Philip Schofield (ed.), The Collected Works of Jeremy Bentham: Official Aptitude Maximized; Expense Minimized
§1. Disappointment-prevention principle—what: its connection with Greatest happiness principle
1. Proportioned to profusion is the demand for retrenchment.
2. For the conduct of this operation, one subordinate principle, and that the only one justifiable, is presented by the all-ruling and allcomprehensive principle—the greatest happiness principle.
3. Undenominated as yet, though so extensively acted upon, is this alike unobjectionable principle. Call it the Disappointmmt-prevention principle.a
4. Corresponding proposition, this proposition or say aphorism: this aphorism fit to serve as an axiom:
In the distribution made and maintained of the several separable portions of the aggregate subject-matter of property in the state, let the object or end in view be, on each occasion, minimization, and so far as possible exclusion, of the sensation of disappointment.
5. Reason. Never can any such sensation have place without being accompanied with a correspondent pain: call it the pain of disappointment.
6. Possession or expectancy—in either of those two relative situations will be the subject-matter in question: and in every case it will be in either the one or the other.
7. Correspondent to the import attached to the word disappointment is the import attached to the word loss. By the word loss is denoted that state of things which, reference to the happiness of the individual in question, has place when, after having been the object of his pg 343expectation, any thing considered in the light of [a]1 benefit fails of actually being, or of being about to be, in his possession.a
8. Proportioned to the value of the interest in the subject-matter in the breast of the individual in question will be, in each of the two cases, the pain of disappointment. As to the circumstances on which that value depends, they belong not, in any especial manner, to the present purpose.
9. With few exceptions, by this principle, under the existing system, are the allotments made of the several subject-matters of property regulated. By this principle, notwithstanding its not having till now been ever heard of: and by this undenominatedness are called to mind the species of contract termed innominative in Rome-bred law, and the Bible text Quern vobis ignoranter colitis hunc vobis annuncio.2
§2. Offences in the case of which this principle constitutes the sole reason for constituting them such
10. On looking over the several sorts of acts regarded as maleficent, and on that account by appropriate prohibitions, by the laws of civilized nations, generally speaking inserted in the catalogue of offences, and combated by punishment and the appropriate remedies, the sole reason for so dealing by them, though that an amply sufficient one, may be seen to be the pain denominated as above: the pain of which, by every one who [puts]3 to himself the question, and pg 344[deduces]1 the answer to it from his own feelings and experience, it may be seen and felt to be productive.
11. Offences affecting the use of a corporeal subject-matter of property, moveable or immoveable: but not the title thereto, otherwise than in so far as title, defeasible or indefeasible, is conferred by simple possession.
i.2 Wrongful detention, or say detainer, applicable alike to moveables and immoveables.
ii. Wrongful asportation—applicable to moveables alone.
iii. Wrongful destruction—applicable to moveables alone.
iv. Wrongful deterioration—applicable to moveables and immoveables.
v. Wrongful disturbance of occupation—applicable to moveables and immoveables.
vi. Wrongful interception of occupation.
vii. Wrongful occupation.
viii. Theft: i.e. wrongful asportation without supposition of title.
ix. Embezzlement: i.e. wrongful detention without supposition of title.
x. Fraudulent obtainment: i.e. obtainment of the subject-matter with consent obtained by deception.
xi. Peculation: i.e. obtainment of benefit in any shape by a trustee, accompanied with loss to the intended benefitee.
xii. Wrongful damnification: i.e. wrongful production of loss in any shape, from any source, to the party wronged.
xiii. Wrongful interception of profit in any shape, from any source, to the party wronged.a
xiv. Extortion: i.e. wrongful obtainment of a corporeal subject matter of property, or of profit, in any shape to the loss of the party wronged by means of intimidation: i.e. production of fear of eventual evil in any other shape than that of corporal vexation: in which case the offence is called robbery.
12. Offences affecting title to subject-matters of property, or to a benefit in any other shape.
i. Wrongful non-collation of title. pg 345ii. Wrongful ablation of title.
iii. Usurpation of title.
iv. Wrongful transference of title.
v. Wrongful interception of title.
vi. Wrongful depretiation of title.
13. Offences of these same denominations have place with regard to condition in life in so far as beneficial, or considered as such.
Conditions in life are:
ii. Profit-seeking occupations.
iii. Power-conferring situations.
iv. Rank- or Dignity-conferring situations.
14. Domestic conditions are those of:
vii. Natural Relationship in remoter degrees.
15. Offences affecting the enjoyments from condition in life considered as beneficial.
i. Wrongful detention of Child, Ward, Servant, or Wife.
ii. Wrongful asportation of ditto.
iii. Wrongful disturbance of beneficial occupation of ditto.
iv. Wrongful occupation of ditto: wherein of adultery in the case of wife.
v. Wrongful disobedience on the part of ditto.
vi. Wrongful desertion, or say elopement, on the part of ditto.
16. Offences affecting property and reputation: property, by means of reputation.
i. Usurpation of inventorship: in particular in the case of any profitable or profit-seeking invention.
ii. Usurpation of fabricatorship: as where in regard to a certain corporeal subject-matter of property, a man pretends that it was made by him, whereas it was not: or that in the making of it he bore a certain part, whereas he did not.
iii. Wrongful ascription of fabricatorship: as where a man sells, as fabricated by another fabricator whose reputation as such is superior to his, a subject-matter made by him, or by some other fabricator of inferior reputation.
pg 346iv. Usurpation of vendorship: as where a subject-matter is offered to sale and sold as if belonging to the stock of a vendor superior in reputation, whereas the stock it belonged to was that of a vendor inferior in reputation.
