' evil ' ; and if we considered the offence simply from
that point of view, we could not assign any sufficient
justification for the rigours of the law.
Criminality Everything turns upon the mischief of the second order;
pn P the * it is that mischief which gives to the action the character
created. of a crime, and necessitates the infliction of punishment.
Let us take, for example, the physical desire of satisfying
hunger. Suppose that a needy man, sorely pressed by
XL] Reasons for regarding Certain Actions as Crimes. 77
hunger, steals a loaf from a rich man's table, and thereby
saves himself from starvation ; can we justly compare the
good which he has done himself with the evil inflicted on
the rich man ? This is equally true where the example
is less striking. Suppose that a man pilfers from the
public treasury; he enriches himself and impoverishes
nobody. The wrong which he has done to any particular
individual is reduced to an impalpable atom. It is not,
then, by reason of any mischief of the first order that we
must consider such actions as crimes, but solely on account
of the mischief of the second order.
If the pleasure attendant on the satisfaction of desires
so powerful as hatred, lust, and hunger, contrary to the
will of the other parties concerned, is far from equalling
the pain occasioned thereby, the disproportion will appear
even greater with regard to motives less active and
powerful. The desire of self-preservation is the only one
remaining which demands separate consideration.
4. If this desire has relation to some evil which the law Self- Pres-
ervation,
itself seeks to impose upon an individual, we must remember
that the imposition can only arise from some very pressing Resistance
reason, such as the necessity for carrying into execution imposed by
punishments ordained by judicial tribunals, punishments judicial "
without which there would be no government, no security. pe
Now, should the desire of escaping the penalty be satisfied >
the law, in this regard, would find itself stricken with
impotence. The mischief which results from the satisfaction
of the desire of self-preservation is, therefore, in such case,
that which results from the impotence of the law, or (what
amounts to the same thing) the non-existence of any law.
But the mischief which results from the non-existence of law
is, in fact, the aggregate of all the various evils which law
is established to prevent that is to say, of all the wrongs
done by man to men. Of course, a solitary triumph of this
kind on the part of an individual over the law is not
sufficient to strike the whole system with impotence ; yet
7 8
Principles of Legislation.
every such instance is a symptom of weakness, a step
towards destruction. There results from it, then, an evil
of the second order, an alarm, or at least a danger; and if
the law connives at the escape, it will be in conflict with
its own proper aims, and, with the object of averting one
evil, will admit another much more than its equivalent.
There remain the cases in which an individual repels
some evil to which the law has not thought fit to subject
him. But, since the law does not think fit that he should
undergo this particular evil, it thinks fit that he should not
undergo it ; and,[theref ore, to avert this evil is in itself a good.
It is possible, however, that, in making efforts to preserve
himself, the individual may do some evil more than
equivalent to the good occasioned by repelling the original
evil.
Was the evil wrought in self-defence confined within the
limits necessary for the attainment of that object, or
were those limits exceeded ? What relation does the evil
done bear to the evil averted ? Is it equal ? Is it greater ?
Is it less ? Could the evil averted have been properly
compensated if the individual in question had been minded
to submit to it for a time, instead of defending himself at
so great a cost ? These are so many questions of fact
which the law ought to take into consideration when
promulgating detailed regulations in regard to self-defence.
An inquiry into the grounds of justification or extenuation
in relation to offences is a subject which belongs to the
Penal Code. It is sufficient here to observe that, in all
these cases, whatever evil there may be of the first order,
none of the evil which an individual can do in self-defence
will produce any alarm or any danger. This is clearly
so, for, if he had not been unlawfully assailed and his
security threatened, he would have done nothing to lead
other men to suppose that they had anything to fear from
him.
CHAPTER XII.
OF THE LIMITS WHICH SEPARATE MORALS FROM
LEGISLATION.
SPEAKING in general terms, Morals, or Ethics, is the art of Aim of
directing men's actions to the production of the greatest
possible quantity of happiness ; and Legislation ought to
have precisely the same end in view.
But, although these two arts or sciences have the same
aim, they differ widely in point of extent.
All actions, public or private, fall within the province
of Morals, a science which serves as a guide to lead a man,
by the hand as it were, through all the paths and bypaths
of life, and in all his relations with his fellows. Legislation
cannot act thus ; and, if it could, it ought not to be for ever
interfering directly with the conduct of men. The science
of Morals requires a man to do everything which conduces to
the advantage of the community, including therein his own
personal advantage. But there are many actions of
benefit to the community which Legislation ought not to
enjoin, while there are many hurtful actions which it
ought not to forbid, although Morals may well do so. In
a word, Legislation has just the same centre as Morals, but
it has by no means the same circumference.
For this distinction there are two valid reasons :
i. Legislation can have no direct influence on men's Distinction
i i i -XT between
conduct except through punishments. Now, these punish- Morals and
.. Legislation.
ments are in themselves so many evils, and cannot, there-
fore, be justified except in so far as there results from them
a greater sum of good. But, if we ware minded to enforce
79
8o Principles of Legislation. [CHAP.
every moral precept by means of some punishment, the
evil of the punishment would, in many cases, be greater
than the evil of the offence; as, for example, if the mode
of carrying the law into execution were of a nature to spread
through society a degree of alarm more harmful than the
evil sought to be prevented.
2. Legislation is often impeded by the risk of involving
an innocent man in the fate designed only for the guilty.
Whence comes this risk ? From the difficulty of defining
the offence, and gaining a clear and precise conception
of it. For instance, rudeness, ingratitude, treachery,
and other vices which the popular sanction punishes,
cannot be brought under the control of the law unless they
could be made subject to such exact definition as is possible
with theft, homicide, perjury, etc. But, the better to
distinguish the true limits of Morals and Legislation, we
must here recall the common everyday classification of
moral duties. 1
As to Private Morals, or Ethics, as it is called, a man's
happiness will depend, in part, upon such of his actions as
1 In this chapter the passages selected by M. Dumont are not confined
strictly to a discussion of the limits which separate morals from
legislation i.e., the extent to which law should enter the domain of
private life. The reasoning, therefore, becomes a little difficult to
follow. Bentham was of opinion that the real end to be attained was
the protection of society, not the punishment of an offender. All
punishment, indeed, is an evil; for it necessarily involves the infliction
of pain, and pain is an evil. It would, therefore, be wrong to seek the
enforcement of every moral precept by means of some prescribed penalty;
because it might well happen, in the case of an injurious action of slight
and varying importance, or of a purely private nature, that the law
would create an evil greater than the one sought to be suppressed.
Penal law can only be usefully applied within certain limits. For
example, its power extends only to palpable acts or omissions susceptible
of satisfactory proof. Again, there may be an insuperable difficulty
in subjecting the offence to such clear and precise definition as would
guard effectively against constant misapplication of the law, as in the
case of rudeness or ingratitude. So, too, the risk of detection may be
so slight as to raise but little expectation of punishment, as in the case
of illicit intercourse between the sexes, unattended by any act of violence
or public indecency; and, thus, the infliction of a penalty, hi one instance
out of a thousand, might create a general sense of injustice, while not
acting in any wise as a deterrent. (C. M. A.)
xii.] Of the Limits ivhich separate Morals from Legislation. 81
none but himself are interested in, and in part upon such
of his actions as may affect the happiness of those about
him. In so far as his happiness depends upon the depart-
ment of behaviour first mentioned, it is said, perhaps
improperly, to depend upon his duty to himself; and the
quality or disposition manifested in the discharge of the
duty receives the name of prudence. In so far as his
happiness, or that of others, depends upon such parts of
his behaviour as may affect the interests of those about others:
involving
him, it may be said to depend upon his duty to others, or, as Probity and
the phrase goes, his duty towards his neighbour. Now, there
are two ways of consulting the happiness of other people:
the one negative, by abstaining from diminishing it; the
other positive, by striving to increase it. The first con-
stitutes probity ; the second, beneficence.
Upon all these three points ethics needs the aid of the
law, but not in the same degree, nor in the same manner.
i. The rules of Prudence are almost always sufficient of Prudence,
themselves. If a man falls short in what concerns his
own individual interests, it is his understanding, not his
will, which is at fault; if he miscarries, it can only be
through some mistake. The fear of causing hurt to oneself
is a motive of repression sufficiently strong in itself; it
would be idle to add thereto the fear of an artificial
penalty.
But perhaps it will be said that hard facts prove the how 8 far 10D :
contrary : that excesses in gambling and drinking, and JJ'
illicit commerce between the sexes, attended, as they so JJ "
often are, by the gravest risks, show clearly enough that dence -
men have not always sufficient prudence to abstain from
what they know to be injurious to themselves.
Confining myself to an answer in general terms, I remark
that, in most of these cases, the penalty would be so easy to
elude that it would prove inefficacious ; and, secondly, that
the evil produced by the penal law would be much greater
than that produced by the original fault.
VOL, I. G
82 Principles of Legislation. [CHAP.
Drunken- Suppose, for example, that a legislator should fancy
Fomica- himself on safe ground in attempting, by direct laws, to get
rid altogether of drunkenness and fornication. He would
have to begin by making a vast number of regulations ;
and thus there would arise a first and very grave incon-
venience in the complexity of the laws. Again, the easier
it is to conceal these vices, the greater the necessity for
severe penalties to outweigh, by the drastic treatment of
evil-doers, an ever-recurring hope of impunity ; and thus we
have a second inconvenience, not less grave, in the excessive
rigour of the laws. Moreover, the difficulty of procuring
evidence would be so great that it would be necessary to
encourage informers and to maintain an army of inspectors ;
and thus we have a third inconvenience, surpassing either
of the others, in this necessity for espionage.
Now, let us contrast the effects, good and bad. Offences
of this nature (if we can properly apply the term ' offence '
to a simple indiscretion) do not give rise to any alarm ; but
the projected remedy would create general dismay. Every
man, guilty or innocent, would be in fear for himself or for
his family. Suspicions and accusations would make it
perilous to associate with one's fellows ; a man would shun
society and live the life of a recluse, dreading the conse-
quences of some confidential disclosure. Instead of sup-
pressing one vice, the law would have sown the seeds of
new and more deadly vices.
It is true that certain excesses may become contagious
by force of example ; and that a mischief, almost imper-
ceptible when it affects only a small body of persons, may,
if its influence spreads, become of serious import. All that
the legislator can do against offences of this nature is to
subject them, in cases of notoriety, to censure or some slight
penalty, such as will suffice to cover them with a taint of
illegality, and so excite against them the popular sanction.
aptkfgo 11 -^ * s m ma tters f tn i g kind tna ^ legislators have been
thfsres'ect disposed t carry their interference too far. Instead of
xii.] Of the Limits which separate Morals from Legislation. 83
trusting to the prudence of the individual, they have
treated man like a child or a slave. They have surrendered
themselves to the same passion that has obsessed the
founders of certain religious orders, who (the better to mark
their authority, or perhaps from smallness of mind) have
held their followers in most abject dependence, and sketched
out for them their daily and hourly occupations, dictating
the character of their food, the time for getting up and
going to bed, and, indeed, every petty detail of life. There
are famous codes in which may be found countless trammels
of this sort : idle restraints upon marriage ; penalties directed
against celibacy; sumptuary laws controlling fashions in
dress, the cost of feasts, the furnishing of houses, and the
adornment of women. These codes are cumbered with
details as to forbidden foods and drinks, ablutions and
purifications demanded by health or cleanliness ; with a
thousand like puerilities such as add to all the incon-
veniences of useless restraint, that of befooling the people,
by covering these follies with a veil of mystery in order
to conceal their actual absurdity.
Still more unfortunate are the States in which it has Particu-
been sought, by penal laws, to maintain uniformity of matters of
religious opinion. The choice of religion ought to be left
entirely to the discretion of the individual. If he is per-
suaded that his eternal happiness depends upon a certain
form of worship or some particular belief, what can a
legislator set against so great an interest ? I have no need
to insist upon this truth; it is generally acknowledged.
But, in defining the limits of legislation, I cannot ignore
those which it is most important not to overstep. ^
If I may lay down a general rule, it is this :-leave to the
individual the greatest possible latitude in all cases where he
can injure no one but himself, for he is the best judge of his
own interests. If he makes a mistake, we may presume that,
when he finds it out, he will no longer persist in it. Let the
authority of the law be interposed only to prevent him
84 Principles of Legislation. [CHAP.
from injuring his neighbour. It is in this regard that law
becomes necessary, and the application of punishments
proves really useful ; for, in such case, the rigour exercised
against an individual makes for the security of the whole
J community.
Probity. 2 . There exists, it is true, a natural connection between
Probity and Prudence; that is to say, our own interest,
properly understood, will never leave us without a motive
for abstaining from injuring our fellows.
Let us at this stage pause for a moment. I say that,
quite apart from law and religion, we have always some
natural motive, some motive springing from our own
personal and direct interest, for consulting the happiness
of our neighbours, (i) There is the motive of pure benevo-
lence, a sweet and soothing sentiment such as we love to
experience, and one which fills us with loathing for him
who would wilfully cause pain. (2) The motive of private
affection, which holds sway in domestic life and in the
special circle of our family ties. (3) The desire to be of
good fame and the fear of ill-repute. This last is a sort
of calculation, and smacks of commerce : it is like paying
one's debts in order to obtain credit, speaking the truth to
gain confidence, serving to secure service in return.
Honesty is It is with some such meaning as this that a famous wit
policy. used to say that, if there were no such thing as honesty in
existence, it would be worth while to invent it as a means
of making one's fortune.
A man who knew his own real interests would never
engage in crime, not even in crime concealed from his
fellow-men. There would be the fear of contracting a
shameful habit which, sooner or later, would betray him ;
and the knowledge that secrets, which it is sought to hide
from the searching scrutiny of the world, will create a sense
of unrest such as taints the source of every joy. What-
ever we may gain at the expense of the feeling of security
is nothing worth ; and, if a man would preserve the respect
i
xii.] Of the Limits which separate Morals from Legislation. 85
of his fellows, the best assurance he can have is the jealous
maintenance of respect for himself.
But, in order that a man may be fully sensible of this
bond between his own interest and that of his neighbour, he
needs an enlightened mind and a heart free from corrupting
passions. Most of us have neither sufficient understanding,
nor sufficient strength of character, nor sufficient moral
sensibility, to render the aid of the law wholly unnecessary
to the maintenance of probity of conduct. The legislator
must, then, supplement the weakness of this natural interest
by adding thereto some artificial interest more appreciable
and more uniform.
More still. In many cases ethics owes its existence to the
law ; that is to say, in order to determine whether a given
action is morally good or bad, we must know whether it is
permitted or forbidden by law. For example, this is true of
what concerns property. A particular method of selling or
acquiring, which is accounted dishonest in one country, may
be deemed beyond reproach in another. It is the same in
regard to offences against the State. The State owes its
existence to legislation, so that one cannot dogmatize as
to ethical duties until one has acquainted oneself with the
enactments of the Legislature. There are, for example,
countries where it is an offence to enter the service of a
foreign power, and others in which such service is regarded
as lawful and honourable. 1
3. As to Beneficence, some distinctions are necessary. Ben efl-
The law might be extended to cover general objects, such
as the care of the poor, etc. ; but, so far as details are con-
1 Here we touch upon a question of the utmost difficulty. If the
law is not what it ought to be, if it openly contravenes the principle of
utility, ought we to obey it ? ought we to infringe it ? ought we to remain
neutral between a law which ordains an evil and ethics which forbids
it ? The solution of the problem involves considerations alike of
prudence and of regard for others. We ought to ascertain whether there
is more danger in obeying the law or in violating it ; whether the probable
mischief of obedience is less or greater than the probable mischief of
disobedience (Dumont).
cence.
86
Principles of Legislation.
[CHAP.
Extension
of law in
compliance
with dic-
tates of
beneficence
Improper
neglect of
the inter-
ests of the
inferior
animals.
cerned, the rules of beneficence must necessarily be aban-
doned in great measure to the jurisdiction of private
ethics. Beneficence is, so to speak, invested with an air
of mystery, and operates upon evils so hidden or unex-
pected that the law could not reach them. Moreover, it is
to the free-will of the individual that beneficence owes its
efficacy. If acts regarded as beneficent had been per-
formed under constraint, they would have ceased to be
beneficent acts ; they would have lost their attractiveness,
nay, their essential characteristic. It is ethics, and especi-
ally religion, which here supplies the necessary complement
to legislation, and creates the most charming of all the ties
that bind men together.
So far, however, from extending the law too widely,
legislators have not, in this regard, gone far enough. They
ought to have made it an offence to refuse or omit to
perform a service of humanity which it is easy to render,
in case any mischief is likely to result from such refusal
or neglect. 1 For example, leaving to his fate a man who
lies wounded on a lonely road, without seeking any assist-
ance for him ; not warning an ignorant man who is meddling
with poisons; not stretching out one's hand to a man who
has fallen into a ditch from which he cannot get out : in
these and other similar cases, could any fault be found
with a punishment which was confined to exposing the
delinquent to some measure of shame, or to making his
property answerable for any mischief which he might have
averted ?
I will remark, also, that legislation might well have gone
farther than it has done in the interests of the inferior
animals. I do not approve the laws made by the followers
of the Gentoo religion on this subject. There are good
reasons why animals should be made to serve for the sus-
1 Cf. A. H. dough's 'Latest Decalogue': Poems, "edition of 1895,
p. 184 :
' Thou shalt not kill; but need'st not strive
Officiously to keep alive.' (C. M. A.)
xii.] Of the Limits which separate Morals from Legislation. 87
tenance of man, and why such as molest us should be
destroyed. We are the better for it, and they are none
the worse ; for they have not, like us, distressing and long-
protracted anticipations of future misery, while the death
they suffer at our hands may always prove less painful than
that which would await them in the inevitable course of
Nature. But what can be said to justify the wanton
torments they are made to undergo, the capricious cruelties
which are practised upon them ? 1
Among the many reasons I could give for making
meaningless cruelty criminal, I confine myself to the one
which immediately appertains to my subject.
Such an amendment of the law would tend to foster a
general sentiment of benevolence and to soften men's
hearts ; or, at any rate, to check that ever-deepening and
brutal depravity which, after gloating over the sufferings of
the animal creation, would fain be glutted with the
writhings of human agony. 2
1 Cf. Introduction to the Principles of Morals and Legislation, chap,
xvii., (4), note : 'A full-grown horse or dog is beyond comparison a more
rational, as well as a more conversable, animal than an infant of a day,
or a week, or even a month, old. But suppose the case were otherwise,
what would it avail ? The question is not, Can they reason ? nor, Can
they talk ? but, Can they suffer ? ' (C. M. A.)
2 See Barrow's Voyage to the Cape of Good Hope for the cruelties of
the Dutch settlers towards cattle and slaves (Dumont). Qucere : Travels
in South Africa by John Barrow (1764-1848), published in London
1797-1798. (C. M. A.)
CHAPTER XIII.
FALSE METHODS OF REASONING IN MATTERS PERTAINING
TO LEGISLATION.
maklng S a for ^ HE ^J ect f this Introduction has been to give a clear
law. idea of the Principle of Utility and of the method of
reasoning which conforms with that principle; and, as a
result, we have a system of legislative logic that may be
summed up in very few words. What is meant by giving
a good reason for the making of a law ? It is putting for-
ward the good or evil which the law tends to produce : so
much good, so many arguments in its favour; so much
evil, so many arguments against it. But we must never
forget that good and evil are nothing else than pleasures
and pains.
What is meant by giving a false, reason ? It is putting
forward, for or against a law, something other than its
good or evil effects, as the case may be.
' utility.' Nothing could be more simple, and yet nothing is more
novel. It is not the Principle of Utility which is new ; that
is necessarily as old as the human race. All the truth
there is in ethics, all the good there is in laws, emanates
from it; but the principle has often been followed instinc-
tively, while at the same time its validity has been challenged
in argument. If, in works on legislation, it chances, here and
there, to throw out sparks, they are quickly extinguished
in the surrounding smoke. Beccaria 1 is the only writer
1 Marquis Beccaria's Essay on Crimes and Pimishments (1764) was
translated from the Italian into English, and published, with the
Commentary by Voltaire, in several editions. The ist in 1767; the
4th in 1785; the 5th in 1804. (C. M. A.)
False Methods of Reasoning. 89
who deserves to be noted as an exception ; and even in his
book there are arguments which rest on false reasoning.
It is two thousand years or more since Aristotle under-
took to prepare a complete catalogue of the various kinds
of false reasoning, which he called Sophisms. If that
catalogue were supplemented and improved in the light
of knowledge acquired during succeeding ages, it might
well find a place in my treatise; but such a task would
carry me too far. I shall content myself with exposing
some of the principal errors which prevail in matters of
legislation ; and in that way the principle of Utility will
shine forth all the more brightly by reason of the contrast
that will be drawn.
1. Antiquity of the Law is not a Reason. The antiquity
of a law may serve to create a prejudice in its favour ; but
of itself antiquity is no reason. 1 If the particular law has
conduced to the happiness of the community, the older it
is the easier will it be to make manifest its good effects, and,
so, establish its utility by a direct process.
2. The Authority of Religion is not a Reason. This
method of reasoning is rarely employed nowadays, though
for a long period it prevailed extensively. Algernon
Sidney's work abounds with quotations from the Old Testa-
ment, wherein he finds the basis of democracy as Bossuet
had found the sources of autocracy. 2 Sidney sought to
fight the partisans of divine right and passive obedience
with their own weapons. If we suppose that a law eman-
ates from the Deity, we suppose that it emanates from
Perfect Wisdom and Loving-kindness. Such a law could,
therefore, have no object other than the highest utility ; and
it is this same utility which should always be put forward
to establish the justice of the law.
1 ' C'est un adage benthamique qu' " antiquite de la loi n'est pas
raison " ' (Halevy, i. 135). (C. M. A.)
2 Sidney was born in 1622, and executed in 1683. His Discourses
concerning Government was first printed in 1698 (cf. Hallam's Literature
of Europe, iv. 201). (C. M. A.)
go Principles of Legislation. [CHAP.
3. An Accusation of Innovation is not a Reason. To
condemn all change is to condemn all progress. Where
should we have been if that principle had been followed
up to the present time ? Everything which exists must
have had a beginning, so that everything which is now an
* institution ' must once have been an ' innovation/ Those
very persons who to-day applaud the law as * ancient '
would in olden time have condemned it as ' new-fangled/
4. An Arbitrary Definition is not a Reason. Nothing is
commoner among Jurists and Political Writers than to
base arguments, and even to elaborate long books, on the
strength of purely arbitrary definitions. This artifice
consists in taking a word in a particular sense, quite
different from the one given to it in ordinary parlance,
using it as no one has ever used it before, and, so, baffling
the reader by a show of depth and mystery.
Even Montesquieu himself fell into this fault at the very
beginning of his work. 1 Seeking to give a definition of law,
he passes from metaphor to metaphor, and brings together
the most incongruous objects: the Deity, the material
world, superior intelligences, beasts, and mankind. At
last we learn that laws are relations eternal relations : so
that his definition is more obscure than the thing he
set out to define. The word law, in its ordinary sense,
suggests to every mind a tolerably clear idea; the word
relation suggests no idea at all. The word law, in its
figurative sense, suggests nothing but ambiguities; and
Montesquieu, instead of dispelling the obscurity, managed
only to intensify it.
It is characteristic of a false definition that it can only
be employed in a particular way ; so that this writer, a little
farther on (chap, iii.), has to give another definition of law:
' In general terms,' said he, ' law is human reason in so far
as it governs all the peoples of the earth.' These phrases are
1 Chapter i., 'Of the Relation of Laws to Different Beings ' (transla-
tion of U Esprit des Lois, by Nugent, 1823, vol. i., p. i). (C. M. A.)
xiii.] False Methods of Reasoning. 91
more familiar, but they do not connote any clearer idea.
Are we to take it that laws, which are so often found con- contd -
flicting, cruel, or ridiculous, and in a state of constant
change, are nevertheless always ' human reason ' ? It
seems to me that reason, so far from being the same thing
as law, is frequently opposed to it.
This first chapter of Montesquieu has been responsible
for a good deal of balderdash. People have racked their
brains in search of metaphysical mysteries where none in
fact existed. Even Beccaria 1 allowed himself to be carried
away by this obscure notion about relations. He says that
to interrogate a man for the purpose of ascertaining whether
he is guilty or innocent is, in effect, to compel him to accuse
himself. Such a proceeding shocks him, and why ?
Because, forsooth, it is confounding all the relations.
Now, what does that mean ? To enjoy, to suffer, to
cause enjoyment, to cause suffering all these are expres-
sions of which I know the meaning. But to comply with
' relations/ to confound ' relations/ is what I do not
understand at all. These abstract terms connote no idea
in my mind, awaken no sentiment in my breast. I am
absolutely indifferent to ' relations ' ; good and evil, pleasures
and pains, are what interest me.
Rousseau was not satisfied with Montesquieu's definition ;
he gave one of his own which he proclaimed as a great
discovery. ' Law,' said he, ' is the expression of the general
will.' There is, then, no law at all where the people, as a
body, have not spoken ; there is no law except in an absolute
democracy. By this supreme decree, this ' last word/ so
to speak, Rousseau has suppressed all existing laws : he has,
indeed, annulled, in advance, all those which may hereafter
be made by any of the nations upon earth, except perhaps
in the republic of San Marino.
5. Metaphors are not Reasons. I here intend either a Metaphors,
metaphor properly so called, or an allegory, which, serving
Crimes and Punishments, chap, xvi.: edition of 1804, p. 56. (C. M. A.)
92 Principles of Legislation. [CHAP.
at ^ rs ^ * i^ us * }ra *' e or adorn, comes by degrees to be treated
as the basis of an argument.
Blackstone, a man so hostile to any kind of reform that
he even condemned the introduction of the English language
into the Law Reports, neglected nothing which was likely
to instil the same prejudice into his readers' minds. He
represents the law as a castle or fortress which would be
weakened by any change in its structure. 1 I agree that
he does not use this metaphor as an argument, but why
does he employ it at all ? To seize hold of the imagina-
tion; to prejudice his readers against any suggestion of
reform; to cultivate a sort of instinctive dread of every
legal innovation. The metaphor leaves on the mind a
false impression, which produces an effect like that pro-
duced by a false argument. He should, however, have
reflected that the allegory might be turned against him.
When he makes a castle of the law, is it not natural
for ruined suitors to represent it as peopled with harpies ?
There is a saying that an Englishman's house is his
castle. But a poetical adage is not a reason ; for if a man's
house is his castle by night, why should it not be so by
day ? If it is a sanctuary for its owner, why should ifc not
be a sanctuary for everyone whom he chooses to harbour ?
In England this childish notion of liberty has at times
obstructed the due c ourse of j ustice . It seems that criminals ,
like foxes, are to be allowed to have their burrows for the
better sport of the huntsmen. 2
In Catholic countries a church is the House of God, a
metaphor which has served to establish many an asylum for
1 This seems to refer to a fine passage in book iii, chap. xvii. : * Our
system of remedial law resembles an old Gothic castle, erected in the
days of chivalry, but fitted up for a modern inhabitant. The moated
ramparts, the embattled towers, and the trophied halls, are magnifi-
cent and venerable, but useless, and therefore neglected. The in-
ferior apartments, now accommodated to daily use, are cheerful and
commodious, though their approaches may be winding and difficult.'
(C. M. A.)
2 I.e., 'The lawyers by and for whom the hunt is made' (c/.
Bowring, vol. ii., p. 511). (C. M. A.)
xiii.] False Methods of Reasoning. 93
criminals. The forcible seizure of those who sought refuge
in his house would mark a want of respect for the Deity. 1
The balance of trade is a metaphor which has occasioned
a vast amount of discussion. It has been supposed that,
in the interchange of trade, nations rise and fall like the
scale-pans of a balance, loaded with unequal weights ; and
people have been terribly disturbed by what they regarded
as a want of equilibrium. They have imagined that what
one nation lost the other must have gained, as though a
weight had been taken from one scale-pan and placed in
the other.
So, too, the phrase mother-country has given birth to a
great number of prejudices and false arguments in all
questions concerning the colonies and a parent State.
Duties have been imposed upon colonies, and crimes have
been imputed to them, all based on this metaphor of filial
dependence.
6. A Fiction is not a Reason. 2 I understand by ' fiction ' Fictions
an assumed fact notoriously false, which is reasoned upon
as though it were true. The celebrated Cocceji, 3 compiler
of the Code Frederic, supplies an example of this form of
reasoning when dealing with the topic of Wills. After a
good deal of beating about the bush on the subject of
1 ' The piety or superstition of some nations has determined that a
criminal cannot be arrested in a place of worship. This is the whole
fact: the usage is neither explained nor convicted of absurdity by saying
that such people call a church the House of God. If it were the House
of God, does Mr. Bentham conceive that it ought to be a sanctuary for
criminals ?' Such was the comment of the Edinburgh Review (vol. iv.,
p. 19) on this passage. (C. M. A.)
2 * Fictions are mighty pretty things. Locke admires them ; the author
of the Commentaries adores them; most lawyers are, even yet, well
pleased with them' (Bentham's Common -Place Book, 1774-75).
(C. M. A.)
3 Samuel (son of Henri) Cocceji, the German jurist, was born in
1679, and died in 1755. The Code, prepared under the guidance of
Cocceji, was translated into French by de Campagne, and published
under the title of the Code Frederic (1751-1753, 3 vols., 8vo.). The
Emperor afterwards directed the compilation of another code on the
basis of that of Cocceji. It was prepared by Von Kramer with the
assistance of Suarez, but did not come into operation until 1794,
after the death of Frederic. (C. M. A.)
94 Principles of Legislation. [CHAP.
natural rights, he comes to the conclusion that a legislator
ought to confer on the individual power to make a will.
Now, why ? Because, forsooth, ' the heir and the deceased
are really one and the same person, and consequently the
heir ought, as of right, to continue to enjoy the property
of the deceased' (Code Frederic, part, ii., 1. no, p. 156).
It is true that he presents some arguments which are, more
or less, based on the doctrine of Utility ; but that is only in
some introductory remarks in the preface. The serious
reason, the judicial reason, consists in the identity of the
living with the dead. 1
English Jurists, in order to justify in certain cases the
forfeiture of property, have made use of reasoning very
like that employed by the Chancellor of the great Frederic.
They have imagined a corruption of blood which stops the
course of legal succession. A man, we will suppose, has
been executed for the crime of high-treason. His innocent
son is not only deprived of his father's property, but he
cannot even inherit an estate from his grandfather, because
the channel through which the property would pass has
been tainted or corrupted. 2 This fiction of a sort of political
original sin serves as the foundation of the whole of the
law on this matter. But why stop there ? If there is
really a corruption of blood, why do they not get rid alto-
gether of these base offshoots of a criminal stock ?
In the seventh chapter of his first book, Blackstone,
speaking of the royal authority, has abandoned himself
completely to the puerility of fictions. The King has
Attributes ; he is present everywhere, he can do no wrong,
he never dies. These preposterous paradoxes, begotten
of servility, far from conveying more correct conceptions
1 ' It is but a pithy way of intimating that he is bound in all the
obligations, and entitled to all the rights, of his predecessor ' (Edinburgh
Review, vol. iv., p. 19). (C. M. A..)
2 That is, he is made to lose the chance he had of succeeding to his
grandfather, brother, or paternal uncle, because no title could be deduced
through the corrupt blood of the father (c/. Bo wring, vol. i., p. 480).
(C. M. A.)
xiii.] False Methods of Reasoning. 95
of the royal prerogative, only serve to dazzle, to mislead,
to give to reality itself an air of fable and of portent.
Nor is all this a mere play of fancy : it is on such fictions
as these that Blackstone bases the greater part of his
reasoning. He uses them to explain certain royal pre-
rogatives, which might be supported on very sufficient
grounds, without perceiving that a man damages even the
best of causes when he seeks to uphold it by worthless
arguments. Again, he tells us that ' the Judges are the
mirror by which the King's image is reflected/ 1 What
childish folly ! Is not this exposing to ridicule the very
objects he designs to cover with glory ?
But there are bolder and more important fictions which
have played a great part in politics. They have given rise
to famous books, and relate to supposed Contracts. The and People.
Leviathan of Hobbes 2 (nowadays but little read, and freely
disparaged by those who have not read it as an apology
for despotism) assumes as the sole basis of political society
a pretended contract between the Sovereign and his people.
By this contract the people have, it seems, renounced the
liberty bestowed on them by Nature, which produced
nothing but evil consequences, and have reposed supreme
authority in the hands of their Prince. Wills, however
conflicting, are in his breast reconciled in complete agree-
ment, or, rather, are there annihilated: what he wills is
accounted as the will of each and all of his subjects. When
David compassed the death of Uriah, he was acting with
Uriah's consent, inasmuch as Uriah had consented to
everything that David might command of him. According
to this system, the monarch might, we suppose, sin against
God, but he could not sin against men, for they had given
consent, in advance, to anything that he might please to do.
It was impossible to harbour a thought of resistance, for
1 Commentaries, book, i., chap. vii. (C. M. A.)
2 Born 1588, died 1679. The Leviathan was printed in London, and
published in 1651. (C. M. A.)
96 Principles of Legislation. [CHAP.
that would involve the incongruous idea of resisting
oneself. Locke, 1 whose name, to the partisans of Liberty,
is as dear as that of Hobbes is odious, has, in like
manner, rested the basis of Government on a contract.
He asserts the existence of a contract between Prince
and People, whereby the Prince undertakes to govern
according to certain laws in a manner subservient to
the general happiness; while the People, on their side,
undertake to obey so long as the Prince remains faithful
to the terms and conditions on which he received the
crown.
Rousseau indignantly rejected the notion of a bilateral
contract between Prince and People. He would have none
of it. He conceived, as the only legitimate basis of
Government, a Social Contract whereby everybody binds
himself to everybody else: according to him, the very
existence of Society depends upon this voluntary agreement
of partnership.
In each of these three systems of political theory, the
whole fabric is based on a fiction ; and that is the only factor
common to systems which in every other respect are in
direct conflict. The three contracts are all equally fic-
titious; they exist only in the imagination of their authors.
Not only is there no trace of any one of them to be found
in history : from all directions abundant evidence is forth-
coming to negative their existence. The allegation of
Hobbes is a manifest untruth, for despotism has every-
where taken its rise in violence and false notions of religion.
If there ever were a nation who, by public accord, entrusted
their chief with supreme authority, it is not true that the
people proclaimed themselves ready to submit to all the
caprices of their Sovereign, however cruel or whimsical
they might be. The strange Act which secured the assent
of the people of Denmark in 1660 comprises highly im-
1 John Locke (1632-1704). His two Treatises on Civil Government
were published in 1689-1690. (C. M. A.)
xui.] False Methods of Reasoning. 97
portant clauses limiting the supreme power. 1 The Social
Contract of Rousseau has not been subject to such severe
criticism, because men are not very particular about the
logic of a system which sets up all they love best, Liberty
and Equality. But where was this universal agreement
made ? What are its terms ? In what language is it to be
found ? Why was it left unnoticed ? Can it be that,
when they forsook the woods and renounced savagery,
men conceived the noble ideas of morals and politics upon
which this primitive convention was based ? The contract
of Locke is more specious, because there are, in point of
fact, some monarchies in which the Sovereign gives certain
undertakings on his accession to the throne, and makes
certain stipulations with the nation he is about to rule,
Yet, for all that, the alleged contract is only a fiction.
The essence of a contract lies in the free consent of the
parties concerned, while all the objects of the engagement
must be known and specified. But, although the Prince
may, at his accession, be free to accept or to refuse, are the
People equally so ? Can a few vague acclamations really
be accounted an act of individual and universal consent ?
Can such a contract really bind the multitude of individuals
who never heard of it, who were never summoned to ratify
it, who could not have refused assent without risking their
lives and their estates ? Moreover, in most monarchies,
the alleged contract has not, indeed, this faint appearance
of reality ; there is not even a pretence of any engagement
between Prince and People.
Now, there is no need to rest the happiness of mankind NO need
on a fiction, to build the social pyramid on a foundation of fictions
sand or crumbling clay. Let us leave gewgaws to children :
men should speak the language of soberness and truth.
1 In 1660, during the reign of Frederick III., the crown of Denmark
was made hereditary and the whole government was placed under royal
control. On the accession of Frederick VII., in 1848, a less autocratic
constitution was adopted. (C. M. A.)
VOL. I. H
98 Principles of Legislation. [CHAP.
The true bond in politics lies in the vast interest we all
have in maintaining a stable form of government. Without
government there can be neither security, family life,
property, nor industry. And herein we must seek the basis
and rationale of all governments whatever may be their
form or origin. It is by regarding a government in the
light of the aims which it has in view that we can reason
soundly upon its rights and obligations, without having
recourse to pretended contracts which can only serve to
beget endless disputation.
Fantastic 7' ^ Fanciful Reason is no Reason. Nothing is more
Reasons.' common than to say, Reason and Good Sense require this,
or Eternal Reason dictates that, and so on. But what is
this Reason ? If it is not a consideration manifestly based
on good or evil, pleasure or pain, it is a mere fancy, a piece
of despotism which proclaims nothing but some inner per-
suasion of the speaker. Let us see upon what foundation
a famous Jurist has sought to rest the authority of a father.
A man of average good sense would find no difficulty in
such a matter/* but your man of learning must discover a
mystery in everything.
paternal ' The right of a father over his children/ says the jurist
Rights. Cocceiji, 1 ' is founded on reason, because (a) the children are
born in a house of which the father is master; (8) they are
born in a family of which he is the head; and (7) they spring
from his seed and become part of his body/ Such are the
reasons from which he concludes, amongst other things,
that a man of forty ought not to marry without the consent
of an elderly gentleman who may be in his dotage. The
common factor of these reasons is that not one of them has
any relation to the interests of the parties concerned : the
author pays no regard either to the welfare of the father or to
that of his children. Such reasons are altogether unworthy
of a man who devoted his whole life to the study of law.
In the first place, ' the right of a father ' is an inaccurate
1 See note ante, p. 93. (C. M. A.)
xiii.] False Methods of Reasoning. 99
expression. We are not dealing with an unlimited or
indivisible right : there are several kinds of rights which
might be granted or refused to a father, on special grounds
connected with the particular right.
The first reason alleged by Cocceiji is founded upon a
fact which may or may not be true. It is a matter of
chance. Suppose a traveller has a child born in a hos-
telry, on board ship, or in a friend's house, he would lack
the first basis of paternal authority. The children of a
man-servant, or of a soldier, ought not, I suppose, to obey
their father, but the proprietor of the house where they
happen to be born.
The second reason either has no determinate meaning, or
is a mere repetition of the first. Is the child of a man who
dwells in his father's house, or in that of his elder brother
or guardian, born in a family of which his father is the head ?
The third reason is as lacking in good sense as in good
taste. ' The child is born of the father's seed, and becomes
part of his body/ If this can form the basis of a right, it
would indisputably place the power of the mother far above
that of the father.
We should here note an essential distinction between
these false principles and the true one. The principle of
Utility, being directed only to the interests of the parties,
adapts itself to circumstances, and may be adjusted to
meet all requirements. These false principles, having no
relation to individual interests, would be absolutely
inflexible if, indeed, they were consistently applied.
Of this rigid character is the pretended right founded
upon birth. The son naturally belongs to his father,
because the original elements of which the son is formed
once coursed through the father's veins. No matter that
he makes his son wretched : the right cannot be annulled,
because the son cannot be other than his son. The corn
which has gone to constitute your body formerly grew in
my field : can it be that you are not my slave ?
ioo Principles of Legislation. [CHAP.
Sympathy 8. Sympathy and Antipathy are not Reasons. False
Antipathy, reasoning by antipathy is very common in subjects con-
nected with penal law. We conceive antipathy against
deeds reputed to be crimes, against individuals reputed
to be criminals, against Ministers of Justice, against par-
ticular forms of punishment. This false principle has,
indeed, reigned, with every circumstance of tyranny,
throughout the vast province of penal law. Beccaria waa
the first to venture on a frontal attack, and his weapons are
of a temper that time cannot destroy; but, though he went
far towards dethroning the usurper, he did too little
towards providing a suitable successor. 1
Actions It is this principle of antipathy which leads us to speak
deserve of an offence as one ' deserving ' punishment ; while it is the
punishment . . * '
or reward, correlative principle 01 sympathy wmcn leads us to speak
of an action as * deserving ' reward. Now, this word
* deserve ' simply involves us in confusion and angry
disputes ; it is the ' effects/ good or bad, which alone we
ought to consider. 2
National But when I say that antipathies and sympathies are not
fir prefu- reasons, I refer to those of the legislator ; f or the antipathies
dices. . . , . , *
and sympathies of a people may furnish reasons, and very
powerful ones. No matter that religions, laws, and customs,
are harmful or capricious; it is enough that the people are
attached to them. The strength of the prejudice in their
1 Of. Maine's Ancient Law, Sir F. Pollock's edition of 1906, chap, x.,
p. 377etseq. (C. M. A.)
2 Even Montesquieu regarded it as obvious ' qu'un etre intelligent
qui a fait du mal a un etre intelligent merite de recevoir le meme mal.'
Bentham conceived three epochs in the progress of society: ' The first,
which is past, in which every man, actuated by the vindictive principle,
inflicted an arbitrary punishment for a received offence, more or less
intense according to the greater or less violence of his passion. The
second, which is present, in which, the Idea of a Public being formed
and established, the supreme power in the State, taking the rod of
vengeance out of the hand of the Individual, uses it according to settled
rules, still governed, however, in great measure by the same principle.
The third, which is yet to come, in which, all traces of the vindictive
principle being entirely obliterated, Prevention shall be the sole end and
object of a Penal Legislation ' (MSS. University College, No. 96; cited
Halevy, vol. i., p. 310). (C. M. A.)
xiii.] False Methods of Reasoning. 101
favour supplies an exact measure of the regard to be paid
to them. Taking away a joy or hope of a nature wholly
delusive does as much mischief as taking away a joy or contd
hope which is based on reality.
The pain of a single individual may thus become by sym-
pathy the pain of all ; and hence flows a multitude of evils :
antipathy against the law which conflicts with popular
prejudice; antipathy against the whole body of laws of
which it forms a part; antipathy against the government
which carries the law into effect. There springs up at the
same time a disposition not to assist in the execution of
the laws; to resist them secretly, or even openly and with
violence ; to take away power from the hands of those who
flout the express wishes of the people. Next comes the
mischief flowing from countless offences which, taken in the
mass, constitute that afflicting aggregate known as rebellion
or civil war ; and finally appears the long train of evils that
follow on punishments inflicted for the purpose of quelling
the uprising. Such is the chain of direful consequences
that, in every age, attend a conflict with fancies and
prejudices. The legislator must, therefore, give way
before the mighty whirl of a current, strong enough to
carry off everything that should obstruct its course. But
we must not fail to note that in these circumstances it is
not the fancies and prejudices themselves which are the
determining factor with the legislator, it is the evils which
threaten him in case those fancies and prejudices are
thwarted.
Ought the legislator, then, to be a bondslave to the
prejudices of those whom he is supposed to govern ? Cer-
tainly not. Between rash resistance and slavish conces-
sions there lies a middle course, honourable and safe. That
is to combat these prejudices with the only weapons that
can prevail over them example and instruction. He
must enlighten the minds of the people, address himself
to their understanding, and give time for error to be un-
IO2 Principles of Legislation. [CHAP.
Prejudices masked. Sound reasons, if clearly expounded, must of
necessity prove stronger than false ones. But the legis-
lator, in pursuing this course, must not play too open a
part, lest, perchance, an ignorant populace may misunder-
stand him. Indirect means will best serve his purpose.
I would, however, point out that it is a commoner fault
to show undue deference to prejudice than to go to
extremes in running counter to it. Some of the wisest
legislative proposals are apt to be defeated by the trite
objection: 'This project is contrary to the sentiments of
the people; we shall set them against us if we carry it/
But how is all this known ? What organ of public opinion
has been consulted ? Has the entire community one
uniform way of thinking? Have all its individual members
come to the same conclusion, including the 95 per cent,
who never even heard of the project ? Besides, if the people
are in error, must they of necessity remain so for ever ?
Will not delusions which darkness has engendered vanish
with awakening light ? Could we expect the mob to grasp
the true doctrine while it was as yet unrevealed to our law-
givers and the legal pundits ? Have we not set before us
the example of other nations which have emerged from like
darkness and triumphed over similar obstacles ?
And after all, popular prejudice serves oftener as a pretext
than as a real impelling cause or motive ; it is a convenient
passport for the use of statesmen when involved in scrapes
begotten of their own folly. The ignorance of the people
is a favourite argument advanced by sloth and cowardice,
while the true motive is some prejudice which still clings
to the statesmen themselves. The name of the people is
forged with the intention of using it to justify their rulers.
Assump- 9. Begging the Question is not a Reason. Petitio principii,
points in or begging the question, is one of the Sophisms illustrated
by Aristotle ; but it is a very Proteus, which artfully masks
itself, and reappears in many a different guise.
Begging the question, or, rather, forcibly seizing the
xiii.] False Methods of Reasoning. 103
question, consists in assuming and making use of the very
proposition under discussion, as though, it were already
proved. This false mode of reasoning creeps into Morals
and Legislation under cover of sentimental or impassioned
terms that is, terms which, beyond their principal signifi-
cation, convey an accessory idea of praise or blame.
Terms are spoken of as neutral when they simply describe
the thing referred to, without involving any assumption of
good or evil that is to say, without importing any outside
idea of praise or blame. Now, we must note that an 'im-
passioned ' term suggests an assumption which is implied,
though not expressed, and invariably accompanies the use of
the word may be without this being known to the man who
uses it. The attribute thus implied is one importing praise
or blame, but the implication is always vague and indefinite.
Suppose I were to unite with the idea of utility some term
which commonly conveys an accessory idea of blame; I
should seem to be advancing a paradox and involving myself
in a contradiction. Thus, if I were to say that such and
such an object of ' luxury ' is a good thing, the proposition
would astound those who are wont to attach to this word
* luxury ' a sentiment of disapproval. Now, how ought
I to proceed to discuss the particular point without running
the risk of awakening this association of ideas ? I must
have recourse to a neutral word : I might say, for example,
such and such ' a manner of spending one's income ' is a
good thing. This turn of expression does not run counter
to any prejudice, and therefore allows of an impartial dis-
cussion of the proposition I wish to advance. When
Helve tius suggested that interest was the real motive of
every action, people were up in arms against him, without
even taking the trouble to understand what he meant.
