Front Page Titles (by Subject) CHAPTER III.: ART AND SCIENCE—DIFFUSION. - The Works of Jeremy Bentham, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER III.: ART AND SCIENCE—DIFFUSION. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
ART AND SCIENCE—DIFFUSION.
The sciences, like plants, may expand in two directions—in superficies and in height. The superficial expansion of those sciences which are most immediately useful, is most to be desired. There is no method more calculated to accelerate their advancement, than their general diffusion: the greater the number of those by whom they are cultivated, the greater the probability that they will be enriched by new discoveries. Fewer opportunities will be lost, and greater emulation will be excited in their cultivation.
Suppose a country divided into districts, somewhat similar to the English counties, but more equal in size, say from thirty to forty miles in diameter,—the following is the system of establishments which ought to be kept up in the central town of each district:—
1. A professor of medicine.
2. A professor of surgery and midwifery.
3. An hospital.
4. A professor of the veterinary art.
5. A professor of chemisty.
6. A professor of mechanical and experimental philosophy.
7. A professor of botany and experimental horticulture.
8. A professor of the other branches of natural history.
9. An experimental farm.
The first advantage resulting from this plan would be the establishment, in each district, of a practitioner skilled in the various branches of the art of healing. An hospital, necessary in itself, would also be further useful by serving as a school for the students of this art.
The veterinary art, or the art of healing as applied to animals, has only within these few years been separately studied in England. The farriers who formerly practised upon our cattle, were generally no better qualified for their duty than the old women whom our ancestors allowed to practise upon themselves. The establishment of a professor of the veterinary art in every district might even be recommended as a matter of economy: the value of the cattle preserved would more than counterbalance the necessary expense. This professorship might, for want of sufficient funds, be united to one of the others.
The connexions of chemistry with domestic and manufacturing economy are well known. The professor of this science would of course direct his principal attention to the carrying this practical part to its greatest perfection. His lectures would treat of the business of the dairy; the preservation of corn and other agricultural productions; the preservation of provisions of all sorts; the prevention of putrefaction, that subtle enemy of health as well as of corruptible wealth; the proper precautions for guarding against poisons of all sorts, which may so easily be mingled with our provisions, or which may be collected from the vessels in which they are prepared. They would also treat of the various branches of trade—of the arts of working in metal, of breweries, of the preparation of leather, and the manufactures of soap and candles, &c. &c.
Botany, to a certain degree, is necessary in the science of medicine: it supplies a considerable part of the materials employed. It has a similar connexion with chemistry, and the arts which depend upon it. The combined researches of the botanist and chemist would increase our knowledge of the various uses to which vegetable substances might be applied. It is to them that we must look for the discovery of cheaper and better methods, if such methods are to be found, of giving durability and tenacity to hemp and flax for the manufacture of linens, ropes, and paper; for discoveries respecting the astringent matters applicable to the preparation of leather; and for the invention of new dyes, &c.; and so on, to infinity. Indeed, it is the botanist who must enable the agriculturist to distinguish the most useful and excellent herbs and grasses, from those which are less useful, or pernicious.
The professor of natural history would also furnish abundance not only of curious but useful information. He would teach the cultivator to distinguish, throughout all the departments of the animal kingdom, his allies from his enemies. He would point out the habits and the different shapes assumed by different insects, and the most efficacious methods of destroying them, and preventing their ravages. It might, however, perhaps appear, were we fully acquainted with the history of all the animals which dwell with us upon the surface of this planet, that there would be found none whose existence was to us a matter of indifference.
I have placed in the last rank the institution of an experimental farm—not because its utility would be inferior to all the others, but because its functions may be easily supplied by individual industry. In a country so well replenished with knowledge, wealth, and zeal, as England, there is no district which could not furnish an abundance of experiments in this department. Little more would be necessary than to provide a register into which they might be collected, and in which they might receive the degree of publicity necessary for displaying their utility. Such a register England once possessed in the work of the enlightened and patriotic Arthur Young. Such a register, numerous and excellent as the hints dispersed throughout it were, was far, however, from supplying the place, and rendering useless a system of regular and connected researches, in which instruction should constitute the sole object.*
In enumerating the branches of knowledge with which, on account of their superior utility, it is most desirable that the great mass of the people should be acquainted, it may well be supposed that I ought not to forget the knowledge of the laws. But that this knowledge may be diffused, a determinate system of cognoscible laws, capable of being known, is necessary. Unhappily, such a system does not yet exist: whenever it shall come to be established, the knowledge of the laws will hardly be considered worthy of the name of science. The legislator who allows more intelligible terms to exist within the compass of language, than those in which he expresses his laws, deserves the execration of his fellow-men. I have endeavoured to present to the world the outlines of a system,* which, should it ever be filled up, I flatter myself would render the whole system of laws cognoscible and intelligible to all.
As to those arts and sciences which may be learned from books,—such as the art of legislation, history in all its branches, moral philosophy and logic, comprehending metaphysics, grammar, and rhetoric,—these may be left to be gathered from books. Those individuals who are desirous of alleviating the pains of study by the charms of declamation upon these subjects, may be permitted to pay for their amusements. There is, however, one branch of encouragement, which the hand of government might extend even to these studies. It might establish in each district, in which the lectures of which we have already spoken, should be delivered, an increasing library, appropriated to these studies. This would be at once to bestow upon students the instruments of study, and upon authors their most appropriate reward.
I should not consider knowledge in these departments, at once so useful and so curious, ill acquired, were it even acquired at the expense of Latin and Greek—an acquaintance with which is held in such high estimation in our days, and for instruction in which the foundations are so abundant. Common opinion appears to have considered the sciences more difficult of attainment than these dead languages. This opinion is only a prejudice, arising from the comparatively small number of individuals who apply themselves to the study of the sciences, and from its not having been the custom to study them till the labour of these other studies has been completed. But, custom and prejudice apart, it is in the study of the sciences that young people would find most pleasure and fewest difficulties. In this career, ideas find easy access through the senses to the memory and the other intellectual faculties. Curiosity, that passion which even in infancy displays so much energy, would here be continually gratified. In the study of language, on the contrary, all is abstraction: there are no sensible objects to relieve the memory; all the energy of the mind is consumed in the acquisition of words, of which neither the utility nor the application is visible. Hence, the longest and most detailed course of instruction which need be given upon all the sciences before mentioned, would not together occupy so much time as is usually devoted to the study of Latin, which is forgotten almost as soon as learned. The knowledge of languages is valuable only as a means of acquiring the information which may be obtained from conversation or books. For the purposes of conversation, the dead languages are useless; and translations of all the books contained in them may be found in all the languages of modern Europe. What, then, remains to be obtained from them, not by the common people, but even by the most instructed? I must confess, I can discover nothing but a fund of allusions wherewith to ornament their speeches, their conversations, and their books—too small a compensation for the false and narrow notions which custom continues to compel us to draw from these imperfect and deceptive sources. To prefer the study of these languages to the study of those useful truths which the more mature industry of the moderns has placed in their stead, is to make a dwelling-place of a scaffolding, instead of employing it in the erection of a building: it is as though, in his mature age, a man should continue to prattle like a child. Let those who are pleased with these studies continue to amuse themselves; but let us cease to torment children with them, at least those children who will have to provide for their own subsistence, till such time as we have supplied them with the means of slaking their thirst for knowledge at those springs where pleasure is combined with immediate and incontestable utility.
It is especially by a complete course of instruction, that the clergy, who might be rendered so useful, ought to be prepared for their functions. Within the narrow limits of every parish, there would then be found one man at least well instructed upon all subjects with which acquaintance is most desirable. In exchange for this knowledge, which constitutes the glory of man, I would exchange as much as might be desired of that controversy which is his scourge and his disgrace.
The intervals between divine service on the Sabbath might then be filled up by the communication of knowledge to those whose necessary avocations leave them no other leisure time for improvement. An attendance upon a course of physico-theology, it appears to me, would be a much more suitable mode of employing this time, than wasting it in that idleness and dissipation in which both health and money are so frequently lost.
There are three causes which tend to strengthen an attachment to the dead languages:—The first is, the utility which they formerly possessed. At the revival of letters, there was nothing to learn but Latin and Greek, and nothing could be learnt but by Latin and Greek. The period when this utility ceased having never been fixed, custom has led us to regard it as still subsisting.
A second reason is, the time and trouble expended by so many persons in learning them.
The price of anything is regulated not only by its utility, but also by the labour expended in procuring it. Few would be willing to acknowledge that they had spent a large portion of their life in learning that which, when learnt, was not worth knowing. There are many individuals who have learnt Latin and Greek, but have learned nothing else. Can it be expected that they should acknowledge these languages are useless? As well might a knight-errant have been expected to acknowledge that his mistress was ugly!*
The third cause is, their reputed necessity. This necessity, though purely conventional, is not the less real. Public opinion has attached a degree of importance to an acquaintance with them, and he who should be known to be entirely ignorant of them, would be branded with disgrace. So long as this law subsists, it must be obeyed. A single individual is seldom able to withstand or change the laws established by public opinion.
As the public mind becomes enlightened, these laws will change of themselves. A sovereign may, however, hasten these changes if he believe them useful, and if he consider the attempt worth the trouble. He may reward individuals for teaching the arts and sciences, and thus establish a new public opinion, which shall at first compete with, and at length ultimately subdue, the previous prejudice.
He may also attain the same end by another less costly, but more startling method. He may prescribe an attendance upon different scientific lectures, as a necessary condition to the holding of certain offices, and particularly of all honorary employments. To those who have completed their course of attendance, an honorary diploma may be given, which upon all occasions of public ceremony shall entitle those who possess it to a certain precedence.
In the times of feudal barbarism, when war was the only occupation of those who did not belong to the commonality or the clergy, the upper ranks in society were necessarily military. The knight was the warrior who could afford to fight on horseback; the squire was one who, not being so rich as the knight, could afford to be his principal attendant: and this constituted their nobility.
In future times, when other occupations shall be pursued and other manners established, it is possible that knowledge may confer rank in Europe, as the appearance of it has for a long time past in China. Wealth, independently of any convention, possesses real power, and will always mingle with everything which tends to confer respect. The philosopher, to his title of honour, will unite the idea of an individual sufficiently wealthy to have supported the expense of a learned education. Knowledge, whether true or presumptive, might thus become a mark of distinction, as the length of the nails is in China.
But it may be said, that something more than attendance upon a course of scientific lectures is necessary, if anything is to be learned; and that the law which should bestow honour upon attendance would not insure study. If it were necessary to have a nobility composed of real philosophers, other methods must be pursued; but when the object in view is merely to change the species of knowledge in which they are to be instructed, from what is useless to what is useful, what more need be required? When interesting objects of study are substituted for those which are uninteresting, they would not study less.
I know that public examinations are powerful means for exciting emulation, but I have no desire to place additional obstacles in the way of a plan whose novelty alone would render it but too alarming: a project, which to many will appear romantic, need not be accompanied by an accessory whose aspect is alarming, and whose utility is problematic.
The most stupid and inattentive could scarcely attend upon a long course of instruction without gaining some advantage: they would at least be familiarized with the terms of art, which constitute not only the first, but the greatest difficulty; they would form some idea of the principal divisions of the country they traversed; and should they ever be desirous of directing a more particular examination to any particular division, they will at least know in what direction to seek for it. As all the world would then be occupied with the study of the sciences, they would pretend thus to employ themselves, and would be ashamed to be entirely ignorant of those things which were the subjects of general conversation.
Russia is an instance of the ease with which a new direction may be given to the opinions of a whole people. Nobility of birth is but little respected;—official rank is the only ground of distinction. This change has been effected by a few simple regulations. Unless he be an officer, no individual, how rich or nobly born soever he may be, can vote, or even sit, in the assembly of the nobility. The consequence has been, that all classes have pressed into the service of the state. If they do not intend to make it their profession, they quit it when they have attained the rank which confers this privilege.
Note.—If Mr. Bentham had consented to revise his MSS., which were written more than forty years ago, he might have seen reason to alter many of his observations.
In England, much has been done in the interval. Public opinion has sensibly changed respecting the value of classical learning. It is highly esteemed at college, but elsewhere it is now only considered as an accessary: the most enlightened parents regret that it is still the only object of instruction in our public schools.
Since the establishment of the Royal Institution, many similar institutions have been formed, and a general desire for useful knowledge has been disseminated. The ladies have displayed a persevering ardour in their attendance on these means of instruction, so much the more praiseworthy, as it has been uniformly excited by inclination alone. Elementary works have been multiplied; but all this has been done by the exertions of individuals, without any encouragement from the State.
As to public education, it is more easily created than reformed. A good institution would be the best criticism upon the bad. If two or three colleges were founded in London, suited to the wants of the more numerous classes of those who are destined to the pursuits of art, trade, or commerce, in which not Latin or Greek (almost always useless in these avocations) should be taught, but the national language, which has generally been neglected, together with all those branches of knowledge, which if not absolutely necessary, are always useful and agreeable, we should soon see these seminaries draw together a crowd of scholars, and the old colleges would be obliged to correct their system, in order to maintain their ground.
It may be said, that private schools may supply the deficiency; but there is a great difference between public and private establishments. Private education can only succeed by a train of happy events, whilst in public education, a multitude of circumstances are overcome. Besides, domestic education is limited to the rich, whilst public instruction is adapted to the most moderate fortunes.
Book I. Ch. viii p. 210.
On Subscriptions to Matters of Opinion.
Of the two English Universities, Oxford is the most ancient and most dignified. Of its numerous statutes which are penned in Latin, as many as fill a moderate duodecimo volume are published, as the title-page declares, for the use of youth: and of these care is taken (for the honour of the government let it be spoken) that those for whose observance they are designed, shall not, without their own default, be ignorant: since, at every man’s admission, a copy is put into his hands. All these statutes, as well those that are seen as those that are not seen, every student at his admission is sworn in Latin to observe, “So help me God,” says the matriculated person, “touching as I do the most holy Gospel of Christ.”*
The barbers, cooks, bed-makers, errand-boys, and other unlettered refainers to the university, are sworn in English to the observance of these Latin statutes. The oath thus solemnly taken, there has not, we may be morally certain, for a course of many generations, perhaps from the first era of its institution, been a single person that has ever kept. Now, though customary, it is perhaps not strictly proper, as it tends to confusion and to false estimates, to apply the term perjury, without distinction, to the breach of an assertive and to that of a promissive declaration—to the breach of an oath and to that of a vow; and to brand with the same mark of infamy a solemn averment, which at the time of making it was certainly false,—and a single departure from a declared resolution, which at the time of declaring it might possibly have been sincere.* But, if they themselves are to be believed who have made the oath, and who break it,—the university of Oxford, for this century and half has been, and at the time I am writing is, a commonwealth of perjurers. The streets of Oxford, said the first Lord Chatham once, “are paved with disaffection.” That weakness is outgrown: but he might have added then (if that had been the statesman’s care) and any one may add still, “and with perjury.” The face of this, as of other prostitutions, varies with the time: perjurers in their youth, they become suborners of perjury in their old age.
It should seem that there was once a time, when the persons subjected to this yoke, or some one on their behalf, began to murmur: for, to quiet such murmurs, or at any rate to anticipate them, a practitioner, of a faculty now extinct, but then very much in vogue,—a physician of the soul, a casuist, was called in. His prescription, at the end of every one of these abridged editions of the statutes—his prescription under the title of Epinomis seu explanatio juramenti, &c. stands annexed.† This casuist is kind enough to inform you, that though you have taken an oath indeed, to observe all these statutes—and that without exception, yet, in ninety-nine instances out of a hundred, it amounts to nothing. What, in those instances, you are bound to do is—not to keep your oath, but to take your choice whether you will do that or suffer—not to do what you are bid; but, if you happen to be found out (for this proviso, I take for granted, is to be supplied) to bear the penalty. For—what now do you think your sovereign seriously wishes you to do, when he forbids you to commit murder? that you should abstain from murder at all events? No surely; but that, if you happen to be found out and convicted, you should sit quiet while the halter is fitted to your neck.
Who is this casuist, who by his superior power washes away the guilt from perjury, and controuls the judgments of the Almighty? Is it the legislator himself? By no means: that indeed might make a difference. The sanction of an oath would then not with certainty be violated; it would only with certainty be profaned. It was a Bishop Saunderson, who, in the bosom of a Protestant church, before he was made a bishop, had set up a kind of confessional box, whither tender consciences repaired from all parts to heal their scruples.
This institution, whether it were the fruit of blindness or of a sinister policy, has answered in an admirable degree, some at least of the purposes for which it was probably designed. It has driven the consciences of the greater part of those by whom the efficient parts of government are one day to be filled, into a net, of which the clergy hold the cords. The fear and shame of every young man of sense, of spirit, and reflection, on whom these oaths are imposed, must at one time or other take the alarm. What! says he to himself, am I a perjurer? If he ask his own judgment, it condemns him. What then shall he do? Perjury, were it only for the shame of it, is no light matter: if his education have been ever so loose, he has frequently heard it condemned; if strict and virtuous, he has never heard it mentioned without abhorrence. But, when he thinks of the guilt of it, hell yawns under his feet. What then shall he do? Whither then shall he betake himself? He flies to his reverend instructors in a state of desperation. “These men are older than myself,” says he; “they are more learned, they are therefore wiser: on them rests the charge of my education. My own judgment, indeed, condemns me; but my own judgment is weak and uninformed. Why may not I trust to others? See, their hands are outstretched to comfort me! Where can be the blame in listening to them? in being guided by them? in short, in surrendering my judgment into their hands? Are not they my rulers, my instructors? the very persons whom my parents have appointed to take charge of me, to check my presumption, and to inform my ignorance? What obligation am I under, nay, what liberty have I to oppose my feeble lights to theirs? Do they not stand charged with the direction of my conscience?—charged by whatsoever I ought to hold most sacred? Are they not the ministers of God’s word? the depositaries of our holy religion? the very persons, to whose guidance I vowed, in the person of my godfathers and godmothers, to submit myself, under the name of my spiritual pastors and masters? And are they not able and willing to direct me? In all matters of conscience, then, let me lay down to myself the following as inviolable rules:—not to be governed by my own reason; not to endeavour at the presumptuous and unattainable merit of consistency; not to consider whether a thing is right or wrong in itself, but what they think of it. On all points, then, let me receive my religion at their hands: what to them is sacred, let it to me be sacred; what to them is wickedness, let it to me be wickedness; what to them is truth, let it to me be truth; let me see as they see, believe as they believe, think as they think, feel as they feel, love as they love, fear as they fear, hate as they hate, esteem as they esteem, perform as they perform, subscribe as they subscribe, and swear as they swear. With them is honour, peace, and safety; without them, is ignominy, contention and despair.” Such course must every young man, who is brought up under the rod of a technical religion, distinct from morality, and bestrewed with doubts and dangers, take on a thousand occasions, or run mad. To whom else should he resort for counsel?—to whom else should he repair? To the companions of his own age? They will laugh at him, and call him methodist: for many a one who dreads even hobgoblins alone, laughs at them in company. To their friends and relations who are advanced in life, and who live in the world? The answer they get from them, if they are fortunate enough to get a serious one, is—that in all human establishments there are imperfections; but that innovation is dangerous, and reformation can only come from above: that young men are apt to be hurried away by the warmth of their temper, led astray by partial views of things, of which they are unable to see the whole: that these effusions of self-sufficiency are much better repressed than given way to: that what it is not in our power to correct, it were better to submit to without notice: that prudence commands what custom authorizes—to swim quietly with the stream: that to bring matters of religion upon the carpet, is a ready way to excite either aversion or contempt: that humanity forbids the raising of scruples in the breasts of the weak,—good humour, the bringing up of topics that are austere,—good manners, topics that are disgusting: that policy forbids our offending the incurious with the display of our sagacity, the ignorant with the ostentation of our knowledge, the loose with the example of our integrity, and the powerful with the noise of our complaints: that, with regard to the point in question, oaths, like other obligations, are to be held for sacred or insignificant, according to the fashion: that perjury is no disgrace, except when it happens to be punished: and that, as a general rule, it concerns every man to know and to remember, as he tenders his peace of mind and his hopes of fortune, that there are institutions, which though mischievous are not to be abolished, and though indefensible are not to be condemned.
A sort of tacit convention is established: “Give your soul up into my hands—I ensure it from perdition. Surely the terms, on your part, are easy enough: exertion there needs none: all that is demanded of you is—to shut your eyes, ears, lips, and to sit quiet. The topic of religion is surely forbidding enough, as well as a forbidden topic: all that you have to do then, is to think nothing about the matter: look not into, touch not the ark of the Lord, and you are safe.”
Book I. Ch. viii. p. 211.
Mischievousness of Reward latent—Exemplifications.
When a reward is groundless, it may be either simply groundless, or positively mischievous: the act, which it is employed to produce, may be either simply useless, or pernicious.
It would be a nugatory lesson to say, that reward should not be applied to produce any act, of which the tendency is acknowledged to be pernicious; and this whether such act have been aggregated to the number of offences or not. The only cases which it can be of any use, in this point of view, to mention, are those in which the mischievousness of the act, or the tendency of the reward to produce it, is apt to lie concealed.
To begin with the cases which come under the former of these descriptions—those in which the mischievousness of the act is apt to lie concealed. One great class of public services, for which rewards have been or might be offered, are those which consist in the extension of knowledge, or, according to the more common, though obscure and imposing phrase, the discovery and propagation of truth. Now there is one way in which rewards offered for the propagation of truth (that is, of what is looked upon, or professed to be looked upon, as truth) cannot but have a pernicious tendency; and that of whatever nature be the proposed truth. A point being proposed, concerning which men in general are thought to be ignorant or divided, if a man sincerely desired that the truth relative to that point should be ascertained, and in consequence of that desire is content to furnish the expense of a reward, the natural course is—to invite men to the inquiry. “How stands the matter? Which of the two contradictory propositions is the true one?” To a question of some such form as this, he requires an answer. The service, then, to which he annexes his reward, is the giving an answer to a question—such an answer as upon examination shall appear to be a true one, or to come nearest to the truth. The tendency of a reward thus offered, to produce the discovery of the truth, is obvious: the tendency of it will at least be to produce the discovery of what to him, who puts in for the reward, shall appear to be truth. What else should it tend to produce? My aim being to establish what to you shall appear to be the truth, what other means have I of doing this, but by advancing what appears to me to be so? Accordingly, thus to apply the reward, is to promote a sincere and impartial inquiry, and to pursue the best, and indeed the only course that by means of artificial reward can be pursued for promoting real knowledge.
Another course, which has been sometimes taken, is—to assume the truth of the one of two contradictory propositions that may be framed concerning any object of inquiry,—and to make the demonstration of the truth of that proposition the condition of the reward. In this course, the tendency of the reward is pernicious. The habit of veracity is one of the great supports of human society—a virtue which in point of utility ought to be, and in point of fact is, enforced in the highest degree by the moral sanction. To undermine that habit, is to undermine one of the principal supports of human society. The tendency of a reward thus offered is to undermine this virtuous habit, and to introduce the opposite vicious one. The tendency of it may be to produce what is called logical truth, or not, as may happen; but it is, at any rate, to produce ethical falsehood: it may tend to promote knowledge or error, as it may happen; but it tends, at any rate, to promote mendacity. The proposition either is true or it is false: and, be that as it may, men are either agreed about its being true, or they are not. In as far as they are agreed, the reward is useless; in as far as they are not, it tends to make them act as if they were, and is pernicious.
It may be said—No; all that it tends to do, at least all that it is designed to do, is to call forth such, and such only, whose opinion is really in favour of the proposition, and to put them upon giving their reasons for it: it is not to corrupt their veracity, but to overcome their indolence. But whatever may be the design, the former is in fact its tendency. On the one side, they have reward to urge them; on the other, they have impunity to permit them. For, when a man declares that his opinions on a given subject are so and so, who can say that they are otherwise?—who can say with certainty, what are a man’s private opinions? And if the effect be bad, what signifies the intention? Or how, indeed, can the intention be pure, if it be seen that the effect is likely to be a bad one?
Thus would it stand, were it doubtful whether there are any persons or no, whose unbiassed opinions are on the opposite side to that on which the demonstration is sought to be procured. But the case always is, that it is clear there are such persons; that it is the very persuasion of there being such, that is the cause of offering the reward; and that the more numerous they are, the more likely it is to be offered, and the greater it is likely to be. Such, then, is the danger of promoting mendacity: to avoid which danger, it may be laid down in short terms, as a general rule, that reward should be given—not for demonstration, but for inquiry.
More than this, a reward thus applied tends always, in a certain degree, to frustrate its own purpose; and is so far, not only inefficacious, but efficacious on the other side. It does as good as tell mankind, that, in the opinion of him at least by whom the reward is offered, the probability is that men’s opinions are most likely to be on the opposite side; and in so far gives them reason to think that the truth is also on that opposite side. “People in general,” a man will naturally say to himself, “are not of this way of thinking: if they were, what need of all this pains to make them so?” This, then, affords another reason why reward should be given—not for demonstration, but for inquiry.
Such, accordingly, has been the course pursued in relation to almost every branch of science, or supposed science. The science, or supposed science of divinity, furnishes exceptions, which are perhaps the only ones. What should we say to a man who should seek to promote physical knowledge by such devices? What should we say to a man, who instead of setting men honestly and fairly to inquire whether, in regard to living powers, for example, the momentum were in the simple or in the duplicate proportion of the velocity—whether heat were a substance, or only a quality of other substances—whether blunt or pointed conductors of electricity were the safest,—should pay them for endeavouring to prove, that in living forces the momentum is in the simple proportion only, that heat is only a quality, and that blunt conductors are the safest?
In divinity, however, examples of this method of applying reward are frequent.
It may be said, that an exception ought to be made from the rule, in the cases wherein, on whichever side the truth may be, the utility is clearly on the side thus favoured. Thus there is use, for instance, in the people’s believing in the being and attributes of a God: and that even in a political view, since upon that depends all the assistance which the political can derive from the religious sanction: and that there can be no use in their disbelieving it. That there is use again, in the people’s believing in the truth of the Jewish prophecies; since upon that depends one argument in favour of the truth of that history, the truth of which is one main ground of men’s expectation of the rewards and punishments belonging to that sanction. This observation certainly deserves great attention. It exhibits a reason which there may be for making an exception to the rule. It does not, however, invalidate the arguments adduced, as above, in favour of it: it does not disprove the probability of the mischiefs on the apprehension of which it is grounded. What it does, is to exhibit a benefit to act in balance against these inconveniences. If, then, the interests of religion be at variance with those of virtue, and it be necessary to endanger the one in order to promote the efficacy of the other,—so then it must be.
It is to be observed, that all the advantage which can accrue to the cause from this manœuvre is composed of the difference between what it may derive from these hireling advocates, and what, were there no such artificial encouragement given, it would derive from volunteers. On this head it may be worth considering, whether the calling forth of the one does not contribute to prevent the enlistment of the other. “What need is there for me, a stranger, to give myself the trouble, when there are so many others whose particular business it is, and who are so well paid for it?” Of this sort is the language which a man will very naturally hold with himself on such occasions.
A strange circumstance it would be indeed,—and one which would afford no very favourable presumption either of the truth or of the utility of the cause which it is meant to favour,—if all the unbiassed suffrages of any considerable majority in number or value of the thinking men should, if left to themselves, be on the opposite side. Great, indeed, must be the penury of unbought advocates, that can make it advantageous,—I do not say merely to the cause of truth, but to any cause, however wide of the truth,—to apply to mercenaries for assistance. Of how little weight the suffrages of the latter are in comparison of those of the former, let any one judge, who has observed the superior eclât with which the work of a layman is received, when it happens to be on the side of orthodoxy.
But however the matter may stand with regard to questions of political importance, in which utility is clearly on one side—whatever reason there be for violating the law of impartiality in this case, it ceases altogether when applied to the merely speculative points which form the matter of those articles of faith, to which on a variety of occasions subscriptions or other testimonies of acceptation are required. These will serve as one set of instances of the other branch of the cases, where the mischievous effects of reward are apt to lie concealed; viz. where, in the case of a line of conduct produced by a reward, apparent or no, the tendency of the reward to produce it is apt not to be apparent at first glance—inasmuch as it may escape observation, that the advantage held forth acts to this purpose in the capacity of a reward.
For an emolument to operate in the capacity of a reward, so as to give birth to action of any kind, it is not necessary that it should be designed so to do. Whenever any such connexion is established between emolument on the one part, and a man’s conduct on the other, that by acting in any manner he sees that he acquires an emolument, or chance of emolument, which without acting in such manner he could not have,—the view of such emolument will operate on him in the capacity of a reward. It matters not whether it be the sole act which is to entitle him to the reward, or only one act amongst many. It matters not whether it be the act to which the reward is professedly annexed, or any other act of which no mention is made. It may not be held up to view in that character: it may even be not held up to view at all. In this unconspicuous way an emolument may operate, and in a thousand instances does operate, in the capacity of a reward, on a long and indefinite course of action—in short, on the business of a whole life. Whenever, on the part of the same person, two acts are so connected, that the performance of the one is necessary to his having it in his power to perform the other, a reward annexed to the latter operates eventually as if annexed to the former; and, whether designedly or not, it promotes the production of the one act as much as of the other. In this case, the having performed the prior act is said to be a qualification for the being permitted to perform the posterior. The emolument annexed to the act professedly rewarded, is therefore, in this case, as much a reward for assuming the qualification, as a reward for performing the act, for the performance of which a man is required to qualify himself by the performance of the other.
In England (for I will go no farther) the subscribing a declaration of this sort is made a qualification for many of the principal emoluments to which a man can aspire: for every preferment in the church—for the liberty of engaging in the instruction of youth—for admission to the benefits of that mode of education which is looked upon as most liberal and advantageous, and thereby to the enjoyment, or the chance of the enjoyment of any one of that ample stock of emoluments which have been provided in the view of inducing young persons to put themselves in the way of that favourite mode of education. The articles, or propositions, to which this subscription is required, are termed Articles of Religion. By subscribing to these articles, a man declares that he believes the truth of certain facts which they aver. Among these facts there are many, which, whether true or not (a point which is nothing to the present purpose) are plainly, in a political view, of no sort of importance whatsoever. I say of no importance; since they contribute nothing to the furnishing either of any motive to prompt to action, or of any rule or precept to direct it. Be they true, or be they false,—nothing is to be done in consequence—nothing to be abstained from.
The mischievous tendency, which the giving a reward has in this case, is much more palpable than what it has in the other; because the probability of its giving birth to falsehood is the greater.
1. In the case of demonstrative lectures, all that it is absolutely necessary a man should do, is—simply to state the arguments in favour of the proposition in question: he does not necessarily assert his own belief of the truth of it. “Such are the reasons,” he may say, “which induce other people, and which, if attended to, may perhaps induce you to believe it: whether they are conclusive or not, it lies upon you to judge: as to myself, whether I myself believe it or no, is another matter. I do not tell you—I am not bound to tell you.” In the case of subscription, he directly, plainly, and solemnly says—I believe it.
2. In the next place, the probability of falsehood is much greater in this case than in the other. In the case of demonstrative lectures, men are reasoned with, lest otherwise they should not believe: in the case of subscriptions, men are rewarded for subscribing, because it is known many do not believe. Had men never disbelieved or doubted, they never would have been called upon to subscribe: it would have been useless and needless; nor would any one have thought of it.
Those who are inclined to place in the most favourable point of view the political efficacy of subscriptions to such articles, have called them articles of peace; as if there were nothing more in saying, I believe this proposition, than in saying, I engage not to say anything that tends to express a disbelief of it.
They would have been much better named, had they been termed articles of war.
In regard to speculative opinions, there are but two cases in which men can be said to be at peace: when they think about it, and are of the same opinion; and when they think nothing about the matter: unless we reckon as a third, that of their thinking about it, and differing about it, and not caring about the difference. That the expedient in question has no tendency to promote peace of the first kind, has been already shown: it is equally clear, that it has none to produce peace of either of the two other kinds. The tendency of it is just the contrary. If left to himself, there is not one person in a hundred who would ever trouble himself about the matter. Of this we may be pretty certain. What motive should he have?—what should lead him to it?—what pleasure or what profit is there to be got by it? If left, then, to themselves, the bulk of mankind,—or, to speak more properly, the bulk of those whom it is proposed thus to discipline,—would think nothing about the matter. They would therefore be in a state of the profoundest and most lasting peace. If this should not be granted, at least it will be granted, that it would be possible for them to be so. Subscriptions render it impossible. For making peace between men, subscriptions are just the same sort of recipe that it would be for making peace between two mastiffs, to set a bone before them, and then tie them to the same stake.
