Front Page Titles (by Subject) CHAPTER XII.: PROCEDURE AS TO REWARDS. - The Works of Jeremy Bentham, vol. 2
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CHAPTER XII.: PROCEDURE AS TO REWARDS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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PROCEDURE AS TO REWARDS.
The province of reward is the last asylum of arbitrary power. In the early stages of society, punishments, pardons, and rewards, were equally lavished without measure and without necessity. The infliction of punishment has already in a measure been subject to regulation: at some future time rules will be laid down for the granting of pardons; and last of all, for the bestowment of rewards. If punishment ought not to be inflicted without formal proof of the commission of crime, neither ought reward to be conferred without equally formal proof of desert.
It may be allowed, that in point of importance, the difference between the two cases is great; that punishment inflicted without trial excites universal alarm, whilst reward conferred without desert excites no such feelings. But these considerations only prove that the advantage of formal procedure in the distribution of reward is limited to the prevention of prodigality, and of the other abuses by which the value of reward is diminished.
At Rome, if certain travellers may be believed, it is the custom, when a saint is about to be canonized, to allow an advocate, who in familiar language is called the advocate of the devil, to plead against his admission. If this advocate had always been faithful to his client, the calender might not have been so full as at present.* Be this as it may, the idea itself is excellent, and might advantageously be borrowed by politics from religion. L’Italico valor non è ancor morto: there are yet some lessons to be learned in the capital of the world.
It is reported of Peter the Great, that when be condescended to pass through every gradation of military rank, from the lowest to the highest in his empire, he took no step without producing regular certificates of his qualifications. We may be allowed to suppose, that even with inferior recommendations to those produced by this great prince, he would have succeeded. There was no advocate for the devil to contest the point, and even had there been one, his fidelity would have been doubtful: but had the qualifications of the Czar been as imperfect as, according to the history, they were complete, his submitting to produce them would have offered a noble lesson.
In England, when a dormant peerage is claimed by any individual, the attorney-general is constituted the advocate for the devil, and charged to examine into and produce everything which can invalidate his title. Wherefore is he not thus employed when it is proposed to create new peers? Why should he not be allowed to urge everything which can be said against the measure? Is it feared that he would be too often successful?†
In the distribution of rewards, were it always necessary publicly to assign the reason for their bestowment, a restraint would be imposed upon princes and their ministers, to which they are unwilling to submit. There formerly existed in Sweden, a custom or positive law, obliging the king to insert in the patent conferring a pension or title, the reason for the grant. In 1774, this custom was abolished by an express law inserted in the Gazette of that court, declaring that the individuals honoured by the bounty of the king should be considered as indebted to his favour alone. Did this monarch think that he stood in need of services which he would not dare publicly to acknowledge?‡
In England, the remuneratory branch of arbitrary power has begun to be pruned. Except in particular cases, the king is not allowed to grant a pension exceeding £300 per annum, without the consent of parliament. Since the passing of the act containing this restriction, the candidates for pensions have been but few.
When M. Necker undertook the administration of the finances in France, the total of the acknowledged pensions, without reckoning the secret gratuities, which were very considerable, amounted to twenty-seven millions of livres. In England, where the national wealth was not less than in France, the pensions did not amount to the tenth part of this sum. It is thus that the difference between a limited and an absolute monarchy may be exhibited, even in figures.
In Ireland, the king, upon his sole authority, in 1783, created an order of knighthood; thus profiting by what remained of the fragments of arbitrary power. No blame was imputed to him for establishing this tax upon honour: had he levied a tax upon property, the nation might not have been so tractable. Those who hoped to share in the new treasure were careful not to raise an outery against its establishment: those at whose expense this treasure was established, did not understand this piece of finesse; they opened their eyes widely, but comprehended nothing. The measure could not have been better justified by circumstances. Every day the crown found itself stripped of some prerogative, justly or unjustly the subject of envy; it was therefore high time to avail itself of the small number of those, in the exercise of which it was still tolerated. Become independent of Great Britain, the honour of the Irish nation seemed to require a decoration of this kind: for what is a kingdom without an order of knighthood?
