From Jeremy Bentham
London 30th Octr. 1811.
The offer which it is the ambition of this Address to submit to the consideration of the President of the United States is addressed (you will see immediately) not to the person, but to the Office. By an explanation thus early made some reading will be saved to you. The respect, of which the offer itself is its own best testimonial needs not, I presume, any more words for the expression of it.
To come to the point at once—Give me, Sir, the necessary encouragement, I mean, a Letter importing approbation of this my humble proposal,1 and, as far as depends upon you yourself—Acceptance I will forthwith set about drawing up, for the use of the United States, or such of them, if any, as may see reason to give their acceptance to it, a complete body of proposed law, in the form of Statute law, say in one word a Pannomion2—a body of Statute law, including a succedaneum to that mass of foreign law, the yoke of which in the wordless, as well as boundless, and shapeless shape of common, alias Unwritten law, remains still about your necks—a complete body or such parts of it as the life and health of a man, whose age wants little of four and sixty, may allow of.
This letter Sir, I mean the letter above stipulated for, when once I have it in hand, I have my reward. I have my employment: and the honor inseparable from the employment is the only retribution, that can be accepted for the labor of it. I say accepted, Sir, not required or expected but accepted: for from this word corollaries will be deduced, the utility of which, with reference to the proposed Service, will, I flatter myself, when brought to view, as they will be presently, not appear exposed to doubt.
The plan of the proposed work, and therein the supposed advantageous results, the prospect of which forms what the proposal has to depend upon for its acceptance, the circumstances of advantage attached to the nature of the terms on which the work would be executed, the declared objections which it ought to be prepared for together with the answers which those objections seem to admit of, the latent, but not the less powerful, obstacles which it may have to contend with, the sort of personal assistance in the way of information, which should it be thought serviceable I should be ready and willing to receive for the purpose of it, the advances already made towards the execution of it, on all these several topics some sort of explanation may naturally be looked for: on all of them something in the way of explanation shall accordingly be attempted, though in that state of extreme and proportionably disadvantageous compression, without which no reasonable hope could be entertained of that promptitude of return which may be requisite to success.
Before I come to particulars respecting the proposed plan with its supposed advantages, it will be necessary for me to make reference once for all, to a view of it which is already in print. I mean the Work in 3 Vols. 8vo. which, under the title of Traités de Législation Civile et Pénale … par M. Jeremie Bentham &c. was in the year 1802 published at Paris by my Genevan friend M Dumont.3
One Copy of it was, upon its publication, sent, I understand by the Editor to his Countryman Mr Gallatin, Secretary of the Treasury to the United States: whether, in your part of America, any other Copies of it have ever been in existence, it has not fallen in my way to know.
Far as those papers were from being considered by the Author as having attained a state approaching to that of a finished work, yet of the plan which, on any such occasion as that in question, was then, and still would be, proposed to be pursued, a conception sufficient for the purpose here in question, may, if I do not deceive myself, be obtained from them. Of the details, even of the proposed text, they exhibit samples more than one, nor those of small account. So much of the plan being already there, it might seem that nothing, in explanation of it, could be necessary in this place. But, without some preconceptions, how slight and general soever, of some of its most striking peculiarities, what it will immediately be necessary to say of it in the gross might scarce be found intelligible.
[§] 1. Nature and supposed advantages of the proposed form.
Matter and Form—to one or other of these two heads, whatsoever features whether of excellence or imperfection, may be distinguishable in a plan, framed for any such purpose, will, it is believed, be found referable.
1. As to matter, in the character of a test of, and security for, the fitness of the work in this respect, of one constituent portion pervading the whole mass—the rationale it may be termed such will at first glance be seen to be the efficiency, that of this alone a slight mention may, to the present purpose, be sufficient.
By the rationale I mean (for a sample See ‘Traités &c.’) a mass of reasons accompanying in the shape of a perpetual commentary, the whole mass of imperative or regulative matter, to which alone any body of law as yet extant has ever yet been found to give admission.
Not a single point of any importance settled, but that in the rationale, the considerations by which the provision made in relation to it was determined, will be to be found: and by the connection which, through the medium of the all governing principle, viz the principle of utility, these reasons have with one another, and the repeated application made of the same reason to different parts of the text, the quantity of space, occupied by matter of this description, will be found much less than could readily have been imagined.
This constituent part or appendage, call it which you please, this perpetual commentary of reasons, is what I will venture to propose as a test, and the only test, by which either of the absolute fitness or unfitness of any one proposed body of laws taken by itself, or of the comparative fitness of each one of any number of bodi[e]s of law standing in competition with each other, and proposed as capable of serving for the same division in the field of legislation, any satisfactory indication can be afforded: a test to which accordingly, by a predetermined and preannounced resolution, every such composition ought to be subjected.
Without this appendage, to draw up laws is of all literary tasks the easiest: power and will, wherever it happens to them to meet, suffice for it, of intellect there is no need. On the other hand, if, with this addition, the task is of all tasks the most difficult, it is at the same time that, in the execution of which whatsoever trouble may be found necessary to the surmounting it will find itself most worthily and richly paid for, by real and important use. 2. As to form—here again by one word cognoscibility, every sort and degree of excellence which, under this head, can be given to a body of law, will be found expressible. On the fact of its being present to the mind of him on whose part, to the effect indicated, action or forbearance, is on each occasion, called for, present—that is to say in the degree of correctness and compleatness necessary to the accomplishment of the legislators purposes depends, on each occasion, whatsoever good effect the law can be, or can have been designed to be, productive of. But on the form thus given to the matter, will depend the degree of excellence in which the property of cognoscibility, as thus explained has been given to it: on the form therefore will, in a proportionable degree, depend the practical good effect of whatsoever degree may have been given to the matter of the law.
Taking cognoscibility then for the end, the following may serve as a sample of the means or securities that in the plan in question, have been devised and provided for the attainment of it.
1. Division of the whole Pannomion into two separate parts, the General Code, and the System of particular Codes.
In the General Code are comprised all such matters, of which it concerns persons in general to be apprised: in the System of particular Codes, each particular Code contains such matters only, with which some one Class or denomination of persons only have concern: some one class or denomination, or in case of correlative classes of persons, running together in pairs, such as husband and wife, Master and Servant, and so forth, some two or other such small number of classes or denominations, whose legal concerns are thus inseparably intermingled.
Merely for illustration sake, number of particular Codes, as above, say 200: average length of each 5 pages. Consequent advantage, burthen of legal matter to be borne in mind by each person reduced from 1000 pages to 5 pages. Such, in respect of cognoscibility, is the advantage which this single arrangement suffices to produce. To more such classes, it is true, than one, will one and the same individual person be commonly found aggregates: I mean of those Classes which as above, would have, each of them its separate Code. From the sort of saving in question, a correspondent deduction would accordingly be to be made: but for illustration thus much without going any farther into calculation may, it is supposed suffice:
From General Code to Particular Codes, and vice versâ, frequent references will of course be necessary: nor, in the working up of the one can the texture of the other consistently with clearness and mutual consistency pass unheeded. But all this is a matter of detail for which no room can be found here.
2. In each Code, as well particular as General, an ulterior distinction noted and acted upon, is the distinction between matter of constant concernment, and matter of occasional concernment. To produce the effect aimed at in the making of a law, to produce the effect of guidance, that which is matter of constant concernment must in all its magnitude, in all its detail, be borne in mind at all times: while, in the case of that which is but matter of occasional concernment, the bare knowledge or suspicion of its existence will in general be sufficient, matters being so circumstanced, that before the time for action comes, sufficient time for reference to the text of the law, and for perusal of its contents, may on all occasions be found.
3. In each Code in which it is found requisite, and in particular in the penal branch of the General Code, in which it will throughout be found requisite, another distinction and division made is that between Main text, and Expository matter or Exposition.
The Expository matter consists of explanations given of or on the occasion of, this or that particular word in the Main Text. In the Main text each word so explained is distinguished by a particular type, accompanied by a letter or figure of reference, by which means the fact of its having received explanation is rendered manifest to every eye.