In all these several cases, the benefit by the loss of which the disappointment is produced consists of profit—pecuniary or quasipecuniary profit—or of relative and appropriate reputation, or of both.
17. When the benefit in question has for its efficient cause human service in this or that particular shape, the rendition of that service being the subject-matter of obligation, and the obligation having for its efficient cause agreement of two or more parties one with another, promising the one to render to the other service in this or that shape, the other to render to the former, in consideration of service in that same shape, service in this or that other shape—in this state of things the species of convention called a contract has place: in which case in so far as a benefit, the expectation of which was produced by the making of the contract, fails of being received, correspondent loss, actual or supposed, with correspondent disappointment takes place.1
Thus it is that under the direction of the greatest happiness principle the practice of compelling the fulfilment of contracts has for its sole reason, though that, exceptions excepted, a sufficient one, the disappointment produced by the non-fulfilment.
As to the exceptions, it is in like manner to the greatest happiness principle that a benevolent mind will address itself for such exceptions as the nature of things furnishes.
The period during which the imaginary original contract was by liberalists in general resorted to as affording the sole reason why what was regarded as good government should be instituted or maintained, may be considered as constituting a special period in the history of the progress of society in civilization—in the arts of life.
pg 347Since the bringing to view the greatest happiness principle, whether under this its name or under that of the principle of utility, that period may be considered as having terminated, and this other as having succeeded it.
The time is now come when the utter inaptitude of the original contract principle in the character of a ground and source of practice in the constitution of government has been placed and stands in a light too clear and strong to be resistible. For:
1. The alledged fact of the formation of such a contract is a mere fiction.
2. The formation of such a contract, supposing it to have had place, would not, in the eyes of a being endowed with self-regard and sympathy, be upon consideration accepted as being of itself a fit ground for and source of practice. For:
3. Suppose, be the contract what it may, to the community in general, more happiness from the breach than [from]1 the observance— more unhappiness from the observance than from the breach2—what human being, endowed with feeling self-regarding and sympathetic, would, after due consideration, say—'Let the contract, however, be observed'?
Accordingly under all existing systems of law, cases are found— cases ample in extent and number—in which, without difficulty, the Legislator, or in his place the Judge, has said—'Let not this contract be observed'. And of this inhibitory exception, what has been the ground—the declared ground? always evil, in this or that particular shape, stated as eventually about to have place, if, of the whole contract in question, or of this or that clause in it, observance should happen to have place.
Correspondent to the several subject-matters of the several species of contract will be the evils of which, but for the requisite and appropriate inhibition, observance given to the contract would to a certainty, or with more or less probability, as supposed, be productive. Accordingly under the head of every such species of transaction, one sub-head requisite to be inserted is that of Cases of exception as to observance.
And note that where for the purpose of securing observance, the application of the power of the government is not thought fit to be made, either of two courses may be taken by it.
1. The option between observance and non-observance may be left to the free choice of the party in question: or,
pg 3482. The observance of it may be made the subject-matter of positive interdiction.
Obvious are the sorts of cases in which the demand for positive interdiction has place. Witness the case in which the subject-matter of the contract is—an act of homicide in a case in which the act has received the appellation of an act of murder. General Rule: whatsoever act is by the law treated on the footing of an offence, observance of a contract for the bearing a part in the commission of such offence is neither compelled nor so much as permitted, but inhibited: inhibited, and accordingly dealt with on the footing of an act of co-delinquency with relation to such offence.
Note well the course taken by human reason in this track.
Assuming that in every political community it is right and proper that all but one should be, at all times and in respect of all acts, subject to the will of that one, Filmer held up to view, in the character of an adequate ground, reason or justificative cause, the fictitious fact, the existence of which is asserted by the proposition—Of this community (naming it) all the members but one were begotten by that one.1
To this reason, the mind of Locke, having taken it into due consideration, found itself unable to subscribe.2 Of the arrangement in question, according to him, the propriety was still to be assumed. But, for the support of it on the ground of reason, some other principle was to be assumed, and was assumed accordingly. That principle, what was it? The original contract.
Here then for the overthrow of one phantom—not Reason, but Imagination was to be applied to. The champion furnished by Imagination was of course—not a truth, but another such phantom— another fiction. Resorted to by this philosopher was the device employed, as the story goes, by an ingenious Law-adviser: who, when by his client information was given to him of a document which presented itself as a forgeiy, said, 'Don't set about making proof of the forgery: but, what will be much less trouble to you—forge a release.'
The philosopher having had for his patron Sir Anthony Ashley Cooper, who, being originally a lawyer, became, with the title of Earl of Shaftesbury, Lord High Chancellor,3 hence a probability that it was from lawyercraft that this fiction was borrowed. Fiction, the most pg 349efficient of all the instruments invented by lawyercraft, was an instrument of all work, presenting itself to every hand that had boldness enough to take it up.