When both parties are at liberty, both parties are at their ease, and there is peace between them. But when the stronger party says to the weaker,—“Stand forth and lie in the sight of God, or give up the choicest advantages of society, that we may engross them to ourselves,” what sort of peace is it that can subsist between them? Just that sort of peace which subsists between the housebreaker and the householder, when the one has bound the other hand and foot, and gagged him. It is not to be denied but that there may be some sort of uneasiness between them in the first-mentioned state of things; to wit, where, neither of them being sacrificed, they are both at liberty, and both of them protected. But what sort of uneasiness is this? Just that sort of uneasiness which may perhaps subsist between two neighbours at the thought that neither of them can break into the other’s house. Against this sort of uneasiness, peace, it must be confessed, affords no remedy: but, from the possibility of there subsisting this sort of uneasiness between two neighbours, or two nations, who ever thought of speaking of them as not being at peace?
If this method of insuring peace were good in one case, how should it be otherwise in any other? Religion, or rather the nonsense which has been grafted on it—(for the part that is capable of being made useful is not thus exposed to controversy)—religion, I say, is not the only topic which has given rise to controversy. So long as there is any man whose knowledge falls short of omniscience, and whose faculties are liable to error, men will have their differences: they will differ about matters of judgment, and about matters of taste—about the sciences, about the arts, about the ordinary occurrences of life; in short, about everything which has a name. It would then be making peace among the lovers of music to make them swear before God, that they think the Italian style, or that they think the French style, of music is the more pleasing; among the lovers of heroic poetry, that they think it best in blank verse, or that they think it best in rhyme; among the lovers of dramatic poetry, that the unities of time and place may be dispensed with, or that they must be observed. It would be making peace between an affectionate pair, to question them about every possible point of domestic management, till some slight diversity were found in their opinions, and then force one of them to swear, before God, that he was convinced his own opinion was the wrong one. It would be making peace—But surely by this time, the pacific tendency of this policy must be sufficiently understood.
Another mischievous effect of this policy is the tendency it has to vitiate the understanding. Over a man’s genuine opinion, such forms, it has been shown, can have no influence: either his veracity must give way, or his understanding, or both: he must deceive either himself or others. A deceit of some kind or other he must put on somebody; either on himself or others. There is one thing which a man cannot do; that is, destroy the force of arguments which are actually present to his mind. There is another thing which he is enabled to do in a great measure; that is, keep them from getting there. This, accordingly, is what, if the consciousness of falsehood sit uneasy on him, he will labour to do with all his might. To believe, is not in his power: for, when all the arguments that have ever been urged, or can be devised, in favour of the proposition, are collected and applied to his mind, and make no impression, what help is there? What may perhaps be in his power is, not to disbelieve: and that, if possible, he will do. But thus to shut the right eye, if one may so say, of the understanding, and keep open only the left, is not the work of a minute nor of an hour. He must make many ineffectual attacks, and return as often to the charge: he must wage war against the stubbornness of the understanding—he must bring it under the dominion of the affections—he must debilitate its powers—he must render it incapable of placing, in a clear light, the difference between right and wrong: in a word, he must instil into his mind a settled habit of partiality and bad reasoning—a habit of embracing falsehood with facility, and regarding truth, not with indifference merely, but with suspicion, in the apprehension of being brought by it into trouble.
One might imagine, that it could not have both these bad effects at once; that if it have the one, it cannot have the other: if a man disbelieve, his understanding—if he believe, his morals,—are yet safe. But whoever thinks thus, is led away by words: he does not understand aright the workings of the human mind. He supposes the mind fixed as between two rocks; whereas it is perpetually shaken and tossed about, as by a thousand waves. He supposes a man at all times perfectly conscious of the state of his own mind, and aware of the momenta and directions of the incessantly fluctuating forces that are operating on him. But this is not the case with one man in a million, in any the least degree; nor perhaps with any man in perfection. Thus it is also with hypocrisy and fanaticism: it might naturally be imagined, that the one excludes the other; but repeated experience, and long-continued observation, have at length opened the eyes of most men upon that head: and it seems now to be pretty generally understood, that these two seemingly incompatible bad qualities are found frequently in the same receptacle.
LEADING PRINCIPLES OF A CONSTITUTIONAL CODE, FOR ANY STATE.
(first published in the pamphleteer, no. 44, 1823.)
CONSTITUTIONAL CODE, &c. &c.
ENDS AIMED AT.
1.This Constitution has for its general end in view, the greatest happiness of the greatest number;* namely, of the members of this political state: in other words, the promoting or advancement of their interests. By the universal interest, understand the aggregate of those same interests. This is the all-comprehensive end, to the accomplishment of which, the several arrangements contained in the ensuing code are all of them directed.
2. Government cannot be exercised without coercion; nor coercion, without producing unhappiness. Of the happiness produced by government, the net amount will be—what remains of the happiness, deduction made of the unhappiness.
3. Of the unhappiness thus produced, is composed, in the account of happiness, the expense of government. Of the happiness produced by government, the gross amount being given, the net amount will be inversely as this expense.
4. Of the members of this, as of other states in general, the great majority will naturally, at each given point of time, be composed of the several persons who, having been born in some part or other of the territory belonging to the state, have all along remained inhabitants of it. But, to these, for the purpose of benefit, of burden, or of both, will be to be added sundry other classes of persons, of whom designation is made in an appropriate part of the ensuing code.
5. Immediately specific, and jointly all-comprehensive, ends of this constitution are—subsistence, abundance, security, and equality; each maximized, in so far as is compatible with the maximization of the rest.
6. I. As to Subsistence.† This speaks for itself.
7. II. As to Abundance. This is an instrument of felicity on two accounts: on its own account, and as an instrument of security for subsistence. In this latter character, its usefulness may be still greater to those who possess it not, than to those who possess it.
8. III. As to Security.‡ This is for good, or against evil. Security for good is—either for the matter of subsistence, or for the matter of abundance.
9. Security against evil, is either against evil from calamity,* or against evil from hostility.
10. By calamity, understand human suffering, in the case in which, by its magnitude and indeterminateness in respect to extent, it stands distinguished from, and above, the quantity ordinarily produced by one and the same cause.
11. By evil from calamity, understand evil from purely physical agency: by evil from hostility, evil from human agency. But, by purely physical agency, no evil is producible, which may not, from human agency, receive its commencement or its increase.
12. Of calamity, the principal sources are—inundation, conflagration, collapsion, explosion, pestilence, and famine.
13. The evil-doers, against whose hostility, that is to say, against whose evil agency, security is requisite, are either external or internal. By the external, understand those adversaries who are commonly called enemies.
14. Internal adversaries, against whose evil agency security is requisite, are the unofficial and the official.
15. By the unofficial adversaries, understand those evil-doers who are ordinarily termed offenders, criminals, malefactors. These are resistible, everywhere resisted, and mostly with success.
16. The official are those evil-doers whose means of evil-doing are derived from the share they respectively possess in the aggregate of the powers of government. Among these, those of the highest grade, and in so far as supported by those of the highest, those of every inferior grade, are everywhere irresistible.
17. To provide, in favour of the rest of the community, security against evil in all its shapes, at the hands of the above-mentioned internal, and, so long as they continue in such their situation, irresistible adversaries,—is the appropriate business of the constitutional branch of law, and accordingly of this code.
18. As in difficulty so in importance, this part of the business of law far surpasses every other. Of the danger to which an assemblage of individuals stand exposed, the magnitude will be in the joint ratio of the intensity of the evil in question on the part of each, the duration of it, the propinquity of it, the probability of it; and, on the part of all, the extent of it; the extent, as measured by the number of those who stand exposed to it. Measuring it in every one of these dimensions,—taking into account every one of these elements of value in both cases,—minute will be seen to be the danger to which the other members of the community stand exposed at the hands of those their resistible, in comparison with that to which they stand exposed at the hands of these their irresistible, adversaries. In the first case, it has place on no other than an individual scale; in the other, on a national scale.
19. Inferior even is the danger to which they stand exposed at the hands of foreign and declared enemies, in comparison with that to which they stand exposed at the hands of their everywhere professed protectors. Foreign enemies, in the event of their obtaining the object of their hostility, withdraw most commonly from whatever territory they invade, leaving the inhabitants thenceforward unmolested. At the worst, they keep possession of it: and in that case, from the external and resistible, become the internal and irresistible adversaries, such as those above mentioned.
20. On the texture of the constitutional branch of law, will depend that of every other. For on this branch of law depends, in all its branches, the relative and appropriate aptitude of those functionaries, on whose will depends, at all times, the texture of every other branch of law. If, in the framing of this branch of law, the greatest happiness of the greatest number is taken for the end in view, and that object pursued with corresponding success, so will it be in the framing of those other branches: if not, not.
21. IV. Lastly, as to Equality. In the instances of subsistence, abundance, and security, the title of the object to the appellation of an instrument of felicity, is stamped, as it were, upon the face of it—designated by the very name. Not so in the case of equality.
22. In the idea of equality, that of distribution is implied. Distribution is either of benefits or of burdens: under one or other of these names, may every possible subject-matter of the operation be comprised. Benefits are distributed by collation made of the instruments of felicity—burdens by the ablation of them, or by the imposition of positive hardship.
23. I. In proportion as equality is departed from, inequality has place: and in proportion as inequality has place, evil has place. First, as to inequality,—in the case where it is in the collation made of those same instruments that it has place. In this case, it is pregnant with two distinguishable evils: the one may be styled the domestic or civil; the other, the national or constitutional.
24. The domestic evil is that which has place in so far as the subject-matter of the distribution is the matter of wealth—matter of subsistence and abundance. It has place in this way:—The more remote from equality are the shares possessed by the individuals in question, in the mass of the instruments of felicity,—the less is the sum of the felicity produced by the sum of those same shares.
25. The national or constitutional evil is that which has place, in so far as the subject-matter of the distribution is power. It has place in this way:—The greater the quantity of power possessed, the greater the facility and the incitement to the abuse of it. In a direct way, this position applies only to power. But, between power and wealth such is the connexion, that each is an instrument for the acquisition of the other: in this way, therefore, the position applies to wealth likewise.
26. Of inequality as applied to both subjects,—and of the evil with which, in both the above shapes, it is pregnant,—the case of monarchy may serve for exemplification: for exemplification, and thereby for proof.
27. Of the maximum of inequality, every monarchy affords an example. Of the matter of wealth, to the monarch is allotted a mass as great as suffices for the subsistence of from 10,000 to 100,000 of the individuals from whom, amongst others, after being produced by their labour, it is extorted. Yet does it still remain matter of doubt, whether the quantity of felicity thus produced in the breast of that one, be greater than that which has place in the breast of one of those same labourers taken on an average,—has place, or at least would have had, but for the extortion thus committed.
28. What is certain is—that the quantity of felicity habitually experienced by a gloomy, or ill-tempered, or gouty, or otherwise habitually diseased monarch, is not so great as that habitually experienced by an habitually cheerful, and good-tempered, and healthy, labourer.
29. True it is, that if, per contra, by a monarch maintained at an expense such as the above, good is, by means of that same expense, produced in greater quantity than by a commonwealth chief whose maintenance will not be a hundredth part of the monarch’s;—true it is, that on this supposition, the excess of expense, vast as it is, may be not ill-bestowed. But, by whomsoever the existence of any such excess of good is asserted, upon him does it rest to prove or probabilize it.
30. If, in the case of those whose share in the instruments of felicity is greatest, the excess of felicity itself is, on an average, so small,—and, in some individuals out of the small number belonging to this class, the non-existence of any such excess certain—still less and less will be the probable amount of the excess of felicity, in the case of those whose share in the instruments of felicity is less and less. And thus it is, that as, in a pure monarchy, the distribution made of the external instruments of felicity is in the highest degree—so, in a pure aristocracy, is it in the next highest degree—unfavourable to the maximization of felicity itself.
31. Hence, throughout the whole population of a state, the less the inequality is between individual and individual, in respect of the share possessed by them in the aggregate mass or stock, of the instruments of felicity,—the greater is the aggregate mass of felicity itself: provided always, that by nothing that is done towards the removal of the inequality, any shock be given to security,—security, namely, in respect of the several subjects of possession above mentioned.
More shortly thus:—
32. The less unequal the distribution of the external instruments of felicity is—the greater, so as security be unshaken, will be the sum of felicity itself.
33. On the occasion of the distribution made of a mass of burdens, delinquency either is, or is not, in question: is not—as where it is for defraying the expense of government that the burdens are imposed.
34. A burden imposed on the occasion of delinquency, is imposed either for the purpose of its operating in the way of punishment, or for the purpose of conferring a correspondent benefit on some other person or persons, in compensation for damage sustained—sustained, namely, in consequence of the delinquency.
35. Correspondent to the evil produced by inequality in the case of collation, is the evil produced by it in the case of ablation,—ablation made of a mass of the external instruments of felicity in any shape, and in particular in the shape of wealth. Other circumstances the same,—the smaller the mass a man possesses of the instruments of felicity in this shape, the greater is the loss of felicity produced in his instance by the ablation of any given mass of them. By the ablation of fifty pounds, more felicity will be abstracted from the breast of a man who has but one hundred pounds for his whole property, than from the breast of one who has two hundred pounds; much more would it, if, instead of the hundred pounds, he had but that same fifty pounds.
36. II. So much for felicity, considered as the product of government. Now as to infelicity, considered as the expense by means of which that same felicity is produced. Maximization was the object in regard to the desired product: minimization is the object in regard to the expense. Now as to the elements of that same expense.
37. The expense is evil—evil produced either for the exclusion of greater evil, or for the production of more than equivalent good: it may be distinguished into punishment and hardship.
38. Punishment is evil, produced under the notion of its being a direct instrument, or efficient cause, of some good thereby desired and intended to be produced.
39. Hardship is evil, produced as a collateral result of some operation employed for the exclusion of evil, or for the production of good: a collateral result, not an efficient cause.
40. In respect of its shape, expense employed by government, as above, is either non-pecuniary or pecuniary.
41. The non-pecuniary expense of government is hardship at large: the principal modification of it is that produced by forced personal service: and, of forced personal service, that produced by forced military service.
42. As to the matter of expense, in no shape can it ever be procurable by government, in anything like sufficient quantity, without hardship, or punishment, or the fear of it, or both.
43. Whatever is done by government is done—partly by means of the matter of punishment, or the fear of it, partly by means of the matter of reward, or the hope of it.
44. The matter of reward is a portion of the matter of good, considered as employed in the production of felicity in the breast of some individual, in consideration of some act done or supposed to be done by him, or about to be done by him.
45. The matter of reward is not, in any sufficient quantity, procurable by government without expense—expense, as above, in the shape of hardship and punishment.
46. Accordingly, on no occasion, and for no purpose, is good producible by government, but through evil, as above.
47. Hence, in so far as may be without detriment to the net amount of good produced, the maximization of national felicity requires that factitious reward (reward applied by the hand of government, at the expense of the community) be in every shape minimized, as well as the matter of punishment.
PRINCIPAL MEANS EMPLOYED FOR THE ATTAINMENT OF THE ABOVE ENDS.
1. These means are comprisable, all of them, in one expression: maximization of appropriate official aptitude on the part of rulers.
2. Of this aptitude, three branches are distinguishable: 1. Appropriate moral aptitude; 2. Appropriate intellectual aptitude; 3. Appropriate active aptitude.
3. Of appropriate intellectual aptitude there are two distinguishable branches: 1. Appropriate knowledge; 2. Appropriate judgment.
4. By appropriate moral aptitude, understand—disposition to contribute, on all occasions and in all ways, to the greatest happiness of the greatest number; in other words, to the promoting or advancement of the universal interest.
5. If appropriate moral aptitude be to a certain degree deficient,—the consequence is, that by abundance of appropriate aptitude in those other shapes, the aggregate of appropriate aptitude will naturally, instead of being increased, be diminished. If hostile to the interests of the greatest number,—the more able the functionary, the more mischievous.
6. To the different branches of appropriate official aptitude, apply correspondently different means. Expressed in the shortest manner, indication may be given of them by the following rules.
7. I. Means applying to appropriate moral aptitude:—
Rule 1. In the hands of those of whose happiness the universal happiness is composed, keep at all times the choice of those agents, by whose operations that happiness is to be promoted.*
8. Rule 2. In the hands of each such agent, minimize the power of doing evil.
9. Rule 3. Leave, at the same time, as little diminished as may be, the power of doing good.
10. Rule 4. Minimize the quantity of public money at his disposal.
11. Rule 5. Minimize the time during which it remains at his disposal.
12. Rule 6. Minimize the number of hands through which it passes in its way to the hand by which it is received in payment.
13. Rule 7. Extra-reward give none, without proportionable extra-service—extra-service proved, and that by evidence not less conclusive than that which is required to be given of delinquency, with a view to punishment.
14. Rule 8. Maximize each man’s responsibility with respect to the power and the money with which he is entrusted.
15. Rule 9. Means by which such responsibility is maximized, are—1. Constant dislocability; 2. Eventual punibility.†
16. Rule 10. By the several means above mentioned,—so order matters, that, in the instance of each such agent, the course prescribed by his particular interest shall on each occasion coincide, as completely as may be, with that prescribed by his duty: which is as much as to say, with that prescribed by his share in the universal interest.
II. Means applying to appropriate intellectual and active aptitude:—
17. Rule 1. For appropriate intellectual and active aptitude,—establish, throughout the whole field of official duty, appropriate preliminary tests and securities. For these, see the code itself.
18. Rule 2. Maximize, throughout, the efficiency of these same tests and securities.
19. Rule 3. Minimize, in the instance of each office, the pecuniary inducements for the acceptance of it.
20. Follow the observations on which Rule 3 is grounded.
I. The less the money required by a man for subjecting himself to the obligations attached to the office, the stronger the proof afforded by him of his relish for the occupations.
21. Still stronger, and in a proportionable degree, will be the proof,—if, instead of receiving, he is content to give.
22. Every penny,—added to whatsoever remuneration is, as above, sufficient,—adds strength to predatory appetites, and to the means of gratifying them.
23. A throne,—seat of the most extravagantly fed,—is so, everywhere, of the most invariably insatiable, appetites.
24. As to the means, applying, as above, to appropriate moral aptitude,—there is not one of them, of which an exemplification may not be seen, in the constitution of the Anglo-American United States.
25. Under that constitution, in so far as depends on government,—has uncontrovertibly been, and continues to be,—enjoyed, a greater quantity of happiness, in proportion to population, than in any other political community, in these or any other times.
26. By that one example is excluded, and for ever, all ground for any such apprehension, real or pretended, as that of inaptitude, on the part of the people at large, as to the making choice of their own agents, for conducting the business of government.
27. Nowhere else has such universal satisfaction been manifested: satisfaction with the form of the government—satisfaction with the mode in which, satisfaction with the hands by which, the business of it has been carried on. No other political community is there, or has there ever been,—in which, by so large a proportion of the population, so large a part has been constantly taken in the conduct and examination of the affairs of government;—no other, in which the part so taken has been so perfectly unproductive of disorder and suffering in every shape.
28. No other constitution is there, or has there been, under which, in anything like so small a degree (slave-purchasing and pertinaciously slave-holding States always excepted,) the interest and happiness of the many have been sacrificed to those of the ruling and influential few;—no other, under which what yet remains of that sinister sacrifice, will, with so little difficulty, and sooner or later with such perfect certainty, be abolished.
29. Thus much as to the all-comprehensive end of government, in so far as the government is good. As to the several abovementioned specific ends,—the means for compassing them would not here have been in their place. The description of them will be found to be in great measure different, according to the differences between the respective ends: they will form the subject-matter—in the first place, of the constitutional—in the next place, of the penal and non-penal, codes.
LIBERTY OF THE PRESS, AND PUBLIC DISCUSSION.
The lot of the present Tract has hitherto been rather unfortunate. It was begun, continued, and ended, for the purpose, and under the full assurance of its being translated into Spanish, and published at Madrid: it was sent, in the hope of its reaching that capital time enough to be before the public antecedently to the day on which the proposed law, which was the subject of it, would come under final discussion. The person, by whom it was to have been translated and published, was Mr. Mora, at that time editor of El Constitucional, the most popular, the most ably conducted, and the most distinguished of the Madrid daily papers. Had they gone according to the course of the post, the letters in question (four in number) would, even the last of them, have arrived in time. But in the first instance, in a proportion which has never been ascertained, some or all of them miscarried. As the miscarriages became ascertained or suspected, other copies were sent; and, at last, the complete series were received. In the meantime, the law, the prevention of which they had in view, passed. But, though the only individual object which they had in view was thus at an end, and the design of them thus far frustrated, the more extensive object which they had in view—more extensive in place as well as time—was neither at an end, nor in its nature capable of being put to an end. That object was—the rendering it manifest, how indispensable, at all times and everywhere, those two intimately-connected liberties—the liberty of the press, and the liberty of public discussion by word of mouth—are to everything that can with any propriety be termed good government. Thus it is, that in respect of this its major object, the work, small as it is, belongs not with less propriety to the country in the language of which it was written, than to that for the language of which it was designed—to the present month of July 1821, in which it is now published, than to the months of September and October 1820, in which it was written: to these countries, not to speak of other countries—to the present month and year, not to speak of future ones.
The law against which these Letters were directed, was passed: but the effects, at the production of which it aimed, have not been produced. The Spanish press has not been enslaved: Spaniards have not, like Englishmen, submitted to be gagged: Spanish, instead of being like English and French ministers, absolute, have been expelled. As to massacres, the authors of that of Cadiz, though they enjoy not the same triumph, nor have obtained the same rewards, have as yet, it is believed, enjoyed nearly the same impunity with those of the Manchester massacre. But the punishment of those who showed what legitimacy and social order is at Cadiz, is yet to come, and may even yet not improbably come: in that country punishment may yet be for the authors of misrule and massacre; while, in this country, it is reserved for the victims of misrule—for those who have escaped from massacre.
Of the reception experienced at Madrid by subsequent addresses of the same author to the same people, something may come to be said, in another publication which is in readiness to pass through these same hands.* As to the present Tract, its lot at Madrid remains still in abeyance. It had been about half translated, when, by an act of the sort here protested against, the translator was thrown into a prison. The illegality of that act has since been recognized, and his enlargement has been the consequence. But, under the extraordinary weight of the business which presses upon him in these eventful times, whether the translation has as yet been published, or so much as completed, is not at present known: if not by his, it will, however, ere long, be laid before the Spanish public by some other hand.
The situation of that distinguished publicist is, at this moment, an altogether curious one. A ministry has lately been expelled; and in this expulsion he has borne a leading, not to say the principal, part. To have been, and to continue to be, in a pre-eminent, not to say a peculiar degree, the object of the monarch’s confidence, has been, at the same time, matter of public and vehement accusation against him. Far from denying the fact, he openly avows it. “You know,” says he, “what my opinions, what my affections are; you know that they are all liberal ones: your wish is, that the opinions—that the affections—communicated to your monarch, should be liberal ones; by whom can they be communicated, but by those by whom they are entertained? What would you be gainers, if your monarch communicated with none that were not your enemies?”
JEREMY BENTHAM TO THE SPANISH PEOPLE.
On the Liberty of the Press—the approaching Eight Months’ sleep of the Cortes—and the Exclusion of Experience from the succeeding Cortes.
London, 7th October 1820.
The Madrid intelligence of the prosecution of a newspaper editor, for comments on the Madrid system of police, and of the introduction of the proposed law against political meetings, has just reached me. I am astounded!—What? is it come to this?—so soon come to this? The men being men, of their disposition to do this, and more, there could not be any room for doubt. But that this disposition should so soon ripen into act, this (I must confess) is more than I anticipated. Neither of the issue of the prosecution, nor of the fate of the proposed law, has the intelligence yet reached me. But that any such prosecution should have been instituted—any such proposed law introduced—that the impatience of contradiction, not to say the thirst for arbitrary power, should so soon have ventured thus far,—these, in my view, are of themselves highly alarming symptoms.
By the prosecution, if successful, unless the alleged offence have features in it such as I do not expect to find in it, I see the liberty of the press destroyed: by the proposed law, if established, I see the almost only remaining check to arbitrary power destroyed.
Taken together, they form a connected system—these two measures. By the authors of this system, you have of course been told, that it is indispensably necessary—necessary to order, to goodorder, to tranquillity—and, perhaps, honourable gentlemen may have ventured so far into the region of particulars and intelligibles, as to say—to good government, and some other good things.—Spaniards! it is neither necessary, nor conducive to, nor other than exclusive of, any of those good things. What says experience? In the Anglo-American United States, of the two parts of this system, neither the one nor the other will you see. No prosecution can there have place, for anything written against the government, or any of its functionaries as such. No restriction whatever is there on public meetings—on public meetings held for any such purpose as that of sitting in judgment on the constitution—on any measures of the government—or on any part of the conduct of any of its functionaries. Yet, if there were a country in which these restraints, or either of them, would be necessary or conducive to good government, it would be that; for, in that country the people are all armed: armed, at all times, in much greater proportion than in any other country—armed, at any time they please, every one of them.
No: in that only seat of real and established good government (for yours, alas! is not yet established)—in that country, in which, ever since that good government was established—in which, for the forty years that it has been in existence, public tranquillity has not known what disturbance is,—there is no more restriction upon men’s speaking together in public, than upon their eating together in private. People of Spain! do you know this? You scarcely do. But is it not high time you should?*
Both these lessons of experience you shall see more particularly in time and place: you will on that occasion see, in the same manner, a passage in history, an allusion to which is all that room can be found for here. A law had been passed, authorizing prosecution for the sort of offence, prosecuted for, as above, among you. Under it, one single prosecution took place—it failed: the law was repealed—the authors of it lost the public confidence, and with it their political influence.
I. As to the restraints on constitutional liberty, that my conception of the matter may at once be seen in its utmost extent, I shall, in the present letter, state at once the measures which I would venture to recommend for examination. But, in the meantime, it may be some satisfaction to you, to see before you an outline of the considerations by which the wish to see some such measures carried into effect has been produced.
First, as to the liberty of the press.
Every expression betokening disapprobation of the texture of the government, or of the conduct of any person bearing a part in the exercise of the powers of government, conveys an imputation on reputation—on the reputation of the persons at the head of the government. This cannot be denied: for as at all times the texture depends upon the person so situated, in proportion as the texture is ill adapted to the only proper end of government, so are they to their situations: and between one degree of disapprobation and another, it is not possible to draw a line. Accordingly, any such expression is, at pleasure, commonly considered by them in this light, and punished. If the imputation is to a certain degree, particular,—imputing an individual act legally punishable, or at least disreputable,—it constitutes the sort of act expressible by the term defamation: if to a certain degree vague and general, vituperation. But these sorts of acts are, both of them, commonly treated on the footing of offences: and this, too, even where the person who is the subject of the imputation is a private individual, not bearing a part in the exercise of any of those powers.
On this subject, the following are the assumptions that, in governments in general, seem commonly to have been made:—
Whatsoever be the treatment of an offender, in the case where the party offended is but a private individual, in the case where he is a public functionary—especially if spoken of as such, much more if the whole body of the rulers, or those at the head of it, are the parties offended,—the offence is more mischievous, or, on some other account, creative of a demand for a stronger repressive force, in the shape of punishment, as well as in all other shapes: and this force ought to rise in magnitude as the rank of the person offended rises; and the judicatory, by which cognizance is taken of the offence, should in this case be different; as also the forms of procedure different.
My notion, as confirmed by the practice of the Anglo-American United States, is, in all those particulars, the reverse. In the case of the public functionary, for vituperation, how gross soever, there should be no punishment at all: for defamation, no punishment unless the imputation be false and groundless; nor even then, unless the false assertion, or insinuation, be the result of wilful mendacity, accompanied with the consciousness of its falsity, or else with culpable rashness—namely, with that which is exemplified by the giving credence and currency to an injurious notion, adopted without any, or on palpably insufficient grounds: no separate judicatory: no separate form of procedure, styled penal or criminal, while, in the other case, it is styled civil; and, in the case of defamation, in disproof of rashness of assertion, as well as of wilful falsehood, the defendant should be at liberty to make proof of the truth of the imputation; and, for that purpose, to extract evidence from the person who is the subject of it, as he might from any other person at large.
For these notions, speaking in general terms, my reason is—that to place on any more advantageous looting the official reputation of a public functionary, is to destroy, or proportionably to weaken, that liberty, which, under the name of the liberty of the press, operates as a check upon the conduct of the ruling few; and in that character constitutes a controuling power, indispensably necessary to the maintenance of good government.
Speaking more particularly, whatsoever evil can ever result from this liberty, is everywhere, and at all times, greatly outweighed by the good.
1. The good, consisting, as it does, in the security thus afforded for good government; and covering, as it does, the whole field of government, is plainly infinite.
2. In comparison with this good, the utmost evil that from this cause can result to any person, or to any number of persons, however situated, would, even if altogether unaccompanied with compensation, be comparatively minute.
3. In the elevated situation in question, whether the imputation be unmerited or merited, the nature of his situation furnishes a man with means of support and defence,—and in so far as the imputation is false, means of disproof and refutation,—increasing with the height of his situation: and, at any rate, much beyond any which can be within the reach of an individual not so situated.
4. In every such situation, immediately upon his advancement into it, and therefore antecedently to his becoming the object of any such imputation, a man finds, in the advantages attached to such his situation, a compensation for all the evil to which, in this, and all other shapes taken together, he stands exposed by it.
5. The higher the situation, the more abundant the antecedent compensation it thus puts him in possession of.
Against the allowance of this liberty, considered with a view to its effect on the goodness of the government, no arguments that have been or may be adduced, will bear the test of examination.
1. First comes dangerousness. Dangerous, it always and everywhere is: for it may lead to insurrection, and thus to civil war; and such is its continual tendency.
Answer: In all liberty there is more or less of danger: and so there is in all power. The question is—in which there is most danger—in power limited by this check, or in power without this check to limit it. In those political communities in which this check is in its greatest vigour, the condition of the members, in all ranks and classes taken together, is, by universal acknowledgment, the happiest. These are the Anglo-American United States, and the kingdom of Great Britain and Ireland. In the republic, this liberty is allowed by law, and exists in perfection: in the kingdom it is proscribed by law, but continues to have place, in considerable degree, in spite of law.
Take away this check, there remains no other but the exercise of this same liberty by speeches in public meetings: and in that shape, besides that it is not applicable with nearly equal advantage, it is much more dangerous.
II. Next comes needlessness. To the prevention of misgovernment, the other remedies that government itself affords, are adequate.
The rulers in chief, whoever they are, have nothing so much at heart as the happiness of all over whom they rule: and that wisdom by which they are informed of the means most conducive to that end, is in them perfect; or, if not absolutely free from all imperfection, that endowment is in their situation much more so, than in that of the subject-many.
This being assumed,—in this union of all the elements of official aptitude—(appropriate probity, appropriate intellectual aptitude, and appropriate active talent)—with uncontrouled power in the persons of the rulers in chief, the subject-many possess an adequate security against any want of correspondent aptitude in the persons of their several subordinates. In case of simple inaptitude, removal will follow: in the case of inaptitude, coupled with delinquency, prosecution, and thence punishment, will follow.
Answer: The rulers in chief, whoever they are, if they are men, have their own happiness more at heart than that of all over whom they rule put together: the very existence of man will in every situation be found to depend upon this general and habitual self-preference.
As to wisdom, it can never be so near to perfection without, as with these all-comprehensive means of information, which nothing but the liberty here in question can give.
Upon exertion depends the possession of all the several elements of official aptitude above mentioned, and in particular the acquirement of the appropriate information, as above. But the higher the situation, the less is the exertion which he who is in it is disposed to apply to the functions of it. For the higher the situation, the less he has to apprehend for himself in case of demonstrated inaptitude in any shape.