In the course of the Pannomion, should this or that same word be employed in ever so many hundred places, one and the same explanation serves for all of them, and by the appropriation of the particular type to the expression of these leading terms, of which an explanation is thus given, notice of the existence of such explanation is in every place presented to the eye: care being taken all along to apply the explanation to every such passage, to the end that it may be found conformable to the sense, intended in each such passage to be conveyed.
So moderate will the number of these essential terms, these expounded words be found, that the labour necessary to the giving correctness and consistency, to the part of the language, the import of which is thus fixed, fixed by authority of law, needs the less be grudged.
4. To the Penal Code belongs an ulterior distinction peculiar to itself: matter descriptive of the offence in its ordinary state, and matter indicative of the several causes of justification,(1) aggravation(2) and extenuation(3) with the grounds of exemption(4) from punishment, which apply to it.
From beginning to end, one object kept in view and aimed at is—that, the whole field of legislation being surveyed, surveyed and travelled through over and over again in all directions, no case that can present itself shall find itself unnoticed or unprovided for. Of this object the compleat attainment may be too much for human weakness: but by every approach made towards it, the science is advanced, and, in all shapes, the security of the people against suffering, sudden and unlooked for suffering, is encreased.
Note. Examples (1) Consent. Self-defence. Lawful exercise of Public power. Lawful exercise of domestic power &c. (2) Premeditation. Confederacy &c. (3) Unintentionality Provocation (contemporaneous or recent) &c (4) Insanity. Infancy &c.
5. Promulgation-paper: for formularies of all sorts, Conveyances and Agreements, as well as instruments of judicial procedure, paper, of a particular size and form and appearance in other respects, provided, with a margin of Letter-press, in and by which, in the instance of each such species of instrument, intimation is given of the whole text of the law relative to the species of transaction therein in question: intimation, Vizt. according to the quantity of room occupied by it, given, either in terminis, or in the way of abstract with indication of, and with reference to, any such portion, as is found to occupy too much room to be given in terminis.
In particular, to the whole business of Conveyances and Agreements would thus be given a degree of simplicity, certainty, and security, of which, even after the many improvements which, I am certain must have been made in all the United States upon the original chaos, no adequate conception would, I believe, be readily formed, antecedently to experience.
In and by this method, one useful result is looked for and I hope provided for, vizt. that, to such persons by whom in respect of its matter, the work may in this or that part of its extent be disapproved, in respect of its form, it may still be found of use. Seeing the reasons, in which the proposed provision has found its support and final cause, each such disapprover will thereby have before him such a view as, I hope, will not be an indistinct one, of the force which in the shape of reason and argument he has to combat. On the one side (he may see cause to say) this or that reason seems defective; and taken all together, the whole mass of reasons appear insufficient and inconclusive: or, on the other side the nature of the case affords such or such a reason, no mention of which is, in this work, to be found.
Thus it is, that, even where the reasoning may appear erroneous or inconclusive, and the proposed provision improper or inadequate—even in these places, if the matter be stated with that clearness, which it has been the object of the workman to give to every thing that ever came from his pen, and which, on the occasion in question, would, in a more particular manner, be the object of his endeavour and his hope, even his errors may, by serving or helping to bring to view the opposite truths, be found not altogether devoid of use.
In this way it is that both in point of matter and in point of form, his endeavour would be to give to the work such a character and complexion, as shall be found correspondent to the progress, made, in these our times, in every other line of useful science: to the end that, neither in the whole nor in any part, in matters of law any more than in matters dependant on mechanical or chemical science, shall the lot of the present inhabitants of your part of the globe, be determined by the unexperienced and ill considered imaginations of primæval barbarism.
As matters of law stand at present, Sir, in your Country (not to speak of ours) on what sort of basis is it that every man’s dearest and most important interests stand or rather fluctuate? On some random decision, or string of frequently contradictory decisions, pronounced in this or that barbarous age, almost always without any intelligible reason, under the impulse of some private and sinister interest, perceptible or not perceptible, without thought, or possibility of thought, of any such circumstances or exigencies, as those of the people, by whom the country here in question is inhabited at the present time: pronounced by men, who, if disposition and inclination depend in any degree on private interest, were as far from being willing, as from being in respect of intelligence able to render their decisions conformable to the interests, even of the people by whose disputes those decisions were called for, and whose situation alone it was possible that in the framing of those decisions, they should have in view.
Since the year in which the Work, edited by Mr Dumont, was published in French at Paris, vizt. in the year 1802, that same language has given birth to two authoritative codes, the one already a Pannomion, or at least designed to become such, published by authority of the French Emperor,4 the other, confined as yet to the penal branch, published by authority of the King of Bavaria.5 In both instances, the compositors have done me the honor to take into consideration and make mention of that work of mine. On the proposed occasion in question, I should not fail to make correspondent return, and make my best profit of their labours.
The examination of them is what I have as yet postponed, waiting for some particular occasion by which such examination might be applied to some particular use. But to warrant a man in pronouncing, and with confidence, that, in and by each of those Works, a prodigious benefit has been conferred on their subjects, by the respective Sovereigns, it is not necessary to have read so much as a single page. Executed as well as the nature of men and things admits of its being executed, no other literary work can vie with it in usefulness—executed in the very worst manner in which in the present state of society it is at all likely to be executed, it can scarcely when compared with the chaos to which it comes to be substituted, fail to be productive of clear profit in the account of use.
|*||Of some of the leading features by which the Work here proposed would be distinguished from both these—a work composed for the use of men who are in use not only to think, but to speak and print what they think, from works composed for the use of men who scarce dare speak what they think, and to whom it has been rendered impracticable to print what they think, a slight sketch, Sir, has just been laid before you.|
For securing the aptitude of it in point of matter, in the proposed English work, the rationale above described: in neither of those French works, any security at all in this shape or any other.
For securing the aptitude of the work in point of form, for securing to it the maximum of cognoscibility—and thereby the advantage of producing to the greatest extent possible, in respect of number of observances compared with number of non-observances, whatever effect it purposes to itself to produce, in the proposed English work, 1. Division into General Code and System of particular Codes: 2 Division of the tenor of the law throughout into Main text and Expository matter: 3 In the Penal Code, not to insist on any such division as the usual and already familiar one into General titles (titles of general application) and Particular titles (each applying exclusively to a particular species or tribe of offences) division of Main text and Expository matter together, into definitional matter descriptive of the main body of each offence, and matter indicative of the several causes of justification, aggravation, extenuation and exemption, which apply to it.
For securing, on every imaginable occasion, perfect notoriety, to each new set of rights acquired and correspondent obligations contracted, vizt. by whatsoever instruments of conveyance or agreement contracted, and that not only as soon as contracted, but also before contracted, and thence before the time when repentance would come too late, in the proposed English work, the already described Promulgation paper.
In neither of those French works for the necessary cognoscibility above described is any security at all in any of the just above mentioned or in any other shape declared or discernible.
Here, Sir, you see a memento given—it was not put to use here—was even a gauntlet thrown down, it was not taken up. Circumstanced as those respectable and truly useful servants of the public were, causes for such abstention might, without much difficulty, perhaps be found; causes, however, which it would be more easy to imagine than useful to express.
That in the United States any similar or any other causes should be found, not only operating, but operating with effect, to the neglect of all those securities for the adaptation of law to the only useful ends of law, is a result, the bare possibility of which cannot, by a feeling mind, be regarded with indifference.
The encouragement not only stipulated for, as above, but demanded in advance, is a gem of too high a price, to be cast, either into the Sea, or across the Sea, without thought, or without such prospect of a suitable return as the nature of the case admits of.
Of the presumable fitness of any person for the execution of a literary work proposed by him, no evidence so apposite can, I suppose, be looked for, as that which is presented by a work or works, where any such happen to be in existence, taking for their subject the subject itself which is proposed to be taken in hand, or any part or parts of it.
An assortment, as nearly complete as could be formed, of such of my printed Works as have taken for their subject any part or parts of the field of legislation, accompanies this letter, and solicits the honor of your acceptance. They are the fruit of above 45 years devoted to the study of the science, and, for little less than the whole of that time, without a view to any thing but the improvement of it.