Why was this ? Because the word ' interest ' has an
odious connotation, a meaning commonly accepted such
as would appear to exclude every motive of pure affection
or goodwill. So, too, in politics, how many arguments rest
104 Principles of Legislation. [CHAP.
entirely on passion-kindling phrases ! People suppose they
are giving a reason for a law when they say that it conforms
with the ' principle ' of monarchy or democracy, as the case
may be. But this means nothing; for, while there are
some who connect these words with accessory ideas of
approval, others attach to them ideas of a contrary nature.
Let the two sides get to close quarters, and the quarrel will
never end except from weariness of strife ; for, before we
can even begin a real inquiry, we must calculate the precise
effects of the proposed law in terms of good and evil.
const?tu- ish Blackstone calls upon us to admire the British Constitu-
tion, tion ag a combination of the three forms of Government,
and concludes that it unites in itself all the good qualities
of monarchy, aristocracy, and democracy. 1 How could
he fail to perceive that, by precisely similar reasoning, he
might have arrived at a diametrically opposite conclusion,
and one to the full as legitimate to wit, that the British
Constitution unites in itself all the special vices of democ-
racy, aristocracy, and monarchy ?
The word * independence ' is allied to accessory ideas of
dignity and virtue : the word * dependence ' is allied to
accessory ideas of inferiority and corruption. Accordingly,
the panegyrists of the British Constitution belaud the
' independence ' of the three powers to whom the Legislature
of this kingdom is entrusted. This, in their eyes, con-
stitutes a sort of political masterpiece, the most valuable
feature in our form of government. On the other hand,
those who would belittle this same Constitution fail not to
insist upon the ' dependence ' of one or other branch of
power. Eulogy and censure are equally groundless.
To come to the region of fact, there is no real independence
1 Bentham had dealt, in detail, with Blackstone' s eulogy of the
British Constitution in the Fragment of Government, which was pub-
lished in 1776. See chap. iii. in Professor Montague's edition of 1891;
or Bowring, vol. i., p. 277. In his own copy Bentham wrote: ' This
was the very first publication by which men at large were invited to
break loose from the trammels of authority and ancestor- wisdom on the
field of law.' (C. M. A.)
xm.] False Methods of Reasoning. 105
at all. Have not the King and most of the Lords a direct
influence in the election of members of the House of
Commons ? Does not the King possess power to dissolve
at a moment's notice a power of no slight import ? Does
not the King exercise a direct influence by offices of profit
and dignity, given and taken away again at pleasure ? On
the other hand, is not the King in dependence upon the
two Chambers, and more particularly upon the House of
Commons; since he could not support his position without
money and troops two vital matters wholly in the hands
of the people's representatives ? Is the House of Lords
independent while the King can add to its numbers at will,
and obtain a majority for himself by the creation of new
peers? Does he not exercise influence, too, by the prospect
of rank and advancement in the peerage, and by the
elevation of ecclesiastics to the bench of Bishops ?
Instead of basing arguments on a word, which may prove
a mere instrument of deception, let us consider effects.
Now, it is, really, the mutual dependence of these three
powers which is responsible for their harmonious relations,
makes it possible to subject them to definite rules, and
enables them to adopt a systematic and ordered procedure.
Hence the necessity for reciprocal respect, attention, con-
cession, and conciliation ! If they were completely in-
dependent of each other, there would be constant friction,
and on occasion appeals to force, resulting in the establish-
ment of absolute democracy, or, in other words, of
anarchy.
I cannot refrain from giving two other examples of this Popular
form of fallacious reasoning, based upon the abuse of words, tation.
If we start an abstract political theory about National
Representation, and study everything which seems to be
a natural consequence of that abstract idea, we soon reach
the conclusion that the right of ' universal suffrage ' ought
to be conceded ; and, step by step, we establish to our own
satisfaction that the representatives ought to be elected
106 Principles of Legislation. [CHAP.
The suf- as frequently as possible, so that the representation may
tion. fairly claim to be styled ' national/ But, submitting
this matter to the test of utility, we do not argue about
a word : we look only to effects. 1 When we are concerned
with the election of a legislative assembly, we should
extend the suffrage to those only whom, we have reason
to suppose, the nation would be willing to entrust with
that right. For a choice made by men who fail to secure
the confidence of the nation at large would weaken the con-
fidence of the nation in the assembly when chosen. Now,
the men who would not enjoy the confidence of the nation
in this regard are those who could not be assumed to possess
political integrity, together with a sufficient amount of
knowledge ; and we could not assume the political integrity
of those who might from want be driven to sell their votes,
or who have no fixed abode, or who have been condemned
by the courts for certain specified crimes. Nor could we
assume the necessary degree of knowledge in the case of
women, for their domestic engagements exclude them from
the conduct of public affairs; 2 nor in the case of children
or of adults beneath a certain age ; nor in the case of those
who, by poverty, are deprived of the rudiments of educa-
tion, etc.
It is on such principles as these that we should lay down
the conditions applicable to the franchise, without regard
to considerations derived from abstract terms; and so, too,
1 Cf. a letter to Mirabeau written by Bentham in 1789: ' The phrase
" natural right " when opposed to utility is altogether an unmeaning one.
preme: "You have no
I vantage to the State,"
iy anotner way of saying, " I don't like you should do so and so,
though I cannot tell why." Arguments, however, must be accom-
modated not only to men's reason, but, in some instances, to what they
are much more governed by, their prejudices and affections ' (MSS.
University College, No. 9; cited Halevy, vol. i., p. 364). (C. M. A.)
2 In his plan of reform, discussed by the House of Commons in 1818,
Bentham declared that he could find no reasons for the exclusion of
women from the franchise, and observed that, strangely enough, those
who, in support of such exclusion, gave a sneer or a laugh for a reason,
found no objection to the vesting of absolute power in that sex and in
a single hand (cf. Bowring, vol. iv., p. 568). (C. M. A.)
xiii.] False Methods of Reasoning. 107
in weighing the advantages and disadvantages of frequency
of election when we are dealing with the duration of
legislative assemblies.
The last example I have to give is taken from Contracts.
I refer to the various political fictions imaged and pre- contracts,
sented under that title. When Locke or Rousseau argues
about some alleged contract, and maintains that the
contract, political or social as the case may be, comprises
such and such a clause, can he prove it save by means of
the general utility supposed to result from the particular
clause ? We will concede, if you will, that this same
contract, which has not even been reduced into writing,
is of full force and effect. Wherein does its strength lie ?
Is it not in its utility ?
Why must we fulfil our engagements ? Because trust
in promises, that is, good faith, is the basis of society.
It is for the advantage of the whole community that each
individual member of it should keep his word. If engage-
ments no longer retained any obligatory force, we must
needs go back to the woods; for then there would be no
security for mankind, no mutual trust, no commerce.
It is precisely the same with these political contracts : it
is their utility which alone can give them binding force, and
if they were to become mischievous, that force would be
gone. If a King had sworn to bring misery upon his people,
would his oath be valid ? If the people undertook to yield
obedience in all events, would they be bound to submit
to ruin at the hands of a Nero or a Caligula, rather than
break their word ? If the effects of the supposed contract
were altogether mischievous, would there be any sufficient
reason for supporting its validity ? No ! it is beyond all
cavil that this question of validity is at bottom one of
utility a little entangled, or, it may be, a little distorted,
and so more susceptible of misinterpretation.
10. Imaginary Law is no Reason Natural Law, Natural JjJJj^Jf
Right. These two sorts of fiction or metaphor play so
io8 Principles of Legislation. [CHAP.
conspicuous a part in works on Legislation as to deserve
separate examination. 1 The original, and, indeed, the
ordinary, meaning of the word ' law ' is the expressed will
of the legislator ; while ' the law of nature ' is a figurative
expression, Nature being represented as a being to whom
certain particular dispositions are attributed, which are
called, figuratively, her 'law/ . In this sense all such inclina-
tions of mankind in general as seem to arise independently
of organized communities, and must, therefore, precede the
establishment of political or civil law, are spoken of as
' laws of nature/ That is the true meaning of the phrase,
but not the one in which it is usually understood. Authors
have interpreted it in a special sense, as though there were
an actual code of these natural laws : they appeal to them,
cite them, and set them in opposition, line by line, to the
enactments of legislators. They do not seem to realize
that these natural laws are the product of their own
imagination; that they themselves are all at sixes and
sevens about their assumed code; that they are driven
to affirmation without proof, while there are as many
different systems as there are writers on the subject. In
reasoning after this fashion we are always having to start
afresh ; because, these laws being creatures of imagination,
anyone may lay down what he pleases, and the discussion
becomes interminable.
Sentiments of pleasure or pain, known as inclinations,
are natural to man; but to call these sentiments or in-
clinations ' laws ' is to import a false and dangerous idea.
It is putting language in conflict with itself, for we have
to make ' laws ' for the express purpose of repressing these
very inclinations ; instead of treating them as laws, we
have to bring them under the law, and it is against the
strongest natural inclinations that it becomes necessary
to enact the most repressive laws. If there chanced to be
a law of nature which directed all men towards their
1 Seldon, e.g., maintained that Natural Law was revealed to the first
human beings. (C. M. A.)
xiii.] False Methods of Reasoning. 109
common weal, laws would be useless. To enact them
would be like using a reed to prop up an oak, or kindling
a torch to add to the light of the sun. 1
Blackstone, speaking of the obligation of parents to
provide maintenance for their children, says that this of par ents
duty is ' a principle of natural law ; an obligation, says
Puffendorf, laid on them not only by Nature herself, but
by their own proper act in bringing children into the world/
* Montesquieu/ he adds, ' has a very just observation upon
this head: That the establishment of marriage in all
civilized states is built on this natural obligation of the
father to provide for his children; for that ascertains and
makes known the person who is bound to fulfil this obliga-
tion/ 2 Parents 'are inclined' to bring up their children;
parents * ought ' to bring up their children : these are
distinct propositions. The first does not assume or involve
the second; the second does not assume or involve the
first. There are, doubtless, very strong reasons for
imposing on parents the obligation of supporting their
children. Why do not Blackstone and Montesquieu give
them ? Why do they refer to what they call ' the law
of nature '? What is this law of nature which stands in
need of a secondary law to make it effective ? If this
natural obligation really exists, as Montesquieu asserts,
far from serving as the foundation of marriage, it proves
its uselessness, at any rate, for the purpose which he
assigns. One of the very objects of marriage is, indeed, to
supplement natural affection, and to convert into a positive
obligation the mere inclination of parents, which might
not always prove sufficiently strong to outweigh the cost
and inconvenience of providing suitable education. Men are
1 Cf. Hume, Treatise, bk. il, pt. ii., s. ii. (Green's ed., vol. ii., pp. 268,
269). ' If men pursued the public interest naturally, and with a hearty
affection, they would never have dreamed of restraining each other by
these rules; and, if they pursued their own interest, without any pre-
caution, they would run headlong into every kind of injustice and
violence ' (cited Halevy's Jeunesse de Bentham, p. 304). (C. M. A.)
2 Blackstone's Commentaries, book i., chap, xvi., sect. i. (C. M. A.)
no Principles of Legislation. [CHAP.
quite ready to make provision for their own maintenance :
no laws have been needed to enforce this duty. If the dis-
position of parents to provide for the maintenance of their
children were equally strong at all times and in all cir-
cumstances, it would never have occurred to the Legislature
to impose the obligation of support. The exposure of
children, so common among the ancient Greeks, is still
commoner in China ; and, to make an end to this practice,
would it not be necessary to put forward reasons other than
this pretended law of nature, which is evidently at fault ?
So, too, the word ' right/ like the word ' law/ has both
a proper meaning and a metaphorical meaning. ' Right/
properly so called, is the creature of ' law/ properly so
called: real laws beget real rights. ' Natural right ' is the
creature of ' natural law ' : it is a metaphor which takes
its origin in another metaphor. It is certain expedients
or faculties which are natural to men; but to call them
' natural rights ' is again to put language in conflict with
itself, for ' rights ' are established to assure the free exercise
of expedients or faculties. The right is the guarantee,
the faculty is the thing guaranteed. How can we make
ourselves understood in a tongue which confounds, under
the same terms, things so distinct ? What would become
of the nomenclature of arts if we were to give to the craft
whereby a piece of work is produced the same name as is
given to the article manufactured ? ' Real rights ' is a
phrase that imports some legal signification, while ' natural
rights ' is a phrase often used in a sense which is, so to
speak, anti -legal. When, for example, we say that ' the
law cannot contravene natural rights/ the word ' rights '
is used in a sense above the law; for we imply that there
may be rights which assail, overthrow, or even annul, the
law. In this anti -legal sense, the word is a deadly foe
alike to good government and to good sense. There is no
reasoning with fanatics, armed with * natural rights ' which
every man interprets as he pleases and applies as he thinks
xiii.] False Methods of Reasoning. in
fit. These * rights ' are, it seems, as inflexible as they are
unintelligible; not a jot may be given up or curtailed; they contd
are to be accounted sacred dogmas from which it is a crime
to recede. Instead of judging laws by their effects, instead
of classing them as good or bad, these fanatics consider
them in their relation to pretended natural rights ; in other
words, they substitute, for arguments based on experience,
chimseras of their own imagining. And this is no harmless
vagary: theory ripens into practice. * It is the laws that
accord with nature we must obey; all others are, of neces-
sity, null and void, and, instead of obeying, we must resist
them. The moment natural rights are assailed, every good
citizen will rise in their defence. These self-evident rights
stand in no need of proof; it is sufficient to declare them.
Why prove what is evident ? The mere doubt suggests a
want of good sense or a vicious heart/ etc. That I may
not be charged with putting these seditious maxims into
the mouths of this type of inspired politician without good
reason, I will cite an apposite passage from Blackstone;
and I choose him because he is, of all writers, the one who
has shown the most profound respect for the authority of
governments.
Speaking of these pretended laws of nature and of the law
of revelation, he says : ' No human laws should be suffered
to contradict these. ... If any human law should allow
or enjoin us to commit it (i.e., murder), we are bound to
transgress that human law, or else we must offend both
the natural and the divine/ 1 Is not this putting into the
hands of every fanatic arms that he can use against all
governments ? In the immense variety of conceptions as
to natural law and divine law, will not anyone be able to
discover some reason or other for resisting every human
law ? Could any State subsist for a single day if every-
body fancied himself in private duty bound to resist the
laws unless they happened to conform with his particular
1 Blackstone's Commentaries, vol. i., Introduction, 2. (C. M. A.)
112 Principles of Legislation. [CHAP.
^rights 1 ' v * ews * tne l aws f nature and the law of revelation ? The
contd. expositors of Nature's code and the various religious sects
would soon be at one another's throats in right good earnest !
' The pursuit of happiness is a natural right/ It is
undoubtedly a natural inclination; but can it be declared
to be a right ? That turns upon the way in which happi-
ness is pursued. The assassin, in pursuit of his happiness,
commits a murder. Has he a right to do so ? If not,
why declare that he has ? How can such a declaration
tend to render mankind more happy or more wise ?
Turgot was a great man, but he must have his golden
thigh like Pythagoras, 1 or his dove like Mahomed. With-
out being conscious of it himself, inalienable and natural
rights became with him a sort of dogma that ruled him
with a tyrant's sway. If he considered a proposition to be
palpably true, and saw no reason to doubt it, he referred
it, without more ado, to natural law, natural justice.
Thereafter he made use of it as an article of faith which
he was no longer suffered to call in question.
The principle of Utility, having been often ill-applied
or interpreted in a narrow sense, having, even, lent its
name to crime, has appeared to be in conflict with eternal
justice. It has thus become degraded and associated with
vulgar greed, so that it needs some courage to restore it
to a place of honour and sound logic on a sure basis.
I propose a treaty of peace with the partisans of natural
rights. If ' Nature ' really made such and such a law,
those who lay it down with so much confidence, and have
modestly undertaken to interpret it, must believe that
'Nature' had some reasons for making it. Would it not
be safer, shorter, and more convincing, to give us those
reasons at once, rather than to offer us the ipse dixit of
this unknown legislator as being of itself sufficient
authority ?
1 Cf. Smith's Dictionary of Greek and Roman Biography (. dit. 1873),
vol. iii., p 616. (0. M. A.)
xiii.] False Methods of Reasoning. 113
This would be the place to indicate the false tracks along
which people are dragged in speech and argument, especi-
ally in deliberative assemblies such as personalities,
imputation of motive, prolixity, and ranting. But what
has been said will suffice to show what does, or does not,
conform with the principle of Utility.
These various false modes of argument may all be referred
to one or other of the two false principles ; and the making
of this fundamental discrimination, while promoting brevity,
will, also, be of great use in rendering clearer our ideas. To
refer such and such arguments to one or other of the false
principles is like binding so many tares in a bundle and
throwing them into the fire.
I will close with a general observation. The language
of error is at all times obscure and variable. A superfluity
of words serves to cover a paucity and falsity of ideas ; the
oftener the phrases are altered, the easier it is to throw
dust in the reader's eyes. The language of truth is simple
and uniform: the same ideas, the same phrases. Every-
thing is referred to pleasures or to pains. We avoid any-
thing which might possibly conceal or intercept the oft-
repeated maxim : ' From such and such an action results
such and such an impression of pleasure or of pain/ Do
not pin your faith on me, but on experience, and especially
on your own. If you would know which of two contrary
modes of acting should have the preference, calculate their
effects in terms of good and evil, and adopt that which
promises, on the whole, the greater sum of good,
VOL: I.
PEINCIPLES OF THE CIVIL CODE.
DUMONT'S INTRODUCTION.
civil Law OF all branches of legislation, civil law is the one which
studied by presents fewest attractions for those who do not study the
law as a profession. But this is hardly saying enough; it
seems almost repellent to the lay mind. For a long time
curiosity has engaged men in the consideration of political
economy, penal law, and the principles of government.
Famous works have made these studies fashionable; and,
under penalty of confessing a humiliating inferiority, we
must needs know something about them, or, at any rate, be
prepared to express definite and assured opinions about them.
But the civil code has never yet emerged from the dusky
purlieus of the Law; its commentators sleep amidst the
dust of libraries, by the side of those with whom they lived
in conflict. The public do not even know the names of
the various sects into which the disputants were divided,
but regard with silent respect countless folios and vast
compilations, adorned with high-sounding titles, such as
' Body of Laws ' and ' Universal Jurisprudence.' It must be
allowed that the mode of treatment which the subject has
received is largely responsible for its unpopularity. These
heavy tomes occupy much the same place in the science
of law as -was occupied by the writings of the schoolmen in
natural science, before the rise of experimental philosophy.
To attribute their dryness and obscurity to the nature of
the subject is treating them with far too much indulgence,
of Rights Now, with what does this branch of the law deal ? It
tions bU8a " deals with everything that is most interesting to mankind.
114
Dumont's Introduction. 115
It treats of their security, their property, their transactions
day by day, their domestic status in the relations of father,
son, and spouse. Herein, too, we may discover the origin
of 'rights/ with their corresponding ' obligations '; for all
the objects of legal science may be reduced to these two
terms, and, this done, there ceases to be any mystery about
the matter.
Civil law is, in truth, only penal law under another aspect ;
and we cannot understand the one without understanding
the other. Establishing ' rights' is the same thing as
granting permissions and issuing prohibitions; it is, in
effect, creating offences. Committing an offence is vio-
lating, on the one side, a right, and, on the other, an obliga-
tion : in case of a private offence, an obligation owing
to a private individual, a right which he has over me; in
case of a public offence, an obligation due to the public
at large, a right which they have over me. Civil law is,
therefore, only penal law regarded from another point of
view. If I consider a law at the moment when it confers
a right or imposes an obligation, I consider it from the
civil point of view. If I consider the law in relation to its
sanctions, the effects consequent upon the violation of a
right or the breach of an obligation, I consider it from
the penal point of view.
What, then, do we mean by ' Principles of Civil Law ' ?
We mean the motives of laws so that a knowledge of those pies.' The
slight re-
principles is, really, a knowledge of the true reasons which gard paid
should guide the legislator in prescribing the rights that
he confers and the obligations that he imposes. But
philosophy finds no place in the Law Libraries ; we should
search in vain for a single volume purporting to expound
the reasons on which the civil code is based. The Theory
of Civil Law by Linguet 1 is very far from redeeming the
1 Linguet (Simon -Nicolas-Henri) was born at Reims in 1736. His
Theorie dcs Lois Civiles was published in 1767. In June, 1794, he was
condemned to death, ' pour avoir encense les despotes de Vienne et de
Londres.' (C. M. A.)
n6 Principles of the Civil Code.
promise of its title: it is the production of a disordered
imagination, under the governance of a bad heart. His
book would reduce all European governments to the model
of an Oriental despotism, and so get rid of all notions of
liberty and humanity, which seem, indeed, to disturb his
mind like gloomy spectres.
The conflicting contentions of jurisprudents have pro-
duced, even in the law schools, groups of unbelievers who
have doubted whether the science rests on any principles
at all. According to these sceptics, law is purely arbitrary,
and is good only because it is law that is to say, because
a legal decision, whatever it may be, has the great merit
of inducing peace. In this view there lies a little truth,
but a good deal more error. We shall see, in the following
pages, that the principle of Utility extends to this branch
of the law, as to all others; but that its application is
difficult, and demands an intimate knowledge of human
nature.
The first ray of light which broke in upon Bentham, in
the course of his legal studies, was that the ' law of nature/
the ' original compact/ the ' moral sense/ the notion of
1 right and wrong/ which were used to explain everything,
are at bottom nothing more than the * innate ideas ' which
Locke had already driven from the field. He saw that
writers on these subjects were revolving in a vicious circle.
Well acquainted with the method of Bacon and Newton,
he determined to introduce it into matters of legislation ;
which, as I have already explained, he treated as an ex-
perimental science. He discarded all dogmatic words and
rejected every term which does not express some sensation
of pleasure or of pain. For example, he would not allow
that the right of property is an ' inherent right ' or a
1 natural right/ inasmuch as those terms explain nothing
and can prove nothing. The words ' justice ' and * in-
justice ' were subject, in his view, to a like inconvenience,
for they prejudge questions instead of throwing light upon
Dumont's Introduction. 117
them. When he proposes to establish a law, he does not
pretend to find one corresponding to it in the ' law of
nature ' ; and then, as if by some vulgar piece of jugglery,
to put forward as a thing already accomplished the very
thing required to be done. When he explains ' obliga-
tions/ he does not involve himself in mysterious reasoning,
nor does he admit any supposition whatsoever. He clearly
shows that every obligation must either be founded on some
service rendered beforehand to the person upon whom it is
imposed, or rest on some superior need experienced by
the person in whose favour it is imposed, or be based on
some mutual agreement which derives the whole of its
force from its utility. Thus, under the sole guidance of
observation and experience, he considers only, so far as
laws are concerned, the effects they produce on the faculties
of man as a sensitive being ; and he always assigns * pains
to be avoided ' as the single argument of any real value.
The Civilians never cease reasoning upon fictions, and F f i
giving to these fictions the same effect as to realities ; for civilians,
example, they admit contracts which never existed, and
quasi -contracts which never had even the appearance of
existence. In certain cases they admit a * civil death/
while in others they deny a ' natural death ' : such a dead
man is not dead, such a living man is not alive; such an
one who is absent must be considered as present, such an
one who is present must be considered absent. A province
is not where it is ; a country does not belong to those who
own it. Sometimes men are c things/ and as such cannot
possess rights ; at other times ' things ' are beings who
possess rights and are bound by obligations. These same
writers acknowledge imprescriptible rights which have
always been prescribed against, and inalienable rights
which have always been alienated ; while that which * is
not ' always stands out, in their eyes, more prominently
than that which 'is/ Take away their fictions, or rather
their falsehoods, and they know not where they are; for
n8 Principles of the Civil Code.
they become so used to these crutches that they cannot
stand without them. Bentham has rejected all these
puerile arguments : he does not make use of any gratuitous
supposition, any arbitrary definition, any reason which is
not the expression of a fact, nor of any fact which does
not represent some effect, either good or bad, of the law
in question.
I* * s by ^ s m ethod of always reasoning consistently
w ^k ^ke principle of Utility that he has made of civil law
a new sc i e nce : nay, not only new, but even paradoxical to
those reared in the teachings of the older schools, yet simple
and natural enough to those who have not been led astray
by false systems. Moreover, a translation of this book
would have the same force and meaning in every tongue,
because it appeals to the general experience of mankind :
while technical reasons, based on abstract terms and
arbitrary definitions, having only a local value and con-
sisting merely of words, disappear altogether in any attempt
to find synonyms for them in other languages. In much
the same way, the nomad tribes of Africa, who use cowries
for money, become aware of their poverty the moment they
cross their own frontiers and tender their conventional
wealth to strangers.
I ought to add that Bentham, in his manuscripts, makes
many references to the laws of England, which I have not
reproduced, as they seemed only of local interest. There
are cases, however, in which his remarks would have lost
their force if I had made no mention of the particular laws
to which they were directed. In seeking, for the sake of
clearness, to develop points which, in the original, were
often mere allusions, I may have made some mistakes with
which it would be unfair to saddle the author. These laws
are generally so difficult to understand that it is dangerous
even for an Englishman, who is not a lawyer, to hazard
any opinion respecting them, and much more so, of course,
for one who is not an Englishman.
PRINCIPLES OF THE CIVIL CODE.
PART I.
OBJECTS OF CIVIL LAW.
CHAPTER I.
BIGHTS AND OBLIGATIONS.
OBJECTS which the legislator is called upon to distribute
among the members of a community may all be reduced to gatioas.'
two classes: (i) Rights; (2) Obligations. 'Rights' are,
in themselves, advantages, benefits to the man who enjoys
them. * Obligations/ on the other hand, are duties,
onerous burdens on him who has to fulfil them. Rights
and obligations, although distinct and, indeed, opposite
in character, nevertheless arise at the same moment,
and throughout their common existence remain inseparable.
In the nature of things, the law cannot confer a benefit
upon anyone without at the same time imposing a burden
upon someone else; or, in other words, it is not possible
to create a right in favour of one person without imposing
a corresponding obligation on another. How is a right
of property in a piece of land conferred upon me ?
By imposing upon everybody else an obligation not to seize
its produce. How is a right of command conferred upon
me ? By imposing upon a particular region or body of
persons an obligation to obey me.
The legislator ought to confer rights with alacrity,
because they are in themselves a benefit; he ought to
impose obligations with reluctance, because they are in
themselves an evil. The principle of Utility requires that
119
I2O Principles of the Civil Code. [CHAP.
he should never impose a burden except for the purpose
of conferring a benefit of greater value.
The law curtails liberty in the same measure as it creates
obligations; it converts into offences acts which would,
apart from its operation, be permissible and immune from
punishment. The law creates an offence either by positive
injunction or by negative prohibition. These encroach-
ments on liberty cannot be avoided. It is impossible to
create rights, impose obligations, or protect the person,
life, reputation, property, means of livelihood, nay, even
liberty itself, save at the expense of liberty.
Now, every curtailment of liberty is, in the nature of
things, likely to be followed by a feeling of pain, more or
less great; and this, quite independently of such suffering
and inconvenience as may be occasioned by the form of
restraint resorted to in the particular case. It follows,
therefore, that no restriction ought to be imposed, no
power conferred, no coercive law sanctioned, save on some
specific and sufficient grounds. Against every coercive
law there is always one reason a reason which, if it stood
alone, would always be sufficient in itself; it is, that such
a law imports an attack upon liberty. Whosoever pro-
poses coercion ought to be ready to prove, not only that
a specific reason can be urged in favour of the proposal, but
that such reason is more weighty than the general reason
against all coercive legislation.
The proposition that every law conflicts with liberty, 1
although almost self-evident, is not generally acknowledged.
Indeed, enthusiasts for liberty, with more zeal than under-
1 We must, of course, except those laws by which restrictive laws are
repealed: laws which permit what other laws have forbidden (Dumont).
It will be seen that Bentham defines liberty as including the power to
inflict injuries on others, as, e.g., ' liberty ' to commit theft, etc. The
curtailment of this ' liberty ' by ' law ' involves pain to the intending thief.
This seems rather a question of terminology than one of substance.
See chap, ii., post, p. 124, ' Liberty is a Branch of Security '; and see
an interesting note on Austin's use of the terms ' Liberty ' and ' Right '
in Prof. Jethro Brown's Austinian Theory of Law at p. 180. (C. M. A.)
i.] Rights and Obligations : Law and Liberty. 121
standing, have made it a point of conscience to challenge ^
its truth. And how have they set about it ? By per-
verting language, by declining to accept the ordinary
meaning of the word ' liberty/ by speaking a tongue
peculiar to themselves. According to their definition,
' Liberty consists in the power to do everything which does
not hurt anybody else/ But is this the ordinary meaning
of the word ? Is not the liberty to do evil liberty ? If
not, what is it, and what word should we use in speaking
of it ? Do we not say that it is necessary to take away
the liberty of rogues and madmen because they abuse it ?
If this definition were to obtain, I could never know
whether I had the ' liberty ' to do a particular action,
unless and until I had examined all its possible consequences.
If such action seemed to me calculated to hurt even a
single individual, I should not be ' at liberty ' to do it,
and this although the law permitted, or, it may be, com-
manded, it. A judicial officer would not be ' at liberty '
to punish a thief, unless, indeed, he were sure that the
punishment could not hurt the thief ! Such are the ab-
surdities implied in this definition.
What does pure reason say ? Let us begin at the begin-
ning, and try to set down a few fundamental propositions.
The sole object of government should be the greatest
possible happiness of the community. 1 The happiness of
an individual is greater, in proportion as his sufferings are
less poignant and fewer in number, and as his enjoyments
are more intense and greater in number.
The care of providing enjoyments should be left almost
entirely to the individual himself, the principal function
of government being to protect him from suffering. \>
1 In the later years of his life Bentham came to the conclusion that
the phrase ' The greatest happiness of the greatest number ' was
wanting in clearness and precision. He accordingly substituted for
this phrase the simpler expression ' The greatest happiness,' as repre-
senting the true object of morals and politics. The ' greatest number '
he dismissed as superfluous. (C. M. A.)
122 Principles of the Civil Code.
Now, government discharges this office by creating rights,
which it confers upon individuals : rights of security for the
person, rights of protection for honour, rights of property,
rights of relief hi case of need. To these rights correspond
all classes of offences. The law cannot create rights without
creating corresponding obligations : it cannot create rights
and obligations without creating offences: 1 it can neither
enjoin nor forbid without restraining the liberty of in-
dividuals. 2
The citizen, then, cannot acquire any rights except by
sacrificing part of his liberty. Governments approach to-
wards perfection in proportion as the acquisition is greater
and the sacrifice less; but, even under a bad government,
there is no sort of proportion between the acquisition and
the sacrifice.
1 To create an offence is to convert an act into an offence: to give
to an act the quality of an offence by means of prohibition (Dumont).
2 When the law confers a right, the restraint arises by giving the
Duality of offences to the various actions by which the enjoyment of the
right may be interrupted, or with which it may be in conflict (Dumont)
CHAPTER ,11.
OBJECTS OF THE CIVIL LAW DISTINGUISHED. 1
IN prescribing and distributing rights and obligations,
the legislator should, as we have pointed out, seek as his
end and aim the happiness of the body politic. Inquiring
more particularly wherein this happiness consists, we find J
four subordinate objects : ' Subsistence/ ' Abundance/ rity
* Equality/ ' Security/ The more perfect the enjoyment
in all these respects, the greater the sum of social happi-
ness, and especially of that happiness which is dependent
upon the laws. Hence we conclude that all the functions
of law may be referred to one or other of these four heads :
to provide subsistence, to aim at abundance, to encourage
equality, and to maintain security. This division does
not possess all the clearness and precision one could wish :
the bounds of these objects are not always easy to deter-
mine, for they approach each other at various points, and
become, more or less, confused. But the classification is
justified by its completeness, and by the fact that we
are often called upon to consider each of the objects com-
prised in it separately, and as distinct from the others.
* Subsistence/ for example, is included in ' abundance ' :
and yet it is very necessary to consider it separately;
inasmuch as the law ought to approve many things
with a view of providing subsistence, which it should
by no means suffer for the mere purpose of promoting
abundance.
1 Cf. ' Constitutional Code,' Introduction, chap. iii. (Bowring, vol. ix..
p. ii). (C. M. A.)
123
124 Principles of the Civil Code. [CHAP.
BhouHbe ' ' Security ' admits of as many distinctions as there are
the para- kinds of action which may come in conflict with it. It
mount
object. has relation to a man's person, his honour, his property,
and his status. Acts injurious to security, when expressly
prohibited by law, assume the character of crimes.
Of these objects of the law, ' security ' is the only one
which, of necessity, comprehends the future. We may
have to consider ' subsistence/ ' abundance/ or ' equality/
in regard to a mere moment of time ; while ' security '
implies extension, in point of time, to all the benefits which
it embraces. ' Security ' is, then, the principal, indeed
the paramount, object. 1
Equality.' I have ranked ' equality ' among the objects of the
law. In any arrangement contrived to give to all men the
greatest possible sum of happiness, there is no reason why
the law should cast about to give more to one man than
to another. On the contrary, there are excellent reasons
why it should not do so. The advantage which would
accrue on one side would never balance the disadvantage
experienced on the other ; for the pleasure will extend only
to the person favoured, while the pain will extend to
every one of those who do not share the favour. Equality
may be encouraged both by safeguarding it where it
exists already, and by seeking to promote it where it is
not yet to be found. But herein lies the peril: a single
mistake may overthrow social order and dissolve the bonds
of society. 2
' Liberty Some persons may be surprised to find that ' Liberty '
is a branch J J
of ' Seou- is not ranked among the principal objects of the law. But,
1 Of. Halevy, vol. i., p. 76 : ' Dans la philosophie benthamique du
droit civil, les deux tendances, conservatrice et revolutionaire, se mani-
festent, tour a tour, quoique la premiere I'emporte constamment en impor-
tance sur la seconde, et de beaucoup.' (C. M. A.)
2 Equality may be considered in relation to all the advantages derived
from the laws: Political Equality, or Equality in point of Political
Rights Civil Equality, or Equality in point of Civil Rights. When
used alone, the word is commonly understood as referring to the dis-
tribution of property (Dumont).
ii.] Objects of the Civil Law distinguished. 125
if we would avoid confusion, we must regard it as a branch
of ' Security/ t Personal liberty ' is security against a
certain class of wrongs which affect the person ; while what
is called * political liberty ' is also a branch of security
security against injustice at the hands of the persons
entrusted with government. 1 Matters relating to this
object appertain rather to the constitutional than to the
civil code.
1 Cf. ' Liberty is neither more nor less than the absence of coercion.
This is the genuine, original, and proper sense of the word Liberty.
The idea of it is an idea purely negative. It is not anything that is
produced by positive Law. It exists without Law, and not by means
of Law. . . . That which under the name of Liberty is so much magnified
as the invaluable work of Law, is not Liberty, but Security ' (MSS. Univer-
sity College, No. 69 ; cited Halevy, i. 360). The various dicta of
Austin on the use of the terms ' Liberty ' and ' Right,' says Professor
Jethro Brown, seem to indicate a lack of clearness and precision not
usual with him. His general position, however, appears to be sub-
stantially accurate: 'In Liberty the prominent or leading idea is the
absence of restraint ; whilst the security for the enjoyment of that
Liberty is the secondary idea. Right, on the other hand, denotes the
protection and connotes the absence of restraint ' (Auslinian Theory
of Law, at p. 180). (C. M. A.)
CHAPTER III.
RELATIONS BETWEEN THE OBJECTS OF THE CIVIL LAW.
IN the mind's eye these four objects of the law seem
quite distinct, but in practice they are found to be much
less so. Thus, the same law may subserve more than one
of them, inasmuch as they are often blended together. For
example, what is done in the interests of * security ' may,
at the same time, promote * subsistence ' and ' abundance/
But, on the other hand, circumstances occur in which it is
not possible to reconcile these objects, and a measure
suggested by one principle will be condemned by another.
For example, ' equality ' might require such a distribution
of property as would be incompatible with ' security/
When, between two of these ends, conflict, in fact, occurs,
we must needs determine which is to prevail; otherwise
the principles, instead of guiding us in our researches, will
serve only to make our confusion worse confounded.
Now, at the first glance, it is plain that ' subsistence '
and ' security ' rise together to the same height ; while
c abundance ' and ' equality ' manifestly stand at a lower
level. Indeed, without security, equality could not endure
for a day; and without subsistence, abundance would
obviously be an impossibility. The first two objects are
life itself ; the last two serve, so to speak, as the embellish-
ment of life.
In legislation, the most important object is security.
Even if there were no explicit laws bearing on subsistence,
we may well suppose that it would not be neglected by
anybody ; but if we had no explicit laws bearing on security,
126
Relations between the Objects of the Civil Law. 127
it would be quite useless to make any as to subsistence.
Enjoin men, if you will, to encourage production, to
cultivate the soil : so far you will have done little or nothing.
But assure to the cultivator the fruits of his industry, and
perchance you will have done enough.
Security, as we have already remarked, has several
branches, and some of them must be made to yield to
others. For example, liberty, which is a branch of security,
must yield to considerations of general security, since laws
cannot be made at all save at the expense of liberty.
We cannot, then, obtain the greatest good without the
sacrifice of some subordinate good. The whole difficulty
of the legislative art consists in distinguishing, on each
occasion, the particular object which is to be treated as
of paramount importance. Each one, in turn, demands
pre-eminence; and at times a very complex calculation
becomes necessary if we would be sure of awarding the
preference to the rightful claimant.
Equality ought not to be favoured, except when it does Equality,
not injuriously affect security, nor disappoint expectations
aroused by the law itself, nor disturb a distribution already
actually settled and determined. 1
If, at stated periods, all property were equally divided,
the certain consequence would be that very soon there
would be nothing to divide. It would not be long before
everything came to an end. Those whom the division
was intended to favour would suffer not less than those
at whose expense it was to be made. For if the share of
the worker were no larger than the share of the idler, there
would no longer be any incentive to industry.
If we were to lay down as a principle that all men'^SPj
* * * rights an
ought to enjoy ' equal rights/ we should thereby and of absurdity,
necessity render legislation impossible : for the law is ever
establishing inequalities, as it cannot bestow rights upon
Part
1 As to the ' Reconciliation of Equality and Security,' see ' Civil Code,'
irt I., chap, xii., post, p. 161. (C. M. A.)
128 Principles of the, Civil Code.
' Equal some without, at the same time, imposing obligations upon
contd. others.
To say that all men that is, all human beings have
equal rights is to say that there is no such thing as sub-
ordination. The son has equal rights with the father; he
has the same right to govern and chastise his father that
his father has to govern and chastise him. He has as
much right in his father 's house as the father himself.
The maniac has the same right to shut up others as they
have to shut up him. The idiot has the same right to
control his family that the family have to control him.
All this is fully implied in ' equality of rights ' : it means
either this or nothing at all. I am, of course, aware that
those who maintain the doctrine, not being themselves
either madmen or idiots, have no intention of establishing
this absolute equality: they have in their minds various
restrictions, modifications, and explanations. But, if they
do not know how to express themselves sensibly and in-
telligibly, will the blind and ignorant multitude be likely
to understand them better than they seem to understand
themselves ? If they are thought to proclaim licence and
freedom from all control, it is but too sure that they will
get a hearing.
CHAPTER IV.
OF LAWS EELATIVE TO SUBSISTENCE.
WHAT can the law do relative to subsistence ? Nothing Laws as to
directly. All it can do is to create ' motives ' ; that is to Sub81st "
ence gen-
say, to create rewards and penalties by dint of which men necessary,
would be led to provide a livelihood for themselves. But
Nature has herself created such motives, and endowed
them with the needful intensity. Long before there was
any conception of law in the abstract, want and enjoyment
had, in this respect, done all that could have been done by
laws, however well concerted. Want, armed with pains
of all kinds, even death itself, had exacted labour, spurred
the spirit of bravery, inspired foresight, and developed
every faculty bestowed on mankind. Enjoyment, the
inseparable companion of each satisfied want, had furnished
an inexhaustible store of rewards for those who overcame
the obstacles and fulfilled the designs of nature.
The force of the physical sanction being sufficient, the
employment of the political sanction would be superfluous.
Moreover, such motives as depend on law are always
more or less uncertain in their operation: at times this
is a consequence of the imperfection of the laws themselves ;
at others, it arises from a difficulty in proving such facts
as are necessary to justify the application of punishment
or the conferment of reward. Throughout the processes
that intervene before reaching the complete enforcement
of any law, there always lurks at the bottom of the human
heart some hope of escaping with impunity, however faint
that hope may be; but natural effects, which we may
VOL. I. K
130 Principles of the Civil Code.
regard as the rewards and punishments of nature, scarce
admit of any uncertainty. In the course of nature there
can be no evasion, no delay, nor is any favour shown : the
lessons of experience foreshadow 'the coming event, and
experience itself lends confirmation, for to-day gives tan-
gible form to the lesson of yesterday. The uniformity of
this process leaveg no room for doubt: what, then, could
be added, by dint of express laws, to the constant and
irresistible force of these natural motives ?
indirect^ The law, however, does provide for subsistence indirectly,
Security,* in that it protects men while they labour, and secures to
them the fruits of their industry when the task is done
' Security ' for the worker ; ' security ' for the fruits of his
toil. Such is the benefit derived from law, and it is a boon
beyond all price.
CHAPTER V.
OP LAWS RELATIVE TO ABUNDANCE. ,
OUGHT we to make laws requiring men not to rest
content with a mere livelihood, but to seek abounding
wealth ? No ! That would be a wholly superfluous dance -'
employment of artificial means where natural means suffice.
The attractions of pleasure, want succeeding want like the
links in an endless chain, the ever-active desire to enhance
our own well-being, all these, with the safeguard of
' security/ will lead to fresh and ceaseless efforts towards
further acquisition. Wants and enjoyments, those never-
failing spurs of society, begin by raising a few blades of
corn; and then, by slow degrees, raise vast granaries, built
of ever -increasing size and never full. Desires grow with
the means for their gratification: the horizon expands as
we move towards it, and every fresh want, with its asso-
ciated pain and pleasure, becomes a new principle of action.
Opulence, which, after all, is only a comparative term, does
not arrest this movement when once it has begun : on the
contrary, the greater a man's means the greater his sphere
of operations, so that his reward is also greater, and, as a
consequence, the strength of the motive which impels
him to labour. Now, what is the wealth of a community
if not the aggregate wealth of its members ? And what
more is needed than the impulsive force of these natural
motives to secure the maximum of wealth ?
We have thus seen that abundance is created gradually, !
and by the continued operation of the very causes which to be en -
produce subsistence. These two ends are not in conflict;
T32 Principles of the Civil Code.
Qn ^ con rarVj ^ e greater the abundance the more
secure is subsistence. Those who condemn abundance,
under the name of luxury, have never really grasped this
point of view.
Bad seasons, wars, and accidents of every kind, so often
assail the stores necessary for subsistence, that a community
which had no superfluous stock, or, even, had not a con-
siderable superfluous stock, would always be liable to feel
the want of necessaries. We see this among savage tribes;
and, indeed, it was to be seen among all nations in the
olden time, before wealth accumulated. It is what happens
in our own day in countries little favoured by nature, such
as Sweden; and in those where government trammels the
operations of commerce instead of affording them scope
and protection. But countries in which luxury abounds,
if under enlightened rule, are not exposed to the risk of
famine. Such is the happy situation of England. Where
commerce is free, a gewgaw, even though useless in itself,
may have its utility if employed as a pledge deposited
to obtain some article of necessity. Factories where
luxuries are produced may become, as it were, offices for
insurance against famine : buildings used for making beer
or starch may, at a pinch, supply stores for subsistence.
How often have we heard people declaim against dogs
and horses for devouring the food of man ! Such profound
politicians are but one degree above those apostles of dis-
interestedness who set the granaries afire to bring about
an abundance of corn.
CHAPTER VI.
PATHOLOGICAL PROPOSITIONS UPON WHICH THE
ADVANTAGE OF EQUALITY IS FOUNDED.
PATHOLOGY is a term used in medicine ; but it has not
so far been employed in Morals, where, however, it is ?J 0?y J
equally needed. I define pathology as the study and
science of sensations, affections, and passions, and of their
effects upon human happiness.
Legislation, which has hitherto been founded in great
measure upon the quicksands of instinct and prejudice,
ought at length to be reared on the impregnable rock of
sensation and experience.
We ought to have a sort of moral thermometer which
would mark every degree of happiness and suffering; and,
though that is a pitch of perfection to which we cannot
hope to attain, it is well to keep it ever before our eyes. I
know that a minute examination of ' more or less/ on
points of pain and pleasure, will appear, at the first blush,
to be a useless study of insignificant detail ; it will be said
that, in human affairs, we can only deal with generalities,
and must rest content with loose approximation. But
this is the language of one who lacks either interest in the
subject, or the capacity to understand it. The feelings of
men vary with sufficient regularity to become the object to
a science, or, shall we say, an art ; and, until this is estab-
lished, we shall find people simply groping their way in
tentative fashion, and making efforts as ill-directed as they
are half-hearted. The science of medicine is founded on
the axioms of physical pathology. Morals may be deemed
133
134 Principles of the Civil Code. [CHAP.
the medicine of the soul, and legislation, which is the
practical branch of the science of Morals, ought to have
for its foundation the axioms of mental pathology.
Effect of a In order to judge of its effect upon happiness, a portion
wealth on of wealth must be considered in three different states :
Three cases (i) When it has always been in the hands of the party
to be con* .. ii/\i j t . i
sidered. interested; (2) when it is just about to come into the
hands of a new possessor; and (3) when it is just about
to be taken from the hands of the present possessor.