Without this liberty, the rulers in chief will not be sufficiently either disposed, or enabled to apply, so much as simple removal, much less punishment, for remedy against inaptitude on the part of their subordinates. Beholding in those subordinates, so many ever-obsequious instruments in their hands—instruments continually applicable to their own personal purposes—the rulers will naturally and generally feel more sympathy for them than for the people at large: they will not be disposed to remove or punish them, merely for acting against the people’s interest; much less for acting in favour of the separate and sinister interest of these same rulers: as where the rulers themselves engross or share the profit of the offence.
To the formal prosecution at the suit of rulers,—and, where allowed, at the suit of subjects,—the informal informations, which it is the property of this liberty to supply, constitute, in one case, an assisting support—on the other, a succedaneum and substitute. Destitute of this assistance and this substitute, prosecution, even when not refused, is at once insufficient and over expensive. So small as is the number of prosecutions, compared with that of delinquencies, the delay, vexation, and expense attendant on them, compose no inconsiderable evil. What, if such prosecutions were as numerous in proportion to delinquencies, as under the liberty in question these informations are, that are given by the exercise of it? Under the least bad systems of judicial procedure extant, the prosecutions teem with factitious delay, vexation, and expense, over and above what is natural and necessary. Attendant on informations, there is neither factitious expense, nor factitious delay: vexation, there is comparatively little—none but what is proportioned to delinquency, and stands in lieu of punishment.
For the establishment of the truth or falsity of the imputation—for the establishment of the guilt or innocence of the party suspected of delinquency—the utmost stock of relevant and applicable facts and arguments that can be secured by prosecution, is very imperfect without the addition of those which this liberty and nothing else is capable of supplying.
II. So much as to the liberty of the press. Now as to the liberty of public meetings.
Without much variation, the arguments that apply to the former of these two branches of personal liberty and constitutional security, apply to this. But of this branch the extinction is already known to have been taken for the object, as well as subject, of an already proposed law: and, ere this, the object may have been effected by an established law.
In support of this extinction, the English newspapers have brought to my view a system of argument, stated as having been employed by various public functionaries. To these, after holding up to view the proposed law in what seems to me its proper colours, I propose to give a distinct consideration in another letter.
From one who, in regard to the individual facts of the case, has no other information than what is above alluded to, any observations made in such circumstances are not altogether out of all danger of being regarded as ungrounded; and to such a degree, as to be destitute of all claim to notice. But—such is the nature of man when clothed with power—in that part of the field of government which is here in question, whatever mischief has not yet been actually done by him to-day, he is sure to be meditating to-day, and unless restrained by the fear of what the public may think and do, it may actually be done by him to-morrow. Of the documents which form the subject of the ensuing remarks, it is impossible for me to say to what extent the accounts that have reached me may not be incorrect. So far as regards individuals, these remarks must therefore from first to last be considered as no other than hypothetical, depending for their appositeness upon the correctness of the reports respectively given of these arguments. But if, considered as applied to the arguments themselves, the remarks should be found justly applicable, the fact, that on the particular occasion in question, the arguments were not actually employed by the persons to whom they stand ascribed, will not detract much from the value of any information which the remarks may be thought to afford. Ungrounded in the character of a censure, in that of a warning, the remark may not the less have issue.
1. In regard to liberty of writing and speech on political subjects, repealing what requires to be repealed, place matters exactly on the same footing as that in which they are in the Anglo-American United States. And, to narrow the inquiry, let the footing be that on which they are in the territory immediately under the government of Congress, and where the subject of discussion is the conduct of the members of the ruling body, so denominated, or any of the official persons subject to their controul.
2. In regard to assemblies in particular, insert a declaration, giving the people the assurance that, forasmuch as there exists not any law to the contrary, they remain at liberty, at all times, and in all places from which they are not excluded by special ownership, to meet, for the purpose of delivering their opinions, in the freest manner, on the conduct and character of their rulers;—at any rate, of all such of their rulers as are, or may be, the objects of their choice, in the character of representatives, as also of all such other persons as are subject to the controul of such their representatives. And let it not be forgotten, that all persons thus chosen are thereby not their masters but their servants. In regard to secresy, insert, moreover, a declaration that, for keeping their proceedings as secret as they please, they may take what precautions they please, so that no engagement, wearing the form of a religious oath, be employed: nor any scheme entered into, for the performance of any act importing bodily or other injury to any individual, or on any other account forbidden or made punishable by law, be in the number of their objects. And note that, in regard to secresy, on this footing stands, in England, the unreproached, and irreproachable society of Free Masons.
In the United states, whoever thought, either of instituting secret societies, or of being jealous of them if instituted? Of secresy under such a government, what could be the object? Secresy in subjects, supposes tyranny in rulers.
Under these circumstances, what fills me with apprehension is—the approaching nonentity of the Cortes. The only bridle to ministerial despotism taken out of its mouth, without a possibility of being replaced for eight months to come! Now, if they had but the possibility of existence, now then would be the time for meetings of the people for petitioning the Cortes not to desert its post.* Now would be the time for saying to them, “Do not, in deference to the rash and ill-judged—the suicide letter of the constitution, risk the destruction of the constitution itself, or at least of the most essential portion of what is good in it!” True it is, that in the Cortes I see an authority, under the eye of which the liberty of the press has, I much fear to find, been sadly weakened, and perhaps destroyed. True it is, that in the Cortes I see, at any rate, an authority by which the liberty of public discussion has without reserve been taken away. True. But in the Cortes I see an assembly in which, so long as it is sitting, it is at all times in the power of any one member to use his endeavours for the restoration of the banished liberties, and to spread over the whole kingdom the arguments on which these endeavours are grounded.
By this strange article of the constitutional code, the Cortes, the only assembly in which, should misrule reasume its recent enormity, the voice of complaint can be heard, is laid asleep, is reduced to a state of nonentity for eight months.
And, during these eight months, what are the hands in which all the powers of government are lodged? The self-same hands in which till t’other day they were employed—it is needless to say how. By article 171 (power the 5th,) to the king it belongs “to fill up all civil and military employments:” amongst others, therefore, the employments of the seven “Ministers of State and of Public Affairs;” those seven ministers, by whom taken collectively, during this long sleep, as well as after the death of the Cortes, the whole mass of the powers of government is exercised. These powers the king may at all times collectively and individually take, and at each moment lodge in any hands he pleases. To this choice I am unable to find any the smallest check.
I see, indeed, a council of state, which in art. 237, by a provision not very consistent in its terms with the terms of that same 171st article, shares with the king the power of conferring ecclesiastical benefices and offices of judicature: as if offices of judicature were not civil employments—as it this were not enough, supposing the unofficial advisers of the crown to be again what they were so lately, and suppose at the same time, that in the whole court and country, persons in so large a number as seven are not to be found suitable to the purpose of giving to the whole power of government an exercise similar to that which was so lately given to it—one single minister, unless prevented by some regulation, no tidings of which have reached me, may, under this same constitution, be made sufficient. For, by art. 224, “By a particular regulation approved by the Cortes will be pointed out,” it is said, “the business peculiarly appertaining to each minister.” But till such demarcation has been made by the Cortes, everything is left at large, and to any one or more of the seven, as much of the power of all seven may be given as those same irresponsible advisers shall advise: and amongst the rest, the filling up, and for aught appears, after having emptied them for the purpose, “all civil and military employments:” under civil, ecclesiastical, and judicial, being respectively included, or not included: let those who are sure, say which.
“What?”—says some one—“have you then really any such fear, as that of this eight months’ sleep of the Cortes, the restoration of the recent habits of government will be the consequence?” No; I have not: for, how small soever may be the regard of the men in question for the security of the subject-many, their regard for their own security will be not the less; and I see not by what means any tolerably effective provision can be made for it, unless it be such by which, along with the ruling few, the subject-many will be secured, at least against any condition equally disastrous with that from which they have so lately emerged.
But, knowing little more of them than that they are men, what I am afraid of is this—namely, that in the situations in question, men will do what all men would be disposed to do in their places:—that they will embrace every opportunity for sacrificing the interest of the whole community to their own particular interests: that in particular, they will give the utmost magnitude possible to the mass of useless and needless offices, and to the emolument of those same offices, as well as to that of useful and needful ones: that they will dispose of offices for their own profit, either in a direct way by selling them, or,—in a way not less effectual by being indirect,—by giving them to persons in dependencies, or otherwise in private connexion with them, be the persons ever so apt or ever so inapt, for the functions of those same offices: and that, to the same end, they will give and secure to every other branch of expenditure every practicable increase, and to retrenchment every practicable diminution: that, with or without just cause, should there be any persons to whom it has happened to incur their displeasure, they will let slip no opportunities of allaying it by vengeance: and that, in a word, they will do as those do and have been used to do, under whom it has hitherto been my good hap to live unhanged, unsabred, unimprisoned, unbanished, and unruined.
This is not all. For giving permanency to a system of this sort, these instruments of monarchy would scarcely feel sufficient confidence in their own force: they would look out for coadjutors in the aristocracy; and thus, in the union of the monarchical with the aristocratical interest, you would see and feel, as here, an alliance defensive and offensive against the interest of the people—of the ruling one and the sub-ruling few, against the subject-many. They would call to their aid the landed proprietors of the country as such, and in particular the proprietors of the vast overgrown properties. In these they will find not only natural allies, but sure, and perpetual, and steady, and in every respect matchless ones. The possessor of an office, howsoever abundant in power, may be removed out of it at any time, and without so much as the imputation of injustice. Not so the great landholder—the proprietor of a tenth part, an eighth part, or a fourth part of the land of a whole province; and with it of a proportionable mass of political influence. But neither time nor space will here permit me to enter into any detail of the mischiefs with which such a confederacy is pregnant: except to conclude with saying—that the last, though not the least of my fears is—that, to give completeness to the system, the measures which, at the instance as it seems of these same ministers, have, I fear, already been taken by the majority of the Cortes for the extinction of all power of controul in the hands of the people, may, by means of such an alliance, be carried into full execution, and perfected and perpetuated.
Another set of fears, though not quite so intense as the foregoing, remains still behind—that they will give to those natural enemies of the people the fullest security that can be given to them against any idea so intolerable, as that their as yet unhorn descendants will find themselves unloaded with wealth, no prospect of which can ever have entered into their minds: that they will secure them against so cruel an apprehension as that all their children but one should not always be impoverished for the benefit of that one; and against the still more intolerable apprehension, lest their creditors should receive any part of the amount of their just debts: that, in atonement for the injury thus done to their thus impoverished children, they will secure to them, at the expense of the still more impoverished lower orders, a stock of sinecures of all classes: matter of emolument granted at the expense of the State, on pretence of rendering to man some service never rendered, or on pretence of rendering some pretended service to that Being to whom all service is unprofitable: and, to crown all, that having with such efficient anxiety provided for keeping them stocked as richly as may be with the benefits of political society, they will join in securing to them an exemption as extensive as may be from its burthens.*
No: nothing can be more inconceivable to me than the grounds, if they were good and avowable ones, on which, for two-thirds of every year, the power in which you, the people, see your only hope, should be reduced to perfect nullity;† and of all times, this too at the very commencement of the system on which all hope of salvation rested: as if, for eight months in the year, all sheep dogs were to be kept locked up, and the sheep committed during that time to the guardianship of the wolves. At no time, surely, nor in any nation, can there have been, or can there be, so much work to be done: and at this time it is, that, of the quantity that might have been employed in work, two-thirds are taken off; and taken off with every mark of anxiety,—consecrated to idleness.
With us in England, where everything, how ill soever, is so fully and permanently, and for so vast a length of time has been, established, the whole year may, if so the king pleases, be employed in doing (with the exception of giving him a new wife) whatever else he pleases.
Strange as it is, the article by which, at the time when the demand for experience, and for the talents formed by it, stands at its highest pitch, the next succeeding Cortes is so anxiously deprived of all the experience and talent acquired in the present, is not quite so strange. In a jealousy entertained of the probity of these first objects of the people’s choice, I can conceive a possible, howsoever indefensible cause of it. But while the jealousy, of which the persons chosen by the people are the objects, is so broad awake,—that all jealousy of those against whose power these same objects of the people’s choice are to afford the sole security, should be so perfectly asleep,—this is the thing that astonishes me: that such jealousy and such confidence should at the same time have found place in the same bosoms.
No: it is not so much of a monarch that I am afraid, for he is mutable: it is of the aristocracy that I am so much afraid; for that is immutable. It is itself immutable: and no less immutably adverse is its interest to the interest of the people.
Postscript. This moment, comes information of the decision of the Cortes, in relation to the Persas; and, of the whole number of 69, not more than one is to be so much as prosecuted. At their own homes they are to continue; and there, should his Majesty have any fresh occasion for their services, there he knows where he may be sure to find them. Nothing can be more merciful—nothing more convenient. Now, if from this mercy no mischief to the people shall ensue, whosoever else may be dissatisfied with it, I shall not be so. It is not for any pleasure I can take in the contemplation of what he suffers, that I would punish the most mischievous of criminals. But a question I cannot help putting to myself is,—If, under the Constitution, those who seek the forcible destruction of it have nothing to fear, while he who seeks the preservation of it by means not acceptable to those by whom this impunity has been granted has much to fear, what chance has it for continuance?
Any leading member, in gratitude for all this mercy,—has it happened to him to have received, or to be about to receive, a requital in any shape from any of those who have been preserved by it? If any such gratitude has been manifested, so much the better, and it cannot be too extensively known; for, the more expensive the gratitude, and the more extensive the knowledge of it, the more extensive will be the assurance, that should any such attempt to destroy the constitution be repeated, and success fail of crowning the attempt, the impunity will not be entire.
On the Liberty of Public Discussion in Free Meetings.
18th Oct. 1820.
I continue.—My former letter was principally allotted to the liberty of the press. Intimation was there given, that the arguments pleading in favour of that branch of personal liberty and constitutional security apply with little variation to that which forms exclusively the subject of the present letter. The proposed law, as it stood in four articles, together with the speeches by which I found it supported, will constitute the text of this discourse.
I commence with the proposed law itself: the text of it, in the state in which, on the 21st of September 1820, according to the English translation, it came out of the hands of Mr. Goreli—(Traveller, Oct. 6, 1820.) “The law regarding public societies,” I see it termed. The law for the prevention of popular assemblies, it might have been termed; for, of this law, what is the object? what the declaredly intended effect? In respect of this security against misrule, to place the people of Spain exactly upon the same footing as the people of Morocco. Yes; exactly upon the same footing as the people of Morocco: this you will see. Four, and no more, is the number of its articles: these are quite sufficient. Give but to language the extent it is susceptible of, the fewer the words, the greater the effect. Think of this, ye who, to make display of your humanity, complain of the multitude, nothing but the multitude, of penal laws. Draco made but one: Death is for him who breaks any one of my laws.
“Art. 1. All Spaniards will have the right of speaking on political affairs by conforming to the disposition of the law.” Good: and so have all the Moroccans. What is it, this same disposition of the law? Wait to the next article but one, and you will see it.
“Art. 2. Every assembly not authorized by law will immediately cease.” If so, and without revival, then will, ere long, the constitution itself cease, or at least everything that is good in it.
“Art. 3. Meetings shall not take place but in virtue of the permission of the local authority, who will take the necessary measures to guarantee the public tranquillity.” The person or persons in whose hands the local authority is: suppose, then, his own conduct among the proposed subjects of complaint—his own conduct, or that of any person or persons to whose power or influence he stands subjected, or that of any person or persons who stand subject to his power or influence, unless they happen to have incurred his displeasure: this indispensable permission when and how often will it be given to it?
In the whole kingdom, or in this or that part of it, suppose these functionaries, all or any of them, in a league to betray their trust, and abolish or otherwise render of no effect all that is good in the constitution, how many of these assemblies will respectively be permitted to be held?
Take the necessary measures? O yes, that he will. Of those who would have attended the meeting, he will exclude one part—he will keep the rest under a guard. By this means, those, and those only, will be there, who are of the same way of thinking, or at least of speaking. “Measures to guarantee the public tranquillity.” O yes: doubt not but that by measures such as these, the public tranquillity will be preserved. As to permission,—in every case in which there is neither need of, nor use in, any such public meeting, permission will be ready for it: in every case in which there is need of it, or use in it, punishment will be ready for it.
“Art. 4. Nevertheless these societies, authorized by the competent authority, will not be regarded as corporations.”
So then, according to the honourable gentleman, if men, in any number, however great or ever small, are but suffered to meet together, whether at stated times or by accident, for the purpose of conversing, and conversing accordingly, on the state of the nation, there needs no more to constitute them a corporation: to constitute them a corporation—or at least to give to the assembly an appearance so near to that of a corporation, as to produce a danger of its being taken for such, and that with mischievous effect.
Lawyer or non-lawyer, in the mind of the honourable gentleman, can it really have been a subject of belief, that, by any such means, in the sense put upon the word corporation by the law of his country—by the Rome-bred law, or by any other sort of law—a corporation would or could thus be constituted, or that to any other reflecting mind it could be taken to be so? I have tried hard, but I have not as yet been able to find in any such supposition the faintest colour of probability. But if not,—I grieve to think of it—what is the consequence? That, on the occasion of the insinuation thus conveyed for the purpose of gaining his point, and deluding into an acquiescence with a liberticide law his colleagues of the Cortes and the Spanish people their constituents, he had recourse to misrepresentation, wilful and studied misrepresentation. To the people, to induce them to sit still, and, without previous remonstrance or subsequent complaint, see themselves deprived of a real and indispensable security, he held up to view a danger purely imaginary, and known by himself to be so: at the same time, to effect this liberticide purpose, he scrupled not to use his endeavours to cause those whom he was depriving of their liberty to be regarded as a set of conspirators and usurpers, conspiring to assume and exercise an illegal power, for the purpose of employing it in acts of hostility against the government.
Oh but, as often as it pleases the local authority that any such assemblies shall be held, and to give permission accordingly, held they will be, or at least may be. Oh yes, that they may; held in Spain they may be, and so they may be in Morocco.
The Emperor of Morocco,—is he in want of a prime minister? Let Mr. Goreli tender his services. But, perhaps, he may be provided nearer home.
But the law is Mr. Goreli’s, and he has given us his reasons for it. Let us see them. [From the Traveller, 21st September 1820: Madrid, Sept. 6.—The Cortes—Sittings of the 4th.]
“M. Goreli allowed that the members of the societies and their objects deserved respect and confidence;—2. That they took every precaution to admit none but persons of upright intentions and devoted to the constitution;—3. But that they were exposed to be taken by surprise by some, who, under the appearance of patriotism, might lead them to impolitic conduct.”
Such are the premises: and his conclusion is what has just been seen.
And is it come to this? And did such logic then come from Spaniards?—and without fear of universal indignation, could it thus be presented to Spaniards? And so it is from these premises, that this same practical conclusion has been derived! These societies are to be annihilated! All societies of this description—all that now exist, and all that would otherwise have existed, plunged together, and forever, into one and the same bottomless pit—consigned for ever to annihilation!—People of Spain! this same logic—would you see it in its true character? This you may do, and without much difficulty. Apply it wherever else it is equally applicable, and observe the effect of it. Apply it then to the Ministry,—you annihilate the Ministry: apply it to the Cortes,—you annihilate the Cortes: apply it to the Monarchy,—you annihilate the Monarchy. Yes, the Monarchy; for was there not a monarch once, who was not merely “exposed to be taken,” but actually “taken by surprise?” But why thus spend time in taking men one by one? Apply it to human kind, you annihilate human kind. Would you give a top to the climax—apply this same logic to the maker of it: apply it to Mr. Goreli, you annihilate Mr. Goreli. For is not even Mr. Goreli exposed at least to be “taken by surprise,” and “led into impolitie conduct?” Ah! why was it not applied to him—this logic of his—and applied with somewhat more than logical effect, before he introduced this law? Was it that even he was taken by surprise, when he was “led into the conduct” manifested by the framing and proposing of such a law? Ah no! I see but too much of reflection in it—but too little of surprise.
“Deserving of respect and confidence,”—themselves as well as “their objects:”—“careful to admit none but persons of upright intentions, and devoted to the constitution:”—“exposed,” but only exposed “to be led to impolitic conduct:”—led by some, but only by some, “among them,” and by them no otherwise than by being “taken by surprise:”—such, according to Mr. Goreli, is the general character—not only of the societies, but in each society, that of the members! Such their character, and, notwithstanding their being all this—if not for their being all this—for this it is that they are annihilated! What had their characters been the very opposite of all this?—what worse could, even in that case, have been done to them? And because in—it is not said how small—a number, they are exposed to be taken by surprise, their general excellence being at the same time thus admitted and proclaimed—it is for this, that not only all that exist are at once to be consigned to nihility, but all that otherwise would have existed.
Well, then, the “impolitic conduct” they are exposed to be led into, together with whatever mischief might have been the result of it—what would have been the cause of it? “Surprise,” answers Mr. Goreli himself—their “being taken by surprise.” Well; and suppose them not so taken, what would have been the mischief? I answer—there would not have been any: even Mr. Goreli does not say there would. Against surprise, then, is there no other remedy—no remedy less drastic—than annihilation? Under the name of warning, does not the nature of the case present a somewhat better known and better approved, as well as milder remedy? Thinking as Mr. Goreli declares he thinks of them, some men in his place would have preferred giving warning. Mr. Goreli applies annihilation.
On this occasion, as on all similar ones, behold the same inexorable passion, and the same course taken by it: the elevation gained, at the first opportunity the ladder by which it was gained, is kicked down. On this same occasion, this is more explicitly confessed by other speakers. Excellent things those same societies, while occupied in laying the foundation of our power: deserving of annihilation, the moment it is perceived that, from the same useful and so lately necessary instrument, that same power is exposed to feel a check.
Take warning, Neapolitans! take warning, Portuguese! for warning you shall have; and for your beacon, you shall have the Spanish Cortes, with Mr. Goreli speaking the sense of it. Take warning—I know not whether to say, Spaniards!—for, alas! for you, I fear, it is too late: unless, by favour of Spanish dispatch, some of the elements of the La Isla army should still continue undissolved.
Still the same division—the same most simple and commodious division—of human kind into two classes: the good, those by whom our purposes are served; the bad, those by whom they are thwarted: and, no sooner is it seen or thought, that the good creatures, who till this moment served our purposes, thwart them, than their essence is changed, and they are become bad ones. Yes: this is the division you may see made by legitimacy all the world over. Above, all excellence; beneath, all depravity. Such is the arrangement—the systematical arrangement—of which Despotism is the Linnæus. In the English statute book, not a page in which it is not assumed and acted upon. Most excellent Majesty! O yes! most excellent: but Most Excellent in what? And from Majesty down to simple Knighthood runs the scale of excellence.
Spaniards! would you wish to see the difference between a despotic government and an undespotic one? You shall see it in few words. It was not made for this purpose; it was not made for a purpose; it was made for all purposes. Be this as it may, if it be admitted (the account thus given of this difference,) the sort of government which, by this law of his, Mr. Goreli has been endeavouring to establish—and, I much fear, has ere now established—is a despotic one. Yes: notwithstanding everything that is to be found in your constitutional code, a despotic one. The letter of that code may be left to you, and still the government may be a despotic government.
Would it be agreeable to you, moreover, to have at hand a test, by which the partisan of a despotic government and the partisan of an undespotic government, or (to use a more common phrase) a lover and a hater of liberty may be distinguished? Such a test you shall see: and if you approve of it, occasions will not be wanting for making application of it.
Time presses, space is wanting. The form I give it in must be as compressed as possible. It will not be a substitute to thinking, but an excitement. Be indulgent: be expectant: I cannot, in so narrow a space, do the argument anything like full justice.
Spaniards! behold, then, the distinction between a government that is despotic, and one that is not so. In an undespotic government, some eventual faculty of effectual resistance, and consequent change in government, is purposely left, or rather given, to the people.
Not inconsistent with government—on the contrary, indispensable to good government, is the existence of this faculty. Not inconsistent: for so experience, as you will see, proves.
Next to nothing is the danger from the existence, in comparison with that from the non-existence of this faculty. Everywhere, and at all times, on the part of the subject-many, howsoever treated, exists the disposition to obsequiousness. Birth, observation of the direction taken by rewards and punishments, by praise and dispraise, of the habit and language of all around;—by the concurrence of all these causes is the disposition produced, and kept up.
To alter or weaken this disposition, in such sort as to produce revolution in government, or considerable mischief to person or property of individuals, nothing ever has sufficed, or ever can suffice, short of the extremity of misrule.
Upon this principle alone could, or can, the English revolution be justified.
Upon this principle alone can the like change in Spain be justified.
No such past change can be justified, but by a principle by which the justification of all future change in like circumstances is already made.
Of a government that is not despotic, it is therefore the essential character even to cherish the disposition to eventual resistance. On some other occasions you shall see—such of you as will honour my pages with a glance—how effectually and pointedly that indispensable element of security has been cherished; cherished by the only government that stands upon a rock—the government of the Anglo-American United States. Meantime see to this purpose—such, if any of you, as have in hand the means—the liberticide Act of Congress, approved July 14, 1798; not forgetting the marginal note indicating the glorious expiration of it.
Instruments necessary to the existence of such a disposition, in a state adequate to the production of the effect, are instruction, excitation, correspondence. To the understanding applies instruction; to the will, excitation: both are necessary to appropriate action and correspondent effect; instruction and excitation, in the case of each individual taken separately; correspondence, for the sake of concert amongst the number of individuals requisite and sufficient for the production of the ultimate effect. Co-extensive with the instruction and excitation must be the correspondence: and therefore, as far as depends upon the government, under the government, if not a despotic one, will be the facility allowed and afforded to correspondence. When, to a national purpose, exertions on a national scale are necessary, exertions made without concert (need it be said) are made without effect.
By instruction, excitation, and faculty of correspondence—by these three instruments in conjunction, and not by any one or two of them alone—can the national mind be kept in a state of appropriate preparation—a state of preparation for eventual resistance. It is by the conjunct application of all these instruments, that minds are put and kept in a proper state of discipline, as bodies are by the military exercise.
From this state of full and constant preparation, result two perfectly distinct, though so intimately connected uses:—1. Effecting a change in government, if ever, and when necessary; 2. In the meantime, preventing, or at least retarding, the necessity, by the constant application of a check to misrule as applied to individual cases—to misrule in all its several shapes.
Necessary to instruction—to excitation—in a word, to a state of preparation directed to this purpose,—is (who does not see it?) the perfectly unrestrained communication of ideas on every subject within the field of government; the communication, by vehicles of all sorts—by signs of all sorts; signs to the ear—signs to the eye—by spoken language—by written, including printed language—by the liberty of the tangue, by the liberty of the writing-desk, by the liberty of the post-office—by the liberty of the press.
The characteristic, then, of an undespotic government—in a word, of every government that has any tenable claim to the appellation of a good government—is, the allowing, and giving facility to this communication; and this not only for instruction, but for excitation—not only for instruction and excitation, but also for correspondence; and this, again, for the purpose of affording and keeping on foot every facility for eventual resistance—for resistance to government, and thence, should necessity require, for a change in government.
In all this there is nothing new: nothing that is new, either in theory or in practice. Look around you, my friends, you will see it in theory, and at the same time in correspondent practice. In the Anglo-American United States, everybody sees it is in practice. In that declaration of independence, which stands at the head of their constitutional code, anybody may see it plainly and openly avowed. Not that I wish to be understood as holding up as a pattern, the logic of that document. But, at any rate, there is thus much in it of good politics. After speaking of certain “ends,”—meaning, beyond dispute, though not very appositely expressing, the greatest happiness of the greatest number, (a phrase for which, upwards of fifty years ago, I became indebted to a pamphlet of Dr. Priestley’s,) it proceeds to say—“Whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government.” Thus it is, that in express terms, and with the most direct and deliberative intention,—thus it is, that with discernment as well as magnanimity till then unexampled—that government—(a government under which, during the forty years that it has been in existence, there has been more felicity—more undisturbed tranquillity, than during the same period under any other,) that government, let it never be out of your minds, has, with its eyes open, and with its own hands, laid the foundation of eventual resistance to itself. Even in England, even in the records of the English parliament, may be seen something of a show of it. At the time of the revolution, those who bore a part in that change saw their convenience in holding a sort of language from which the same conclusion was drawn; namely, that a state of things had at that time already taken place, and was therefore capable of taking place,—was then in contemplation, and therefore might and ought to be, upon occasion, taken again into contemplation—in which it might be right that the people should take the government into their own hands: an operation which, of course, could not be performed without resistance to the government then in existence. The logic, indeed, was in this case still worse than in the American case. For a falsehood was asserted: and that a notorious one; namely, that the king had entered into a contract with the people: whereas, to the perfect knowledge of all who said he had, he had never done any such thing: that having entered into such contract, he had broken it: and that by so doing he had abdicated the government: while, as everybody knows, he was clinging to it with all his might. Thus (as may be seen in their journals) said the House of Commons: and thus, after kicking against the lie in vain, said at length the House of Lords. The lie was the work of lawyers; for without a lie in his mouth, an English lawyer knows not how to open it. But though being, as it was, an untruth, the antecedent in this argument was unable to give any just support to its consequent, or to anything else; the consequent was in itself good: and in that we have all that is to the present purpose.
So much for the difference, or distinguishing criterion, between a free government (or, to speak more clearly though less familiarly,) a non-despotic government, and a despotic one.
Now for the promised test, by which, when applied to a man, it may be seen whether the government he means to give his support to is of the one sort or of the other. Put to him this question.—Will you, sir, or will you not, concur in putting matters on such a footing, in respect to the liberty of the press, and the liberty of public discussion, that, at the hands of the persons exercising the powers of government, a man shall have no more to fear from speaking and writing against them, than from speaking and writing for them? If his answer be yes, the government he declares in favour of, is an undespotic one; if his answer be no, the government he declares in favour of, is a despotic one: if yes, his principles as to this matter, are those of the Anglo-American United States, and, as you will see, if you have not seen already, those of the Spanish constitutional code: if no, they are those of—, and of the Emperor of Morocco.
Various are the modifications of which meetings for the purpose of political discussion are susceptible. All of them are more or less contributory to both purposes at once—to instruction and to excitation; but some of them are more particularly suitable to the one purpose, others to the other: some have more, some less, of the colour of dangerousness upon the face of them. If, at the expense of general utility, particular anxieties were to be conceded to—if a door were, in that case, found necessary to be left open to compromise, it night be worth while to bring to view the circumstances by which these several modes of communication stand distinguished: it might be worth while to propose this or that succedaneum, by which the anxieties might be calmed, without quite so costly a sacrifice, as the sacrifice of liberty on the altar of despotism.
But Mr. Goreli is inexorable: the principle he has displayed excludes all compromise Whenever he sees either excitation or instruction, there he sees an enemy. Meetings? Oh yes—in any number, and everywhere. Meetings? Oh yes: but on what terms? on condition of their being everywhere under the yoke of a licence—on condition, that is to say, that, on all occasions, the instruction and the excitation shall be all on one side; all on one side, and that, of course, the side of the ruling few—the side which calls for passive obedience and non-resistance—the side, in a word, that stands in constant opposition to the only side, on which it is in the nature of the case that they should be of any use—to the only purpose for which they are in demand.
Not but that in all this Mr. Goreli is perfectly consistent; nothing can be more so. The government he has in view—the government, the establishment of which is the object of these his endeavours, is of the despotic species. Spaniards! see whether I do him wrong;—see whether the object of these his endeavours be not to exclude all possibility of change, unless it be such as the people, seeing it to be for the interest of their rulers, and against theirs, would, if left at liberty, manifest their disapprobation of;—see whether it be not to exclude from misrule, how consummate soever, all means, and thereby all possibility of correction—from misery, how excruciating soever, all possibility of relief.
Not yet has he proposed the abolition of election meetings in their earliest stage—of those meetings of the subject-many in all their number, and, to outward appearance, in all their force. No: nor is any such change needful for the accomplishment of his purposes. Destitute of that necessary mental discipline which has just been brought to view—strangers to all instruction, to all excitation, to all political correspondence—meeting, the electors will meet and act like puppets, obsequious to this or that official showman’s hand. At the time of giving their votes, the code itself inhibits all discussion, and with it all instruction and excitation: and now it is that Mr. Goreli, coming upon them with this law of his, deprives men of all other opportunities of learning the mental exercise—that instrument of independence by which alone the man is distinguished from the puppet.
