True it is, that, considering the alarm and danger which is the natural result of every breach of a con- tract to which the sovereignty is party, in case of any change with respect to such contract, the aggregate of public happiness will be in general rather diminished than promoted, unless, in case of disadvantage pro- duced to any party by the change, such disadvantage be made up by adequate compensation.
Let it not be said that this doctrine is a dangerous doctrine, because the compensation supposed to be stipulated for as adequate may prove but a nominal, or at best but an inadequate, compensation. Reality and not pretence, probity not improbity, veracity not mendacity, are supposed alike on all sides; — the con- tract a real contract, the change a real change, the compensation an adequate as well as real compensa- tion. Instead of probity suppose improbity in the sovereignty; it will be as easy to deny the existence, or explain away the meaning of the contract, or to deny or explain away the change, as, instead of a real to give a nominal, instead of an adequate to give an inadequate, compensation.
To apply the foregoing principles to the cases above enumerated, one by one.
90 FALLACIES OF AUTHORITY. [Ck. 3.
1. In the case of the contract or treaty between state and foreign state, the dogma of immutability has seldom been productive of any considerable practical inconvenience: the ground of complaint has arisen rather from a tendency to change than a too rigid ad- herence to the treaty.
However, some commercial treaties between state and state, entered into in times of political ignorance or error, and pernicious to the general interests of commerce, are frequently upheld under a pretence of regard for the supposed inviolability of such contracts, but in reality from a continuance of the same igno- rance, error, antipathy or sinister interest, which first occasioned their existence. It can seldom or never happen that a forced direction thus given to the em- ployment of capital can ultimately prove advanta- geous to either of the contracting parties; and when the pernicious operation of such a treaty on the in- terests of both parties has been clearly pointed out, there can be no longer any pretence for continuing its existence. Notice, however, of any proposed de- parture from the treaty ought to be given to all the parties concerned; sufficient time should be afforded to individuals engaged in traffic, under the faith of the treaty, to withdraw, if they please, their capitals from such traffic, and in case of loss, compensation as far as possible ought to be afforded.
2. Grant of privilege from the sovereign to the whole community in the character of subjects. — If, by the supposed change, privileges to equal value be given Sect, 1.] FALLACIES OF AUTHORITY. 91 in the room of such as are abrogated, adequate com- pensation is made: if greater privileges are substi- tuted, there is the greater reason for supporting the measure.
3. Grant of privileges from the sovereign to a particular class of subjects.
No such particular privilege ought to have been granted if the aggregate happiness of the community was likely to be thereby diminished: but, unless in case of a revocation, adequate compensation be here also made, the aggregate happiness of the community will not be increased by the change; the happiness of the portion of the community to be affected by the change, being as great a part of the aggregate happi- ness as that of any other portion of equal extent.
Under this head are included all those more parti- cular cases in which the sovereign contracts with this or that individual, or assemblage of individuals, for money or money's worth, to be supplied, or ser- vice otherwise to be rendered.
4. New arrangement or distribution of powers as between different portions or branches of the sove- reignty, or new declaration of the rights of the com- munity.
Let the supposition be, that the result will not be productive of a real addition to the aggregate stock of happiness on the part of the whole community, it ought not to be made: let the supposition be the reverse, then, notwithstanding the existence of the contract, the change is such as it is right and fitting should be made.
92 FALLACIES OF AUTHORITY. [Ch. 3.
The first of these can never furnish a case for com- pensation, unless in so far as, without charge or disad- vantage to the people, the members of the sovereignty can contrive to satisfy one another; such members of the sovereignty being, as to the rest of the community, not proprietors but trustees.