NOTA BENE. When we speak of the effect of a portion
of wealth upon happiness, it is always without reference to
the sensibility of the particular individual, or to the cir-
cumstances of environment in which he may happen to be
placed. Difference of character is inscrutable; while the
diversity of circumstances is such that they are never the
same for two individuals. Unless, therefore, we begin by
eliminating these two considerations, it will be impossible
to arrive at any general conclusions. But, although any
one of our propositions may be found false or inexact when
applied in a given case, this should not lead us to doubt
their theoretical accuracy or their practical utility. It is
sufficient to justify our propositions if (a) they approach
more nearly to the truth than any others that can be
substituted for them, and (/3) they can be employed more
conveniently than any others as the basis of legislation.
I. Let us now proceed to the first case : an examination of
the effect of a portion of wealth which has always been in
the hands of its present possessor. 1
(a) To each portion of wealth there corresponds a portion of
happiness, (ft) Of two individuals with unequal for times, he
who has the greater wealth will also enjoy the greater happiness.
(y) The excess of happiness on the part of the more wealthy
will not be, in proportion, so great as his excess of wealth.
For the same reasons, (&) the greater the disproportion
between the two masses composing a given aggregate of wealth,
1 Cf. Pannomial Fragments (Bowring, vol. iii., pp. 228, 229). (C. M. A.)
vi.] Pathological Propositions. 135
the less the probability that there exists a disproportion
equally great between the masses of happiness, (e) The more
nearly the actual proportion approaches to equality?- the
greater will be the aggregate mass of happiness.
We need not limit what is here said of wealth to the
condition of those who are called 'wealthy.' The term
' wealth ' has a wider signification, and embraces everything
which may be included either in subsistence or in abun-
dance. It is for brevity's sake that we speak of ' a portion
of wealth ' instead of ' a portion of the matter of wealth.'
I have said (proposition a) that to each portion or
particle of wealth there corresponds a portion or particle
of the matter of happiness : to speak with precision, I
should have said there is a certain chance of such correspon-
dence. The efficacy of any cause of happiness must always
be uncertain ; or, in other words, a cause of happiness may
not produce its ordinary effect, or the same effect, upon all
persons. And this is, of course, the point at which we
must apply what has been said as to the character and
sensibility of different individuals, and as to the variety of
circumstances which will be found to exist.
The second proposition (/?) is derived, as a direct conse-
quence, from the first. Of two individuals, the one who
has the greater wealth will also enjoy the greater happiness,
or, at any rate, will have the greater chance of doing so:
the proof of this fact rests on the experience of the whole
world. The first man who ventures to doubt it I will call
as a witness to establish its truth : let him give any super-
fluous wealth he possesses to the first comer who asks him
1 Cf. Hume, An Inquiry concerning the Principles of Morals, sect, iii.,
part ii. (Essays, edit, of 1793, vol. ii., p. 248): 'It must be confessed
that, wherever we depart from this equality, we rob the poor of more
satisfaction than we add to the rich; and that the slight gratification
of a frivolous vanity in one individual frequently costs more than bread
to many families, and even provinces ' (cited Halevy, i. 309) . A
chief part of the baseness of the rich man, who seized the ewe lamb of
his poor neighbour, consisted in doing that which caused so much
greater pain to the sufferer than happiness to the receiver (cf. Colonel
Perronet Thompson's Works, i. 136). (C. M. A.)
136 Principles of the, Civil Code. [CHAP.
for it according to his theory, such superfluity is but a
handful of sand, a burden and nothing more. The manna
of the desert putrefied when the people had gathered more
than they could consume. If, in the same way, wealth,
after reaching a certain point, no longer increased a man's
chance of happiness, no one would wish to go beyond that
point, and the desire of accumulation would be confined
within meted bounds.
The third proposition (7) is even less open to dispute.
On one side place a thousand peasants, having enough to
live upon and a trifle to spare : place on the other side a
king, or, to avoid having to make allowance for the cares of
sovereignty, say a prince with great possessions, who is
himself as rich as all the peasants taken together. I say
that the chances are the happiness of the prince will be
greater than the average happiness of the peasants, but not
so great as the aggregate of all their thousand portions of
happiness; or, what comes to the same thing, the chances
are that his happiness will not be a thousand times greater
than the average happiness of the peasants. It would,
indeed, be going very far to say that his happiness would
be found to be ten times, or even five times, greater. A
man born in the lap of wealth is not so sensible of its value
as he who has been the architect of his own fortune. It is
the pleasure of acquiring, not the satisfaction of possessing,
that imparts the most exquisite enjoyment. The one is
an active passion, whetted by desire and past privation,
which spurs a man towards unknown delights ; the other is
a languid sentiment, grown stale from habit and never
enlivened by contrast, and one to which no charm is lent by
the play of imagination.
tion 8 o d f e fhe ^' P assm g on to the second case, let us examine the state
Portion of' ^ tn i n S s wnen a portion or particle of wealth is about to
Sded h come into the hands of a new possessor. We will put aside
any question of expectation, and suppose that the increase
of wealth comes unexpectedly, as a godsend.
vi.] Pathological Propositions. 137
1. A portion of wealth may, by subdivision, be so far
divided as not to produce any happiness at all for any one of
the partakers. This would, strictly speaking, happen when
the share of each was less than the value of the smallest
current coin; but it is not necessary to go to that extreme
in order that the proposition may be true.
2. Where the participants are already of equal fortunes, the
more perfectly this equality is preserved, the greater will be
the total mass of happiness in the event of a distribution
of additional wealth.
3. Where the participants are of unequal fortunes, the more
the distribution of any given amount of additional wealth
tends to bring about a condition of equality, the greater will be
the total mass of happiness.
III. Passing on to the third case, we must consider the
state of things when a portion or particle of wealth is about
to go out of the hands of its former possessor. We will again
put aside any question of anticipation, and suppose that away
the loss is quite unforeseen ; as, indeed, a loss generally is,
since men naturally expect to keep what they possess.
And this expectation is in accord with the ordinary course
of events; for, taking men as a whole, they not only keep
the wealth they have amassed, but add to it still further.
As a proof, contrast the original poverty of a community
with its resources at any given period.
i . The loss of a given portion of wealth will produce a loss
of happiness to an individual, more or less great, according to
the ratio between the part he loses and the part he retains.
Take away from a man the fourth part of his fortune, and
you take away the fourth part of his happiness, and so on.
But there are cases in which this ratio does not obtain. 1
1 It is to this head that the evil of heavy gambling must be referred.
Though the chances in point of money may be equal, the chances in the
point of happiness are always unfavourable. I am worth 1,000. The
stake is 500. If I lose, my fortune is diminished one half; if I gain,
it is only increased by one third of the whole. Suppose the stake to be
1,000. If I gain, my happiness is not doubled with my fortune: if 1
lose, my happiness is destroyed I am reduced to poverty (Dumont).
138 Principles of the Civil Code. [CHAP.
Suppose, for example, that, in taking three-fourths of my
fortune, you encroach upon the part necessary for the
supply of my physical wants, while in taking only one-half
you leave that part untouched, the loss of happiness in the
first case will not be simply fifty per cent, more than in the
second case, but may be twice as much, or ten times as
much : one does not know where to stop.
2. (Assuming the first proposition.) Fortunes being equal
and the aggregate amount to be subtracted being given, the
greater the number of persons among whom the loss is shared,
the less will be the subtraction from the aggregate of happiness.
3. After reaching a certain point, further subdivision
renders the several shares impalpable, and the loss occasioned
to the aggregate of happiness amounts to nothing.
4. When fortunes are unequal, the loss of happiness pro-
duced by a given loss of wealth will become less in proportion
as the distribution of the loss tends towards the bringing about
of an exact equality of fortunes.
We here neglect all inconveniences attached to, or arising
from, any violation of ' security.'
Application Governments, profiting by the advance of knowledge,
principles have in many matters favoured the principles of equality
distritm- in connection with the distribution of losses. For example,
losses. they have thrown the protecting aegis of the law over
Policies of .. . , ,, , ,
insurance, policies of assurance, those very useful contracts whereby
individuals club together in advance so that they may be in
a position to face all possible losses. The principle of
assurance, founded on an estimate of probabilities, is
nothing more than the art of distributing losses among a
number of adventurers sufficiently great to make the loss,
in the case of a particular adventurer, very light, or,
perhaps, almost negligible.
indemnifl- The same motive has influenced princes when, at the
losses oc- expense of the State, they have indemnified subjects who
war^crim- 7 have suffered from public calamities or the devastations of
etc. war. Nothing could have displayed greater wisdom or
vi.] Pathological Propositions. 139
intelligence than the administration of Frederic the Great
in this regard ; and this is one of the most excellent points
of view from which to study the rules for the government of
communities.
Some attempts have been made to indemnify individuals
for losses caused by the crimes of malefactors ; but instances
of laws directed to this end are still very rare. It is, how-
ever, an object which deserves the attention of legislators,
since by this means the mischief of offences against
property may be enormously reduced. 1 But such a scheme
would have to be devised and adjusted with great care, or
it would lead to harmful consequences. We must never
foster indolence and rashness, which, if secure of indemni-
fication, would assuredly neglect precautions against
crime. The utility of the remedy would depend, therefore,
on its form and mode of administration. But it would be
nothing less than culpable indifference to neglect so salutary
a measure altogether, merely to escape the trouble of
eliminating inconveniences.
The principles we have enunciated will serve equally
well to regulate the distribution of a loss among several of burdens,
persons charged with a common responsibility. If their
respective contributions are in proportion to their respec-
tive fortunes, their relative condition will be the same as
before; but if it be desired to seize this occasion to bring
about an even nearer approach to equality, we must needs
adopt a different ratio. To make a uniform levy, without
any regard to respective differences of fortune would be a
third plan ; but it would conform neither with equality nor
security.
To put the matter in a clearer light, I will present a STgafn 30
compound case in which we have to decide between two Jjjtj 1 * a { 08s
individuals, one of whom seeks a profit at the expense of amount.
1 Cf., e.g., the Riot (Damages) Act, 1886 (49 and 50 Viet., c. 38),
whereby compensation may be awarded out of the police rate in respect
of losses occasioned by persons riotously and tumultuously assembled
together. (C. M. A.)
140 Principles of the Civil Code. [CHAP.
LoBB. wr * M * the other. The question is, of course, to determine the
effect of a portion of wealth which, in order to pass into the
hands of one individual in the shape of gain, must come out
of the hands of another in the shape of loss.
I. Among competitors of equal fortunes, if what is to be
gained by one is to be lost by the other, the arrangement which
would be productive of the greatest sum of happiness will be
that which favours the one from whom the profit is claimed, to
the exclusion of the claimant.
For (a), as any sum awarded would bear a greater ratio
to the reduced fortune than the same sum to the increased
fortune, the diminution of happiness in the case of the one
would be greater than the augmentation of happiness in the
case of the other ; in a word, ' equality ' would be violated by
an arrangement which involved such a transfer. [See the
note upon gaming, ante, p. 137. The case is exactly the
same.]
(P) If any transfer were directed, the loser would experi-
ence a pain of disappointment ; if no order were made, the
claimant would be simply in the condition of not having
gained. The negative evil of not acquiring is not equal
to the positive evil of losing; otherwise, every man experi-
encing the evil with regard to everything which he does
not obtain, the causes of suffering would be infinite, and
men, presumably, infinitely miserable.
(y) Mankind in general appear to be more sensible to
chagrin than to pleasure, when under the influence of causes
of like magnitude. Indeed, this disposition extends so far
that a loss which diminishes a man's fortune by one-fourth
would probably take from him more happiness than he
would derive from a gain by which his fortune was doubled. 1
1 It does not follow that the sum of evil is greater than the sum of
good. Not only is evil more rare, but it is accidental: it does not flow,
like good, from constant and necessary causes. Moreover, up to a cer-
tain point, it is in our power to drive away evil and attract good. There
is, too, in mankind a feeling of confidence in happiness which prevails
over the fear of its loss, as is evidenced by the success of lotteries
(Dumont).
vi.] Pathological Propositions. 141
2. Where the fortunes are unequal, if the loser be the poorer,
this inequality will enhance the evil of the loss.
3. Where the fortunes are unequal, if the loser be the richer,
the evil caused by the attack on security will be in part com-
pensated by the portion of good arising from the progress made
towards equality.
By the aid of these maxims, which have, up to a certain
point, the character and certainty of mathematical prop-
ositions, it will ultimately be possible to produce definite
and lasting rules as to indemnities and satisfaction. Legis-
lators have often shown a disposition to give heed to the
counsels of equality, under the name of ' equity,' to which
greater latitude is conceded than to that of ' justice.' But
this conception of equity, ill-defined and ill-developed, has
seemed rather a matter of instinct than of calculation. It
is only by orderly procedure and much patience that a mass
of loose and confused sentiments can be reduced to rigorous
propositions.
CHAPTER VII.
OF SECURITY.
WE have now reached the main object of law the cultiva-
tion of ' security.'
This inestimable boon, the distinctive mark of civiliza-
tion, is entirely the creature of law. Without law there
is no security, and therefore no abundance, not even a cer-
tainty of subsistence ; and, in such a state of things, the only
equality which could obtain would be equality of poverty.
To form a just conception of this beneficent creature of
the law, we need only consider the condition of savage
races. Ceaseless is the war they wage against famine ; and
yet on occasion it wipes out whole tribes in the course of a
few days. The struggle for subsistence drives them into
cruel warfare; and, after the manner of wild beasts, men
hunt their fellows that they may batten on their flesh.
The horror of a fate so dreadful subdues all the softer
sentiments of the heart ; and pity unites with insensibility
in putting to death old men no longer fitted for the chase.
Let us consider, too, what occurs during those terrible
periods when civilized societies revert wellnigh to the
savage state ; that is to say, in time of war, when the laws
which make for security are, to a great extent, in abeyance.
At such a time, every moment breeds fresh calamity; at
every fresh step taken, in response to every new movement,
the existing stores of wealth, the provision made for abun-
dance and subsistence, grow smaller by degrees, and in the
end disappear altogether. Palace and cottage are pillaged
alike : and, but too often, the passion, or even the caprice,
142
Of Security. 143
of a moment will consign to destruction the tardy product
of a century of toil.
Law alone has succeeded in doing that which all the J
natural sentiments, with united effort, could never have
accomplished. 1 Law alone has been able to create a
possession so firm and durable as to be worthy of the name
' property.' It is law alone that could have made men
provident accustomed them to bend under the yoke of
forethought, at first hard to be borne, but afterwards light
and pleasant. It alone succeeds in urging men to labours,
which, though designed to yield them fruit hereafter, are of
no present advantage. Economy has as many enemies as
there are spendthrifts; as there are idlers, who would enjoy
without being at the pains to produce. Toil is irksome to
idleness; it is too slow for impatience. Cunning and dis-
honesty secretly conspire to appropriate its fruits; while
insult and effrontery think to ravish them by open force.
So that security is surrounded by snares on every side :
ever threatened, never at peace, it seems always on the
brink of tottering to its fall. The legislator requires never-
failing vigilance, and sustained forces in constant play, to
defend it against the crowd of adversaries that spring up
in every direction.
Law does not say to a man : ' Work, and I will reward
you.' It says rather: 'Work, and, by staying the hand
that would tear them from you, I will assure to you enjoy-
ment of the fruits of your toil the natural and sufficient
reward which, without my aid, you could not retain.'
While Industry creates, it is Law that preserves ; while at
the outset we owe everything to labour, yet ever after-
wards we are indebted to law alone.
In order to form a clear conception of the extent to
which we ought to carry this principle of security, we must ^^
remember that the sufferings and enjoyments of man are
not, like those of the brute creation, confined to sensations
1 Cf. ' Principles of Legislation,' chap. xiii. (10); ante, p. 107. (C. M. A.)
144 Principles of the Civil Code.
relating only to the particular moment under considera-
tion.
Man is susceptible of pleasure or pain by anticipation;
so that it is not sufficient to secure him from present loss.
We must, so far as possible, guarantee him against damage
to his possessions in the future. We must extend our con-
ception of security so as to embrace the whole vista that
his imagination is capable of filling.
' Expecta- This disposition to look ahead, which has so marked an
Disap- j influence on the lot of mankind, may be called ' expecta-
tion ' expectation of the future. 'Tis by its operation
that we are enabled to form a general plan of conduct ; that
the successive moments which compose the duration of
life are not, so to speak, isolated and independent points,
but become parts of a continuous whole. ' Expectation '
is a chain which unites our present being to our future
existence, passing beyond ourselves to the generations
that are to come; and the sensibility of a man extends
through every link in the chain of his expectations.
The principle of security comprehends the maintenance
of all these our expectations ; it demands that events, so far
as they can be made dependent upon laws, shall conform
with the expectations to which the laws have given birth.
Every blow struck against this sentiment of expectation
carries with it a distinct and peculiar evil consequence
which we may call the ' pain of disappointment.'
It is a proof of singular confusion in the minds of jurists
that they have never paid any special attention to a senti-
ment which exerts so powerful an influence in human
affairs. The word ' expectation ' is hardly to be found in
their vocabulary; and scarce an argument based on this
principle occurs in any of their writings. They have, with-
out doubt, followed the principle in many instances; but
it has been by instinct rather than from reason. If they
had recognized its vital importance, they would not have
failed to give it a name to give some clear indication of
its presence instead of suffering it to be lost in the crowd.
CHAPTER VIII.
OF PROPERTY.
THAT we may more fully appreciate the advantages of
law, let us endeavour to form a clear conception
' property.' We shall find that there is no such thing as
natural property : it is entirely the creature of law. 1
Property is nothing more than the basis of a certain
expectation; namely, the expectation of deriving hereafter
certain advantages from a thing (which we are already said
to possess) by reason of the relation in which we stand
towards it.
There is no image, no picture, no visible lineament,
which can portray the relation that constitutes * prop-
erty.' It belongs not to physics, but to metaphysics; it
is altogether a conception of the mind.
To hold the object in one's hand to keep it, to manu-
facture it, to work it up into something else, to make use
of it all or any of these physical circumstances fail to
assist in conveying the idea of property. A piece of cloth
actually in the Indies may belong to me, while the coat
which I have on may not be mine. The very food which
has mingled with my body may be the property of another
to whom I must account for the price.
The conception of property consists in a fixed and settled
expectation; in the persuasion of my capacity to derive
from the object, hereafter, certain advantages, of a char-
acter dependent upon the nature of the case. Now, this
1 Cf. Hume's Philosophical Worls edition of 1826), vol. ii., pp. 274
et seq. ; and see p. 305. (C. M. A.)
VOL. I. L
146 Principles of the Civil Code. [CHAP-
expectation, this persuasion, can only result as the work
of law; for I cannot reckon on the enjoyment of that
which I regard as my own, save through the promise of
the law which guarantees it to me. It is the law alone
which makes it possible for me to forget the insecurity of
my natural condition, and emboldens me, with reasonable
hope of a harvest as yet far distant, to enclose a plot of
land and give myself up to the toil of cultivation.
But it may be asked, What was the origin of this doc-
trine of property ? When the law adopted the objects
which, under the name of property, it promised to pro-
tect, what was the principle that prompted its action ?
We may, perhaps, answer this question by propounding
another. Had not man in his primitive state a natural
expectation of enjoying certain things an expectation
drawn from sources prior to the law and independent of it ?
Yes : there have been from the beginning, and there always
will be, circumstances in which a man may secure himself
in the enjoyment of certain things by his own unaided
efforts. But the catalogue of such cases is very restricted.
The savage who has hidden his prey may hope to keep
it for himself so long as his cave remains undiscovered;
so long as he is on the watch to defend it, and proves
stronger than his foes. But that is all. How wretched
and precarious is possession of such a type as this !
If we now go on to suppose the baldest form of mutual
agreement among the savages to respect each other's
booty, we have at once the introduction of a principle
to which you can give no other name than ' law.' A feeble
and transitory kind of expectation may, from time to
time, arise from circumstances purely physical; but a firm
and abiding expectation can result from law alone. That
which, in a state of nature, is, so to speak, no more than
a thread, becomes, when society is constituted, a veritable
cable.
Property and law were born together, and would die
vni.] Of Property. 147
together. Before the laws property did not exist; take
away the laws, and property will be no more.
As regards property, ' security ' consists in there being
no shock or disturbance occasioned to the expectation, }JJ *
founded on the laws, of enjoying such and such a portion erty
of wealth. The legislator owes the greatest respect to such
expectations, for they are expectations which he himself
has brought into being: it is essential to the happiness of
society that he should not defeat them ; and, whenever his
edicts clash with them in any degree, those edicts give rise
to a proportionate measure of positive evil.
CHAPTER IX.
ANSWER TO AN OBJECTION.
BUT, perhaps, it may be objected that the laws of prop-
erty, while good for those who have great possessions,
fvetothe P ress hardly on those who have none: that the poor man
)oor. is really poorer and more unhappy than he would be with-
out any such laws.
Now, by creating property, the laws have created wealth ;
while, so far as poverty is concerned, it is not the work of
the laws at all it is the original condition of mankind.
The man who lives only from hand to mouth is exactly
in the position of man in the state of nature the savage.
In an artificial state of society, the poor man, I admit,
gains nothing save by painful toil ; but, even in a state of
nature, what could he obtain save by the sweat of his
brow ? Is the chase without its fatigues, fishing without
its risks, or war without its perils and uncertainties ?
And though men seem to love a life of adventure and have
an instinctive passion for these dangerous pursuits ; though
the savage revels in his idleness, so dearly bought; must
we thence conclude that wandering tribesmen are, of
necessity, happier than the tillers of our own soil ? No.
The work of our peasants is more monotonous, but their
reward is better assured : the lot of their womankind is not
so hard : there are more expedients for support, in case of
infancy or old age: the rate of increase in population is
infinitely greater and this circumstance alone would
suffice to show on which side superiority of happiness
lies.
148
Answer to an Objection. 149
Thus we see that the laws, while creating wealth, have me P^si-
* tion of the
at the same time proved benefactors to those who remain P OT -
in their original condition of poverty. Even the very poor
share, more or less, in the pleasures, advantages, and
resources, of civilized society: by their toil and industry
they may sometimes even aspire to amass a little fortune.
Do they not enjoy the pleasures of acquisition; do not the
pleasures of hope mingle with their labours ? Nor is the
security which the law confers upon them a less important
factor. Those who look down from a height on the lower
orders see every object smaller than it really is ; but as we
approach the base of the pyramid, it is its summit which,
in turn, disappears. So far from drawing these com-
parisons, the poor do not even dream of making them;
they do not allow themselves to be made miserable by
visions impossible of realization.
Indeed, when everything is taken into account, the
safeguards of the law may, perhaps, contribute as much
to the happiness of the cottage as to the safety of the
palace.
It is surprising that so judicious a writer as Beccaria J^ a o f en
should have inserted in a work dictated by the soundest Beccarif4 -
philosophy a doubt which is really subversive of social
order. ' The right of property, ' says he, ' is a terrible
right, and one which, perchance, may be unnecessary.' 1
Upon this right, tyrannical laws leading to much blood-
shed have, doubtless, been founded ; it has been shockingly
abused. But the right itself presents only ideas of pleasure,
abundance, and security. It is this right which has con-
quered our natural aversion from toil, and given to man the
empire of the world; it is this right which led nations to
abandon the life of nomads, and gave birth to love of
fatherland and our fostering solicitude for the happiness
of posterity. To enjoy quickly to enjoy without labour
1 Crimes and Punishments, chap, xxii., ' Of Robbery ' (edition of 1804,
p. 80). (C. M. A.)
150 Principles of the Civil Code.
such is the universal desire of mankind. It is not the
right of property, but this desire, which is so terrible ; for it
tends to set all those who have nothing in arms against
all those who have anything. Now, a law which restrains
such a desire is, surely, the most splendid triumph of
humanity over itself.
CHAPTER X.
ANALYSIS OF THE EVILS RESULTING FROM ATTACKS
UPON PROPERTY.
WE have already seen that subsistence depends upon Evil c nse -
the laws which secure to the labourer the products of his ac on
toil; but it seems fitting to analyze more closely the evils
which result from violations of property. They may be
reduced to four heads :
1. Evil of Non-Possession. If the acquisition of
portion of wealth is a * good,' it follows that the non-
possession of it is an ' evil ' ; though, of course, nothing
more than a negative evil. Hence, although men in their
original state of poverty could not have felt the want of
particular kinds of property as yet quite unknown to them,
it is clear that they lost all the happiness resulting from
possession, such as we now enjoy.
The loss of a portion of good must still be a loss, although
we may always remain in ignorance of it. If by calumnious
reports you deter my friend from leaving me a legacy
which I did not expect, is not that doing me an injury ?
In what does the injury consist ? Why, in the negative
evil which results to me from not possessing what I should
have possessed but for your calumnies.
2. Pain of Losing. Everything which I possess, or to Loss,
which I have a title, I think of, in my own mind, as being
destined to belong to me for ever. These things I account
the groundwork of my expectations the hope of those
dependent upon me, and the means of carrying out the
plan of life mapped out for myself. Each part of my
152 Principles of the Civil Code. [CHAP.
property may, beyond its intrinsic value, have for me a
value resting on personal association; as being, e.g., a
family estate, the reward of my own labours, or a provision
for the future of my children. It represents, in my eyes,
the part of myself which I have put into it my cares,
my toil, the economy which resisted the pleasures of the
moment that they might be long drawn out in the days
to come. In this way property becomes part of our very
being, and cannot be wrested from us without wounding
to the quick.
3. Fear of Losing. To our concern for the loss already
sustained is added uneasiness as to the property still
remaining, and even as to that to be hereafter acquired.
Indeed, since most of the objects necessary for subsistence
and abundance are perishable articles, future acquisitions
form a necessary supplement to present possessions.
Moreover, when insecurity reaches a certain point, the
fear of losing impairs the enjoyment of property actually in
possession ; for our anxiety to preserve it condemns us to a
thousand preventive measures, vexatious and irksome in
themselves, and always liable to miscarry. Treasures are
secretly conveyed away or buried: our enjoyment of them
becomes sombre, stealthy, and solitary, and is afraid to
display itself lest cupidity should be apprised of the where-
abouts of its prey.
4. Abatement of Industry. If I once lose the hope of
assuring to myself the products of my toil, I shall seek only
to live from day to day, and become unwilling to undergo
labours for the benefit of my enemies. Moreover, mere
willingness to work is not enough. I must needs have the
means also; and whilst these are being provided subsist-
ence is necessary. So that, without quenching my zeal
for industry, without even destroying my willingness to
labour, a single loss may reduce me to the position of not
being able to do anything.
Thus, while the first three of these evils affect only a
x.] Evils resulting from Attacks upon Property. 153
man's passive faculties, the fourth assails his active
faculties, and more or less benumbs them.
From this analysis it appears that the first two of these
evils do not extend beyond the individual actually in-
jured, but the last two spread throughout society and
occupy indefinite space. Any attack directed against a
man's property excites alarm and distrust in property-
owners generally : the sentiment is imparted by neigh-
bour to neighbour, and the contagion at last may reach
the whole body of the community.
For the development of Industry, we must have
union of power and will. ' Will ' depends upon the encour- ?
agements received ; ' power ' upon the means afforded. jj^ e . Cap "
These means are what is called, in the language of political
economy, ' productive capital.' In regard to an individual,
his productive capital may be wiped out by a single loss,
without his zeal for industry being destroyed or even im-
paired. In regard to a community, the complete annihila-
tion of its productive capital is impossible ; but long before
that disaster could occur, the mischief may have reached
the ' will,' and the spirit of industry be thus infected with
fatal decay, even in the midst of natural resources drawn
from a rich and fertile soil. The ' will,' however, is
excited by so many stimulants, that it is able to resist
with success a thousand discouragements: a passing
calamity, howsoever great it may be, will not destroy a
people's zeal for industry. After devastating wars have
drained the coffers of a nation, the spirit of industry has
been seen to rise up unimpaired ; just as some mighty oak,
torn by the gale, swiftly repairs its losses, and once more
spreads its swelling branches to the storm.
Indeed, nothing will suffice for the complete paratysis of Paralysis o f
industry save the operation of some domestic and permanent by tyranni-
i -i , i i i i t- calgovern-
cause ; such as tyrannical government, bad legislation, an in- ment. etc.
tolerant religion which is repellent to men's minds, or some
ridiculous superstition which deadens their understanding.
154 Principles of the Civil Code. [CHAP.
A certain degree of apprehension will no doubt be excited
by the very first attack directed against property: some
timid souls will surely lose heart. If a second outrage
follows in quick succession, the alarm will be greater and
more widely spread. The more prudent then begin to
curtail their enterprises, and by degrees will altogether
abandon careers attended by so much uncertainty. This
upheaval and the paralysis consequent on the destruction
of commerce will extend in proportion to the frequency of
the attacks, and may be vastly increased should the system
of oppression assume a habitual character.
No one takes the place of him who has gone, while those
who remain will fall into a state of lethargy. It is in
this way that the field of industry, beaten by storms, at
length becomes a barren desert.
Si h e e Turk. f Take Asia Minor ' Greece, Egypt, the coasts of Africa.
- When the Roman Empire flourished, how rich were they in
agriculture, commerce, and men ! What have they be-
come under the despotic rule of the Turk ? Huts take the
place of palaces, and villages are found where once great
cities stood. This government, hateful to all thinking
men, has never understood that a State can become rich
in no other wise than by maintaining an inviolable respect
for the rights of property. It has always supposed that
there are only two secrets of statecraft: to drain the
resources of the people, and to deaden their understanding.
Thus it is that the fairest countries in the world, laid waste,
barren, and almost deserted, can scarce be recognized in
the hands of their barbarous conquerors. Nor can these
evils be rightly assigned to causes more remote. Civil
wars, foreign invasion, the scourges of nature, will doubt-
less serve to disperse wealth, put the arts to flight, and
swallow up great cities ; yet all these ravages will in course
of time be repaired communications will be re-established,
languishing manufactures will revive, and cities will rise
again from their ruins if men but continue to be men.
x.] Evils resulting from Attacks upon Property. 155
Alas ! they are so no longer in these unhappy lands, where
despair, the fatal, if tardy, effect of prolonged insecurity,
has destroyed every active faculty of mind.
Should we seek to trace the history of this contagious
mischief, we shall find that it first assails the more thriving iysjs of
Industry.
classes of society; opulence is the object of its first attacks,
and by slow degrees, superfluous wealth seems to disappear
altogether.
Sheer want still makes its voice heard, in spite of every
obstacle; for man must live. But when man is forced to
content himself with a bare subsistence, the State is like
to die ; while faint and few are the sparks that fly from the
flickering torch of industry.
Besides, abundance is never so distinct from subsistence
that the one can be attacked without striking a dangerous
blow at the other. While some are losing only what is
superfluous, others lose some portion of what is necessary
for their support ; for, by reason of the infinite complexity
of economic relations, the superfluous wealth of one class
of citizens is the only source from which a more numerous
class can derive subsistence.
But we may draw another picture, more pleasing and J^fJJ 8 * of
not less instructive: a picture of the progress of ' security,' g?^ * it
and of prosperity, its inseparable companion. North , North
America supplies us with a most striking contrast ; for America.'
there the savage in his natural state stands side by side
with civilization. The interior of that vast region presents
only an awe-inspiring solitude; impenetrable forests or
barren plains, stagnant waters, noisome vapours, and
noxious reptiles such is the land when left to itself.
The fierce hordes who range these deserts without fixed
habitation, occupied only in the pursuit of prey and ever
embroiled in undying feuds, never meet but in open strife,
and often succeed in utterly destroying each other. The
wild beasts are, indeed, not so dangerous to man as man
is to himself.
156 Principles of the. Civil Code.
But ' u P on the ver y borders of tnese dismal regions,
AmerP h wna ^ a different prospect meets our gaze ! We seem to
embrace, in a single glance, the two empires of good and
evil. Forests have given place to lands in tillage; while
the site of marshes, now drained and dry, is occupied by
meadows, pastures, domestic animals, and pleasant,
healthy homesteads. Here, too, rising cities are being
reared upon regular plans, and spacious roadways con-
structed to afford the necessary means of communication;
everything shows how men, seeking opportunities of
mutual intercourse, have ceased to fear each other and
to live by murder and pillage. Hospitable harbours, filled
with shipping, give a welcome to the merchandise of the
world and assist in the exchange of every kind of wealth.
An immense population, living in peace and abundance
upon the fruits of its own labour, has succeeded tribes of
men who followed the chase and were ever scourged by
war and famine. What has brought about these wonders ?
What is it that has thus changed the surface of the earth ?
What has bestowed on man this dominion over nature
splendid, fruitful, and complete ? The beneficent genius
is ' Security ' : security alone has wrought this glorious
change. And how rapidly the change has come ! It is
not yet two centuries since William Penn landed on those
then barbaric shores with a colony of men who were, indeed,
true conquerors ; for they were men of peace, who scorned
to sully the new settlement by any show of violence, and
yet gained vast power and respect by the constant exercise
of benevolence and justice.
CHAPTER XL
SECURITY AND EQUALITY IN OPPOSITION.
ANXIOUS to act with due regard to this great principle of
Security, what should be the ordinances of the legislator existing
in respect to the mass of property already in existence ? tion.
He ought to maintain the distribution as it is actually
established. It is this which, under the name of ' Justice,'
is rightly regarded as his first duty. The rule is general
and simple, applicable to every country, and capable of
being adapted to all schemes of ownership, even such as
are in direct conflict with each other.
The condition of property in America, England, Hun-
gary, and Russia, differs as widely and fundamentally as
it well can. Speaking generally, the cultivator of the
surface is, in the first of these countries, a proprietor; in
the second, a tenant farmer ; in the third, a serf ; and in the
fourth, a slave. Nevertheless, the supreme principle of
Security requires that we should maintain all these modes
of distribution, widely different as their characteristics are,
and though they do not severally give rise to a like
amount of happiness. How is it possible to make a
distribution without taking from somebody what
already possesses ? How can you despoil one man without
assailing the security of all ? When your fresh partition
conies to be disarranged as it certainly will be, the very
day after it has been settled how can you avoid having
to make a second ? What reason could you give for not
readjusting the dislocated distribution ? And what be-
comes, meanwhile, of security, industry, happiness ?
158 Principles of the Civil Code. [CHAP.
pre . When security and equality come in conflict, there should
E ai laiit er no ^ ^ e a momen ^' s hesitation. Equality must give way.
Security is the groundwork of life : subsistence, abundance,
happiness, all depend upon it.
Equality, it is true, affects our well-being, but only in
partial measure. Besides, whatever we may do, it will
never be complete; for if equality could subsist for a
single day, the vicissitudes of the morrow would bring
about a change. The establishment of equality is but a
chimera: all we can do is to diminish inequality. 1 If some
violent cause, such as open rebellion or subjugation by
force of arms, chances to throw the rights of property into
confusion, it is, doubtless, a great calamity. But the
mischief is not lasting : time will serve to mitigate or, even,
to repair it. Industry is a plant of vigorous growth; it
will survive many a lopping, and, with the returning warmth
of summer, the nourishing sap will once more mount its
stem. But if property were to be overthrown with the
express intention of establishing equality of fortune, the
evil would be irreparable. No more security no more
industry no more abundance: society would once again
revert to the state of savagery from which it has emerged.
' Devant eux des cites, derriere eux des deserts.'
Equality Such is the history of fanaticism. If equality ought to
could never .. t .. . J , . . .,
be main- prevail to-day, it ought, by parity 01 reasoning, to prevail
1 Bentham here touches upon what is now vaguely spoken of as ; Social-
ism.' ' Modern States are coming more and more in various ways to
interfere with industrial operations or their products, with the result
and sometimes the intention, of effecting a more equitable and more
socially advantageous distribution of wealth ' (The Industrial System,
by J. A. Hobson, p. 213). Mr. Hobson distinguishes three chief modes
of distribution, though each has, of course, other aims besides that of
affecting distribution: (i) State regulation of industry; as, e.g., minimum
rates established under the Trade Boards Act, 1909, and the Coal Mines
(Minimum Wage) Act, 1912. (2) State operation of industry, generally
with the object of diverting to the public use monopoly profits which
were left in private hands; as, e.g., the assumption of the ownership
and control of services of transport and communication, or the supply
of gas, water, electricity, etc. (3) Taxation in order to raise revenue
for public consumption; as, e.g., income tax, the death duties, and the
.taxation of land values. (C. M. A.)
XL] Security and Equality in Opposition. 159
for ever. But it could only be maintained by renewals of
violence such as would be necessary to establish it. We
should need an army of inquisitors and hangmen, deaf
alike to piteous appeal and to railing accusation, insensible
to alluring pleasures, inaccessible to personal influence,
endued with all the virtues, yet engaged in a service
which would kill them every one. Some great levelling
machine would need to be incessantly at work, planing
down everything which showed itself above the mark
prescribed; constant watch would have to be set for the
purpose of supplying those who had squandered their
shares, and of despoiling those who, by dint of strenuous
toil, had increased their possessions. In such a state of
affairs, the path of wisdom would lead to prodigality, the
path of folly to industry. The pretended remedy, at the first
blush so attractive, would thus be found a deadly poison a
burning cautery, which consumes everything until, at last,
it seizes upon the primary elements of life itself. It is a
thousand times more to be dreaded than an enemy's sword,
though wielded with frenzied hate; for the sword inflicts
but minor evils such as time may efface and industry repair.
Certain small societies, in the fervour of new-born Community
,. . ,, . , , , of Goods in
religious enthusiasm, have been known to institute com- religious
munity of goods as a fundamental principle. Can anyone 8
suppose that happiness has been attained by such an
arrangement ? The alluring motive of reward is, in
such cases as these, supplanted by the afflicting motive of
punishment. It becomes necessary to represent labour, so
easy and pleasant when gladdened by hope, as a sort of
penance that a man must undergo unless he would perish
everlastingly. Accordingly, so long as the religious im-
pulse retains its force, everyone works, but everyone groans.
Now, suppose that same impulse should begin to lose its
power in certain quarters : the society is then divided into
two classes; one, a set of debased fanatics, acquire the
faults and vices of a degrading superstition; the other
160 Principles of the Civil Code.
cons i s ts of lazy rogues, who contrive to get themselves
ma i n ^ a i ne( i i* 1 a state of sanctified indolence by the sorry
dupes who surround them. Meanwhile, all their talk of
equality has become a mere pretext a cover for the out-
rage which idleness has perpetrated upon industry.
The expectations of brotherhood and loving -kindness,
which have fascinated so many generous minds, are, under
this system, but chimeras of the imagination. In the
division of labour and in choice of the more arduous
forms of toil, what would be the determining motive ?
Who would undertake servile and repulsive duties ? Who
would be content with his lot, and not find the burden of
his neighbour lighter than his own ? How many would
be the frauds contrived to cast upon a man the labour of
which his fellow would be rid ? And, in the division of
property, how impossible to satisfy everyone, to preserve
even an appearance of equality, to prevent jealousies,
quarrels, rivalry, undue preference ! Who would deter-
mine the countless disputes and differences constantly
arising ? What a complex system of penal laws would
be needed in the stead of smoothly -working liberty of
choice, and as a substitute for such rewards as Nature will
herself bestow, in return for the pains a man devotes to
work chosen by himself ! One-half of society would not be
sufficient to govern the other half. So that this unjust and
ridiculous system could not be maintained save by political
or religious slavery ; such as that of the helots at Lacedsemon,
or of the Indians in the Jesuit settlement of Paraguay. 1
What are these schemes but sublime inventions of legislators
who, professing to put into practice a theory of equality,
make up two equal lots of good and evil, and then allot all
the suffering to one side, and all the enjoyment to the other?
1 Jesuit missionaries were sent to Paraguay in the later half of the
sixteenth century; and in the seventeenth century the home government
placed the whole administration, civil and religious, in the hands of
the Jesuits, giving them the right to exclude all other Europeans.
They were, however, expelled in 1768 and the province again made sub-
ject to the Spanish Viceroys. (C. M. A.)
CHAPTER XII.
THE RECONCILIATION OF SECURITY AND EQUALITY.
BETWEEN the two rivals, 'Security' and ' Equality ,' onSf Ci s?"
must there, then, be constant opposition, eternal war ?
Up to a certain point they are clearly incompatible; but,
with a little patience and skill, they may be gradually
drawn towards reconciliation.
Between these conflicting interests, time is the only
mediator. If you would follow the counsels of equality
without disregarding those of security, you must await
the natural epoch, which puts an end alike to hope and
to fear the epoch of death.
When, by the death of the proprietor, property ceases
to have an owner, the law may intervene in the ensuing Jj
distribution. This may be done either by limiting, in proprietor,
certain respects, the testamentary power, so as to prevent
the too great accumulation of wealth in the hands of a
single person; or by making the right of succession sub-
servient to the dictates of equality, in cases where the
deceased has no spouse or kinsman in direct line, and has
made no use, by will, of his disposing power. We are,
then, concerned with persons who acquire for the first time
and have formed no previous expectations ; so that equality
may do what is best for everybody, without disappointing
the hopes of anybody.
Here I do no more than indicate a principle : its develop-
ments will be seen in the Second Book (Cf. post, vol. i. , p. 234) .
When we come to deal with the adjustment of some kind ^eiTof
of civil inequality, such as slavery, we must pay the same
regard to the rights of property. We must be content to
1 62 Principles of the Civil Code.
advance slowly and by short stages, and never lose sight
of the principal object while pursuing a subordinate one.
The men whom, by successive steps, we thus render free
will be much more fitted to enjoy their liberty than if we
had taught them to trample justice underfoot, while seek-
ing to effect this change in their social condition.
We should point out that, in a nation which is prospering
^ v ^e development of agriculture, manufactures, and
continuous, commerce, the progress towards equality is regular and
continuous. If the laws do not stand in the way if they
do not maintain monopolies, hamper trade and free ex-
change, or suffer -the creation of entails we find great
estates gradually split up, without effort, without revolu-
tion, without shock or disturbance; while, at the same
time, a much greater number of men share in the advan-
tages of a moderate fortune. Such, indeed, is the natural
result of the widely diverse usages which prevail amongst
the opulent and the very poor. Idle and prodigal, the
man of great estate seeks only after enjoyment without
toil; the poor man, inured to privations and obscurity,
finds pleasure even in his labour and in the practice of
economy. In this way, through the advancement of com-
merce and the arts, a great change has taken place in
Europe, despite many- obstacles raised by hampering laws.
We are not yet far removed, in point of time, from the
feudal ages when the world was divided into two classes:
a few great landowners, who were everybody, and a crowd
of serfs, who were nobody. Where they have not disappeared
altogether, those lofty pyramids have been brought low ; and
from their ruins, scattered in every direction, industrious
men have raised up fresh and stable institutions, the
vast number of which vouches the comparative happiness
of modern civilization. Hence we may conclude that
' Security,' while holding its place as the supreme principle,
conduces indirectly to ' Equality ' ; though Equality, if
accepted as the basis of our social organization, would
destroy both itself and Security, at one and the same time.
CHAPTER XIII.
SACRIFICES OF SECURITY TO SECURITY.
AT first sight this title appears enigmatical ; but the Sacrifice of
enigma is one that it is easy enough to interpret. preserve
An important distinction exists between the ideal per-
fection of security and the most perfect security that can,
in fact, be attained. The one would require that nothing
should ever be taken away from anybody; the other is
gained if nothing be taken beyond what is necessary for
the preservation of the rest.
This sacrifice of a part is not an attack upon security;
it is simply an abstraction, or defalcation, from it. For
an attack is an unforeseen shock, a mischief that cannot
be reckoned with, a disorder arising no one knows how;
it seems like to imperil everything, and so causes general
alarm. But the abstraction or defalcation is a fixed,
necessary deduction expected and regular which pro-
duces, it is true, an evil of the first order, but no danger,
no alarm, no discouragement to industry. The exaction
of a given sum of money will assume one or other of these
characters, according to the circumstances in which it is
levied, and will, as the case may be, give rise either to the
deadening effects of insecurity or to the enlivening effects
of public confidence.
The necessity for such abstractions is manifest. Work- ^f^j^
ing, and safeguarding the workers, are two distinct and, sacrifices,
for a while, apparently incompatible operations; so tttat
those who produce wealth by their labour must needs give
up some portion of it to provide adequate supplies for the
163
164 Principles of the Civil Code. [CHAP.
guardians of the state. Wealth can only be defended at
the expense of wealth.
When society is assailed by enemies, whether internal or
external, it can only maintain itself at the expense of
security; not merely the security of its enemies, but the
security of the very persons it is concerned to protect.
If there be any who do not see that this result is inevitable,
it is because in this matter, as in so many others, they allow
the wants of to-day to eclipse or overshadow those of
to-morrow. Indeed, Government is but a connected series
of such sacrifices ; the best Government being one in which
they are reduced to a minimum. The practical perfection
of security is, as it were, a quantity which constantly
tends to approach ideal perfection without ever being able
to reach it.
' We must not increase the real wants of the people in
order to satisfy imaginary wants of the state. By
imaginary wants I mean such as are created by the passions
and frailties of the ruling caste the attraction of some
unusual enterprise, the pernicious lust of empty glory, or
the sort of mental imbecility which favours fantastic
schemes. It has often happened that restless spirits,
placed by a Prince at the head of affairs, have imagined
that the wants of their own ignoble souls were really wants
of the state.' 1
The author of the Persian Letters has supplied too
many of the chapters on the Spirit of the Laws. What can
we learn from his satirical descriptions ? If Montesquieu
had been good enough to furnish a simple list of the true
wants of the state, we should have better understood what
he meant by imaginary wants.
which in I proceed to give a catalogue of the cases in which the
becomes sacrifice of some portion of security in the matter of
1 Montesquieu's Spirit of the Laws, book xiii., chap, i., ' Of the
Public Revenues.' His Lettres Persanes appeared in 1721, and had a
very large sale. (C. M. A.)
xiii.] Sacrifices of Security to Security. 165
property becomes necessary in order to secure the bulk of
the property:
1. General wants of the state for defence against external
enemies.
2. General wants of the state for defence against criminals
or internal enemies.
3. General wants of the state to provide against physical
calamities.
4. Penalties imposed on offenders either by way of
punishment, or by way of compensation to injured parties.
5. Encroachments on the property of individuals to
provide for the combating of the evils aforesaid, by means of
powers exercised through Courts of Justice, the Police, and
the Soldiery.
6. Limitations of a man's rights of property, or of the use
which an owner may make of his own goods, imposed to
prevent him from inflicting injury on himself or others.