On the Liberty of Public Discussion in Free Meetings—Continuation from Letter II.
I continue.—The subject is of too great importance to be dismissed, while the mass of documents with which it has furnished me, remains in any part unexamined. In my last you had some remarks of mine on the proposed law itself—“the law regarding public societies,” as proposed to the Cortes on the 21st September by Mr. Goreli, in the name of the commission charged with that subject; those remarks being followed by some others of mine on a speech of that same honourable gentleman, which, though delivered so long before as the 4th of that same month, exhibits the considerations which, in the character of reasons, had been employed by him to pave the way for the reception of this same proposed law.
On that same occason, namely, that of September 4th, I see exhibited, for that same purpose, reasons from two other public functionaries; viz. one of the king’s seven ministers—the minister of the colonies (so I see him styled) and Count Toreno, then and now a member of the Cortes, and since then president.
I begin with the Minister of the Colonies. By this official name I find him designated, and not by his proper name. This mode of designation is a real relief to me. It would have been no small one, to have found Mr. Goreli thus anonymous. This relief is, with great prudence, provided for debaters by the tactics of the English parliament. The sound of a man’s name, from the mouth of an antagonist, whose utmost powers are at that moment put to the stretch in the endeavour to sink his reputation, is a cause of irritation against which neither habit nor philosophy, nor both together, can sufficiently arm his patience.
Next in order to the proposer of the proposed law, to which, at the end of seventeen days, this debate gave rise—next in order in the debate to Mr. Goreli, but much more abundant (as will be seen) in length and detail, comes the so happily unnamed minister of the colonies.
1. He too is “anxious”—manifestly not less anxious than Mr. Goreli—“that every Spaniard should enjoy full liberty.” Yes: but what sort of full liberty? That sort, of course, which is, or is to be, “founded on the law.” On the law? Good. But on what law? On that which we have seen already: on the law, which, in embryo, that representative of the people, and this minister of the king, bore each of them, in his breast: the law which I had to lay before you in my last: the very proposed law by which, as you have seen, that same full liberty is proposed to be so fully destroyed.
2. Notwithstanding such anxiety, the anxious gentleman “could not admit the existence of political associations without dependence on the government, and without responsibility of their members.” Could not admit of this? No: that I will be bound for him he could not: just as little as I myself could, were I in his place. But what is this to the purpose? As much as if he said he could not admit of rape or robbery. But his inability to admit of rape and robbery could not have afforded a passport to an insinuation which, if produced in the shape of a direct assertion, would have been seen to have been as completely groundless as it was false; it would not have afforded a passport to the assertion: no, nor so much as a cover to the falsity of it. What! by meeting and talking together—let the subject of their talk be what it will, in a room or out of a room, in any number, small or great—do a company of unarmed men become, or it is possible they should fancy themselves to be, independentof the government under which they thus meet? independent of that same government, and exempt from being “responsible” to it? Any one of the societies in question, on any charge of specific delinquency,—would an officer of justice have found any greater difficulty in obtaining entrance into it, than if the subject of their conversation had been confined to plays or bull feasts?
3. The candour of this faithful servant of his Majesty is truly admirable: not less so than that of the representative of the people. “I know well,” he added, says the report, “I know well that these associations owe their origin to a laudable object.”
4. “And that to them,” continues the speech, “we owe the acquisition of the good we enjoy.” Is it in the power of words to wind up candour to a higher pitch? But, my friends, you have seen already what is at the bottom of it.
Such being the grounds made for gratitude, see, in the next place, the grounds made for annihilation, in proof of gratitude.
5. “But the means,” it continues, “which have been employed to acquire it” (to acquire that same good,) “far from being conducive to its preservation, would be the great obstacle to its consolidation.” Well: here is assertion; and assertion directly to the point: this is the very thing which, to afford a justifying reason for the proposed law, required to be proved. But the proof, where is it? Go on a little further, and you will see—if not a proof, that which it has been gentlemen’s endeavour to cause you to accept for proof. As to probable mischief, in any determinate shape, not any the slightest attempt is made to prove it. Instead of listening to a proof, what he depends upon your doing is, the taking the thing for granted, without so much as an attempt at proof. Why no such attempt? For a perfectly plain reason: because success was, in every eye, impossible.
But if no such proof was brought by him (and you will see whether there was any,) mind the logic of this his argument. By these societies it is that all the good that has been done, has been done. Till this moment, by these same societies, nothing but good has been done. Now for the conclusion—left as it is to be collected from the proposed law: therefore, says this conclusion, by these same societies, if suffered to subsist, nothing will be done but what is bad,—absolutely bad, or at least, when weighed against the good, preponderately bad, in future.
But he does not end here. For now comes a tissue of irrelevancies, in which, in virtue of the confusion in which it promised to involve men’s minds, he evidently puts his trust. Mark well the suspicions which by means of it he seeks to infuse into them: mark whether for any of these suspicions he has been able to make so much as the smallest ground.
6. “What comparison is there,” continues the speech—“what comparison is there between individual liberty, and that which may be arrogated to themselves by permanent juntas, with peculiar constitutions, secret sittings, dignities, offices, and funds?”
“What comparison?” What means he by comparison? What has it to do with the question? Who ever made any such comparison? If there were any meaning to the word, these are the questions, by the answers to which it might be brought to light. But meaning it has none. If individual liberty must be spoken of, that which the societies in question had been doing with it was, the applying it to that constitutional purpose, of the goodness of which his testimony has been so explicit.
Does he think, by this question—does he think to make you believe, that by preventing you from meeting in societies with these good things in them, no restraint upon your individual liberty will be imposed? If not, then by what else can any restraint be imposed upon it? Mistake me not, my friends, so far as to suppose me passing condemnation on a law, as some have done, on no other ground than that of its being a restraint upon individual liberty: it is only by being such, that laws can be laws.
Putting aside these inanities, in the production of which there is no saying in what degree the reporter and the translator may not have had their share—putting aside these debatable points, let us take up the argument:—it is this.
“The societies in question have in themselves permanent juntas, with peculiar constitutions, secret sittings, dignities, offices, and funds.” Here we have the antecedent. Therefore, says he, they would, if suffered to exist, “be the great obstacle to the consolidation . . . of the good we enjoy.” Here we have the consequent.
Here, then, we have so many elements, of an unnamed something, by the instrumentality of which, the mischief to which he thus makes allusion would, but for his remedy (he would have you to think) be produced. To this unnamed and undescribed something, by which such prodigious effects would have been produced, I will, under correction, for the purpose of considering whether it be in the nature of the case that it should be composed of such elements, any or all of them, give the name of power: political power, if of itself the name of power be not sufficiently explicit.
I beg his pardon. Looking out for substantial political meaning, I have overlooked that which is presented by grammatical rules. True it is, that for its indisputable proper grammatical antecedent, the relative pronoun-adjective “that” has the noun-substantive “liberty,” as modified by its noun-adjective “individual.” But it was by my too good opinion of his logic, that my attention was then called off from his grammar. “What comparison is there between individual liberty?” says he—(he means individual liberty at large)—“what comparison between it, and that which may be arrogated,” &c.?—What comparison? My answer is, that comparison which there is between a genus, and a species of that same genus: if by comparison he means relation—as I suppose he does, if he means anything—taking this for his meaning, his argument stands thus:—“In your opinion,” says he, speaking to the Cortes—“in your opinion, all restraints upon individual liberty are bad things.” And so they are in mine. But it does not follow, that a restraint upon this individual liberty which I am restraining, is a bad thing: for a restraint upon individual liberty in this shape, is not a restraint upon individual liberty in any shape.
But, putting aside nonsense, and determined to have sense to argue with if possible, I put aside individual liberty, and return to the word power: political power.
As to this matter,—power, and that pure from all responsibility, and from all dependence on the government,—this is what, according to him, these societies were thus arrogating to themselves.
The essence of this sophistry consists in a name—in the name given by him to the one first mentioned by him of these his pretended elements of “independent” and “irresponsible” power, arrogated to themselves, if you will believe him, by these societies. Permanent Juntas is the name he, on this occasion, gives to them. For what purpose? I answer (as you, many of you, cannot but have answered already,) for the purpose of assuming as proved, and causing you to regard as already proved, the very thing which he was professing to prove: and thus causing you to regard as proved, that which neither by him had been, nor by anybody else could be, proved. In your constitutional language, Junta is a name given to societies by which power is really exercised: Junta is a name which I have observed given to societies, by which, for a time, even the supreme power in the state has been exercised. In the ambiguity of this appellative—in the misrepresentation conveyed by the use here made of it—consists the sophism, in which the main strength of his argument lies. This irrelevant sense set aside—what, in its original sense, means “Junta?” A set of men who, for any purpose whatsoever, are joined together. This is its generical and widest sense. But, by omission or abridgment, it has come to be used moreover in a limited sense—in that limited sense in which it designates a set of men joined together for the purpose of exercising power. In this one word, then, behold here the whole strength of his argument—of this argument which he thus insinuated—and for the absurdity of which he seeks a cover in the use he makes of this ambiguous word. The persons in question are joined together; therefore, they are joined together for the exercise of power, and that power, as he had before insinuated, “independent” and “irresponsible.”
Still there remains the word permanent. If, by constituting themselves juntas, the societies in question did not constitute themselves “juntas arrogating to themselves power independent of government, and irresponsible,” let us see whether they did so by constituting themselves permanent juntas. A junta which, after meeting once, has not met a second time, has not been a permanent junta. But a junta which, after meeting once, has met a second time, has been a permanent junta. This indeed has been but a small degree of permanence: it has been even the very smallest degree; but still it has been permanence: and whether, by the smallest degree of permanence having place in a junta which, at its first meeting, arrogated to itself no power, any power is arrogated, any one may be left to judge. And so, if instead of two meetings, it has had two thousand.
As to “peculiar constitution, funds, and offices,” to say of these societies that they had these things, is nothing more than to say that they were societies.
2. “Peculiar Constitution.”—If the society have an object, be that object ever so perfectly innoxious, some mark or other must the society have to express the object, and to distinguish the members of the society from the same number of men taken at random as they pass along the street; as also from other societies, whatever these may be. Having this, every society must, on pain of not being a society, have a peculiar constitution. Here, then, the right honourable gentleman sees that element of independent power which he calls peculiar constitution.
3. “Funds.”—If, in the society, a memorandum is to be made of anything that has passed,—it follows, that for making the memorandum there must be pen, ink, and paper, or something equivalent. But neither pen, nor ink, nor paper, are to be had for nothing. Here, then, the right honourable gentleman sees the element of independent power called funds.
4. Offices:—collector’s, treasurer’s, receiver’s, secretary’s, president’s.—If to obtain the purchase-money for the pen, ink, and paper, a quarto from each member be requisite, and the quartos are not all paid at the same moment, here must be a Collector: if there be any person by whom the money, when collected, is kept till it is employed in the purchase, here we have a Treasurer: if there be any person, who receives it, or any part of it, on its way from the collector to the treasurer, here we have a Receiver: if there be any person whose more particular business it is to make use of the pen, and ink, and paper, for taking the memorandums, or for any other purpose, here we have a Secretary: if there be any person whose more particular business it is to prevent disorder in the conversation, here we have a President: if neither these nor any other denominations are employed, the functions are not the less exercised. Here, and in most formidable abundance, the right honourable gentleman sees the element of independent power called Offices.
5. Dignities.—What the dignities may have been, which the right honourable minister had in view, I cannot pretend to say. In the four preceding articles, I have indicated so many ingredients necessary to the composition of every society for public discussion, be the topic what it may, on pain of its not being a society. Of dignities, this is more than I can pretend to say, without the help of a distinction. If, and in so far as the office, be it what it may, is regarded as a mark of illustration, causing the owner of it, as such, to be regarded with more respect than if he were not so,—on this supposition, indeed, so many offices, so many dignities.
All this while, true it is, for aught I can pretend to say, in this or that society there may have been this or that individual, bearing or not bearing an office—there may have been one, or even more, by whom, at the desire of the rest, this or that mark of illustration has been possessed. But with regard to the present purpose, by any such mark of illustration how is the case varied? If by the possession of it, so it were that a man possessed anything that could be called power, the persons over whom, and in relation to whom, it was exercised, would be the members of the society: but even over them, how is it, that by the bare possession of this dignity, whatever it be, anything that can be called power is or can be exercised? It cannot, then, give power even when applied to them: how much further, then, must it not be from giving any such thing, when applied to anybody else? Here, however, may be seen all that the right honourable gentleman has for his element of independent power called dignities.
6. Secret Sittings.—As little do I know—and I care almost as little as I know—whether, in the instance of any one of the societies by which such alarms were produced in so many right honourable breasts, there were any sittings that could with propriety be called secret. Here, however, a distinction requires to be made: not a little depends on the circumstance of time—relative time. Secresy imports fear: it is even conclusive evidence of it. Where the secresy has for its accompaniment a design, whether good or bad, it at any rate imports fear of miscarriage, supposing that known which is endeavoured to be kept secret. Now then, if it was only while the society in question was engaged in the pursuit of the object which he had in view when he was honouring it with the epithet of “laudable,” it was while they were engaged in the endeavour to free him as well as themselves from the yoke of that oppressive power, to which that milder power, in the exercise of which he is bearing a part, and which he is making this use of, has succeeded. On this supposition, the secresy had for its cause fear of oppression, fear of being oppressed by the hands which were at the same time inspiring him with the same fear. On the other hand, if the time was no other than that during which the power was wielded by him and those with whom he acts, the fear had for its object oppression by the hand of himself and colleagues. If, then, during this latter period, any such secresy in the sitting of any society for political discussion had place, the secresy having necessarily fear for its cause—this being supposed, if I were to learn, that of that fear he had been the object, and his conduct the source,—if I were to learn this,—judging him from all I know of him, which is this speech, and the proposed law in the support of which it was employed,—my wonder, I must confess, would not be great. On the one supposition, he inflicts punishment for benefits received by him: on the other supposition, he first makes the crime, and then punishes it.
Be this as it may—supposing him really alarmed, and the secresy, and nothing but the secresy, the object of his alarm, the way to quiet it was, to put an end to the secresy. But his object was, not the putting an end to the secret sittings of the societies, but the putting an end to the societies themselves: and this his proposed law but too sufficiently proves. His object was the putting an end to all societies in which any such “individual liberty” should be exercised, as that of representing his measures and designs in any such light as that in which they have presented themselves to the eyes of an impartial observer, viewing them at this distance. For, of everything of that sort, the tendency, how faint soever—the tendency, if it has any, is to oppose an “obstacle” to what he calls “the consolidation of the good” of which he and his colleagues are in the enjoyment—the good of which, by the means that you have here a sample of, they are thus labouring for the increase.
“All these criticisms,” some will be forward enough to say—“all these criticisms are minute and trifling: criticisms on logic, criticisms on grammar: mere criticisms upon words.” Yes: considered merely in themselves, and without regard to the result indicated, they are as trifling as you please. But if the result be regarded, few things can be further from being trifling. For the result indicated,—is it not that the functionaries in question had for their object the substitution of a despotic government to the indespotic government, of which your Constitutional Code affords so well-grounded a promise?—that they were not themselves in an error, but occupied in the endeavours to deceive their colleagues, and to deceive you?—and that in this design it was, that they wove and employed this web of sophistry, which, otherwise than by such verbal criticisms, the nature of the case did not allow to be unravelled?
Gratified, my friends—most sincerely gratified should I be, to find these my remarks as groundless as, in my present view of it, that conduct is to which you have been seeing them thus sincerely and anxiously, howsoever mistakenly, applying themselves.
My friends, I have not yet quite done with this proposed law and its supporters. The messenger presses. But even already I can venture to propose two subjects for your consideration:—Whether, under a government professing not to be despotic, a law more mischievous in its complexion as well as tendency was ever proposed: and whether any law could be proposed on grounds more consummately frivolous.
Looking for the authority of example to supply the deficiency of reason, the right honourable gentleman gives you an account of England. A more complete misrepresentation has not been often given. This I hope to show you in my next.
On the Liberty of Public Discussion in Free Meetings—Continuation of the subject from Letter III.
I continue, and (I hope) conclude.—In my last on this subject, I left unexamined so much of the speech of the Minister of the Colonies as regards England: this together with the speech that bears the respected name of the Conde de Toreno:—
“In representative governments,” adds the Minister of the Colonies—“England, for instance, there are also societies; but they meet for one determined object, and when that is finished, they are dissolved. But permanent societies are unknown, unless authorized by the law, and when they have this character, the government will be the first to support them.”
1. “In representative governments,” says he—“England for instance.” But why take England for his instance? Spaniards, I will tell you. Because, if it be the object of a minister to put or keep in the condition of a despotic one, the government of which he forms a part, England, with its government, is the country which, at this moment, will in a more particular manner suit his purpose. Oh yes: it will give him a model, and as complete and serviceable a one as if he himself had the making of it.
England a representative government indeed! Oh yes, that it is. But a representive of what? of the people? No: but of the Monarch and of the House of Lords. For in this government, divided, as the supreme power of it is, into three branches—the concurrence of which is necessary indeed, but at the same time sufficient for every considerable permanent measure,—the Monarch alone has one branch; the Lords’ House another; the Commons’ House the third. This being the state of things, if by the representative government he means a government containing in it a branch in which the people are represented,—in the English government there is no such branch. For in that last-mentioned House, little less than a majority of those who have a right to sit in it, are seated either by the Monarch or by some member of the House of Lords:—one Lord, for example, seats nine Members; and an overwhelming majority is composed of men seated by individuals whose particular interest, completely identified as it is with the joint sinister interest of the Monarch and the Lords, is decidedly and inexorably hostile to the interest of the great body of the people. Thus it is as to those who have a right to sit: but as to those who on the several occasions actually sit, the disproportion is always much greater: for, even of the few who might be honest if they were not idle, the greater part are, on each occasion, kept from being honest by their idleness. Nor, when they do sit, do they sit, any of them, but in the atmosphere of a corruptive influence, by which their particular interest is identified with the particular and sinister interest of the Monarch and the Lords. Yes, and that still more effectually than if they had merely been seated by them: all, with scarce one exception, being in the condition of men with bribes in their hands, given them by the Monarch, and capable of being taken back by him at pleasure, or else upon the look-out for such bribes. This state of things is just as notorious as the existence of the two Houses themselves: nor does any one, even of those most interested in denying it, so much as attempt to deny it. For what purpose should be? The books in which the facts are manifested—manifested in names, numbers, and proportions—being in everybody’s hands. In favour of it, all that is ever said is contained in this:—“So it has been and is; therefore so it ought to be.”
All this while, what I cannot but confess, is—that in law fiction—that is, in liar’s language—the government is a government representative of the people: and English lawyer’s fiction, to which the character of lying belongs, or it does not belong to anything, is the acknowledged foundation of everything with us that is called law. In the language of lies, the government, then, does continue a body representative of the people: and, as the state of the case is scarce ever brought to view but by the misrepresentation made of it by this lie, and the vast majority of those who have faculty and leisure to make the distinction on such a subject between lies and truths, are paid for giving currency to this and other such lies, and for pretending to take them for truths (for scarce ever does a judge pronounce a decision, and never does a man go to church, without some notorious lie in his mouth;)—thus it is that the right honourable minister of ultramaria had really a colourable pretence for giving, on this occasion, the government of England as an instance of a representative government. If (as is the case, if I misrecollect not, in the government of the Netherlands, in regard to all the representatives)—if (I say) in England, the Monarch, openly, and in a direct form, did nominate five-sixths of the House of Commons,—even thus, if he left the remaining sixth to be elected by the people, so it were upon your principles of universality, secresy of suffrage, practical equality and bienniality, this would be no small improvement, and I would gladly vote for it. For, in this case, the habit of knowingly uttering and knowingly receiving lies as truths, would thus far be narrowed, and dishonest men could no longer join in assuring honest ones that the government is a government representative of the people, as, in so shameless a manner, they do now. Even if the Monarch did by the members of the House of Commons as he does by the Bishops—even if, after having appointed a junta for the purpose, he sent them a licence to elect whom they pleased, and along with it the name of a man, whom, on pain that should follow, they were to elect: this, even this, would be an improvement; for nowhere exists there any such impudence as to pretend to believe, that in this case it is by any such junta that the priest is put into a palace and made a lord of; that it is by the members of any such junta that he was thus made; or, in short, by anybody but the Monarch by whom they were made. The government would thus be more universally seen than at present to be what it is—a government uniformly determined by a particular and thence sinister interest,—an interest opposite to the interest of the people and to which the interest of the people is thus necessarily, and on every occasion, sacrificed.
“In representative government” indeed. No, my friends: if it had been a government really representative that it had been his interest to direct you to an instance of, he know well enough where to find one. He would have directed you to those rulers, by whose long-suffering and regard for the interests of their fellow-citizens (not to speak of your’s) you have for so many years been saved from the additional miseries of an additional war: to a government, in which the interests of the ruling few and the subject-many are so nearly identified, that (were it not for slave-holding—the monster they are actually employed in combating, and the deceit put upon the people by their lawyers; with the English common-law and its lying fictions in their mouths,) misrule in any shape would be a thing utterly unexperienced: and, in what state the societies in question are under that government, I have already had occasion to inform or remind you in the first of these my letters.
But since the English is the government, for the practice of which he has actually referred you as affording an authority for his support in the course taken by him in the proposing of such a law,—follow him, my friends, to England, and see how far his account of the state of the law in that country quadrates with the truth.
“In England,” says he, “there are also societies; but they meet for one determined object, and when that is finished, they are dissolved.” My friends, look twice at this assertion, and then see whether it even stands in need of any external evidence to convince you of the incorrectness of it. In England, there exist not any societies—any societies whatever, existing for any purpose whatsoever—political or non-political (for thus all-comprehensive and unrestricted is the assertion,) that have any more than that degree of permanence, if permanence it can be called. Consider whether, in the nature of things, this can be true.
But lest that should not be sufficient—lest the assertion should not yet be broad enough, he goes on and says—“But permanent societies are unknown, unless authorized by the law.” Unknown, then, in England, if he is to be believed—not only unexisting but unknown—are all permanent societies: those included that have any beyond the smallest possible degree of permanence.
Permanent societies unknown in England! Even had he so far narrowed his assertion as to make it applicable to the purpose—even had he said “permanent societies occupied in political discussions, are unknown in England”—as well might he have said—sunshine is unknown in England.
To render intelligible the relation between the truth of the case, and the right honourable minister’s account of it, I must beg your notice, my friends, for a distinction, which he knew better (it should seem) than to bring to view. This is—the distinction between the state of the government in question antecedently to the enactment of certain recent laws, and the state into which it has been put by means of them. Applied to the recent state, you will find his account possessing in part a colour of truth: applied to the anterior state, you will find it wholly destitute of all colour of truth.
In doing this, I must begin with giving a determinate import to a phrase of his:—“authorized by law.” Speaking of England, “Permanent societies,” he says, “are unknown unless authorized by law.” Now, by authorized by law, what he means is—existing no otherwise than under a licence which the law necessitates; that is, to use the words of his proposed law, “under the permission of the local authority:” for as to the being authorized by law—meaning real, and not imaginary ex post facto law,—everything is left authorized by law, until it stands prohibited. This being the case, to constitute what he means by “authorized by the law,” requires in the first place a prohibition—a general prohibition, and upon the back of that a special permission, exempting out of that general prohibition the special objects to which the permission applies. This explained, England being the country in question, how stands the fact? Before the year 1817, the things “unknown” were—not the unlicensed permanent societies, which he says were unknown, but the licensed ones, which his endeavour is—to make you regard as being coeval with the constitution: for till March 31st in that year, licences for meeting to talk politics in public were no more known in England than licences for meeting together to dine: and whether by ceasing to be permitted, societies such as those in question can in three and a half years cease to be “known”—of this, my friends, you will judge.
Thus much as to the being “unknown:” Now as to the being in existence. Even as to this point, the fact does not bear him out in his assertion, regard being had to the breadth he has given to it. Permanent societies being here in question, and not ephemeral ones (they forming the subject of another mode of regulation) the prohibition of permanent societies without licence is confined* to “places used for the purpose of delivering lectures or of holding debates.” Thus stands English law: while, according to his account of it, the prohibition of meeting without licence extends to all “permanent societies” without exception.
Bad as it is—bad enough for the establishment of finished despotism—the English liberticide innovation, thus introduced into the English government by the professed abhorrers of all innovation, is not yet bad enough for his purpose: to raise it up to his purpose, you see how he gives to it an extent that does not belong to it.
In the breasts of the organizers of this English despotism, there was a something that put a restraint upon it as to time. In the first seditious meetings act, as above—the earliest commencement of the act being the 31st of March 1817—the duration of it was not longer than till the 24th of July 1818; not so much as 16 months: in the second seditious meetings act (the other being expired,) the earliest commencement being the 24th of December 1819, the duration of it was not made longer than five years from that time; five years, with no other addition than that of an indeterminate fraction, extending however no longer than to the “end of the then next session of parliament.”
This for the present satisfied English despotism: but this minister of your king, nothing less than an eternity of such despotism would satisfy him, or at least his supporter in the Cortes, Mr. Goreli.
“And when they have this character,” concludes this speech, “the government will be the first to support them;” namely, permanent societies, without exception: this character; namely, the character of being, in the language of English law, licensed—in the language of the proposed Spanish law, in possession of “a permission from the local authority.”
My friends, in this clause, short as it is, I see three erroneous notions presented for acceptance.
One is, that societies of the sort in question are capable of standing in need of support, in some shape or other, from government.
Another is, that government has it in its power to render service in some shape or other to the public, by means of support given in some shape or other to these societies.
A third is, that, in some shape or other, support, meaning special support, may be capable of being given by government to the sort of societies in question, without being pernicious.
1. First, as to the need of support. Antecedently to any licence, they have for their support, the natural, original, unrestricted individual liberty. The members, as such, have no need of any other: as men they have indeed need of, but of course have, that protection, whatever it be, which the law affords to all other men. This is support, but not special support. Invade this liberty—narrow it by a prohibition—you thus indeed create in them the need of the permission, whatever it be, with which you will vouchsafe to narrow the prohibition. But when you have done this for them, you have done all they have need of, unless it be the easing them of the prohibition, of which, by the supposition, you will not ease them: do this, you have thus far replaced them in that original situation, in which, as above, no support was either needful to them, or of use.
2. Secondly, as to government’s having it in its power to render any service to the public at large, by means of special support, given in any shape, to these societies.
3. Thirdly, as to the disservice, which government would do to the public at large, by means of, and in proportion to, support given in any shape, to these societies.
For these two points, one consideration may suffice. By support, in any shape, no service, I say, could government render to the public at large. Of support given to them in any shape, the effects, if any, with reference to the public at large, could not, I say, fail of being pernicious: for, according to the value of the support, the effect would be to diminish whatever service they might be capable of rendering to the public, if they were let alone.
Such is my notion of the matter: the following are the grounds of it:—
All the service capable of being rendered to the public by these instruments, is, as above observed, comprised in the two words instruction and excitation;—the excitation being no otherwise serviceable than as the instruction is so too.
But, of the matter of instruction, what is it, the dissemination of which, by any such means, is, or can be, of a nature serviceable to the public? This, too, has been already mentioned: indication of what is amiss, either in the texture of the government, or in the conduct of those to whom the exercise of it powers belongs. This, and nothing else.
“What! nothing else?” says somebody—“by the indication of what is right in both places, is no service rendered to the public?” I answer, No: none that can be rendered by these societies, over and above what would be sufficiently rendered without them. Whatsoever there is right in either place, there are always men in abundance to hold up to view. Mankind must change its nature, ere anything that is said in commendation either of government or of rulers, can fail to be generally acceptable to the aggregate composed of those same rulers. But, without need of being expressly offered, a mass of reward, composed of all the good things that are at the disposal of government, is, by every man, seen stationed over his head, ready to drop, in appropriate and adequate morsels, into the mouth of every man who will be at the pains of earning it, by signalizing himself in the defence of everything or anything, and every person or any person he sees established. Of these ready defenders, there never can be a deficiency, supposing no such societies in existence: of these same defenders, as little can there be a deficiency, supposing any number of these societies in existence. Thus it is, that even without the advantage given them by the restraint imposed upon their adversaries by the licence, and the fear of forfeiting it, things and persons that are established are, by the mere circumstance of being established, put into possession of an undue advantage: an advantage which the nature of their situation secures to them, how opposite soever their character may be to what it should be. As to everything that happens to be wrong in those same high places, for the indication of it there is no such reward; while for defence of it, there is, as we have seen, in prospect and expectancy at least, an infinity of reward. Thus stands the matter, even without the licence. As if that were not enough, comes the licence, and, in endeavour at least, not only leaves the evidence on one side of the cause without motives for bringing it forward, but, by an artificial door thus shut against it, superadds the forcible exclusion of it. Such is the system of procedure, according to which, at the bar of the public, its functionaries, while their adversaries are under the yoke of a licence, are tried.
“Government,” concludes the speech, “will be the first to support them”—these same societies. Under this phrase lurks yet another fallacy as yet unexposed; namely, that even when the societies are thus licensed, thus corrupted, thus depraved, thus filled with the defenders, to the exclusion of the indicators, of abuse, government will be at the pains of taking any such active measures for their support. Of all such active measures, it has just been seen that they are altogether needless. There, upon a shelf just over their heads, in goodly order—there, in men’s imagination, stand the rewards;—there, without any need of special invitation, hands enough will be ready enough to grasp them.
All this while, that which, in speaking of the corruptive influence of licences in this case, is here said, should, it must be confessed, be understood as applying more perfectly to what it is in the conception of those by whom the yoke is imposed, than of the actual effect on those on whom it is imposed. What is scarcely possible is, that by the repressive influence of the licence, every manifestation of disapprobation, towards the conduct of those by whom the yoke is imposed, should, in every shape, be prevented. By degrees, a sort of language will come into use; a language that will be sufficiently understood for any such purpose as that of giving expression to complaint and indignation, yet will not be sufficiently understood for any such purpose as that of affording a tenable ground for the infliction of punishment.
Yes: in every apartment defiled by this liberticide yoke, the instrument of thraldom, the parchment or paper on which it is written, should be hung up on high—hung up in some spot universally conspicuous, with an appropriate accompaniment for pointing men’s attention to it. By a single glance directed to this instrument of tyranny, eulogy might thus be converted into satire,—satire which, be it what it may, can never be too severe.
AN ESSAY ON POLITICAL TACTICS,
ESSAY ON POLITICAL TACTICS.*
General view of the subject.
The word tactics, derived from the Greek, and rendered familiar by its application to one branch of the military art, signifies, in general, the art of setting in order. It may serve to designate the art of conducting the operations of a political body, as well as the art of directing the evolutions of an army.
Order supposes an end. The tactics of political assemblies form the science, therefore, which teaches how to guide them to the end of their institution, by means of the order to be observed in their proceedings.
In this branch of government, as in many others, the end is, so to speak, of a negative character. The object is to avoid the inconveniences, to prevent the difficulties, which must result from a large assembly of men being called to deliberate in common. The art of the legislator is limited to the prevention of everything which might prevent the development of their liberty and their intelligence.
The good or evil which an assembly may do depends upon two general causes:—The most palpable and the most powerful is its composition; the other is its method of acting. The latter of these two causes alone belongs to our subject. The composition of the assembly—the number and the quality of its members—the mode of its election—its relation to the citizens or to the government;—these things all belong to its political constitution.
Upon this great object, I shall confine myself to observing, that the composition of a legislative assembly will be the better in proportion with the greater number of the points of its contact with the nation; that is to say, in proportion as its interest is similar to that of the community.†
In a treatise on tactics, an assembly is supposed to be formed; and the subject under consideration is only the manner in which its operations ought to be conducted.