If to a discerning mind, such as that to which this offer considers itself as addressed, any such loose presumptions as are capable of being afforded, by tokens of attention and approbation given by foreign authorities, can be of any use, it can only be by contributing to produce, should such be the result, a recurrence to the only direct and proper evidence.
Citizenship of France, decreed by one of the National Assemblies, on the same occasion on which the like mark of approbation was bestowed on Joseph Priestly and Thomas Payne.6 In one of the legislative Assemblies held during the Consulate of the present Emperor, elogium pronounced by one of the Members on the above mentioned Work and printed in the official paper.7 Nomination [(]though by subsequent incidents rendered fruitless) to the then existing Institute of France. Translation of that same Work made by Order of the Russian Government and published in the Russian language, besides another published in the same language without authority. Translation of another Work on the mode of providing for the Poor,8 made and published during the Consulate by the municipality of Paris, and (if I have not been misinformed) since put, in some shape and degree or other to public use—these tokens, together with the notices taken as above in the French and Bavarian Codes, may, it is hoped, have the additional good effect, of rendering it pretty apparent, that Governments of the most opposite forms and characters, have found something to approve, nothing considerable to disapprove, and nothing at all to be apprehensive of, in the views and dispositions with which the task here proposed would be taken in hand.
In a man’s writings, the character of the moral part is not so clearly delineated as that of the intellectual part of his frame.
Artifice, in pursuit of some private end, might give birth to an offer such as the present, unaccompanied with any such intention as that of giving effect to the engagement sought: levity though pure from original insincerity, might intervene at any time and be productive of the same failure.
On the question concerning intellectual aptitude, the evidence lying before you, the judgment, Sir, will be your own. As to what regards moral promise, the nature of the Case refers you in course to the gentleman, be he who he may, who, in this Country stands charged with the Affairs of your State. Transmitted to him, your Letter, I mean the necessary letter of authorization above stipulated for, may, according to the result of his enquiries, be delivered or kept back.
§ 2. As to the Advantages that promise to result from the gratuitousness of the proposed service, though there is not one of them, that seems much in danger of escaping the observation of the distinguished person to whom the proposal is addressed, yet as it will naturally have to pass through a variety of hands, in all of which it cannot promise itself exactly the same degree of attention, it may not be amiss that these features of recommendation should in this place be distinctly brought to view.
1. In the first place, no pecuniary charge whatever being to be imposed on the public or any part of it, the great and prominent objection which public works in general have to encounter, has here no place: and be the chance for useful service rated ever so low, still, should any the smallest portion be reaped, it will be all clear gain.
2. By supervening imbecillity, by death, or even the levity and caprice on the part of the proposed Workman, should the work be left in a state ever so far from compleatness, still, to the public there would be no positive loss: the situation in which in this respect it would find itself, would, at the worst, be but what it is at present, be but what it would have been, had no such proposal been made.
3. On these terms the situation of the Workman stands altogether out of the influence of any sinister motive, from which either an undue protraction of the business, or an undue acceleration of it might be apprehended: protraction, as if a salary were given, to be received during the continuance of it: acceleration, as if it were a sum of money to be once paid, or a life annuity to commence at the completion of it.
4. In respect of the commencement, and so far in respect of the completion, of the work, it admits of a degree of promptitude, the want of which might otherwise be fatal to the whole design. If money were necessary, consents—I need not set myself to think or to enquire in what number—would be requisite to be obtained: obtained, not only for the fixation of the sum, but for the origination of the measure, and therefore if not for the giving of any answer, at any rate for the giving any definitive and sufficient answer to this address. As it is, a single fiat, a letter how short soever from the authority to which this address is made, suffices for giving commencement to the work: and whatever subsidiary matters may hereinafter come to be suggested, may without inconvenience wait, in that case, all proper and accustomed delays.
5. It must I think be acknowledged to be a feature of advantage in any proposal, if it be such as to clear from all possible suspicion of sinister interest, all such persons to whom it may happen to take a part in the giving introduction or support to it.
To this sort of advantage, if there be any imaginable proposal that can lay claim, this I think cannot easily avoid being recognized to be thus happily circumstanced.
With or without any particular individual in the character of proposed workman in his eye, suppose the pre:eminent person to whom this proposal is submitted—suppose him bringing forward a plan, tending to the accomplishment of the proposed work, but accompanied with a plan of remuneration in the ordinary shape and mode. What would be, be he who he may, the motives to which the proposal would be referred?—referred, by adversaries at least, not to speak of friends?—they are by much too obvious to need mentioning.
Supposing it the good fortune of this proposal to obtain the sort of approbation which it aspires to, I have set myself to consider, by what public tokens it may be natural and proper for that approbation to declare itself. The inability I have found myself under, of obtaining the documents necessary to secure me against falling into misconception respecting such of the functions of your high Office, Sir, as may be found to have application to the present case, will, I hope, in case of mis-supposal, obtain for me the benefit of your indulgence.
The steps, to any or all of which it may happen to be taken in this view, present themselves to my imagination as follows.
1. To lay the proposal before Congress at its meeting, with a recommendation to take it into consideration, stating or not stating the provisional authorization given or intended to be given to the author.
2. To cause a Minute to be made in the books of the Presidents’ Office, stating a resolution on the part of the President for the time being to lay before Congress any such part of the Work as may come to have been transmitted during his continuance in Office, together with a recommendation of the like operation, in the like event, to future Presidents.
3. To transmit a Copy of this proposal, accompanied with the like recommendation to the legislative bodies of each of the several particular States.
4. To cause it, on public account, to be printed and published by authority, as other public documents are in use to be.
For affording to me the necessary encouragement, any one of the above testimonies of approbation would, if notified to me by the President, be sufficient: but the greater the number of them that may come united, the greater of course, and the more operative would be the encouragement.
Two things require to this purpose to be distinguished—1. the design itself.—2 any work that may come to be presented by me in execution of it.
If, by any approbation bestowed upon the design itself, you were to be pledged for the like or any other tokens of approbation to be bestowed on any work done in execution of this same design, this would be an objection against the bestowing any such provisional approbation on the design itself. When it comes, the work might appear ill adapted to its purpose, and, on that or any other account, not likely to be approved by the respective constituted authorities, on which the adoption of it would have to depend.
With submission, it appears to me Sir, that, on the supposition that the design itself has met your approbation, it would not be a committal of yourself, were you to undertake for the forwarding either to Congress, or to the several Legislatures, for their consideration, any work that shall have been transmitted by me, in execution of the design so approved. For, contrary to expectation, when produced suppose the work to prove, in your judgment, to ever so great a degree absurd and even ridiculous, nothing will there be to hinder you from saying so: wherever it goes there it will lie: nor will it impose, on any person, any such trouble as that of taking it into consideration, unless some person or other should happen to be to such a degree impressed with the contrary notion, as to make the proper motion for causing it to be taken into consideration, as in the case of any particular law proposed in ordinary course.
As to the expense of printing—to any such extent as in the different cases may appear requisite, an expense so moderate would hardly, I should suppose, be grudged, by those to whom it belongs to judge: if it should, it would not be grudged by me.
§ 3. Against an enterprize of the sort in question, an host of jealousies and fears will naturally be springing up and arming themselves with objections. To such as appear best grounded or most plausible, I proceed to submit such answers as the nature of the case presents to me.
Objection the 1st. “Disturbance to property and other existing rights.” “What?” (cries the man of law) “remove our land marks?” “revolutionize our property?” throw every thing into confusion? “Is this what you would be at?” “and is this to be the practical fruit of these fine theories of yours?”
Such, Sir, if not where you are—such at any rate would be sure to be his language here.
My answer is—so far as the objection confines itself to the law of private rights, when these and any other number of declamatory generalities in the same strain have been expended, the only real mischief which they hold up to view, is that which is reducible to this one expression—to existing expectations disappointment, productive of the painful sense of loss.
What then is this mischief, by the apprehension of which this proposed Pannomion is thus to be put aside?