We possess a general right of property in anything ^ i
when we can apply it to any use we choose, except certain right O f
uses forbidden on special grounds. These grounds may
be referred to three heads: (a) Private detriment; when a
particular use would be injurious to some other person,
either in his fortune or otherwise. Sic utere tuo ut alium
non Icedas : sic utere tuo ut alienum non Icedas. (/?) Public
detriment; such as may result to the community in general.
Sic utere tuo ut rempublicam non Icedas. (y) Detriment to
the individual himself. Sic utere tuo ut temetipsum non
Icedas.
This sword is mine in full property ; but, plenary as that
property may be so far as a thousand uses are concerned,
I may not use it to wound my neighbour or to slash his
vestment; nor may I brandish it as a token of rebellion
against the Government. If I am a minor or a maniac,
it may be taken from me lest I should injure myself. An
absolute and unlimited right of property over any par-
ticular object would import the right of committing almost
166 Principles of the Civil Code.
any crime whatsoever. If I had such a right over the stick
which I have just cut, I might employ it as a bludgeon to
trounce the passers-by, or I might convert it into a sceptre
as an emblem of royalty, or into an idol, and so give offence
to those who profess the national religion.
In every one of the cases contained in the catalogue of
sacrifices necessary for the security of property, the
necessity is too palpable to require any proof. But it
must be noted that similar reservations apply equally to
other branches of security. For example, it is not possible
to maintain the rights of person and of honour otherwise
than by penal laws ; and penal laws can rarely be enforced
except at the expense of person or of honour.
CHAPTER XIV.
OF SOME CASES OPEN TO DISCUSSION.
OUGHT we to reckon among the wants of the state for
which provision should be made, by forced contributions,
the care of the poor, public worship, or the cultivation
of science and art ?
i. Of Indigence.
Even when social prosperity is at its highest point, the
great mass of citizens will have no source of livelihood the P or -
independent of their daily toil, so that they will always
be on the brink of poverty ; that is to say, they will always
be liable to fall into that abyss, through some accident,
some upheaval of trade, or some natural calamity, especi-
ally sickness. 1 During the period of infancy there is, as JjJjJJlj^ ,
yet, no possibility of supplying the necessaries of life for
oneself; while in the decay of old age it again becomes
impossible to subsist without the support of others. The
1 In 1796 Pitt had introduced a measure which comprised a scheme for
supplementing wages, by affording relief to every man who could not
earn ' the full rate or wages usually given in his parish ' the ' Under-
Ability or Supplemental Wages Clause,' as Bentham called it. The
same Bill contained a clause for providing money to paupers to enable
the purchase of a cow, for the constant maintenance of which, says
Bentham, ' about three, acres of land is looked upon as necessary.'
Bentham denounced both these projects the one as ' equalization,'
the other as ' sentimentalism ' ; both as unfair and impracticable. The
Bill also proposed to create a sort of Old Age Pension scheme embodying
the provision of ' annuities humanely destined to diffuse a gleam of com-
fort over the evening of life.' According to Bentham, these were ' plans
for throwing the parish upon the parish.' His criticisms were submitted
in manuscript to the promoter of the Bill, but were not published until
1838. (C. M. A.)
167
168 Principles of the Civil Code. [CHAP.
two extremes of life are thus alike, in the matter of frailty
and helplessness. It is true that natural instinct, humanity,
and shame, conspire with the laws to assure to children and
old folk the care and protection of their relatives, yet such
aid is very precarious, and those who bestow it may soon
be reduced to wanting help themselves. A large household,
plentifully supplied by the toil of the two parents, may at
any moment lose the half of its resources by the death of one
parent, and then lose the whole by the death of the survivor.
The decay of life finds provision even less adequate
than that of childhood. Love which descends is stronger
than love which ascends: gratitude has not the force of
instinct : hope centres round the frail beings upon whom life
is dawning, but has no promise for men in the evening of
their days. But suppose as is, happily, often the case
suppose every possible care and comfort bestowed upon
an aged person; the idea of assuming the role of recipient,
instead of that of giver, will always impart a tinge of
bitterness to the benefits received, especially at that period
of decay when a certain morbid sensibility of mind seems
to render painful a change which should really cause the
old folk little concern.
ictionwiH ^is as P ect f social life is, perhaps, the saddest of all.
lead to We picture to ourselves the long train of evils which, by
destitution. , , , . J
slow degrees, lead to destitution, and then to death in
its most terrible forms. Through forces which never cease
to work, mere inaction would, in itself, cause the lot of
every mortal to gravitate towards this centre. If we would
not be dragged into the abyss, there must be constant
unremitting efforts to rise and escape from it; for we see,
on all sides, the most diligent and worthy of men, now
slipping slowly adown some deadly slope, now plunged
headlong into the abyss by inevitable disaster.
md^vofun Apart from the operation of law, there are only two ways
iary con- ^ of combating these evils viz., savings and voluntary con-
tributions. If these two expedients proved, at all times,
xiv.] Of Indigence : Savings. 169
adequate, we ought certainly to refrain from attempting
to succour the poor by means of law. A law which offers
to poverty aid independent of industry is, so to speak, a
law directed against industry itself, or, at least, against
frugality. The motive of labour and economy is present
necessity, coupled with the fear of future want. A law
which should take away this necessity and this fear would
be an encouragement to waste and idleness. Such are
the considerations which, reasonably enough, are urged,
in reproach, against the greater number of institutions for
the relief of the poor.
But a very slight examination will serve to establish the
insufficiency of these two expedients, acting independently
of law.
So far as ' savings ' are concerned, if, in the case of a very '
large class, the greatest efforts of industry fail to afford t
daily maintenance, still less will they permit of any laying- destitution.
by for the future. Another class may just be able to
meet the daily charges out of the wages of each day's toil;
but there is nothing to put aside, to be used in the purchase
of necessaries at some future time. There only remains the
third class, who are in a position to make some provision
for future needs, by economizing during the years of toil so
as to supply themselves when no longer able to work.
It is only in connection with this third class that a man's" J poverty
poverty can ever be reckoned any sort of crime. ' Economy, ' e
it may be urged, ' is a duty imposed upon them ; and if
they have neglected it, so much the worse for them.
Although poverty and death may await them, they can
blame no one but themselves. Moreover, their sad fate
will not prove an unmixed evil ; for it will serve as a warn-
ing to spendthrifts. It has all come about in obedience to
a law ordained by nature a law which is not, like those
of men, liable to prove uncertain or unjust in its operation.
Punishment falls only on the guilty, and is proportioned
exactly to their faults.'
170 Principles of the Civil Code. [CHAP.
a 8 cnme r ? ^* s stern l an g ua ge would be justifiable enough if the
contd. object of the law were vengeance. But the Principle of
Utility condemns this same vengeance as a vile motive
founded upon antipathy. Consider, too, what would be the
fruit of these evils of this destitution, of this poverty,
which you, in your wrath, regard as the fitting punish-
ment of prodigality. Are you quite sure that the sacrifice
of these victims will, by force of example, obviate the
commission of such faults as led to their misfortunes ?
To hold this view would display a very imperfect know-
ledge of the human heart.
The distress, the death, of a certain number of spend-
thrifts if that term may properly be applied to unhappy
wretches who cannot deny themselves the miserable petty
pleasures of their condition, and know nothing of the
difficult art of struggling against temptations of the moment
by conscious mental effort their distress, I say, nay, even
their death, would have very little influence, as a moral
lesson, upon the labouring classes. Indeed, many details of
the sad spectacle would be hidden through shame, so that
it cannot be likened to the ordinary punishments of a
malefactor, which attract public attention and suffer
none to miss their origin and significance.
Again, would not those who stood most in need of the
lesson be ready to place on the event a more convenient
interpretation ? Would they always grasp the supposed
connection between imprudence as cause and suffering
as effect ? Might they not attribute the catastrophe to
accidents which were not, and could not have been, fore-
seen ? Instead of saying : ' Look at this man who has
wrought his own ruin ! his destitute condition ought to
serve as a warning to me to work strenuously and to
practise a rigid economy ' would they not often say, and
with much show of reason : ' Here is an unfortunate fellow
who has given himself a vast deal of trouble, and all to no
purpose. His case affords striking evidence of the vanity
xiv.] Of Indigence : Savings. 171
of human prudence '? This would, doubtless, be bad
reasoning; but should we punish thus rigorously a mere
error in logic, the mere lack of reflective capacity; and
that, too, in a class of men more often called upon to use
their hands than their brains ? Besides, what are we to
think of a punishment designed to overcome the sovereign
power of most imperious motives operating at one end of
life (that is to say, in youth), when it is delayed in its
execution until the other end is reached (that is to say,
until old age) ? How greatly would this delay destroy the
force of the supposed lesson ! How slight is the analogy
between an old man and a young one ! The one will not
serve as a pattern, nor act as a warning, to the other.
In youth, the ideas of present good and imminent evil,
filling the whole sphere of reflection, exclude all ideas
of more distant good or evil. If you would act upon a
young man, place the motive hard by; show him, for
example, the prospect of a marriage, or some other pleasure
to be presently enjoyed. But a punishment, fixed for a
time so distant as to be beyond his mental horizon, is a
punishment appointed to no purpose. Our concern is to
influence men who think very little; whereas, if their
lesson is to be taught by a picture of suffering in the
remote future, they must needs be men who think a great
deal. What, then, I would ask, is the use of a political
expedient, designed to affect the class least prone to fore-
thought, if it is of a nature to be efficacious only when
applied to wise and prudent men ?
Recapitulation. The resource of ' savings ' will not
suffice. First, this is obvious in the case of those who do
not earn a living; and, secondly, equally so in the case of
those who earn a bare subsistence. As to the third class,
which embraces all those not comprised in the first two, the
resource of ' savings ' is not, in the nature of things, inade-
quate ; but it becomes so, to a considerable extent, by reason
of inherent defects in the development of human foresight.
172
Principles of the Civil Code.
[CHAP.
Voluntary
contribu-
tions.'
Let us proceed to the other resource ' voluntary con-
tributions.' That, too, has many imperfections.
1. Its uncertainty. It will undergo daily variations,
dependent on the fortune and the generosity of the con-
tributors. If the sum contributed prove insufficient, there
is a crisis marked by misery and death. Should it chance
to provide more than enough, it places a premium on idle-
ness and prodigality.
2. The inequality of the burden. Any such additional
provision for the wants of the poor is made at the expense
of the most humane and virtuous members of society,
often out of all proportion to their means; while the
niggards load all needy folk with obloquy, by way of cover-
ing their own refusal to assist with a varnish of system and
reason. Such an arrangement is, therefore, a concession
to selfishness, and a penalty imposed on humanity, the
chief est of all virtues.
I say a penalty, for, although such contributions are
known as ' voluntary,' what is the source from which they
spring ? If it be not some fear of a religious or political
origin, it is a tender but mournful sympathy, which
directs these generous actions. It is not that we hope,
at this price, to purchase a positive pleasure ; yet we seek,
by the sacrifice, to free ourselves from the distressful pains
of pity. Indeed, it has been noticed in Scotland, 1 where
destitution can look for nothing but this miserable form of
relief, that the poor derive the greatest amount of succour
from the classes which themselves verge upon poverty.
3. The difficulties of distribution. If these contributions
are granted haphazard, as in the case of alms upon a high-
way, or if they are made direct by the donor, as occasion
offers, without inquiry or the employment of an inter-
mediary, the uncertainty as to the sufficiency of the
grants is aggravated by a further uncertainty. In a vast
number of cases, how will it be possible to determine the
1 Cf. post, vol. ii., p. 212. (C. M. A.)
xiv.] Of Indigence : Voluntary Contributions. 173
degree of need or the merits of the applicant ? May not
the poor widow's mite go to swell the purse of some spend-
thrift wanton ? Perhaps, as in the case of Sidney, many
a generous heart will be found to push back from his own
parched lips the life-giving cup, and cry : ' I can wait longer ;
first serve yon poor fellow, who hath greater need than I.'
Everybody must be aware that, on the distribution of
charity haphazard, the largest share is not secured by
modest virtue or by real poverty, which, indeed, is often
silent and ashamed. Tactics and petty scheming are as
necessary for success on this obscure stage as in the great
world of fashion. The man who knows how to importune,
to fawn, to lie, to join impudence with knavery, as occasion
may require, and to give variety to his frauds, will achieve
a success such as the virtuous poor, devoid of artifice and
clinging to honour in the midst of poverty, will never attain.
' Les vrais talens se taisent et s'enfuient,
Decourages des affronts qu'ils essuient.
Les faux talens sont hardis, effrontes,
Sou pies, adroits et jamais rebutes.' 1
What Voltaire here says of talents may be applied to
mendicity. In the distribution of voluntary contribu-
tions, the share of the poor fellow who chances to be
decorous and virtuous will seldom equal that of the
truculent or cringing beggar.
Should these contributions be deposited in a common common
Fund for
fund to be afterwards distributed by nominated persons ? Relief of
This method is greatly to be preferred, since it allows of
a regular examination of the claimants and their needs,
and tends to give a due proportion to the relief afforded.
But it has also a tendency to diminish liberality; for the
gift which must, perforce, pass through the hands of
others in such a way that one cannot follow its applica-
1 ' True merit holds its peace and shrinks aside,
Browbeaten by the unworthy spurns it meets;
The counterfeit is bold and unabashed,
Supple yet cunning, heedless of rebuffs.'
(Trans, by ROSE.)
174 Principles of the Civil Code. [CHAP.
tion nor enjoy, directly, the pleasure or the kudos attach-
ing to it, has about it a certain abstract quality which
serves to chill sentiment. What I give personally I give
at the moment when my heart is full and the cry of some
poor creature is wringing in my ears, when there is no one
but me at hand to succour him in his distress. Anything I
may subscribe to a general fund will have a destination not
directly determined by my wishes: this small coin, which
means much to me and to my family, will be but a drop
in the ocean of contributions and of the wants to be sup-
plied: surely it is for the rich to succour the poor ! It is
in this wise that many people reason, and it is on this
account that a collection is more successful when subscribed
for a specified class of persons than for an indefinite multi-
tude, such as the whole mass of the poor. Is is, however,
for this mass, as a body, that permanent aid must be
assured.
In view of these reflections, we may, as it seems to me,
lay it down as a general principle of legislation that a
regular system of contribution should be established for
the relief of the poor ; it being clearly understood that
those only are to be regarded as poor who lack the neces-
saries of life. From this definition it follows that the title
of the poor man, as such, is stronger than the title of the
owner of superfluous wealth; inasmuch as the penalty of
death, which in the end would fall upon the starving poor,
will always be a more serious evil than the penalty of
disappointed expectation, which falls upon the rich man
when a limited portion of his superfluous wealth is taken
from him. 1
As to the scale of legal that is to say, compulsory con-
tribution, it should not be in excess of simple necessaries:
to go beyond this would be to tax industry for the benefit
1 If this deduction were put on a regular footing, each owner knowing
beforehand what he would have to give, the pain of disappointment
would disappear, and give place to another slightly different in its nature
and less in degree (Dumont).
xiv.] Of the Charges incidental to Public Worship. 175
of sloth. Institutions where something more than neces-
saries is supplied are to be approved only when supported
at the charges of private individuals, who are in a position
to discriminate in the administration of relief and apply it
to prescribed classes of persons.
The details of the machinery for fixing this contribution
and regulating the distribution belong to political economy ;
as also the investigation of means for encouraging, among
the lower orders, a spirit of saving and foresight. We
have, on this very interesting subject, some instructive
memoirs, but no treatise which covers the whole question. 1
Such a book should begin with the theory of poverty
that is, with a classification of the poor and of the causes
of destitution so as to lead up to suggestions for preventive
and remedial measures.
2. Of the Charges incidental to Public Worship.
If we are to treat ministers of religion as supporting one
of the sanctions of morality (the religious sanction), the j
cost of their maintenance ought to be referred to the same public
funds.
branch of administration as courts of justice and the police
that is to say, to that of internal security. The clergy
are a body of moral teachers and overseers, who form, so
to speak, the vanguard of the law. They have no authority
to punish crime ; but they fight against the faults in which
crime originates, and, by encouraging obedience and the
decencies of life, make rarer the occasions when it is
necessary to invoke the aid of the law. If they were
charged with all the duties that might reasonably be
assigned to them, such as the education of the lower orders,
the promulgation of the laws, and the keeping of certain
1 Mr. Bentham published a work on the subject after I had prepared
the * Principles of the Civil Code.' It has been translated into French,
and was published by ' Citoyen ' Duquesnoi, an. X. (Dumont). The title
was Esquisse d'un Ouvrage en Faveur des Pauvres ; and see the Letter
addressed by Bentham, in 1799, to Arthur Young, editor of the Annals
of Agriculture (Bowring, vol. viii., pp. 361, 369). (C. M. A.)
176 Principles of the Civil Code. [CHAP.
public registers, the utility of their ministrations would be
still more manifest. The greater the number of real
services they rendered to the state, the less often would
they be afflicted by the maladies of dogmatism and dis-
putation, which spring from a desire for distinction and
from lack of useful occupations. We must needs direct
their activities and ambition towards beneficial objects,
if we would prevent them from becoming mischievous.
If these relations were established, even those who will
not allow that the religious sanction really rests on sacred
verities could not complain should they be called upon to
contribute towards the cost of maintenance, as they would
then share in certain manifest advantages.
But if there should chance to be great diversity in creeds
and forms of worship, and the legislator be not trammelled
by an establishment already in existence or by other con-
siderations peculiar to the particular country, it will be
more conformable with liberty and equality to apply the
contributions of each religious community to the support
of its own church. It is true that, under this arrange-
ment, we might have cause to fear the display of too much
zeal in making proselytes ; but it is also very probable that
the competing efforts of the clergy would excite a whole-
some spirit of emulation, and would set up, by the balance
of influence, a sort of equilibrium in a sea of conflicting
opinion, which is subject at times to very dangerous
storms.
Compelling \y e may suggest a singularly unhappy situation: that
religion of a people to whom the legislator forbids the public
not that of exercise of their own religion, while at the same time
the major- . . . , ,. . ,. . , . ,
jty. imposing on them an obligation to support a religion which
they regard as hostile to their own. This would be a
twofold violation of security. We should find that there
had been aroused among this people a feeling of undying
hate against the government, an ardent longing for some
change, fierce courage, and profound secrecy. Deprived
xiv.] The Cultivation of the Arts and Sciences. 177
of all the advantages of public worship, of the guidance of
priests whom they could openly avow, the people would be
in the hands of ignorant and fanatical leaders; and, as
their religion could only be maintained and its rites prac-
tised by the aid of plots and conspiracies, the binding force
of an oath, instead of being the safeguard of the state,
would become a source of terror. So far from binding
citizens to the government, the obligation of the oath would
league them against it ; and, thus, the people would become
as formidable through their virtues as through their vices.
3. The Cultivation of the Arts and Sciences.
I shall not speak, in this connection, of what should be Charging
* ^ support of
done for the ' useful arts and sciences,' as they are called: flj 16 arte '
no one denies that objects of public utility ought to be pubm?
supported by public contributions.
But when we come to deal with the cultivation of fine
arts, the beautifying of a country, the building of lordly
pleasure-houses, the purchase of articles designed to adorn
or amuse in a word, with works of supererogation ought
we to levy forced contributions ? Can we justify the im-
position of taxes for such splendid but superfluous objects ?
I do not wish to put in a plea for the agreeable as against
the useful; 1 nor to suggest that the people should be
pinched to provide galas for courtiers or pensions for
buffoons. But one or two reflections may be offered by
way of apology.
r. The expense which is, or can be, incurred for these
objects is commonly quite trifling, when compared with
the aggregate of contributions for necessary purposes. If
1 Not that there is any real opposition. Everything that gives
pleasure is useful; but, in common parlance, we apply the word ' useful '
exclusively to that which produces utility in the future, while the word
4 agreeable ' is limited to that which has immediate utility or produces
present pleasure. Very many things to which we refuse the epithet
' useful ' have, accordingly, a more definite utility than others to which
it is applied (Dumont).
VOL. i. N
178 Principles of the Civil Code. [CHAP.
it were resolved to restore to each man his quota of this
superfluous expenditure, would it not be impalpable ?
2. This additional contribution being lumped with the
taxes raised for necessary purposes, its levy is not perceived.
It excites no separate sensation such as could give rise to
a definite remonstrance; and, as the evil of the first order
is limited by the trifling amount of the charge, it could not
suffice to produce an evil of the second order (cf. ante, p. 66).
3. The splendour of artistic display may prove of very
palpable utility by attracting a swarm of foreigners, who
will spend their money in the country. All nations, by
degrees, become subject to the one which sways the
sceptre of fashion. A country rich in amusements may be
likened to a great theatre supported, in some measure, at
the expense of a throng of curious spectators, drawn from
all parts of the globe.
Pre-emin- Moreover, this pre-eminence in objects of taste, litera-
may pro- ture, and amusement, may chance to gain for a country the
CUTC 2OO(1~
will of goodwill of other nations. Athens, which men called the
nations. Eye of Greece, was saved, more than once, by a sentiment
of respect, inspired by the superiority of its civilization. 1
The halo of glory which encircled that land of the fine arts
served for a long time to hide its infirmities ; and all that
did not pertain to barbarism felt concern for the preserva-
tion of a famous city, the centre of refinement and of
intellectual enjoyment.
Butessen- But, after all, it must be allowed that this attractive
be pro- object may, without danger, be left to the single resource
yided for
instance. 1 c f- Milton's sonnet, ' When the Assault was intended to the City ' :
written in 1642.
' Lift not thy spear against the Muses' bower:
The great Emathian conqueror bid spare
The house of Pindarus, when temple and tower
Went to the ground: and the repeated air
Of ead Electra's poet had the power
To save the Athenian walls from ruin bare.'
See, however, Plutarch's account of the taking of Athens by Lysander,
(C. M. A.)
xiv.] The Cultivation of the Arts and Sciences. 179
of voluntary contributions. At any rate, before any
charges are incurred for purposes of mere ornament, we
must see to it that nothing essential has been neglected. It
will be time enough to trouble about painters, players, and
architects, when the public trust has been discharged;
when private persons have been compensated for losses
occasioned by war, crime, and physical disasters; when
due provision has been made for the relief of the poor.
Until these objects have been attained, to incur any such
expenditure would be to accord to splendid accessories an
undue preference over necessary undertakings. It would,
too, be a step greatly at variance with the interests of the
Sovereign ; for it would certainly call forth reproaches of a
most extravagant character, seeing that it needs no wit
to indulge in them nothing but fierce anger and the in-
clination to do so. We all know to what a pitch such
tirades have been carried in our own day, in writings of
coarse vigour, designed to inflame the people against the
government of kings.
Yet, although everything conspires to involve monarchs
in this particular mistake, have they ever, so far as the Republics,
luxury of amusements is concerned, fallen into such
excesses as many republics ? At a period of direst peril,
scouting alike the eloquence of Demosthenes and the
threats of Philip, Athens was engrossed by a want more
pressing than her own defence by an object more vital
than the maintenance of her liberty. It was accounted
the gravest betrayal of trust to divert, even in the interests
of the State, funds destined for the support of the theatre.
And at Rome, was not this passion for spectacular display
carried almost to the point of madness ? In that city
they must needs lavish the treasures of the world and the
spoils of subject nations in hope to win the suffrages of
the Sovereign People. 1 Terror spread through the land
1 Cf. the famous phrase of Juvenal, ' Duas tantuin res anxius optat,
panem et Circenses ' (Sat. x. 80). Thus, e.g., on the occasion of the dedi-
180 Principles of the Civil Code.
when it was noised abroad that some proconsul was to
make a show at Rome; a single hour of splendour in the
Circus plunged into despair a hundred thousand dwellers
in the provinces.
cation of the great amphitheatre (80 A.D.), Titus exhibited shows which
lasted for a hundred days (Bury's History of the Roman Empire, pp.
382, 613). There were combats of gladiators, and five thousand animals
were slain ; the arena was then filled with water, and there was a repre-
sentation of the sea-fight between the- Corinthians and the Corcyraeans
recorded by Thucydides. At the end of the exhibitions, adds Professor
Bury, tickets for a distribution of eatables were thrown to the populace.
(C. M. A.)
CHAPTER XV.
SOME INSTANCES OF ATTACKS UPON SECURITY.
IT will not be unprofitable to give some examples of
what I call ' attacks upon security.' The principle itself
will in this way be exhibited in a clearer light ; while the
examples will serve to show that what is unjust in morals
can in no wise be harmless in politics. Nothing is more
common than to sanction under one name that which
would be hateful under another.
And at this point I cannot refrain from noting the
bad effects of one branch of classical education. From our A *ts a <S n '
earliest youth we are accustomed to find, in the history of
the Roman people, public acts of gross injustice, atrocious the^ Greeks
in themselves, invariably concealed under specious names,
and always accompanied by a pompous eulogy on Roman
virtues. The abolition of debts, for example, plays a
conspicuous part in the early times of the Republic. The
retirement of the people to Mount Aventine, when the
enemy was at the gates of the city, forced the Senate to
wipe out the rights and claims of creditors as with a sponge. 1
The historian seeks to enlist our sympathy with fraudulent
debtors who discharged their debts by bankruptcy, and
does not fail to expose to odium those who were despoiled
by this act of violence. Now, what end was attained by
this wrong ? Usury, which had served as a pretext for
the spoliation, would only become more excessive on the
morrow of the catastrophe; for the exorbitant rate of
1 During one of the wars with the Volscians the plebeians refused to
fight against the enemy until the Consul Servilius had freed the debtors
from prison and promised them his protection: cf. Smith's History of the
Ancient World (4th edition), vol. ii., p. 231. (C. M. A.)
181
1 82 Principles of the Civil Code. [CHAP.
interest was nothing but the price paid to cover the risks
attendant upon precarious engagements. Again, the estab-
lishment of Roman colonies has been paraded as an achieve-
ment displaying profound policy: it invariably consisted
in stripping a number of the lawful occupiers of the con-
quered country in order to grant settlements to other
persons as marks of favour or reward. This abuse of power,
so cruel in its immediate operation, was not less calamitous
in its consequences. The Romans were, indeed, wont to
violate every right of property, and never knew where to
stop in their headlong course. Hence arose the ceaseless
cry for a fresh division of the lands, which served as an
unquenchable firebrand in the hands of the seditious, and
contributed, under the Triumvirs, to an appalling system of
general confiscation. The history of the Grecian republics
is filled with facts of the same kind, always presented in
such plausible fashion as to lead shallow minds astray.
How reasoning has been abused in relation to the division
of lands effected by Lycurgus ! a division designed to
serve as a basis for his community of warriors, in which,
with outrageous injustice, all the rights were on one side
and all the servitude on the other. 1
similar These ' attacks upon security,' which have found so
injustice many officious persons to uphold them where the Greeks
despots. era and the Romans were concerned, have not met with the
like indulgence when perpetrated by Oriental potentates.
There is nothing attractive about the despotism of a single
individual, because it is so manifestly personal to himself ;
there being a million chances of suffering from it to one of
getting any benefit out of it. But despotism when exer-
cised by the multitude deceives simple folk by a false
1 Of all the institutions of Lycurgus, this division of lands met with
the least resistance. One can only explain this by supposing that,
during a long period of anarchy, property had almost lost its value.
In that case, even the rich might profit, for ten acres secure are worth
more than a thousand insecure. (Dumont). Almost every Spartan in-
stitution was ascribed to Lycurgus. He is supposed to have lived
about 800 B.C., but probably effected no such division. (C. M. A.)
xv.] Some Instances of Attacks upon Security. 183
image of the public weal : they rank themselves, in imagina-
tion, among the great number who are playing the tyrant,
instead of supposing themselves among the small number
who suffer and give way. Leaving, then, the sultans and
viziers in peace, we may rest assured that their acts of in-
justice will not be invested by historians with a false lustre :
their reputation will serve as an antidote to their example.
For the same reason we may refrain from treating such
attacks upon security as national bankruptcies.
But we should note, in passing, a remarkable effect of the Security of
Govern-
faithful adherence to engagements an effect which extends njent loans
even to the authority of the Sovereign himself. In Eng- and F ranee
land, since the Revolution, the engagements of the State
have always been sacredly observed ; so that private persons
who deal with the Government have never sought any
otner security than their mortgage on the public revenues,
while the collection of the taxes has, throughout, remained in
the hands of the Crown. In France, under the monarchy,
breaches of public faith were of such frequent occurrence
that, from an early date, those who made advances to the
Government were in the habit of arrogating to themselves
the right of collecting the taxes, and of paying themselves
with their own hands. But this intervention cost the
people dear, for the lender had nothing to gain by con-
sulting their interests; and it proved still more disastrous
to the monarch, for it alienated from him the affection of
his people. When, in our own days (1787), the announce-
ment of a deficit caused consternation throughout the
whole body of state creditors, that class, which, in England,
are so concerned to maintain a stable form of government,
showed themselves, in France, eager for revolution. Each
member of the class expected to find security for his loan
by taking away from the Sovereign the administration of
finance and placing it in the hands of a national council.
Everybody knows how far the event corresponded with
these expectations, But it is none the less interesting to
184 Principles of the Civil Code. [CHAP.
note that the downfall of the French monarchy, which
seemed impregnable, was owing, in the first instance, to the
distrust occasioned by repeated violations of public faith.
Among the manifold ' attacks upon security ' which
arise from ignorance, inadvertence, or mistaken reasoning,
we will content ourselves with directing attention to a few :
i . We may include in this category all taxes of which the
. ., ... ,
incidence is unfair ; as, for example, disproportioned im-
P osts > which spare the rich at the expense of the poor.
The evil presses all the more hardly from a feeling of in-
justice at being constrained to pay a larger sum than would
be demanded if everybody concerned paid in due propor-
tion. ' Statute Labour ' is the height of inequality, since
it falls entirely upon those who have no other patrimony
than their hands. 1
Or take imposts charged upon property which is in-
determinate or uncertain in its character; upon persons,
possibly, who have no money wherewithal to pay. But the
mischief then assumes another shape; for, although such
persons escape taxation by reason of their poverty, they
find themselves subject to still graver evils. In place of
the inconvenience of a levy, they endure the pangs of
privation. We thus see how ill-judged an impost is a
' poll-tax ' : the possession of a head does not proclaim the
possession of property.
So, too, imposts which fetter industry, such as the creation
of monopolies or close privileged corporations. The true
way of looking at these taxes is to consider, not what they
yield, but rather what they prevent being acquired.
Again, imposts on the necessaries of life. No man can
1 See, e.g., the statute 5 Eliz., c. 4, repealed in 1875. All persons
fit for labour were compelled to serve by the day in the time of hay or
corn harvest; from the middle of March to the middle of September
labourers must work from 5 a.m. until 7 or 8 p.m., being allowed two
hours for breakfast and dinner, and half an hour for sleeping dxiring
the three hot months; during the rest of the year the work lasted from
twilight to twilight (except one and a half hours for breakfast and
dinner) on pain of forfeiting one penny for every hour absent. (C. M. A. )
xv.] Some Instances of Attacks upon Security. 185
tell what hardships, what maladies, may result nay, even
death itself. These are sufferings really caused by the
folly of the Government, but often accounted as natural
misfortunes which could not have been averted.
Imposts upon the sale of property alienated during life.
It is commonly want which brings about such sales; and
the Exchequer, by intervening at this distressful season,
levies an extraordinary tax on personal misfortune.
Imposts upon public sales, or on goods sold by auction.
Here the distress is very great and plain to be seen, while
the fiscal injustice is also manifest.
And, lastly, taxes upon law proceedings. 1 These taxes
embrace every species of attack upon security, seeing that
they amount to a refusal of the protection of the law to all
those who cannot afford to pay for it. They accordingly
hold out to crime a hope of impunity ; for it is only a matter
of choosing, as the man to be wronged, one who cannot find
the funds necessary for a prosecution, or, at any rate, is
not in a position to incur the risks attendant on the insti-
tution of process.
2. Forced Raising of the Value of Money. Another attack JJgJJjj of
upon security. This is a bankruptcy, since the state does
not pay all that it owes; and a fraudulent bankruptcy to
boot, since there is a pretence of payment. It is, moreover,
a silly fraud, because it deceives nobody. So far as it goes,
the device amounts to an abolition of debts ; for the pecula-
tion which the state practises on its creditors, it authorizes
each of them to practise in turn upon his own creditors, and
this without any gain to the public treasury. And when
the tale of wrongs is complete ! The operation having
shaken public confidence, ruined honest citizens, enriched
1 In 1795 Bentham had published an essay, printed in 1793, entitled
' A Protest against Law Taxes, showing the peculiar mischievousness of
all such impositions as add to the expense of appeal to Justice ' (Bowring,
ii- 573-583). Dumont inserted an abstract in an Appendix to his
Traite des Preuves Judiciaires (1823). Merely putting in an answer
to a bill in equity is said to have cost, in one case, more than 800.
(C. M. A.)
i86
Principles of the Civil Code.
[CHAP.
rogues, deranged commerce, dislocated the scheme of taxa-
tion,, and entailed a thousand personal misfortunes, does
not leave the smallest advantage to the government which
is dishonoured by it. Expenditure and income return to
the same relative proportions as before.
3. Forced Reduction of the Rate of Interest. From the
point of view of political economy, to reduce the rate of
interest by law is to make an attack upon wealth ; because
such an enactment tends to check the introduction of
foreign capital, and represses, in some cases, new branches
of commerce aye, indeed, even old-established branches
should the legal interest prove insufficient to cover the risks
incurred by those who provide the capital. 1 But, from the
point of view of ' security,' which is our more immediate
concern, it amounts to taking away from the lenders to give
to the borrowers. If we suppose the rate of interest reduced
by one-fifth, the result to the lenders is the same as if they
were stripped by thieves, every year, of a fifth part of their
income. Now, if it seems good to the Legislature to take
away from a particular class of citizens a fifth part of their
revenue, why stop there ? Why not another fifth and
still another ? If the first reduction answered its purpose,
the further reduction will do so in like measure ; and if the
device be good in the one case, why should it be bad in the
other ? Wherever we stop, we should have a reason for
stopping ; but this reason, which debars us from taking the
second step, ought to have been enough to prevent us from
taking the first. Such an operation is on the same footing as
1 Bentham's Defence of Usury, showing the Impolicy of the Present
Legal Restraints on the Terms of Pecuniary Bargains had been published
early in 1788. J. S. Mill has described it as ' Bentham's triumphant
onslaught, which may still be referred to as the best extant writing on
the subject' (Political Economy, book v., chap, x., 2). The Usury
Laws were, however, not abolished till 1 8 54. But the Courts of Equity
have long given relief against harsh and unconscionable bargains with
expectant heirs; and, under the Money Lenders Act, 1900, if the interest
or charges are excessive, or the transaction is such that a Court of Equity
would give relief, the Court may reopen the transaction and relieve the
debtor from payment of any sum in excess of that adjudged to be fairly
due, having regard to all the circumstances of the case. (C. M. A.)
Some Instances of Attacks upon Security. 187
a decree which should reduce the rent under leases of farm
lands, upon the pretext that the landowners are useless
consumers while the farmers are productive workers. If
you shatter the principle of security for one class of citizens,
you shatter it for all : the bundle of concord is its emblem
' United we stand, divided we fall.'
4. General Confiscations. To this head I refer the vexa-
tious oppression of a sect, a party, or a class of men, under tions *
the shadowy pretext of some political offence where it is
pretended that the confiscation is imposed as a punishment,
although, in reality, the offence was invented to bring
about the confiscation. History presents many examples
of such depredations. The Jews have often been their
victims; for the Jews were too rich not to be constantly
guilty of such feigned offences ! Financiers and farmers of
the revenue have, in a similar way, been subjected to what
were called Chambres Ar denies .^ So long as the succession
to the throne remains unsettled, everybody becomes liable,
on the death of the king, to this form of persecution ; and
the spoils, snatched from the beaten party, form a hoard
for distribution among the followers of the successor de
facto. In a republic torn by factions, one half of the nation
become rebels in the eyes of the other half ; and, if a course
of confiscations be introduced, the parties will, in turn,
devour each other, as was the case in Rome.
These crimes on the part of those who are in a position to
apply force, and, above all, the crimes of the popular party
in a democracy, have never lacked apologists. ' The
greater part of these large fortunes,' it is urged, ' have been
founded on injustice ; and one may surely restore to the
public what has been stolen from them.' But this sort of
reasoning offers a wide scope to tyranny : it would, indeed,
allow men to presume crime, instead of proving it. If such
1 Chambres Ardentes were formerly tribunals, which imposed punish-
ment by fire for heresy and poisoning; but in later times the term was
applied to the Chambre de Justice, which dealt with alleged acts of
public malversation. (C. M. A.)
188 Principles of the Civil Code. [CHAP.
logic were to prevail, it would be impossible for a rich man
ever- to be free from sin. But, even if this were so, ought a
grave penalty like confiscation to be inflicted wholesale,
without inquiry ,without particulars, without proof ? Such
conduct would be deemed heinous if directed against a
single person how can it become lawful by being directed
against an entire order of citizens ? Must we, perforce,
shut our ears to complaints of wrongdoing, because they
issue from a crowd of unhappy beings whose cries are con-
founded in their common shipwreck ? To despoil the great
landowners because their ancestors had, in some instances,
acquired wealth by unjust means, is like bombarding a city
because certain thieves are supposed to lie there in hiding.
Dissolution c Dissolution of Convents and Monastic Orders. The
of monas-
teries. decree of abolition was signed by Reason herself, but its
execution should not have been handed over to Greed and
Prejudice. 1 It would have been enough to debar the
societies from admitting new members; for, in this way,
they would have gradually disappeared, without inflicting
any hardship on individuals. The revenues as they fell
in might, then, have been applied to some useful object ; and
philosophy would have approved a proceeding admirable
in principle and merciful in execution. But this is not the
way Cupidity goes to work : the process is far too slow.
It would almost seem that sovereigns, when they came to
dissolve such societies, had wished to punish the members
as though for some wrongs received at their hands. Instead
of looking upon them as bereaved and disabled persons,
who deserved all the compassion of the legislator, the
authorities have treated them as enemies, who ought to
think themselves quite fortunate, although reduced from
opulence to a state of bare subsistence.
oToffices ion ^* Suppression of Pensions and Places without indemni-
without lying those in Possession. This attack upon security
l In April, 1790, the French Assembly decreed the confiscation of
all the property of the Church and an immediate sale of it, to the
extent of 400 millions. (C. M. A.)
xv.] Some Instances of Attacks upon Security. 189
deserves verv particular mention, seeing that it is often Abolition
J r of sinecures
applauded as a stroke of excellent administration and contd.
sound economy, instead of being condemned as a palpable
wrong. Envy is never more at ease than when hidden
behind the mask of public welfare; but the general weal,
although requiring that sinecures should be got rid of, does
not demand the ruin of the present holders. The principle
of security ordains that, in every measure of reform, the
indemnity should be complete : the only benefit that may
lawfully be derived is confined to the conversion of perpetual
annuities into life annuities. It will be said that the
peremptory abolition of such offices would be a gain to the
public ; but this is in the nature of a sophism. The sum of
money in question, considered in itself, would, of course, be
a gain if it came from abroad or were acquired in the way
of trade. It is not, however, a gain when taken from the
hands of certain individuals who themselves form part of
the general public. Would a family be the richer if the
father were to take everything from one of his children in
order to make better provision for the others ? And,
indeed, in that case, the wrong done would serve some good
purpose, for the stripping of one son would increase the
heritage of his brothers. But when we come to deal with
the abolition of a public office, the profits of the place are
divided amongst the whole community, while the loss
presses entirely on a single member. The gain, spread
through the multitude, is split into impalpable parts, while
the whole of the loss is felt by him who sustains it. In
the result, then, those who gain are not enriched, and he
who loses is made poor indeed. Instead of the abolition
of a single sinecure, suppose a thousand, ten thousand, a
hundred thousand. The aggregate of disadvantages will
be similarly assessed ; while the spoil taken from thousands
of persons will be divided amongst millions. The public
highways will exhibit to your view unfortunate citizens
whom you have plunged into poverty: you will hardly
igo
Principles of the Civil Code.
[CHAP.
contd.
a sou ^ sens ^^y ri cner f r your cruel reforms. Moans
of grief and cries of despair will resound on every side:
shouts of joy, if any such there be, will not betoken happi-
ness, but the fierce hate which exults in the woes of its
victims. You Ministers of Kings and of the People will
never win the happiness of nations through the misery of
individuals : the altar of the public good no more demands
barbarous sacrifices than does the altar of a loving God.
I cannot even now quit this subject : it appears so essen-
tial, if we would establish the principle of security, to
follow the trail of this error even unto its remotest lair.
Well, how does a man set about to delude himself, or to
delude the people, in a manner involving such grave
injustice ? He has recourse to certain pompous maxims,
mixtures of truth and falsehood, which give to a question,
in itself quite simple, an air of profound political mystery.
* The interest of individuals,' it is said, ' must give way to
the public interest.' But what does this amount to ? Is
not one individual as much a part of the public as another ?
The public interest, which you think fit to personify, is
nothing more than an abstract term; it merely represents
the aggregate of individual interests, and we must needs
take them all into account, instead of treating some as
everything and the others as nothing. If it were a good
thing to sacrifice the property of one individual to augment
the fortunes of others, it would be still better to sacrifice
that of a second, and a third, say up to a hundred or a
thousand, or beyond any assigned limit ; for, whatever may
be the number of those whom you have plundered, you will
always have a like reason for adding one more. In a word,
either the interest of the first must be regarded as sacred,
or the interest of no one of the series can be so regarded.
Now, individual interests are the only real interests.
Take care of the individual; do not vex or injure him, nor
suffer him to be vexed or injured, and you will then have
done enough for the public at large. Can it be credited
xv.] Some Instances of Attacks upon Security. 191
that there are men so absurd as to love posterity better
than the present generation; to prefer the man who does
not exist to the man who does; to afflict the living under
pretence of promoting the happiness of those who are not
yet born, and perhaps may never be ?
On a vast number of occasions, men, though suffering
from the operation of some law, have not dared to complain,
or have found their complaints unheeded, owing to the
vague and erroneous notion that private interest should
yield to public interest. But if it comes to be a question
of generosity, whom does it behove to exercise it ? Is it
better that all should be generous to one, or that one should
be generous to all ? Who is the more selfish he who
wishes to preserve what he has, or he who wishes to carry
off, if need be by force, what belongs to another ? An
injury felt, and an advantage not perceived such is the
outcome of the wonderful schemes whereby individuals are
sacrificed to the public at large.
I shall conclude with an important and far-reaching
observation. The greater the regard paid to the principle
of property, the firmer its hold on the mind of the people.
Slight attacks on this principle prepare the way for more
determined ones. It has taken a long time to reach the
point now attained in civilized societies; but a terrible
example has shown us how readily the principle may be
overthrown, and how easily the savage instinct of pillage
assumes a mastery over the laws. 1 Peoples and govern-
ments are, in this respect, like tamed lions : if they but taste
of blood, their natural ferocity revives.
' Si torrida parvus
Venit in ora cruor, redeunt rabiesque furorque;
Admonitseque tument gustato sanguine fauces;
Fervet et a trepido vix abstinet ira magistro.' 2
1 The reference is, of course, to the French Revolution, which had
just coine to an end. (C. M. A.)
2 Lucan, De Bello Givili, lib. iv., 11. 239-242. (C. M. A.)
CHAPTER XVI.
OF FORCED EXCHANGES.
a e ' XENOPHON tells us that Astyages once asked Cyrus for
' an account of his last lesson. J "It was, ' ' said Cyrus, * ' in this
wise : A big boy in our school, having a little coat, gave it to
a comrade of smaller stature, and took away his comrade's
coat, which was larger. The master of the school, accord-
ingly, referred the dispute that arose to my arbitrament ;
and I awarded that things should be left as they were, as
both parties seemed better accommodated than before.
Whereupon the master pointed out to me that I had done
ill ; for I had stopped short at considering the convenience of
the thing, although I ought, in the first instance, to have
had regard to justice, which would never suffer violence
to be done to the property of any man " ' (Montaigne's
Essays, book, i., chap. xxiv.).
Let us pause to examine the award of Cyrus. At the
first blush, a forced exchange would not appear to be any
violation of security, provided that the article given is equal
in value to that which is taken away. How can I be said
to lose by reason of a law, if, after it has had its full effect,
the amount of my fortune remains the same as before ?
If one party has gained, without the other being a loser,
surely the transaction is, in all respects, satisfactory. No :
that is not so. He, whom you suppose to have lost nothing
by the forced exchange, may really have suffered loss.
Inasmuch as everything, movable or immovable, may,
1 According to Xenophon's account, Cyrus, the grandson of Astyages,
was brought up at the court of his grandfather. But for the more
accurate details of this story, see Cyropcedia, book i. (iii.). (C. M. A.)
192
Of Forced Exchanges. 193
according to circumstances, have a different value for
different persons, each owner has an expectation of profiting
by some favourable chance, which will enhance the value
of his particular piece of property. Thus, even if the house
occupied by Peter would be more valuable to Paul than
it is to Peter, that is no sufficient reason why, for the "grati-
fication of Paul, Peter should be forced to give up his house
at a price representing its value to himself. That would
be to deprive Peter of the benefit which he has a right to
expect will accrue to him from the very circumstance
that the house is worth more to Paul than it is to him.
But suppose Paul should say that, for the sake of peace,
he has offered a price beyond the market value of the
house, and that Peter only refuses it out of obstinacy, we
might then reply to him : ' It is, after all, merely a sup-
position on your part that the price you have offered is in
excess of the market value. The opposite view is equally
probable; for, if you have offered more than the house is
really worth, Peter would surely have hastened to seize
so favourable an opportunity one which might never
occur again and the bargain would have been readily
concluded. The fact that he does not accept shows that
you were mistaken in your estimate ; and that, if his house
be taken from him on the terms you propose, an injury
will be done to his fortune, not an injury perhaps to
property actually in his possession, but, at any rate, an
injury to property which he has a legitimate expectation
of acquiring.'