Bad as compared to the greatest happiness principle, compared with Filmer's fiction, and the correspondent principle, the principle adopted by Locke, though from lawyercraft, was good. Under Filmer's principle, the propriety of submission to the absolute sway of one admitted not of any exceptions. Not so under the original contract principle. For, the existence of a contract being admitted, remained to be settled—settled by so many fictions of detail—the terms of that same contract. But in the settling of those terms, the interest of the subject many [is]1 the interest which would of course be taken for the object of endeavour on the part of the subject many—that is to say of all who were not, by the power of corruption or that of delusion, engaged in the path of absolutism. Here then, and thus far, in a sort of twilight, the greatest happiness principle, though not under that name or under any name, would be taken for a guide: so many occasions for the application of it, so many imaginary clauses in the imaginary contract.
But what sort of an argument is that for the explosion of which two words are, at any time on each occasion, sufficient—Not true!
Feign a reason for the support of your position? why be at the trouble of any such expedient? As well might you claim the liberty of feigning the truth of your position, whatever it be, as that of feigning the truth of any other position adduced by you for the support of it.
The original contract had not only taken possession of that part of the public mind at large which, adhering to Monarchical Government, had not adopted it in its purest form but looked for limitations and checks to it, but had even been adopted by the new Government—the Whig Government, which took place on the occasion of the Revolution of 1688.
As to the partisans of a Republic, from no such fiction could their purpose receive support. Whether they had any fixt principle with a determinate name to it does not appear. As an avowed member of that party, till comparatively of late years no man had ever ventured to shew himself.
It was at the very conclusion of a small pamphlet, title at present not remembered, that in the character of the only defensible end in view in government Joseph Priestly held up in view 'the greatest pg 350happiness of the greatest number'. Date of that same pamphlet, 1767, or a few years before or after.1
In the year 1776 was published, by the author of these pages, the 8vo. Volume intituled Fragment on Government etc.2 In that work the principle expressed as above by Priestly was taken in hand and employed in form in waging war against the Original Contract principle.
But the denomination there employed was not an exactly apt one. The denomination given to it was that which had presented itself to his view as being established: not only as one that was found established by authority too respectable to be opposed: but as one the aptness of which had been exemplified and demonstrated by the instructive and useful application that had been made of it.
In France the denomination of the principle of Utility had by Helvetius, in his work intituled de I'Esprit,3 been given to this same principle. Clearness had at the same time been given to the import of it: the import of the word happiness had been brought down from the region of vague generalities, anchored on terra firma by means of its relation to that of the words pain and pleasure: in happiness he viewed a compound—composed of the presence of pleasure in any of its forms coupled with the absence of pain in all its forms, the mass of pleasure being at the same time regarded as being in a considerable degree intense. This being established, he proceeded, as the course of instruction required, to frame a catalogue of the several observable modifications of pleasure on the one hand, of pain on the other: but had not travelled far in that track when he stopt. After his death a work of his was published—a posthumous work under the title of De I'Homme.4 But in this, but little if any advance was made beyond that which, as above, had been [made] in his abovementioned first work.a
pg 351Some years before this, so long before as the year 1742, came out the Essays of David Hume. In this work the locution the principle of Utility presents itself. But by Hume, no such precise idea was attached to the word Utility as by Helvetius. Witness the title to one of those same Essays—namely, Why Utility pleases?1 Attached in his mind to the word utility appears to have been the idea of conduciveness to an end, whatsoever it might happen to that end to be productive of: pleasure indeed if pleasure: but production of positive pain, if so it happened that such was the end in view: or another meaning capable of being attached to it was—that of conduciveness to a more valuable future contingent, in preference to less valuable present or speedily expected, pleasure.
So far was this appellative from being the most apt one, that by thinking men in considerable proportion (so it has fallen in the way of the author of these pages from time to time to hear) the import attached to it has been understood to be confined to that of a principle employed for the purpose of prescribing the giving preference to future pleasure of greater value or exclusion of future pain of greater value, or both, to present pleasure or exemption from pain, or both.
In particular, in the case of a lady of great celebrity, notice having been taken that the principle of utility was to her an object of declared distaste, a reason or efficient cause that had been assigned for such distaste was—that it had been wont to present itself to her view as putting an exclusion upon pleasure.
Long after the publication of the Fragment as above, Dr Paley, in his work on Morals,2 took up and employed the locution principle of Utility. But for reasons too obvious to need explanation, it did not suit his purpose to make any such particular application of it as had been made of it, nor therefore to attach any such clear and precise import to it as had been attached to it by Helvetius.
pg 352Impressed by the above considerations with the persuasion of its comparative inaptitude, for several years past the author of these pages has, in his writings, substituted to the locution the principle of utility that of the greatest happiness principle.
For some time however, and indeed till very lately, the catalogue of his aberrations from the line of exact propriety was not yet at an end. As occasion called, to the locution greatest happiness he had substituted the locution (copied as above from Priestley) the greatest happiness of the greatest number (always understood of the members of the community in question): regarding the longer locution as the apt expression in its compleat state, and the shorter as nothing different from an abridgment of it.
Lately however—by it is not remembered what particular Incident—a closer degree of attention having been called down upon the subject, a conviction was obtained that by this mode of expression, if applied to practice, effects widely different from those intended—in a word mischief to an almost indefinite amount—might be produced. For, note what is capable of being understood to be the result.
Bring to view in supposition two communities. Number of the Individuals—in the one, 1,000: in the other, 1,001: of both together, 2,001. By the greatest happiness, the arrangement prescribed would be that by which the greatest happiness of all together would be produced. But wide indeed from this effect might be the effect of the application of the principle, if the arrangement productive of the greatest happiness of the greatest number—no regard being shewn to the happiness of the smallest number—were understood to be the arrangement prescribed by that same principle.