The frame or constitution of the several American united states, so far from being declared immutable or imprescriptible, contains an express provision, that a convention shall be holden at intervals for tlie avowed object of revising and improving the constitution, as the exigencies of succeeding times may require. In Europe, the effect of declaring this or that article in a new distribution of powers, or in the original frame of a constitution, immutable, lias been to weaken the sanction of all laws. The article in question turns out to be mischievous or impracticable; instead of being repealed, it is openly or covertly violated; and this violation affords a precedent or pretext for the non-observance of arrangements clearly calculated to promote the aggregate happiness of the community.
5. Case of an incorporative union between two sovereignties, having or not having a common head.
Of all the cases upon the list, this is the only one which is attended with difficulty.
This is the case in which, at the same time that a contract with detailed clauses is at once likely and fit to be insisted on, compensation, that compensation without which any change would not be consistent with general utility in the shape of justice or in any Sect. 1.] FALLACIES OF AUTHORITY. 93 other shape, is an operation attended with more diffi- culty than in any other of these cases.
Distressing indeed would be the difficulty, were it not for one circumstance which happily is interwoven in the very nature of the case.
At the time of the intended union, the two states (not to embarrass the case by taking more than two at a time) are, with relation each to the other, in a greater or less degree foreign and independent states.
Of the two uniting states, one will generally be more, the other less, powerful. If the inequality be considerable, the more powerful state, naturally speak- ing, will not consent to the union, unless, after the union, the share it possesses in the government of the new-framed compound state be greater by a difference bearing some proportion to the difference in prosperity between the two states.
On the part of the less powerful state, precautions against oppression come of course.
Wherever a multitude of human beings are brought together, there is but too much room for jealousy, sus- picion, and mutual ill-will.
In the apprehension of each, the others, if they ob- tain possession of the powers exercised by the com- mon government, will be supposed to apply them un- justly. In men or in money, in labour or in goods, in a direct way or in some indirect one, it may be the study of the new compound government, under the influence of that part of the quondam government which is predominant in it, to render the pressure of 94 FALLACIES OF AUTHORITY. [Ch. 3.
the contributions proportionably more severe upon the one portion of the new compounded state than upon the other, or to force upon it new customs, new religious ceremonies, new laws.
Let the hands of the new government remain alto- gether loose, one of the two compound nations may be injured and oppressed by the other.
Tie up the hands of the government in such degree as is requisite to give to each nation a security against injustice at the hands of the other, sooner or later comes the time in which the inconveniencies resulting from the restriction will become intolerable to one or other, or to both.
But sooner or later the very duration of the union produces the natural remedy.
Sooner or later, having for such or such a length of time been in the habit of acting in subjection to one government, the two nations will have become melted into one, and mutual apprehensions will have been dissipated by conjunct experience.
All this while, in one or both of the united states, the individuals will be but too numerous and too powerful who, by sinister interest and interest-begotten prejudice, will stand engaged to give every possible countenance and intensity to those fears and jealousies, to oppose to the entire composure of them every de- gree of retardation.
If, in either of the united communities at the time of the union, there existed a set of men more or less numerous and powerful, to whom abuse or imperfec- Sect. I.] FALLACIES OF AUTHORITY. Q5 tion in any shape was a source of profit, whatsoever restrictions may have been expressed in the contract, these restrictions will of course be laid hold of by the men thus circumstanced, and applied as far as possi- ble to the giving protection and continuance to a state of things agreeable or beneficial to themselves.
At the time of the union between England and Scotland, the Tory party, of whom a large proportion were Jacobites, and all or most of them high-church- men, had acquired an ascendant in the House of Commons.
Here, then, a favourable occasion presented itself to these partisans of Episcopacy for giving perpetuity to the triumph they had obtained over the English presbyterians, by the Act of Uniformity proclaimed in the time of Charles the Second *.
In treaties between unconnected nations, where an advantage in substance is given to one, for the purpose of saving the honour of the other, it has been the custom to make the articles bear the appearance of reciprocity upon the face of them; as if, the facilitating the vent of French wines in England being the ob- ject of a treaty, provision were made in it that wine of the growth of either country might be imported into the other, duty free.