' Not so,' Paul will reply: ' he knows well enough that
my estimate is beyond any price he can obtain in the
ordinary course of things ; but he also knows my need, and,
therefore, refuses a reasonable offer in the hope of deriving
unfair advantage from my situation.'
I think there is a principle which may be applied to when sales
remove the difficulty thus arising between Peter and Paul.
We must discriminate between two classes of objects: made com-
pulsory.
VOL. I. O
IQ4 Principles of the Civil Code. [CHAP.
( a ) those which, in the ordinary course, have only their
intrinsic value; and (ft) those which are susceptible of a
value based on sentiment or on some extrinsic attribute.
Houses of the common type, a field cultivated in the usual
manner, a crop of corn or hay, ordinary manufactured
products, seem to belong to the first class. To the second
we may refer pleasure-grounds, a library, pictures, statues,
natural history collections. In the case of objects within
this second class, exchange ought never to be forced; for
it is not possible to assess the value imported by sentiment
or extrinsic attributes. But objects of the first class may
well be made subject to forced exchange, whenever that
is the only means of preventing great loss. Thus, suppose
that I am the owner of a close of land of considerable value,
to which the only approach is a roadway running along a
river's bank. Suppose that the river, being in flood,
destroys the roadway, and my neighbour stubbornly
refuses me access over a tongue of land which is not worth
a hundredth part of my close. Ought I to lose the whole
benefit of my property through the spite or caprice of this
stupid fellow ? I should say that exchanges may be forced
in order to prevent great loss; as where (in such a case as
this) an estate is wholly deprived of access unless a right
of way be granted across neighbouring land. But the
principle is of so delicate a character that we must lay down
very rigorous rules if it is not to be abused. 1
Protection Jtf we would appreciate the great respect paid to property
forced ex- in England, we should note the scrupulous action of the
change
o?Sgland. * In tnis connection reference may be made to the fixing of the value
' of the rupee and the closing of the Indian mints in 1893. Before that
date silver was the standard of value in India, and, owing to the de-
preciation in the gold price of silver, the gold value of the rupee fell
from over 2s. to under is. 3d. On the closing of the mints to the free
coinage of silver, the demand for rupees outran the supply, and the
gold value rose from is. id. in 1895 to is. 4d. in 1899. Since 1899 the
rupee has been kept at this value by the Secretary of State for India
selling, for gold in London, bills on India (which are in terms of rupees),
or by the Government of India selling, for rupees in India, sterling
drafts on London. (C. M. A.)
xvi.] Of Forced Exchanges. 195
legislature in this matter. If a new road is to be opened,
an Act of Parliament must be obtained, after all the parties
interested have been heard. Nor is it considered enough to
award suitable compensation to the landowners concerned ;
for objects which may have a sentimental value, such as
houses and gardens, are protected by means of special
exceptions.
Forced exchanges may also be justified whenever it is
plain that the obstinacy of a single individual or of a small
body of persons operates to affect injuriously the interests
of a large number. It is in this way that the opposition
of a few proprietors has not been allowed to prevent the
clearance and enclosure of common lands in England;
where, moreover, there is often a compulsory sale of
houses, if necessary for the health or convenience of the
general body of citizens. 1
It is to be noted that we have been dealing with com-
pulsory exchanges, and not with forcible removals; for a
removal which is not an exchange that is to say, a removal
without an equivalent even if it results in advantage to
the State, is a mere act of injustice, an exertion of power
without the alleviations necessary to reconcile it with the
principle of Utility.
1 In the eighteenth century a large number of private Inclosure Acts
had been passed; and the 'enclosure movement' was greatly facili-
tated by the general Inclosure (Consolidation) Act of 1801 (41 Geo. III.,
o. 109). After Bentham's death this principle was extensively applied
in many statutes e.g., the Lands Clauses and Railway Clauses
Consolidation Acts of 1847. Compare also the Indian Land Acqui-
sition Act 1894 (Act No. i of 1894), which repeals a statute of 1870,
amends the law for the acquisition of land for public purposes and
for Companies, and determines the amount'of compensation to be made
on account of such acquisition. (C. M. A.)
CHAPTER XVII.
POWER OF THE LAWS OVER EXPECTATION.
THE legislator has no title to lord it over the dispositions
of the human heart; rather is it his function to interpret
and minister to them. The excellence of his laws depends
upon their conformity with general ' expectation.' It
behoves him, therefore, to mark well the trend of this
expectation, so that he may act in harmony with it. Such
is the end in view: let us now examine the conditions
necessary for its attainment.
Laws I . The first of these conditions and the one most difficult
precede to fulfil is that ' the making of the laws should precede
ofexpecta- the formation of expectation.' If we could conceive a
new people, a race of children, the legislator, finding no
expectations in existence to thwart his plans, might fashion
them at his pleasure, as the sculptor shapes a block of
marble. But, as there already exists in every clime a
multitude of expectations, based upon ancient laws or time-
honoured customs, the legislator is obliged to pursue a
system of conciliation and concession, which hampers him
at every turn. 1
The very first laws found some expectations already
fully formed; for, as we have seen, there was a shadowy
kind of property even in primeval times that is to say,
some slight expectation of keeping what had been already
acquired. And it was this anterior expectation which
1 Cf. ' Every nation is liable to have its prejudices and its caprices,
which it is the business of the legislator to look out for, to study, and
to cure ' (Introduction to the Principles of Morals and Legislation, chap.
xv. 24). (C. M. A.)
196
Power of the Laws over Expectation. 197
determined the direction of the earliest laws; while they,
in turn, gave birth to fresh expectations, hollowing out the
channel in which the hopes and desires of mankind were
destined to flow. Nowadays, it is impossible to make
any change in the laws of property without obstructing,
more or less, the existing current, and finding that it offers
to the proposed reform some appreciable resistance.
Suppose that you are called upon to ordain a law in
conflict with the established expectations of the people.
If it be possible, you should so arrange that the law does
not come into force for a long time ; and in this way the deferred.
present generation will not feel the change, while the
rising generation will be quite prepared for it. 1 You will
find among the younger generation some who will side
with you in your fight against old-fashioned views; and
you will have done no wrong to existing interests, because
there will be time enough to prepare for the new order of
things. Everything, in fact, will be plain-sailing for you,
as you will have, thus, prevented the rise of expectations
with which you would otherwise have had to reckon.
2. The second condition is that ' the laws should be JjJJJJ d be
known.' A law which is not known can, of course, have
no effect upon expectation ; it will not serve to prevent a JJJ-Jj 1 when
conflicting expectation. It will be said that this condition
does not depend upon the nature of the law at all, but upon
the measures taken to promulgate it; and these measures
may be quite satisfactory, whatever the law may be. This
reasoning is less sound than specious. There are some laws
which, in the nature of things, become known more
readily than others; that is to say, such laws as are con-
formable with expectations already formed, laws which
rest upon ' natural expectations.' This natural expecta-
tion, this expectation induced by early habits and associa-
tions, may be founded on superstition, on a baneful preju-
1 Cf., e.g., as to the dissolution of convents and monastic orders,
* Civil Code,' Part I., chap, xv (5), ante, p. 188. (C. M. A.)
198 Principles of the Civil Code. [CHAP.
dice, or on some perception of utility, it makes no matter
which it be ; anyhow, a law which conforms with it implants
itself in the mind without effort; it was there, so to speak,
before it was promulgated, or had even received the
sanction of the legislature. But, when the law is in con
flict with this natural expectation, it is very difficult to
grasp and understand, and still more difficult to fix in the
memory. Some other arrangement is always presenting
itself to the mind; while the new law, altogether strange
and without any proper roots, tends constantly to slip away
from a spot to which it has no natural attachment.
venience of Codes of mere ritual observance have this inconvenience,
2tu3oS of amon g st others, that their arbitrary and fantastic rules,
servances. never being well known, weary the mind and tax the
memory; so that the man who is subject to them, always
fearful, always at fault, always fancying himself morally
diseased, can never account himself free from sin, and
lives in perpetual need of absolution.
Natural expectation is directed towards such laws as are
of the greatest import to the community at large; and, if
a foreigner were guilty of theft, forgery, or murder, he
could not be heard to plead ingorance of the laws of the
country, since he could not fail to know that acts so mani-
festly noxious are crimes in every state.
should be $' ^ e ta ^ r( ^ condition is that 'the laws should be con-
consistent. sistent.' Now, this principle is closely related to the
condition immediately preceding; but it serves to place a
great truth in a new light. When once the laws have
been established in accordance with a certain definite
arrangement and upon a principle generally admitted, any
further arrangement consistent with that principle will
naturally be found to conform with general expectation.
Every analogous law is, so to speak, taken for granted
beforehand, and every new application of the principle
helps to confirm and strengthen it. But a law which is
not of this character dwells apart, as it were, in the mind,
xvii.] Pmver of the Laws over Expectation. 199
and the influence of the principle to which it stands opposed
is a force constantly tending to drive it from the memory.
Thus, that a man's property should, at his death, pass to
those most nearly related to him is a rule of general
acceptation, and one on which expectations are naturally
shaped. A law of succession which was a mere inference
from the rule would be widely approved and within the
grasp of every man's intelligence. But the farther one
departs from this principle, by allowing exceptions to the
rule, the more difficult is the law to understand and to
remember. The common law of England affords a striking
illustration. Its canons as to the scheme of descent are
so complex; it admits such nice distinctions ; the precedents
which serve to guide us are so full of quiddities, that not
only is it impossible for simple good sense to anticipate or
divine its provisions, it is even difficult to ascertain and
grasp them. It has become a study profound as that of
the most abstract science, and one open only to a small
number of privileged mortals. Indeed, it has been found
necessary to subdivide the subject, for no jurist pretends
to understand the whole of it. Such is the fruit of a too
superstitious regard for antiquity !
When new laws chance to come in conflict with a principle
established by former legislation, the more firmly rooted
the principle is, the more hateful does the inconsistency
appear. There is a rude clashing of opinions, and dis-
appointed expectation charges the legislature with an act
of tyranny.
In Turkey, on the death of a man who holds office, the
Sultan appropriates the whole of the dead man's fortune,
while the children fall, at once, from the heights of opulence
to the depths of poverty. This law, which defeats all
natural expectations, is probably borrowed from certain
other Eastern countries, where it is less odious and less
incongruous, seeing that in those countries the sovereign
confers office on none but eunuchs.
20O Principles of the Civil Code. [CHAP.
L K aw{ L 4- The fourth condition is that ' the laws shall be con-
should con-
foraa. with sistent with the principle of Utility ' ; for Utility is the
point towards which all expectations tend to converge.
At the same time, a law consistent with utility may be
found to be in conflict with public opinion. But this is
only a casual and transient circumstance ; and, in order to
reconcile everybody to the law, it would simply be neces-
sary to demonstrate its conformity with the great principle.
So soon as the shrouding veil is raised, expectation will be
satisfied and public opinion won over. Now, the more
certain it is that the laws are, in point of fact, consistent
with utility, the more readily will that congruity become
manifest. If we ascribe to anything a quality which it
does not possess, the triumph of error will last but for a
day: a single glistening sunbeam will serve to dispel the
illusion. But a quality which is really possessed, although
its existence be unknown, may at any moment come to
light and shine forth in all its glory. Any innovation is
at first shrouded in a dense and impure atmosphere; for
masses of cloud formed by caprice and prejudice hover
around it. Its shape is distorted by the varying degrees of
refraction undergone in this deceptive medium. It takes
time for the eye to fasten upon the object, and disentangle
it from its alien surroundings. But, by slow degrees,
truth will win the day ; for if the first attempts do not
succeed, the second will prove more fortunate, when it is
better known where lies the difficulty to be overcome.
The project which really favours the greatest number of
interests cannot fail in the end to gain the greatest number
of votes ; and the useful novelty, at first rejected in alarm,
soon becomes so familiar that no one even remembers
when or how it was introduced.
Laws 5. The fifth condition is that * there should be method
simple and in the laws.' In its effect upon expectation, the defective
methodical. , , , , r . ,,
arrangement of a code of laws may give rise to the same
inconvenience as incoherence or inconsistency. It may
xvii.] Power of the Laws over Expectation. 201
produce the same difficulty in grasping the meaning of the
code and charging the memory with its provisions. The
measure of every man's understanding is limited; and the
more complex a law is, the more surely is it above the
comprehension of a large number of persons. Hence it is
less well known, and has less hold upon men: it does not
occur to their minds at opportune moments, or, what is
worse, it may mislead them and give rise to false expecta-
tions. A code should be simple both in style and in
arrangement: it should serve as a manual of instruction
for every individual ; and, when in doubt, a man ought to
find guidance in its pages, without need of an interpreter. 1
The more closely the laws conform with the principle of
Utility, the simpler will be the code ; for a system founded
upon a single principle may be as simple in form as in
substance. Indeed, it is only a system so founded that
can be distinguished by natural arrangement and a familiar
nomenclature.
6. Sixth condition : Moreover, to gain complete mastery Law *[ b
over expectation, a law must present itself to the mind as certain to
one which is ' certain to be enforced ' ; at any rate, it forced,
should not afford any reason for presuming the contrary.
If a man counts on escaping from the law without much
difficulty, he at once forms an expectation in conflict with
the law itself. It then becomes worthless, and only resumes
its efficacy as an engine of punishment. And these fruit-
less punishments are an additional reproach to the law:
1 In an early MS., Bentham states one objection to the course, which
is nowadays persistently pursued, of consolidating Acts and, at the
same time, introducing new provisions: 'The great objection to con-
solidating new provisions into the old Acts is that then the whole
becomes new, so that the party that opposes the new provisions spins
out the time by debating the old provisions de novo Per Lind [1737-
1781; author of Letters concerning the Present State of Poland], from
Robinson and Lord North. The remedy would be to make a standing
resolution that it is the opinion of the House that only new provisions
ought to be the subject of debate' (MSS. University College, No. 69;
cited Halevy, i. 323). The danger, at present, arises rather from
the absence of any opportunity of debating even the new provisions.
202 Principles of the Civil Code. [CHAP.
despicable from its impotence, odious from its penal con-
sequences, it is always bad, whether the guilty suffer or
whether they go scot-free.
This principle has often been set at naught in flagrant
fashion. For example, when, at the time of Law's banking
scheme, 1 the citizens were forbidden to keep in their houses
more than a certain sum in cash, was not everyone entitled
to presume that he would succeed in evading the prohibi-
tion ? How many prohibitions in mercantile law are
defective in this regard ! A multitude of such regulations,
easy to escape, constitutes, so to speak, an immoral lottery
in which individuals stake their money against the
legislator.
tion U o? the ^^ s P rmc ip^ e furnishes a good reason for placing
sixth condi- domestic authority in the hands of the husband. If it had
tion to the J
married been given to the wife, the physical power being on one side,
and legal control on the other, there would have been
everlasting discord. Had a nominal equality been estab-
lished, it could never have been maintained ; for, when two
wills are in opposition, one or other must prevail. The
subsisting arrangement is, therefore, most conducive to
family concord; because, when physical power and legal
control work in harmony, we have the best security for
effective action.
of P the C sixth ^ e same principle will be found very useful in the
to^ttie^aws s l u ti n f certain problems which have embarrassed
tife ec flnd1ng J ur i sts > suc h as tn ^ s : I* 1 what cases ought a ' thing found ' to
of property be treated as the property of the finder ? The easier it would
be to appropriate the thing whatever might be the state
of the law, the more expedient is it to avoid making any
such law as will disappoint expectation; or, in other words,
the easier it would be to evade the law, the more unwise
1 John Law (1671-1729}, a Scotch adventurer, who, in 1717, formed
the Mississippi Company, to which the Regent of France (Orleans)
granted Louisiana and the tobacco monopoly. Law was appointed
Controller- General of Finance, but in 1720 his vast issue of notes led
to his exile. He died at Venice in 1729. (C. M. A.)
xvii.] Power of the Laws over Expectation. 203
is it to make a law which, appearing to the mind almost
impossible of execution, could hardly fail to work harshly
if, by chance, it were put into operation. We may make
this clearer by an example. Suppose I find a diamond
whilst I am tilling the earth. I shall feel prompted to say
to myself, This is mine: and, at the same moment, an
expectation of keeping it will naturally arise, not merely
from the bent of my desires, but also from analogy with the
customary ideas of property, (i) I have physical posses-
sion of the gem, and that alone supplies a title where
there is none other to countervail it. (2) There is something
suggestive of myself in the very discovery: it was I who
drew this diamond from the dust, where it lay of no account,
unknown to all the world. (3) I may flatter myself with
the notion of keeping it without the sanction of the law, or,
even, in spite of the law ; for all I have to do is to hide it,
until I can find a pretext for making people believe that I
acquired it by some other title. Hence, should the law
resolve to bestow it on some person other than myself, as
the law could not check my first prompting, my hope of
retaining the gem, it would, by taking it from me, cause me
to feel the pain of disappointed expectation, which is
commonly described as ' injustice ' or ' tyranny.' And
this alone would afford a sufficient reason for awarding
the article to its finder, unless some stronger reason to the
contrary were forthcoming.
The rule will, therefore, be subject to variation, accord-
ing to the probability, in any particular case, of my being
able to keep the article without the sanction of the law for
so doing. A wrecked vessel which I have been the first to
espy upon the shore, some mine or island which I have
discovered, are objects as to which a law already estab-
lished would preclude any idea of property; because it is
not possible for me to appropriate them, clandestinely, to
my own use. The law, which denied them to me, being
easy of execution, would have its full and entire effect upon
204
Principles of the Civil Code.
[CHAP.
my mind ; so that a legislator, consulting this principle only,
would be free either to grant such an object to the man
who made the discovery, or to withhold it from him. But
there is a special reason for showing some sort of favour to
the man, inasmuch as a reward given to diligence tends to
increase the general wealth. If all the profit of a discovery
falls to the public treasury, that all is apt to be very small.
7. The seventh and last condition for the control of
expectation is that ' the laws should be construed literally.'
This condition depends partly on the laws themselves, and
partly on the judges. If the laws are no longer in harmony
with the enlightened understanding of the people, if the
laws of a barbarous age remain unchanged in an era of
civilization, the tribunals gradually forsake ancient doc-
trines, and, insensibly, substitute novel maxims. Thence
will result a sort of conflict between laws that are growing
obsolete and usages that are taking their place; and, by
reason of the consequent uncertainty, the control of the
laws over expectation will become weaker.
The word ' interpret,' in the mouth of a lawyer, has had
a meaning widely different from that which it has borne
when used by another person. To interpret a passage in
an author is to bring out quite clearly the precise idea that
he had in his mind ; but to interpret a law, in the sense of
the Roman jurists, is to repudiate its plainly -expressed
intention in order to substitute some other, on the assump-
tion that this substitute conveys the real intention of the
legislator.
In such a proceeding there can be no security. 1 Al-
though a law be hard to understand, vague, and incoherent,
a citizen has always some chance of grasping it. The note
of warning sounded is not loud or clear; the law is, of
course, less efficacious than it might be, but it is never
1 ' [The judges] not only may but must develop the law in every
direction except that of contradicting rules which authority has once
fixed.' See Sir F. Pollock's admirable note (' D ') in his edition of
Maine's Ancient Law (1906), chap, ii., at p. 46. (C. M. A.)
xvii.] Judicial 'Interpretation' of the Laws. 205
useless : and, at any rate, we know the extent of any harm
it can do. But when the judge presumes to arrogate to
himself authority to ' interpret ' the laws that is to say,
to substitute his will for that of the legislator then every-
thing becomes arbitrary and uncertain ; no one can forecast
the line that his caprice will take. 1 And it is not enough
to treat this mischief as standing by itself ; howsoever great
it may be, it is a small matter in comparison with the
magnitude of possible consequences. The serpent, it is said,
can urge his body through any aperture, into which he has
managed to slip his head. In the matter of legal oppres-
sion, it is just this insinuating head of which we must
beware, lest presently we see unfolding, in its train, all the
tortuous folds of tyranny. When springing from this
source, it is not only the evil, but even the good, at which
we should look askance. Any usurpation of an authority
over and above the law, although useful in its immediate
effects, must, when we look to the future, be viewed with
deep concern. There are bounds, and, indeed, narrow
bounds, to any good that can result; but to alarm and
possible evil there is no limit. Danger, n vague form,
hovers over every head.
Without speaking of caprice or ignorance, what oppor-
tunities are afforded for partiality ! The judge, now adher-
ing to the letter of the law and now putting his gloss upon
it, may always place whom he pleases in the right or in the
wrong. He has no difficulty in shielding himself either
under the letter or under the gloss. He is a magician who
astounds the beholders by pouring sweet and bitter from
the same cup.
One of the most striking characteristics of English
tribunals has been their scrupulous adherence to the
1 Austin was of opinion that, instead of blaming judges for legislating,
Bentham should have blamed them ' for the timid, narrow, and piece-
meal manner in which they have legislated, and for legislating under
cover of vague and indeterminate phrases' (edition of 1911, vol. i,
p. 219). (C. M. A.)
206 Principles of the Civil Code. [CHAP-
declared will of the legislator, coupled with the closest
possible compliance with precedents in that still imperfect
branch of legislation which depends on custom. 1 This rigid
observance of the laws may have inconveniences in an
incomplete system; but it is a genuine spirit of liberty
which inspires the English with so much horror of what is
called ex post facto legislation.
"^ ^ e conditions which predicate the excellence of
^ aws are so c l se ly interwoven that the fulfilment of any
one of them involves the fulfilment of the others. Intrinsic
utility apparent utility consistency simplicity cog -
noscibility probability of enforcement : any two of these
may be reciprocally considered as the cause or effect of
each other.
if the vague system known as ' custom ' were got rid of,
and the whole code put in written form ; if laws which
concern the whole community were comprised in a single
volume, and those which affect particular classes were
consigned to compact and separate compilations; if the
common code were generally circulated, and became, as
with the Hebrews, a factor in religious worship and a
manual of education; if an acquaintance with it was
essential to the enjoyment of political rights : then indeed
would the law be truly known, every departure from it
would be felt, and every citizen would constitute himself
its guardian. It would no longer be wrapt in mystery ; its
exegesis would cease to be a monopoly; neither fraud nor
chicane could evade it.
It is further necessary that the laws should be as simple
in style as in arrangement ; that they should be expressed in
the language ordinarily used; and that legal forms should
be free from scientific jargon. If the style of the code be
1 Austin says that ' a great mistake is often made with respect to
Bentham's notions of law. . . . He has again and again declared in his
works that the reports of the decisions of the English courts are an
invaluable mine of experience for the legislator ' (Jurisprudence, edition
of 1911, voL ii., p. 679). (C. M. A.)
xvii.] Suggestions as to Codification. 207
distinguishable from that of other books, it should be by
its greater lucidity, its greater precision, its greater home-
liness of diction; for it is designed to suit the compre-
hension of all men, and in particular of the class which is
least enlightened. 1
If, after conceiving such a legal system, we come to Reformers
contrast it with the state of things that actually exists, the proceed
warily.
result is by no means favourable to our institutions. But,
although the laws be defective, we should mistrust captious
declamation and exaggerated complaint. The man, who
is so narrow in his views or so impulsive in the matter of
reform that he would subvert or deride a general system
of law, is not worthy to be heard at the bar of an enlightened
public. Who can set forth its benefits I do not say under
the best government, but under the very worst ? Do we
not owe to it all we possess of security, property, industry,
and abundance ? Do we not owe to it preservation of the
peace, the sanctity of marriage, and the refining influence
of family ties ? The good which the laws produce is ever
with us, every day and every hour; while the evil is but
casual and fleeting. But the good is enjoyed unperceived,
without being referred to its source, as if it came in the
ordinary course of nature; while the evil is acutely felt,
and, in describing it, suffering, spread over vast space and
a long course of years, is focussed by the imagination on a
single point. What abundant reasons for mistrusting
exaggerated complaint !
I have not disposed of this important topic, and I intend
to treat elsewhere of the caution necessary to be observed
in legal innovation. So far from favouring the seditious
exaltation which seeks to destroy under the pretext of
reform, this book is designed to serve as an antidote to
such anarchical doctrines, and to show that a fabric of laws,
1 Austin complains of the mischief done to the cause of codification
by overstating the degree of simplicity which can be given to the law
(Jurisprudence, edition of 1911, vol. ii., p. 654). (C. M. A.)
208 Principles of the, Civil Code.
easy to pull to pieces but difficult to repair, ought not to
be handed over for alterations to a gang of rash and ignorant
workmen. 1
1 The most hostile critic of Bentham's work must acknowledge the
debt the world owes him for the impulse he gave to the provision of
Codes. ' Had Bentham done nothing more,' wrote Professor Montague,
in his edition of the Fragment on Government, ' than point out the way
in which the law of England could best be applied to the needs of India,
he would have rendered a distinguished service to his country and to
mankind.' (C. M. A.)
PRINCIPLES OF THE CIVIL CODE.
PART II.
THE DISTRIBUTION OF PROPERTY.
CHAPTER XVIII.
OF TITLES WHICH CONFER A RIGHT OF PROPERTY. 1
HITHERTO we have endeavoured to unfold the reasons Principles
which should lead a legislator to sanction the right of tion of
property. But so far we have considered wealth only in
the aggregate : we must now descend to details, analyze its
constituent elements, and seek to discover the principles
which should govern the distribution of property, at the
time when estates or personal chattels present themselves
to the law for appropriation by assigned individuals. These
principles are identical with those already formulated:
' Subsistence,' ' Abundance,' ' Equality,' ' Security.' When
they are found to harmonize, we have no difficulty in
coming to a decision; but when they part company, we
must needs discriminate and award the preference.
i. Actual Possession. Present actual possession is a actuafpoa-
title to property which may precede and take the place of 8e88i on
every other title. It will always hold good against any
man who has none other to set in opposition to it. To
take away, arbitrarily, from him who has in order to give
1 For a more precise classification, see General View of the Body oj the
pp. _ _ _
making an use of it. Interest is a more general word than Title. Title
applies rather to the whole of a thing, and to all its uses. Interest
applies indifferently to the whole of a thing, or any part or parts of it,
to the sum of its uses or any one or more of its uses ' (MSS. University
College, No. 69; cited Halevy, vol. i., p. 308). (C. M. A.)
VOL. i. P
2io Principles of the Civil Code. [CHAP.
to him who has not would, no doubt, be to create a loss upon
one side and a gain upon the other. But the amount of
resulting pleasure would fall short of the amount of resulting
pain ; and, moreover, a violent act of this sort, by its attack
upon security, always spreads alarm amongst owners as
a class. So we see that present actual possession is a title
founded on good of the first order, and also on good of the
second order (cf. ante, p. 70).
ret?ccu- What is called the ri g ht of ' the first occupant ' (or of
pant.' original discovery ') really comes to the same thing.
When a right of property is awarded to the first occupant,
we note that (i) He is spared the pain of disappoint-
ment, a pain he would have felt on finding himself
deprived of something of which he was the first to take
possession. (2) The award checks contention, by obviating
the possibility of strife between the first occupant and a
succession of rival claimants. (3) It conduces to pleasure
which, otherwise, would not have existed at all ; for a
first occupant, who had reason to apprehend the loss of his
treasure, would never dare to betray himself by open
enjoyment of it, so that anything he could not manage to
consume forthwith would prove valueless to him. (4) The
advantage thus assured to him, being in the nature of a
reward, acts as a spur to the diligence of others, who will
be encouraged to seek like benefits for themselves; and
it is these particular acquisitions that go to form the general
aggregate of wealth. (5) If unappropriated things did not
always belong to the first occupant, they would become
the prey of the strongest; while the weak would be subject
to ceaseless acts of oppression. 1
Such reasons as these do not present themselves to
men's minds in a distinct shape ; but they are seen darkly
and confusedly, being grasped, as it were, by instinct.
Accordingly, people say that this right is ordained by
1 Cf. Maine's Ancient Law, chap. viii. (Sir F. Pollock's edition of
1906, pp. 258 et seq.), and Blackstone's Commentaries, book ii., chap, xvi
(C. M. A.)
xviii.] Of Titles which confer a Right of Property. 211
' justice,' 'equity,' or 'reason' words, repeated by every-
body and explained by nobody, which express nothing
more than a feeling of approbation. But this appro-
bation, resting as it does on solid grounds, cannot fail to
gain fresh force from the support of the Principle of Utility.
The title of original occupation was the primitive founda-
tion of property in land. It will still be applicable in the
case of islands newly formed, or of freshly -discovered terri-
tory; save only as to the right of government, which is a
peculiar appurtenance of the Crown or State.
2. Ancient Bona-Fide Possession. This second title is ie by
virtue of
commonly called ' Prescription ' : the reasons on which it Ancient
is founded are the prevention of disappointment and the
security of owners in general.
After a certain length of time prescribed by law, posses-
sion ought to prevail over every other title. If you allow
the prescribed period te elapse without putting in any claim,
it is a proof that you either knew nothing of your rights
or had no mind to take advantage of them. In either
case, there was on your side no expectation of enjoyment,
no desire to obtain possession of the thing; while on my
side there is both such expectation and a desire to keep what
I have got. To leave me in possession is no blow at security ;
but to transfer the possession to you constitutes an attack
on security, and disquiets every other holder of property
who knows no title save his long possession in good faith.
But what length of time is necessary to transfer ' expec-
tation' that is to say, hope of enjoyment from the
original owner to the man who is in process of acquiring a
title by possession; or, in other words, what time should
be necessary to confer a legal right to property in the
hands of a mere possessor, and to extinguish all conflicting
titles ? We cannot give any precise answer to this query :
the dividing line must be drawn more or less haphazard,
but with due regard to the nature and value of the par-
ticular class of property. Though the line of demarcation
212 Principles of the Civil Code. [CHAP.
be not so drawn as to preclude ' disappointment ' on the
part of every person interested, it will, at least, prevent all
mischief of the second order. The law gives me fair
warning that, if for a year, ten years, or thirty years, as
the case may be, I neglect to assert my right, the loss of
that right will be a result of my negligence; and there is
nothing in this threat of a consequential loss, which it is in
my power to avert, that should disturb my sense of security.
^ nave supposed the possession to be retained honestly
obtained'b an( * * n &d faith; otherwise its confirmation would be
fraud. rewarding crime, not upholding the principle of security.
Not even the age of a Nestor should suffice to secure a
usurper in the wages and spoil of his lawless seizure. Why
should there ever come a time when the wrongdoer shall be
at rest; why should he enjoy the fruits of his crime under
the protection of the very laws which he has violated ?
Position of As to those persons who take from him by inheritance, a
inheritors. J
distinction may be drawn. Can they, in the special circum-
stances of the particular case, be regarded as possessors in
good faith ? If so, the same arguments may be urged on
their behalf as on behalf of the original proprietor ; and, in
addition, they have actual possession to incline the balance
in their favour. But, if both they and the predecessor
through whom they take are tainted with bad faith, they
are no better than accomplices ; and impunity should never
become the privilege of fraud.
Right of o. Possession. of the Contents and Produce of Land. The
property in
Lami ex- right of property in a close of land comprises all that the
its con- land ' contains,' together with all that it can ' produce/
Produce; What can its value be, if not its ' contents ' plus its ' pro-
ducts ' ? By ' contents ' we mean all that lies beneath
the surface, such as mines and quarries ; while ' products '
imports everything that belongs to the vegetable king-
dom. All conceivable arguments conspire to stretch to
this extent the right of property in land security, sub-
sistence, increase of aggregate wealth, the benefit of peace.
xviii.] Of Titles which confer a Right of Property. 213
4. Possession of what the Land sustains, and of what is
cast upon it. If animals have been reared on my land, it is
to me that they owe their birth and their sustenance, and Chat-
J tels cast,
Their existence would be a source of loss to me, if the thereon.
possession of them did not assure me some compensation.
If the law awarded them to anyone but me, it would be all
gain on his side and all loss on mine an arrangement in
conflict alike with ' equality ' and with ' security.' It
would then become my interest to reduce the number of
animals and to prevent their multiplication, to the detri-
ment of the general wealth.
If chance casts upon the land things which have not yet
received the stamp of property, or things which have lost
its impress, such as a whale driven ashore by the storm,
the scattered fragments of shipwreck, or uprooted trees,
these things ought to belong to the possessor of the land.
The grounds for this preference are, first, that he is in a
position to put them to profitable use without loss to any
person whatsoever; secondly, that they cannot be denied
him without causing in him a pain of disappointment;
and, lastly, that no other person could take possession of
them without entering his land and so encroaching upon
his rights. Indeed, there can be urged in his favour all
the arguments which support the claims of a first occupant.
5. Possession of Neighbouring Lands. Suppose thikt
water which covered unappropriated land has just left it;
to whom should the ownership of the new territory be
allotted ? There are several reasons for conferring it on
the owners of adjoining lands; for (a) they alone could
enter into occupation without encroaching upon the pro-
prietary rights of other people; ((3) they alone can have
formed any possible expectation in connection with this
territory, or conceived any sort of claim upon it; (y) the
chance of gaining by the retreat of the waters is, after all,
only a set-off against the chance of losing by their invasion ;
and (8) the ownership of land, captured from the waters, will
214
Principles of the Civil Code.
[CHAP.
Title by
Labour ex-
pended on
one's own
Land or
Chattels.
Title by
Labour ex-
pended on
the Prop-
erty of
another.
'Accession.
act as a reward, tending to incite men to execute the
various works and to perform the labours needed to
acquire and secure such extensions of territory. 1
6. The Betterment of One's Own Property. If I apply my
labour to something which is already accounted as my
property, my title thereto acquires fresh force. Take the
vegetables my land produces : I have sown and culled them.
These cattle I have tended ; these roots I have dug up from
the ground; these trees I have felled and fashioned at my
will. If I should have suffered on finding these things
taken from me in their rough state, how much more should
I suffer when the efforts of my industry, imparting a new
value to every object, have deepened my attachment to
them and enhanced my expectation of keeping them for
myself ? This fund of future enjoyments, constantly
augmented by labour, could have no existence without
' security.'
7. The Betterment in Good Faith of Property in One's Own
Possession, but belonging to Another. Now, suppose that I
apply my labour to something of which another man is
the owner, treating it as though it belonged to myself;
for example, if I have made cloth with your wool, to which
of us two will the finished article belong ? Before resolving
this problem, we must clear up certain questions of fact:
Was it in good faith, or in bad faith, that I treated the
wool as belonging to myself ? If in bad faith, to leave me
1 So much for the theory. Its practical application would involve
the settlement of many intricate questions ; otherwise such a concession
might be like the partition of the New World made by one of the Popes
between the Spaniards and the Portuguese. Suppose that the waters
have just quitted a bay, with a number of proprietors on its shores.
Should the distribution be adjusted with reference to the quantity of
land owned by each proprietor, or to the distance that his holding
stretches along the shore ? There must be drawn lines of demarcation,
indicating various modes of treatment. But we should not defer the
tracing of such lines until the event has happened and the value of the
derelict lands is known; for then everybody will entertain hopes which
can only be realized by a few. Anticipate the event : for then ' expec-
tation,' not yet being formed, may be made to follow the lines appointed
by the legislator (Dumont).
xviii.] Of Titles which confer a Right of Property. 215
in possession of the cloth would be conferring reward on
crime. But, if I acted in good faith, it remains to inquire
which of two values was the greater the value of the wool
or the value of the labour I bestowed upon it. How long
is it since the original owner lost the wool ? How long has it-
been in my possession? Who was the owner of the premises
where the cloth was stored, at the moment when the claim
was raised ? Did they belong to me, or to the original
owner of the wool, or to some third person ?
The principle of Caprice, paying no heed to the compara-
tive assessment of pleasures and pains, would give every-
thing to one party, without any concern for the interests
of the other. 1 But the principle of Utility, anxious to
confine within the narrowest compass an inevitable incon-
venience, carefully considers the two sets of conflicting
interests, casts about for some mode of reconcilement, and
prescribes indemnities. It will, therefore, award the
finished article to the claimant, who would prove to be the
greater loser if his claim were disallowed ; but this must be
subject to the burden of his providing for the payment of
adequate compensation to the rival claimant.
We must be guided by these same principles in resolving g
the difficulty that arises when one article chances to get 8 od8
mingled and confounded with another; as when your
metal is fused in the same crucible with mine, or when my
liquor is poured into the same vessel as yours. The Roman
jurists engaged in long disputations to determine which of
us twain should have the whole : some, under the name of
' Sabinians,' 2 wished to give the whole to me; others,
1 According to Blackstone (book ii., chap, xxvi., sect. 6), both by
Roman and by English law, the original owner is entitled, by his right
of possession, to the property in its improved state; unless, indeed, the
thing itself be changed into a different species (as by making wine put
of another's grapes), in which case it belongs to the new operator, subject
to his making satisfaction to the former proprietor for the materials
used. (C. M. A.)
2 Sabinus (Massurius) was a Roman jurist who flourished in the
reign of Tiberius. From him the school of the Sabiniani took its name.
(C. M. A.)
216 Principles of the Civil Code. [CHAP.
under the name of ' Proculeians,' 1 were for giving the
whole to you. Which faction was in the right ? Neither
of them. Their decision would always leave one of the
parties a sufferer. A very simple question would have put
an end to all these disputations : Which of the two, by losing
what had been his, would lose the more ? English lawyers
have cut the Gordian knot. They have not been at the
trouble of inquiring where the greater injury lay ; they have
taken no account of good faith or bad faith; they have
paid no heed to the greater actual value, or to the greater
expectation of enjoyment. They have decided that
movable effects shall always be awarded to the possessor
for the time being, subject only to the burden of his pro-
viding indemnification for the rival claimant. 2
8. Exploration of Mines in Another Man's Land. We
will suppose that in the depths of your land there lie
treasures, which you will not attempt to win, either because
you lack the skill or the means necessary to prosecute the
search, or because you have little confidence in the success
of such a venture; and the treasures, accordingly, remain
buried. Now, if I, a stranger to your estate, have both the
skill and the means necessary for the enterprise, and ask
to be allowed to undertake it, ought I to be granted a right
to do so, without your consent ? Why not ? If left in
your hands, all this wealth, lying underground, will do
nobody any good; in mine it would acquire great value,
and, once brought into circulation, would serve to stimulate
industry and trade. What wrong is done to you ? You
lose nothing at all ; the surface, from which alone you derive
1 Proculus gave his name to the school of Proculiani or Proculeiani.
He was a jurist and a contemporary of Nerva the younger. (C. M. A.)
2 According to Blackstone (book ii., chap, xxvi., sect. 7), if the
intermixture be by consent, the proprietors have an interest in common,
in proportion to their respective shares. But in case of wilful inter-
mixture by one man without the knowledge of the other, although both
the Roman Law and English Law give the entire property to him whose
original dominion is invaded, the Roman Law allows satisfaction for
the loss of the other man, while the English Law, to guard against fraud,
requires no such satisfaction to be made. (C. M. A
xvin.] Of Titles which confer a Right of Property. 217
any advantage, remains always in the same condition. But
what the law, with due regard to the interests of everybody
concerned, ought to do for you, is to allocate to you a
portion of the accruing profits, more or less great according
to circumstances. For, although the treasure was not a
source of actual gain to you, yet it afforded you some expec-
tation of deriving a profit some day, and the law ought not
to deprive you of your chances, without making proper
compensation. Such, indeed, is the law of England.
Under certain conditions, it permits any man, who is ready
to engage in the enterprise, to follow up a vein of mineral
discovered in the field of another person. 1
o. Liberty of Fishing in Great Waters. Great lakes, great Title ac-
. ,1 , . , , quired by
rivers, great bays, and in particular the ocean, are not Fishing,
occupied by exclusive proprietors. They are regarded as
belonging to nobody; or, to speak more accurately, as
belonging to everybody. There is no ground for limiting
the right of fishing in the ocean. Of most kinds of fish, the
supply in great waters seems inexhaustible. The liberality,
nay, the profusion, of nature in this regard transcends
anything that we can conceive. The indefatigable Lewven-
hoek 2 has estimated the eggs of a single codfish as exceeding
in number ten millions. What we can take and consume
from this immense storehouse of food is as naught, when
compared with the destruction wrought by physical causes,
which we know not how to obviate or even to reduce. Man
in the open sea, with his fishing smack and nets, is a very
feeble rival of the great tyrants of the ocean; he makes no
1 Dumont, apparently, did not fully appreciate Bentham's MSS. on
this point. The common law of England does not permit such an
enterprise; but there are customary rights of this kind in certain dis-
tricts, and in some cases they have been declared and delimited in
local Acts. Cf., e.g., Derbyshire Mining Customs and Mineral Courts
Act, 1852 (15 and 16 Viet., c. clxiii.). (C. M. A.)
2 Leeuvenboeck (or Lewvenhoek), Anton Van, was born at Delft in
1632, and died there in 1723. He did excellent work with the microscope,
and was an ardent opponent of the doctrine of spontaneous generation.
His works were published in four volumes at Leyden, 1719-1722, and
an English translation of certain selected portions appeared 1798-1801
(by S. Hook). (C. M. A.).
2i8 Principles^ of the Civil Code. [CHAP.
more havoc among the smaller kinds than do the whales.
As to fish found in rivers, lakes, and small inlets, the laws
should take such precautions as are necessary and efficacious.
Where there is no occasion for rivalry, no fear of finding a
sensible diminution in the stock of wealth by reason of the
number of competitors, we should allow to everyone the
rights of a first occupant, and encourage every form of toil
which tends to add to the general abundance.
T ujred C b I0 ' Liberty of Hunting over Unappropriated Lands. The
Hunting, same observations apply to tracts of land which are not
appropriated, to uncultivated wastes, and to wild forests.
In vast territories which are not peopled in proportion to
their extent, there may be found large areas of such land ;
and over these regions the right of hunting may well be
exercised without stint. For there man's only rivals are
the beasts of prey; while the chase serves to enlarge the
stores available for subsistence, without injuring anybody.
But among civilized communities, where agriculture has
made marked advances, and the areas still unappropriated
bear but a very small proportion to those which have
already been impressed with the seal of ownership, there
are many grounds that may be urged against granting a
right of chase, analogous to that accorded to the first
occupier of vacant land.
encesofun First Inconvenience. In a thickly -populated country,
restricted the slaughter of wild animals may easily proceed at a
Bights in greater rate than their reproduction. Once let the right
Regions. of hunting be free to all; and then the species of animals,
which are objects of the chase, will probably diminish in
number in a very appreciable degree, or even disappear
altogether. The sportsman would soon have as much
difficulty in procuring a single partridge as he finds to-day
in bagging a hundred, and would, accordingly, demand a
price increased by one -hundredfold. He would suffer no
loss himself; but he would give the public, for their money,
only a hundredth part of the value he gives them to-day.
xvni.] Of Titles which confer a Right of Property. 219
To put the matter more plainly, the fund of pleasure,
resulting from the consumption of partridges, would be
reduced to a hundredth part of what it is at present.
Second Inconvenience. The chase, without being more Encourage-
ment of un-
productive than other forms of toil, unfortunately presents productive
more attractions. In prosecuting the chase, sport is com-
bined with difficulties, idleness with activity, and a sort of
celebrity with risk. The charm of a calling, so well con-
trived to suit all the inborn tastes of mankind, will draw
to this career a vast number of competitors. Their rivalry
will soon reduce the reward of such employment, until it
affords a bare subsistence ; so that adventurers of this class
will, as a rule, be found to be poor.
Third Inconvenience. As the chase is restricted to par- JJJgSj 1 * 01 "
ticular seasons, there will be considerable intervals of time idleness,
during which the hunter will find no opportunity of
employment. Yet he will not readily return from a
wandering to a sedentary life from independence to a
state of subjection from habits of idleness to habits of
toil. Accustomed, like the gamester, to feed upon chance
and high expectations, a small fixed wage presents few
attractions to him. Now, when a man is in such a con-
dition, poverty and sloth may well lead him into crime.
Fourth Inconvenience. The exercise of this pursuit is, Encourage
in the nature of things, productive of offences. The angry Sfsputes
disputes it begets, the lawsuits, the prosecutions, the 1 S
convictions, the consequent imprisonments and other ou
penalties, are more than enough to countervail its pleasures.
The sportsman, weary of waiting in vain on the highways,
stealthily spies out the game in the neighbouring en-
closures. 1 If he believes himself to be under observation,
he turns aside and lies hidden, for he is an adept in the arts
1 It must be remembered that, when Bentham wrote, there was no
legitimate traffic in game, nor could any ' licence ' or ' certificate ' be
obtained authorizing its slaughter. The right, to kill was vested solely
in certain ' privileged ' persons, while the sale of game was altogether
prohibited. Needless to say, such laws were openly and systematically
violated. (0. M. A.)
22O Principles of the Civil Code. [CHAP
of patience and cunning. If he thinks the watchers are
gone, he no longer respects the boundary walls, but clears
the ditches, leaps the fences, and plunders the preserves.
Ofttimes, cupidity getting the better of prudence, he will
be drawn into dangerous situations from which it is im-
possible to escape without crime or disaster. If hunting
upon the highroads were permitted, an army of guards
would be needed to restrain the excursions of the hunters.
SrSSti- Fifth Inconvenience. If we decided to preserve this right
Laws tion f * cnase > which, exercised as it is within such narrow
limits, is of such small advantage to anybody, we should
require a variety of laws, both in the civil and in the penal
code, to prescribe the character of its enjoyment and to
provide punishments in case of its abuse. Now, this
multiplicity of laws is always an evil, for laws cannot be
multiplied without being rendered less efficacious. And,
moreover, the severity necessary to deter from crimes so
attractive and so easy to commit attaches odium to the
ownership of estates, and brings the rich man into constant
s * r ^ e w ^h h* 8 poorer neighbours. The way to get rid of
^ G inconvenience is not to regulate the right, but to
suppress it.
When once the prohibitory law becomes well known, no
hope or expectation of enjoying a privilege of chase will be
aroused. People will covet partridges no more than barn-
door fowls ; and, even in the mind of the multitude, poaching
will no longer be distinguishable from theft.
It is true that, nowadays, popular opinion favours this
right of chase; but, if we must needs give way to popular
opinion, it is only when the tide runs very strong and there
is no hope of stemming it. Were pains taken to enlighten
the people; to explain the motives of a prohibitory law;
to get them to look upon it as a source of peace and security ;
to show them that the exercise of the existing right is
gradually dwindling away, while the poacher's life is
wretched and his ungrateful calling exposes him incessantly
xviii.] Of Titles which confer a Right of Property. 221
to accusations of crime, and his family to shame and desti-
tution ; I venture to assert that popular opinion, under the
gentle but constant pressure of reason, would very soon
take a new direction.