But there are points, with respect to which it may be a question whether they belong to constitutional law, or to tactics: for example, whether all the members should have the same rights, or whether these rights should be divided among them; so that some should have that of proposing—others, that of deciding upon a proposition already made; some, that of deliberating without voting—others, that of voting without deliberating; whether their deliberations ought to be public; whether absence ought to be permitted—and in case of absence, whether the rights of an individual ought to be transmissible to another; whether the assembly ought always to remain entire, or whether it ought to be obliged or authorized to subdivide itself.
I shall consider these questions as part of my subject, because it appears to me that their examination is intimately connected with that of the best rules to be followed in deliberation;—it not being possible to treat well of the latter, without referring to the others.
Ends that ought to be kept in view in a code of regulations relative to this head.
The tactics of deliberative assemblies, as well as every other branch of the science of government, ought to have reference to the greatest happiness of society: this is the general end. But its particular object is to obviate the inconveniences to which a political assembly is exposed in the exercise of its functions. Each rule of this tactics can therefore have no justifying reason, except in the prevention of an evil. It is therefore with a distinct knowledge of these evils that we should proceed in search of remedies.
These inconveniences may be arranged under the ten following heads:—*
2. Useless decision.
5. Surprise or precipitation.
6. Fluctuations in measures.
9. Decisions, vicious on account of form.
10. Decisions, vicious in respect of their foundation.
We shall develope these different heads in a few words:—
1. Inaction.—This supposes that there are points which demand a decision, and which do not receive it, because the assembly is unemployed. The want of activity may arise from many causes; for example, if there be not sufficient motives to overcome natural indolence—if there be no pre-established arrangement for beginning business—if the assembly can only act upon propositions presented to it by the executive power. It may also remain inactive, as was often the case with the ancient States-General of France, because there are preliminaries upon which it is not agreed, questions of etiquette or precedence, disputes concerning priority in the objects to be discussed, &c.
2. Useless decision.—This is an evil, not only on account of the loss of time, but also because every useless decision, by augmenting the mass of the laws, renders the whole more obscure, and more difficult to be retained and comprehended.
3. Indecision.† —Is the measure proposed a bad one? Indecision is not only an evil from the time lost, but it allows a state of dread to subsist in the public mind—the dread lest this measure should at last be adopted.
Is the measure proposed a good one? The evil which it would have caused to cease is prolonged, and the enjoyment of the good it would produce is retarded, so long as the indecision subsists.
4. Delays.—This head may sometimes be confounded with the preceding, but at other times it differs from it: there may be occasion of complaining of indecision when there is no delay; as if, after a single sitting, nothing is done. There may be ground for complaining of delay in cases in which a decision has been formed. In matters of legislation, indecision corresponds to denial of justice, in affairs of justice. Superfluous delays in the deliberations, correspond with useless delays in procedure.
Under the head of delays may be ranked all vague and useless procedures—preliminaries which do not tend to a decision—questions badly propounded, or presented in a bad order—personal quarrels—witty speeches, and amusements suited to the amphitheatre or the playhouse.
5. Surprises or precipitations.—Surprises consist in precipitating a decision, either by taking advantage of the absence of many of the members, or by not allowing to the assembly either the time or the means of enlightening itself. The evil of precipitation lies in the danger lest it should be a cover for a surprise, or should give a suspicious character to a decision otherwise salutary.
6. Fluctuation in measures.—This inconvenience might be referred to the head of delays and lost time; but the evil which results is much greater. Fluctuations tend to diminish the confidence in the wisdom of the assembly, and in the duration of the measures it adopts.
7. Quarrels.—The time lost in these is the least evil. Animosities and personalities in political assemblies produce dispositions most opposite to the search after truth; and have even too much tendency to the formation of those violent parties which beget civil wars.
The histories of Rome and Poland furnish numerous examples. But war is an assemblage of the most destructive acts; and the evil of civil war is never less than double that of a foreign war.
But before reaching this fatal term, the auimosities of political assemblies substitute objects altogether foreign from those which ought to occupy them. A thousand incidents which daily arise, lead them to neglect what ought to be attended to. All who take any share in the assembly are in a state of suffering and agitation. An excessive distrust deceives more than an extreme credulity: the most certain result is loss of honour—disgrace for one of the parties engaged in the quarrel, and often for both.
8. Falsehoods.—I place under this general head, all acts opposed to the most perfect truth in the procedures of a political assembly. Honesty ought to be its animating principle. This maxim will not be contested even by those who are least observant of it: but those who are most enlightened upon the public interest will the most strongly feel its justice and importance.
9. Decisions, vicious on account of form.—In French practice, the resolutions of the chamber are reduced into form after the sitting of the assembly. Hence the resolutions, as entered upon the journals, may err in form though not in substance; that is, they may not entirely or not clearly express the intention of the legislature. They err by excess, when they contain anything superfluous; they err by defect, when they do not express all that is necessary; they are obscure, when they present a confused mixture of ideas; they are ambiguous, when they offer two or more meanings, in such sort that different individuals may find in them grounds for opposing decisions.
10. Decisions, vicious in their foundation.—Decisions opposed to what ought to be, in order to promote the welfare of the society.
All the inconveniences before enumerated, resolve themselves into this by lines more or less direct.
When an assembly forms an improper or hurtful decision, it may be supposed that this decision incorrectly represents its wishes. If the assembly be composed as it ought to be, its wish will be conformed to the decision of public utility; and when it wanders from this, it will be from one or other of the following causes:—
1. Absence.—The general wish of the assembly is the wish of the majority of the total number of its members. But the greater the number of the members who have not been present at its formation, the more doubtful is it whether the wish which is announced as general be really so.
2. Want of freedom.—If any restraint have been exercised over the votes, they may not be conformable to the internal wishes of those who have given them.
3. Seduction.—If attractive means have been employed to act upon the wills of the members, it may be that the wish announced may not be conformable to their conscientious wish.
4. Error.—If they have not possessed the means of informing themselves—if false statements have been presented to them—their understandings may be deceived, and the wish which has been expressed, may not be that which they would have formed had they been better informed.
Such, then, are the inconveniences to which a political assembly may be exposed from the commencement to the termination of its labours; and its system of tactics will the more nearly approach perfection, the more completely it tends to prevent them, or to minimize or reduce them to their lowest term.
Every article of its rules ought therefore to have for its object the obviating either one or more of these inconveniences. But beside the particular advantage which ought to result from each rule taken separately, a good system of tactics will present a general advantage, which depends upon it as a whole. The more nearly it approaches perfection, the more completely will it facilitate to all the co-operators the exercise of their intelligence and the enjoyment of their liberty.
It is by this means that they will accomplish all that is in their power: instead of embarrassing each other by their number, they will yield mutual assistance; they will be able to act without confusion; and they will advance with a regular progression towards a determinate object.
Every cause of disorder is a source of profit to undue influence, and prepares, in the long run, for the approach of tyranny or anarchy. Are its forms vicious? The assembly is cramped in its action, always either too slow or too rapid; lingering among preliminaries, precipitate in reaching results. It will become necessary that one portion of its members submit to exist in a state of nullity, and renounce the independence of their opinions. From that time, strictly speaking, it is no longer a political body;—all its deliberations will be prepared in secret by a small number of individuals, who will become so much the more dangerous, because acting in the name of the assembly they will have no responsibility to fear.
Of Political Bodies in general.
The figurative expression of a body-politic has produced a great number of false and extravagant ideas. An analogy, founded solely on this metaphor, has furnished a foundation for pretended arguments, and poetry has invaded the dominion of reason.
An assembly or collection of individuals, inasmuch as they are found united together, in order to perform a common act, forms what may in certain respects be called a body.
But a body does not necessarily imply an assembly, since many individuals may declare their concurrence in the same act without having assembled; for example, by signing the same writing. Nothing is more common in England, than petitions to parliament, by hundreds and thousands of individuals, who have separately signed them, without having formed any assembly.
A certain body has a permanent existence; a certain other may have only an occasional, or, so to speak, an ephemeral existence (as an English jury.)
A certain body may have an unlimited extent as to number; a certain other may be be circumscribed within a fixed number.
A certain body may be privileged; a certain other, not: a privileged body is one of which the members, acting together under certain regulations, have received certain rights which the other citizens do not possess.
By bodies-politic, we generally understand privileged bodies, which have, under this name, an existence more or less permanent; they are often perpetual, and of a limited number.
A certain body is simple, another is compound. The British Parliament is a compound body, which is formed of two distinct assemblies, and of the supreme head of the State.
It may be easily conceived, that from the rest of a great body already formed, it is possible momentarily to detach a less numerous body: this is what is called a committee.
That which constitutes a political body, is the concurrence of many members in the same act. It is therefore clear, that the act of an assembly can only be a declarative act—an act announcing an opinion or a will.
Every act of an assembly must begin by being that of a single individual: but every declarative act, the expression of an opinion or of a will, beginning by being that of an individual, may finish by being that of a body. “This,” says Titius, “is what passes in my mind” “This is precisely what has passed in mine,” may Sempronious equally say.
It is, therefore, the power of agreeing in the same intellectual act which constitutes the principle of unity in a body.*
Of Permanent Bodies.
A permanent political body is a collection of individuals designed to produce a train of actions relative to the object of their institution. These actions will be those of all, if they are unanimous; but as it is impossible that there should exist a perfect and constant identity of sentiment in a great assembly of individuals, it is generally the practice to give the same force to the act of the majority as to that of the total number.
The impossibility of an universal and constant concurrence of sentiments in an assembly, is demonstrated by the experience of all times and places. A government, in which the legislative body should be subject to the law of unanimity, is an extravagance so palpable, that without the example of Poland it would scarcely have been possible to believe that it had ever entered into the human mind; whilst the example of Poland equally shows, that it such a law were made, it could not be observed, and that in the case in which it should be observed, it would only produce the most frightful anarchy.
When we consider the decision of a political body, what appears desirable in the first place, is to obtain the unanimous wish of its members: what is desirable in the second place, is the will which most nearly approaches it. This leads us to be contented with the will of the simple majority; since, how far soever this may be from the really universal will, it is nearer to it than the contrary will.
Are the numbers found equal on each side? there results from it no general act—one will destroying the other; no conclusion is arrived at—things will remain as they were, unless there be a necessity for giving a predominant voice to some person.
I have not as yet spoken of the case of absence, which continually changes the identity of the assembly. What shall be said of a will which is not declared? It does not belong either to one side or the other. It cannot be counted in the composition of the general will.
To annul the will of the assembly on account of absentees, would be to give to the wills of the absentees the same effect as if they had been declared for the party of the minority, which by the supposition has not been done. In the calculation of suffrages, the true value of an absent will, to speak mathematically, is one less one; that is, equal to zero. To give to it the value of plus one, or minus one, would be equally a false calculation.
But is it always necessary to have a decision? No; without doubt: there are many cases in which it would be too dangerous to permit a small portion of the assembly to act alone. It is better not to have any decision, than to have one which does not unite a certain proportion of the suffrages of the whole body. The number necessary for rendering any act of the assembly legal, should be fixed beforehand. This important question is only mentioned here—it will be discussed separately hereafter.
It is enough to remark here, that the ordinary formula—such has been the decision of the assembly—announces some very different facts. With an assembly of which the numerical composition continually varies, the only identity which exists is the legal effect of its decisions.
This is too metaphysical, it may be said: but it may be replied, it is necessary, since it is wished to explain the nature of a political body, without having recourse to figurative language. This expression has served as a pretext for allegories without end, which themselves have become the foundation of a multitude of puerile reasonings.
The imaginations of writers have been stretched to give to political bodies the properties of different kinds of bodies. Sometimes they are mechanical bodies; and then it is a question of levers and springs—of wheelwork—of shocks—of friction—of balancing—of preponderance.
Sometimes they are animated bodies;—and then they have borrowed all the language of physiology:—they speak of health—of sickness—of vigour—of imbecility—of corrupton—of dissolution—of sleep—of death and resurrection. I cannot tell how many political works would be annihilated, if this poetical jargon were abstracted from them, with which their authors have thought to create ideas, when they have only combined words.
It is true, that for purposes of abbreviation, it is lawful to borrow certain traits of figurative language, and that one is even obliged so to do; since intellectual ideas can only be expressed by sensible images. But in this case there are two precautions to be observed: the one, never to lose sight of simple and rigorous truth—that is to say, to be always ready mentally to translate the figurative into simple language; the other not to found any conclusion upon a figurative expression, so far as it has anything incorrect in it—that is to say, when it does not agree with the real facts.
Figurative language is very useful for facilitating conception, when it follows in the train of simple language: it is mischievous when it occupies its place. It accustoms us to reason upon the most false analogies, and gathers round the truth, a mist which the most enlightened minds are scarcely able to penetrate.
Division of the Legislative Body into two assemblies.
Is it desirable to have two assemblies, whose agreement should be rendered necessary to the authority of a law?
There are reasons on both sides: let us review them.
The division of the legislative body appears subject to the following inconveniences:—
1. It will often have the effect of giving to the minority the effect of the majority. The unanimity even of one of the two assemblies would be defeated by a majority of a single vote in the other assembly.
2. This arrangement is calculated to favour two different intentions, according to the quality of the members thus distributed. If it be founded upon orders—for example, peers and commoners—the result is to favour an undue preponderance—to set the interests of a particular class in opposition to the interests of the nation itself. If there are two rival assemblies without distinctions,—the result is to favour corruption; since if a majority can be secured in the one, it is enough: the other may be neglected.
3. Each assembly would be deprived of a part of the knowledge it would have possessed in a state of union. The same reasons are not presented in the two houses with the same force. The arguments which have decided the votes in the one may not be employed in the other. The proposer of the motion, who has made the subject a profound study, will not be present in the assembly in which objections are made against it. The cause is judged without hearing the principal party.*
4. This division necessarily produces useless delays. Two assemblies cannot be engaged at the same time upon the same matter—at least in all those cases in which there are original documents to be presented, or witnesses to be heard. Hence double labour—double delay.
Such assemblies cannot exist without opposite pretensions. There will arise questions of competency, which will lead to negotiations, and often to ruptures. These disputes concerning powers or prerogatives, beside their own inconveniences, beside the loss of time they occasion, will often furnish the means of striking both assemblies with immovability. This continually happened in the ancient States-General of France. The court encouraged disunion between the different orders; it combated the one by the other, and always found in this discord a plausible pretext for dismissing them.
5. The final result of this division is to produce a distribution of powers, which gives to one of the assemblies the initiative, and reduces the other to a simple negative—a natural and fruitful source of undue opposition, of quarrels, of inaction, and of perpetuity for abuse.
Everything tends to produce a repartition of this nature. Two independent assemblies cannot long exist without measuring their strength. Besides, those who have the principal conduct of affairs cannot act without laying down a plan, and without securing the means of its execution. They must choose one of the assemblies in order to begin their operations there; if one appear to have more influence than the other, they will carry all important propositions thither. This alone would be sufficient entirely to destroy the balance. Thus would be established, not by right, but in fact, a distinction between the two powers, the one being endowed with the initiative, and the other with a simple negative.
But in reference to personal interest—the only motive upon which we can constantly reckon—that body which is reduced to a single negative, will be opposed to everything. It can only show its power by rejecting: it appears as nothing when it accepts. To play the first part, is to govern;—to play the second, is to be governed.
Deprived of the motives of honour, this negative body will detach itself insensibly from the habits of business: business will be considered an ungrateful task. This body will reserve to itself the easiest part, that of opposing everything, except in those cases in which it fears to compromise itself with public opinion, and to lose its reputation by an odious resistance.
The following are the reasons which may be alleged in favour of this division:—*
[First advantage, Maturity of discussion.
This division is a certain method of preventing precipitation and surprise.
It is true, that in a single assembly, rules may be established which prescribe multiplied examinations, according to the importance of the business; and it is thus that we find in the House of Commons three readings, three discussions, at different intervals;—discussion in committee, article by article; report of the committee, examination of this report: petitions from all who are interested; appointment of a day for considering these petitions. It is by these general precautions, and others like them, that the danger of surprise is obviated, and maturity of deliberation secured.
This is true: but a single assembly may have the best rules, and disregard them when it pleases. Experience proves that it is easy to lay them aside; and urgency of circumstances always furnishes a ready pretext, and a popular pretext, for doing what the dominant party desires. If there are two assemblies, the forms will be observed; because if one violate them, it affords a legitimate reason to the other for rejection of everything presented to it after such suspicious innovation.
Besides, multiplied discussions in a single assembly do not present the same security as those which take place among different bodies. Diversity of interests, of views, of prejudices and habits, are absolutely necessary for the examination of objects under all their relations. Men who act long together contract the same connexions and modes of thinking, a spirit of routine and of party, which has its natural correction in another association.
A second assembly may therefore be considered as a tribunal of appeal from the judgment of the first.
Second advantage, Restriction of the power of a single assembly.
An assembly of deputies elected by the people, and removable, would from this cause be in a state of dependence, which would oblige them to consult the wishes of their constituents: but until a system of absolutely free election and removability is established, supposing such a system easy of establishment, and without inconvenience, it is no less true that a legislative assembly is only responsible to public opinion, from which a very imperfect security results against the abuse of power. If there be two assemblies differently constituted, the one naturally serves as a restraint to the other; the power of the demagogue will be weakened; the same individual will scarcely be able to exercise the same influence in both assemblies. There will arise an emulation of credit and talents. Even the jealousy of one assembly would become in this case a safeguard against the usurpations of the other, and the constitution would be preserved by passions which operate in different directions.
Third advantage, Separation of the nobility and the people. If there be in a state certain powerful and privileged bodies, such as the nobility and clergy, it is better to give to their deputies a separate assembly, than to confound them with those of the people in one house. Why? In the first place, lest if their number were not determined, they should obtain, from the influence of their rank and fortune, a considerable preponderance in the elections.
2dly, If they act separately, the whole responsibility of opinion will rest upon their own heads: they cannot be ignorant that the public will explain their conduct by reference to their personal interests, and that the refusal of a popular law will expose them to the severity of the judgment of the whole nation. If they are confounded with the deputies of the people in one assembly, they will possess means of influence which will act secretly, and their peculiar votes will be hidden in the general vote.
3dly, If in a great state you have only a single assembly, it will be too numerous to act well, or it will be necessary to give to the people only such a number of deputies as will be insufficient to establish public confidence.
Of the five objections which have been presented against the division of the legislative power, the fifth is doubtless the strongest. One of the two assemblies will obtain the preponderance—it will have the initiation. There remains nothing for the other, in the majority of cases, but the negative. It appears sufficiently absurd to create a body of senators, or of nobles solely for the purpose of opposing the wishes of the deputies of the people. But in this manner of representing the matter, it is considered only in respect of its abuse, and there is a double departure from truth, in trusting more to an assembly called representative than ought to be trusted, and fearing more from an assembly of nobles than ought to be feared.*
It cannot be denied, that at all times the division of the legislative body, whatever may be the composition of the two houses, presents great obstacles to the reform of abuses. Such a system is less proper for creating than preserving. This shows that it is suitable to an established constitution. The vessel of the state, secured by these two anchors, possesses a power of resistance against the tempests, which could not be obtained by any other means.
But if the division of the legislative bodies, be extended to three or four assemblies, it will be seen to give birth to a complication of irremediable inconveniences:—not only are the delays, the rivalries, the obstacles to every species of improvement, multiplied, but a means is also given to the executive of stopping everything, by a superior influence over a single assembly, or of annihilating the power of one of these assemblies, if the concurrence of two others decides everything. There results from such a division, an illegal and fraudulent association, in which two of the associates have only to agree together, in order to leave the third only the semblance of power. It is thus that the nobility and clergy in Denmark held the commons in a condition of nearly absolute nullity; and it was thus also, that by a union between the commons and the clergy against the nobility, the States were destroyed, and absolute power bestowed on the King. Sicily also had its parliament, in which the two superior orders having always agreed among themselves against the third estate, have reduced it to an existence purely nominal.
Returning to the question of two assemblies: if it were asked what good has resulted in England from the House of Lords, it would not be easy to cite examples of bad laws which it has prevented by its negative; it is possible, on the contrary, by citing many good ones which it had rejected, to conclude that it was more hurtful than useful. But this conclusion would not be just: for in examining the effects of an institution, we ought to take account of what it does, without being perceived, by the simple faculty of hindering. An individual is not tempted to ask for what he is certain beforehand will be refused. No one undertakes an enterprise which is certain not to succeed. A constitution becomes stable, because there is a power established for its protection. If there were no positive proof of good which the House of Lords has done, we may in part attribute to it the moderation with which the House of Commons has used its power, the respect which it shows for the limits of its slightly determined authority, and its constant subjection to the rules which it prescribes to itself.
I shall confine myself to a simple enumeration of several collateral advantages resulting from a superior chamber; such as the relief which it gives to the government in the eyes of the people; the greater force conferred on the laws, when the nobility have concurred in sanctioning them; the emulation which diversity of ranks spreads among the different classes of society; the advantage of presenting a fixed and precise career to ambition, in which a legitimate reward is worth more than the demagogue could promise himself from success; and the still greater advantage of retaining the nobility within certain limits, of rendering it hereditary only in the eldest son, and of connecting its interest with the general interest, by a continual transfusion of these noble families among the body of the nation. There is no ducal house in England which has not in its bosom a part more attached by interest to the liberty of the commons, than to the prerogatives of the peerage. This is the principle of stability. Each one in this beautiful political order, is more afraid of losing what he possesses, than desirous of what he has not.]
Before entering into the detail of the operations of the assembly, let us place at the head of its regulations the fittest law for securing the public confidence, and causing it constantly to advance towards the end of its institution.
This law is that of publicity. The discussion of this subject may be divided into six parts:—1. Reasons for publicity; 2. Examination of objections to publicity; 3. Exceptions to be made; 4. The points to which publicity should extend; 5. The means of publicity; 6. Observations on the practice established in England.
Reasons for Publicity.
1. To constrain the members of the assembly to perform their duty.
The greater the number of temptations to which the exercise of political power is exposed, the more necessary is it to give to those who possess it, the most powerful reasons for resisting them. But there is no reason more constant and more universal than the superintendence of the public. The public compose a tribunal, which is more powerful than all the other tribunals together. An individual may pretend to disregard its decrees—to represent them as formed of fluctuating and opposite opinions, which destroy one another; but every one feels, that though this tribunal may err, it is incorruptible; that it continually tends to become enlightened; that it unites all the wisdom and all the justice of the nation; that it always decides the destiny of public men; and that the punishments which it pronounces are inevitable. Those who complain of its judgments, only appeal to itself; and the man of virtue, in resisting the opinion of to-day—in rising above general clamour, counts and weighs in secret the suffrages of those who resemble himself.
If it were possible to abstract one’s self from this tribunal, who would wish so to do? It without doubt would be neither the good nor the wise man, since in the long run these have nothing to fear, but everything to hope. The enemies of publicity may be collected into three classes: the malefactor, who seeks to escape the notice of the judge; the tyrant, who seeks to stifle public opinion, whilst he fears to hear its voice; the timid or indolent man, who complains of the general incapacity in order to screen his own.
It may perhaps be said, that an assembly, especially if numerous, forms an internal public, which serves as a restraint upon itself. I reply, that an assembly, how numerous soever, will never be sufficiently large to supply the place of the true public. It will be most frequently divided into two parties, which will not possess, in reference one to another, the qualities necessary for properly exercising the function of judges. They will not be impartial. Whatever the conduct of an individual may be, he will almost always be secure of the suffrages of one party, in opposition to the other. The internal censure will not be sufficient to secure probity, without the assistance of external censure. The reproaches of friends will be little dreaded, and the individual will become insensible to those of his enemies. The spirit of party shut up within narrow limits, equally strips both praise and blame of its nature.
2. To secure the confidence of the people, and their assent to the measures of the legislature:—
Suspicion always attaches to mystery. It thinks it sees a crime where it beholds an affectation of secresy; and it is rarely deceived. For why should we hide ourselves if we do not dread being seen? In proportion as it is desirable for improbity to shroud itself in darkness, in the same proportion is it desirable for innocence to walk in open day, for fear of being mistaken for her adversary. So clear a truth presents itself at once to the minds of the people, and if good sense had not suggested it, malignity would have sufficed to promulgate it. The best project prepared in darkness, would excite more alarm than the worst, undertaken under the auspices of publicity.
But in an open and free policy, what confidence and security—I do not say for the people, but for the governors themselves! Let it be impossible that any thing should be done which is unknown to the nation—prove to it that you neither intend to deceive nor to surprise—you take away all the weapons of discontent. The public will repay with usury the confidence you repose in it. Calumny will lose its force; it collects its venom in the caverns of obscurity, but it is destroyed by the light of day.
That a secret policy saves itself from some inconveniences I will not deny; but I believe, that in the long run it creates more than it avoids; and that of two governments, one of which should be conducted secretly and the other openly, the latter would possess a strength, a hardihood, and a reputation which would render it superior to all the dissimulations of the other.
Consider, in particular, how much public deliberations respecting the laws, the measures, the taxes, the conduct of official persons, ought to operate upon the general spirit of a nation in favour of its government. Objections have been refuted,—false reports confounded; the necessity for the sacrifices required of the people have been clearly proved. Opposition, with all its efforts, far from having been injurious to authority, will have essentially assisted it. It is in this sense that it has been well said, that he who resists, strengthens: for the government is much more assured of the general success of a measure, and of the public approbation, after it has been discussed by two parties, whilst the whole nation has been spectators.
Among a people who have been long accustomed to public assemblies, the general feeling will be raised to a higher tone—sound opinions will be more common—hurtful prejudices, publicly combated, not by rhetoricians but by statesmen, will have less dominion. The multitude will be more secure from the tricks of demagogues, and the cheats of impostors; they will most highly esteem great talents, and the frivolities of wit will be reduced to their just value. A habit of reasoning and discussion will penetrate all classes of society. The passions, accustomed to a public struggle, will learn reciprocally to restrain themselves; they will lose that morbid sensibility, which among nations without liberty and without experience, renders them the sport of every alarm and every suspicion. Even in circumstances when discontent most strikingly exhibits itself, the signs of uneasiness will not be signs of revolt; the nation will rely upon those trustworthy individuals whom long use has taught them to know; and legal opposition to every unpopular measure, will prevent even the idea of illegal resistance. Even if the public wish be opposed by too powerful a party, it will know that the cause is not decided without appeal: hence persevering patience becomes one of the virtues of a free country.
The order which reigns in the discussion of a political assembly, will form by imitation the national spirit. This order will be reproduced in clubs and inferior assemblies, in which the people will be pleased to find the regularity of which they had formed the idea from the greater model. How often, in London, amid the effervescence of a tumult, have not well-known orators obtained the same attention as if they had been in parliament? The crowd has ranged itself around them, has listened in silence, and acted with a degree of moderation which could not be conceived possible even in despotic states, in which the populace, arrogant and timid alternately, is equally contemptible in its transports and its subjection. Still, however, the régime of publicity—very imperfect as yet, and newly tolerated,—without being established by law, has not had time to produce all the good effects to which it will give birth. Hence have arisen riots, for which there was no other cause than the precipitation with which the government acted, without taking the precaution to enlighten the people.*
3. To enable the governors to know the wishes of the governed.
In the same proportion as it is desirable for the governed to know the conduct of their governors, is it also important for the governors to know the real wishes of the governed. Under the guidance of publicity, nothing is more easy. The public is placed in a situation to form an enlightened opinion, and the course of that opinion is easily marked. Under the contrary régime, what is it possible to know with certainty? The public will always proceed, speaking and judging of everything; but it judges without information, and even upon false information: its opinion, not being founded upon facts, is altogether different from what it ought to be, from what it would be, if it were founded in truth. It ought not to be believed that government can dissipate at pleasure, those errors which it would have been easy to prevent. Late illumination does not always repair the evil of a previously erroneous impression. Have the people, from the little which has transpired respecting a project, conceived sinister apprehensions? We will suppose them unfounded; but this does not alter the case: they become agitated; they murmur; alarm is propagated; resistance is prepared. Has the government nothing to do but to speak—to make known the truth, in order to change the current of the public mind? No; without doubt: confidence is of slow growth. The odious imputations exist; the explanations which are given of necessity, are considered as the acknowledgements of weakness. Hence improvement itself produces a shock, when improperly introduced, and when it is opposed to the inclinations of the people. The history of the Emperor Joseph II. would furnish a multitude of examples.
To these major considerations may be joined others, which ought not to be neglected.
4. In an assembly elected by the people, and renewed from time to time, publicity is absolutely necessary to enable the electors to act from knowledge.
For what purpose renew the assembly, if the people are always obliged to choose from among men of whom they know nothing?
To conceal from the public the conduct of its representatives, is to add inconsistency to prevarication: it is to tell the constituents, “You are to elect or reject such or such of your deputies without knowing why—you are forbidden the use of reason—you are to be guided in the exercise of your greatest powers only by hazard or caprice.”
5. Another reason in favour of publicity:—To provide the assembly with the means of profiting by the information of the public.
A nation too numerous to act for itself, is doubtless obliged to entrust its powers to its deputies. But will they possess in concentration all the national intelligence? Is it even possible that the elected shall be in every respect the most enlightened, the most capable, the wisest persons in the nation?—that they will possess, among themselves alone, all the general and local knowledge which the function of governing requires? This prodigy of election is a chimera. In peaceful times, wealth and distinguished rank will be always the most likely circumstances to conciliate the greatest number of votes. The men whose condition in life leads them to cultivate their minds, have rarely the opportunity of entering into the career of politics. Locke, Newton, Hume, Adam Smith, and many other men of genius, never had a seat in parliament. The most useful plans have often been derived from private individuals. The establishment of the sinking fund by Mr. Pitt, it is well known, was the fruit of the calculations of Dr. Price, who would never have had the leisure requisite for such researches, if his mind had been distracted by political occupations. The only public man, who from the beginning of the quarrel with the American colonies had correct ideas upon the subject, and who would have saved the nation from war if he had been listened to, was a clergyman, excluded by this circumstance from the national representation.* But without entering into these details, it may easily be conceived how effective publicity is, as a means of collecting all the information in a nation, and consequently for giving birth to useful suggestions.
6. It may be thought descending from the serious consideration of this subject, to reckon among the advantages of publicity, the amusement which results from it. I say amusement by itself, separate from instruction, though it be, in fact, not possible to separate them.
But those who regard this consideration as frivolous, do not reason well. What they reckon useful, is what promises an advantage: amusement is an advantage already realized; and this kind of pleasure in particular, appears to me sufficient by itself to increase the happiness of any nation, which would enjoy much more than those nations who know it not.
Memoirs are one of the most agreeable parts of French literature, and there are few books which are more profound: but memoirs do not appear till long after the events which they record have happened, and they are not in the hands of every one. English newspapers are memoirs, published at the moment when the events occur; in which are found all the parliamentary discussions—everything which relates to the actors on the political theatre; in which all the facts are freely exhibited, and all opinions are freely debated. One of the Roman emperors proposed a reward for the individual who should invent a new pleasure: no one has more richly deserved it, than the individual who first laid the transactions of a legislative assembly before the eyes of the public.†
Objections to Publicity.
If publicity be favourable in so many respects to the governors themselves—so proper for securing them against the injustice of the public, for procuring for them the sweetest reward of their labours—why are they so generally enemies of this régime? Must it be sought in their vices? in the desire of the governors to act without responsibility—to withdraw their conduct from inspection—to impose upon the people—to keep them in subjection by their ignorance? Such motives may actuate some among them; but to attribute them to all, would be the language of satire. There may be unintentional errors in this respect, founded upon specious objections: let us endeavour to reduce them to their just value.
First objection—“The public is an incompetent judge of the proceedings of a political assembly, in consequence of the ignorance and passions of the majority of those who compose it.”
If I should concede, that in the mass of the public there may not be one individual in a hundred who is capable of forming an enlightened judgment upon the questions which are discussed in a political assembly, I shall not be accused of weakening the objection; and yet, even at this point, it would not appear to me to have any force against publicity.
This objection would have some solidity, if, when the means of judging correctly were taken from the popular tribunal, the inclination to judge could be equally taken away: but the public do judge and will always judge. If it should refrain from judging, for fear of judging incorrectly, far from deserving to be charged with ignorance, its wisdom would deserve to be admired. A nation which could supend its judgment, would not be composed of common men, but of philosophers.