It is the very mischief, under which it is impossible that, for want of a written, and visible, and intelligible, and cognoscible rule of action, in a word for want of a Pannomion, the people in your country should not be at present labouring: the very grievance from which it is the object of this my humble proposal to be admitted to afford them my best assistance towards working out their deliverance: the principal grievance which it would not only be the object, but to a considerable degree the sure effect of a Pannomion to remove.
Throughout the whole extent of the territory of the United States (new acquired dependencies excepted, in which matters cannot but be still worse) what is it that at this moment forms the basis of the rule of action? What but an ideal and shapeless mass of merely conjectural, and essentially uncognoscible matter; matter without mind, work without an author, occupying, through the oscitancy of the legislature a place that ought to be filled, and exercising in it the authority that ought to be exercised by law?
Nullis lex verbis, a nullo, nullibi, nunquam
Law, in no words, by no man, never, made:
Law which, having for its authors—not the people themselves, nor any persons chosen by the people but the creatures, the ever removable and compleatly and perpetually dependent Creatures of the King alone,(*) had of course for its main object—not the good of the people, but as far as the blindness or patience of the people would permit the sinister & confederated interests of the creator, under whose influence, and the creatures by whose hands it was spun out:
Law, blundered out by a set of men, who in their course of operation not being at their own command, but at the command of the plaintiffs in the several causes, were all along as completely destitute of the power, as, under the influence of sinister interest, they could not but be of the inclination, to operate in pursuit of any clear and enlarged views of utility, public or private, or so much as upon any comprehensive and consistent plan, good or bad, in the delineation of the rights they were conferring and the obligations they were imposing: and which accordingly never has been, nor, to any purpose, good or bad, ever could have been, nor ever can be, the result of antecedent reflection, grounded on a general view of the nature of each case, of the exigencies belonging to it, or the analogous cases connected with it: nor in a word any thing better than a shapeless heap of odds and ends, the pattern of which has, in each instance been necessarily determined, by the nature of the demand, put in by the plaintiff, as above:
Law which being, in so far as it could be said to be made, made at a multitude of successive periods, and for the use and governance of so many different generations of men, imbued with notions, habituated to modes of life, differing more or less widely from each other, as well as from those which have place at present, would, even had it been well adapted to the circumstances and exigencies of the times, in which its parts respectively came into existence, have, to a considerable extent, been thereby rendered not the better adapted, but by so much the worse adapted, to the notions and manners now prevalent, to the state of things at present in existence:
Law, which, by its essential form and character, as above indicated, is, so long as it retains that form, altogether disabled from either giving to itself, or receiving from any other quarter, improvement or correction, upon a scale of any considerable extent: which, even upon the minutest scale, can not give to itself any improvement in the way of particular utility, but at the expense of general certainty: nor even at that price, but by a course of successive acts of arbitrary power, productive in the first place of a correspondent succession of particular disappointments, followed, each of them in proportion as it comes to be known, by those more extensively spreading apprehensions of insecurity, which are among the inseparable concomitants and consequences, of that ever deplorable, howsoever originally necessary and unavoidable, taint of iniquity, inherent in the very essence of expost-facto law.
Of ex-post-facto law did I say? Yes: for that which by common sense, speaking by the mouth of Cicero,9 has been spoken of as the most mischievous and intolerable abuse, of which, in the form in which it is called Written or Statute law, the rule of action is susceptible, is an abomination interwoven in the very essence of that spurious and impostrous substitute, which, to its makers and their dupes, is an object of such prostrate admiration, and such indefatigable eulogy, under the name of Common or Unwritten Law.
Of unwritten, or rather of uncomposed and unenacted law (for of writing there is beyond comparison more belonging to this spurious than to the genuine sort) of this impostrous law the fruits, the perpetual fruits, are in the civil or non-penal branch, as above, uncertainty, uncognoscibility, particular disappointments without end, general sense of insecurity against similar disappointment and loss: in the penal branch, uncertainty and uncognoscibility, as before, and, instead of compliance and obedience, the evil of transgression mixed with the evil of punishment: in both branches, in the breast and in the hands of the Judge, power every where arbitrary, with the semblance of a set of rules to serve as a screen to it.
Such are the fruits of this species of mock law, even in the Country which gave it birth: how much more pregnant with insecurity—with unexpected and useless hardship as well in the shape of civil law, as in the shape of penal infliction and non-prevention of crimes, must it not necessarily be in a country, into which the matter of it is continually imported: imported from a foreign country, whose yoke the American nation, has, to all other purposes so happily for both nations, shaken off.
Not that I am by any means unaware of the prodigious mass of rubbish, of which on the importation of English Common Law into America part was, on the change of place naturally, or even necessarily, left behind, other parts since the original importation, at different times so wisely and happily cast out of it: religiously-persecuting laws, manorial rights, tithes, ecclesiastical courts, distinctions between law and equity in several of the States at least, secret Rome-bred mode of extracting tithe money I believe every where, and so forth. Not that I am by any means insensible to the prodigious alleviation, which from the removal of so large a portion of it, the burthen can not but have experienced.
But though, of the whole mass already imported, as well as of each successive mass, as they come respectively to be imported, there is, and will be, so much the less that needs to be attended to, yet, from the respective magnitudes of those several masses, no defalcation ever has been made, or can be made. The consequence is—that what alleviation so ever the burthen of the law has ever received, or can ever receive as above, vizt. by successive patches of Statute law, applied to the immense and continually growing body of unwritten alias common law, is confined to the matter, leaving the form of it as immense, as incomprehensible, and consequently as adverse to certainty and cognoscibility as ever.
Yes Sir, so long as there remains any the smallest scrap of unwritten law unextirpated, it suffices to taint with its own corruption—its own inbred and incurable corruption, whatsoever portion of statute law has ever been or can be applied to it.
So far then as disturbance to existing rights is the disorder in question, the proposed operation so far from producing, or aggravating such the disorder, presents not only the sure, but the only possible remedy. Disturbance?—a state of disturbance—of perpetual and universally extending disturbance is the very state in which they have hitherto existed: have existed, and, until fixed and secured by the application of this sole remedy, are condemned to remain till the end of time.
All this while, incapable as it is of serving in any tolerable degree, in its present state, in the character of a rule of action and guide to human conduct, nothing could be much further from the truth, than if, in speaking of the matter of which English Common law is composed, a man were to represent it as being of no use. Confused, indeterminate, inadequate, illadapted, and inconsistent as, to a vast extent, the provision or the non provision would be found to be, that has been made for the various cases that have happened to present themselves for decision, yet in the character of a repository for such cases it affords, for the manufactory of law, a stock of materials which is beyond all price. Traverse the whole continent of Europe, ransack all the libraries belonging to the jurisprudential systems of the several political states, add the contents all together, you would not be able to compose a collection of cases equal in variety, in amplitude, in clearness of statement—in a word, all points taken together, in instructiveness—to that which may be seen to be afforded by the collection of English Reports of adjudged cases, on adding to them the abridgements and treatises, by which a sort of order, such as it is, has been given to their contents.
Of these necessary materials, the stock already in hand is not only rich, but one may venture to say, sufficient: nor, to the composition of a compleat body of law, in which, saving the requisite allowance to be made for human weakness, every imaginable case shall be provided for, and provided for in the best manner, is any thing at present wanting but a duly arranging hand.
Objection 2. Foreign Yoke. It was to free ourselves from the yoke of foreign law that we took up arms against the Monarch of England, and shall an obscure subject of the same nation fasten another such yoke upon our necks?
It may perhaps appear an idle precaution to bring to view in the character of an objection capable of being urged, an observation so palpably void of substance. But it is not always by the most rational argument that the strongest impression is made. At any rate the answer will, I flatter myself, be found sufficient.
1. The yoke, the foreign yoke, is already about your necks: you were born with it about your necks.
What your proposed Scribe does, if he does any thing, is to facilitate to you the means of relieving yourselves from it.
2. Year by year, or rather term by term, that is quarter by quarter, the mass and burthen of it receives, at present, its encrease. What he does, if he does any thing, will be to help, relieve you from such encrease.