There are some animals whose value after death is not Pursuit of
enough to compensate for the damage they occasion when and Beasts
alive. Such, for example, are foxes, wolves, bears, and all
beasts of prey which pursue and destroy the various species
tamed by man. So far from preserving such creatures, our
only concern should be to get rid of them. One way of
doing this would be to grant the property in them to the
hunter, as to a ' first occupant,' without any regard to
territorial considerations. Every sportsman who attacks
such harmful animals should be looked upon as if he were
employed by the police. But we must not admit this .
exception save in the case of animals capable of much
mischief. 1
1 See chap. xv. of the Vue Gentrale in vol. i. of the Traiies de Legisla-
tion, p. 284 (Bowring iii., p. 190). The conditions of the chase prevailing
in Bentham's days may be illustrated by an extract from a circular issued
by the Duke of Devonshire, in 1797, as to fourteen of his manors:
' His Grace the Duke of Devonshire, from his munificent Disposition,
has resolved to devote certain Moors for Grouse Shooting, to Gentlemen
resident in the neighbourhood thereof, on applying to Mr. S. of S. for
tickets, and using them with Discretion. . . . His Grace thinks this
mode the most likely to afford pleasure to his Friends, and hopes they'll
consider it right in him to Discharge such as refuse to ask permission,
however qualified. Poachers and Dog Breakers will be prosecuted, of
which they have this Notice.' ' The present system of the Game Laws,'
wrote Sir Samuel Romilly on May 18, 1818, 'is a most pernicious one,
and is productive of great misery and of enormous crimes.' (C. M. A.)
CHAPTER XIX.
ANOTHER MODE OF ACQUISITION : TITLE BY CONSENT.
IT is possible that, after coming into possession of some-
thing by a lawful title, we may wish to part with it and
cede the enjoyment of it to another. Will such an arrange-
ment be ratified by law ? Without doubt, it ought to be.
All the arguments which might have been urged on behalf
of the transferor have now changed sides, and may be
urged on behalf of the transferee. Besides, the original
proprietor must have had some motive for wishing to give
up his property. When we speak of a ' motive/ we intend
some ' pleasure,' or something equivalent to a pleasure: the
pleasure of ' friendship ' or ' goodwill,' if the thing be given
up for nothing; the pleasure of 'acquisition,' if it be
treated as an object of barter; the boon of ' security,' if it
be ceded as a safeguard against some mischief ; the pleasure
of ' reputation,' if the disposition be designed to acquire
the esteem of one's fellow-creatures. We thus see that the
aggregate enjoyment of the two parties interested will,
assuredly, be augmented by the transaction. The transferee
now stands in the shoes of the transferor, so far as relates
to the advantages enjoyed before the transfer, while the
transferor secures a new and additional advantage. We
may, then, lay down as a general maxim that ' every aliena-
tion imports advantage.' A benefit of some kind always
results from it.
If it is a question of ' exchange,' it will be observed that
there are two alienations, each of which has its separate ad-
vantages . The advantage to either of the contracting parties
222
Another Mode of Acquisition : Title by Consent. 223
consists in the difference between the value to him of the
article he acquires and the value which he places upon the
article that he gives up. In every transaction of this kind
there are brought into being two new masses or portions
of enjoyment; and herein lies the true benefit of commerce.
We may add that, in every craft, there are many things
which can only be produced by the co-operation of a large
number of workmen; and, in all such cases, the labour of
a single workman would be of no value to himself or to
others if he could not exchange it.
2. Reasons for invalidating Exchanges. There are, how-
ever, some cases in which the law ought not to give its
sanction to an exchange, or in which the interests of the er |j e be set
parties ought to be adjusted as if the bargain had not been
struck. This is so where, instead of being advantageous,
the exchange would prove injurious either to one of the
parties or to the general public. The various reasons for
invalidating exchanges may be ranged under the eight
heads following: (a) Unfair concealment; (/3) Fraud;
(7) Undue coercion; (8) Subornation to the commission of
crime ; (e) Erroneous belief in the existence of legal obliga-
tion; () Erroneous belief as to value ; (17) Legal prohibition :
infancy; madness; (0) Things likely to become hurtful by
the exchange.
(a) Unfair Concealment. If the object acquired proves Unfair con-
of less value than its new proprietor had supposed when
he made the bargain, he naturally experiences regret, and
feels the pain of disappointment. If this value is below
that which he has given in exchange, instead of making a
gain he has made a loss. It is true that the other party
has secured an advantage ; but the ' good of gain ' is not
equivalent to the ' evil of loss.' I have, we will suppose,
paid ten pounds for a horse which, if sound, would be worth
that sum ; but, seeing that he is broken-winded, he is only
worth two pounds. This results in a gain of eight pounds
to the seller, and the loss of a like amount to me; but if
224 Principles of the Civil Code. [CHAP.
the interests of the seller and myself are balanced and com-
pared, it will be found that the bargain is not, on the whole,
a beneficial one. If, however, this depreciation in value
was not known to the original owner when the bargain was
struck, why should the bargain be avoided ? Why should
the original owner be compelled to make a re -exchange of
a disadvantageous character ? The loss must fall upon
someone, but why upon him rather than upon the other
party ? Suppose, even, that this cause of depreciation
was within his knowledge, was it his duty to disclose it
voluntarily, or would he be justified in leaving it to the
purchaser to make inquiry ?
There are, it would seem, two questions that always
arise when considering whether a bargain should be avoided
on the ground of ' unfair concealment.' Was the existence
of the defect within the knowledge of the vendor ? If so,
was it one of the cases in which a vendor should be com-
pelled to make voluntary disclosure ? The solution of these
questions involves too much detailed investigation to find a
place here, especially as it is impossible to propound a general
solution applicable in all cases, various modifications being
necessary according to the varying types of subject-matter.
(/5) Fraud. This case is simpler than the one preceding.
Fraudulent acquisition must never be permitted, when it
can be prevented ; it is in the nature of an offence, border-
ing on theft. We will suppose that you had asked the vendor
whether his horse was broken-winded, and that he had
answered in the negative, well knowing the animal to be
suffering from that defect. To give legal sanction to such
a bargain would be to reward crime. Add to this the reason
mentioned in the preceding case namely, that the evil
accruing to the purchaser is greater than the advantage
accruing to the vendor and you will plainly see that this
cause of avoidance is well founded.
(y) Similar observations apply to Undue Coercion. Sup-
pose that a vendor, whose horse is worth only two pounds,
xix.] Title by Consent : Invalidating Exchanges. 225
constrains you, by violence or threats, to purchase it for
ten. Assuming that you would have been willing to give
two pounds for it, the excess is so much money obtained
by crime. No doubt even this loss may be advantageous
to you in comparison with the mischief with which you were
threatened in case of refusal to acquiesce in the vendor's
demands ; but neither such a comparative advantage, nor
the positive gain of the delinquent, can possibly counter-
balance the evil of the crime.
(5) So, too, with Subornation. By this term I intend the Suboma-
f f i . i . i i *ion to the
payment ot a price tor some service which involves the commis-
commission of crime, as where money is offered to a man crime,
to seduce him into giving false testimony. There are two
advantages gained by such a bargain that of the suborned,
and that of the suborner but these same advantages are
in no wise on an equal footing with the evil of the
offence. I may remark, in passing, that, in case of fraud,
undue coercion, or subornation, the law is not content
merely to annul the bargain ; it seeks to countervail
such action in more drastic fashion by means of positive
punishments.
(e) Erroneous Belief in the Existence of Legal Obligation. Mistaken
We will suppose that you have caused your horse to be Existence
handed over to a man in the mistaken belief that your obligation
steward had sold the horse to him, or under the erroneous
impression that the man was authorized by Government
to insist on delivery of the horse for some State service : in
a word, that you conceived yourself to be under a legal
obligation to part with the animal, whereas in truth and
in fact no such obligation existed. If, when the mistake is
discovered, the act of transfer were to be affirmed, the pur-
chaser would find that he had made an unexpected gain, the
vendor that he had suffered an unforeseen loss. But, as
we have already seen, the ' good of gain ' is not to be
compared with the ' evil of loss ' : besides, this case may be
regarded as one of ' undue coercion.'
VOL. I. Q
226 Principles of the Civil Code. [CHAP.
to (^ Erroneous Belief as to Value. If, when parting with
anything, I am in ignorance of some circumstance which
tends to increase its value, I shall, on discovering my error,
experience the feeling of regret which accompanies a loss.
But is that a sufficient ground for avoiding the bargain ?
On the one hand, if such a ground of annulment be un-
reservedly allowed, we run a grave risk of discouraging
trade; for what security can I have for any acquisition I
may make if it is to be open to the former owner to break
his bargain by simply saying : * I did not know what I was
about ' ? On the other hand, I should certainly feel a keen
pang of regret, if, after having sold a diamond as a fragment
of crystal, I could find no means of recovering it. To hold
the balance equal between the parties, we must adapt our-
selves to the many diversities of circumstance and subject-
matter. We must always inquire very closely whether
the ignorance of the vendor was not the result of some
negligence on his part; and, even if the case be one that
calls for cancellation of the contract, we must, above all
things, take care to provide for the due protection of the
buyer, whose interest would point, of course, towards a
confirmation of the bargain.
But it may well happen that a contractual arrangement,
free from all these defects, will yet, in the end, turn out to
be attended by some disadvantage. You bought this horse
for a particular journey, and the journey is never made.
You were ready to start, when the jade fell ill and died.
You set out on your journey, but the animal threw you and
broke your leg. You bestride your steed, but it is with the
object of committing highway robbery. The fancy which led
you to make the purchase has passed away, and you resell
at a loss. We can conceive an infinite number of such con-
tingencies cases in which something, no matter what,
acquired on account of its value for some purpose, be-
comes useless, or burthensome, or hurtful either to the
acquirer or to somebody else.
xix.] Title by Consent : Invalidating Exchanges. 227
Now, do not these cases constitute exceptions to the
general rule that every exchange imports advantage ? Do
they not furnish reasons for avoiding a bargain as sound
as any others which have been advanced for such avoid-
ance ? The answer is, No !
All these adverse contingencies are but casual events,
arising after the conclusion of the bargain. In ordinary
cases, an article is worth what it will fetch. The aggregate
advantage of beneficial exchanges is far greater than the
aggregate disadvantage of unprofitable bargains. The gains
of commerce exceed the losses, as may be judged from the
fact that the world is richer in our own time than it was in
the rude days of old. Sales and exchanges ought, therefore,
in general to be encouraged. But to cancel them on the
ground of casual and accidental loss or disadvantage would
be in the nature of a prohibition; for no one would be will-
ing to sell, no one would consent to buy, if the bargain
might at any moment be avoided, in consequence of some
subsequent event which could not be prevented nor, even,
foreseen.
M Leqal Prohibition. There are certain cases in which Le ? a ! Pro-
v " . . hibition of
the legislator, foreseeing the mischief that may arise, pro- contract:
hibits agreements in advance. It is thus that, in several infants;
countries, spendthrifts are placed under an ' interdict ' ;
that is to say, all bargains made with them are declared
void. But, from the beginning, the circumstance that
creates the risk of loss is palpable enough that is to say,
the bent or disposition which renders a spendthrift unfit
to manage his affairs. And everyone may readily learn
of the incapacity with which such an one is struck by the
protecting hand of Justice.
In every country a similar ' interdict ' is promulgated
in the two analogous cases of Infancy and Insanity. I
say analogous, because what a child is for a time that one
can delimit tolerably well (albeit by lines of demarcation
always more or less arbitrary) a madman is for a time that
228 Principles of the Civil Code. [CHAP.
is indeterminate or, it may be, con-terminous with his
natural life.
The reason for prohibition is the same as in the case of
spendthrifts ; for minors and persons of unsound mind are,
in the nature of things, either ignorant, rash, or prodigal.
This we may assume as a matter of general observation,
which does not need to be proved by particular instances.
It is, of course, manifest that this kind of ' interdict '
can extend only to transactions of a certain degree of
importance. To apply it rigorously to the acquisition of
trifling objects of daily consumption would amount to con-
demning all three classes to die of hunger.
Prohibition (6) Things likely to become Hurtful by the Exchange. In
ability of conclusion, we must note that the law avoids certain bar-
conse- gains on account of some probable inconvenience that may
result. Suppose that I have property situate on the
frontier of the country. If it got into the hands of the
neighbouring power, my estate might become the centre
of hostile intrigues, or facilitate warlike preparations that
threatened danger to my fatherland. Whether or no such
results occur to my mind, it behoves the law, in the public
interest, to note them very carefully, and to obviate any
possible mischief from transactions of this type, by refusing
in advance to accord to them its sanction. 1
To this same head we must refer the restraints which it
has been thought right to place upon the sale of drugs
capable of being employed as poisons. So, too, any pro-
hibition of the sale of murderous weapons ; as, for example,
stilettos, of which such frequent use is made in Italy even
in the course of quite trifling quarrels. And on the same
1 Most States, perhaps without due consideration, have met this
danger by a general prohibition against the acquisition of land by
foreigners. But this is going too far. The reason for such prohibition
does not extend beyond the particular case mentioned in the text; and,
indeed, the foreigner who wishes to buy real estate in my country gives
the least equivocal proof of his goodwill towards it, and the surest
pledge of good behaviour. The State can but gain by the transaction,
even from a financial point of view (Duinont).
xix.] Title by Consent : Modification of Bargains. 229
ground, well or ill founded, rest all prohibitions relative to
the introduction or sale of certain articles of commerce. 1
In most of these cases it is customary to say that the
* contract is void in itself.' It is only necessary to open J
the law books to see what balderdash has been based on itself
this mistaken notion, and into what pitfalls the lawyers
have plunged by failing to grasp that the only cause for
avoiding contracts, made in these circumstances, is that
they are attended by more evil than good. Having pro-
nounced these transactions to be void in themselves, it
would follow, if, indeed, we are to be consistent, that they
ought to be of none effect that we must wipe them out
altogether, and leave not a wrack behind.
But there are many cases in which, without changing the
substance of the original bargains, it will suffice to modify
them and adjust any inequalities by the provision of com-
pensation.
No bargain is void in itself : no bargain is valid in itself.
In every instance, it is the law which grants or refuses
validity; but the grant or refusal, as the case may be,
must always be accompanied by reasons. Equivocal
generation 2 is banished from sound physiology: one day,
perhaps, it will be banished, in like manner, from the science
of jurisprudence. This ' void in itself ' is neither more nor
ess than a form of equivocal generation.
3. Of Obstacles to the Alienation of Land. To say that
the power of alienation is useful is as much as to say that
arrangements which tend to prevent its exercise are, in
general, highly injurious.
It is only in respect of real property that such anomalous
arrangements have been adopted, whether in the form of
entails or in the guise of inalienable endowments. 3 And
1 E.g., opium. (C. M. A.)
2 Or, epigenesis, as when minute animals are apparently formed from
putrefaction (generatio equivoca or spontanea). Cf. ante, p. 217, n. (ii).
(C. M. A.)
3 ' Upon the whole, nothing can be more absurd than perpetual
entails. . . . Piety to the dead can only take place when their memory is
230 Principles of the Civil Code. [CHAP.
yet, in addition to the general reasons in favour of powers
of alienation, there are peculiar reasons for the existence
of such powers in the case of landed estates.
(a) He who seeks to get rid of an estate shows plainly
enough that it is not fitting for him to keep it. It is
probable that he cannot, or will not, spend anything on
its improvement; often, indeed, he cannot refrain from
depreciating its future value in order to satisfy some
present need. But, on the other hand, the man who is
anxious to purchase the property has certainly no inten-
tion of diminishing its value ; while it is very probable that
he proposes to enhance it.
It is true that the capital which is employed in the im-
provement of an estate might equally well be employed
in commerce; but, although the advantage accruing from
either form of employment might prove the same so far
as the individual is concerned, it will not be the same to
the State. If applied to agriculture, a given portion of
wealth is more fixed and permanent than if applied to the
transient purposes of trade. In the one case it is im-
movable; in the other, it may be transferred at the will
of the proprietor.
(/?) By mortgaging real property we can raise produc-
tive capital. In this way, a portion of the value of one
part of an estate may be employed in improving the con-
dition of another part of it; while, without recourse to
such an expedient, it is possible that the improvements
could not have been effected at all. To hinder the free
transfer of land is, therefore, to diminish productive capital
almost, it may be, to the extent of the selling value
of the land; for property cannot be mortgaged unless it
is capable of being alienated.
fresh in the minds of men; a power to dispose of estates for ever is
manifestly absurd. The earth and the fulness of it belongs to every
generation, and the preceding one can have no right to bind it up from
posterity; such extension of property is quite unnatural ' (Adam Smith's
Lectures on Justice and Police, ed. E. Cannan, 1896, p. 124). (C. M. A.)
xix.] Title by Consent : Restraints on Alienation. 231
It is true that we are here dealing only with a loan, so
that there is no new capital created by the transaction.
This same capital might, perhaps, have been employed, not
less usefully, by the mortgagee; but it must be observed
that the ampler the opportunities for the application of
capital, the more of it will flow into the country. That
which is provided by the foreigner forms a clear addition to
that already possessed by the inhabitants of the country.
These restraints upon alienation, although condemned
by every principle of sound economics, obtain almost uni-
versally. No doubt they have diminished by degrees, in
proportion as governments have better understood the of Land -
interests of trade and agriculture ; but there still remain
three causes which operate to maintain them :
First stands the desire to check prodigality. But to J^Vrod
obviate this evil, it is in no wise necessary to prevent the tea^y-
sale of land. It will be sufficient to keep up the value, by
not leaving its assessment to the whim of the individual
prodigal. In a word, the specific remedy for this incon-
venience is the interdiction of sales at undervalue.
The second cause is family pride, consorting with that pJJJj| y
agreeable illusion which pictures the successive existence
of our descendants as a prolongation of our own. To leave
to them the same, or about the same, aggregate of wealth
is not enough to satisfy our imagination; we must needs
assure to them the same lands, the same houses, the same
natural objects. This continuity of possession passes for
a continuity of enjoyment, and offers a basis of support to
a fanciful sentiment.
The third cause is love of power, the desire of exercising Love of
control after death. The preceding cause or motive pre- leading to
. . . Endow-
supposes posterity, while this does not. It is to this cause meats,
that we must refer all endowments ; as well those which are
directed to some object of utility, although it may be ill
understood, as those which owe their origin to a mere whim.
If the endowment is directed simply to the distribution
232 Principles of the Civil Code. [CHAP.
of benefits, without imposing any condition or exacting
any service, it seems innocent enough, and its continuance
is not an evil. We must, however, except foundations for
administering doles, allotted without due discrimination,
and calculated only to subsidize mendicity and sloth. The
best of these endowments are those for bestowing charity
upon persons who, in former days, were of somewhat
superior condition; for such bounties afford an oppor-
tunity of conferring on these unhappy creatures more
generous relief than the general regulations would allow.
As to the benefits which are granted only on condition
of the fulfilment of certain duties as in the case of
Collegiate Corporations, Convents, and Churches their
tendency is useful, indifferent, or harmful, according to the
nature of the duties exacted.
It is a strange circumstance, and one worthy of remark,
that these endowments these special laws which the indi-
vidual has established by the indulgence of the sovereign
have generally been treated with more respect than public
laws, which spring directly from the sovereign himself.
When a legislator has sought to tie the hands of his suc-
cessor, the attempt has generally seemed ridiculous, and
has always proved of no avail. Yet, when the most
obscure individuals have arrogated to themselves a
privilege of this kind, no one has dared to say them nay !
It would seem, on general principles, that estates left to
Corporations, Convents, and Churches, must needs decline
in value. Unconcerned for their successors, who are not
bound to them by any tie of blood, the proprietors for the
time being will be apt to drain, to the utmost, property
in which they enjoy but a life interest, and perhaps also,
in the case of a single proprietor advanced in years, to
neglect the necessary repairs. This undoubtedly happens
on occasion; but we must, nevertheless, do justice to
religious communities. They are oftener distinguished
by good than by bad management. While their situation
xix.] Title by Consent : Position of Endowments. 233
is such as to inflame avarice and greed, it tends at the
same time to repress display and prodigality. If there are
causes operating to excite selfishness on the part of the
proprietors, yet there are others which fight against it
through what is called esprit de corps.
It is hardly worth while to enlarge upon the alienation of
public property that is to say, things of which the use is
public, such as roads, churches, and markets; for it is
obvious that, in order to attain their end, their duration
must necessarily be permanent or indefinite, subject to
such changes as circumstances may require.
Objects to
be kept in
view when
framing
laws of
succession.
It must be
ascertained
who shared
in the prop-
erty of the
deceased
during his
lifetime,
and in
what pro-
portions.
Recourse
must, fot
this pur-
pose, be
had to
general
presump-
tions.
CHAPTER XX.
ANOTHER MEANS OF ACQUISITION: SUCCESSION.
ON a man's death, the question arises, How ought his
property to be disposed of ?
The legislator should have three objects in view, in
framing any laws of succession: (i) To provide for the sub-
sistence of the rising generation; (2) to prevent the pain
of disappointment; and (3) to aim at the equalization of
fortunes. Man is not a solitary being. With very few ex-
ceptions, there gather around him a group of associates,
more or less numerous, who are bound to him by ties of
kinship, marriage, friendship, or service who, in fact,
share with him the enjoyment of property which, in point
of law, belongs to him alone. For many of them, his for-
tune is, commonly, the sole source of subsistence ; and, if
we seek to avert the misfortunes which would fall upon these
people should death, in robbing them of their benefactor,
deprive them also of the subsidies drawn from his fortune,
we must ascertain who it was that shared in the enjoyment
of his property, and in what proportions.
Now, as these are facts which could not be ascertained by
direct and positive proof without an entanglement of in-
finite disputes and much intricate procedure, it has been
found necessary to have recourse to general presumptions,
as the only basis on which a law can be established.
The share in the property of the deceased formerly en-
joyed by any particular survivor is to be presumed from
the degree of affection which may be supposed to have
subsisted between the two ; and it might be said th'at this
234
Another Means of Acquisition : Succession. 235
degree of affection may, in turn, be presumed from the
proximity of kinship.
Now, if such proximity could be treated as the only con-
sideration, the law of succession would be a very simple
matter. In the first degree of relationship to yourself
there stand all those who are related without any inter-
mediate connection : your wife, your husband, your father,
your mother, and your children. In the second degree
there stand all those whose connection with you involves
the intervention of a single individual, or the joint inter-
vention of a couple of individuals: your grandfathers and
grandmothers, your brothers and sisters, and your grand-
children. In the third degree come those whose connection
involves two intermediate generations: your great-grand-
fathers and great -grandmothers, your great-grandchildren,
your uncles and aunts, nephews and nieces.
But, although such an arrangement would be absolutely
perfect so far as simplicity and uniformity are concerned,
it would not serve the political and moral ends which must
be kept in view. Nor would the arrangement really be
one based on the degrees of affection, of which the degrees
of relationship are supposed to afford presumptive evi-
dence; while it certainly would not accomplish the prin-
cipal object, which is to provide for the wants of the rising
generation. Let us, then, give the go-by to this genealogical
arrangement, and adopt one founded upon the principle of have pre-
* r * ferenceover
utilitv : it consists in always qivinq to the descendinq line, ascending
J J J or collateral
however long, a preference over the ascending or collateral line.
line in giving the preference to every one of the descen-
dants of each parent, at the expense of all those who cannot
be reached without taking another step in the ascending
line.
It must, however, often happen that the presumptions
of affection and of need, which form the basis of the scheme,
will, in practice, prove ill-founded, so that adherence to
the rules would result in failure ; but, as we shall see, the
236
Principles of the Civil Code.
[CHAP.
Suggested
model
statute.
No dis-
tinction
between
sexes.
Widow to
retain half
of common
property.
Other half
to be dis-
tributed
among
children
in equal
shares.
Share of
deceased
child to go
to that
child's
issue.
power of disposition by will offers an effective remedy for
the defects of the general law, and this, indeed, supplies the
principal ground for maintaining the existence of such a
power.
So much for general principles. But how ought they to
be applied in detail when it becomes a question of deciding
between a crowd of claimants ?
The model of a statute, in the form of a code, will serve
in the place of elaborate disquisitions.
ARTICLE I. Let I here be no distinction between the sexes ;
what is said of one sex extends also to the other. The portion
of the one shall always be equal to that of the other.
REASON The Advantage of Equality. If there be any
difference, it should be in favour of the weaker sex in
favour of women, who have more needs, coupled with less
opportunity of acquisition and less chance of employing
profitably the means which they possess. But it is the
stronger who, in point of fact, have always enjoyed the
preference. Why ? Because the stronger have made the
laws.
ARTICLE II. After the husband's death, the widow shall
retain half the common property, unless the marriage contract
expressly provides otherwise.
ARTICLE III. The other half shall be distributed among
the children, in equal shares.
REASONS. (a) Equality of affection on the part of the
father; (/3) equality of joint occupation on the part of the
children; (7) equality of needs; (&) equality of all imagin-
able reasons on the one side and on the other. Differences
of age, temperament, talent, strength, etc., may bring
about certain differences in their actual needs; but it is
impossible for the law to assess such differences. It is for
the father to provide for them by exercising his right of
making a will.
ARTICLE IV. // the child die before the father, leaving
children, the share of such child shall be divided among his
xx.] Another Means of Acquisition : Succession. 237
children in equal portions ; and so on for all their descendants
to any degree.
REMARKS. This distribution per stirpes, instead of a
distribution per capita, is preferred for two reasons : (a) To
prevent the pain of disappointment. That the portion of
an elder child should be diminished by the birth of each
younger one is a natural event which should be well within
the range of expectation. But, as a general rule, when one
of the children begins to exercise his reproductive faculty,
that of the father is nearly exhausted; and, at that time,
his children naturally suppose that they have reached the
point when there will be no further diminution of their
respective portions. If, however, each grandson or grand-
daughter were to produce a diminution in like degree as
each son or daughter, the final diminution would know no
limit ; and there would cease to be any fixed data on which
to form a plan of life. (/:?) Grandchildren have, as an
immediate resource, the property of their deceased father.
It is in respect to the fruits of the paternal industry, for the
most part if not exclusively, that they have been used to
enjoy a joint occupation, apart altogether from their grand-
father. It should be added that, in the property of their
mother and her relations, they have a resource which is in
no wise open to the other children of their grandfather.
ARTICLE V. If there be no descendants, the property shall if no issue
ji *T~ J *T~ property to
go to the father and mother, in common. go to
REMARKS. Why to descendants before all others ? common" 1
(a) Pre-eminence in the matter of affection. Any other the
arrangement would be opposed to the wish of the father,
We love those who depend upon us better than those upon
whom we depend. It is more agreeable to command than dante ;
to obey, (ft] The circumstance that their need is greater.
It is quite certain that our children could not exist without
us, or someone who should take our place. It is probable
that our parents could exist without us, as they existed
before we came into being.
238 Principles of the Civil Code. [CHAP.
Why should the succession pass to the father and mother
rather than to the brothers and sisters ? (i) The fact of
closer relationship raises a presumption of superior affec-
tion. (2) It is a return for services rendered, or, as we
may put it better, compensation for the cost and cares of
education. What constitutes the relationship between my
brother and myself ? Our common kinship with the same
father and the same mother. What is it makes him dearer
to me than any other comrade with whom I may have
spent an equal portion of my life ? It is because he is
dearer to those who have the first hold on my affections.
It is not certain that I owe anything to him; but it is
certain that I owe everything to them. Hence, at all times
when the stronger claims of my children do not conflict
with such action, I ought to make my parents a recompense
to which no brother can pretend.
ARTICLE VI. // either of the two parents be dead, the
portion of the deceased shall go to his or her descendants, in
the same way as it would have gone to the intestate's own
descendants.
REMARKS. In the families of the poor, whose property
consists solely of household furniture, it will be better that
everything should pass to the surviving father or mother,
subject to the burden of providing for the maintenance of
the children. The expenses attendant upon a sale and the
dispersion of the effects would greatly impoverish the sur-
vivor, while the portions, too small to serve as capital,
would soon be dissipated.
ARTICLE VII. In default of such descendants, the whole
of the property shall go to the surviving parent.
ARTICLE VIII. // both father and mother be dead, the
property shall be divided, as indicated above, among their
descendants.
ARTICLE IX. But the share of the half-blood shall be
only half as great as the share of the whole blood, if any
such there be.
xx.] Another Means of Acquisition : Succession. 239
REASON Pre-eminence in the Matter of Affection. Of
the two ties that bind me to my brother, there is one only
that binds me to my half-brother.
ARTICLE X. In default of relations in the degrees afore- case of no
said, the property sJiall pass to the public exchequer. within
ARTICLE XI. But only on condition of distributing the degrees.
interest by way of life annuities among surviving relations
in the ascending line, in whatever degree, in equal portions.
REMARKS. The last two Articles may be adopted or
not, according to the state of the particular country in
relation to taxes ; but I have been unable to find any sound
objection to this fiscal resource. It will be said that the
collateral relations, excluded by this arrangement, may be
in a needy condition; but their need is a circumstance, in
itself, too casual to justify the framing of any general rule
of law. They have, as a natural resource, the property of
their respective parents; and they cannot have formed
their expectations or based their plan of life in reliance
on any such contingency. On the part of an uncle, even,
the expectation of taking by inheritance from his nephew
must be very slight; and a positive law would be quite
enough to lay any such hope quietly to rest, or to prevent
its ever being born. An uncle has not the claims of a
father or grandfather. It is true that, in the event of their
death, the uncle may have filled their place and acted as
a father to his nephew. That is a circumstance which well
deserves attention by the legislator. The power of testa-
mentary disposition may serve to meet such a case ; though,
of course, that mode of obviating any inconvenience
arising from the general law would be of none effect should
the nephew die at a tender age, before he acquired the right
to make a will. If, then, it were desired to modify this
fiscal regulation, the first exception should be in favour of
an uncle ; it may be so far as the capital value of the prop-
erty is concerned, or it may be so far only as affects the
interest derivable from it.
240 Principles of the Civil Code. [CHAP.
dfvfs1on f ARTICLE XII. To effect a division among several heirs,
property to the property shall be put up to auction, reserving to such
auction. heirs the right of making any other arrangement if they are
all agreed.
REMARKS. This is the only means of avoiding com-
munity of goods, an arrangement of which we shall show
elsewhere the pernicious consequences. 1 Any goods com-
prised in the inheritance, which possess a value ' of affec-
tion,' will find their true price by reason of the competition
of the inheritors, and will be applied to the common ad-
vantage, without giving rise to the family disputes which
sometimes occasion lasting ill blood.
Fending ARTICLE XIII. Pending the sale and distribution, every -
to d have^ le ^ing shall be entrusted to the care of the oldest male of full
custody if aqe, with power to the court, for qood cause, to make other
of full age ; ' ",.-77
arrangements if there be apprehension of bad management.
REMARKS. Women, as a rule, are less fitted than men
for money matters or intricate business; but a particular
woman may have some special aptitude, and, if such an one
be recommended with the general approval of the relatives,
she ought to be given the preference.
iu default, ARTICLE XIV. In default of a male inheritor of full age,
guardian, everything shall be entrusted to the guardian of the oldest
male, reserving a discretionary power as in the last Article.
if property ARTICLE XV. The succession which, for want of natural
crown, inheritors, falls to the public exchequer shall, in like manner,
same to be , , . , ,
sold by be disposed of by auction.
REMARKS. A Government is incapable of deriving the
greatest advantage from specific pieces of property. Their
administration of such property costs much, yields little,
and leads to rapid deterioration. This is a truth which
Adam Smith has established. 2
Smarts -^ seems to me *^ a * ^ s statutory scheme is simple, con-
cise, and easy to be understood ; that it does not lend itself
1 See post, pp. 257 et seq.
2 Cf., e.g., Wealth of Nations, book v., chap, ii., part i. ; and see book v.,
chap, i., part iii., art. i. (C. M. A.)
xx.] Another Means of Acquisition : Succession. 241
to chicane, fraud, or diversity of interpretation. It seems,
moreover, to conform with the affections of the human
heart and with the inclinations which so constantly spring
from our social relations. It is, therefore, calculated to
conciliate, as well the favour of those who lean to considera-
tions of sentiment as the approval of those who base their
judgments on reason and argument.
Such as censure my plan for its simplicity, and conclude
that, at this rate, the law would no longer be a science,
may find wherewith to satisfy themselves, and, indeed,
find cause to marvel, in the labyrinth of the English com-
mon law of succession. To give my readers any idea of the
difficulties of this subject, it would be necessary to begin
with quite a dictionary of new words ; and then, when they
discovered the absurdities, subtilties, cruelties, and frauds,
with which the system abounds, they would suppose that
I had composed a satire, and wished to insult a nation
otherwise so justly renowned for its wisdom. But, on the
other hand, we ought to note that the power of making a
will reduces this evil until it is confined within tolerably
narrow limits. It is only in the case of successions follow-
ing on intestacy that we are compelled to travel along
the winding and devious paths of the common law. Wills
may, therefore, be likened to the arbitrary pardons which
temper the harshness of our penal laws. 1
1 Between 1803 and 1810, although no fewer than 1,872 persons were
sentenced to death for minor thefts and divers small offences against
property, one only of those sentences was in fact executed. Down to
the end of the reign of William IV., after every sitting at the Old
Bailey a report was made by the Recorder to the King in Council, the
King himself being always present in person, The list of cases was
then carefully examined with a view to the granting of pardons. See
Stephen's History of Criminal Law, vol. ii., p. 88. (C. M. A.)
VOL. I.
CHAPTER XXI.
CONCERNING WILLS.
1. THE law, having no cognizance of the varying circum-
stances of particular persons, cannot accommodate itself
to the diversity of their wants. All that can be required
of it is to afford individuals the best possible opportunity
of meeting and providing for those wants. It remains for
the particular property owner, who can and ought to know
the special circumstances in which those who depend upon
him will be found at his death, to correct the imperfections
of the law in events which it could not anticipate. The
power of making a will is an instrument placed in the hands
of individuals for the prevention of private distress.
2. This same power may also be regarded as an instru-
ment of authority, entrusted to individuals for the en-
couragement of virtue and the repression of vice in the
family circle. The force might, it is true, be employed to
produce an exactly opposite effect ; but instances of such uses
are, happily, rare. It is, in fact, the interest of each member
of a family that the conduct of every other member should
conform with virtue that is to say, with general utility.
Passion may prompt casual deviations ; but the laws must
be framed with reference to the ordinary course of events.
Virtue is the staple element in society ; and we find even
vicious parents prove themselves as jealous as other folk
for the probity and repute of their offspring. Many a man,
lax enough in his business relations, would be greatly con-
cerned if his secret practices were revealed in the bosom
of his family; and, amidst the home circle, he will never
242
Concerning Wills. 243
cease to pose as an apostle of the integrity on which he in-
sists in those who there attend him.
In this regard, then, every property owner should enjoy
the confidence of the law. Clothed with the power of
making a will, which involves the exercise of a sort of legis-
lative function in the matter of rewards and punishments,
the man may be looked upon as a magistrate appointed to
preserve good order in the tiny kingdom which is called
his family. Now, this magistrate may well prove partial
or unjust; and, as he is not restrained either by publicity
or by responsibility, he would seem likelier than another
to abuse his power. But this risk is more than counter-
balanced by the bonds of interest and affection, which
incline his disposition to accord with his duty. The natural
attachment to his children or kinsmen supplies a pledge
of good conduct, as binding as any that can be secured in
the case of a political magistrate. So true is this that, all
things considered, the authority of this non-commissioned
magistrate, besides being absolutely essential so far as
young children are concerned, will, even as to adults, be
oftener found to prove salutary than hurtful.
3. The power of making a will is of advantage from
another point of view. It affords its possessor an oppor- win is of
tunity of appearing in the character of ' master,' not for to Testator
the good of those who obey, as displayed in the preceding lifetime,
article, but for the benefit of the man himself, who is thus
in a position of command. For by this means the power
of the present generation may, in some measure, be spread
over the future ; and, in a sense, the wealth of each property
owner may be doubled. By the expedient of a bill or
assignment not operative until he shall be no more, the
proprietor may procure for himself a number of advantages
outside the range of his actual endowments.
By extending the submission of children beyond the J* operates
. . . to prevent
term of their minority, the return for paternal care is en- ingrati-
larged; while, as a parent, he secures an additional assur-
244
Principles of the Civil Code.
[CHAP,
ance against ingratitude. And, though it would be pleasing
to think that such precautions are superfluous, yet, when
we reflect upon the many disabilities of old age, we feel
that they ought to be counterbalanced so far as possible
by artificial attractions. When the sands are swiftly
ebbing in the hour-glass of life, we should foster every form
of support, and it is not without advantage that interest
should then be found to serve as a monitor to duty. It
will be said that, in civilized societies, ingratitude on the
part of children and a contempt for old age are not, in fact,
common vices; but we must not forget that, in greater
or in less degree, the power of making a will already exists
everywhere. It would, however, be possible to inquire
whether these vices are more prevalent where this power
is more restricted ; and we might, accordingly, propose to
settle the question by seeing what happens in the families
of the poor, who have very little to leave behind. But
this mode of settlement would still be imperfect; for the
influence of the testamentary power, established as it is
by the laws, tends to form the manners of society in general,
and these manners, in turn, mould the feelings of indi-
viduals. The power thus conferred on the father enhances
regard for parental authority; and though, by reason of
his poverty, he may have no opportunity of exercising
such authority, yet he is unconsciously benefited by the
general habit of submission engendered by its existence.
But, in making a magistrate of the father, we must be
very careful not to make him a despot. If the children
are prone to err, so also is he; and, though we may give
him the power of penalizing them, it does not follow that
he should have the right of driving them to perish by
hunger. Thus the institution of what is called in France
a legitime provides a convenient mean between domestic
anarchy and tyranny. Even of this legitime the father
ought to be able to deprive his child on grounds prescribed
by law and judicially proved to exist.
xx r.] Concerning Wills. 245
Still another question arises. In default of natural
inheritors, should the property owner be allowed to leave
his estates to whomsoever he may please, whether distant
kinsmen or strangers in blood ? In that event, the fiscal
resource of which we treated in the article on successions absolute ?
would be greatly reduced; it would be entirely confined
to the case of intestates. Here the reasons of utility con-
flict, and we must therefore seek for some middle course.
On the one hand, it may be urged that, in default of
relatives, a man must needs resort to the good offices of
strangers, for whom he conceives an attachment almost as
strong as that which would have bound him to kinsmen.
He ought, therefore, to be in a position to encourage the
expectations and reward the attentions of a faithful ser-
vant, or to soften the regret of a friend who has grown
old in close companionship with him; not to speak of the
woman who, for want of some ritual observance, lacks the
title of ' widow,' or of the bereaved offspring who, in the
eyes of everybody except the legislator, are his children.
Again, if, to swell the public exchequer, you deprive a
man of the power of leaving his property to his friends,
will you not drive him to spend everything on himself ?
If he has no control over the disposal of his capital after
the hour of his death, will he not be tempted to convert
it into annuities terminable with his life ? This would be
to encourage him to be a spendthrift, and almost amount
to making a law against economy.
These reasons certainly outweigh any considerations
based on gain to the public treasury. We ought, at least,
to concede to the property owner, who has no near kinsmen,
the right of disposing of one -half of his property by will,
while reserving the other half for the public. And, indeed,
in this case, to be content with less would, perhaps, be
the means of obtaining more. But it would be better still
to refrain from any attack on the principle which would
allow to everyone the disposal of his property after death,
246 Principles of the Civil Code.
and to refrain from the creation of a class of proprietors
who would look upon themselves as inferior to others by
reason of the legal embargo imposed on one -half of their
fortune.
Principles All that has been said concerning alienations on the part
Alienation of living persons will apply, with equal force, to testa-
testamen- mentary transfers. On most of these points we shall be
feS ' LS led to a just conclusion by considering the conformity
between the two forms of assignment, but on a few points
by considering the contrast between them.
The same causes of avoidance or nullity, which apply to
alienations by the living, apply also to wills ; save that, in
place of ' unfair concealment ' on the part of the trans-
feree, we must substitute ' erroneous supposition ' on the
part of the testator. For example, I bequeath certain
property to Titius, who is married to my daughter, sup-
posing the marriage to be valid, and in ignorance of the
bad faith of Titius, who had contracted a previous, and still
subsisting, marriage.
Death- In dealing with wills, the legislator is placed in a some-
bed' Testa- . ' _.. . ,. . ..,,.
ments. what awkward dilemma, feuppose he allows their validity
when made on the death-bed: testators would, at such a
time, be exposed to undue coercion and fraud.
Suppose he insists on formalities incompatible with this
indulgence. A testator might then find himself deprived
of succour at the moment of his greatest need: inhuman
inheritors might afflict him to hasten or assure the benefits
of a will already executed in proper form. A dying man,
who has nothing to give and nothing to take away, is no
longer to be feared. A number of detailed provisions would
be necessary to reduce all these opposite risks to the lowest
danger-point.
CHAPTER XXII.
OF RIGHTS RESPECTING SERVICES, AND THE MEANS
OF ACQUIRING THEM.
AFTER things have been disposed of, it remains to dis-
tribute services, a kind of property sometimes confounded services,
with things, sometimes presented in a distinct form. 1 How
many kinds of services are there ? As many as there are ways
in which man can prove useful to man, whether by pro-
curing for him some good or by shielding him from some evil.
In the exchange of services which constitutes social ot>1iga- and
intercourse, some services are voluntary, while others are tions *
compulsory. Those which are exacted by law assume the
form of rights and obligations. If I have a right to the
services of another, that other is in a condition of obligation
towards me : the two terms are correlative.
All services were originally of a voluntary character ; and
it is only by slow degrees that the laws have interposed to
convert the more important into positive rights. It was
in this way that the institution of marriage transformed
the hitherto voluntary relations between husband and wife,
parent and child, into relations of legal obligation. In
certain states, the law has, in like manner, converted into
the form of legal obligation the maintenance of the poor
a duty which, among most nations, still remains indefinite
and in no wise compulsory. Political duties of this kind, in
contrast with duties purely social, may be likened to small
enclosures in some common of vast extent, wherein a par-
1 For a fuller discussion of ' services,' see Introduction to the Prin-
ciples of Morals and Legislation, chap. xvi. (26). (C. M. A.)
247
248 Principles of the Civil Code. [CHAP.
ticular kind of culture is fostered with such precautions
as will assure success. The same plants might grow on
the common, and might even be protected under special
arrangements ; but they would always be exposed to greater
risks than in the special precincts prescribed by the law
and safeguarded by public authority.
Yet, whatever the legislator may do, there will always
remain a vast number of services that escape his grip: he
cannot regulate or control them because he cannot define
them; or, perhaps, because the constraint would change
their character and render them actually mischievous.
Any attempt to enforce them by punishment would in-
volve a complex system of inquisitions and penalties, such as
would plunge society into a state of terror. Besides, the
law could not cope with the real obstacles standing in the
way of their performance : there are many hidden forces it
could not bring into play, nor could it create that energy,
that abounding zeal, which surmounts all difficulties, and
is a thousand times more potent than the most express
injunctions.
^ ut tne i m P er f ec ti n of the law in this regard is corrected
social code, by a sort of supplementary law in other words, by the moral
or social code, a code which is unwritten, rests altogether
on public opinion, manners, and usages, and begins just
where the legislative code ends. The duties it prescribes,
the services it imposes, under the names of equity, patriot-
ism, courage, humanity, generosity, honour, disinterested-
ness, do not seek the aid of the laws directly, but derive
their efficiency from other sanctions which supply the
penalties and rewards. As the duties of this secondary
code do not bear the impress of the law, their discharge is
accompanied by more eclat is more meritorious; and the
overplus in the matter of honour happily makes up for
any deficiency in binding force.
Tvfces 0ry After this digression upon morals, let us get back to legis-
lation,
xxn.] Of Eights respecting Services. 249
The kind of service which figures most prominently is
that which consists in disposing of some form of property
in favour of one's fellow. The kind of property which plays
the most important part in a civilized community is money,
a measure of value almost universal. It is in this way
that the consideration of services so often leads us back to
the consideration of things.
In some cases, it is necessary to exact a service in the
interest of the superior who calls for its performance, as,
for example, where the relation is that of master and ser-
vant. In other cases, the right to exact service is estab-
lished in the interest of the inferior who performs it, as, for
example, when the relation is that of guardian and ward.
These two correlative conditions form the basis of all other
social conditions : the rights which attach to them supply
the elements of which all the others are composed. The
father ought in certain respects to be the guardian, and
in others the master, of his child. The husband ought in
certain respects to be the guardian, and in others the
master, of his wife. These conditions are, moreover, capable
either of a certain or of an indefinite duration, and con-
stitute the fabric of domestic society: the rights which
should properly be attached to them will be discussed
hereafter.
The public services of the magistrate and of the citizen
give rise to other classes of obligations, but their determina-
tion belongs to the constitutional code. There are, how-
ever, besides these constant relations, certain transitory
and casual relations in which the law may require the
services of one individual in favour of another.
The means of acquiring rights to services or, in other { 3a *JJ eB to
words, the causes which lead the legislator to create obliga- j;}^ Ra-
tions may be referred to three heads : Sons ga "
(i) Superior Need ; (2) Former Service ; (3) Agreement
or Contract. Let us return to examine these heads in
detail.
250
Principles of the Civil Code.
[CHAP.
i. SUPERIOR NEED. That is, where ' the need for the
service is greater than the inconvenience incurred in
rendering it.'
The care of his own well-being forms every man's con-
stant occupation an occupation no less legitimate than
necessary. 1 For, suppose that we could reverse the prin-
ciple and cause the love of others to predominate over
the love of self, there would result a state of affairs most
absurd and disastrous. Yet many occasions arise when it
is possible to enhance materially the well-being of others
by some slight, perhaps imperceptible, sacrifice of one's
own comfort. And, in such circumstances, to do what
lies in one's power to avert an evil about to overtake another
is a service which the law might well make compulsory ;
while the omission to perform such a service, in cases where
the law had thought fit to exact it, would constitute a sort
of offence which might be styled ' negative,' in contra-
distinction to a ' positive ' offence, committed by a delin-
quent who is himself the direct and instrumental cause of
mischief.