By the combined astutia of priestcraft and lawyer- craft, advantage was taken of this custom to rivet for ever those chains of ecclesiastical tyranny which, in 96 FALLACIES OF AUTHORITY. [Ch. 3.
the precipitation that attended the Restoration, had been fastened upon the people of England. — For se- curing the 45 Scotch members from being outnum- bered by the 5 1 3 English ones, provision had been made in favour of the church of Scotland: therefore, on the principle of reciprocity for securing the 513 English members from being outnumbered by the 45 Scotch ones, like provision v\^as made in favour of the church of England.
Blackstone avails himself of this transaction for giving perpetuity to whatever imperfections may be found in the ecclesiastical branch of the law, and the official establishment of England.
On a general account which he has been giving* of the articles and act of union, he grounds three ob- servations: — 1. That the two kingdoms are now so inseparably united that nothing can ever disunite them again, ex- cept the mutual consent of both, or the successful re- sistance of either, upon apprehending an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be "fundamental and essential conditions of the union."
2. That, whatever else may be deemed " funda- mental and essential conditions," the preservation of the two churches of England and Scotland, in the same state that they were in at the time of the union, Sect. 1.] TALLACIES OF AUTHORITY. 97 and the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be.
3. That therefore any alteration in the constitution of either of those churches, or in the Liturgy of the church of England (unless with the consent of the respective churches collectively or representatively given), would be an infringement of these " fundamen- tal and essential conditions," and greatly endanger the union.
On the original device, an improvement has, we see, been made by the ingenuity of the orthodox and learned commentator. If, — as for example by the alteration of any of the 39 articles, — if, by the aboli- tion of any of the English ecclesiastical sinecures, or by any efficient measure for ensuring the performance of duty in return for salary, the ecclesiastical branch of the English official establishment were brought so much the nearer to what it is in Scotland, the Scotch, fired by the injury done to them, would cry out, a breach of faith! and call for a dissolution of the union.
To obviate this danger, a great one he denomi- nates it, his ingenuity, in concert with his piety, has however furnished us with an expedient: — " The consent of the church collectively or representatively given," is to be taken; by which is meant, if any thing, that by the revival of the convocation, or some other means, the clergy of England are to be erected into a fourtli estate.
What is evident is, that, unless the sinister influence of the Crown could be supposed to becomejelo de se, and employ itself in destroying a large portion of itself, nothing but a sincere persuasion of the utility of a change in relation to any of the points in ques- tion, and that entertained by a large proportion of the English members in each house, could ever be pro- ductive of any such change;— that, in any attempt to force the discipline of the church of Scotland upon the church of England, the 45 Scotch members in the House of Commons, supposing them all unanimous, would have to outnumber, or some how or other to subdue, the 513 English ones; — that in the House of Lords, the sixteen Scotch members, supposing all the lay lords indifferent to the fate of the church of En- gland, would in like manner have to outnumber the 26 bishops and archbishops.
But the Tories, who were then in vigour, feared that they might not always be so, and seized that op- portunity to fetter posterity by an act which should be deemed irrevocable.
The " administration of justice in Scotland *."-— This forms the subject of the 19th article, which has for its avowed object the securing the people of Scot- land against any such encroachments as might other- wise be made by the lawyers of England, by the use of those fictions and other frauds, in the use of which they had been found so expert. But throughout the Sect. 1.] TALLACIES OF AUTHORITV. 99 whole course of this long article, the most rational and uniform care is taken to avoid all such danger as that of depriving the people of Scotland of such bene- fit as, from time to time, they might stand a chance of receiving at the hands of the united Parliament, by improvements in the mode of administering justice: " subject to such regulations as shall be made by the Parliament of Great Britain," is a clause over and over again repeated.