3. By him, let him do what he may, no yoke will be imposed: nothing like the imposition of a yoke either done, or so much as attempted. By him, let him do what he may, no act of power will be performed, not any the minutest particle of power exercised. The honour for which he is suing is that of being admitted to work in the character of a Servant. Labor alone will be his part: acceptance, rejection, alteration, decision, choice, with as much, or as little labor, as it may be your pleasure to bestow upon it, will be yours.
Yes, if, to have part in the governance and plunder of you for seven years, he were to be occupied in cringing to you, and in flattering you, for as many days or weeks, then indeed there might be power for him to exercise, then indeed there might be a yoke for you to take upon you, and him to impose: but any such authority is not more completely out of his reach, than it is and ever would be out of his wish.
4. In suing to be thus employed himself, it is no less opposite to his wish, than above his power, to exclude from the same employment any of yourselves. But of this a little further on.
Heavy or light, by your own hands, if by any, will the burthen if any, be imposed.
5. Innumerable are the yokes, the additions to the existing foreign yoke, by which, until you take this only method of securing yourselves against all such nuisances, the burthen you now labour under will continue to be encreased.
Not a year, not a quarter of a year, but, here in this Country fresh loads are produced, of the excrementitious matter of which this burthen is composed. Of this matter, this or that portion, will it, or will it not, by such or such a time, have in your Country begun to swell the load? Upon arrivals or non-arrivals—upon winds and waves—upon good or ill humour between the two nations, will even possibility depend in the first place.
Let possibility be now converted into fact. The produce of the last twelve month, or of the last quarter, or such other portion as accident may have determined, is now arrived: Upon whom on the occasion of each cause will the acceptance or rejection of it, and of each particular portion of it, depend? Upon yourselves all together? Upon your appointed legislators? upon the aggregate of all your legislative bodies? or upon any one of them? No: but on each particular occasion, upon the will of some one or other such small number of yourselves, acting as Judge or Judges.
Take for example any one such Judge, upon this or that case that chance has brought before him, this or that English decision, (let it be supposed) bears: will it, or will it not, be taken by him for his guide? On contingency upon contingency depends the answer. The last cargo, has it, in the whole or any part of it, come into his hands or under his cognizance? if not the whole, but a part only, what part? The case produced to him, will he, or will he not pay regard to it? Yes or no depends (for I see not how it should fail of depending) altogether upon his good pleasure. If it be such as suits his views he makes use of it: if it be such as does not suit his views, he turns aside from it.
6. Innumerable, and many of them still more obscure than your proffered servant, are the workmen who at present, bear, each of them a part, in the fashioning of these successive accretions to this your foreign yoke.
At present—under the existing system of blind and sheepish acquiescence, who are they who thus, in conjunction in each instance with this or that Judge—become respectively the arbiters of your fate? Speaking of individuals to say who, is, in any instance impossible: speaking generally, a Judge or bench of Judges, nominees of a foreign monarch—or to speak more correctly, as well as particularly a mixt yet uncommunicating multitude, composed of Judges, Advocates, self appointed Note-takers, Law Report writers, Law treatise makers, Law abridgment makers, and publishing law booksellers.
Suppose on the other hand the proposed work executed, the proposed Pannomion compleated; in what state would the rule of action be among you in that case? Comprized it would be the whole of it, in a small number of Volumes; the part necessary to each man in some one small Volume: the whole heap of foreign lumber, existing and future contingent, as compleatly superseded, rendered as completely useless, as an equal quantity of School Divinity, or Rome-bred Canon Law.
Wide in this respect, is the difference, between a situation in which not a particle of labour has place without a correspondent particle of power attached to it, and a task which would have to consist purely of labour without any the least particle of power attached to it.
But, though thus bare of power would be the Service in question if rendered by an obscure and unknown foreigner, the case not only might be, but naturally would be, very different, if a service of the self same nature were to find the performance of it lodged in the hands of a native. In that case, whatever reputation and consequent influence it might happen to a man to obtain by the execution of it, would, in his situation, and for his benefit, convert itself into so much power. In power in short, not only would the performance of the Service terminate, but it is in power that the choice of the person for the performance of it would have originated. If therefore the business finds itself in the hands of a foreigner, there will be at least this advantage that the judgment to be pronounced upon it will stand so much the clearer of the influence of local, as well as personal, enmities and partialities, and the work stand so much the better chance of being judged and decided upon, on the ground of its own intrinsic merits, its own fitness for the intended purpose.
Discussions of this sort do not, it must be confessed, shed any very brilliant lustre upon human nature; but so it is that we are constituted: and being thus constituted it is impossible for Us to act either prudently or beneficially, any further than as we know ourselves for what we are.
As to local jealousies, to my eyes dissention, be the seat of it where it may, is never a pleasing object. But though in some measure it depends on a man’s choice what objects he shall fix his eyes upon, it depends not altogether upon his will what objects shall pass before them.
By the words northern and southern, if my eyes or my memory do not deceive me, one cause of division more or less active has been indicated as having place, and more or less frequently manifesting its influence in your confederacy. Supposing this to be so, what is then the consequence? For public Service in this or any other line, if a member of the southern division presents himself or is held up to view, jealousy and opposition gather in the northern regions, and so vice versâ.
Another source of division, though to my unpractised eyes not so clear and intelligible a one as the foregoing, is that which is brought to view by the words democrats and federalist.
Under these circumstances, be the nature of the work ever so uninviting, if a hand were to be offered for it, from one of the sides distinguished as above, in the natural course of things it would find on the other side hands drawn up in array, and prepared if possible to repel it. Such at least would be the case here. Such in a word would be the case (for such has ever hitherto been the case) wherever there have been parties—wherever there has been either liberty or the appearance of it. If to this rule the land of the United States afford an exception, it is a land—not of men, but angels.
Such then are the perils which, a work of the sort in question would have to encounter, if proposed for a native workman: perils which in proportion to the utility of the work, would, it is apprehended be more likely to receive encrease than diminution: from these perils, at least, it would be saved by acceptance given to a remote and foreign hand.
Objection 3. Foreigner’s necessary ignorance.
A foreigner by whom the territory has not, any part of it, ever been, or will be visited, who with the population, with the territory or its local peculiarities, never has had, nor proposes ever to have any the least personal acquaintance—a person so circumstanced a person thus ignorant—unavoidably and incurably ignorant—of so many necessary points of knowledge—is he a person who, with any propriety, can be looked to for any such service?
1. To this question one answer may be given by another question. The legislators, such as they are, to whose combined exertions the loads of writing, of which our and your unwritten law is composed, owe their existence, have already been laid before you and brought under review: Our Advocates, our Judges, our Note-takers, our Report makers, our Treatise and Abridgment makers, our publishing Law booksellers. By how many of all these functionaries, has the legislative System of the United States been ever studied—been ever so much as thought of, or the Country visited?
2. Another answer is—that, upon a closer scrutiny, the points, which present a demand for local knowledge; would not, it is supposed be found to cover, in the field of law, so great an extent, nor yet to be so difficult to discriminate beforehand, as upon a transient glance, general notions might lead any person to imagine.
3. Nor, if I may venture to say as much, would it be easy to find any person, more compleatly aware of the demand, presented by the nature of the case, for attention to those local exigencies, nor more completely in the habit of looking over the field of law in this particular view.
Of this disposition, and this habit, exemplifications of considerable amplitude may be seen in the already mentioned work, which for these nine years has been under the public eye: and by that work Sir, I am saved from the need of attempting on the present occasion to give you any farther trouble on this head.
Thus in the case of penal Law. Of the genera of Offences, as distinguished or distinguishable by their generic names—Murder. Defamation. Theft. Robbery and so forth—definitions for the most part the same all the world over. But for particular species, occasion may be afforded, by particular local circumstances: and so in regard to causes of aggravation, extenuation, justification, or exemption, with demand for corresponding varieties in respect of satisfaction or punishment. And so in regard to contracts.
Accordingly, in any draught which I should draw, care would be taken, not only to keep the distinction all along in mind, but to keep pointed towards it the attention of all those to whom in dernier resort it belonged to judge.