To enter into the consideration of the details requisite for the establishment of a system of remuneratory procedure, comes not within the present part of our design: a very slight sketch of the leading principles on which it might be grounded, is the utmost that can here be given. The general idea would of course be taken from the system established in penal and civil cases. Between these systems, the most striking difference would, however, arise from the interest and wishes of the agent whose act might be the subject of investigation, with respect to the publicity of the act. In the one case, the consequences of such his act, in case it were proved, being pernicious to him, all his endeavour would be to keep it concealed: in the other, these consequences being beneficial, his endeavour would be to place it in the most conspicuous light imaginable. In the first case, his endeavours would be to delay the process, and if possible make it void: in the latter, to expedite it, and keep it valid.
The most striking point of coincidence is the occasion there is in both cases for two parties. In the civil branch, there can hardly be a deficiency in this respect; there being commonly two individuals whose interests are opposite, and known and felt to be so. But in the penal branch, in one very large division of it, there is naturally no such opposition; I mean, in that which concerns offences against the public only. Here, therefore, the law has been obliged to create such an opposition, and has accordingly created it by the establishment of a public prosecutor. In the remuneratory branch of procedure, there is a similar absence of natural opposition, and accordingly the grand desideratum is the appointment of an officer whose business it should be to contest on the part of the public, the title to whatever reward is proposed to be granted in this way. He might be entitled, for shortness, by some such name as that of Contestor-general. Without a prosecutor-general, in the large and important division of cases above mentioned, there would not, unless by accident—I mean, when an individual is engaged in the task of prosecution by public spirit, or what is much more natural, by private pique—be any suit instituted, any punishment inflicted. For want of a contestor-general, there is not, unless by a similar accident,* any check given to the injustice of unmerited remuneration.
Upon the whole, then, the penal and civil branches of procedure, but particularly the penal, may in all cases serve either as the models, or, if the term may be admitted, as the anti-models of the remuneratory branch of procedure.
[* ]“Pope Urban VIII. having suffered some ill treatment from a certain noble Roman family, said to his friends, Questa gente è molto ingrata. Io ho beatificato uno dé loro parenti, che non lo meritava.”—Jortin’s Miscellanies.
[† ]If the peers are interested in not suffering the value of their office to be lessened by sharing it with unentitled persons, the public have a more important interest in preventing profusion with respect to this modification of the matter of reward—in preventing the bestowment of a portion of the sovereign power upon persons who have not purchased such a trust by any service. But if merit be not to be regarded, and there be political reasons for preserving this prerogative uncontrouled, the subject assumes another aspect, and its examination here would be out of place.
[‡ ]Extract from the Courier of the Lower Rhine, 5th March 1774.—“Stockholm, 11th February.—It was formerly the custom, when the king elevated any one to the rank of nobility, or conferred on him the title of baron, to insert in the diploma the circumstances by which he had merited this distinction. But upon a late occasion, when his Majesty ennobled M. de Geer, chamberlain of the court, he requested that the kindness and good pleasure of the king might be inserted in his diploma as the only reason for his elevation. His Majesty not only complied, but directed that the Chancery should thenceforward follow this rule, as was anciently the practice under the sovereigns of the family of Vasa, till the reign of Christina.”
[* ]I say by accident: for as in the case of offences against the public merely, accident will sometimes raise up a private prosecutor in the person of a chance individual, so in matters of remunerative procedure, will accident sometimes raise up a contestor in the person of some member of the body by whose appointment the reward is bestowed. This supposes that the reward is to be in the appointment of a body; so that if it be at the appointment of a single person, the chance of contestation is altogether wanting. This chance will of course be the greater, the more numerous that body: but if the body be very small, especially if it be composed without any mixture of different interests and partialities, and its deliberations held in secret, it will amount to nothing. If the business be confined to three, or four, or half-a-dozen, who are intimately connected, the bargain is soon made: “You serve my friend, I serve yours.” Even if the assembly be ever so numerous, the chance of contestation is but a precarious one. The task is at any rate an invidious task: he must be a man of more than common public spirit, added to more than common courage, who, unprompted by party jealousy and uncompelled by office, will undertake it: nor have instances been wanting when the most numerous and discordant assemblies have concurred unanimously in the vote of rewards, which the majority have been known individually to disapprove.