It would have been better for Scotland if, on the subject of the next article, viz. " heritable offices," in- cluding " heritable jurisdictions," the like wisdom had presided. By that short article, those public trusts, together with others therein mentioned, are on the footing of "rights of property " reserved to the owners; yet still, without any expression of thai fanatic spirit which, on the field of religion, had in the same statute occupied itself in the endeavour to invest the conceits of mortal man with the attribute of immortality.
Nine-and-thirty years after, came the act ^ for abo- lishing these same heritable jurisdictions. Here was an act made in the very teeth of the act of union.
Mark now the sort of discernment, or of sincerity, that is to be learnt from Blackstone.
In a point blank violation of the articles of union, in the abolition of those heritable jurisdictions which * " abolishing the heritable jurisdictions in Scotland " are so many words that stand in the title of it. Anno 1747, 20 Geo. 2. c. 43.
II 2 100 FALLACIES OF AUTHORITY. [67^ 3.
it was the declared object of one of its articles (20) to preserve, he saw nothing to " emlange?^ the union.'^ But suppose any such opinion to prevail, as that it is not exactly true that by the mere act of being born every human being merits damnation^ ('f t>y damna- tion be meant everlasting torment, or punishment in any other shape), and a corresponding alteration were made in the set of propositions called the 39 articles, the union would be " greatly endangered."
Between 20 and 30 years afterwards, at the sug- gestion of an honest member of the Court of Session, came upon the carpet, for the first time, the idea of applying remedies to some of the most flagrant im- perfections in the administration of Scottish justice: and thereupon came out a pamphlet from James Bos- well, declaiming, in the style of school-boy declama- tion, on the injury that would be done to the people of Scotland by rendering justice, or what goes by that name, a little less inaccessible to them, and the breach that would be made in the faith plighted by that treaty, which, to judge from what he says of it, he had never looked at.
Again, in 1 806, when another demonstration was made of applying a remedy to the abuses and imper- fections of the system of judicature in Scotland, every thing that could be done in that way was immediately reprobated by the Scotch lawyers as an infringement Sect. ).] FALLACIES OV AUTHORITY. 101 of that most sacred of all sacred bonds — the union: nor, for the support of the brotlierhood on the other side of the Tweed, was a second sight of the matter in the same point of view wanting in England.
As to any such design as that of oppressing their fellow subjects in Scotland, nothing could be further from the thoughts of the Englisli members; neither for good nor for evil uses was any expense of thought bestowed upon the matter. The ultimate object, as it soon became manilestj was the adding an item or two to the list of j)laces.
Upon the whole, the following is the conclusion that seems to be dictated by the foregoing considera- tions. Every arrangement by which the hands of the sovereignty for the time being are attempted to be tied up, and precluded from giving existence to a fresh arrangeujent, is absurd and mischievous; and, on the supposition that the utility of such fresh arrangement is sufficiently established, the existence of a prohibitive clause to the effect in question ought not to be consi- dered as opposing any bar to the establishment of it.
True it is, that all lavvsj all political institutions, are essentially dispositions for the future; and the pro- fessed object of them is, to afford a steady and per- manent security to the interests of mankind. In this sense, all of them may be said to be framed with a view to perpetuity; but perpetual is not synonymous with irrevocable; and the principle on which all laws ought to be, and the greater part of them i)ave been, establijhcd, is that iA defeasible pirpetidt)/; a perpc- 102 FALLACIES OF AUTIIORITV. [Ch. 3.
tuity defeasible only by an alteration of the circum- stances and reasons on which the law is founded.
To comprise all in one word — Reason, and that alone, is the proper anchor for a law, for every thing that goes by the name of law. At the time of passing his law, let the legislator deliver, in the character of reasons, the considerations by which he was led to the passing of it ''.
This done, so long as in the eyes of the succeeding legislators the state of facts on which the reasons are grounded appears to continue without material change, and the reasons to appear satisfactory, so long the law continues: but no sooner do the reasons cease to ap- pear satisfactory, or the state of the facts to have un- dergone any such change as to call for an alteration in the law, than an alteration in it, or the abrogation of it, takes place accordingly.