4. I say to those to whom it belonged to judge: for as it never would be by myself, neither by any one else, let it be forgotten; that of any body of proposed laws to which it may happen to have been drawn up by the proposed draughtsman, there is not any part, of which the legislative bodies in the several United States will not take, each of them according to its competence, perfect and effectual cognizance: cognizance no less perfect and effectual than what has been taken of any other portion of the matter of law to which their sanction has respectively been given or refused.
Whatsoever therefore may, in relation to the local points in question, be the ignorance of the proposed and supposed foreign draughtsman, and, in his draught whatsoever may have been the errors produced by these ignorances, all such errors will, for their correction, have the same instruments and opportunities, as any other errors that ever have been, or may ever come to be made and corrected.
5. Not but that, on this as on most other occasions, it is more to be desired, that errors, of whatever kind, should, particularly in such a work, have never been made, than that, having been made, they should be corrected: and, by original exclusion, not only the time and labour necessary to correction would be saved but the danger of non correction avoided.
And here perhaps, Sir, may accordingly be seen one use in the sort of assistance, the idea of which will come to be submitted to your consideration, a little further on.
Objection 4. Shame of being beholden to a foreigner.
But a foreigner—How necessary soever the work itself may be would it not to American Citizens be matter of just shame, to see a foreign hand entrusted with, or so much as employed in the execution of it? America—the whole population of United America—the 8 or 9 millions or whatever may be the amount of it—among such multitudes of hands, constantly occupied in the business of legislation, does it not contain so much as a single one, competent to such a task?
A question this, which will be apt to appear, much more within my competence to put, than to find an answer for. I shall venture however to submit answers more than one.
1. In the first place what I beleive is certain is—that whatsoever number of persons thus qualified, may, at this time, be in existence, no one such person has as yet at any time made himself known as such, or been recognized as such.
2. In the next place, be the number of persons, in an equal, or by any amount superior, degree, competent to the task in question, ever so great, of the offer here submitted it is no part, either of the design, or tendency, to deprive the United States of the Services of any one. On the contrary, among its tendencies is that of calling forth into action, to this very purpose, and on this very occasion, whatsoever qualifications or capabilities, of the kind in question, may happen to be in existence.
3. Of this sort of national jealousy, if the effect be to call forth into existence any competitors who would not otherwise exist, so far at least, if the work itself supposing it well executed, be deemed a useful one, in such case, as well the utility of this offer, as the propriety of giving acceptance to it, will be out of dispute: and, in such a competition, the danger that the work of a perfect stranger should, to the prejudice of local interests and influences, obtain an undue preference, will hardly appear very formidable.
4. If on the other hand, it should happen to it, either to be the only work produced, or, finding rival works to contend with, to be really, in the judgment of the competent judges, thought better adapted than any other to the intended purpose, any such supposition as that, on the occasion of such a work, these same judges would see their Country less well served, or not served at all, rather than see it served by a foreign hand, and that accordingly, they would put it in the power of any foreigner, to preclude them from the benefit of a good body of law, or so much as a single good clause in a law, merely by being the first to propose it, is that sort of supposition which, if seriously made, would not, I imagine, be very generally well received.
5. Whatsoever disposition toward jealousy it might happen to an offer of this sort to have to encounter, a man, of whom it was perfectly known, that in person he could never be present, to give to any one the sort of offence which such a disposition supposes, should naturally, on this supposition, present such a ground for acceptance as should give him on this one score at least, the advantage over a native. On affections of this kind distance in respect of place, especially when the continuance of it is certain, produces an effect intimately analogous to, and little different from that of time. In the present case, were the proposed Workman already numbered among the dead, he could not be more effectually placed out of the sight of the people, and in particular of the constituted authorities, in whose Service it is his ambition thus to place himself, than to the day of his death, he would find it necessary to remain, if this his offer found acceptance.
6. So far from operating as an objection, at least in the mind of any Gentleman, who fills the high station to which this offer is addressed, what I should expect is—to find this very circumstance of foreignership placed, and on this very score, to the account of advantage.
Among the Italian Republics, this sort of policy was applied sometimes by usage, sometimes by positive law—not only to the subordinate situation designated among us by the title of Judge but to that of Podesta: a sort of supreme Monarchical Magistrate to whose power, while it lasted, it seems not very easy to assign any very distinct limits. My books are not at present within my reach but, in the case of the Podesta, instances more than one will be found in Sismondi’s lately published history of the Italian Republics;10 and, in the case of Judge, I have read laws to that effect in the Codes of Italian States, more than one: and if I do not mis-recollect, these instances or some of them are mentioned in the Defence of the Constitution of the United States by Mr Adams.11
Of this preference the cause, the efficient cause seems manifest enough. For any of those great and enviable situations, seldom could a man, whose character was such as to afford him any chance of finding acceptance, offer himself, without raising up against himself, besides a band of rivals, a much larger host of adversaries.
Nor was the justificative cause, the reason, much less clear or impressive. In any such powerful situation no native could seat himself, without bringing into it, in his bosom, a swarm of sinister interests, partialities and prejudices.
§ 4. On the subject of alienage. I gave intimation of an expedient, which I will now venture upon the liberty of suggesting, and on which, it being to myself, personally speaking, a matter of indifference, you will be pleased, Sir, to bestow what regard it may seem to merit.
If at any time, supposing me occupied in the work in question, it were thought worth while, by your Government, to Commission any Citizen of the United States, residing for any purpose of his own, or sent hither for that particular purpose, to take a part in it, and give me the benefit of his information and assistance in the execution of it, whatsoever instruction I may be thought capable of affording, on the subject of legislation, should be always at his command: and whatsoever information, not possessed by him, I am myself master of, it should be my study to make him master of as fully and as expeditiously as possible: always understood that the same considerations, which forbid the receipt of the fruits of public munificence, would oppose the same inexorable bar to the acceptance of the individual’s mite.
The probability, of my living long enough to put the last hand to such a work, being of course altogether precarious, my endeavours would be, as speedily as possible, to put him in a way of filling up whatever deficiency it might be my lot to leave.
The Gentleman so commissioned would I suppose be a person distinct from him who stood charged with the Affairs of the United States at this Court or in this Country in any diplomatic character, principal or subordinate, and that for more reasons than one.
1. His whole time would not be too much for such an employment.
2. In his instance, a more intimate acquaintance with the general state of the law in the United States might, perhaps, be thought requisite, than for any such diplomatic character would be thought altogether necessary.
3. In the event of a rupture between the two Governments, (a contingency, the calamitousness of which affords no reason why on this any more than on any other occasion, it should be left unprovided for) the general liberality of the times (and I hope this Country will not to this purpose be considered as affording an exception) leaves me little apprehension, that a person whose commission were known, and declared to be confined to this one object, would not be allowed to continue in this country, for that particular purpose, notwithstanding any interruption of diplomatic intercourse.(a)
§ 5. The degree of advance already made by my labours in the field of legislation and the order of priority in which, if undertaken, the several distinguishable parts of the Pannomion would be proposed to be executed—these seem to be of the number of the topics, on which something will on such an occasion be expected, and on which accordingly it will not be allowable for me to be altogether silent.
On these topics on the other hand, any considerable details would, if comprised within the compass of this paper, swell it to such a bulk, as to subject to too great a degree of uncertainty its prospect of finding a reader, in the exalted and busy station to which it is addressed.
The point for your consideration, Sir, supposing the Work itself a desirable one, will, unless I misconceive the matter be found to be—whether if this proposal should be passed by without acceptance the rejection will leave an adequate probability of seeing the work executed, at any future period, and under other circumstances, to equal advantage? and in particular, whether there be any such probability, that any other person will arise, who, having, without receipt or prospect of pecuniary retribution, made equal advances in the prosecution of such a design, shall, upon the same desirable terms, be ready to undertake to do what depends upon him towards the completion of it?
To enable you to afford to yourself a proper answer to these questions, the following statements, compressed as they are, and consequently, in a proportionable degree, deficient in point of specific information, may yet perhaps be found to suffice.
