Moral Legislation.

From: Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).
Author: Jonathan Dymond
Published: Harper & Brothers 1834 Philadelphia

  IF a person who considered the general objects of the institution of civil government were to look over the titles of the acts of a legislature during fifteen or twenty years, he would probably be surprised to find the proportion so small of those of which it was the express object to benefit the moral character of the people. He would find many laws that respected foreign policy, many perhaps that referred to internal political economy, many for the punishment of crime,-but, few that tended positively to promote the general happiness by increasing the general virtue. This, I say, may be a reasonable subject of surprise, when it is considered that the attainment of this happiness is the original and proper object of all government. There is a general want of advertence to this object, arising, in part, perhaps, from the insufficient degree of conviction that virtue is the best promoter of the general weal.

  To prevent an evil is always better than to repair it: for which reason, if it be in the power of the legislator to diminish temptation or its influence, he will find that this is the most efficacious means of diminishing the offences and of increasing the happiness of a people. He who vigilantly detects and punishes vicious men does well; but he who prevents them from becoming vicious does better. It is better both for a sufferer, for a culprit, and for the community, that a man’s purse should remain in his pocket, than that, when it is taken away, the thief should be sure of a prison.

  So far as is practicable, a government ought to be to a people what a judicious parent is to a family,—not merely the ruler, but the instructer and the guide. It is not perhaps so much in the power of a government to form the character of a people to virtue or to vice, as it is in the power of a parent to form that of his children. But much can be done if every thing cannot be: and, indeed, when we take into account the relative duration of the political body, as compared with that of a family, we may have reason to doubt whether governments cannot effect as much is ages as parents can do in years.—Now, a judicious father adopts a system of moral culture as well as of restraint: he does not merely lop the vagrant branches of his intellectual plant, but he trains and directs them in their proper course. The second object is to punish vice,—the first to promote virtue. You may punish vice without securing virtue; but if you secure virtue, the whole work is done.

  Yet this primary object of moral legislation is that to which, comparatively, little attention is paid. Penalties are multiplied upon the doers of evil, but little endeavour is used to prevent the commission of evil by inducing principles and habits which overpower the tendency to the commission. In this respect, we begin to legislate at the secondary part of our office, rather than at the first. We are political surgeons who cut out the tumours in the state, than the prescribers of that wholesome regimen by which the diseases in the political body are prevented.

  But here arises a difficulty:—How shall that political parent teach virtue which is not virtuous itself? The governments of most nations, however they may inculcate virtue in their enactments, preach it very imperfectly by their example. What then is to be done? “Make the tree good.” The first step in moral legislation is to rectify the legislator. It holds of nations as of men, that the beam should be first removed out of our own eye. Laws, in their insulated character, will be but partially effectual, while the practical example of a government is bad. To this consideration sufficient attention is not ordinarily paid. We do not adequately estimate the influence of a government’s example upon the public character. Government is an object to which we look up as to our superior; and the many foterests which prompt men to assimilate themselves to the character of the government, added to the natural tendency of subordinate parts to copy the example of the superior, occasions the character of a government, independently of its particular measures, to be of immense influence upon the general virtue. Illustrations abound. If, in any instance, political subserviency is found to be a more efficient recommendation than integrity of character, it is easy to perceive that subserviency is practically inculcated, and that integrity is practically discouraged.

  Among that portion, then, of a legislator’s office which consists in endeavouring the moral amelioration of a people, the amendment of political institutions is conspicuous. In proportion to the greatness of the influence of governments is the obligation to direct that influence in favour of virtue. A government of which the principles and practice were accordant with rectitude would very powerfully affect the general morals. He, therefore, who explodes one vicious principle, or who amends one corrupt practice, is to be regarded as among the most useful and honourable of public men.

  If, however, in any state there are difficulties, at present insurmountable; in the way of improving political institutions, still let us do what we can. Precept without example may do some good: nor are we to forget, that if the public virtue is increased, by whatever means, it will react upon the governing power. A good people will not long tolerate a bad government.

  Among the most obvious means of rectifying the general morals by positive measures, one is the encouraging a judicious education of the people. Upon this judiciousness almost all its success depends. The great danger in undertaking a national system of education is that some peculiar notions will be instilled for political purposes, and that it will be converted into a source of patronage. In a word, the great danger is, that national education should become, like national churches, an ally of the state; and if this is done, the system will inevitably become, if not corrupt, lamentably alloyed with corruption. It does not seem as if the people of this country would countenance any endeavour to institute an education like this, because an attempt baa been made, and the public voice was lifted successfully against it. A government, if it would rightly provide for the education of the community, must forget the peculiarities of creeds, political or religious. It must regard itself, not u the head of a party, but as the parent of the people.