But to exert effort, however slight, may amount to an
evil : it certainly does if such exertion be made compulsory,
for every form of constraint is an evil. We thus see that,
if the law is to exact from you some service in favour of me,
the evil of not receiving it must needs be so great, and the
evil of rendering it so small, that there can be no hesitation
in producing the latter so as to avoid the former. There
are no means of fixing precise limits: every decision must
have reference to the special circumstances of the particular
parties, and it must be left to the judge to determine indi-
vidual cases as they arise.
1 (7/. Bo wring, x. 68, and Bentham's manuscript note: ' There is
no man that doth a wrong for the wrong's sake, but thereby to pur-
chase himself profit or pleasure. This grand truth was not hidden from
Lord Bacon. His was a mind to be struck by the beauty of truth
wherever it met him, but his was not an age when to pursue it to the
utmost was either practicable or safe.' (C. M. A.)
xxii.] Of Rights respecting Services. 251
The good Samaritan, by succouring the wounded travel-
ler, saved his life. It was a noble deed, a virtuous action ;
nay, more, it was a moral duty. But ought there to be
power to make such aid a political duty, and to enforce it
by means of a general law ? No ; not unless the law were
modified by exceptions which would necessarily be of a
more or less hazy character. In this particular case,
for example, it would be proper to exempt a surgeon,
awaited by a number of wounded men in dire need of his
services a soldier hastening to his post to repel the enemy
a parent speeding to the succour of his child in perilous
straits.
The principle of ' superior need ' forms the basis of a
host of obligations. A father's duties towards his children JgJ^ 8
may well prove burthensome to him ; but the evil is as
naught compared with that which would ensue if he left
them destitute. The duty of defending the State may be
still more burthensome ; but if the State were not defended
it would no longer exist. Should the taxes remain unpaid,
government must come to an end; and when the public
functions cease to be discharged, a door is at once opened
to every kind of crime and distress.
It will be understood that the obligation to render a
service should be cast upon any particular individual by
reason of some peculiarity in his position, which seems to
associate him rather than another with the ability, or the
inclination, to perform it. It is on this ground that the
choice of a guardian for orphan children falls upon some
relation or friend, to whom the incidental duties will prove
less burthensome than to a stranger.
2. FORMER SERVICE. Service already rendered, in con- g
sideration whereof there is exacted of him who received the
benefit some compensation, if possible an equivalent, in favour
of him who conferred it.
This case is simpler ; for it is only necessary to assess the
value of the benefit already received, and then assign the
252
Principles of the, Civil Code.
[CHAP.
appropriate compensation. We need not leave so much
to the discretion of the judge.
which ttiere ^ sur g eon > we w ^ suppose, has given aid to a sick person,
arises a who lay unconscious and unable to call for assistance. A
Right to .11
indemnity, bailee has, without any previous request, done work upon
the object bailed to him, or made advances necessary to
secure its preservation. A man has run grave risk in a
fire to save valuable property, or rescue persons in danger.
The goods of a private person have been thrown into the
sea to lighten a vessel and preserve the rest of the cargo.
In all these cases, and in a thousand others that might be
cited, the laws ought to assure compensation equivalent
to the value of the service. This title to an indemnity is
founded upon the best of reasons. Grant the compensa-
tion, and the man who paid it will still be a gainer ; refuse
it, and you leave him, who has rendered the service, in the
position of a loser.
Such a regulation will, indeed, be less in the interest of
him who receives the compensation than of those who
stand in need of such services : it will be in the nature of a
promise made beforehand to every man (to whom there
is presented an opportunity of rendering a service burthen-
some to himself) with the object of preventing the conflict
between a selfish regard for his own interests and his spirit
of benevolence.
Who shall say how many evils might be averted by a
preventive measure of this kind ? In how many cases has
the duty of prudence restrained, and properly restrained,
the promptings of benevolence ? Is it not the part of a
wise legislator to seek a reconcilement ?
It is said that at Athens ingratitude was punished as
an act of bad faith which tended to destroy all traffic in
kindly offices, by hindering the giving of credit in such
transactions. I do not propose to punish ingratitude, but,
so far as possible, to prevent it. Suppose that the man to
whom you have rendered a service should prove ungrateful :
xxii.] Of Rights respecting Services. 253
well, no matter ! the law, which does not reckon upon
displays of virtue, will assure you adequate compensation,
and, on special occasions, will swell the compensation until
it takes the form of reward.
Reward ! Yes ; that is the true means of securing ser-
vices. By comparison, punishment is but a feeble instru-
ment. ment -
Before we presume to punish the omission of a service,
we must make sure that the offender had power to render
it, and had, moreover, no excuse for his omission to comply
with the obligation. Now, all this would involve a process
which might prove difficult and uncertain. Besides, when
men act through fear of some penalty, they only do what
is absolutely necessary to escape it ; but the hope of reward
brings into play our hidden resources, triumphs over
veritable obstacles, and gives birth to prodigies of zeal
and ardour in cases where threats of punishment would
arouse only a spirit of sullen resistance.
In adjusting the interests of the respective parties, three foj
precautions must be observed: (i) To prevent a feigned
generosity from assuming the form of tyranny, and exact-
ing the price of a service which would not have been
accepted at all if it had not been supposed to be disinter-
ested ; (2) not to encourage the greed of gain, which would
snatch a reward for services such as a man might well per-
form for himself, or, at any rate, have secured at a less
cost; (3) not to suffer a man to be overwhelmed by a
crowd of saviours coming to his rescue, all of whom could
not be indemnified without countervailing the whole benefit
of the service. 1
' Former service,' as will be readily understood, forms a
j ust basis for many classes of obligation. On this is founded
1 This may be applied to the situation of a King restored to the
throne of his ancestors at the expense of his faithful adherents, like
Henry IV. or Charles II., an unfortunate situation in which there would
still be malcontents were the whole of the reconquered kingdom to be
distributed by the King among his followers (Dumont).
254 Principles of the Civil Code. [CHAP.
the obligation of a child towards his parents, when, in the
course of nature, the strength of a riper age succeeds the
weakness of his early years: the need for receiving comes
to an end, and the duty of restitution begins. And so,
too, arise the rights of a wife to insist upon a continuance
of the connubial union, although time may have destroyed
the attractions which, in the first instance, supplied its
motive.
Institutions, supported at the public charges, for the
benefit of those who have served the State, rest on the same
principle: reward for past services, employed as an ex-
pedient for insuring future service.
Agree- 3. AGREEMENT OR CONTRACT. That is to say, The inter-
ment or J
Contract.' change of promises between two or more persons, upon the
understanding that they shall be treated as legally binding. All
that has been said of consent in relation to the disposal of
property applies equally to consent in relation to the disposal
of services. There are the same reasons for sanctioning the
interchange of services as for sanctioning the interchange
of property, both resting on the same fundamental axiom
that ' every alienation imports advantage.' No one enters
into an engagement save from some motive of utility.
Dissolution The same reasons which justify the annulment of consent
ment. in the one case justify it also in the other : Unfair Conceal-
ment; Fraud; Coercion; Subornation; Erroneous Supposi-
tion of Legal Obligation; Erroneous Belief as to Value;
Legal Prohibition: Infancy, Madness; Pernicious Ten-
dency of the Contract, without any fault on the part of the
contracting parties. 1
We shall not dwell on causes leading to the dissolution
of an Agreement, which arise subsequently to the making
of such Agreement: (a) Accomplishment; (/?) Compensa-
tion; (7) Express or Tacit Remission; (8) Lapse of Time;
1 To this head we may refer the English law which avoids marriages
contracted by members of the Royal Family, without the consent of the
King (Dumont).
xxn.J Of Rights respecting Services. 255
(e) Physical Impossibility; (() Intervention of some Su-
perior Inconvenience. In none of these cases do the
reasons which sanctioned the service any longer exist ; but
it is only the last two that relate to the literal or specific
execution of the bargain, and may still leave occasion for
compensation. If, in a reciprocal compact, one of the
parties only has performed his part, or if his part be the
more nearly completed, some measure of compensation will
be necessary to restore the equilibrium.
We are here merely attempting to exhibit principles
without entering into details. The particular arrange-
ments made must needs be of infinite variety to correspond
with the great diversity of circumstances ; but, if we grasp
firmly a small number of rules, the various arrangements
will not conflict with each other, and may be all approached
in the same manner. Now, these rules are so simple that
we may give the go-by to any development of them :
(i.) Avoid producing the pain of disappointment.
(ii.) When some measure of that evil becomes inevitable,
diminish it as much as possible by dividing the loss amongst
the parties interested in proportion to their means.
(iii.) Take care, in the distribution, to throw the greater
part of the loss upon the man who might, by the exercise
of care, have prevented the evil ; and in this way you may
punish him for his neglect.
(iv.) Above all things, avoid the creation of some casual
evil greater even than that of disappointment.
GENERAL OBSERVATIONS. We have thus founded a Qbserva-
complete theory of obligations upon the basis of Utility ; onga- 8 to
and have erected the whole of this vast structure on three tionB>
principles : ' Superior Need ' ; ' Former Service ' ; ' Agree-
ment or Contract.' Who would believe that, to reach
notions so simple and so homely, it has been necessary to
open out a new road ? Consult those masters of the
science Grotius, Puffendorf, Burlamaqui, Watel, nay,
Montesquieu himself, Locke, Rousseau, and the whole
256 Principles of the Civil Code.
crowd of commentators. When they are minded to trace
the origin of obligations, they tell us of natural rights, of
laws anterior to man, of the Divine law, of conscience,
of a social contract, of a tacit contract, of a quasi-con-
tract, etc. I know that these ierms are not altogether
incompatible with the true principle, because there is not
one of them that cannot be brought, by explanations more
or less verbose, to signify good and evil; but this indirect
and roundabout process proclaims uncertainty and em-
barrassment, and leads to endless disputes.
contract f These writers have not perceived that a contract, strictly
being en- speaking, can of itself afford no reason, but that it has
tered into is J
no reason, itself need of some original and independent reason as a
in itself, to
uphold foundation. The agreement serves to prove the existence
validity. .
of mutual advantage to the contracting parties, and it is
this reason of utility which supplies its force. By applying
this reason, we may distinguish the cases in which con-
tracts ought to be confirmed, as well as those in which they
ought to be annulled. If the mere contract constituted a
reason in itself, it would always have the same effect ; but
if it be its pernicious tendency which renders it void, it
must be its useful tendency which renders it valid.
CHAPTER XXIII.
COMMUNITY OF GOODS TENANCY IN COMMON : THEIR
INCONVENIENCES.
THERE is no arrangement more clearly at variance with
the principle of Utility than the holding of property in
common, especially that kind of indeterminate community thereto.
in which the whole belongs to everybody.
1. Such an arrangement is an inexhaustible source of
strife and contention : far from being a state of satisfaction
and enjoyment for all the parties interested, it is generally
one of disappointment and discontent.
2. So far as concerns every one of the co-partners, this
undivided property is deprived of a great part of its value.
On the one hand, subject to dilapidations of every kind,
seeing that it is not under the protecting care of individual
interest ; on the other, it fails to undergo any sort of improve-
ments. Why should I be at charges, of which the burden
will be certain and fall entirely upon myself, while the benefit
will be doubtful and, of necessity, shared with others ?
3. The apparent equality of such an arrangement serves
but to veil a very real inequality. Without fear of
punishment, the stronger abuse their greater strength; at
the expense of the poor, the richer folk increase their
treasure. This community of goods always calls to my
mind the sort of monster known to come into being on rare
occasions twins joined together by a ligament. The
stronger necessarily drags the weaker along.
I am not here speaking of the community of property which in-
between husband and wife. Called to live together, and encesdonot
attach.
VOL. i. S
258 Principles of the Civil Code. [CHAP.
to foster jointly their own interests and those of their
children, they ought to enjoy in common a fortune often
acquired, and always preserved, by their united efforts.
Besides, if their wills conflict, the struggle will not last
long; for the law confides to the husband the right of
settling the dispute.
Nor am I speaking of property common to partners in
trade. The object of such community is the mere acquisi-
tion of wealth, and in no wise extends to its enjoyment.
Now, so far as acquisition is concerned, the partners have
one and the same object, one and the same interest; and,
when it becomes a question of enjoyment or consumption,
each partner reverts to his original state of independence.
Moreover, the persons associated in trading ventures are
comparatively few in number: they combine together of
their own free choice, and may break their bonds at will.
So far as relates to joint -proprietorship in land, the condi-
tions are entirely different.
In England, one of the most valuable and undoubted
improvements has been the partition of commons. 1 When
we travel through districts which have recently undergone
this pleasing transformation, we are delighted as by the
sight of some new colony. Harvests, flocks, and smiling
homesteads, have succeeded to the gloom and sterility of
the desert. Happy triumphs of peaceful industry ! What
a useful type of aggrandisement, which inspires no alarm
and provokes no hostility !
But who would believe that in this island, where so much
attention is devoted to agriculture, millions of acres of pro-
ductive land are still left in the deplorable condition of
common holdings ? It is not long since the government,
desirous of learning the real state of its territorial domains,
1 A brief and singularly lucid account of the Enclosure Movements
is to be found in Jenks's Short History of English Law, pp. 267-270. The
necessity for checking abuses arising from the later developments of
these movements was recognized by the passing of the Metropolis
(Commons) Act, 1866, and the Commons Act, 1876. (C. M. A.)
xxiii.] Community of Goods Tenancy in Common. 259
began to collect, in every county, a quantity of detailed
information, which has brought to light a truth so inter-
esting in itself and so well calculated to lead to important
consequences. 1
Apart from accidental circumstances, the inconveniences
of tenancy in common do not arise in the case of ' servi-
tudes ' rights of partial ownership exercised over real
property, such as a right of way, or a right of water-supply.
These rights are, in general, of a limited nature : the value
of which the servient tenement is deprived is not equal
to the value acquired by the dominant tenement; or, in
other words, the inconvenience occasioned to the one is
not so great as the benefit conferred on the other.
In England, a freehold estate worth thirty years' pur-
chase would, if copyhold, be worth only twenty years'
purchase. The reason is that, in the latter case, there is a
lord of the manor possessing certain rights which give rise
to a sort of common tenancy between him and the prin-
cipal owner. But it is not to be supposed that what is lost
by the copyholder is gained by the lord ; indeed, the greater
part of it falls into the hands of the lawyers, and is wasted
on useless formalities or in harassing trifles. This tenure
is a relic of the feudal system. 2
The feudal laws, so Montesquieu tells us, afford a glorious
spectacle ; and he goes on to compare them with some vener-
able and majestic oak-tree. Rather should he have com-
pared them with that deadly upas-tree, the juices of which
1 There may be circumstances which give rise to exceptions from all
ordinary rules. Thus, the citizens of the smaller Swiss cantons possess
the greater part of their lands (to wit, the High Alps) in common. It
may be that this is the only convenient arrangement for pastures not
available except during part of the year. It is, too, possible that this
tenure of land forms the basis of a purely democratic constitution,
well suited to the condition of a people shut up in the bosom of their
mountains (Dumont).
2 ' Villenage, or, as it was later called, " copyhold," has always been
treated as a "local and customary tenure." Nevertheless, though
with many differences of detail, the local tenures were framed on the
common law model' (Jenks's Short History of English Law, p. 32).
(0. M. A.)
260 Principles of the Civil Code.
The feudal act as a poison to man, while its shade destroys all vegetable
life.
This wretched system has introduced into the laws a
confusion and complexity from which it is extremely diffi-
cult to free them ; and, as the system is interwoven through-
out with the doctrine of ownership, it would need very
skilful treatment to destroy the one without making a
perilous attack on the other.
CHAPTER XXIV.
DISTRIBUTION OF LOSS.
' THINGS ' constitute one branch of the objects of acquisi-
tion : ' Services ' form another. And, having treated of
the various modes of acquiring and of losing, or ceasing to
possess, these two objects, the analogy between gain and
loss would seem to indicate as our next task an inquiry
into the various modes of distributing the losses to which
owners of property are liable.
The inquiry will be very brief. Suppose that an article
has been destroyed, or damaged, or has gone astray, so
that the loss has been already incurred. If the owner be
ascertained, the burden of loss falls upon him. If he be
unknown, no one bears it; so far as the whole world is
concerned, it is as though no loss had been incurred at all.
Now, ought the loss to be transferred to any person other
than the owner; in other words, ought the owner, for one
cause or other, to be awarded any solatium ? That is a
matter which will be discussed hereafter in the Penal Code ;
and I will here confine myself to a particular case by way
of illustrating the general principle.
When the vendor and the purchaser of articles of mer- JJ
chandise are at a distance apart, the articles must needs tran8it>
pass through a greater or less number of intermediate
hands. They may be carried by land, or by sea, or over
inland waters; the goods may be destroyed, or damaged,
or they may go astray. Suppose they do not reach their
destination at all, or arrive in an unmarketable condition :
upon whom should the loss fall the buyer or the seller ?
261
262 Principles of the Civil Code.
good? S to I sa y u P on the seller, reserving his rights of recourse
against intermediate agents. By the exercise of care on
his part, the seller may contribute to the safety of the
merchandise : it lies with him to choose the time of despatch
and the mode of transport, as well as to take precautionary
measures by obtaining bills of lading or other necessary
documents. All this should be much easier of accomplish-
ment by the merchant trained in commerce than by the
individual who buys from him. So far as the purchaser is
concerned, it is only by some accident that his efforts can
contribute in any degree to bring affairs to a successful
issue. The ' reason ' of this decision is, then, ' Greater
preventive power,' and the ' principle ' upon which it is
founded that of ' security.'
Special situations may establish the need of departing
from this general rule and of making arrangements to meet
the particular case. For an even more obvious reason,
individuals may depart from it by agreements made be-
tween themselves. I do no more than indicate the prin-
ciples : this is not the place to dwell on their application.
PEINCIPLES OF THE CIVIL CODE.
PART III.
RIGHTS AND OBLIGATIONS ATTACHED TO
VARIOUS PRIVATE CONDITIONS.
INTRODUCTION.
WE now proceed to consider in greater detail the several
rights and obligations which the law should properly
attach to the various conditions comprised in the domestic
or private state. 1 These conditions may be reduced to
four; namely, those of (a) Master and Servant; (ft) Guardian
and Ward ; (7) Parent and Child ; and (8) Husband and Wife.
If the natural or historical order of these relations were
adopted, the last in the list would stand first ; but, to avoid
repetition, we have preferred to begin with the simplest.
The rights and obligations of a father or a husband are a
compound of those of a master and of those of a guardian :
the two first-named conditions are elements of which the
others are composed.
1 In chap. xvii. of the Vue Generate d'un Corps Complet de Legislation
(Traites, etc., vol. i., p. 294; see Bowring, vol. iii., p. 192) we find: ' Un
etat domestique ou civil n'est qu'une base ideale, autour de laquelle se
rangent des droits et des devoirs, et quelquefois des incapacites.' This
' base ideale,' says Austin, is nothing but the fictitious quality (expressed
in another shape) which, according to the scholiastic jurists, forms the
status. It is remarkable, he adds, that Bentham (who has cleared the
moral sciences of loads of the like rubbish) adopts this occult quality
under a different name. The supposition that a status is a quality
inhering in the party who bears it, has every fault which can possibly
belong to a figment. The supposed quality is merely fictitious; and,
admitting the fiction, it will not serve to characterize the object, for the
purpose of distinguishing which the fictitious quality was devised.
Etat is really a collective name for the actual and possible rights and
obligation of some given person, and for such incapacities and exemp-
tions as he may lie under or enjoy (Jurisprudence, edition of 1911, vol.
ii., p. 699). (C. M. A.)
263
CHAPTER XXV.
MASTER AND SERVANT.
Servant and SETTING aside the question of slavery, there is little to
be said about the condition of ' Master,' and the correlative
conditions arising in connection with the various kinds of
' Servants.' All these conditions are the result of bargains ;
and it is for the contracting parties to make such arrange-
ments as suit their own convenience. 1
Master and The condition of 'master,' when considered in relation
Apprentice. . .
to that of an 'apprentice,' is a mixed condition; for the
master is at once master and tutor (or guardian) tutor as
to the craft which he teaches, and master as to the service
and profit that he secures.
The work done by an apprentice (after the time is reached
when the produce of his labour exceeds in money value the
total cost of his training and maintenance) constitutes the
pay or reward of the master in respect of the trouble and
expense already incurred by him.
This reward will, naturally, be greater or less according
to the difficulty that the craft presents. Some crafts may
be learned in seven days; while others might require an
apprenticeship of as many years. The price to be paid
1 According to the doctrine of ' common employment/ a servant,
as an implied part of the contract of service, took upon himself, as
between himself and his master, the natural risks and perils incident
to the performance of his duties in other words, it was held that these
risks were considered in the fixing of the wages. This doctrine was,
however, considerably modified by the Employers' Liability Act, 1880;
and now, under the Workmen's Compensation Acts of 1897 and 1900,
an employer of labour, in the absence of misconduct of a serious charac-
ter, has been made a sort of ' insurer ' of his workmen against accidents.
(C. M. A.)
Master and Servant. 265
for these mutual services will be regulated readily enough
by competition, as in the case of every other object of
commerce; and here, as elsewhere, industry will find its
due reward.
Governments, for the most part, have not adopted this
system of free bargaining. They have sought to introduce gJJJJJV" evil
into the various callings what they are pleased to call
order : to substitute an artificial for a natural arrangement,
so that they might have the gratification of regulating that
which would perfectly well have regulated itself.
Intermeddling in matters of which they knew nothing,
they were generally seized with a craze for applying uniform
rules to objects of a widely different nature. For example,
the ministers of Elizabeth fixed the same term of apprentice-
ship, seven years, alike for the simplest and for the most
difficult crafts. 1
This mania for making regulations is always disguised
under some trivial pretext : a desire to perfect the arts, to
get rid of unskilful workmen, to assure the credit and
renown of national manufactures. 2 Yet, for the achieve-
ment of such objects, a very simple and natural expedient
presents itself. That is, to leave everybody free to use his
own judgment, to choose what is good, to reject what is
bad, to let merit alone determine his preferences ; and in this
way, by unrestrained liberty of competition, to arouse a
spirit of emulation in the breast of every artisan. But, not
so: the public is to be deemed incapable of judging the
quality of work, which must, it seems, be regarded as satisfac-
tory provided that the workman has been engaged in his
1 By statute 5 Eliz., c. 4, which was repealed by the Conspiracy and
Protection of Property Act, 1875. Persons serving seven years to a
trade had an exclusive right to exercise that trade; but following the
trade seven years without any effectual prosecution (either as a master
or a servant) was sufficient without actual apprenticeship. See, further,
Blackstone, book i., c. 14. (C. M. A.)
2 It was further urged that apprenticeships were useful to the common-
wealth by preventing youths from being nourished in idleness, and that
no one would undergo a seven years' servitude unless a monopoly were
created. Cf. n Coke, 54. (C. M. A.)
266 Principles of the Civil Code.
trade for a given number of years. Thus, we should no longer
ask an artisan whether he understands his business, but
how long his apprenticeship lasted. If workmanship is
really to be judged on its merits, it would be well to let
everyone work at his own risk; and, if that were done, we
should find that one man would be a master who had
never been apprentice, while another would remain an
apprentice all his life.
CHAPTER XXVI.
OF SLAVERY.
WHEN servitude assumes the form of a state or condi- Meaning
tion, and the obligation to remain in that state or condi- thereof -
tion (with respect to a certain master or others who derive
title from him) embraces the whole life of the servant, that
state or condition I call ' slavery.'
Slavery is susceptible of many modifications and allevia-
tions, varying with the assessment of services to be exacted
and of coercive measures to be employed. There was a
vast difference in the position of a slave at Athens and at
Lacedsemon; there is still more between that of a Russian
serf and that of a negro slave in the colonies. But, what-
ever may be the limitations on the exercise of authority,
if the obligation of service be unlimited in point of time, I
still call it ' slavery.' In drawing the line of demarcation
between freedom and slavery, we must stop somewhere,
and this point seems the most conspicuous and the easiest
'to determine.
This distinction, dependent as it is on ' perpetuity,' is
peculiarly significant ; inasmuch as such perpetuity, wher- J.g it i 8ar
ever found, weakens, impairs, and renders of doubtful slavery.
value, even the wisest precautions for mitigating the exercise
of authority. Power, when unlimited in point of time, can
hardly be restrained or limited in any wise. If, on the one
hand, we consider the ease with which a master may, by slow
degrees, make the yoke heavier ; the rigour he may employ
in exacting the services that are his due ; how, under divers
pretexts, he may enlarge his pretensions, and seek occasion
267
268 Principles of the Civil Code [CHAP.
to torment a presumptuous servant who dares to refuse
what he does not owe: if, on the other hand, we consider
how difficult it is for a slave to claim or secure the protec-
tion of the law; how much more distressing his situation
becomes after a public breach with his master ; how greatly
it is to his own interest to win the master's favour by
grovelling submission rather than to enrage him by refusals
we shall readily perceive that a plan for mitigating slavery
is a good deal easier to frame than to execute.
We shall see, too, that to prescribe with precision the
services to be rendered is wholly insufficient to alleviate the
lot of the slave ; and that, even under laws most excellently
contrived with this object, it is only the most flagrant
breaches that will ever be punished, while the ordinary
course of domestic rigour will scout and defy the tribunals.
I do not suggest that we must, therefore, abandon slaves
to the uncontrolled pleasure of their master; or that,
because the protection of laws is inadequate, such protec-
tion ought not to be extended to them at all. But it was
necessary to point out the evil inherent in the very nature
of the institution that is to say, the impossibility of sub-
jecting the authority of a master over his slaves to legal
restraint, so as to prevent him from abusing his power,
should he be disposed to abuse it.
That slavery is agreeable to the masters is a fact beyond
the pale of doubt, seeing that they could, of their own
motion, put a stop to it at any moment. That it is un-
acceptable to the slaves is a fact not less certain, inasmuch
as they can nowhere be held in bondage save by compul-
sion. No man who is free would willingly become a slave :
there never breathed a slave who did not yearn for freedom.
It is absurd to discuss human happiness except with
reference to the wishes and sensations of mankind. It is
idle to try to prove, by elaborate calculation, that a man
ought to be happy when he is, in fact, miserable; or that
a state into which no one is willing to enter, and from
xxvi.] Of Slavery. 269
which everyone is anxious to escape, is in itself a pleasant
condition and one agreeable to human nature.
I can readily believe that the difference between freedom
and slavery is not so great as it seems to some ardent and
biassed minds. The habitual endurance of evil, and, in a
still greater degree, ignorance of a more blissful state, serve
to bridge over the chasm between two conditions which, at
first sight, appear so far apart. However, all reasoning from
probabilities as to the happiness of slaves is quite super-
fluous ; for we have the most ample proof that, in point of
fact, slavery is never embraced by choice, but, on the
contrary, is ever an object of aversion.
This condition has been compared with that of a school-
boy prolonged throughout life ; and a great many people,
it is said, declare that their days at school formed the schoolboy,
period of their greatest happiness. The parallel holds
good only in one particular. The circumstance common to
the two conditions is subjection; but it is anything rather
than this circumstance which makes the schoolboy happy.
What renders him happy is a freshness of mind that lends
the charm of novelty to all his impressions; lively and
noisy games with comrades of his own age, contrasted with
the staid solitude of his father's house. And, after all,
how many scholars there are to be found who sigh for the
hour when they will leave school for ever ! Who among
them would elect to remain there for the rest of his days ?
However this may be, if slavery could be established on
such a scale that there would be only one slave for each 8lave>
master, I might, perhaps, hesitate before pronouncing
definitely as to the balance of advantage and disadvantage.
It may be possible that, taking everything into account,
the sum of good in such an arrangement might be almost
equal to the sum of evil. But things cannot be so adjusted.
As soon as slavery is established, it becomes the lot of the
greater number. The masters count their slaves as they
would their flocks and herds, by hundreds, thousands, tens an eviL
270
Principles of the Civil Code.
[CHAP.
of thousands. The advantage is on the side of the one man,
the disadvantages all on the side of the multitude. Though
the mischief of servitude were not great in itself, its extent
alone would serve to render it a very substantial evil.
Speaking generally, and apart from every other considera-
tion, there can, therefore, be no reason to hesitate in pro-
nouncing the loss which the owners would sustain by
emancipation as less than the gain which would result
therefrom to the slaves.
Another very strong argument against slavery is drawn
from its effect upon the wealth and power of a nation. A
free man produces more than a slave. Suppose all the
slaves of a master to be set at liberty, the man would
undoubtedly lose a part of his property; but the slaves, in
the aggregate, would produce not only what the master lost,
but more still.
Now, happiness cannot fail to increase along with abun-
dance, while the public weal grows in the like proportion.
Two circumstances conspire to lessen the productiveness
of slaves : the absence of the stimulus of reward, and the in-
security of their condition. It is easy to understand that
fear of the lash is not likely to extract from a workman all
the exertion of which he is capable, all that he is worth.
Fear disposes him rather to conceal his power than to
exhibit it; to represent himself as below his true level
rather than above it. By performing a work of supereroga-
tion, he would only prepare a rod for his own back: by
displaying his real capacity, he would only increase the
scope of his ordinary duties. In this way a sort of inverted
ambition is created, and industry seeks to move backwards
instead of pressing onward.
Not only does the slave produce less, he consumes more ;
and this, not in outlay on enjoyments, but through waste,
extravagance, and want of thrift. What cares he for
interests which are not his own ? Any toil that he can
spare himself is for him a gain, pure and simple; while any
xxvi.] Of Slavery. 271
damage which he suffers to take place is a loss only to his
master. Why should he contrive new expedients for doing
more work or for doing it better ? To make improvements,
one must think; and thinking is a troublesome process in
which no man engages without a motive. A human being,
condemned to mere drudgery and degraded to the level of
the brute creation, never rises above blind routine; and
generation follows generation without any mark of progress.
It is true that a master who understands his own in-
terests will not dispute with his slaves some small gains
accruing as the fruit of their industry. He knows well
enough that their prosperity is his, and that to spur them
on to labour he must offer them the bait of present reward.
But such precarious favours, dependent on the disposition
of the individual master, will not inspire the confidence
which leads a man to form plans for the future, enables
him to look upon his daily savings as the foundation of
future wealth, and causes him to embrace posterity in his
projects of fortune. Slaves perceive quite clearly that, if
they became richer, they would be exposed to extortion, if
not at the hands of the master, at any rate at the hands
of his stewards and other subordinates, more grasping and
more to be dreaded than the master himself. For the vast
majority of slaves there is, then, no to-morrow: enjoyments
capable of instant realization alone can tempt them. They
become gluttonous, idle, and dissolute, without reckoning
other vices which are engendered by their surroundings.
Those who possess a little more foresight bury their paltry
treasures. Without hope of compensation or remedy for
their ills, the dismal feeling of insecurity inseparable from
their condition fosters in them every fault destructive of
industry, and all the habits most mischievous to society.
Nor is this some vain and abstract theory; it is the result
of actual experience in every clime and in every age. 1
1 ' Slavery in ancient and, doubtless, in all times was a hot-bed of
vice and selfish indulgence, enervating the spirit and vital forces of
272 Principles of the Civil Code. [CHAP.
' ** * s sa ^' so * ar as wor k ^ concerned, the free day-
Dourer i n Europe is almost on the same footing as a
s l ave - A man paid by the piece has, no doubt, an incen-
tive in the shape of reward, and every effort that he makes
receives its recompense: while he who is paid by the day
has no motive other than fear of dismissal; whether he
does little or much, he receives his wages for the day,
there is no question of reward proportioned to services
rendered. If he does less than a fair day's work, he may
be dismissed, just as a slave, in the like case, may be flogged ;
neither is impelled otherwise than by fear, and neither has
any share or interest in the produce of his labour.
In reply to this contention, three arguments may be
advanced :
(a) It is not true that the day-labourer is without the
motive of reward. The most skilful and industrious are
better paid than their fellows ; those who distinguish them-
selves find more regular employment, and are always chosen
to perform the most lucrative tasks. We thus see that
their exertions are really attended by substantial rewards.
(/?) And, indeed, if the man's only motive were the
penalty of dismissal, we should have a greater hold on the
day-labourer than on the slave. The free workman has a
feeling of honour, like the rest of us. In a free country,
shame attaches to a reputation for idleness or want of skill ;
and as, in this regard, the eyes of his comrades are upon
him as well as those of the master, the sanction of honour
or public opinion is brought into play, on a vast number of
occasions, by judges who are in no way concerned to let
him off lightly. We thus see how free workmen exercise a
sort of mutual inspection, and are sustained by a spirit of
emulation. But in the case of slaves this sanction has much
less force. The treatment to which they are subjected
mankind, discouraging legitimate marriage, and enticing to promiscuous
and barren concubinage ' (Merivale's History of the, Romans under the
Empire, edition of 1868, vol. viii., p. 353). (C. M. A.)
xxvi.] Of Slavery. 273
renders them little sensible to a sanction so delicate as that
of ' honour ' ; and, as the injustice of working without return
for the advantage of somebody else cannot escape them,
bondsmen feel no shame in avowing to each other repug-
nance to the toil which is their common lot.
(7) Whatever presents itself to the day-labourer as a
gain is an assured gain ; everything he can earn is his own,
and nobody has any right to touch it. But for the slave,
as we have seen, there is no such thing as real security.
No doubt it would be possible to cite exceptions. For
example, some Russian noble, perhaps, has industrious
serfs who possess several thousands of roubles, and enjoy
their wealth just as their master enjoys his own property;
but these are special cases which do not negative the
ordinary rule. When we come to judge the effects of a
general arrangement or disposition, we must do more than
consider such rare and unusual cases.
In this brief account of the inconveniences of slavery, we
have made no attempt to play upon the feelings or appeal
to the imagination ; we have not cast odium upon the violence or
^ casting uri-
masters as a body by generalizing from particular abuses necessary
of power. We have even refrained from speaking of the masters.
terrible means of rigour and constraint commonly em-
ployed in these domestic governments, without law, without
any forms of process or appeal, without the safeguard of
publicity. We might almost add, without any check ; for, as
we have seen, responsibility cannot be brought home to the
master himself save in certain rare and extraordinary cases.
Everything which savours of sentiment is at once de-
nounced as exaggeration; and here the proofs of plain
reason are so cogent as to stand in no need of any colouring
calculated to excite suspicion. Slave owners, whom per-
sonal interest has not deprived of common-sense and com-
mon humanity, would acknowledge, without demur, the
advantages of liberty over a state of servitude, and would
themselves desire the abolition of slavery if it could be
VOL. I. T
274 Principles of the Civil Code. [CHAP.
achieved without destroying the fortunes of their class
and without impairing their sense of personal security.
The most powerful objection to any project of emancipa-
tion arises from the injustice and calamities which have
attended hasty and ill-considered attempts to secure free-
dom. Such an operation could not be carried out sud-
denly except by means of a violent revolution, which, by
disturbing all the persons concerned, upsetting everything,
and putting everybody in a position other than that for
which he was trained, would certainly produce evils a
thousand times greater than any benefits which could
possibly be expected to accrue.
Purchase of Instead of rendering emancipation burthensome to the
freedom r
out of pro- master, it ought, as far as may be, to be planned so as to
labour. work to his advantage; and the first expedient which
obviously presents itself is the fixing of a price at which
each slave would have the right to purchase his freedom.
But there is a grave objection to the adoption of this
expedient, inasmuch as the interests of the master would
immediately come in conflict with those of his slaves.
He would wish to hinder them from amassing such sums
as would serve for their ransom : his policy would clearly
be to keep them in a state of ignorance and poverty, to
clip their wings as fast as they grew. This danger, how-
ever, arises simply from the fixing of a definite price : the
right to purchase freedom on terms to be mutually agreed
is not attended by any such inconvenience. The interest
of the slave would counsel him to work his hardest that
he might have as large a sum as possible to offer by way
of inducement to his master; while the interest of the
owner would lead him to allow his slave to amass riches
rapidly, so that he might thereby secure a larger ransom.
Linutation A second expedient consists in limiting the power of
testamen- testamentary disposition, so that, where there is no sue-
tary power. **
cessor in the direct line, emancipation should follow as a
matter of right. The hope of inheriting is always very
xxvi.] Of Slavery. 275
slight in the case of more remote kinsmen; and no such
hope would exist at all when the law once became known.
There would be no injustice done where no expectation was
disappointed.
But we might, perhaps, go a step farther. At each S^S* the
change of ownership, even in direct successions, we might jjjjpjj num-
make some small sacrifice of property to liberty for ex- JjJJJ^JJf*
ample, by freeing a tenth part of the slaves. An inherit- ownership,
ance which has just fallen in does not present itself to the
heir as of any fixed and determinate magnitude ; and the
loss of a tithe would scarcely be sensible. At such a time
it would be less a loss than a deprivation of gain ; and a
tax of this kind in the interests of freedom might be made
still heavier in the case of a nephew, who enjoys the hope
of an additional succession from his father.
This offering to liberty ought to be determined by lot.
A choice of those to be freed would, under the pretext of
honouring the most deserving, become a source of intrigue
and abuse; it would give rise to more jealousy and discon-
tent than happiness. The drawing of lots is an impartial
process: it gives everybody an equal chance of success,
and diffuses the pleasure of hope even among those whom
it does not favour; while the fear of being deprived of his
chance, for any one of certain specified offences, would
operate as an additional pledge for the fidelity of the
slave. 1
The emancipation ought to take place by families rather
than by individuals. A father in bondage and his son free
a father set at liberty and his son still enslaved ; what a
1 This expedient might tempt slaves to resort to murder for the
purpose of hastening their emancipation a very serious objection to
this proposal of a lottery. We must note, however, that the very
uncertainty would lessen the danger, as few would be led to commit a
crime from which it was by no means sure that they would reap any
profit. But to eliminate this temptation altogether, it would suffice
that no emancipation should follow where the master was poisoned or
assassinated, whether by the hand of a slave or by the hand of some
person unknown. This expedient for liberation would thus become a
source of security for the master (Dumont).
276 Principles of the Civil Code.
piteous nay, what a shocking contrast ! what an endless
source of domestic grief !
There are, no doubt, other means of hastening this
desirable consummation ; but they can only be discovered
by studying the special circumstances of each particular
country.
Although the legislator cannot at a single blow sever the
t nd C( need ^onds * s l aver y> time by slow degrees will loose them
excite no asunder; and the march of freedom, if delayed, is none the
less sure and steady. The whole progress of the human
mind, of civilization, of public wealth, of commerce, leads
step by step to the restoration of individual liberty. Eng-
land and France were once what Russia, the Polish Prov-
inces, and a part of Germany, are to-day.
Landowners ought not to feel alarm at the change.
Those who possess the soil wield, over men who live by the
sweat of their brow, a power which Nature herself has
bestowed upon them . The fear that emancipated labourers,
free to travel where they list, would forsake their native
soil, and leave the land untilled, is a fear absolutely chimeri-
cal especially if emancipation be brought about by slow
degrees. Because it is found that a slave runs away when
he gets the chance, it is concluded that a freedman would
be even more likely to disappear. But the opposite con-
clusion would be far more just: the motive for flight no
longer exists, while all the motives for remaining are
strengthened.
We have seen certain landowners in Poland, with en-
lightened views as to their real interests, or perhaps ani-
mated by a desire for renown, effect a complete and simul-
taneous emancipation throughout their vast seignories.
Has this generosity resulted in their ruin ? Quite the
contrary. The farmer, having an interest in his own
labour, has found himself able to pay more than the slave;
and lands cultivated by free hands acquire additional value
year by year.
CHAPTER XXVII.
* OF GUARDIAN AND WARD.
THE weakness of childhood demands constant protection.
Everything has to be done for a being of imperfect growth,
who can, as yet, do nothing for himself. The complete
development of his physical powers takes many years ; that *J a ^ e *^
of his intellectual faculties is still slower. A time comes
when he is already possessed of strength and passions,
but is without the experience necessary to regulate them.
Very much alive to the impulses of the moment, and quite
careless of the future, he must be restrained by some
authority more direct than that of the laws ; he must be
controlled by rewards and punishments, not casual, but
continuous, in their operation, which, during the process of
education, may be adapted to his varying moods and
actions.
So, too, when we come to the choice of a calling or pro-
fession, it again becomes imperative that the child should
be made subject to some special authority. Such a choice
must turn upon the personal situation, the expectations,
the talents, the bent of mind, of the particular youth: upon
the readiness with which these circumstances may be
utilized in one direction rather than in another ; in a word,
upon the chances of success. The question is too complex
for the decision of a public magistrate ; every case requires
special consideration, and its decision demands an acquaint-
ance with detail such as no magistrate could ever possess.
This power of protection and control over individuals ' Guardian-
deemed incapable of protecting and controlling themselves
277
278 Principles of the Civil Code. [CHAP.
constitutes * Guardianship ' : a kind of domestic magistracy,
founded on the manifest need of those made subject to it,
and one which ought to be invested with all the authority
necessary to attain its end, but no more.
The power necessary for the education of a ward is that
of choosing his calling and fixing his habitation, together
with the right to reprimand and correct, without which
the authority of the guardian would be of none effect.
But the exercise of such a right may be the more readily
reduced in severity, inasmuch as its application may be
certain, direct, and easily varied, while this form of domestic
government, moreover, has at its disposal an inexhaustible
store of rewards ; for, at an age when everything is received
from the hands of another, there is no act or concession
which may not be made to assume the shape of reward.
^" s to ^ G su ^ s i s ^ ence f the ward, it can be derived from
three sources only : property that he possesses in his own
right, gratuitous donations, or the work of his own hands.
If the ward has property of his own, it is administered in
his name and for his benefit by his guardian ; and everything
that is done in accordance with prescribed forms is ratified
by the law. If the ward has no property, he is maintained
either at the expense of his guardian as in the case most
common of all, where guardianship is exercised by the
child's father or mother or at the charges of some charit-
able institution; or, lastly, by his own labour, as in a case
where he is bound apprentice on such terms that the period
of non-value is made up for by valuable services rendered
at a later period of the apprenticeship.
Guardianship being an office altogether burthensome, its
duties are cast upon those who are most inclined to dis-
charge them and enjoy the greatest facilities for doing so.
The father and the mother, of course, occupy this position
before all other persons. Natural affection would dispose
them to the office with even greater force than the law;
but the law which imposes it upon them is by no means
xxvii.] Of Guardian and Ward. 279
useless. It is because children have been found abandoned
by the authors of their being that such abandonment has
been made a punishable offence.
If a dying father nominates a guardian for his children,
it is presumed that no one could know better than he who
would be likely to have the means and the inclination to
take his place in regard to them ; so that his choice should
be approved unless there exist very strong reasons to the
contrary.
If the father has made no appointment, the duty should
be cast upon some kinsman, who would be drawn by in-
terest to preserve the family property, and by honour and
affection to see to the welfare and education of the children.
In default of kinsmen, the choice should fall on some friend
of the orphans, who would undertake the office voluntarily,
or on some public official specially appointed.
Regard must also be had to circumstances which should
release a particular person from the burthen of guardian-
ship ; as, for example, advanced age, the care of a large
family, natural infirmities, or reasons of prudence or
delicacy, such as a conflict or complication of interests.
Special precautions against any abuse of this office are
to be found in the provisions of penal law : an abuse of Jgjjjf ^
authority as respects the person of the ward is referable power.
to the class of personal injuries; illicit gains derived from
his fortune, to the class of fraudulent acquisitions, etc.
The only matter to be specially considered is the circum-
stance peculiar to such an offence namely, the breach of
trust. But, although this renders the offence more odious,
it is not always a ground for increasing the punishment;
on the contrary, we shall see elsewhere that it is often a
reason for diminishing it, the position of the offender being
such that the discovery of a crime is easier, while repara-
tion is more readily made, and the alarm not so great. In
the case of seduction, this species of relationship adds to
the enormity of the offence.
280
Principles of the Civil Code.
[CHAP.
As to precautions of a general character, we may add
that guardianship has often been severed; the care of the
fortune being assigned to the next heir, who in that quality
has the greatest interest in maintaining and improving the
estate, while the custody of the ward's person has been
granted to some other kinsman more interested in the
preservation of the child's life.
Legislators have on occasion taken further precautions
as, for example, by forbidding guardians to buy the
property of their wards, or by permitting wards, within a
certain period after attaining their majority, to resume the
ownership of lands sold by their guardians. The first of
these two expedients would not seem subject to much
inconvenience; but the second must injuriously affect the
interests of the ward by depreciating the value of his
estate. It is plain that the property would be worth less
to a purchaser if his possession were precarious, and if he
were afraid to undertake improvements which might result
to his disadvantage, by supplying an additional motive for
a resumption of ownership. Both expedients would appear
useless if any sale of the property was bound to take place
in public and under the supervision of a magistrate.
The simplest plan is to allow anyone to act as next
friend of the child in legal process against his guardian,
whether for malversation of funds, violence, or neglect.
In this way the law puts under the protection of every
generous soul these young people who are not, as yet, strong
enough to protect themselves.
Wardship, being a condition of dependence, is an evil to
which we should put an end so soon as there is no danger
of its cessation producing a greater evil. But what age
ought we to fix for emancipation ? In this matter we can
only be guided by general presumptions. The law of Eng-
land has fixed the period at the age of twenty-one years.
This seems far more reasonable than the Roman law, which
prolonged the period of tutelage to the age of twenty-five
xxvii.] Of Guardian and Ward. 281
years, and has in this respect been followed throughout
the greater part of Europe. At the age of twenty-one
years the faculties of a man are developed; he is fully
sensible of his strength and capacity; he yields to counsel
what he refuses to authority, and will no longer suffer him-
self to be held in leading-strings. The result is that any
extension of such domestic authority would often give rise
to a condition of irritation and bitterness injurious alike to
both the parties concerned. There are, however, some
youths who are, so to speak, incapable of reaching the
maturity of manhood, or who attain it much later than
their fellows. Such cases may be provided for by 'inter-
diction,' which is merely a prolongation of the period of
tutelage.