A declaration or assertion that this or that law is immutable, so far from being a proper instrument to ensure its permanency, is rather a presumption that such law has some mischievous tendency.
The better the law, the less is any such extraneous argument likely to be recurred to for the support of it; the worse the law, and thence the more completely destitute of all intrinsic support, the more likely is it that support should be sought for it from this extra- neous source.
» For a specimen, see the end of the first volume of Dumont's Truitis (le Le"id(itioH, Sect. 1.] FALLACIES OF AUTHORITY. 103 But though it is the characteristic tendency of this instrument to apply itself to bad laws in preference to good ones, there is another, the tendency of which is to apply itself to good ones in preference to bad: this is what may be termed justification; the practice of annexing to each law the considerations by which, in the character of reasons, the legislator was induced to adopt it '^; a practice which, if rigidly pursued, must at no distant interval put an exclusion on all bad laws.
To the framing of laws so constituted, that, being good in themselves, an accompaniment of good and sufficient reasons should also be given for them, there would be requisite, in the legislator, a probity not to be diverted by the action of sinister interest, and in- telligence adequate to an enlarged comprehension and close application of the principle of general utility: in other words, the principle of the greatest happiness of the greatest number.
But to draw up laws without reasons, and laws for which good reasons are not in the nature of the case to be found, requires no more than the union of will and power.
The man who should produce a body of good laws with an accompaniment of good reasons, would feel an honest pride at the prospect of holding thus in bondage a succession of willing generations; his triumph would be to leave them the power, but to * Sec Bentham per Dumont Traitis de Lfghhition, &c.; Fnpcrs on Cudifjaifion; and Ix:Ucni to the United States.
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deprive them of will to escape. But to the champions of abuse, by whom, amongst other devices, the conceit of immutable laws is played oft' against reform, in whatever shape it presents itself, every use of reason is as odious as the light of the sun to moles and burglars. ^ 2. Vou\s, or promifisorij Oaths.
The object in this fallacy is the same as in the pre- ceding; but to the absurdity involved in the notion of tying up the hands of generations yet to come is added, in this case, that which consists in the use sought to l)e made of supernatural power: the arm pressed into the service is that of the invisible and supreme ruler of the universe.
The oath taken, the formularies involved in it being pronounced, is or is not the Almighty bound to do what is expected of him? Of the two contradictory propositions^, whicli is it that you believe?
If he is not bound, then tlie security, the sanction, the obligation amounts to nothing.
If he is bound, then observe the consequence: — the Almighty is bound; and by whom bound t — of all the worms that crawl about the earth in the shape of men, there is not one who may not thus impose conditions on the supreme ruler of the universe.
And to what is he bound? to any number of con- tradictory and incompatible observances, which legis- lators, tyrants, or madmen, may, in the shape of an aotli, be j>lca^c(J to assign.
SecL 2.J FALLACIES Ol- AUTIIOKITV. 105 Eventual, it must be acknowledged, and no more, is the power thus exercised over, the task thus im- posed upon, the Almighty. So long as the vow is kept, there is nothing tor him to do; — true: but no sooner is the vow broken, than his task commences; a task which consists in the inflicting on him by whom the vow is broken a punishment, which, when it is in- flicted, is of no use in the way of exami)le, since no- body ever sees it.
The punishment, it may be said, when inflicted, will be such exactly as, in tlie judgment of the almighty and infallible judge, will be best adapted to the nature of the offence.
Yes: but what offence? not the act which the oath was intended to prevent, for that act may be in- different, or even meritorious; and, if criminal, ought to be punished independently of the oath: the only offence peculiar to this case, is the profanation of a ceremony; and the profanation is the same, whether the act by which the profanation arises be pernicious or beneficial.