But the increase of publications, it will be said, will increase the number of bad judges in a much greater proportion than the good ones.
To this it may be replied,—that for this purpose it is necessary to distinguish the public into three classes: The first is composed of the most numerous party, who occupy themselves very little with public affairs—who have not time to read, nor leisure for reasoning. The second is composed of those who form a kind of judgment, but it is borrowed—a judgment founded upon the assertions of others, the parties neither taking the pains necessary, nor being able, to form an opinion of their own. The third is composed of those who judge for themselves, according to the information, whether more or less exact, which they are able to procure.
Which of these three classes of men would be injured by publicity?
It would not be the first; since, by the supposition, it would not affect them. It is only the third: these judged before—they will still judge; but they judged ill upon imperfect information; they will judge better when they are in possession of the true documents.
Whilst in respect of the second class, we have said that their judgments are borrowed, they must therefore be the echo of those of the third class. But this class being better informed, and judging better, will furnish more correct opinions for those who receive them ready made. By rectifying these, you will have rectified the others; by purifying the fountain, you will purify the streams.
In order to decide whether publicity will be injurious or beneficial, it is only necessary to consider the class which judges; because it is this alone which directs opinion. But if this class judge ill, it is because it is ignorant of the facts—because it does not possess the necessary particulars for forming a good judgment. This, then, is the reasoning of the partisans of mystery:—“You are incapable of judging, because you are ignorant; and you shall remain ignorant, that you may be incapable of judging.”
Second objection—“Publicity may expose to hatred a member of the assembly, for proceedings which deserve other treatment.”
This objection resolves itself into the first,—the incapacity of the people to distinguish between its friends and its enemies.
If a member of a political assembly have not sufficient firmness to brave a momentary injustice, he is wanting in the first quality of his office. It is the characteristic of error to possess only an accidental existence, which may terminate in a moment, whilst truth is indestructible. It requires only to be exhibited, and it is to effect this that everything in the region of publicity concurs. Is injustice discovered?—hatred is changed into esteem; and he who, at the expense of the credit of to-day, has dared to draw for reputation on the future, is paid with interest.
As regards reputation, publicity is much more useful to the members of an assembly than it can be hurtful: it is their security against malignant imputations and calumnies. It is not possible to attribute to them false discourses, nor to hide the good they have done, nor to give to their conduct an unfair colouring. Have their intentions been ill understood?—a public explanation overturns the false rumours, and leaves no hold for clandestine attacks.
Third objection—“The desire of popularity may suggest dangerous propositions to the members;—the eloquence which they will cultivate will be the eloquence of seduction, rather than the eloquence of reason;—they will become tribunes of the people, rather than legislators.”
This objection also resolves itself into the first,—that is, the incompetence of the people to judge of their true interests, to distinguish between their friends and their flatterers.
In a representative state, in which the people are not called upon to vote upon political measures, this danger is little to be apprehended. The speeches of the orators, which are known to them only through the newspapers, have not the influence of the passionate harangues of a seditious demagogue. They do not read them till after they have passed through a medium which cools them; and besides, they are accompanied by the opposite arguments, which, according to the supposition, would have all the natural advantage of the true over the false. The publicity of debates has ruined more demagogues than it has made. A popular favourite has only to enter parliament, and he ceases to be mischievous. Placed amid his equals or his superiors in talent, he can assert nothing which will not be combated: his exaggerations will be reduced within the limits or truth, his presumption humiliated, his desire of momentary popularity ridiculed: and the flatterer of the people will finish by disgusting the people themselves.
Fourth objection—“In a monarchy, the publicity of the proceedings of political assemblies, by exposing the members to the resentment of the head of the State, may obstruct the freedom of their decisions.”
This objection, more specious than the preceding, vanishes when it is examined, and even proves an argument in favour of publicity. If such an assembly be in danger from the sovereign, it has no security except in the protection of the people. The security arising from secret deliberations is more specious than real. The proceedings of the assembly would always be known to the sovereign, whilst they would always be unknown to those who would only seek to protect it, if the means were left to them.
If, then, a political assembly prefer the secret regimé, by alleging the necessity of withdrawing itself from the inspection of the sovereign, it need not thus deceive itself: this can only be a pretence. The true motive of such conduct must rather be to subject itself to his influence, without too much expoing itself to public blame; for by excluding the public, it only frees itself from public inspection. The sovereign will not want his agents and his spies: though invisible, he will be, as it were, present in the midst of the assembly.
Is it objected against the régime of publicity, that it is a system of distrust? This is true; and every good political institution is founded upon this base. Whom ought we to distrust, if not those to whom is committed great authority, with great temptations to abuse it? Consider the objects of their duties: they are not their own affairs, but the affairs of others, comparatively indifferent to them, very difficult, very complicated,—which indolence alone would lead them to neglect, and which require the most laborious application. Consider their personal interests: you will often find them in opposition to the interests confided to them. They also possess all the means of serving themselves at the expense of the public, without the possibility of being convicted of it. What remains, then, to overcome all these dangerous motives? what has created an interest of superior force? and what can this interest be, if it be not respect for public opinion—dread of its judgments—desire of glory?—in one word, everything which results from publicity?
The efficacy of this great instrument extends to everything—legislation, administration, judicature. Without publicity, no good is permanent: under the auspices of publicity, no evil can continue.
Objects to which publicity ought to extend.
The publication of what passes in a political assembly ought to embrace the following points:—
1. The tenor of every motion.
2. The tenor of the speeches or the arguments for and against each motion.
3. The issue of each motion.
4. The number of the votes on each side.
5. The names of the voters.
6. The reports, &c. which have served as the foundation of the decision.
I shall not stop to prove that the knowledge of all these points is necessary for putting the tribunal of the public in a condition for forming an enlightened judgment. But an objection may be made against the publicity of the respective number of the voters. By publishing these, it may be said, the authority of the acts of the assembly will be in danger of being weakened, and the opposition will be encouraged when the majority is small.
To this it may be replied, that it is proper to distinguish between illegal and legal opposition. The first is not to be presumed; the second is not an evil.
The first, I say, is not to be presumed. The existence of a government regulated by an assembly, is founded upon an habitual disposition to conformity with the wish of the majority: constant unanimity is not expected, because it is known to be impossible; and when a party is beaten by a small majority, far from finding in this circumstance a motive for illegal resistance, it only discovers a reason for hope of future success.
If afterwards a legal opposition be established, it is no evil; for the comparative number of suffrages being the only measure of probability as to the correctness of its decisions, it follows that the legal opposition cannot be better founded than when guided by this probability. Let us suppose the case of a judicial decision;—that there have been two judgments, the one given by the smallest majority possible, the other by the greatest: would it not be more natural to provide an appeal against the first than against the second?
But the necessity of appeal in judicial matters is not nearly of the same importance as in matters of legislation. The decisions of the judges apply only to individual cases: the decisions of a legislative assembly regulate the interests of a whole nation, and have consequences which are continually renewed.
Do you expect that you will obtain greater submission by concealing from the public the different numbers of the votes? You will be mistaken. The public, reduced to conjecture, will turn this mystery against you. It will be very easily misled by false reports. A small minority may represent itself as nearly equal to the majority, and may make use of a thousand insidious arts to deceive the public as to its real force.
The American Congress, during the war of independence, was accustomed, if I am not deceived, to represent all its resolutions as unanimous. Its enemies saw in this precaution the necessity of hiding an habitual discord. This assembly, in other respects so wise, chose rather to expose itself to this suspicion, than to allow the degrees of dissent to the measures which it took, to be known. But though this trick might succeed in this particular case, this does not prove its general utility. The Congress, secure of the confidence of its constituents, employed this stratagem with their approbation, for the purpose of disconcerting its enemies.
The names of the voters ought to be published, not only that the public may know the habitual principles of their deputies, and their assiduity in attending, but also for another reason. The quality of the votes has an influence upon opinion, as well as their number. To desire that they should all have the same value, is to desire that folly should have the same influence as wisdom, and that merit should exist without motive and without reward.
Exceptions to the rule of Publicity.
Publicity ought to be suspended in those cases in which it is calculated to produce the following effects:—
1. To favour the projects of an enemy.
2. Unnecessarily to injure innocent persons.
3. To inflict too severe a punishment upon the guilty.
It is not proper to make the law of publicity absolute, because it is impossible to foresee all the circumstances in which an assembly may find itself placed. Rules are made for a state of calm and security: they cannot be formed for a state of trouble and peril. Secresy is an instrument of conspiracy; it ought not, therefore, to be the system of a regular government.
Means of Publicity.
The following are the means of publicity which may be employed, either in whole or in part, according to the nature of the assembly, and the importance of its affairs.
1. Authentic publication of the transactions of the assembly upon a complete plan, including the six points laid down in the preceding article:—
2. The employment of short-hand writers for the speeches; and in cases of examination, for the questions and answers.
3. Toleration of other non-authentic publications upon the same subject.
4. Admission of strangers to the sittings.
The employment of short-hand writers would be indispensable in those cases in which it would be desirable to have the entire tenor of the speech. But recourse need not be had to this instrument, except in discussions of sufficient importance to justify the expense. In England, in an ordinary trial, the parties are at liberty to employ them. In the solemn trial of Warren Hastings, the House of Commons on the one side, and the accused on the other, had their short-hand writers;—the House of Lords, in character of judge, had also its own.
With regard to non-authentic publications, it is necessary to tolerate them, either to prevent negligence and dishonesty on the part of the official reporters, or to prevent suspicion. An exclusive privilege would be regarded as a certificate of falsity. Besides, the authentic publication of the proceedings of the assembly could only be made with a slowness which would not give the public satisfaction, without reckoning the evil which would arise in the interval from false reports, before the authentic publication arrived to destroy them.
Non-official journals completely accomplish this object. Their success depends upon the avidity of the public, and their talent consists in satisfying it. This has in England reached such a point of celerity, that debates which have lasted till three or four o’clock in the morning, are printed and distributed in the capital before mid-day.
The admission of the public to the sittings is a very important point; but this subject requires explanations, which would not here be in their place. It will be treated separately.
The principal reason for this admission is, that it tends to inspire confidence in the reports of the journals. If the public were excluded, it would always be led to suppose that the truth was not reported, or at least that part was suppressed, and that many things passed in the assembly which it did not know. But independently of this guarantee, it is very useful for the reputation of the members of the assembly to be heard by impartial witnesses, and judged by a portion of the public which is change every day. This presence of strangers is a powerful motive to emulation among them, at the same time that it is a salutary restraint upon the different passions to which the debates may give rise.*
State of things in England.
In order to form a just idea of the state of things in England relative to publicity, it is necessary to pay attention to two very different things—the rules, and the actual practice. The following are the rules:—
1. All strangers (that is to say, all who are not members of the assembly) are prohibited from entering, under pain of immediate imprisonment. Introduction by a member forms no exception to the prohibition, nor any ground of exemption from the punishment. This prohibition, established during the stormy times of the civil war in 1650, has been renewed seven times, under circumstances which furnish neither this excuse nor any other.*
2. Prohibition, as well of others as of the members themselves, to report anything that passes in the House, or to publish anything on the subject without the authority of the House.
This regulation, which dates from the commencement of the civil war, has been renewed thirty times, and for the last time in 1738, in an order in which passion appears carried to its greatest height. The language of the proudest despots is gentle and moderate, in comparison with that of this popular assembly.
3. Since 1722, there has been published by the House of Commons, what are called the Votes of the House; that is, a kind of history of its proceedings, meagre and dry, containing the formal proceedings, with the motions and decisions; and in cases of division, the numbers for and against, but without any notice of the debates.
Before this period, this publication only took place occasionally.
These votes, collected and republished at the end of the year, with an immense mass of public laws and private acts, form what are called the Journals of the House. These journals were formerly given to each member, but not sold to the public.†
4. Projects of laws before they are passed by parliament. These projects, called bills, are not printed under a general rule, but the printing is ordered upon special motion, and for the exclusive use of the members; so that no one can know what they contain, unless he obtain one of these privileged copies through a member. It is, however, of more importance that the public should be made acquainted with these, than with the votes.
How singular soever it may be thus to see the deputies of the people withdrawing themselves with so much hauteur from the observation of their constituents, the principles of a free government are as yet so little known, that there has been no general complaint against a conduct which tends to destroy all responsibility on the part of the representatives, and all influence on the part of the nation.
But since public opinion, more enlightened, has had greater ascendency, and principally since the accession of George III., though these anti-popular regulations are still the same, a contrary practice has prevailed in many particulars. It is doubtless to be regretted, that whatever improvement has taken place in England has been accomplished through a continual violation of the laws; but it is gratifying to observe that these innovations insensibly tend to the general perfection.
The House of Commons has allowed a small portion of the public to be present at its sittings—about one hundred and fifty strangers can be accommodated in a separate gallery. Unhappily, this indulgence is precarious. That the House ought to be able to exclude witnesses in the cases of which we have spoken, is conceded; but at present it is only necessary that a single member should require the observation of the standing order, which being always in force, is irresistible.
As to the contents of the debates and the names of the voters, there are numerous periodical publications which give account of them. These publications are crimes; but it is to these fortunate crimes that England is indebted for her escape from an aristocratic government resembling that of Venice.
These publications would not have obtained this degree of indulgence, if they had been more exact. At one time, if a stranger were discovered in the gallery with a pencil in his hand, a general cry was raised against him, and he was driven out without pity. But at present, connivance is more extended, and short-hand writers, employed by the editors of the public newspapers, are tolerated.‡
Among the Lords, the regulations are nearly the same, but the tone is more moderate. No admission to strangers—(order 5th April 1707.) No publication of debates allowed—(order 27th February 1698.) It was, however, among them, that in our times the plan of indulgence which at present reigns was commenced.
This House has one custom, which gives to one set of its opinions a publicity of which no example is found in the other.
I refer to protests. These are declarations, made by one or many members of the minority, of the reasons for their dissent from the measures adopted by the majority, and inserted in the journals. These protests are printed and circulated, in opposition to the regulations. There results from this publication a singularity which ought to lead to consideration, if consideration were within the province of routine. It is, that the only reasons presented to the public in an authentic form, are those which are opposed to the laws.
The House of Lords, in permitting a portion of the public to attend its sittings, has rendered this favour as burthensome as possible. There are no seats. The first row of spectators intercepts the view, and injures the hearing of those who are behind. Some of the more popular members have at different times proposed to give the public more accommodation; but the proposition has always been refused by the majority of their colleagues, either from considering that a painful attitude is more respectful, or from an absolute horror of all change.*
OF THE PLACE OF MEETING AND ITS DEPENDENCIES.
Of the Building suitable for a numerous assembly.
Magnificence of architecture in a building intended for a large political assembly, would be almost always injurious with regard to its utility. The essential points to be considered are—
1. Facility of hearing for the members.
2. Facility of seeing for the president.
3. Personal convenience for the individuals;
And lastly, Fitness for the service.
If any of the seats are so distant that the voice with difficulty reaches them, attention being rendered painful, will not be long sustained. The same distance will deprive one part of the assembly of the inspection of its president, and from this cause alone may give rise to habitual disorder.
Besides, those who do not hear are obliged to decide upon a borrowed opinion. It was thus that the great popular assemblies, in the ancient republics, were necessarily subjected to the direction of two or three demagogues.
The difficulty of making themselves heard may also drive from the service the individuals of greatest ability, if the strength of their lungs be not proportioned to the space that their voice is required to fill. Demosthenes might have been obliged to give way to Stentor. The first quality required would no longer be mental superiority, but a physical advantage, which, without being incompatible with talent, does not necessarily imply it. The presumption is even on the other side, and in favour of the feeble and valetudinary individual,—inaptitude for corporeal exercises being partly the cause and partly the effect of a studious disposition.
A form nearly circular, seats rising amphitheatrically above each other—the seat of the president so placed that he may see all the assembly—a central space for the secretaries and papers—contiguous rooms for committees—a gallery for auditors—a separate box for the reporters for the public papers;—such are the most important points. I do not enter into detail respecting the salubrity of the hall and its adaptation for the service. I only add, that a hall well adapted to all these objects would have more influence than would at first be suspected, in securing the assiduity of the members, and facilitating the exercise of their functions.
Table of Motions.
Reference is here made to a very simple mechanical apparatus for exhibiting to the eyes of the assembly the motion on which they are deliberating. The mere reading of a motion can only impart an imperfect and fugitive acquaintance with it. There is no other method for really presenting it to the minds of the members of an assembly, beside that of presenting it to their eyes.
A general idea of this table only will be presented here. We may suppose a gallery above the president’s chair, which presents a front consisting of two frames, nine feet high by six feet wide, filled with black canvas, made to open like folding doors;—that this canvas is regularly pierced for the reception of letters of so large a size as to be legible in every part of the place of meeting. These letters might be attached by an iron hook, in such manner that they could not be deranged. When a motion is about to become the object of debate, it would be given to the compositors, who would transcribe it upon the table, and by closing the gallery, exhibit it like a placard to the eyes of the whole assembly.
The utility of this invention, in its most general point of view, consists in so arranging matters that no one could avoid knowing upon what motion he ought to vote.
It is true, that what is of most importance to be known, is the sense of a proposition, and not its tenor—the spirit rather than the letter. But it is only by a knowledge of the letter that we can be sure of the spirit—a mistake in only a single word may entirely change the purport of a discourse: when the words are no longer present to the memory, we are in danger of falling into mistakes—a danger which it is a folly to incur, when it may be avoided by so simple and infallible a method.
There is not a moment in the course of a debate, in which each member has not occasion to know the motion, and to be able to consult it, either for making a correct application of what he hears, or for the purpose of taking an active part in the discussion. This knowledge is of the first importance to him, whether he act as a judge, by giving his vote—or as an advocate, by speaking for or against it.
In the first place, with respect to those who listen, nothing could be more agreeable and useful to them than this table of motions. Everything which relieves the memory, facilitates the understanding—there is much less doubt about the meaning, when there is none about the words. Upon the simple enunciation or reading of a motion—all those who have been distracted—all those who readily forget—all those who are slow in understanding,—are necessarily ignorant of the subject of debate, or obliged to apply to others for information. Hence arise irregular movements, reciprocal interruptions, confusion, and noise.
In the next place, as to those who speak, the utility of this table is still more clear. If the motion be of a certain length, it requires for its recollection an effort of memory, which distracts the attention at a moment in which there is a necessity for employing it altogether in another manner. There ought not to be a necessity of seeking for words when there is already too much to do in seeking for arguments: the hesitation occasioned by such a search, disturbs the current of the thoughts.
But besides, this effort of memory is often inefficacious. Nothing is more common than to see orators, and even practised orators, falling into involuntary errors with respect to the precise terms of a motion. If this be not perceived, an incorrect judgment is the result of the error: if it be perceived, the protests against it produce either apologies or disputes, and thence loss of time in accusations and defences.
The table of motions would contribute in many respects to the perfection of the debate. We have seen that it would preserve the orators from involuntary errors: it would be no less serviceable to the assembly as a security against intentional false misrepresentations—against insidious representations, by which sentiments are imputed to an antagonist which do not belong to him. This defect of candour springs from the same principle as calumny, which hopes that some portion of the reproach with which it asperses will not be wiped away. The individual who practises this meanness is screened by the difficulty of distinguishing his false representation from involuntary error. Remove this difficulty, and the temptation to be guilty of the meanness will be removed also.
Digressions are another inconvenience in debates: they often arise from the weakness of the mind, which without intending it, loses sight of the point with which it ought to be engaged. But when the orator forgets his subject, and begins to wander, a table of motions offers the readiest means for recalling him. Under the present régime, how is this evil remedied? It is necessary for a member to rise, to interrupt the speaker, and call him to order. This is a provocation—it is a reproach—it wounds his self-love. The orator attacked, defends himself; there is no longer a debate upon the motion, but a discussion respecting the application of his arguments. The unpleasantness of these scenes, when they are not animated by the spirit of party, leads to the toleration of a multitude of digressions, experience having proved that the remedy is worse than the disease; whilst as to the president, although it be his duty to prevent these wanderings, his prudence leads him to avoid giving frequent and disagreeable admonitions, and entering into altercations which might compromise his dignity or his impartiality.
But if we suppose the table of motions placed above him, the case would be very different. He might, without interrupting the speaker, warn him by a simple gesture; and this quiet sign would not be accompanied by the danger of a personal appeal. It would be a sedative, and not a stimulant—a suggestion, and not an accusation; it would be the act, not of an adversary, but of a judge. The member would not be called upon to stop—would not be required to make a painful submission and avowal of error; he would only have, in continuing his speech, to return to the subject of discussion; and he could not be ignorant that the sign of the president was an appeal to the assembly, the attention of which had been directed to him.
In conclusion, it may be observed that this table would give great facility in the production of good amendments. If a simple reading be sufficient for correctly seizing the spirit of a motion, it is not sufficient for giving attention to all its terms. When observations are to be made upon style, we must not trust to memory: it is desirable that the writing should be under the eye—that it may be considered in many points of view—that the microscope of attention may be applied to all its parts; and there is no other method of discovering the imperfections of detail. This kind of criticism is a peculiar talent, in which individuals are formed to excel who often do not possess any of the gifts of oratory. The profound grammarian is more useful than is generally thought to the legislator.
This table would possess a further merit, if it should only procure for the assembly the services of one clever man, who had been discouraged by a defect of memory, and retained by this defect in a state of inaction. It is well known that the two most important faculties of the mind—judgment and invention—are often very strong in those individuals who have very weak memories, especially with regard to words. With respect to talent, as well as virtue, the smaller the service required, the less the danger of its being wanting.
It may perhaps be said, that the printing of the motions before the debate, would nearly accomplish the same object, and would supply the place of this table.
But in the course of a debate, how many accidental and unforeseen motions may be made!—how many amendments which there is not time to print! It may also be observed, that a paper to be read, to be consulted, does not afford to the hearers, or the speaker, the same facility as a table which remains immovably before their eyes. It is not necessary continually to stoop for the purpose of listening or speaking, but the eye glances over the lines of the table without interruption. And besides this, the great utility of the table, the strength which its gives to the regulation against useless digressions simply by means of an admonitory sign, is an advantage not to be obtained by printing the motion.*
Description of a Table of Motions.
The plan here pointed out may serve for a first attempt: but the easier the mode of execution, the less important are the details.
Frames.—They may be made like two folding doors. They should be filled with canvas, stretched so as to present an even surface, not sinking in the middle.
Size of the letters.—This would depend upon the size of the place of meeting;—a black ground, the letters gilt;—a strong light thrown upon the table;—the form of the letter rather oblong than square.
Method of fixing them.—The letters being made like a button, should have a hook, by means of which they might be fixed with the greatest ease. The regularity of the lines might be secured by a thread in the cloth.
Composition of the table.—The two folding leaves turn upon their hinges like a door. The compositors whilst at work are visible to the assembly (which will secure their diligence and emulation.) The two leaves closed together, will present the appearance of two pages of an open book.
Amendments.—These might be exhibited upon a separate table, placed immediately beside the others, with a reference which would direct the eye to the part of the original motion which it was wished to amend, and a word at the top of the table, which should simply indicate that the amendment is suppressive, additive, or substitutive.
Multiplication of tables.—There might be an assortment of tables, upon which all the known motions might be previously prepared, and thus be made to succeed each other rapidly.
Contents of the Table of Motions.
Suppose that each frame is nine feet high by six wide, and the letters one and a half inch by three quarters of an inch, the two leaves of the table would contain more than four ordinary octavo printed pages. This may be ascertained by calculation.
At fifty-two feet distant, I have found in a church that the table of the decalogue was perfectly legible for ordinary eyes, when the letters were three quarters of an inch high.
Composition.—The labours of the compositors may perhaps be accelerated by what is called the logographical principle, which consists in composing not with letters, but with entire words.
By the multiplication of tables, a composition which was too long to be presented all at once to the eyes of the assembly, might be presented in parts. A project of a law, for example, whatever was its extent, might be previously prepared, and the tables shifted, without suspending the labours of the assembly.
But this plan has its limits;—that is to say, there are cases and circumstances which would prevent its being employed on account of time and space: these limits do not, however, furnish any argument against its utility upon all occasions on which it can be employed. This utility is so great—the inconveniences of the present plan are so manifest, that one might be astonished that this method had not been thought of before: but in these affairs it is not proper to be astonished at anything. Under the auspices of routine, barbarism gives law to civilization, and ignorance prevails over experience.
On a Table of Regulations.
When good rules are established, it still remains to make arrangements for facilitating their execution—for making them known. A law can have no effect except as it is known.
The regulations of the assembly, reduced into the form of a table, and readable from all parts of the place of assembly, ought to be placed by the side of the president.
If they are too voluminous, the tables ought to be multiplied; but the essential points ought to be collected together in the principal table.
In every large political assembly, nothing is more frequent than an appeal to the regulations, either for attack or for defence. The contravention consumes time—the correction consumes still more. The rules are always as if they were non-existing for one part of the assembly. The new members are but little acquainted with them; and they are not always present to the minds of the most experienced veterans. Such, at least, is the state of things in the British parliament;—and it cannot be otherwise, because the regulations, far from being exposed to the eyes, only exist by tradition, and are confided only to the keeping of a treacherous memory.
A small table would not answer the end: a large table is an object of study in every moment when the attention is vacant. The least deviation becomes sensible; and hence deviations become rare; for rules are rarely transgressed when they cannot be transgressed with impunity,—when the law which condemns is before your eyes, and the tribunal which judges you at the same moment, no one will be more tempted to violate it than he would be tempted to steal red-hot iron. Procedure, which moves on other occasions with the pace of the tortoise, is in this case rapid as the lightning.
General laws, whatever may be done for their promulgation, cannot be made universally notorious. But particular laws made for one assembly may be constantly visible within it. The method is so easy, it cannot be said to be unknown. There is not a club in England which has not its regulations exhibited in its place of meeting. There is the same foresight in gaming-houses. But the bitter reflection often recurs, that the wisdom displayed in the conduct of human affairs is often in the inverse proportion of their importance. Governments have great progress to make before they will have attained, in the management of public matters, to the prudence which commonly conducts private affairs. The cause may be easily pointed out, but not the remedy.
OF WHAT CONCERNS THE MEMBERS PRESENT AT A LEGISLATIVE ASSEMBLY.
Of the utility of a Distinctive Dress for Members.
The establishment of a particular dress for the members during the hours of sitting, is one of those points upon which it would not be proper to wound national customs. The object, however, is not altogether so unimportant as might be thought at the first glance.
1. A particular dress serves to distinguish the members from the spectators: it may prevent the usurpation of their privilege.
2. Such a dress might attain the end of a sumptuary law, without having its rigour. This apparent equality would defend the poor man of merit from a disadvantageous comparison with the pride of fortune.
3. Such a dress tends in another manner to place the individuals upon a level, by diminishing the disadvantages of those who have to strive against any bodily defect.
4. It produces a certain impression of respect upon the spectators, and places the members themselves in a more distinguished situation—two causes which equally tend to the maintenance of order, and the preservation of decency.
5. In the course of a debate, when parties are nearly balanced, and when intrigue or corruption may be apprehended, the peculiar dress may serve to detect the proceedings of the members, and to signalize what passes among them. Every communication among them becomes more manifest, and attracts the public attention.
This method, I allow, is not of great force; but if it be possible, without inconvenience, to throw one additional grain into the scale of probity, it ought not to be neglected.
6. In a popular tumult, such as every political assembly is exposed to see arise around it, a dress which announces the dignity of him who wears it, may dispose the people to respect, and give the members more influence in calming the storm.
7. If the tumult runs so high as personally to menace certain members of the assembly, the simple act of laying aside their peculiar dress would favour their retreat. The Chancellor Jefferies, so noted under James II. for his bloody decisions, succeeded, by laying aside the marks of his dignity, in eluding for a time the fury of the populace.
These different reasons are not equally applicable to all political assemblies.
Of the manner of placing the Members, and of a Rostrum for the Orators.
In a numerous deliberative assembly, there ought not to be any predeterminate places. Every one ought to take his place as he arrives.
This free arrangement is preferable to a fixed order, for many reasons: and first, because it tends to produce a debate of a better kind.
The members of the same party ought to possess every facility for concerting their operations and distributing their parts. Without this concert, it is impossible that the arguments should be presented in the most suitable order, and placed in the most advantageous light. It is only by a continual correspondence among the members themselves, that they can prevent a multitude of useless operations, delays, contradictions, repetitions, inconsistencies, and other incidents, of which the common tendency is to interrupt that unity of plan which is necessary in conducting business to its termination. In this respect, party interests are the same as those of the public. It is necessary for the public good that each party should plead its cause with all its force—should employ all its resources; since truth only has everything to gain in the concussion.
Consultations held previous to the assembly, cannot supply these little consultations at the moment. One particular observation, one new proposition, may give a new aspect to affairs, and render necessary a change of measures. The most consuminate foresight cannot anticipate all the incidents which may arise in the course of a discussion. It is here as in a battle,—the best plan previously formed cannot supersede the necessity of occasional orders suggested at the instant by the events of the day.
The English practice is conformable to this theory. The arrangement being free, the two parties naturally place themselves upon the two sides of the House. The first bench upon the right of the Speaker, which is called the Treasury Bench, is occupied by the ministers and other official persons; but this is a matter of courtesy, and not of right. The first bench on the Speaker’s left, is that occupied by the principal persons of the opposition party.
There is one single exception to this freedom of places—an exception, honourable in principle, but too rare in practice to be productive of inconvenience. “It is commonly understood,” says Mr. Hatsell, (Vol. II. p. 194.) “that members who have received the thanks of the House in their place, are entitled to that place whenever they come to the House, at least during that parliament; and it is generally allowed them by the courtesy of the House.”
In the House of Lords, different benches are appropriated of right to the different orders,—one to the Bishops, another to the Dukes, &c.; but these appropriations are but slightly observed.
The States of Holland and West Friesland used to assemble in a hall, in which, to judge from appearances, the fixation of places was most strict. Each town had its bench, or its part of a bench. The places being aloccupied, no one could change without occasioning some derangement. Whether any inconveniences were the result or not, is a matter of conjecture, and nothing more. Since everything passed in secresy in these Dutch assemblies, they never understood the essential connexion between liberty and publicity which support each other.
This free arrangement is favourable to equality, in a case in which equality, not being hurtful to any one, is justice. To prevent disputes concerning precedence, those vain contests of etiquette which have so often been the principal object of attention in great political assemblies, would be in itself a great good. To correct the disposition itself which attaches importance to these distinctions, is a still greater advantage. The mode by which this scheme of graduated injuries is carried into effect, is begun by supposing that one place is preferable to every other, and that the occupation of it is a mark of superiority. This system of insults, which goes on regularly increasing from the last to the first place, is what is called order, subordination, harmony; and these honorary distinctions—that is to say, these gradations of affronts—given and received with privilege, are commonly regarded with more respect, and defended with more obstinacy, than the most important laws.
This, then, is one cause of contention and trifling, which ought to be excluded from a political assembly. Distinction of places, and disputes concerning rank, ought to be unknown there. Merita sua teneant auctores, nec ultra progrediatur honos quam reperiatur virtus.
In England, a quarrel respecting precedence is sometimes heard of, but it is only in assemblies for amusement; most generally among females, and only among themselves. If these disputes reach the men, they treat them as a joke.
Ought there to be a place assigned for those who speak?
Before answering this question, two points ought to be determined,—the form and size of the place of meeting, and the number of members.
In a numerous assembly, the speaker is best heard when he speaks from a tribune, placed near the centre and visible to all. The debate, more easily followed, causes less fatigue. Those who have weak voices, are not obliged to strain themselves that they may make themselves heard at the extremities; and this is a consideration which ought not to be disregarded in a political assembly, in which there ought to be a large proportion of aged and studious men.
Regularity is better preserved. If every member may speak from his place, there is at least a danger of confusion, and it is more difficult for the president to prevent irregular interruptions. The necessity of going to the tribune, stops a crowd of insignificant and precipitate proposals. It is a deliberate act, which an individual will hardly perform without having first considered what he intends to say: it makes him conspicuous, and he must feel that it is ridiculous to fix attention upon himself, when he has nothing to say wherewith to repay that attention.