So long as the greatest number—the 1,001—were in the enjoyment of the greatest degree of comfort, the greatest possible degree of torment might be the lot of the smallest of the two numbers—the 1,000: and still the principle stating as the proper object of endeavour the greatest happiness of the greatest number be actually conformed to—not contravened.1
pg 353 §3. Evil of 2d. order from disappointment
Hitherto no other consequences have been brought into consideration— no other evil consequences of an arrangement considered as liable to be productive of disappointment have been brought into account. But before the account can with propriety be closed—before the instructions for the application to be made to practice of the disappointment-prevention principle can be presented as compleat— the consequences of the 2d. order—the evil consequences of the 2d. order—must be brought to view.a
For this purpose a distinction will require to be made between the cases where, in the breast of the party in whose instance the disappointment is regarded as having place, his title to the subject matter of loss is, by supposition, out of doubt, and those in which it is capable of being the subject-matter of doubt.
Take for instance the case of theft. In this case, at the time of the theft, the lawful proprietor, from whom the thing was taken, was in the undisturbed expectation of continuing, as long as he should be so pleased, to derive from it whatsoever benefit it presented itself to him as affording to him in his situation the means of deriving from it. In these circumstances, no sooner is the loss of it discovered by him, than the disappointment, with the pain inseparable from it, is experienced by him. On his part, from the first to the last of the time during which his possession of the thing had had place, an assurance had had place, not only that such means as it was in the power of the law to afford him for the continuing of the thing in the state in which it would be at his disposal would, upon occasion, be afforded to him, but that such means would be effectual: excepting always the cases in which it might happen to his possession to be cut short by any one of those accidents of which the one in question (loss by theft) is one: accidents the occurrence of which is comparatively so rare, that by the contemplation of the whole assemblage of them put together the strength of the assurance as to the continuance of the possession experiences, in the ordinary state of things, no more than a scarcely sensible degree of diminution.
pg 354Not so in the cases where, as between a party on one side and a party on the other, the title to the thing is the subject of doubt: each of them regarding himself as having the right to the possession of, and benefit derivable from, the thing, to the exclusion of the other as well as of all besides. In this case a natural question is—in what way is it that, in this case, the disappointment-prevention [principle] can afford a sufficient indication of the course which, consistently with the conceptions associated with the word justice, justice requires to be taken?—for in this case, by the very supposition, whatsoever of the two opposite courses it may be that is taken, disappointment will take place: to both the contending parties the thing can not be allotted, and in the breast of that one of them, whichsoever it be, to whom it is not allotted, the sensation of loss will be experienced, and that of disappointment will, by the supposition, be sure to have place.
Answer. The object, or say end in view, which the Judge, acting in conformity to his duty, will have in view and his endeavours directed to the attainment of—at any rate the main object is—the prevention, or at least the termination, of that evil of the 2d. order, which, in the breasts of such other members of the community to whose cognizance it might happen to the case to come, might naturally be expected to have place in the event of an allotment made of the thing in question different from that which would be dictated by the conception commonly attached to the word justice, but without correspondent consciousness, directed by the idea of the eventual disappointment.
This, let it be observed, is the main object. For, as to the evil of the first order, it has already taken place, and can not, by the Judges or any other human power, be made not to have taken place: what remains, generally speaking, possible is the administering to the sufferer in some shape or other good—benefit—in satisfaction and compensation for it. But whether in the nature of the case such satisfaction can be afforded depends upon the circumstances of the individual parties, and other particular circumstances, such as are apt to be different, one from another, in each individual case: whereas, by apt judicial arrangements, the evil of the 2d. order is in every case capable of being either prevented or any rate in a considerable degree diminished: and, by the extent of which it is susceptible, this in other cases remediable evil is in the scale of importance much superior to that other which is in such a degree liable to prove irremediable.
Under these circumstances, for the purpose of doing what the conceptions attached to the word Justice require to be done, what is the course which a well-intentioned Judge will take? Answer. He will take into joint consideration, and compare the one with the other, the respective situations which the two parties present themselves to his pg 355conception as being respectively in as to strength of expectation with reference to the possession of the thing—of expectation as likely to have had place in their respective breasts with regard to the enjoyment of the mass of benefit which the proprietorship of the thing is capable of conferring. He will put himself in idea successively into the two relative situations which present themselves to him as being occupied by the two parties: this done, he will put a question to himself, and the question will be—on which of the two sides, were you on that side, would your expectation of being ultimately in possession of the thing be the strongest? To this question let an answer [have]1 been given, so will thereby an answer have been given to the question, to which of the two parties does the disappointmentprevention principle require that the ultimate possession of the thing be allotted: for, in exact proportion to the strength of the expectation of the benefit derivable from the thing, will be that of the disappointment produced by the loss of it.
§4. Estimate of loss—difficulties attending it
Two cases require here to be distinguished: that in which graduation as between quantity and quantity has no place, and that in which such graduation has place. Of the case where graduation has not place, an example is afforded by the case where the question is which of the two parties it is that has a right to the benefit—say the thing moveable or immoveable in dispute. Of the case where graduation has place, an example is afforded by the case where the question is concerning the quantum of the damage done to the subject-matter in question, to wit person, subject-matter of property, moveable or immoveable, and the like. In the non-graduation-exhibiting case, the task of the Judge, under the guidance of the disappointmentprevention principle, will be a comparatively easy one: nothing of idiosyncracy in regard either to persons or to things will have place, perplexing the judgment with degrees indefinite perhaps in number, between all which, without any criterion exclusively applying to any one of them, he will have to decide. In the graduation-exhibiting case he will have to labour under this same difficulty.