1. In regard to the Penal Code the work is already in a state of considerable forwardness. That it was so, so long ago as the year 1802, not to speak of a much earlier period, may be seen from the work edited in that year in the French language by Mr Dumont. What may be seen upon the face of that work is indeed a sample but it is no more than a sample: a great deal more had even then been executed than is there exhibited; perhaps the greatest part of the whole: a few months, indeed a very few, would, if I do not much miscalculate suffice for the completion of it—I mean in terminis.
2. As to the Civil Code, in the adjustment of the terms of it, but little advance has been made: but, in respect of leading principles, of which in regard to form as well as matter, a pretty ample view may in that same work be seen, they have long ago been settled.
3. Of the subject of the Judicial Establishment (the Judiciary is I think the more concise denomination it goes by with you) a pretty full view may be seen in the printed, but never yet published papers drawn up about the year 1790 on the occasion of the French Revolution:12 Copy herewith sent, as per list. To adapt it to the purpose of the United States, if the System actually in force there should be regarded as susceptible of improvement, would of course require considerable modifications.
4. As to procedure, judicial procedure in the adjustment of the principles of that branch of the law, considerable progress was necessarily made, of which the result was brought to view, and may be seen in the course of the enquiry made into the subject of the correspondent part of the Official Establishment as above.
Since that time farther advances were made and presented to view in the work intituled Scotch Reform & published Ao. 1806 Copy herewith sent.13
In addition to this, a work compleat or nearly so on the subject of Forth-comingness—Vizt. on the most effectual and in other respects most proper, means to be employed for ordering matters in such sort that, whether for the purpose (as they say in French) of justiciability, I mean being placed at the disposal of the judicial authorities, or for the purpose of evidence (I mean being made to furnish evidence) as well all things as all persons requisite shall, on each occasion, be forthcoming, lies by me in manuscript.
5 The subject of evidence has been examined in its whole extent and sifted to the bottom. A work of mine on this subject under the title of The Rationale of Evidence enough to occupy two moderate sized quarto volumes, has been for some time in the hands of another friend of mine,14 and will be in the Printers’ hands in the course of about two months.
For drawing up a Code in terminis, grounded on the principles there laid down, very little time would suffice. Of the customary exclusionary rules—rules which are not in the law of any Country either consistent with one another, or adhered to with any tolerable degree of constancy—the place would be mostly occupied by a set of correspondent Instructions: Instructions from the Legislator to the Judge, pointing out, inter alia, as causes of suspicion, those circumstances which in general are employed in the character of causes of absolute and inexorable rejection.
On several subjects not included, as well as those which are included, under the above heads, disquisitions may be seen in the subjoined list of printed Works. But, to the present purpose, no separate mention of them seems requisite.
The printed but never published fragment on the subject of the Art of Tactics as applied to Political Assemblies,15 is but one Essay, out of some thirty or forty, which were at that time written and which, taken together, did not want much of having gone through the subject in its whole extent.
But this is a subject, I should scarcely myself propose to include in the Pannomion. It is a subject on which each political body will naturally feel itself disposed to legislate, or at least act, according to its own views of its own exigencies, meaning exigencies considered with a view to the public good, the good of that part of the public Service—not to speak of particular interests and prejudices.
As to constitutional law, I mean that branch which regards the mode of appointing the several public functionaries, with their respective powers and obligations—with you I believe the appellation has a sense somewhat more extensive—As to Constitutional law thus explained, I mention it for no other purpose than to show that it has not been overlooked. In respect of the matter no demand for alteration has presented itself to my view nor should I myself be disposed to look out for any. In respect of the form something might possibly be found needful to adapt it to the other parts.
But though it were to be transcribed without the alteration of an iota, still, for symmetry and compactness, it might be necessary it should go through the hands, by which the other parts were drawn up.
As to the order of operation—I mean as between the different parts of the proposed Pannomion—the penal Code is that which I imagine has already presented itself to your thoughts as the part which claims the first place. In respect of the matter of it, it is that in which the demand for variation presented by local circumstances will naturally be least extensive: and the comparative progress already made in it, would, in default of material reason to the contrary, be of itself sufficient to determine the preference.
I know not whether the legal circumstances of your recent territorial acquisitions will be thought to add any thing to the reasons for acceptance.16 In the character either of subjects or fellow citizens, you have to make provision for the legal exigencies of a new mass of population, differing from you not less in laws and customs than in language. In the state of these their laws, alteration in many points must already have been necessitated, alteration in many others must be continually in contemplation. Besides the advantage of having the work done, whatsoever there may be of it to be done, upon an already considered and comprehensive plan—might it not, to the new citizens in question, be in some degree a matter of satisfaction, to learn that the preparation of the business was consigned to hands, for whose impartiality there would be such a security as could scarce have been in contemplation otherwise?
To contemplate the matter on the footing of presumptions merely—and laying out of the case such ground for acceptance as the works themselves may be found to afford, I wish to be clearly understood, in what I say as to the considerations, which in the present instance, may appear to operate in favour of the experiment, of receiving into the field of legislation the labour of a foreign hand. They are reducible to this simple circumstance vizt. that of the existence of a person, by whom so large a portion of time and study has been bestowed upon the business, coupled with the assumption that, neither in the British Empire nor in the United States, does there exist that other person, by whom, upon any comprehensive plan an equal portion of time and study—I might perhaps add any portion of time and study—has been employed with any ameliorative views.
One thing I am ready to admit and am fully assured of; and that is, that if, on general grounds, and setting aside any such casual opportunity, a resolution were come to, in your Country to set about the drawing up a Pannomion, reasons for looking beyond the American States (I mean on the ground of abstract aptitude and setting aside those which have reference to local jealousies and partialities) would not be to be found.
No, Sir: not the smallest doubt have I, but that, if in both Countries, a Pannomion were to be drawn up, and in both Countries hands were to be looked out for, in the class of practising lawyers, the hand of an American lawyer would, even for the use of England, present beyond comparison a fairer premise than that of a lawyer of the English school.
What this persuasion has for its ground is, the observation of the improvements—the prodigious improvements—which in matter and even in stile, since its voyage to America, the law of England has received from American hands.
Laying out of the case those necessary changes, which, in the constitutional branch, have been produced by the emancipation and the change in the form of Government—(subjects to which my attention neither has turned, nor is disposed to turn itself) those which on this occasion I have in view are those which through the medium of materials, as I have been hitherto able to collect, I have had the opportunity of observing in the penal branch, in the civil branch, and in the system of procedure.
Among these, though there may be some, which, being the result of the change in the constitutional branch, could not, consistently with the existing constitutional system, be introduced into the Mother Country, yet there are others—and those the greatest part, which, with as much advantage, and with as little inconvenience, might be effected in England, as they have been in the United States.
Accordingly, but for the adverse interest of professional men, and the lazy and stupid confidence with which the bulk of the people have resigned their best interests into the hands of these their natural and irreconcilable enemies, long ago would these same amendments have been made in this Country.
In America, the work would not fall into the hands of any persons, to whom the practice of amendment was not familiar: who had not been in use not only to see amendments made and made to a great extent, but made with manifest and undeniable good effect: whereas in this country (saving exceptions in too small a number to be mentioned) any past Work would look in vain for operators, to whom the very idea of amendment was not an object of unaffected terror, and undisguised enmity.
In this state of things, suppose any person, myself for example, after making up a list of these amendments, were to come forward with the proposal to introduce the same amendments here: what would be the reception it would meet with? “Oh! You want to republicanize us do you?” This would be the cry set up by the men of law—echoed by all others (a countless multitude) who have any share in the profit of the existing abuses: and in this cry would be found a full and sufficient answer. Foundation, it is true, it would have none. But, such is still the blindness and indifference of the people at large—so bigotted their admiration, so prostrate their adoration, of their natural and implacable enemies and oppressors.
|* (Do you doubt this? Sir, I will put you in a way to make the experiment. I will find you some fit person, who, without possibility of profit to himself, merely being indemnified against the expense, shall write the book and publish it. Sir, if you accept the offer you will be a loser by it. I mean of course in the account of money: if you look for indemnification, honour to yourself and country is the only shape, in which you will receive it.)|
Such is the bigotry and indifference which in this Country is still prevalent. How long is it destined to continue? This is more than a prudent man will venture to answer. Thus much, however, I will venture to predict, Vizt. that, before this century, not to say this half century, has passed away, this shame to England will likewise have passed away.