  We know that schools exist which impart an important and valuable education to the poor, and to which men of all principles and all creeds are willing to subscribe. Here is effected much good with little or no evil. The great defect is in the limited extent of the good. The public cannot, or do not, give enough of their money to provide education for all. Is there then any sufficient reason why a government should not supply the deficiency; or why it should not undertake the whole, and leave private bounty to flow in other channels? The great difficulty is to provide for the purity of the employment of the funds: for this employment may be made an ally of the petty politics of a town, as the whole institution may be made an ally of the state. However, as the annual grants to almost all such institutions would be small, it might perhaps escape that universal bane. One thing would be indispensable,—to provide that the authority by which appointments to masterships, &c. are made should be studiously constituted with a view to the exclusion of every motive but the single object of the institution. Whether it is possible to exclude improper motives may be doubted; but it is perhaps as possible to exclude them from those as from the many institutions which the public money now supports. There is one way indeed in which education may be promoted with little danger of this petty corruption,-by the purchase of land and erection of school-houses. This, together with the supply of books and the like, forms a principal item in the expense of these schools; and it might be hoped that if the government did this, the public would do the remainder.

  But you say, all this will add to the national burdens. We need not be very jealous on this head, while we are so little jealous of more money worse spent. Is it known, or is it considered, that the expense of an ordinary campaign would endow a school in every parish in England and Ireland for ever? Yet how coolly (who will contradict me if I say, how needlessly?) we devote money to conduct a campaign!—Prevent, by a just and conciliating policy, one single war, and the money thus saved would provide, perpetually, a competent mental and moral education for every individual who needs it in the three kingdoms. Let a man for a moment indulge his imagination,-let him rather indulge his reason, in supposing that one of our wars during the last century had been avoided, and that, fifty years ago, such an education had been provided. Of what comparative importance is the war to us now? In the one case, the money has provided the historian with materials to fill his pages with armaments, and victories, and defeats; it has enabled us

—in the other, it would have effected, and would be now effecting, and would be destined for ages to effect, a great amount of solid good; a great increase of the virtue, the order, and the happiness of the people.

  I suppose that the British and Foreign Bible Society, during the twenty or thirty years that it has existed, has done more direct good in the world,—has had a greater effect in meliorating the condition of the human species,-than all the measures which have been directed to the same ends of all the prime ministers in Europe during a century. But suppose much less than this,—suppose it has done more good than the moral measures of any one court, and will not this single and simple fact prove that much more is in the power of the legislator than he is accustomed to think; and prove, too, that there is an unhappy want of advertence among the conductors of governments, to some of the most interesting and important duties of their office? With what means has this amount of moral good in all quarters of the earth been effected?—Why with a revenue that never amounted to a hundred thousand pounds in any one year! A sum which, if we compare it with sums that are expended for measures of very questionable utility, is really trifling. Supposing that the legislature of this country had given an annual fifty thousand pounds to this institution, no man surely will dispute that the sums would have done incalculably more good in our own country—to say nothing of the world—than fifty thousand pounds of public money ordinarily effects. In passing, it may be observed, too, that such an appropriation of money by a government would probably do much in propitiating the friendliness and good offices of other nations.

  “No consideration of emolument can be put in competition with the morals of a nation; and no minister can be justified, either on civil or religious grounds, in rendering the latter subservient to the former.”¹ Such a truth should be brought into practical operation. If it had been, lotteries in England had not been so long endured,—if it were, the prodigious multitudes of public-houses would not be endured now. That these haunts and schools of vice are pernicious no one doubts. Why is an excess of them permitted?—They increase the revenue. “Emolument is put in competition with morals,” and it prevails. Even on grounds of political economy, however, the evil is great,—for they diminish the effective labour of the population. If to this we add the multitudes whom the idleness of drunkards throws upon the parishes, perhaps as much is really lost in wealth by this pennywise policy as is lost in virtue. Besides, all needless alehouse-keepers are dead weights upon the national industry. They contribute as little to the wealth of the state as he who lives upon the funds.