In respect to the degree of this difficulty two cases require again to be distinguished: 1. that in which, whether in respect of mind or body, person is the subject-matter of the damage; 2. that in which some thing, corporeal or incorporeal—moveable or immoveable, is pg 356the subject-matter of the damage. The case where the difficulty is at its maximum is that in which mind is the subject-matter of the damage. For in this case are liable to have place, each of them presenting a demand for mensuration, the several circumstances affecting sensibility:a and of the whole number of these, a great part, perhaps the greater,1 will be found exposed to exaggeration—either on the side of infra-appretiation,2 or on the side of superappretiation, 3 or on both sides.
§5. For estimation of loss, parties' attendance needful
To this case bears reference one of the many circumstances by which the importance of the appearance of parties in the presence of the Judge, in contradistinction to the appearance of their respective advocates, is established. Where the personal condition of the party himself is present to the perception of the Judge, the probability of deception on the one part by misrepresentation on the other is at its minimum: not only is evidence capable of being checked immediately without the intervention of any refracting medium, but deportment— a circumstance speaking so strongly in explanation of reported evidence—is presented to the observation of the Judge. In this case, where the object presented to the senses of the Judge is the party, the object so presented is the original itself: in the case where it is the professional representative of the party, it is but the picture of that same original: and that a picture in the painting of which the utmost skill and energy of the experienced artist will be employed in effecting the utmost degree of misrepresentation possible: the consequence is that in each individual case, taken individually, the probability of misrepresentation and consequent and correspondent deception is at its maximum: and in the aggregate of the whole number of individual cases the degree of probability as to success between the best cause and the worst approach[es] to a level with a degree of propinquity depending conjunctly on the degree of appropriate aptitude on the part of the advocate, and the degree of deficiency in respect of appropriate pg 357 aptitude, and in particular in respect of judicial aptitude, on the part of the Judge. Think in this case of the chance which an ordinary Jury has for the not being deceived by a first-rate Advocate opposed by an inferior Advocate of ordinary rate.
True it is—that, in this case, [in] the breast of the party, there is the particular and sinister interest operating with greater strength than in the breast of his Advocate. But, on the other hand, supposing on the part of the Judge a sincere desire to come at the truth, the efficiency of the power he has for eliciting the truth in spite of concealment and misrepresentation, and at the same time for detecting and exposing falshood, will be much greater where the subject-matter on which it operates is the unexperienced and unskilled individual than where it is the well-experienced and well-skilled advocate. In case of wilful misrepresentation, on the part of the Advocate no such sensibility to the sudden reproach of contradictory conscience has place as that which has place commonly in the breast of the party.
§6. Existing system—peculiar case of Vested rights
Vested rights! vested rights! On an occasion on which an arrangement is proposed having for its object the exsiccation of a source of expence regarded as needless, if the case be such that on the part of the present possessors of a benefit derived from the expence the locution vested rights is regarded as being applicable, strong is the reliance placed on the influence and effect expected from it. Here then we have two sorts of rights, vested and unvested, in opposition to one other. Practical effect of the distinction this. Of a possessor of a vested right, in case of extinction, altogether indisputable is the claim of the possessor to compensation, and that altogether an adequate one. Of the possessor of a right not coming under the denomination of a vested right, it may happen to the claim to be sufficiently grounded or not sufficiently grounded, according to circumstances.
This being the case, and supposing it admitted that in case of competition a vested right possesses a claim to compensation operating in preference to any which can be possessed by a right not vested—this admitted, what, under the guidance of the greatest happiness principle, is the ground capable of being assigned for such preference? Answer. This, beyond dispute. Under the circumstances under which a vested right is understood to have place, the expectation is regarded as being more intense than in the other case, so therefore the correspondent disappointment.
Set aside the ill effects to which the disappointment-prevention pg 358 principle bears reference, wheresoever, on the ground of the needlessness of the official situation to which the service, if any, is attached, the situation is abolished, no compensation at all ought to be allowed: so much money employed in compensation, so much money expended in waste. Take into account those same evil effects, thereupon comes in the demand for compensation, and that compensation an adequate one.
In the so frequently exemplified case where, for the use of the public, property in immoveables is taken out of the hands of the proprietor, and lodged in the hands of government, the propriety of the demand for compensation, and that to an amount fully adequate, is universally acknowledged. Between this case and that of an official situation regarded as the subject-matter of a vested right, is there, in any and what respect, a difference? Answer. So far as regards the evil of the 1st. order, expectation of situation being regarded as equally strong, disappointment in case of loss correspondent and proportionable, none.
To the evil effects of the 2d. order bears reference what difference has place between the two cases: proportioned to the extent of the class on which the evil of the 2d. order—the danger and alarm— applies itself is the magnitude of this branch of the evil. The class to which it extends in the case where it is land that is thus, and by the supposition without compensation, taken into the hands of government, is the class composed of all who have any interest in land. The class to which it extends in the case in which it is official profit that is thus, and on the same terms, taken into the hands of government, is the class composed of those alone who are in possession of such official profit, and among these of those alone in whose instance the interest possessed is understood to come under the denomination of a vested interest.1
§7. Creation of needless Offices for compensation in contemplation of revolutionary retrenchment—how to obviate
Two cases require now to be put in conjunction.