Besides, when a tribune is established as the place from which to speak, all the rest of the assembly ought to be obliged to be silent. If any one speak out of the privileged place, he commits an obvious irregularity, and may immediately be called to order.
The tribune presents also a certain advantage connected with impartiality. If the assembly, according to the disposition of all political bodies, form itself into two parties, each naturally tends to station itself in a certain portion of the place of meeting; and if each one speak from the midst of his party, it is known beforehand on which side he is going to speak: but there are always some men more or less impartial and independent. It is well, therefore, to require all the members to speak from a tribune, which being the same for all, relieves the individual from the association of ideas which would connect him with a given party. It must, however, be acknowledged, that this method is not perfectly effectual, because all the members know each other; but it is well calculated to have this effect with the public who listen to him, and who would be thus called upon to judge the speaker by what he says, and not by the place from which he speaks.
It may be objected, that this is a restraint, and that this restraint may deprive the assembly of the information possessed by a timid individual, who would fear to push himself forward upon the scene in too marked a manner.
It may be said, that a loss of time would result from it, if, for a single word, a short explanation, a call to order, it were necessary to cross the house, and to ascend the tribune.
These two objections are of very little value. The first supposes a degree of timidity which is soon overcome by use: a practised speaker will speak from one place as well as another; but he will speak best when he is best heard: he will speak more freely, or he will speak with less effort.
As to short explanations, the president might permit a member to make them without quitting his place. These are minutiæ, with respect to which a routine of detail will readily be formed.
The two houses of the British parliament have no tribune, and no great inconvenience results from the want. It must be observed at all times, that these assemblies are rarely numerous, that there are few habitual orators, and that those almost always occupy the same places. But when a member speaks from a distant seat, he speaks under manifest disadvantage. He is less heard by the assembly, and often not heard at all in the gallery. There are few important debates in which the reporters for the public papers are not obliged to omit certain speeches, of which only scattered sounds and broken phrases have reached them.
Of the hours of business, fixed or free.
It is very necessary to have a fixed hour for the commencement of business.
But is it proper to have a fixed hour for breaking up the sitting, although in the middle of a debate? There ought to be a fixed hour, or very nearly so; but it should be admissible to finish a speech which is begun.
This regulation appears to me very reasonable, and more important than would be imagined at the first glance.
With reference to the personal convenience of individuals, this fixation of the hour is useful to all, and necessary for the infirm and the aged. An inconvenience which may deter feeble and delicate persons from this national service, is worthy of consideration.
But the principal reason is, that there is no other method of securing to each subject a degree of discussion proportioned to its importance. When the duration of the debate is unlimited, the impatience of those who feel themselves the strongest, will lead them to prolong the sitting beyond the term in which the faculties of the human mind can exercise themselves without weakness. The end of the debate will often be precipitated, if it be only from that feeling of uneasiness which results from fatigue and ennui.
In those circumstances in which parties are most excited—in which each of them, awaiting the decision, would be most desirous of exceeding the ordinary time—it is then that the rule would be particularly useful: by interrupting the debate, it favours reflection, it diminishes the influence of eloquence, it gives to the result a character of dignity and moderation.
1. But it will be said, delay results from it. Those who dread being found in a minority will prolong the debates, in the hope that another day may give them some advantage.
I think that a systematic plan of delay, founded upon this law, is but slightly probable. The individual who should speak merely to consume the time, would do too much injury to himself. To talk to no purpose, in an assembly in which are heard the murmurs of indignation, and before the public which judges you, is a part which demands a rare degree of impudence; and, moreover, it would be necessary to suppose that a great number of individuals should enter into this disgraceful conspiracy, in order to make it succeed.
2. It may perhaps be said, that it opens a door to intrigue—to that kind of intrigue which consists in personal solicitations to the members, in the interval between two sittings.
But this objection amounts to nothing. There is no greater facility for solicitation after the first debate, than there was before it: there is even less; for those who have announced their opinions, would fear to render themselves suspected by so sudden a change of opinion.
If this objection were solid, it would lead to the conclusion that everything should be unpremeditated in political assemblies—that the object of deliberations should not be previously known, and that the only mode of guaranteeing their integrity is to take them unawares, and to separate them from all communication from without.
There is a fixed hour for beginning the sittings; there is none for their termination. Hence, debates which excite great interest have sometimes lasted from twelve to fifteen hours, and even beyond that.
The inconveniences which result from this practice are sufficiently numerous; but there is no danger, at least with regard to projects of laws, because the regulations secure certain delays. Every bill must be read three times, besides being discussed in committee. Two adjournments are therefore necessary, and there may be a greater number.*
The sittings do not generally commence before four o’clock, and even later. This arises from the composition of the assembly. The ministers are engaged in the morning in their offices; the judges and lawyers in the courts of justice; a great number of merchants are necessarily occupied with their business. The different committees of the house require the attendance of a multitude of persons, and this service, in a large city, can only be conveniently rendered during the day.
These circumstances have caused evening sittings to be preferred, notwithstanding the inconvenience of prolonging the debates far into the night—of often producing precipitation, from the desire of concluding them—of affecting the health of delicate persons, and of exposing this public service to the formidable concurrence of all the dissipations of a large city. If the ancient usage of assembling in the morning were re-established, this change alone would necessarily change the composition of the House of Commons.
Duty of attendance—Mischiefs resulting from non-attendance.
I begin with two propositions:—the first, that in every legislative assembly the absence of the members is an evil:—the other, that this evil is sufficiently great to justify a law of constraint.
The inconveniences may be ranged under six heads:—
1. Facility of prevarication.
2. Occasion of negligence.
3. Admission of less capable individuals.
4. Inaction of the assembly, when the number requisite for the validity of its acts is not present.
5. Danger of surprises.
6. Diminution of the popular influence of the assembly.
1. Facility of prevarication.—There is more than facility—there is entire security, not for complete prevarication, but for demi-prevarication. Suppose a measure so bad that a deputy, if he were present, could not in honour refrain from voting against it. Does he fear to offend a protector, a minister, or a friend? He absents himself: his duty is betrayed, but his reputation is not compromised.
Every voter produces by his vote two equal and distinct effects: he deprives one party of his vote, and gives it to the other. The absent produces only one of these effects, but there is always half the mischief.
2. Negligence.—Is one obliged to vote upon all questions? It is natural to pay some attention to them, to make one’s self acquainted with them, lest we become absolute ciphers in the assembly. But this feeling of honour does not exist when individuals may freely absent themselves. They will abandon their duty, rather than compromise themselves—they will give themselves up to indolence; and the more they neglect their business, the less will they be qualified to engage in it.
3. Admission of less capable individuals.—So soon as an employment becomes a source of consideration and of power, without imposing any restraint, it will be sought after—will be bought and sold, by men who have neither inclination nor power to render themselves useful in it.
Such places will often become the appanage of fortune and dignity; but if it be requisite assiduously to discharge their functions, the little motives of vanity will not outweigh the bonds of labour. We shall only find among the candidates those who discover, in these public duties, some particular attractions;—and though inclination for an employment does not prove talent for its discharge, there is no better pledge of aptitude for the labour than the pleasure which accompanies it.
4. Inaction for want of the number required.—This evil is connected with the preceding. So soon as the places are occupied by men who only love the decorations they afford, they will neglect to attend, at least upon ordinary occasions. It will become necessary to fix a quota for forming an assembly, and this expedient will itself produce many days of inaction.
5. Danger of surprises.—We may consider as a surprise, every proposition the success of which has resulted from absence, and which would have been rejected in the full assembly.
6. Diminution of influence.—Public opinion in a representative government is naturally disposed to conform itself to the wish of the assembly, and requires only to know it. But will the wish of the whole assembly be the wish of that portion from which the decision emanates? It is this which becomes more problematical, in proportion as this part is less than the whole. Is the part absent greater than that which is present? The public knows not to which to adhere. In every state of the case, the incomplete assembly will have less influence than the complete assembly.
Means of insuring attendance.
I confine myself here to the general idea. The first of these means would consist in requiring of each member a deposit, at the commencement of each quarter, of a certain sum for each day of sitting in the quarter; this deposit to be returned to him at the end of the term, deduction being made of the amount deposited for each day for every day he was absent.
If the members receive a salary, this salary should be placed in deposit, subject to being retained in the same manner.
This retention should always take place without exception, even in those cases in which there are the most legitimate excuses for absence.
This plan may at first appear singular, but this is only because it is new. This, however, is not a feasible objection to it, if it be particularly efficacious. It belongs to that class of laws which execute themselves.* If instead of this retention you establish an equal fine—there then becomes necessary an accuser—a process, a judgment: on the other hand, the deduction is not liable to uncertainty—it operates after a simple calculation, and does not bear the character of a penal law.
Emoluments are the price of service,—Is there any ground of complaint, if they are attached to the rendering of service?
If the employment be of a kind to be undertaken without salary, the chance of losing a part of the deposit ought to be regarded as the price of the place.
To admit any cases of exception, would be to alter the nature of this instrument. Its essence consists in its inflexibility—admit excuses, you admit fraud, you admit favour; refusal to receive them would become an affront,—you would substitute a penal for a remuneratory arrangement. But it may be said, in case of sickness, is it right to add to this natural misfortune, another factitious evil? Yes, upon so important an occasion. The professional man, the artisan, are subject to the same losses. At the price of this single inconvenience, contraventions without end are prevented, the public service is secured, which could not be secured by any means more easy and manageable.
This expedient itself will not suffice. It is necessary to add to it a coercive punishment; for it is always necessary to come to this, to give effect to the laws. I only propose one day of arrest for each contravention, it being always understood that every legitimate excuse for absence is admissible as a ground of exemption from this punishment.
This is necessary for constraining a class of persons upon whom the loss of the deposit would have only an uncertain influence.
The rich are often led by vanity to make pecuniary sacrifices: they would not be indisposed to acquire an honourable office, even though it were expensive, provided they were not compelled to attend to its duties; they might even glory in the infraction of a rule when the punishment was only a pecuniary fine. Hence there would perhaps be formed two classes in the assembly—those who were paid for their functions, and those who paid for not fulfilling them; and as wealth sets the fashion, it might happen that a kind of degradation would be reflected upon the useful and laborious class.
A punishment is therefore necessary, which should be the same for everybody—a slight but inevitable punishment. It is true that excuses would be admissible; but it is not to be expected that, for the purpose of avoiding the inconvenience of one day’s arrest, any one would compromise his honour by a lie.
These means should also be strengthened by a register, in which every case of absence should be specified. The name of the absent member should be inscribed therein, with the date of his absence, in order to indicate the sitting or sittings from which he was absent, the excuses he has made, or the days during which, he was subject to arrest. This memorial should be printed at the end of every session.
The power of granting leave ought not to exist. This power would soon reduce the demand which was made of it to a mere formality.
If this regulation had existed in the Roman senate, the letters of Cicero would not have contained so many bitter complaints against those senators, who left him to strive alone against corruption and intrigue, that they might enjoy their pleasure in voluptuous repose, or rather that they might avoid compromising themselves, and might prevaricate without danger.
British practice in relation to attendance.
In order to perceive how far this abuse of absenting themselves may be carried, it is only necessary to consider what happens in England.
In the House of Commons, out of 658 members, the presence of 40 is required to constitute a house, and often this number is not found. Its annals offer few examples of a sitting in which one-fifth of the whole number was not wanting. An opinion may hence be formed of the ordinary attendance. The two parties in this assembly are composed of persons to whom their parliamentary functions are only a secondary object. Setting aside the official personages, and the heads of the opposition who seek to succeed them, there remain lawyers, merchants, and men of the world, who, unless they have a particular interest in the question, only attend the house as a show, for the purpose of varying their amusements. At the invitation of the slightest pleasure they leave the house. It is these persons who in general compose the class whose votes are the object of dispute to the two parties, and to whom they address their pleadings.
Is this the fault of individuals? No; since in this respect as well as in every other, men are what the laws make them to be.
The laws which exist for the prevention of this abuse are well calculated to be inefficacious. In ancient times there was a statute of fines: first, five pounds; afterwards ten, and afterwards forty, &c. This mode is gone by—there remains only imprisonment in the custody of the sergeant-at-arms (this implies a sufficiently heavy ransom under the name of fees.) But even this punishment scarcely exists except as a threat. It cannot take place but upon a call of the house, as if a constant duty ought only to be performed at certain periods; and in the case of a call of the house, any excuse, solid or frivolous, vague or particular, is sufficient to prevent the infliction of this punishment. It is not possible to expect that the tribunal will be severe, when all the judges are interested in the contravention of the laws. Neither can it be expected that a political body will make efficacious laws for the prevention of abuses, in the continuance of which each member finds his account, unless compelled to do so by the force of public opinion.
It must be acknowledged, that this habitual negligence, which has destroyed every other assembly, has its palliatives, which diminish its evil effects, and which are peculiar to the parliamentary régime.
The division into two parties, has insensibly led them to allow themselves to be represented by a certain portion of each. Each portion is as the whole. In questions of importance—that is to say, of an importance relative to the party—the chiefs give the signal, and the members come up in mass.
There is little danger of surprise, because the principal motions are announced beforehand, and because all the ministerial measures pass through many stages, upon different days. If the decision taken by the small number be contrary to the wish of the majority, they assemble in force the day following, and abrogate the work of the previous day.
Of the practice of requiring a certain number to form a House.
With good regulations against absence, there would be no necessity for a recurrence to this instrument.
Its principal use is to contribute indirectly to the compelling an appearance. Is the fixed number deficient? Business is retarded; public opinion is thought of; an uproar is dreaded. Those who direct the assembly are obliged to take pains to obtain the attendance of the requisite number, and rigorous methods have an excuse if the negligence become extreme.
This fixed quota is the last expedient to which recourse should be had with this view; since the suspension of business oftentimes produced by it, is nothing more than a punishment inflicted upon the constituents, when the representatives only are in fault.
It appears at first extremely singular, that the power of the whole assembly should be thus transferred to so small a portion. It arises from the circumstance, that abstraction made of intentional surprise, nothing more is to be feared from a fraction of the assembly than from the total number. Allowances being made for the differences of individual talents,—as is the whole, so is each part.
If there be no disposition on the part of the whole to prevaricate, there is no reason to attribute this disposition to any portions of the whole. Besides, responsibility with regard to the public is always the same.
It might be apprehended, that where parties existed, those who found themselves one day in superior force, would abuse this superiority to the production of a decree contrary to the will of the majority. But this danger is not great; for the majority of to-morrow would reverse the decree of the past day, and the victory usurped by the weaker party would be changed into a disgraceful defeat.
The general advantage, in case of absence, is altogether on the side of the executive power. It is this which is always in activity—it is this which has all the particular means of influence for securing the assiduity of its partisans.
Visitors—mode of admission.
We have seen, in the chapter on Publicity, the reasons for admitting a certain portion of the public to the sittings of the assembly, and we have pointed out the cases of exception. The number admitted ought to be as great as possible, without injury to the facility of speaking and hearing—a principal consideration, which reduces the size of the place of assembly to dimensions much less than those of an ordinary theatre; since there ought not to be required of a deputy of the people, the strength of voice and the declamation of an actor.
The experience of France has shown other dangers, arising from the number of spectators equalling or exceeding that of the assembly. It is true, that these dangers might have been prevented by a severe police; but this police is more difficult to be maintained, in proportion as the number is large. Besides, there are some men, who, surrounded with the popularity of the moment, would be more engaged with the audience than with the assembly; and the discussion would take a turn more favourable to the excitements of oratory, than to logical proofs.
It would be proper, in the distribution of these places, to allow a particular seat for the short-hand writers; another to students of the laws, who would find there a school and models; another for magistrates, whose presence would be doubly useful. It would be proper also to keep certain places in reserve, at the disposal of the president, for ambassadors and strangers, who would carry from this exhibition advantageous impressions respecting the nation, which would fructify in noble minds. Cyneas left Rome more impressed with respect by his view of the senate, than by all the magnificence of the court of Persia.
With regard to places in the public seats, they should be paid for. This arrangement is most favourable to equality, in a case where equality is justice. If you allow them to be taken by the first comers; when there is a large concourse, many persons will be disappointed. The strongest and the rudest will have all the advantage in the struggle.* The gallery would be filled with spectators, who would be the least profited by the debates, and who have the most to lose by the cessation of their labours. Their number, and their want of education, would often lead them to brave the anger of the assembly, and to disturb its deliberations by their approbations or their murmurs.
If the granting of tickets of admission were in the hands of the government, there would not be persons wanting who would accuse it of partiality and dangerous intention. There! they would say, the ministers have surrounded us with their creatures, in order to restrain our deliberations, &c.
This subject of discontent would be removed, by giving the tickets of admission to the members themselves; and I see only one objection to this: it would restrict the prerogative of publicity, instead of extending it, by making a common right degenerate into a personal favour, and thus opposing the principle of equality without any advantage.†
A price of admission unites all the conditions. It is an imperfect measure, it is true, but it is the only possible one, of the value attached to this enjoyment. It is also a proof of a condition in life which guarantees a respectable class of spectators.
This plan, I acknowledge, is not a noble one; but the employment of the produce may ennoble it; whilst, as respects those witicisms which may be borrowed from the language of the theatre, they must be expected, and disregarded.
Ought females to be admitted? No, I have hesitated, I have weighed the reasons for and against. I would repudiate a separation, which appears an act of injustice and of contempt. But to fear is not to despise them. Removing them from an assembly where tranquil and cool reason ought alone to reign, is avowing their influence, and it ought not to wound their pride.
The seductions of eloquence and ridicule are most dangerous instruments in a political assembly. Admit females—you add new force to these seductions; and before this dramatic and impassioned tribunal, a discussion which only possessed the merits of depth and justice, would yield to its learned author only the reputation of a wearisome lecturer. All the passions touch and enkindle each other reciprocally. The right of speaking would often be employed only as a means of pleasing; but the direct method of pleasing female sensibility consists in showing a mind susceptible of emotion and enthusiasm. Everything would take an exalted tone, brilliant or tragical—excitement and tropes would be scattered everywhere; it would be necessary to speak of liberty in lyric strains, and to be poetic with regard to those great events which require the greatest calmness. No value would be put but upon those things which are bold and strong; that is, but upon imprudent resolutions and extreme measures.
Among the English, where females have so little influence in political affairs—where they seek so little to meddle with them—where the two sexes are accustomed to separate for a time, even after familiar repasts,—females are not permitted to be present at the parliamentary debates. They have been excluded from the House of Commons, after the experiment has been tried, and for weighty reasons. It has been found that their presence gave a particular turn to the deliberations—that self-love played too conspicuous a part—that personalities were more lively—and that too much was sacrificed to vanity and wit.
OF THE PRESIDENTS AND VICE-PRESIDENTS BELONGING TO POLITICAL ASSEMBLIES.
Of the office of President.*
Rule 1. In every political assembly, there ought at all times to be some one person to preside.
Rule 2. In a permanent assembly, that function is best provided for by a permanent president in chief, with substitutes of equal permanency, in such number, that in case of absence or disability, the place of the chief may at the instant be supplied.
The president ought to be permanent, not only that the embarrassment arising from multiplied elections may be avoided, but especially for the good of his office. If permanent, he will possess more experience, he will know the assembly better, he will be more conversant with business, and will feel more interested in managing it well, than an occasional president. The occasional president, whether he execute his office well or ill, must lose it. The permanent president, who will only lose his office if he discharge it ill, has an additional motive for performing all his duties well.
Rule 3. In the character of president, no more than one person ought to officiate at a time.
If there are two, whenever there arises any difference of opinion between them, there will be no decision. If there are more than two, they will form a little assembly, which will have its debates, which will uselessly prolong the business in hand.
Rule 4. But two persons at least, capable of officiating, ought to be present at once.
This rule is necessary, in order to prevent the assembly from being reduced to a state of inaction from the sickness, death, or absence of its president. The omission of so simple and important a precaution, announces so great a want of foresight, that it could hardly be thought that men would be guilty of it, if a striking example were not exhibited by one of the greatest and most ancient of political assemblies.
Functions, competent and incompetent.
Rule 5. The functions that belong properly to a president, belong to him in one or other of two capacities: that of a judge, as between individual members; or that of agent of the whole assembly:—as judge, when there is a dispute for him to decide upon; as agent, where there is anything for him to do without dispute.*
Rule 6. As judge, a president ought in every instance, to be subordinate, in the way of appeal to the assembly itself, sitting under another presidence.
Rule 7. As agent, he ought in every instance to be subject to the controul of the assembly, and that instanter, as to everything transacted in the face of the assembly.
Rule 8. In neither capacity ought he to possess any power, the effect of which would be to give him a controul in any degree over the will of the assembly.
Rule 9. In a numerous assembly,† and in particular in a numerous legislative assembly, a president ought not to be a member; that is, he ought not to possess a right either to make motions, to take part in a debate, or to give a vote.
This exclusion is as much for his advantage as for that of the body over which he presides:—
1. It leaves him entirely at liberty to attend to his duties, and the cultivation of the particular talents which they require. If he be called to sustain the character and reputation of a member of the assembly, he will be often distracted from his principal occupation, and he will have a different kind of ambition from that which belongs to his office, without reckoning the danger of not succeeding, of offending, and of weakening his personal consideration by ill-sustained pretensions.
2. This exclusion is founded upon reasons of an elevated nature; it is designed to guarantee him from the seductions of partiality, and to raise him even above suspicion, by never exhibiting him as a partisan in the midst of the debates in which he is required to interfere as a judge—to leave him in possession of that consideration and confidence which alone can secure to his decisions the respect of all parties.
But it may be said, that the president, no more than any one else, can remain neuter with regard to questions which interest the whole nation—obliged especially as he is to be continually occupied with them, even as matter of duty; that it would therefore be better that he should be obliged to declare himself, and make known his real sentiments, and thus put the assembly upon its guard, rather than that he should enjoy, under a false appearance of impartiality, a confidence which he does not merit.
To this objection there is more than one answer: First, It cannot be denied, that so long as his internal sentiments have no undue influence upon his external conduct, they are of no consequence to the assembly, but that he cannot declare them without becoming less agreeable to one party—without exposing himself to a suspicion of partiality, which always more or less alters the degree of confidence.
Secondly, If you permit him to remain impartial, he will be so more easily than any one else. He will regard the debates under altogether a different point of view from that of the debaters themselves. His attention, principally directed to the maintenance of form and order, will be withdrawn from the principal subject. The ideas which occupy his mind during a debate, may differ from those which occupy the actors in it, as much as the thoughts of a botanist who looks at a field may differ from those of its owner.
Habit facilitates these sorts of abstraction. If it were not so, how could judges, full of humanity, fix their attention with a perfect impartiality upon a point of law, whilst a trembling family stood waiting beneath their eyes the issue of their judgment.
It follows from what has been said, that in a numerous political assembly, in which it is to be expected that passion and animosity may arise, that he who is called upon to moderate them, ought not to be obliged to enrol himself under the banners of a party, to make himself friends and enemies, to pass from the character of a combatant to that of an arbitrator, and to compromise by these opposite functions the respect due to his public character.
There have been assemblies which have only given a vote to the president when the votes have been found equal. This mode is more opposed to impartiality than that of allowing him to vote in all cases, and there is no reason which can be assigned in its favour. The most simple and natural plan to adopt in case of equality, is to consider that the proposition which has not had the majority of votes is rejected. In matters of election, it would be better to resort to lot, than to give the preponderant voice to the president. The lot offends nobody.
Rule 10. In a legislative assembly, or any other free and numerous political assembly, a president ought in every case to be chosen freely and exclusively by the assembly over which he is to preside.
Rule 11. In the choice of a president, the votes ought to be taken in the secret way, and the majority ought to be an absolute one.*
Rule 12. A president ought ever to remain removable by the assembly at its free pleasure, but not by any other authority.
Rule 13. In a permanent assembly, on the occasion of choosing a permanent president, if there be no other president in office, it may be better to accept a president pro re natâ from without doors, upon the ground of any claim, however slight, if single, than to stand in that instance upon its liberty of choice.†
Rule 14. So for all kinds of business in an assembly, which, however free, is but occasional.‡
A very simple observation will furnish a clue to all the reasons that can be produced or required in support of the propositions above laid down. Throughout the whole business, the grand problem is to obtain, in its most genuine purity, the real and enlightened will of the assembly. The solution of this problem is the end that ought everywhere to be had in view. To this end, everything that concerns the president ought of course to be subservient. It is for the sake of the assembly, and for their use alone, that the institution of this office is either necessary or proper. The duty and art of the president of a political assembly, is the duty and art of the accoucheur: ars obstetrix animorum, to use an expression of the first Encyclopedist and his not unworthy successors;—to assist nature, and not to force her—to soothe, upon occasion, the pangs of parturition—to produce, in the shortest time, the genuine offspring; but never to stifle it, much less to substitute a changeling in its room. It is only in as far as it may be conformable to the will of the assembly, that the will of this officer can, as such, have any claim to regard. If, in any instance, a person dignified with any such title as that of president of such or such an assembly, possess any independent influence, such influence, proper or improper, belongs to him, not in his quality of president, but in some foreign character. Any influence whatever that he possesses over the acts of the assembly, otherwise than subject to the immediate controul of the assembly, is just so much power taken from the assembly and thrown into the lap of this single individual.
It follows, that nothing ought to be permitted by the assembly to be done by a president, that the assembly itself could do in the same space of time.
In the case of an assembly and its president, we see judicial power in the simplest form in which it can exist, and in the simplest set of circumstances in which it can be placed. The judge single: the parties acting all the while under his eye. Complaint, judgment, execution, treading with instantaneous rapidity on the heels of contravention. Happy the suitor, if, in the other cases of procedure, instead of complication and delay, this simplicity of situation and celerity of dispatch had been taken for the standard of comparison and model of imitation, by the founders and expositors of law.
The regulations which have been proposed above appear so simple and so suitable, that it is natural to suppose that they would have presented themselves to all political assemblies.
But if we proceed to consider what has been practised among different nations, we shall find that almost all these rules have been forgotten. The English system, which most nearly approaches to them, differs in an essential point. It allows the president to deliberate and vote. All establishments have commenced in the times of ignorance: the first institutions could only be attempts more or less defective; but when experience renders their inconveniences sensible, the spirit of routine opposes itself to reform, and also prevents our perceiving the true sources of the evil.
OF THE MODE OF PROCEEDING IN A POLITICAL ASSEMBLY IN THE FORMATION OF ITS DECISIONS.
The subject we are now about to engage in, is in its own nature abstract, intricate, and obscure. Of these undesirable qualities in the subject, but too strong a tincture must inevitably be imbibed by the work. To judge by the celerity with which a motion is often-times made, and an order framed in consequence, the path may at first glance appear short and simple. But, in this as in other instances, practice may be short and simple, where description and discussion are tedious and involved. To put in action the whole muscular system, is the work but of an instant; but to describe the parts concerned in that action, and the different modifications it admits of, is to exhaust the stores of a copious and recondite science.
For affording a clue to this labyrinth at the first entrance, no expedient seemed to promise better, than that of singling out, and laying before the reader at one view, the essential points upon which the due conduct of the business seemed principally to turn; suggesting at the same time such regulations as the dictates of utility seemed to prescribe in relation to those points. Chronological order, the order of the incidents, has for this purpose been broken in upon, lest these points of primary importance should have been lost, as it were, in the multitude of less essential details. But though broken in upon, it is not anywhere reversed: and, in the subsequent discussions, strict order will reassume its empire.*
On these few points turn the essential differences between the British and (what, as far as I have been able to learn, has been) the French practice in this line. In these points, too, if the reasoning which the reader will find as he advances be not erroneous, resides the singular excellence, or rather exclusive fitness, of the former mode.
In matters of inferior importance, invention has been set to work; in these, though equally disposed to have hazarded invention, I have found nothing to do but to copy.†
In this bye-corner, an observing eye may trace the original seed-plot of English liberty: it is in this hitherto neglected spot that the seeds of that invaluable production have germinated and grown up to their present maturity, scarce noticed by the husbandman, and unsuspected by the destroyer.
The importance of these uninviting forms is no fine-spun speculation—no fanciful conceit. Political liberty depends everywhere upon the free action and frequent and genuine manifestation of the public will: but the free action and genuine manifestation of that will, depend upon the mode of proceeding observed in going through the several steps that must be taken before any such result can be produced.
Without any such regulations as those here insisted on—in short, without any regulations at all—a general will, or pretended general will, may come now and then to be declared. But of what sort? Such an one as the will of him who gives his purse to save his life, or signs a deed he never read, or takes an oath with an et cætera at the end of it, is to the free and enlightened will of the individual. Without rules, the power of the assembly either evaporates in ineffectual struggles, or becomes a prey to the obstinate and overbearing: Detur fortiori, or rather robustiori, would be its proper motto. Unanimity may glitter on the surface: but it is such unanimity as famine and imprisonment extort from an English jury. In a system of well-digested rules, such as the English practice, with little improvement, would supply, will be found the only buckler of defence that reflection can have against precipitancy, moderation against violence, modesty against arrogance, veracity against falsehood, simplicity against deception and intrigue.
Without discipline, public spirit stands as poor a chance in a numerous assembly, as valour in the field.
Happily the peaceful branch, though hitherto less understood than the military, is neither quite so difficult to learn nor quite so burthensome to practise. The essential articles of it will be found comprised within the compass of a page.
It is the want of such a general will, the natural effect of the total want of discipline, that has been the great cause of the inefficiency and inutility so justly imputed to all former assemblies of the States-General of France; or, to speak correctly, it is in the non-formation of such will—in the perpetual failure of whatever efforts have been excited by the desire of forming one, that this inefficiency has consisted. But a political body lives only by the manifestation of its will. Here, then, intelligence is power; and to administer intelligence, is to give life.
The spirit of the people, the generosity of its superior classes, the unexampled virtue of the Sovereign, and the wisdom of the minister, all concur in promising to France a constitution which may soon be an object of envy, if it is not of imitation, to Great Britain. But inestimable as such a blessing would be, the benefit derivable from it will be found to hang upon so slender, and to many an eye imperceptible a thread, as the system of tactics, or the no-system, which in the form of their proceedings the regenerated assembly may happen to embrace. The pains employed in the construction of this great instrument of public felicity will prove but lost labour, if the only true method of working with it remains unpractised.
Powerful talents, and public-spirited dispositions, comprise the utmost good which the best possible constitution can produce. But of what avail are talents and dispositions, so long as either no decision is formed, or none that answers to its name?
Considerations of such essential importance as I shall have occasion to bring to view, can scarcely indeed at this interesting crisis, and at this era of inquiry, have escaped altogether the researches of an acute and ingenious nation; and the labours of many a pen better suited to the task have probably been employed ere now upon this great object. But as the success with which the public is served, depends upon the use which each man makes of his own powers, and not upon the reliance he places on those of other men—as this, like any other subject, may profit by being exhibited by different writers in different points of view—and as the mention of these more striking articles would be necessary, were it only to save the chain of reasoning that connects the whole, from appearing broken and obscure, the importance of them did not seem a sufficient warrant for the omission either of the provisions themselves, or of any part of the reasoning by which that importance is holden up to view.
In my endeavours to communicate such lights as my researches may be able to throw upon the subject, the following is, in general, the method I pursue:—In the first place are exhibited such regulations, relative to each head, as the dictates of utility appear to recommend; in the next place are subjoined, in the way of question and answer, the reasons by which such provisions came recommended to my notice.* After that, follows a view of the British practice, relative to the points in question; after that again, a view of what I have been able to collect relative to the French practice, the justification and confirmation of which, where it appears right—the correction of it, where it appears wrong—and the completion of it, where it appears deficient, is the principal object of the present work. Lastly, where occasion seemed to require, a few general observations are subjoined, containing such remarks as could not conveniently be brought under any of the former heads; particularly for the sake of placing different branches of the subject in a comprehensive and comparative point of view.