It is in vain to urge, in this or that particular in- stance, in proof of the reasonableness of the oath, the reasonableness of the prohibition or command which it is thus employed to perpetuate.
The objection is to the principle itself: to any idea of employing an instrument so unfit to be eir.ploycd.
No sort of security is given, or can be given, fur the applying it to the most benefieicil purpose rather than to llic mo^l pernicious.
106 FALLACIES OF AUTHORITY. [Ch. 3.
On the contrary, it is more likely to be applied to a pernicious than to a beneficial purpose; Because, the more manifestly and undeniably bene- ficial the observance of the prohibition in question would be in the eyes of future generations, the more likely is the prohibition to be observed, independently of the oath: as, on the other hand, the more likely the prohibition is not to be observed otherwise, the greater is the demand for a security of this extraor- dinary complexion to enforce the observance.
We come now to the instance in which, by the ope- ration of the fallacy here in question, the ceremony of an oath has been endeavoured to be applied to the perpetuation of misrule.
Among the statutes passed in the first parliament of William and Mary, is one entitled " An Act for establishing the Coronation Oath ^."
The form in which the ceremony is performed is as follows: — By the archbishop or bishop, certain questions are put to the monarch; and it is of the answers given to these questions that the oath is com- posed.
Of these questions, the third is as follows: " Will you, to the utmost of your power, maintain the laws of God, the true profession of the Gospel, and the protestant reformed religion established by law? And will you preserve unto the bishops and clergy of this realm, and to the churches coir.mitted to their charge, Sect. 2.] FALLACIES OF AUTHORITY. 107 all such rights and privileges as by law do or shall appertain unto them, or any of them? '' Answer. " All this I promise to do."
After this, anno 1706, comes the Act of Union, in the concluding article of which it is said, " That after the demise of her majesty...the sovereign next succeeding to her majesty in the royal govern- ment of the kingdom of Great Britain, and so for ever hereafter, every king or queen succeeding and coming to the royal government of the kingdom of Great Britain, at his or her coronation, shall in the pre- sence," &c. " take and subscribe an oath to maintain and preserve inviolate the said settlement of the church, and the doctrine, worship, discipline and go- vernment thereof, as by law established, within the kingdoms of England and Ireland, the dominion of Wales, and town of Berwick-upon-Tweed, and the territories thereunto belonging*."
A notion was once started, and upon occasion may but too probably be broached again, that by the above clause in the coronation oath, the king stands pre- cluded from joining in the putting the majority of the Irish upon an equal footing with the minority, as well as from affording to both together relief against the abuses of the ecclesiastical establishment of that country. In relation to this notion, the following propositions liave already, it is hoped, been put sufficiently out of doubt.
108 FALLACIES OF AUTHORITY. [Ch. 3.
1. That it ought not to be in the power of the so- vereignty to tie up its own hands, or the hands of its successors.
2. That, on the part of the sovereignty, no such power can have existence, either here or any where else.
3. That, therefore, all attempts to exercise any such power are, in their own nature, to use the tech- nical language of lawyers, null and void.
4. Another, which will, it is supposed, appear scarcely less clear, is, that no such anarchical wish or expectation was entertained by the franicrs of the oath.
The proposition maintained is, that to any bills, to the effect in question, the monarch is, by this third and last clause in the oath, precluded from giving his assent: if so, he is equally precluded from giving his assent to any bills, to any proposed laws whatever.
It is plainly in what is called his executive, and not in his legislative capacity, that the obligation in ques- tion was meant to attach upon the monarch.
So loose are the words of the act, that, if they were deemed to apply to the monarch in his legisla- tive capacity, he might find in them a pretence for refusing assent to almost any thing he did not like.
If by this third clause he stands precluded from consenting to any bill, the effect of which would be to abolish or vary any of the " rights " or " privileges " appertaining to the bishops or clergy, or " any of them," then by the first clause lie stands equally pre- Sect. 2.] FALLACIES OF AUTHORITY. 109