  “It would be no injustice,” says Playfair, “it publicans were prevented from legal recovery for beer or spirits consumed in their houses; in the same manner that payment cannot be enforced of any person under twenty-one years of age, except for necessaries.”² This, however, were to attempt to cure one evil by another. It were a practical encouragement of continual fraud. The short and simple way is to refuse licenses, and to take care that those who have the power of licensing shall exercise it justly.

  This sound proposition, that neither on “civil nor religious grounds” is it right to consult policy at the expense of morals, is, as we have seen, at the basis of political truth. Here, then, let political truth be applied. It will be found, by the far-seeing legislator, to be expedient as well as right.

  Bishop Warburton says, “Though a multiplication of good laws does nothing against a general corruption of manners, yet the abrogation of bad ones greatly promotes reformation.”³ The truth of the first clause is very disputable: the last is unquestionably true. This abrogation of bad laws forms a very important part of moral legislation; and, unhappily, it is a part which there are peculiar difficulties in effecting. There are few bad laws of which there are not some persons who are interested in the continuance. The interests of these persons, the supineness of others, the pride of a third class, and the superstitious attachments of a fourth to ancient things, occasion many laws to remain on the 1tatute books of nations long after their perniciousness has been ascertained.

  Thus it has happened in our own country with respect to the game-laws. It is perfectly certain that they greatly increase the vices of the people, and yet they remain unrepealed. Why? Voluble answers can no doubt be given, but they will generally be resolvable into vanity or selfishness. The legislator who shall thoroughly amend the game-laws (perhaps thorough amendment will not be far from abolition) will be a greater benefactor to his country than multitudes who are rewarded with offices and coronets.

  Thus too it has happened with the system of primogeniture. The two great effects of this system are, first, to increase the inequality of property, and next to perpetuate the artificial distinctions of rank.

  That the existing inequality of property is a great political and moral evil it was attempted in the third chapter of the preceding essay to show. The means of diminishing this inequality, which in that chapter were urged as an obligation of private life, are not likely to be fully effectual so long as the law encourages its continuance. A man who possesses an estate in land dies without a will. He has two sons. Why should the law declare that one of these should be rich and the other poor? Is it reasonable? Is it just? As to its reasonableness, I discover no conceivable reason why, because one brother is born a twelvemonth before another, he should possess ten times as much property as the younger. Affection dictates equality; and in such cases the dictate of affection is commonly the dictate of reason. We have seen what antecedently to inquiry we might expect, that the practical effects are bad. Civil laws ought, as moral guides of the community, to discourage great inequality of property. How then shall we sufficiently deplore a system which expressly encourages and increases it! Some time ago (and probably at the present day) the laws of Virginia did not permit one son to inherit the landed estates of his father to the exclusion of his brothers. The effect was beneficial, for it actually diminished the disparity of property.⁴ We, however, not only do not forbid the descent of estates to one son, but we actually ordain it. It were sufficient, surely, to allow private vanity to have its own will in “keeping up a family” at the expense of sense and virtue, without encouraging it to do this by legal enactments when it might otherwise be more wise. The descent of intestates’ estates in land to the elder son has the effect of an example, and of inducing vicious notions upon those who make their wills. That which is habitual to the mind as a provision of the law acquires a sort of sanction and fictitious propriety, by which it is recommended to the public.

  The partial distribution of intestates’ estates is, however, only of casual operation. Of the laws which make certain estates inalienable, or, which is not very different, allow the present possessor to entail them, the effect is constant and habitual. To prevent a reasonable and good man from making that division of his property which reason and good sees prescribe is a measure which, if it be adopted, ought surely to be recommended by very powerful considerations. And what are they,—except that they enable or oblige a man to keep up the splendour of his family? Splendour of family! Oh to what an ignis fatuus, to what a pitiable scheme of vanity, are affection, and reason, and virtue obliged to bow! Where is the man who will stand forward and affirm that this splendour is dictated by a regard to the proper dignity of our nature? Where is he who will affirm that it is dictated by sound principles of virtue? Where, especially, is he who will affirm that it is dictated by religion? It has nothing to do with religion, nor virtue, nor human dignity: religion despises it as idly vain; morality reprobates it as sacrificing sense and affection to vanity; dignity rejects it as a fictitious and unworthy substitute for itself. Yet, perhaps, this humiliating motive of vanity is the most powerful of those which induce attachment to the system of primogeniture, or which would occasion opposition to attempts at reform, Perhaps it will be said, that to make the real estate of a man inalienable is really a kindness to his successors, by preventing him from squandering it away; to which the answer is, that there is no more reason for preventing the extravagance of those who possess much property than of those who possess little. No legislature thinks of enacting that a man who has two thousand pounds in the funds shall not sell it and spend it if he thinks fit. In general, men take care of their property without compulsion from the law; and if it is affirmed that the heads of great families are more addicted to this profusion and extravagance than other men, it will only additionally show the mischiefs of excessive possessions. Why should they be more addicted to it unless the temptations of greatness are unusually powerful and unusually prevail?