I beg your pardon Sir, no sooner is the proposal made than I have to beg your permission to withdraw it. For without those, or any other conditions, the friend to both Countries, who will do this, is already found. A Periodical publication is chosen as a vehicle for it: the subject to go on from number to number in continuance. I have the honor to be, Sir, With all respect, Your most obedient and very humble Servant
In the event of acceptance I would beg the favor of you Sir, to give the necessary orders for the forming as Speedily as may be, a collection as complete as possible of the Laws of the several States as well as of those of Congress down to the then present time, and transmitting them to me here.
Immediately on delivery the expense (purchase money, freight and all other necessary charges included) will be thankfully paid by me to the person by whom delivery is made.
To these I would beg might be added three Copies of the latest statistical account extant of the United States—that by Blodget would I suppose be the book.18 About 3 years ago I had a momentary sight of it, year of publication I believe 1806 or 1807, but from that time to this, all my endeavours to obtain the property, or so much as a sight of a Copy have been without effect.
Also a Copy of the Works of Genl. Alexander Hamilton lately published at New York 3 Vol. 8 Vo.19
Also of such Papers as have been published under the name or in the character of official Reports—whatsoever promise to be serviceable in any way to the intended purpose.
Underneath is a List of all the Books of United States Law I have been able to procure, and for most of them I have been indebted to various accidents—enquiries made at the Booksellers for others, and in particular for information of the Laws of Congress have proved fruitless.
1 Computation of the several Independent States of America—2d Edition 8 vo by the Revd. W Jackson London 1783.
2. A Review of the Laws of the United States of America—the British Provinces & West India Islands Anonymous London 8vo: Printed for Otridge Strand 1790.
3 A Defence of the Constitution of Government of the United States of America against the attack of M Turgot in his Letter to Dr Price dated 22nd March 1778 by John Adams L.L.D. &c In 3 Vol 8vo: New Edition London Printed for Stockdale 1794.
4. The Pensylvania State Trials, containing the Impeachment Trial & Acquittal of Francis Hopkinson & Jn. Nicholson Esqr. 8vo. Vol 1 Philadelphia Printed by Francis Busby for Edmund Hogan 1794.
6. Acts passed at the First Congress of the United States of America begun and held at the City of New York 4 March Anno 1789 Philadelphia Printed by Francis Child Printer of the Laws of the United States 1795.
7 Do. of the Second Congress begun & held at the City of Philadelphia 24 Octr. 1791 ibid 1795.
8. Do. of the Third Congress Do 2 Octr 1793 ibid 1795.
9. Do. of the first Session of the 4th. Congress begun and held at Philadelphia 7th Decr. 1795. Printed by Thomas Dobson 1797.
10 Do. of the second Session of the 4th Congress begun and held at Philadelphia 5 Decr. 1796 ibid Printed by T Dobson 1797.
List of the Works sent with this Letter.
Panopticon 3 Vol:
Essay on Political Tactics
Defence of Usury.
Views of the Hard Labour
Sketches relative to the Poor 4 Nos.
Draught of a Plan for the Judicial Establishment in France
Address to the National Convention of France, proposing the emancipation of their Colonies.
Escheat vice Taxation.
Protest against Law Taxes
Traités de Législation 3 Vol:
Panopticon versus New South Wales & Plea for the Constitution
Summary view of a Plan for a Court & Lords Delegates
Théorie des Peines et des Récompenses
Works not sent, being out of print and not procurable
An introduction to the Principles of Morals and Legislation, printed in the year 1780, and now first published by J Bentham Esqr. of Lincoln’s Inn, London Printed for T. Payne and Son at the Mews Gate 1789.
A Fragment on Government.
RC (DLC); FC (GBLUc: Bentham Mss). RC sent as enclosure in Henry Brougham to William Pinkney, 1 Nov. 1811 (DLC), and forwarded in Pinkney to JM, ca. 9 Mar. 1812 (DLC). RC in the hand of a copyist and signed by Bentham; docketed by JM. RC misdated 30 Oct. 1812 in the Index to the James Madison Papers. FC printed in Jeremy Bentham, Papers Relative to Codification and Public Instruction (London, 1817), pp. 1–65 (JM’s copy of this work is in the Madison Collection, Special Collections Department, University of Virginia Library). Filed with the FC are notes entitled “Marginals of Codification Papers to US.,” dated 14–30 Aug. 1811. Variations between the RC and the FC have not been noted.
1. JM did not reply to Bentham’s letter until 8 May 1816, pleading as his apology the “occupations incident to preparations for an anticipated war, which was in fact the result of the anxious crisis” (GBL).
2. In his covering letter to Pinkney enclosing the letter, Brougham conveyed a warning to JM that Bentham’s “style is somewhat peculiar—and that, both from excessive subdivisions and from a practice of coining new terms (in some measure arising out of his original turn of thinking & his ancient love of conciseness & precision) his writings are apt to wear an aspect not very favorable in the eyes of a cursory reader.”
3. Pierre-Etienne-Louis Dumont (1759–1829), a Genevan-born writer and political associate of Mirabeau, was the first major editor and publisher of Bentham’s writings. He resided in England from 1792 to 1814.
4. Bentham referred to the Code civil de français, otherwise known as the Code Napoléon, promulgated in 1804.
5. Bentham referred to Application de la théorie de la législation pênale … rédigé en projet pour les états de sa majesté le roi de Bavière (Paris, 1807), a work compiled by the French jurist Scipion-Jérôme-François Bexon.
6. Bentham was one of seventeen foreigners, including JM, who were offered French citizenship by the National Assembly on 26 Aug. 1792 (see PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser., vols. 1–10, Chicago, 1962–77, vols. 11–17, Charlottesville, Va., 1977–91). description ends , 14:381).
7. On 8 Apr. 1803 the corps législatif commended Bentham’s Traités de legislation civil et pénale and ordered that it be deposited in its library (Paris Gazette Nationale ou Le Moniteur Universel, 9 Apr. 1803).
8. Bentham’s Preliminary Sketches Relative to the Poor (1797) and Pauper Management Improved (1798) were translated by Adrien Cyprien Duquesnoy as Esquisse d’un ouvrage en faveur des pauvres (Paris, 1802).
9. “Of all laws I think that that is the most iniquitous and least like a law, which Lucius Flaccus, the interrex, passed in regard to Sulla—that his acts, whatever they were, should be ratified,” Cicero, De lege agraria, 3.2.5 (Cicero in Twenty-Eight Volumes, Loeb Classical Library [1967 reprint], 6:489).
10. Jean-Charles-Léonard Simonde de Sismondi, Histoire des républiques italiennes du moyen âge (16 vols.; Paris, 1809–18).
11. John Adams, Defence of the Constitutions of Government of the United States of America (3 vols.; London, 1787).
12. Draught of a New Plan for the Organization of the Judicial Establishment in France (London, 1790).
13. Scotch Reform (London, 1806).
14. Bentham referred to James Mill (see Mill to Bentham, 25 July and 26 Oct. 1809, Stephen Conway, ed., The Correspondence of Jeremy Bentham [9 vols.; Oxford, 1968–83], 8:38, 58).
15. Essay on Political Tactics, Containing Six of the Principal Rules to Be Observed by a Political Assembly in the Process of Forming a Decision (London, 1791).
16. Bentham referred to the Louisiana Purchase.
17. Jeremy Bentham (1748–1832), a graduate of Oxford University, had read law at Lincoln’s Inn. He did not practice his profession, but by virtue of his application of the principles of utilitarianism, he became both a celebrated jurisconsult and a leading exponent of the ideas of philosophical radicalism.
18. Samuel Blodget, Economica: A Statistical Manual for the United States of America (Washington, 1806; Shaw and Shoemaker description begins R. R. Shaw and R. H. Shoemaker, comps., American Bibliography: A Preliminary Checklist for 1801–1819 (22 vols. to date; New York, 1958—). description ends 10004).