Case 1st. The progress of depredation, corruption and waste so rapid, as to have driven on the vessel of government to a near- pg 359approaching revolution: understand by a revolution, the sudden substitution of a system in which equal regard is paid to the interest of all, to the existing system in which the interest of the many, of the vast majority, is made a constant sacrifice of to the particular and sinister associated interest of the one and the few.
Case 2d. In contemplation of the vastness of the burthen thus fastened or sought to be fastened on the shoulder of the community, those who take the lead in the reform-seeking enterprize have in contemplation the suppression of the alledged needless offices, or some of them, without compensation.
Note that, in the natural course of things, the profused institution of needless lucrative offices is at once a cause and an effect of the sort of change in question. In the character of an efficient and not improbably effective cause, it has long been in progress: and of whatsoever efficient causes may be found assignable, it presents itself as the most strongly operative.1
On the other hand, suppose such a change to present itself, to those whose interest is bound up with the existing system, as in a paulo-post-futurus2 state, nothing is more natural than that, by observation made of the punctuality of the regard paid to vested interests, they should take instruction from the proverb by which the policy of making hay while the sun shines is recommended.
A design of this sort being (by supposition) acted upon,—for defeating it, here would be a case in which the evil produced by disappointment applied to the expectations thus generated would be outweighed by the evil that would be produced by the giving effect to the design: and [by] the apprehension of the appropriate remedy, that is to say the resumption, the peculation [which] the supposed design has for its object would naturally be, if not altogether prevented, at any rate checked.
§8. Quantity of emolument given, gradations in value in respect of certainty—Offices considered with a view to compensation on abolition
In a state of things by supposition presenting an irresistible demand for retrenchment, two classes of functionaries, placed in strongly contrasted situations, have now been brought to view: possessors of pg 360situations the interest in which passes under the denomination of a vested interest, and possessors of situations to which no such favourconferring denomination is attached.
Thus far, as to supposition. In point of fact, among the former are to be found at all times, and will naturally be found, the possessors of needless offices, useless offices, overpaid offices, and sinecure offices—offices these last in which no labour whatever, serviceable or unserviceable, being performed, the possession of the office is but a pretence for receiving the emolument attached to it, the act of receiving that same emolument being accordingly an obtainment of money on false pretences to every effect but that of being dealt with in consideration of it [on] the footing of a criminal delinquent—that which in the language of existing penal law is visited (as the word is) with punishment in a variety of shapes, all of them having the effect of imprinting infamy. This class being composed of persons coming under the description of the ruling few, themselves possessors of political power in this or that shape, or retainers of those who are, the class they belong to may be distinguished by the appellation of the aristocratical class.
To the latter of the two classes belong those by whom in no instance is emolument received without labour performed, and in whose instance the quantity of labour is maximized, the quantity of remuneration minimized. The individuals thus situated being neither themselves possessors of power, nor by any community of particular interest linked with the possessors of power, the class they belong to may be distinguished by the appellation of the democratical class.
To this class belong the sort of Clerks denominated Writing Clerks: functionaries whose functions consist in little or nothing more than writing and performing the operations of common arithmetic. Upon these plebeians, in any number, without a thought of any such thing as a Retired allowance, when retrenchment is the order of the day, the process of elimination, it is believed, [has] been commonly performed with as little scruple or hesitation as upon privates in Army or Navy service.
Consistently with the greatest happiness principle—consistently with its immediate subordinate, the disappointment principle—can this distinction thus acted upon be defended? Let him who thinks he can without exposure to the imputation of inconsistency—and in consequence to merited disapprobation, answer in the affirmative.
As applied to this class, as between adequate compensation and no compensation at all, a sort of middle course presents itself as not being, in appearance at least, altogether destitute of ground for its support—ground derived from the greatest happiness principle. pg 361These, it may be said, possess an attainment for which other occupations besides official ones present a demand: eliminated from their official situations they will accordingly have it [in] their power to obtain other situations in the service of individuals. This case being realized, of the utmost pay they will find obtainable, in point of quantity and certainty of continuance taken together, the value will not be so great as that of the pay attached to their respective official situations—'Give them then the amount of the difference: such is the allowance prescribed by justice.'
True: provided always that, and in so far as, the correct value of that same difference shall have been ascertained. But can it be ascertained? how it can be seems not very easy to determine.
So far as, an allowance being proposed, the individual in question prefers the acceptance of it to the continuing in the service, it is well: no disappointment produced; no injustice suffered. But suppose this is not the case? In this case, on his being disbanded from the service, disappointment will have place; to defend the arrangement from the imputation of injustice does not present itself as practicable.
In return for his labour, will he have it in his power to obtain any pay at all? Even of this, if the number thus eliminated at once is to a certain degree considerable, scarcely can any adequate assurance be had: at any rate in that state of over-population, the pressure of which seems destined to indefinite encrease.
Supposing the attainment of the proper temperament not absolutely impracticable, the accomplishment of it can not but necessitate a minute enquiry into idiosyncratical circumstances. In a word, nothing less than a judicial enquiry, carried on by a judicatory acting in the way of antitechnical procedure, could answer the purpose: and, under the existing system, where is any such judicatory to be found? at any rate a judicatory capable of being applied to this same purpose?