  But it will be said that the system is almost necessary to an order of nobility. I am sorry for it. If, as is probably at present the case, that order is expedient in the political constitution, and if its weight in the constitution must be kept up by the system of primogeniture, I do not affirm that, with respect to the peerage, this system should be at present abolished. But then let the enlightened man consider whither these considerations lead him. If a system essentially irrational and injurious is indispensable to a certain order of mankind, what is it but to show that, in the constitution of that order itself, there is something inherently wrong? Something that, if the excellence of mankind were greater, it would be found desirable to amend? Nor here, in accordance with that fearless pursuit of truth, whether welcome or unwelcome, which I propose to myself in these pages, can I refrain from the remark, that in surveying from different points the constituent principles of an order of peers, we are led to one and the same conclusion,—that there is in these principles something really and inherently wrong; something which adapts the order to an imperfect, and only to an imperfect, state of mankind.

  If then we grant the propriety of an exception in the case of the peerage, we do not grant it with respect to other men. Much may be dom1 to diminish the inequality of property, and with it to diminish the vices of a people, by abolishing the system of primogeniture except in the case of peers.

  Of so great ill consequence is excessive wealth, and the effect to which it tends, excessive poverty, that a government might perhaps rightly discountenance the accumulation of extreme personal property. Probably there is no means of doing this, without an improper encroachment upon liberty, except by some regulations respecting wills. I perceive nothing either unreasonable or unjust in refusing a probate for an amount exceeding a certain sum. Supposing the law would allow no man to bequeath more than a given sum, what would be the ill effect? That it would discourage enterprising industry? That industry is of little use which extends its desires of accumulation to an amount that has no limit. The man of talent and application, after he has so far benefited himself and his country by his exertions or inventions as to acquire such property as would procure for him all the accommodations of life which he could rationally enjoy, may retire from the accumulation of more, and leave the result of his talents to bring comfort and competence to other men. It may be said that a man might still accumulate a larger sum to dispose of before his death. So he might: but few would do it. Of those who are ambitious of so much more than conduces to the welfare of themselves and their children, few would continue to toil in order to give it away. Benevolence does not generally form a part of the motives to such accumulation. If once the law refused the bequest of more than a fixed sum, by appropriating the excess to the exigencies of the state, or to measures of public utility, men would learn to set limits to their desires. That restless pursuit of wealth which is pernicious to the pursuer and to other men would be powerfully checked; and he who had acquired enough might habitually give place to the many who had too little.—The writer of these pages makes no pretensions to a knowledge of the minute details of moral legislation. It is his business, in a case like this, while enforcing the end only to suggest the means. Other and better means of diminishing the inequality of property than those which have just been alluded to, may probably be discovered by practical men. But of the end itself it becomes the writer of morality to speak with earnestness and with confidence.⁵ It admits of neither dispute nor doubt, that in our own country and in many others there subsist extremes of wealth and poverty which are highly injurious to private virtue and to the public good; and therefore it admits neither of dispute nor doubt, that the endeavour to diminish these extremes is an important (unhappy, that it is also a neglected!) branch of moral legislation.

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^{1 Gifford: Life of Pitt.
2 Causes of Decline of Nations, 4to. p. 226.
3 Letters to Bishop Hurd, No. 32.
4 The Virginians singularly confounded good moral legislation with bad, for they made a law declaring all landed property inviolable. The consequence was what might have been expected: many got into debt, and remained quietly on their estates, laughing at their creditors.
5 The legal division of the personal property of intestates admits of easy amendment. Two men die, of whom each leaves six thousand pounds behind him. One has a wife and one child, and the other a wife and eight children. It can hardly be rational to give to the widow in both these cases the same share of the property. In one or two nations the law gives a third of the income of the real estates, in addition, to the widow, but better regulations even than this were easily devised.}

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