CHAPTER XXVIII.
OF FATHER AND CHILD.
IT has already been pointed out that a father is in some
respects the master, in others the guardian, of his child.
In his quality of master he will have a right to impose
tasks on his children, and to make use of their labour for
his own benefit, until the age at which the law confers on
them a status of independence. This right granted to the
father serves as an indemnity or return for the trouble and
expense incurred in the children's nurture and education.
It is, assuredly, an excellent thing for a father to take
interest and pleasure in the education of his child; and
the joy that he feels in training his offspring is really a
gain to both of them. In his quality of guardian he
enjoys all the rights, and lies under all the obligations, of
which mention has been made in the last chapter.
Under the first relation we consider the benefit of the
father, under the second that of the child. The two
qualities are reconciled readily enough in the person of a
father, by reason of his natural affection, which constrains
him to make great sacrifices for his children rather than
to abuse his rights for selfish purposes.
It might seem, at the first blush, that the legislator need
not interpose at all between a father and his children, that
he might safely rely on the tenderness of the parent and
the gratitude of the offspring. But this view is superficial
and mistaken. It is absolutely necessary on the one hand
to limit the paternal power, and on the other to assure
and sustain filial respect by legal enactment.
282
Of Father and Child. 283
General Rule. We should not confer any power by the Limitation
exercise of which the child would lose more than his parent rights.
would gain. This rule was not observed in Prussia when,
following the Roman precedent, a father was granted the
right of preventing the marriage of his son without any
limitation of age. So far as paternal authority is con-
cerned, political writers have rushed to opposite extremes :
some have sought to render it despotic, as among the
Romans, while others have sought to destroy it altogether.
Certain philosophers, again, have held that children ought
not to be left to the caprice and ignorance of parents ; that tion in
the State ought to take them in hand and rear them in com-
mon. In support of such a scheme, they cite to us the
examples of Sparta and Crete, and of the ancient Persians ;
but they forget that this common education was always
confined to a small class of citizens, the bulk of the popula-
tion being in a state of slavery.
Under any such artificial arrangement there would, of ? b 8ucha 8
course, arise difficulty in distributing the cost and in throw- scheme -
ing the burden of heavy charges upon parents, who no
longer continued to reap, in return, any direct advantage,
and had ceased to be influenced by the motive of tenderness
for their children, now become almost strangers to them.
But, beyond all this, there will arise a more serious incon-
venience, in that the pupils will not, at the proper time,
receive such an education as would fit them to fill the
particular positions to which their diverse and varied con-
ditions in life will afterwards call them.
The very choice of a profession or calling depends on
such a variety of circumstances that it should be made by
none other than the parent: he alone can properly decide
upon the careers best suited to the young people, and most
in conformity with their expectations, talents, and inclina-
tions. Besides, this plan, in which the reciprocal affection
between parent and child is to count for nothing, would
have the most baneful effect possible in destroying family
284 Principles of the Civil Code.
d common ^ es ' weakening the bonds of wedlock, and depriving
fathers and mothers of the delight they find in seeing the
younger generation growing up around them. Would they
busy themselves with the same zeal to promote the future
welfare of children who could no longer be regarded as
really their own ? Would they still be inspired by senti-
ments which they could never hope to find reciprocated ?
Would industry, no longer spurred by paternal affection,
remain as active as ever ? Would not the enjoyments of
the home assume a character less advantageous to general
prosperity ?
As a last argument, I will add that the natural arrange-
ment, which leaves with the parent the choice, the mode,
and the burden of education, may be likened to a series of
experiments, having as their object the perfecting of a
general system of education. In every direction progress
is advanced and developed through the emulation of indi-
vidual parents, by the differences in their minds and notions
in a word, by the variety of particular impulses promo-
ting the general movement. But if all were cast in the
same mould, and instruction were imparted everywhere
under State authority, errors would be stereotyped, and no
progress would be made.
This is, perhaps, giving too much importance to so
chimerical an idea; but Plato's notion has seduced certain
famous authors of our own time, and an error which has
led Rousseau and Helvetius astray may well find others to
embrace it.
CHAPTER XXIX.
OF MARRIAGE.
1 Inde casas postquam, ac pelles ignemque paramnt,
Et mulier conjuncta viro concessit in unum,
Castaque privatse veneris, connubia laeta
Cognita sunt, prolemque ex se videre oreatam,
Turn genus humanum primum mollescere coepit.'
LUCRETIUS, v. 1109.
FROM whatever point of view we regard the institution tiuty of
of marriage, we cannot fail to be struck by the utility of
that excellent arrangement; the bond that holds society
together; the very groundwork of our civilization. Mar-
riage, considered as a contract, has freed woman from the
most cruel and humiliating servitude ; it has segregated the
aggregate community and formed distinct families; it has
given rise to a sort of domestic magistracy; it has created
the citizen; it has multiplied social sympathies; and, by
virtue of their affection for the rising generation, it has
extended the outlook of mankind so as to embrace the
future. To realize its benefits to the full, we need only
picture the world as it would be without the institution.
The questions arising on this contrast may be reduced to
seven: (i) Between what persons shall it be permitted ?
(2) What shall be its duration ? (3) Upon what terms
shall it be entered into ? (4) At what age ? (5) At whose
choice ? (6) Between how many persons ? (7) With what
formalities ?
I. Between what Persons shall Marriage be permitted ?
If we are to be guided on this point by the teachings of
history, we shall find ourselves in a position of great em- persons ?
285
286 Principles of the Civil Code. [CHAP.
barrassment ; nay, it would be impossible to deduce any
single determinate rule from so many conflicting usages.
There is no lack of respectable precedent to sanction unions
which we regard as highly criminal, or to prohibit many
others which we hold to be altogether harmless. In this
matter, every nation pretends to follow what it is pleased
to call the law of Nature; while anything, which does not
happen to accord with the matrimonial laws of their par-
ticular country, men look upon with a kind of horror,
accounting it impure and unclean. Let us suppose our-
selves in complete ignorance of every one of these local
institutions; let us consult only the Principle of Utility,
and see between what persons it is proper to permit this
union, and between whom it should be forbidden.
If we examine a family interior, composed of persons
differing in age, sex, and relative duties, strong reasons for
prohibiting alliances between various members of the
family will at once present themselves to the mind.
I see one reason which might be urged as applying to any
such contract of marriage at all . A father, a grandfather,
or an uncle occupying the father's position, might abuse his
power by forcing a young girl to contract with him an
alliance which would be hateful to her. The greater the
necessity for conferring authority on such relatives, the
less should be the temptation leading to its abuse.
But this inconvenience extends only to a small number
of the class of cases known as ' incestuous, ' and it is far
from being the most grave. If we would seek the real
reasons for proscribing certain alliances, we shall find them
in the risk of a corruption of manners that is to say, in
the mischiefs which might result from casual and illicit
intercourse.
If some insurmountable barrier were not erected between
near relations fated to live together in the closest intimacy,
the frequency of their contact, the many opportunities that
offer, their very affection and innocent caresses, might
xxix.] Between whom shall Marriage be permitted ? 287
kindle a fatal passion. The family that retreat wherein
repose should be found in the bosom of order, and the soul,
disturbed by the bustle of the outer world, should be at rest
the family, I say, would itself become a prey to all the
turbulence of rivalry, all the fires of love. Pangs of jealousy
would banish confidence; the tenderest sentiments of the
heart would be destroyed; eternal hate, or bitter feelings
of revenge, of which the bare idea makes one tremble,
would fill their place. Our belief in the chastity of young
girls, which is so powerful an incentive to marriage, would
rest no longer on solid foundation; while the most dan-
gerous snares in the young man's path would be spread in
the very nursery where he was least able to escape them.
These inconveniences may be ranged under four heads :
(a) Evil of Rivalry. Danger resulting from a real or
supposed rivalry between a married man and certain of
his kinsmen and connections.
(/?) Hindrance to Marriage. Danger of depriving a
young woman of the chance of forming a permanent and
advantageous establishment in the way of marriage, by
lessening the feeling of confident security in the minds of
those who might wish to marry her.
(y) Relaxation of Domestic Discipline. Danger of up-
setting the nature of the relations subsisting between those
who ought to command and those who ought to obey; or,
at any rate, of weakening the tutelary authority which, in
the interest of minors, should be exercised over them by the
heads of the family or by those who occupy their place.
(8) Physical Injury. Danger to the development of
health and strength, such as might result from premature
indulgence.
Table of Alliances to be prohibited.
A man shall not marry
I . The wife or widow of his father, or of any other pro- Prohibited
genitor. Inconveniences (a), (y), (8).
288 Principles of the, Civil Code. [CHAP.
2. Any descendant. Inconveniences (ft), (y), (8).
3. His aunt. Inconveniences (/?), (y), (8).
4. The wife or widow of his uncle. Inconveniences (a),
(7), ()-
5. His niece. Inconveniences (/?), (y), (8).
6. His sister. Inconveniences (/3), (8).
7. Any descendant of his wife. Inconveniences (a), (ft),
(y), (8).
8. His wife's mother. Inconvenience (a).
9. The wife or widow of any descendant. Inconvenience
(a).
10. The daughter of his father's wife by a former hus-
band, or of his mother's husband by a former wife. Incon-
veniences (ft), (8).
In the text of the law it would be necessary, for greater
clearness, to insert a corresponding table of alliances for-
bidden to the woman: it would here be useless repetition.
Should a man be permitted to marry his deceased wife's
sister ?
There are reasons ' pro ' and ' con.' The reason against
permitting such an alliance is the risk of rivalry during the
joint lives of the two sisters. The reason in favour of it is
the advantage to the children of the marriage. If their
mother chance to die, what good fortune for them to have
their own aunt as stepmother ! What could be more likely
to temper the natural hostility to such a connection than
a blood relationship so close as this ? The latter reason
seems to me to carry more weight than the former. But,
to obviate the risk of rivalry, the wife ought to possess
legal power to forbid her sister the house. If the wife does
not desire the society of her own sister, what valid ground
can the husband have for granting admission to the
stranger ?
Should a man be permitted to marry his brother's
widow ?
There are reasons ' pro ' and ' con,' as in the preceding
xxix.] Between whom should Marriage be permitted? 289
case. The reason against permitting such an alliance is,
again, the risk of rivalry; the reason in favour of it is,
again, the advantage to the children. But these reasons
seem to me to be of little cogency on either side.
My brother has no more authority over my wife than a
stranger, and, indeed, can only see her with my permission.
In truth, the risk of rivalry appears less great than in the case
of other men. The reason against is thus reduced almost
to nothing. On the other hand, children have very little
to fear from a father-in-law. It is a marvel if a step-
mother be not the enemy of the children of the first mar-
riage; but a stepfather is commonly their friend, their
second guardian. The difference in condition of the two
sexes the legal subjection of the one, the legal sway of the
other renders them liable to different defects in character
which produce opposite effects. The uncle is already the
natural friend of his nephews and nieces ; they have nothing
to gain in that respect by his becoming the husband of
their mother. If they find an enemy in a stepfather who
is not akin to them, it is to their uncle they resort for pro-
tection. If the stepfather prove a friend to them, they
secure in him a second protector one more than they
would have had if their uncle had occupied the position
of stepfather. The reasons for and against being of little
cogency either way, it would seem that the primd facie
advantage of freedom over restriction should incline the
balance in favour of permitting such alliances.
Instead of weighing the reasons which I have presented Arguments
* based on
for prohibiting marriages within a certain degree of rela- natural
tionship, the morals of the ' man in the street ' settle nance,
these legislative questions offhand, without taking the
trouble to investigate them. ' Nature,' it is said, ' abhors
such alliances : we must therefore forbid them.'
Now, in sound logic, this suggestion could never supply
a satisfactory reason for prohibiting any action whatsoever.
Where such repugnance actually exists, the law is useless.
VOL. I. U
2go Principles of the Civil Code. [CHAP.
Why forbid what nobody wishes to do ? The natural
repugnance should serve as a ban. But if there is, in point
of fact, no repugnance, the reason for prohibition goes by
the board; everyday morality would have nothing further
left to urge for prohibiting the act in question, seeing that
the whole argument, based on natural disgust, is destroyed
by this contrary assumption. If everything is to be re-
ferred to Nature that is, to the promptings of desire we
must conform with all her decisions, whatever they may
be. If marriages which she abhors are to be forbidden,
those with which she is well pleased must be allowed.
Nature deserves no more respect when she hates than
when she loves and desires.
It is seldom that the passion of love is developed within
the circle of persons whom it is expedient to exclude from
the privilege of intermarriage. To give birth to this senti-
ment, there is need of some measure of surprise, some sudden
impression of novelty; and it is this which the poets have
happily expressed by the ingenious allegory of the arrows,
quiver, and blindfold eyes, of Cupid. Individuals accus-
tomed to each other's society from an age when desire can
be neither felt nor inspired will see each other with the
same eyes until the end of their days; there is no reason
why the passion of love should be excited at any one period
rather than at any other. Their affections have taken
another direction, like a river which has hollowed out its
bed, and no longer changes its course.
In this matter, then, Nature accords well enough with
the Principle of Utility; but it would never do to put one's
trust in Nature alone. There are circumstances in which
passion might be inflamed, and such an alliance become an
object of desire, were it not forbidden by positive laws and
branded by public opinion.
Stance? 1 ** * n Egypt, under the Grecian dynasty, it was common
marr?aes 8 ^ or tne ne * r to ^ e throne to espouse one of his sisters.
This was, apparently, done with the view of avoiding the
xxix.] Between whom should Marriage be permitted ? 291
dangers of an alliance with the family of a subject or with
the family of a foreigner. In that elevated rank, such
marriages might possibly be exempt from certain incon-
veniences which would attach to them in private life : royal
opulence admits a degree of separation and seclusion in
early life which could not be maintained in ordinary circles.
Political considerations have led to somewhat similar
instances in modern times. In our own day, the kingdom
of Portugal has closely approached the Egyptian precedent.
The reigning Queen has had as her husband her nephew
and subject. But, to efface the stain of incest, princes
and great folk are able to apply to an experienced chemist,
who changes at will the colour of certain actions. Pro-
testants, to whom this laboratory is closed, do not enjoy
the privilege of marrying their aunts, though the Lutherans
have supplied instances of a similar extension of liberty.
The inconvenience of these alliances is not felt by the
persons who contract them ; it lies wholly in the evil of the
example. Permission granted to particular persons makes
the prohibition seem to other people an act of tyranny;
when the yoke is not borne by all alike, it appears heavier
to those who have to bear it.
It has been said that these marriages between blood
relations cause the race to degenerate, and that cross- breeding,
breeding is as necessary for men as for animals. The
objection would, doubtless, have some force if it were likely
that, in the absence of legal restraints, marriages between
persons closely akin would become the most common type.
But it is enough to discard bad reasons; and even that
would be too much, if it were not of real service to a good
cause to get rid of any feeble and fallacious argument by
which it is sought to sustain it. Some well-meaning folk
hold the view that we ought not to take away from good
morals any one of its supports, even though it be one
resting upon falsehood. Their mistake resembles that of
the devotees who have sought to serve religion by the use
Principles of the Civil Code.
[CHAP.
For what
period
should a
marriage
endure ?
Reasons for
union ex-
tending
throughout
joint lives
of parties.
of pious frauds. Instead of strengthening their cause
thereby, they have weakened it by exposing it to the
derision of its adversaries. When a bad mind triumphs
over a false argument, it is acclaimed as a triumph over
morality itself.
2. For what Period ? An Inquiry as to Divorce.
If the law were silent as to the duration of the marriage
contract, and people were free to form this engagement for
a longer or shorter term, as in the case of a lease, what,
under the auspices of such liberty, would be the most
usual arrangement ? Do you suppose there would be a
wide departure from the practices that now prevail ? J
A man's object in entering into the contract might be
merely to satisfy a transient passion; and that passion
satisfied, he would have enjoyed all the advantage he had
hoped from the union without having incurred any of its
inconveniences. But with the woman it is very different :
the engagement has for her lasting and burthensome con-
sequences. After the pains of pregnancy, after the perils
of childbirth, she is charged with the cares of motherhood.
1 In 1909 a Royal Commission on Divorce and Matrimonial Causes
was appointed. ' Majority ' and ' Minority ' Reports were published
after the lapse of some three years ; but so far no action has been taken
in the matter. Both reports agree that greater facilities for procuring
divorce should be afforded to the poorer classes. They agree, too, that
nullity of marriage should be decreed where it is sought on the ground
of (a) unsoundness of mind at the time of the marriage and unknown
to the other party; (/3) epilepsy and recurrent insanity under similar
conditions; (7) undisclosed venereal disease; (5) undisclosed pregnancy
at date of marriage owing to intercourse with a man other than the
husband; (e) wilful refusal to consummate the marriage. They further
agree that, in certain circumstances, the Court should be empowered
to presume the death of one of the parties, and so enable the other party
to contract a valid marriage. But, while agreeing that the law should
be amended so as to place the two sexes on an equal footing as regards
the grounds on which divorce may be obtained, the Commissioners
who signed the Minority Report emphatically refused to acquiesce
in the proposals formulated by the Majority for extending the grounds
for divorce, by adding to ' adultery ' (i) desertion for three years; (2)
cruelty; (3) incurable insanity after five years' confinement; (4) habitual
drunkenness, found incurable after three years' separation; or (5) im-
prisonment under a commuted death sentence. (C. M. A.)
xxix.] For what Period ? An Inquiry as to Divorce. 293
Hence, a union which may afford the man nothing but Marriage
pleasure may for the woman be the beginning of a long
train of suffering, ending in death; unless, indeed, she can
beforehand make sure of the protection and kind offices of
her husband, not only for herself, but also for the embryo
she nourishes in her womb. ' I give myself to you,' says
she, ' but you must guard and shield me in my weakness,
and provide for the safety and welfare of the fruits of our
mutual love.' And herein we see the origin of a com-
munion which might persist for many years, even though
we were to assume that there was only a single child ; but
successive births form further ties, and as time goes on the
contractual engagement is necessarily prolonged. The
limits which we might, perhaps, have assigned in the first
instance soon disappear; and there opens out before the
pair a lasting career of common pleasures and reciprocal
duties.
When the mother can no longer hope to bear children,
and the father has supplied the wants of even the youngest
member of his family, are we to suppose that the contract
will be dissolved ? After a partnership of such long stand-
ing, will the parties think of separating ? Has not habit
wound round their hearts a thousand ties that death alone
can sever ? Will not the children form a new bond of
union, and create a new source of pleasure and of hope ?
Will not they render the father and mother indispensable
to each other through the cares and delights of a common
affection such as parents alone can share ? In the ordinary
course, conjugal communion would, therefore, be maintained
during the joint lives of the parties; and if it be natural to
assume, in woman, prudence enough to insist on such a
stipulation in the interest of all that is most dear to her,
can we suppose that a father or guardian of, presumably,
riper experience would be content with less ?
The woman has, moreover, a further and peculiar in-
terest in securing the indefinite duration of the union.
294 Principles of the Civil Code. [CHAP.
Time, pregnancy, the suckling of her offspring, cohabita-
tion itself all conspire to diminish the effect of her charms ;
and she must expect to see her beauty waning at an age
when the vigour of man has not yet ceased to wax. She
knows that, having exhausted the attractions of youth with
one husband, she would with difficulty find a second ; while
her spouse would experience no similar difficulty. So that
prudence would suggest to her a further clause in the
marriage articles : ' If I give myself to you, you shall not
be free to leave me without my consent.' The man, in
turn, exacts a like promise ; and so oh both sides we have
a contract binding in law and based on the happiness of
the contracting parties.
Marriage for life is, therefore, most conformable to the
dictates of Nature, best suited to the needs and circum-
stances of the family, and, for the generality of mankind,
most favourable to the individual. Even if it were not
ordained by positive law that is to say, if it were subject
to no laws other than those which sanction contracts in
general this arrangement would always be the most usual,
because it is the one best adapted to the reciprocal interests
of the contracting parties. Love on the part of the man,
love and prudence on the part of the woman, the enlightened
foresight and the affection of the pair in their capacity as
parents, all conspire to impress the character of perpetuity
upon this contractual alliance.
Should^ ^ But what should we think if the woman were to add this
allowed? clause: ' It shall not be lawful for us to part, though we
should grow to hate as much as we now love each other.'
Such a term would seem the height of folly; there is some-
thing about it contradictory and absurd which repels at
the first glance. Everybody would concur in condemning
the rashness of any undertaking of the kind, and in holding
that the promptings of humanity demanded its omission.
But it is not the woman who seeks this cruel and stupid
clause, nor yet the man who prays for its insertion: the
xxix.] For what Period ? An Inquiry as to Divorce. 295
Law herself imposes it on -both as a term from which there
shall be no escape. The Law steps in between the con-
tracting parties, and surprises them in the first transports
of blissful youth, at a moment which presents an alluring
prospect of future happiness. She says to them: 'You
engage in these rites with every hope of coming joy; but,
be warned by me, you are entering a prison whose gates
will never open for your release. I shall be inexorable to
your cries of woe ; and though you dash yourselves against
your irons, I will never suffer those fetters to be unloosed.'
To believe in the perfection of a beloved object, to believe w for
in the eternity of passion felt and inspired, is an illusion
we may well pardon in a couple of children blinded by love.
But the sages of the law, the greybeards of Parliament,
should not have harboured such fantastic notions. If they
really believed in this eternity of passion, why forbid a
step which nobody would even wish to take ? But no !
they foresaw inconstancy, they foresaw hatred; they fore-
saw that the most ardent love may be succeeded by violent
aversion; and it was with heartless indifference that they
pronounced the marriage vow to be eternal, even when
the passion that prompted it had been swept away by
sentiments of an entirely opposite character. If there were
a law which allowed the taking of a partner, a guardian,
a steward, a companion, only on condition that one never
parted with him, everybody would cry : ' What tyranny !
What madness !'
Now, a husband is at once partner, guardian, steward,
companion, and something more than all of them com-
bined: yet in most civilized countries no husband can be
had except for life.
To live at all times under the sway of a man one loathes
is nothing less than slavery: to be forced to receive his
embraces is misery too great to be borne even by a slave.
It is idle to urge that the yoke is reciprocal that does
but double the misery.
296
Principles of the Civil Code.
[CHAP.
Reasons for
Divorce
contd.
Since marriage offers to the ordinary run of men the
only means of fully satisfying the imperious desires of love,
to deter them from marriage is to rob them of love's joys,
and so produce evil commensurate with the degree of depri-
vation. And what more terrible bugbear could one find to
scare them than the indissolubility of such a contract ? A
prohibition against leaving serves as a deterrent against
coming in and this holds good of a marriage, a service, a
country, a condition or status of any kind whatsoever.
We need, perhaps, do no more than hint at the fact that the
number of acts of infidelity will vary inversely with the num-
ber of marriage contracts : the greater the number of sedu-
cers in the field, the greater will be the number of seductions.
And, lastly, when death affords the only mode of deliver-
ance, how terrible are the temptations that arise! what
crimes may not be bred in such a situation ! The cases that
remain undiscovered are, perhaps, more numerous than
those which come to light ; while the case that will occur
most frequently is some sin of omission, some offence of a
' negative ' character.
Even when the heart is in nowise corrupt, how easy is
it to fall into crime that can be committed by mere in-
action ! Given a detested wife and a beloved mistress
exposed to the like peril: will efforts as brave, as whole-
hearted, be made for the one as for the other ?
But we must not conceal from ourselves that there are
plausible objections against the dissolubility of marriages.
Let us try to collate and answer them.
FIRST OBJECTION. If divorce be allowed, the lot of
neither party will be regarded as irrevocably fixed. The
husband will look around him to find some woman more
suited to his taste; while the wife, in like manner, will insti-
tute comparisons and make plans for changing her spouse.
Hence there would result constant and reciprocal insecurity
as to a form of property which is very precious, seeing that
the whole scheme of life is framed with relation to it.
xxix.] For what Period ? An Inquiry as to Divorce. 297
ANSWER. (a) To some extent and under other names
the same inconvenience attaches during an indissoluble
marriage whenever, as is here assumed, all mutual love is
stifled. In that case it is not a new wife that is sought,
but a mistress ; it is not a second husband, but a paramour.
The rigorous duties of matrimony and its prohibitions, but
too easy to evade, tend, perhaps, rather to promote incon-
stancy than to prevent it. It is well known that prohibi-
tion and constraint serve to stimulate the passions. Has
it not been proved from experience that, by seizing on the
imagination and constantly directing the mind towards a
single object, the sight of obstacles serves to strengthen
the desire to surmount them ? The reign of liberty would
beget fewer wandering fancies than the dominion of con-
jugal captivity. Make marriages dissoluble, and there will
be more seeming separations, but not so many real ones.
(/?) We ought not to confine ourselves to a consideration
of the inconveniences: we should have regard also to the
attendant advantages. Each of the parties, realizing what
might be lost by dissolution, would continue to cultivate
such arts of pleasing as, at the outset, induced reciprocal
affection. Each of them would be more assiduous to study
and to humour the feelings and disposition of the other.
Each would grasp the necessity for making some sacrifice
of personal inclination and self-love. In a word, care, com-
plaisance, and devotion, would persist after marriage; and
what was once exerted to engender love would now be
practised to preserve it.
(y) Young people of marriageable age would less often
be immolated by their parents on the altar of avarice and
greed. It would then be found necessary to give heed to
natural desires and inclinations before forming ties which
aversion could so speedily sever. The real harmony on
which happiness reposes that is to say, correspondence in
age, taste, and education would then enter into the calcu-
lations of prudence. It would no longer be possible to
298
Principles of the Civil Code.
[CHAP.
marry the property without marrying the person, as the
old saying goes. Before the foundations were laid, a care-
ful examination would be made to ascertain whether they
promised to prove durable.
SECOND OBJECTION. Each contracting party, regard-
ing the connection as transitory, would have little or no
concern for the interests in particular the pecuniary in-
terests of the other. Hence would arise profusion,
neglect, and bad management of every kind.
ANSWER. The same risk is run in the partnerships of
commerce, and yet the danger is hardly ever realized.
Moreover, in the case of a dissoluble marriage there exists
a tie which does not bind business partners, the strongest
and most enduring of all moral ties : an affection for their
common children, cementing the reciprocal affection of the
spouses.
Such bad management is, indeed, more frequently found
in the case of an indissoluble alliance than in the conduct
of affairs by a commercial firm. Why is this ? It is a
result of indifference or dislike, which often engenders in
married folk, who have grown tired of each other, an un-
ceasing craving to escape from their surroundings and seek
fresh attractions. The moral tie of common affection for
their offspring is weakened or dissolved; the education
nay, even the welfare of the children becomes scarcely a
secondary object; the delights of their mutual devotion are
gone for ever ; each partner, in pursuit of separate pleasures,
grows quite heedless of the future. This fundamental dis-
cord between the spouses soon occasions, in their domestic
affairs, neglect and disorder in a thousand directions ; so that
the ruin of their fortunes is often an immediate consequence
of the estrangement of their hearts. If the rule of liberty
prevailed, this evil would not exist: before such disunion
of their interests could occur, mutual disgust would have
separated their persons.
Facility of divorce tends, indeed, to check rather than
xxix.] For what Period ? An Inquiry as to Divorce. 299
to give birth to prodigality. Such facility inspires a dread
of affording some substantial ground of dissatisfaction to a
partner whose goodwill it is so essential to cultivate.
Economy, which the interested prudence of the pair will
always apprise at its full value, is of sufficient importance
in their eyes to cover a multitude of faults; and for its
sake many a wrong is forgiven. It must, too, be obvious
that, in the event of divorce, if one of two spouses had
gained a reputation for misconduct and extravagance, such
an one would have much less chance of contracting another
and more advantageous alliance.
THIRD OBJECTION. -Dissolubility of the marriage bonds
would implant in the stronger of the contracting parties j{J5]}*je by
an inclination to maltreat the weaker, so as to force con- SUJjf 6 **"
sent to the divorcement.
ANSWER. This objection is grave, and deserves serious
attention at the hands of the legislator. Happily, a single
precaution will enable us greatly to reduce this risk. In
case of ill-treatment, let liberty to marry again be bestowed
on the party maltreated, but not on the other party. If
this course were adopted, the more anxious the husband
might be to obtain divorce for the purpose of marrying
again, the greater would be his fear of behaving ill towards
his wife, lest any acts on his part should be construed as
cruelties intended to force her consent. Rough and brutal
modes of inducing a separation being thus ruled out, there
would remain only methods of allurement. If he has the
means, he will seduce her by the offer of an independent
fortune ; or he may, perhaps, cast about to find her another
spouse whom he can prevail upon her to accept as the
price of his ransom.
FOURTH OBJECTION. This objection rests on the in- Detrimen-
tai to in-
terests of the children of the marriage : what would become teresta of
of them if the law dissolved the union between father and
mother ?
ANSWER. Their fate would be the same as if the union
300 Principles of the Civil Code. [CHAP.
had been dissolved by death: but, in case of divorce, the
disadvantage to them is not so great. The children may
continue to live with the parent whose care and attention
is most necessary to them; for the law, consulting their
interest, will not fail to confide the boys to the father, and
the girls to the mother. The great risk which children run
after the death of a parent is that of coming under the
control of some stepfather or stepmother who looks upon
them with unfriendly eyes. Girls in particular are ex-
posed to most harassing treatment under the habitual
despotism of a cruel stepmother. But, in case of divorce,
this risk is not incurred. The boys will be under the
control of their father, the girls under that of their mother.
Their education will suffer less than it would have suffered
from domestic strife and enmity. If, then, the interests of
the issue of the marriage provide adequate ground for
prohibiting a second union in case of divorce, they afford
an even stronger reason for prohibiting such a union in the
event of death.
In conclusion, a severance of the marriage tie is an act
of sufficient importance to be subject to formalities which
will, at least, have the effect of counteracting caprice and
of allowing the two parties some time for reflection. The
intervention of a magistrate is necessary, not only to make
sure that there has been no undue pressure on the hus-
band's part to force his wife's consent, but also to interpose
delay, more or less lengthy, between the demand for divorce
and the decree by which it is obtained.
Dissolution of marriage is one of those questions upon
which opinions will always be divided. Everyone is in-
clined to approve or condemn divorce according to the
amount of good or evil which he sees result in particular
cases, or according to the dictates of his own personal
interest.
In England, dissolution can take place only when adul-
tery on the part of the wife is proved. But it is necessary
xxix.] For what Period ? An Inquiry as to Divorce. 301
to pass through several courts; and as an Act of Parlia-
ment on this subject costs at least five hundred pounds
sterling, divorce is accessible only to a very limited class. 1
In Scotland, adultery, even when committed by the hus-
band, affords sufficient ground for divorce. 2 In this respect
the law is yielding; but it has a rigorous side, for, while
dissolving the union, it will not allow the guilty party to
contract marriage with an accomplice in guilt.
In Sweden, divorce is permitted for adultery on either
side ; and this really comes to the same thing as permitting
it by mutual consent, for the man has but to suffer himself to
be accused of adultery, and dissolution takes place. In Den-
mark the same rule applies, unless collusion can be proved.
Under the Code Frederic, the parties may separate at
will, and afterwards remarry ; but this is only on condition
of their continuing in a state of single blessedness for a
whole year. It would seem that this interval or, at any
rate, some part of it would have been better employed in
delay before granting any divorce.
At Geneva, adultery afforded a sufficient ground; but a
separation might also take place for mere incompatibility
of temper. A woman, on quitting her husband's house
and withdrawing to the society of her kinsmen or friends,
thereby gave to the husband occasion for a petition of
divorce, which, if presented, would be allowed in due
course of law. Divorces were, however, rare: they were
proclaimed in all the churches, and the proclamation acted
as a sort of punishment or public censure which was always
much dreaded.
1 After the Reformation, when marriage ceased to be regarded by
the Church as a sacrament, it was not held by the law to be indissoluble.
But the first clear case of dissolution of the nuptial tie by Parliament
(as distinguished from annulment of matrimony) was that of the Countess
of Macclesfield in 1697. The power to pronounce decrees for dissolution
remained vested in Parliament until 1857, when the Divorce Court was
instituted, and jurisdiction in matrimonial matters was transferred from
the Ecclesiastical Courts. (C. M. A.)
2 Since the Reformation, no difference has existed between the sexes
in Scotland. (C. M. A.)
302 Principles of the Civil Code. [CHAP.
In France, when marriage was made dissoluble at the
will of the parties, it was found that, amongst married
persons in Paris, there were between five and six hundred
divorces within about two years. It is, however, very
difficult to judge the effects of an institution during the
period immediately following its adoption.
But divorces are by no means common in countries
where they have been long allowed. The very reasons
which have prevented legislators from permitting them
deter private persons from availing themselves of any per-
mission conceded by the legislature. The government
which forbids them altogether has the effrontery to declare
that it understands the interests of individuals better
than they do themselves; and any prohibitory enactment
has either a bad effect or none at all.
The woman who has undergone cruelty and ill-usage at
the hands of her husband may, in all civilized countries,
obtain what is called a ' separation ' ; but this does not
import permission to either party to marry again. The
ascetic principle, a foe to every form of pleasure, has gone
so far as to permit this alleviation of suffering; yet the
outraged wife and her tyrant of a husband are placed
exactly on the same footing as to re-marriage. Now, this
apparent equality covers a very real inequality; for, while
public opinion allows to the dominant sex a large measure
of freedom in their sexual relations, it imposes on the
weaker sex the most severe restraint.
3. On what Conditions ?
On what At this point we are only concerned to discover, under
should the guidance of Utility, what conditions of matrimony are
be entered best suited to the greatest number. It should be left to
the parties interested to determine any special stipulations
in the contract; in other words, the conditions should be
dictated by their will and pleasure, subject, however, to
certain general exceptions. Thus
xxix.] W hat should be the Conditions of Matrimony ? 303
(a) FIRST CONDITION. ' The wife shall submit to
authority of her husband, saving recourse to the public tri-
bunals? Master of his wife in matters that concern him-
self, he should act as guardian of her special interests. The
wills of two persons who pass their lives together may at any
moment come in conflict. The interests of peace demand
the establishment of a pre-eminence which shall prevent,
or put an end to, any dispute. But why is power to be
vested in the husband ? Because he is the stronger. This
rule will require no aid from outside to enforce it. Give
control to the wife, and her husband would be in a con-
dition of constant rebellion.
Nor is this the only reason : it is probable that the man,
by his mode of life, will have acquired more experience,
more aptitude for business, more discernment of mind.
In these regards there are exceptions; but we are con-
cerned only with the general rule.
I have said, ' saving recourse to the public tribunals ' ;
for I have no mind to make man a tyrant, and to reduce
to a state of submissive slavery the sex which, by reason
of its frailty and gentleness, stands most in need of the
law's protection. The interests of womankind have been
sacrificed but too often. The marriage laws of Rome were
nothing more than a code of brute force, and the stronger
took the lion's share. But those who, under the influence
of certain vague conceptions of justice and generosity, wish
to bestow on women absolute equality, only spread for
them a dangerous snare. To absolve them from the neces-
sity of pleasing their husbands (so far as the laws could
grant such absolution) would be to weaken, not to
strengthen, their empire. Assured as he is of his pre-
rogative, man's vanity suffers no shocks; he even finds
delight in an occasional act of voluntary submission. But
once substitute for the present relations a rivalry of powers
the pride of the stronger being constantly wounded, he
would prove to the feebler partner a dangerous antagonist ;
304 Principles of the Civil Code. [CHAP.
and, attaching more importance to what was taken away
from him than to what was left, he would direct all his
efforts to the re-establishment of his pre-eminence.
(/?) SECOND CONDITION. ' The conduct of business
matters and the control of property shall rest with the husband
alone' This is a direct and natural consequence of his
position as predominant partner. Besides, the property
is usually acquired through his exertions.
(y) THIRD CONDITION. ' The right of enjoyment shall be
common to the two parties.' The reason for this provision
is the advantage arising from equality. It is well to give
both parties the same degree of interest in the domestic
prosperity; but this right is necessarily modified by the
fundamental law which subjects the wife to the authority
of her husband. Diversity of circumstances and differences
in the nature of the property will involve legislative inter-
ference in many points of detail; but this is not the place
to suggest the necessary adjustments.
(8) FOURTH CONDITION. ' The wife shall observe conjugal
fidelity' I will not here set forth the grounds on which
adultery should be reckoned an offence ; they will be treated
and developed in the Penal Code (cf. vol. ii., p. 154 n.).
(e) FIFTH CONDITION. ' The husband shall, in like
manner, observe conjugal fidelity' The reasons for classing
adultery on the part of the husband as a crime are not
nearly so cogent, so that there ought to be considerable
difference in the penalty exacted. But, still, they are strong
enough to justify this general condition, and they, too, will
be set forth in the Penal Code (cf. vol. ii., p. 154 n.}.
4. At what Age ?
At what age should matrimony be allowed ?
be a a5owed? I* ought never to be allowed before the contracting
parties are in a position thoroughly to appreciate the
nature and extent of the engagement; and the inquiry
becomes one of special gravity where the marriage is
xxix.] At whose Choice ? 305
indissoluble. What precautions ought we not to take to
prevent a rash alliance, when repentance would be all in
vain ! In such case, the right to enter into a matrimonial
engagement should certainly not arise at a period earlier
than that at which the individual is allowed to embark on
the administration of his property. It is surely absurd
that a man should be permitted to dispose of himself for
life at an age when it is not lawful for him to sell a
meadow worth ten crowns. 1
5. At whose Choice ?
On whom should the choice of a husband or a wife depend? Marriage.
This question presents an apparent, if not a real, ab- choice ?
surdity : as if such a choice could possibly rest with any
person^other than the parties interested.
The laws should never entrust this function to fathers, interior-
They lack two things essential to its beneficial exercise : parents,
the knowledge requisite for the choice, and a will directed
to the true end. Fathers and children neither see nor feel
in the same way: they have not the same interests. Love
is the moving principle in youth : by the old, little regard is
paid to it. With the children, fortune is usually a trifling
consideration: with their fathers, it swallows up every
other consideration. What the son wants is to be happy:
what his father wishes is that he should appear to be so.
The son is ready to sacrifice every interest to that of love,
while his father would sacrifice that interest to every other.
It is, no doubt, exasperating enough for a father to be
called upon to receive into his family a son-in-law or a
daughter-in-law who is not at all to his taste ; but is it not
far harder for the child to be deprived of the spouse who
would bring happiness and content ? Can there be any
1 The marriage of a boy under fourteen or girl under twelve was
inchoate and imperfect. But if the parties were habiles ad matrimonium
it was a good marriage whatever their age might be, in the sense that
(if they agreed) at the age of consent they need not be married again.
Coke on Litt., 79. And see vol. i., p. 307 n. (C. M. A.J
VOL. I. X
306 Principles of the Civil Code. [CHAP
comparison between the ill consequences on one side and
on the other ? Contrast the probable duration of the
father's lif e with that of the life of his child : and consider
whether you ought to sacrifice the career which is just
opening to that which is fast drawing to a close. So much
for the mere prevention of marriage. What, then, shall be
said if, under the father's mask, a pitiless tyrant is suffered
to abuse the yielding timidity of his gentle daughter and
force her to link her fate with that of a man whom she abhors ?
We must, too, remember that the attachments of children
depend largely on their fathers and their mothers. This
is partly true of the sons, and wholly true of the daughters.
If parents fail to exercise then* rights, make no effort to
direct the inclinations of their offspring, and leave to chance
the choice of the children's acquaintance, will not the follies
and imprudences of youth lie at the parents' door ?
Finally it may be observed that, in taking away from
parents the right to forbid or to constrain, there is no need
to take away from them the right to moderate or retard.
In the marriageable age two distinct periods occur. During
the first, absence of consent on the part of the parents
should suffice to annul the marriage; while during the
second they should enjoy a right of retarding the celebra-
tion of the ceremony for some months. This delay should
be allowed in order that the parents may further press
their advice before the irrevocable step is taken.
In a certain European country renowned for the wisdom
of its institutions, there prevails a very remarkable custom.
The father's consent is necessary, in the case of minors,
unless the lovers can cover a hundred leagues before they
are overtaken. But if the runaway couple are lucky
enough to reach a certain village, 1 and can get any person
1 The village of Gretna Green, ten miles north-north-west from
Carlisle, is over the border in Dumfriesshire. Many persons resorted
thither after the abolition of Fleet marriages by Lord Hardwicke's Act
in 1754, as that Act applied only to England. After 1856 a three weeks'
residence in Scotland became necessary hefore the marriage could take
place. (C. M. A.)
xxix.] How many Parties to the Marriage Contract ? 307
they come across to pronounce, on the spot, a nuptial
benediction, without any questions asked or answered, the
marriage is quite valid and the veto of the father is frus-
strated. Is a privilege of this sort allowed to subsist for
the encouragement of adventurers ? Is it from some
secret desire to weaken parental authority, or to favour
what are called elsewhere mesalliances ?*
6. How many Parties to the Contract.
How many parties should be permitted to a contract of Polygamy,
this nature, at one and the same time ? In other words,
ought polygamy to be tolerated ? Now, polygamy is
either simple or complex; and simple polygamy is either
Polygynia (a multiplicity of wives) or Polyandria (a multi-
plicity of husbands).
Is polygynia useful or baneful ? Anything that has ever Polygynia
been said in its favour relates to certain special cases, to
certain circumstances of a transitory character : as where
a man, through some ailment of his wife, is deprived of the
sweets of marriage; or where the husband, owing to the
exigences of his calling, is obliged to divide his time be-
tween two places of residence, as is the case with the
skippers of certain trading vessels.
That polygynia would sometimes prove agreeable to the
man seems likely enough; but it could never be so to the
wives. For every man favoured by it, the interests of at
least two women would be sacrificed.
(a) The effect of licence to contract such marriages o b i Actions
would be to aggravate the existing inequality in the con-
ditions of mankind. Superiority of wealth already exerts
a controlling influence which is too great, and such an
institution would still further increase the influence. A
In England, at this time, the marriage of an infant by licence,
without the consent of the parent or guardian, was absolutely void.
A marriage by banns might be good unless dissent was openly declared
by the parent or guardian. And see now 4 Geo. IV., c. 76: 6 and 7
Will. IV., c. 85, s. 10. (C. M. A.)
308 Principles of the Civil Code. [CHAP.
objections rich man, arranging an alliance with a penniless girl, would
gyiua take advantage of her position so as to secure for himself
the right of giving her a rival later on. Each of his wives
would find herself reduced to the possession of a moiety
of a husband; while, but for this iniquitous arrangement,
she might have brought happiness to some other man,
now perhaps bereft of a companion.
(/?) What would become of the peace of families ? The
jealousies of rival wives would spread to their children,
who would range themselves in opposite camps small
armies, with regents at their head of equal authority, at
any rate in point of rights. What scenes of strife ! What
fury ! What animosity ! The relaxation of fraternal ties
would result in a corresponding diminution of filial respect ;
for each son would behold in his father the protector of
his enemy. Every action of the father, whether harsh or
kindly, being interpreted by opposite prejudices, would be
assigned to the promptings of unjust hate or of undue
favour. Amidst these passionate conflicts, under a system
of oppression or partiality, ruining some by its rigours
while corrupting others by indulgence, the education of
the young people would come to naught. Where the
customs of the East prevail, polygamy and peace may exist
together, but it is slavery which prevents discord; one
abuse serves to palliate another, and under the same yoke
there is a general tranquillity.
This institution would, moreover, result in an extension
of the husband's authority. What eagerness to gratify
him ! What joy to anticipate a rival in some act which is
like to give him pleasure ! Now, would all this be mis-
chievous or beneficial ? Those who have a mean opinion
of woman, and think that she cannot be too meek and
submissive, ought to find polygamy admirable. Those
who think that the controlling influence of the sex is favour-
able to refinement of manners that it enhances the
pleasures of association that the mild rule and persuasive
xxix.] What Formalities should be observed ? 309
powers of woman are salutary to the family ought to
consider such an institution most mischievous.
We need not seriously discuss either polyandria or com-
plex polygamy. Perhaps too much has been said on the
first branch of the subject; but it is well to expose the real
foundations on which manners rest.
7. What Formalities should be observed?
The formalities of the marriage contract should be JJJmaiitii
directed to two objects: (a) To establish the fact of
free consent of the parties and of the lawfulness of their
union; and (/3) to notify the marriage and to secure in the
future ready proof of its celebration. It is, further, neces-
sary to bring to the notice of the contracting parties the
nature of the rights they are about to acquire, and of the
correlative obligations under which they will lie by opera-
tion of law.
Most nations have attached great solemnity to this
function; and it is beyond doubt that ceremonies which
strike the imagination serve to impress on the mind the
dignity and importance of the contract.
In Scotland, the law, far too lax in this regard, requires
no formality whatever. An interchange of declarations
by the man and the woman, in the presence of a witness,
will suffice to constitute a valid marriage. Hence it is to
the Scotch frontier, where lies a certain village named
Gretna Green, 1 that English minors, impatient of the
parental yoke, repair to rid themselves of the restraint by
a marriage celebrated out of hand.
In prescribing the necessary forms we must avoid two Dangers to
dangers: (i.) That of rendering them so intricate and
cumbersome as to prevent a marriage, when neither free-
dom of consent nor full appreciation of the position is
wanting; and (ii.) that of giving to the persons, who are
1 Cf. note, 5, ante, p. 306. (C. M. A.)
3 I( > Principles of the Civil Code.
required to concur in the formalities, opportunity to abuse
their privilege or to employ it for some sinister purpose.
In several countries it is necessary to linger for a long and
wearisome time in the vestibule of the temple before
advancing to the altar. Under the designation of -fiances,
men are trammelled by the fetters, without enjoying the
advantages, of the contractual relation.
What purpose can this unmeaning prelude serve, save
to multiply hindrances and to spread snares ? The Code
Frederic 1 is burdened with a vast number of useless re-
straints of this sort. English law, on the contrary, has, for
once, chosen the path of clearness and simplicity ; every-
one knows how he stands, for he is either married or not
married.
1 Cf. note, * Principles of Legislation,' chap, xiii., 6, ante, p. 93.
(C M. A.)
BILLING AND SONS, LTD., PRINTERS, GUILDFOHD.
IN