§9. Existing System—gradations as to dislocability, thence as to value as depending on certainty
Under the existing system, gradations may be observed in the value of regard considered as due to the claim for compensation. At the head of the scale stands the sort of office on which vested rights are rivetted: next to that, the office holden during good behaviour: lowest, the office holden during pleasure.
Not so great in reality and effect as in shew is the difference between Office with vested rights and Office during good behaviour. pg 362Office held during good behaviour is, in plain English, Office held unless and until removal shall take place at the suit of the King by sentence of the King's own Bench: and unless the prosecution were carried on in pursuance of the known wishes of the Right Honorables who govern in his Majesty's name, supposing remorse to have produced in the breast of a delinquent possessor of such an office a desire, with a view to atonement, to see himself convicted, it would not be a matter altogether easy to him to find the means of giving accomplishment to so pious a purpose. Under matchless Constitution, functionaries of the highest order have a vested interest in the impunity of all subordinates under them, in the impunity, that is to say, at any hands but their own.
Witness the case of a Justice of Peace who, for giving encrease to the value of a publick House of his own, refuses to grant or continue a licence to the occupant of a neighbouring house. Under Lord Tenterden's law in particular, no punishment without a corrupt motive, no knowing that a corrupt motive has had place unless the party accused makes declaration to that effect.1 Be the gain ever so enormous, no defensible reason assigned or assignable, if his wish is to be put upon his trial, the worshipful Gentleman must make affidavit, and say my motive for refusing the licence was corrupt: and even [then] might be found to remain a question garnished with great doubts—the question whether the rule nemo tenetur seipsum [accusare]2 might not be found applicable to this case.
No accusation, no conviction: no conviction, no dislocation, no punishment. Be the place a place during good behaviour or only during pleasure, in rebellion to those who govern in the King's name, will a man in a subordinate office dare to prefer accusation, or so much as to give information, against the occupants of a superordinate authority in a certain higher sphere? If, on the part of this informant, a peccadillo can, by an appropriate microscope, be discovered, how vast so ever the mass of waste, depredation and corruption proved in the higher regions, how extensive the conspiracy by which it has been effected, [. . . ? ] will be [the] lot of the informant, a peerage that of the arch-delinquent. A case which may at any rate be consulted for illustration, may be seen in the letters of Mr Sedgwick and the Reports of pg 363the Committee which had for Chairman the Right Hon. | | Wallace:1 whether for proof, would be for any person to answer to whom it should appear worth his while, for any practical purpose, to give perusal to those instructive documents.
At any rate one thing is still wanting in that case; for Mr Wallace's Noble relative Lord Melville, an advancement in the peerage.2
So far as regards strength of expectation, small in some situations is the difference between tenure during good behaviour, and tenure during pleasure. In name no longer than during pleasure, in effect (says the man to himself) my tenure is during life: for, during life, I shall, for I will, continue to please.
§10. Existing System, custom as to self-dislocation on dislocation of patrons
Always be it remembered, however, that, on the present occasion, the behaviour of the individual does not come in the question, belongs not to the subject under consideration. This subject is dislocation in the wholesale way for the purpose of frugality: not dislocation in retail, with a view to appropriate aptitude.
In the entire list of Offices held during pleasure, instances however are found, in no small number and of no small value, in which, upon the dislocation of a superordinate, subordinates, one or more, go out of course. In this case the dislocation has for its efficient cause—in some instances the act of a superior paramount to both, in others the act of the dislocatee himself. In this latter case, the suicidal act has for pg 364its internal cause, in outward shew gratitude, or a sense of honour: in reality, most commonly self-regarding prudence—if of my own accord I follow my patron in his retirement, the consequence is—that in the event of his reinstatement I shall by him be reinstated with him: if I stay behind, I may be ejected at any time by those by whom he is ejected; in which case I shall not be reinstated with him: serving under the banners of his adversaries, I shall be regarded as hostile to his interests, or at best indifferent.
In no small degree curious and instructive would be a list of these Official situations, accompanied, confronted and contrasted by a correspondent list of situations in regard to which the efficient cause of mortality has not had place.a Thereupon an object for enquiry, pg 365 proof, and explanation, would be—the principle in which the distinction has had its source.
§11. Existing System. Inconsistencies as to undislocability and dislocability of Judges
Among the boasts of matchless Constitution is the undislocability, so delusively termed the independency, of the Judges. This quality being a declared indispensable requisite to and of upright judicature, it accordingly has place in the case of the 12 high-seated Common Law Judges and one of the three highest-seated Equity Judges, to wit the Master of the Rolls. At the same time, either it is not an indispensable requisite to upright judicature, or upright judicature is not necessary to good government or to the well-being of the community. For it has not place in the situation of Lord High Chancellor, nor in that of Justice of the Peace: and the said Chancellor is, amongst other things, head of the law, the functionary by whom, to so vast an extent, the proceedings of all the other great Judges are controuled, and at whose recommendation the occupants of their several situations are located. As little has it place in the case of the situation of Justice of the Peace: a situation of which there [are] at all times several thousands in existence—situations in which some scores or perhaps hundreds as many suits, of one sort or other, are heard and determined as by all the Judges of the superior class put together. Thus it is that, for instances in which the boast is consistent with truth, instances there are to the amount of scores or hundreds in which it is repugnant to truth. It is [untrue]1 in regard to the top and bottom of the scale; it is [true]2 in regard to the intermediate degrees of the scale.
From a recent occurrence, to the list of the cases in which either that which goes by the name of independence is not necessary to upright judicature—or upright judicature is not necessary to the wellbeing of the community, it appears that addition must be made of the situation of Judge Advocate.3
pg 366In the person of the Judge Advocate may be seen a mongrel in another form. Impartiality is an indispensable quality in a Judge: partiality is an inseparable quality in an Advocate. Accordingly, in the person of every Judge Advocate, as the very appellation declares and acknowledges, the two qualities, each of them the negation of the other, are united. But here too comes into action the King's Prerogative, the universal solvent of all difficulties. In each case that comes before them, let my Judges be every one of them impartial; let my Attorney General be partial; let my Judge Advocate be at once impartial and partial, both in the most perfect degree. So saith the royal worker of all needful miracles; so saith he, and the miracle is wrought according to his word.
Not that in this case the arrangement is in so high a degree absurd as, upon the face of the statement, it may naturally be supposed to be. In military service, as in every branch of service, high in the scale of importance stands justice: but in military service, still higher, it may be said, stands obedience. For the anomaly, from this same plea, so it is that excuse may be found derivable: excuse, yes: but justification, not. For the necessary obedience, provision equally, or rather still more, effectual might be made by other arrangements, and those standing clear from an objection so palpable, placing upon the arrangement the imputation of inconsistency with so strong a glare.
§12. Existing System. Inconsistencies as to the union of Law and Equity Jurisdiction in one person
Among official situations, some pairs of situations may be seen which ought to be and are said to be to each other as oil and vinegar: vinegar occup[y]ing the under, oil the upper: mixture of the two, but for some intermediate substance, for example a hard egg, serving as a bond of unity, impracticable.
Thus are circumstanced in relation to one another Common Law and Equity law: Common Law the vinegar, Equity the Oil. But in this case the King's Prerogative possesses the virtue, and performs the pg 367 function, of the hard egg. Accordingly, in the case of each one of the four Judges called Barons of the Exchequer Judicatory, Common Law and Equity law may at all times be seen condensed in equal perfection and perfect union.
a Use of the principle, bringing to view the axiom: contributing—to conciseness, by the difference between the number of words entering into the composition of the substantive with its compound adjective; to clearness, by the employment of a locution constantly the same instead of one for the expression of which assemblages of words indefinite in number and diversity are liable to be employed: and as often as the assemblages of words are different, doubts will be liable to arise whether so many different imports may not have been intended to be expressed by them.
By this same principle, so far as regards the modification of justice termed civil in contradistinction to penal—justice applied to cases called civil in contradistinction to cases called penal—may moreover be attached, also for the first time, a clear idea to the denominations justice and principle, say rather principle of justice.
a N.B. Disappointment can not have place without loss or belief of loss on the part of the individual said to be disappointed. Loss may have place without disappointment: it actually has place in so far as the benefit lost had not been an object of expectation antecedently to the loss. Where, antecedently to the loss, no expectation had place, the result is—not disappointment, but regret: and the pain, whatever it be, which in the breast of the loser is produced by contemplation of the loss, is termed a pain—not a pain of disappointment, but a pain of regret. But of the case where regret without disappointment has place the exemplification being so unfrequent in comparison of that where disappointment is the result, it seems scarcely worth while to establish a separate principle for the case where regret, without disappointment, is the result.
a ☛ In these two cases, though by previous non-expectation coupled with subsequent non-information, disappointment is excluded, and with it the evil of the first order, yet ditto of 2d. order has place.3
a By the author of these, Anno 18., the investigation of the several distinguishable modifications of pleasure and pain of which human nature is susceptible having been pursued, the catalogue of them has (it is believed) been rendered little, if any thing, short of completion; and in conjunction with it have been given lists of the several other names of fictitious entities the import of which (have)3 for [their]4 basis the respective imports of so many correspondent modifications of pleasure or pain: that is to say interests, desires, and motives: by which means has been given what by no other means could be given—a correspondency fixt and precise import to these same additional names of fictitious psychological entities.5
a Pitt the first it was who for the first time placed in office the Earl of Shelburne of that day, afterwards Marquis of Lansdowne, constituting him one of the Secretaries of State.1 Shelburne being at that time a personal favorite of George the third—as such he has often spoken of himself to the author of these pages—with whom the choice originated can not be affirmed with any degree of assurance. Shelburne, when he became Minister-in-Chief in the situation of First Lord of the Treasury, constituted Pitt the second, son of Pitt the first, his Vice-Minister, in the situation of Chancellor of the Exchequer.2 When, in 1783, upon the conclusion of the peace, the Whig Aristocracy, of which the Marquis of Rockingham was the head, Edmund Burke the life and soul, out-voted the Earl of Shelburne and thus rendered his resignation necessary, the simultaneous resignation of his protege and locatee, Pitt the second, was looked for by him as a matter of course.3 Pitt the second, young as he was, was not so young as not to see that on the part of his patron the chance of reintegration was – 0—the Whigs of that time being a strong, numerous, well-compacted and disciplined phalanx, while Shelburne had scarce any adherents besides personal ones; (he) accepted the offer made him by the Royal master and to the Vice-Ministership added the Ministership-in-chief.4 Perfidy and ingratitude—perfidy by breach of a virtual contract—were the stains cast by this conduct upon the character of the young Statesman. So, at least, was the conception of the Ex-Premier, as more than once expressed by him, and with no slight energy, in discourse with, or in the hearing of, the author of these pages.