For the purpose of giving an idea of the French practice relative to these points, the fairest specimen, and that which would have rendered every other of small importance, would have been that of the States-General of France. But of this practice, it seems to be agreed that no documents are to be found. One may even see à priori, that nothing of the kind could well have had existence. Between the want of efficiency and the want of form, the connexion is in this instance so natural, that, in default of positive proofs, either of those circumstances might serve as a presumptive evidence of the other. If their proceedings had been attended with any effect, we should have seen the mode in which they proceeded: if their mode of proceeding had been in any tolerable degree suited to the purpose of giving birth to a general will, a general will would at times have been formed; and, being formed, would have been productive of some effect. Nihil fecit is the phrase in which some of the monkish historians have comprised the history of several of their kings.† The same history, with a small addition, may serve for all their national assemblies: nihil fecerunt gives the catalogue of their acts; nullo modo, the form of then procedure.
Failing this source of intelligence, the next one should naturally turn to, is the practice of the few provincial states of ancient institution still subsisting in that great empire.‡ From the journals of these assemblies, if made public, intelligence more or less satisfactory relative to this head could not but be afforded; but unfortunately I have not been able to hear of any such publication, and from circumstances I am strongly led to think no such publication has ever been made.
The only remaining source is that afforded by the modern provincial assemblies, instituted at first in two provinces only,∥ by way of experiment, in the years 1778 and 1779, and at length in the year 1787 communicated to the whole kingdom. The regimen established in these assemblies, if it does not give the most ancient mode of proceeding known in France, gives, what for the purposes of instruction is much more valuable, the latest.
It is more so, in as much as through this medium may be obtained some sort of oblique view of the mode of proceeding observed in the old established provincial states. For, in drawing up a code of regulations for the first instituted of the provincial assemblies, those established for the provincial states compose the model which the committee employed on that business expressly declare themselves to have taken for the basis of their work.* In this code, adding to it the materials furnished by the succeeding establishments of the same kind, we may therefore view the quintessence of that part of the national stock of wisdom which has applied itself to this important subject.
Partly for shortness, partly for precision’s sake, I have chosen all along, as far as the nature of the case would give leave, to exhibit the proposed regulations in the very words in which they might be couched. This practice, which in all authoritative compositions of this nature will be seen to be absolutely necessary, is, in unauthoritative ones, highly useful at least, and convenient. By specification, description is saved, attention arrested, and expectation satisfied: description, however well performed, leaves the main work still undone.
Principal points to be attended to in the mode of proceeding relative to the formation of the acts†of a political assembly.
1. Identity of the terms of the proposition‡ with those of the act proposed.
2. Fixation of the terms of the proposition by writing.
3. Unity of the subject of debate kept inviolate.
4. Distinctness of the process of debating from that of voting.
5. In debating,no fixed order of preaudience.
6. The votes given not one after another, but all at once.∥
Regulations proposed relative to the above points.
Article I. Nothing shall be deemed to be the act of the assembly, that has not been proposed in and to the assembly by a motion made for that purpose,* put to the vote, and adopted by the majority of the votes.†
Art. II. Every proposition, designed to give birth to an act of the assembly, shall be exhibited in writing by the mover, and conceived in the very terms, neither more nor fewer, by which it is designed such act should stand expressed.‡
Art. III. A proposition of any kind having been once received,—until that proposition has been disposed of, no other motion shall be made, unless for one or other of three purposes:—
1. To offer an amendment to the proposition already on the carpet;
2. To propose a mode of putting an end to the business without decision; or
3. To reclaim the execution of some law of order at the instant of its infringement.
Art. IV. The process of debating and that of voting are distinct processes; nor shall the latter be entered upon till after the former is gone through.
Art. V. In debating, no member, after the author of the motion, shall have the right of speaking before any other,∥ but [he who first offers himself shall be first heard,§ or else] the competition for pre-audience shall be decided by lot.¶
Art. VI. Votes, when given openly, shall be given, not one after another, but as near as may be, all together.
Points I. & II. Motion written, and in terminis.
Questions, with Answers exhibiting reasons.
Question I. Why nothing to be given as the act of the assembly that has not been put to the vote, and carried in the assembly?
Answer: This is only saying in other words that no act of the assembly shall be forged.
British practice.—From several orders of the House of Lords, made towards the beginning of the last century, it should seem, that about that period attempts to commit such forgeries had been made.* A counterfaction of this kind could not well have had for its author any other person than either the ministerial officer (the clerk) who has the penning of the journals, or the presiding officer (the Speaker), under whose authority and command the other acts.
The practice of the House of Commons furnishes two examples, and, as far as appears, but two, of an incongruity, the notice of which may serve by way of illustration to this rule.
One is that of a memorandum on the journals, that “the Speaker, by leave of the House, declared it to be their sense,” so and so.† Was a motion in those words made, put to the vote, and carried? If not, no leave of the House was given, no sense of the House was taken: in the other supposition, the history given in this memorandum, which is a long and rather a perplexed one, was of no use. The usual introduction, the word ordered, or the word resolved, would have been a much more intelligible one, and just as proper in this case as in any other.
2. As to the other instance. At the commencement of every session, immediately upon the return of the Commons from the House of Lords, where they have been all hearing the king’s speech in a place not big enough to hold a quarter of their number, before any other business is done, a bill, in pursuance of ancient orders, is read by the clerk, by direction of the Speaker, for form’s sake.‡
“This custom,” says Mr. Hatsell,∥ “I understand to be nothing more than a claim of right of the Commons, that they are at liberty to proceed in the first place, upon any thing they think material, without being limited to give a preference to the subjects contained in the king’s speech.” That such was the reason, may be, and upon the strength of such respectable authority, I suppose is, very true. But such a form is as absurd in itself as incompetent to the end. This thing called a bill, what title can it be said to have to that name? The clerk reads it, because the Speaker orders him: whence comes it? From the Lords? Not so: for as yet they have done nothing, any more than the Commons. From the Speaker? But he has no right to make so much as a motion for leave to bring in a bill, much less to bring in a bill without leave. A bill is a composition presented by some member: the thing here called a bill, is a child without a father, born, like Melchisedec, in the way of equivocal generation. The case seems to be, that at the time this order was established, no clear idea of the mode of generation of an act of the House seems to have been as yet formed. It was not as yet understood, that a composition, to be an act of the House—that is, of all, or a majority of the members—must, if it took its rise in the House, have begun by being the act of some one member. But to appear to be the act of some member, it must have been exhibited by him as such; and to make such exhibition, is to make a motion.
Years after this period, or these periods (take any of them) in the House of Lords, as we have just been seeing, things would be starting up, pretending to be acts of the House—orders, resolutions, rules—nobody knew how. There seems to be but too much ground for apprehending that this may still be liable to be the case in the French practice. But of this a little further on.
Make what one will of it, being no act of the House, it is no exertion of any right of the House: it answers not that purpose, any more than any other.
The right in question, so far from receiving any support from this futile form, neither requires nor admits of any support whatever. It exists of necessity in the first instance: it follows from the very constitution of that and every other political assembly. Nothing can be done—nothing can be expressed by the House, without being done, without being expressed, at some time or other, by some member of the House: expressed either viva voce or by writing, or in some other mode, no matter what—say, for instance, viva voce, by speaking. But when a man is up to speak, who shall say what it is he will speak, abstraction made of any antecedent rule? He speaks not to the business offered to the House by the king, but to that or any other business, as he thinks fit. For the House therefore to be in possession of this right, there can need nothing but the non-existence of a rule to the contrary.
The futility of this form appeared on the same recent occasion on which the establishment of it was recognised. On the 15th of November 1763, before this pretended bill was read, Mr. Wilkes and Mr. George Grenville start up together—Mr. Wilkes, to tell his own story about a breach of privilege, and Mr. Grenville (then minister) with a message on the same subject from the king. Great debates which should be heard first—Mr. Wilkes’s speech, Mr. Grenville’s speech, or the bill: it was carried at last in favour of the bill.* What was got by this? The House had the pleasure of hearing this bill; and then there was the same matter to settle—who should be heard first,—Mr. Wilkes, or Mr. Grenville, as before.
Question II. Why in writing?
Answer: 1. Because it is only by writing that the tenor of any discourse can be fixed for any length of time.
2. It is only by such fixation that it can be ascertained that the draught exhibited is capable of standing as a resolution of the assembly, in the very words in which it is proposed.
Question III. Why put into writing by him who makes it, and not by any one else?
Answer: 1. Because no third person can so well tell what it is a man means as he himself can. If the words of it, as committed to writing, are chosen by anybody else, the utmost accuracy it can aspire to in the hands of such third person is, the being as exactly representative of the meaning of the avowed author of the motion, as if he himself had chosen them. But the chances are rather against its possessing that extreme degree of accuracy; and were they ever so much in favour of it, yet so long as there is the smallest chance on the other side, such chance will form a conclusive reason against the committing the business of penning the motion to anybody else.
2. To save time. Between the penner and the author, where they are different persons, a conversation of some sort must be carried on. This conversation may, and frequently must, occasion discussions and disputes. The sense of the author may be perverted by accident or design: or, where no such perversion takes place or was intended, it may be suspected. All this while, business must be at a stand, and the assembly sitting to no purpose.
Let it be of the mover’s penning; and while he is about it, no part of the assembly’s time is taken up. He may have penned it out of the house, and ought so to do (as will be seen farther on) whenever it can be done.
3. To promote maturity of composition.—If the author of a motion is permitted to rely on a third person for the penning of it, such permission will be liable to produce hasty indigested motions, the impropriety of which the author himself, had he been obliged to put them to writing, might have discovered. Writing summons up the attention to apply itself to the discourse written, and furnishes it with a fixed subject. Whoever, in any instance, has corrected what he had once written, may find, in that single instance, a reason fully sufficient to justify the establishment of this rule.
Question IV. Why in the very words in which, when made an act of the assembly, it is proposed to stand?
Answer: 1. Because no other terms can express, with the certainty of being accurate, the object which the author of the motion proposes to the House. The composition given as the act of the assembly, is not really its act, any otherwise than as far as it is the very composition which those, whose votes form the decision of the assembly, have given their votes in favour of. If the discourse they had voted for differs, in a single word for example, from the discourse exhibited by the author of the motion, then, as to such word, it is not of his penning; which, as has just been proved, it ought to be. The only discourse they can have meant to adopt, the only discourse they can all of them, and from the beginning, have had under view, is, to a word, the very discourse presented to them by the mover: if the resolution given in their name by any one else—the secretary, for instance, or the president—differs from that original in a single word, it is, pro tanto, a forgery.
I say, in a single word: for every one knows, that in a single word may be comprised the most important alterations: take, for instance, the word not.†
British practice.—In every art, the proper mode, how simple soever, and how incontestably soever, when once hit upon and clearly stated, it appears to be a proper one, and even the only proper one, is seldom the one pitched upon at first.
In the British House of Commons it was the ancient practice, we are informed by Mr. Hatsell,* “for the Speaker to collect the sense of the House from the debate, and from thence to form a question, on which to take the opinion of the House; but this,” adds he, “has been long discontinued; and at present the usual, and almost universal method is, for the member who moves a question to put it into writing, and deliver it to the Speaker; who, when it has been seconded, proposes it to the House, and then the House are said to be in possession of the question.”
From Lord Clarendon’s account of his exploits in the character of chairmen of a committee,† there appears some reason to suspect, that at that time the practice spoken of in the above passage still subsisted: otherwise it is not easy to conceive how that able statesman could have done so much mischief as be boasts of.
The way he took was, amongst other things, to report, which he says he frequently did, two or three votes directly contrary to each other. He must therefore have contributed, more or less, to the making of them so, or the “entanglement” he speaks of would not in any degree have been, what he boasts of its being, his work. Whatever had been their contrariety, had they been moved in terminis and in writing, by their respective authors, it would not have been in his power to have had any share in it.
That such, at any rate, was the practice in the year 1620, two or three and twenty years before the period Lord Clarendon speaks of, appears from the Commons’ journal of that year: in which, on an occasion where the Speaker’s conduct had been the subject of animadversion, in the course of the debates, amongst other charges is that of a practice he was in, of “intricating the question,” and another, of his having “made many plausible motions abortive.”‡
French Practice.—Provincial Assemblies.—What the practice has been in the French assemblies of old standing, such as the Provincial States and the Chambers of Parliament, does not appear, in a direct way, from any documents I have been able to meet with. The affectation of secresy, which, till the present auspicious period, has pervaded the whole system of French, as in general of monarchical government, keeps everything of this sort under a cloud.
But of the general practice and notions on this head, the regimen prescribed to, or imagined by, the lately instituted provincial assemblies, affords pretty good presumptive evidence: and that evidence shows the practice in this respect to have been pretty much on a par with the English, at the time spoken of by Lord Clarendon; that is, about a century and a half ago.
“The reports of the committees,” says an author who has given us a general account of the constitution, discipline, and proceedings of these assemblies,* “the reports of the committees are made with a good deal of care. After having well settled the question, an account is given of the different opinions [avis;] of the effect produced by such and such an opinion [opinion;] of the number of persons who concurred in it; of those who differed from it, and why; of the reasons [motifs] which occasioned each proposition to be adopted or rejected, in part or in the whole; in short, of the opinions [avis] which prevailed generally, or of that which was adopted.”
“This method,” adds the author, “ought always to be that of a committee. The assembly names them, not to pronounce a decision, but to elucidate an affair, and put the assembly in a way to judge.”
This elaborate and careful plan, which, according to the author’s notion, ought to be the plan of every committee, affords a pretty strong presumption, that in those assemblies (supposing this account to be a just one) the simple principle of giving a determinate existence in writing to every proposition, and so proceeding, either to receive that proposition (with or without amendments,) or to reject it, was not known. The resolutions of the meeting, to judge from this account, are jumbled with the minutes of the proceedings, and the accounts of the debates: in the conception of the author, they are unquestionably.
As this is a subject of the first importance to the precision of the proceedings in the great national assembly to which it is my ambition to be of use, to the genuineness as well as clearness of the results, and to the efficacious development of their powers, it may be worth while to give this account a pretty minute consideration, for the purpose of comparing the proceedings as here described, with the standard above laid down.
1. “After having well settled the question—[Après avoir bien pose la question.”] What question? The question, meaning the motion or proposition in question, if delivered in, in writing, by the author himself, can neither require to be settled, nor admit of it. It has settled itself. It may require amending indeed; but that is a very different operation from settling.
2. “After having well settled the question,” an account is given of the different opinions upon it—[on rend compte des differens avis.] What are these opinions?—these avis? They are not decisions upon the question: they are not votes given towards forming such decision. Each question, when put upon a single motion, can admit of but one of two decisions—adoption, or rejection: each vote can admit of but one of three modifications—for the question, against the question, or neuter.*Aris is perhaps, here, put for argument—argument used in course of the debate.
3. “Account is given of the effect which such or such an opinion produced—[de l’effet qu’a produit telle ou telle opinion:”]—a further reason for supposing that avis, as well as opinion, here means argument. The effect that a decision produces, requires no account—no separate account: it produces the adoption of the resolution proposed, or the rejection of it: the resolution, if adopted, needs no account—it speaks for itself. It not only does not stand in need of any account—it admits of none: a composition given under that name, if it be in the same terms with those of the resolution, is not an account of that resolution, but the thing itself: if in different terms, then, so far as the difference extends, the account it gives is a false one.
A vote, if that were meant by avis and opinion, requires not, any more than the decision it has produced, or failed of producing, any account: it is given one way or the other, and the effect of it appears by the decision—by the adoption or rejection of the resolution proposed.
4. Of the number of the persons that concurred in it [in such opinion or argument]—of those who differed from it, and why—[de celles qui s’en sont éloignées, et pourquoi.] This why, this pourquoi, I must confess, I know not very well what to make of. I thought the opinions or avis had been themselves the arguments, and included the reasons: those pourquois, then, must have been the reasons of those reasons.
5. Of the reasons [motifs] which occasioned a proposition to be adopted or rejected, in part or in the whole—[des motifs qui ont fait adopter une proposition, en partie ou en total.]
The perplexity gets thicker and thicker: here we have not only reasons upon reasons, but reasons upon them; for motifs must surely here, as in French it does commonly, when spoken of with reference to an opinion, mean reasons—it cannot mean what in English we term motives. It can never have been meant, that, in these committees, the several members get up, and render an account of the motives that have given birth to their respective votes; saying, one of them, it was patriotism; another, it was the love of reputation; another, it was sympathy for the proposer; another, it was antipathy to the opposers; another, it was the hope of gaining a personal advantage by it that determined me: as little is it likely that the penner of the report should have taken upon himself thus to answer for each man’s motives.
6. Lastly, Of the opinions [avis] which prevailed generally; or of that which was adopted—[enfin, des avis qui ont prévalu généralement, ou de celui qui a été adopté.]
This is still more perplexing than before. What means this opposition between prevailing generally, and being adopted? and how is it that the opinions which may prevail generally are several, while the opinion that can be adopted is but one? If by avis is meant here décisions—decisions of adoption or rejection, on different questions you may have certainly as many decisions—in short, one or other of exactly twice as many decisions as there are questions. If by avis is meant here opinions given separately by the different members upon occasion of the same subject—discourses delivered, which if adopted by the assembly would have been so many resolutions of opinion,—these, if never put to the vote, are not acts of the meeting—acts of the body, but mere acts of the individuals. Yet after all, of this set of opinions there is (it seems, according to this author) one, and but one, which has been adopted. Has it, then, been adopted? It is then an act of the committee—a resolution of opinion passed by the committee. On the other hand, if only one of the set has been adopted, how is it that the rest,—which, since they are thus constructed with that one, must, it should seem, have been opposite and contrary to it,—can have been generally received? A proposition cannot be said to have been generally received by a meeting of any kind, if it has not been received by a majority: and if it has really been received by a majority, how can it fail of having been adopted? An account like this puts one in mind of the grammatical history of the cake:—G got it, and yet H had it.
Considering this confusion as the work of the anonymous author, it would not have been worth all this notice: but the practice, of which the éloge is thus given, must surely itself have been very confused, or it could scarcely have given birth to an account so perfectly confused.
Nothing like this is to be found in the reports of any English committee I ever met with or heard of. They do not report so much as their own minutes; much less do they report their own debates: no opinion is there given, which is not the opinion of the whole. Is a resolution of opinion proposed? If rejected, no traces of it appear; if adopted, it is given, not as the resolution of A or B, but as the resolution of the committee. Is a statement of any affair, or history of any transaction, given? One member, it is true, may have penned and proposed one part—another member another part; but neither the one part nor the other would have stood in the report, if they had not respectively been acceded to by a majority of the committee—if they had not, each of them, been the act of the whole.
Were a composition, like the one thus described, presented, under the name of the report of a committee, to a British House of Commons, what would they say? They would say, “This is no report; you must go back again, and make one.” They would send it back to be re-committed. While A says one thing, and B, neither assenting to nor dissenting from what A has said, says another, this is no report of a committee: the report of a committee is what is said throughout by the major part of the committee, or by the whole.
But these, it may perhaps be observed, are but reports of committees. The committees, of which these are the reports, are very small assemblies, composed of a smaller number of members than what is commonly to be met with in the least numerous committees of a British House of Commons. The members may therefore be considered as acting in their individual capacity: and the reports, given under the name of such committees, may be considered as reports made by individuals. The reports of such committees as these may therefore be thus far informal, and yet the proceedings of the entire assemblies, to which these reports are made, be regular and exact.
Unfortunately, the account given in the same book of the method in which the decision of the assembly itself is formed (I should rather say, of the paper published as the decision of such assembly,) seems to indicate but too plainly, that the only simple and true method of forming such a decision is not less widely departed from in the one sort of meeting, than in the other.
“The opinion once formed by a plurality of voices (votes) [voix,]” says the author above quoted,* “then comes the time for entering it (writing it) [l’écrire] upon the minutes. But this operation (drawing up) [rédaction], requiring a considerable time, the assemblies name committee-men to perform it, and the meeting of the next day opens with the extract of the minutes of the day preceding. This regulation, highly beneficial as it is, since it saves time, may be productive however of a mischief.”
If this account be just, it is impossible that the principle of the identity between the motion and the act of the assembly, should have been observed in these assemblies. For drawing up such act, no committee could have been either necessary, or of any use: no time could have been saved, but a great deal of time sadly wasted and consumed. The act, upon the only just and simple principle the nature of the case admits of, is already drawn up by him who moves it: to enter it upon the minutes is work—not for a committee, but for a copying clerk. Committee-men may be of use, to give a look occasionally to the journals, and see whether the secretary has done his business properly; that is, whether he has entered all the acts, and whether each of them be an exact copy of the original draught: but such occasional inspection is a very different thing from their doing of that business themselves.
The mischief here apprehended by the commentator is, that of the assemblies in general following, upon this occasion, the example which, in a passage which I have had occasion to quote elsewhere, he takes notice of as having been set by the provincial assembly of Tours. This assembly, it should seem, had conceived it proper to see what it was their committee-men had been making them say, and not to let the account thus given stand as definitive, till they, the assembly, had heard it read to them. The commentator, full of diffidence of the assembly itself, lest it should alter its own acts or pretended acts, is as full of confidence in their committeemen. It never occurs to him that, either through design or misconception, the latter can misrepresent, or upon just grounds be suspected of misrepresenting, an act which, under such circumstances it must be so difficult to represent at all, and which in truth can scarcely be said to have existence.
Turn to the journals of these assemblies, and, what is more, to the royal edicts published for the regulation of their discipline, and we shall find them confirm, in this respect, the account given of them by their commentator.
“In the case where divers opinions [avis] shall have manifested themselves, the assembly,” says the royal edict for Haute Guyenne,* “shall be obliged to reduce them to two; and that which has the plurality of votes [suffrages] shall form the act of the assembly [la délibération.”]
What must be done, is done somehow or other, however badly: and therefore, an assembly ordered by royal authority to reduce its avis (whatever is meant by avis) to two, will contrive to do so. But upon the principle of the identity of the terms of the motion and those of the resolution—and supposing only one motion upon the carpet at a time—and supposing the votes to be given upon that one, no assembly could contrive to do otherwise. For or against the motion—the motion adopted or rejected—there is no other alternative.
The truth is, that these different avis, which the royal penman considers as liable to be produced upon a given subject—these avis, as far as they can be said to be anything, seem to have been so many different propositions—so many different motions, which were to be going on and debating at the same time. They are not votes at least; for votes [suffrages] it is understood, are to be given upon them. Taking them for motions, why the number of them should undergo this reduction, is not by any means made apparent. If all are consistent, why not let them all pass into resolutions, if the assembly choose it? If any are inconsistent with others that are preferred, the assembly, one should think, might be trusted to for not passing them: if a man has not sense to keep him from falling into inconsistencies, it is not a royal edict that will give it him.
The assembly accepts this regulation,† adding an amendment, palliating in some degree the inconvenience arising from a fixed order of speaking, as hinted at on a preceding occasion,‡ and more fully developed a little farther on.
The case which I should suppose the penner of this edict to have had in view, is that of a number of motions started at the same time, like candidates on an election. In the English practice this can create no confusion; for the one first started must be first disposed of; the question can only be as to the adoption or rejection of that one: the others come on afterwards, as they are moved. I do not say but that this method admits of improvement: hereafter, a regulation will be seen proposed with that view. But, what is the great point, it thoroughly prevents that confusion which on the French method seems to be inevitable.
I set out with observing, that to exhibit as the act of an assembly a proposition which has not been put to the vote, and carried by the majority of votes in that assembly, is to commit a forgery. If credit may be given to an anonymous, but very intelligent author,∥ this forgery is in France a matter of ordinary practice. It is where he has been speaking of the assembly of the States-General; and not only of that sovereign assembly, but of the particular preparatory assemblies collected for the purpose of sending deputies and instructions to that general one. Resolutions [avis] says he, are drawn up, frequently when nothing has been put to the vote. On rédige les avis, et souvent on ne vote point.
Point III. Unity of the subject of debate kept inviolate.
Question, with Answers exhibiting reasons.
Why not suffer a second proposition to be started (except as excepted) till a former has been disposed of?
Answer: 1. That in the instance of such or such a particular proposition, the assembly may not, by indecison with respect to that proposition, be prevented from taking a course which, had its will been left free to exercise itself upon the subject, it would have taken.
This, we see, is what may be at any time the case, if a proposition, about which the assembly had begun to occupy itself, is thus permitted to be jostled, as it were, off the carpet, by another proposition different from the former, and incommensurable with it, before they are aware.
2. To prevent a degree of confusion, by which, for that time, the assembly may be deprived of the faculty of forming any will at all.
Without some such check, nothing is more likely to happen, even without design; and that in any assembly, much more in a new-formed and numerous one. And the endeavour to produce such an effect by design, is one of the most effectual plans that individual fraud or conspiracy can pursue. In this way a thousand propositions may be thrown out, which, had the assembly been left at liberty to occupy itself about them without interruption—in short, had it been left master of its own will,—must have passed.
A proposition (suppose) has been introduced: a debate arises, and in the course of the debate something is started, from which somebody catches, or pretends to catch, the idea of something else that would be very proper to be done. This something else happening to touch upon a more sensible fibre, the next speaker takes this for his theme. Affections grow warm, and crowding about this second subject, the first is insensibly departed from and forgotten. In the same manner, a third takes place of this second; and so on, till men’s minds are effectually confused, and their whole stock of time and patience gone.
This divergency is what is the more liable to take place in any assembly, especially in any new-formed assembly, inasmuch as it is what scarce ever fails to take place in private circles. In this case, it is productive of no sort of harm: for amusement, which is here the end in view, is better provided for by rambling freely from subject to subject, than by adhering to any one. But in the case of a political assembly, it is productive of the utmost harm which such an assembly, as such, is capable of suffering.
The more eligible in its nature, and the more likely to have been embraced by the assembly, any of these propositions may be in themselves, the greater is the mischief that may result from such an irregular introduction of it. Introduced singly, each at its proper time, each one might have been carried: introduced, one upon the back of the other, each stands in the other’s way—each throws another out, and a confusion is raised to which they all of them fall a sacrifice at once.
The enforcing this law of unity, and guarding it as well from intentional and insidious, as unintentional violations, is one of the uses that concur to evince the importance of keeping the composition, which is the subject of debate, exposed to the view of the whole assembly—But of this in another place.*
British practice.—As to this point, so far as concerns as well the negative put by the general proposition to the introduction of extraneous matter, as the choice of the exceptions, the British practice is exactly conformable to the regulation above proposed. But in respect of the details relative to the mode of conducting the several businesses which form the matter of those exceptions, it has been deemed open to improvement, in a variety of particulars which will present themselves as we advnce.
French practice.—Of the French practice relative to this point, some intimation has been given under the preceding head. What farther remains to be said of it, will more conveniently be referred to the next. The points themselves being so intimately connected, and the practice relative to each being a consequence of the same principle, it is next to impossible, upon any one of these topics, to avoid touching upon the rest.
Point IV. The process of debating distinct from, and prior to, that of voting.
Question, with Answers exhibiting reasons.
Why not allow any vote to be given till the debate is finished?
Answer: 1. That the decision given may not prove an improper one, on the score of its having been built upon insufficient and partial grounds.
To vote for or against a motion, is to judge—to exercise the office of a judge: to speak for or against it, is to exercise the function of an advocate. To vote before any one else has spoken in the debate, is to judge altogether without documents—altogether without grounds: to vote while there still remains any one to speak, who has anything to say, is to judge without documents pro tanto. Is there any one member whose speech is to be looked upon as proper to be attended to in this view?—so, for the same reason, must that of every other: since, abstraction made of the differences in point of talent between individuals—differences of which no general rules can take cognizance, every man’s speech presents just the same probability of affording useful lights, as that of every other.
2. That the decision given may not be exposed to the danger of proving an improper one, on the score of its being expressive of a will different from the real will of the majority of the assembly. Conceive a list of members, speaking in a fixed order, and each man giving his vote, as his turn comes, at the end of his speech, or without making any speech, as he thinks fit. The first upon the list, after having said what he thinks proper, gives his vote; all the others, down to the last, give their votes on the same side. The last, when it comes to his turn, gives a contrary vote, grounded on arguments which had happened to escape all the preceding voters, but which, when once brought to light, stamp conviction in their minds. What is the consequence? A decision is given, purporting to want but one voice of being an unanimous one: but, in fact, contrary to the unanimous will of all the members whose decision it purports to be.
British practice.—In all political assemblies, the idea of which would be presented by that name to an Englishman unacquainted with, or not thinking of, the state of things in France, the British practice agrees perfectly with the recommendation given by this article—so perfectly, that it is to the rule itself that he would probably stand indebted for the first conception of its being possible to depart from it.
The mode of proceeding in courts of justice on this head, might indeed, if considered in this point of view, furnish an exception to this rule: but in this point of view an Englishman would not be apt to consider it, the business of a court of justice standing upon a footing altogether peculiar in this respect, as will be seen hereafter.
French practice.—The French practice relative to this important point, is so inextricably interwoven with the practice observed in the same country in relation to the other less important points, of which the enumeration has been already made, that to touch upon any one of them, without encoraching upon the rest, is scarcely possible.
The process of speaking seems scarcely to have been distinguished from that of voting, or the thing called a speech from the thing called a vote, even in idea; the same terms, opinion and avis, being employed, as we have been, to denote, indiscriminately, the one or the other, or both together. Not being distinguished in name, they would remain undistinguished in exercise; and each man, in making his speech, whether it consisted of ten words, or the amount of twice as many pages, would of course give his vote at the same time; and that perhaps without suspecting that in so doing, he was doing two different things at once.
But, whatever each man chose to say, whether barely enough to give that signification of his will which a bare vote would give, or enough to make a speech of two or three hours in length, it happened to be so ordered, that each man should say it in a fixed order, as between man and man; such a member, if present, always speaking first—such another second—and so on. Precedence—that is, the order of sitting—was carefully settled upon such principles as were thought the proper ones in such case; and pre-audience, including speaking and voting—pre-audience, as a matter of inferior importance, was made dependent on precedence. From this combination—of confusion in what required order, and order in what required none,—results an effect which it is difficult to state with any degree of seriousness. The chance a man has of gaining partisans to his opinion is proportioned, not to the cogency of his arguments, but to the fancied height of the place in which he sits. Conceive this regimen adopted by the States-General, consisting (suppose) of 1100 members: he who sits first may hope to persuade 1099; the hopes of his next neighbour are confined to number 1098; and so down to the lowest, who sees nobody on whom his eloquence can make any effective impression but himself.
On the other hand, the chance a man has of forming a right opinion, is exactly in the inverse ration of the chance he has of gaining partisans to that opinion. He who has it in his power to govern everybody, has it not in his power to receive lights from anybody; he into whose lap the collected wisdom of the whole assembly is poured in a full tide, sees no one to whom he can give the benefit of illumination but himself. If the ingenuity of government had employed itself in considering by what means wisdom might be most effectually disjoined from power, no other method equally happy can possibly have been devised.
One glance more at the regulations of the Provincial Assemblies: they will afford an instructive example or two, of ingenuity and observation struggling against precedent and prejudice.
First comes Haute Guyenne. Strangers to the principle of the identity of the motion and the resolution grounded upon it, they had found themselves entangled, in manner as above noted, with a multitude of avis, opinions—things that were neither motions nor speeches, nor votes—but something betwixt all three, springing out of one subject. The king’s provisional code had ordered the reduction of these avis to two; viz. the two which after one round of avis had found the greatest number of voices in its favour. The consideration of this article had suggested to the Guyenne committee an imperfect view of the inconvenience of this orderly method of proceeding: the avis of a member low in the scale of opinans, though it was possible it might be the better of the two, could not possibly have so many suffrages in its favour as that of a member higher in the scale might acquire. The remedy hit upon was—not to keep the processes of debating and voting separate—that was a step too wide from precedent and establishment to be thought of,—but to have two rounds of avis.* Then (say the committee,) a man who upon the first round has heard the avis given subsequently to his own, with the reasons that may have been produced in favour of them, may, upon the second turn, sacrifice his own to that of somebody else. That he may, is not to be disputed: but will he? Unfortunately, it is not quite so easy to human pride to adopt a right opinion after having avowed its opposite as before: and, it such be the case between equals, how must it be where the conversion cannot take place without mortifying the pride of rank, as well as the pride of wisdom?
This step towards reason was thought, it should seem, too bold. Seven years after this period, the Assembly of Orléans, though willing to do something, had not resolution, however, to venture quite so far.† It was settled, that “for ordinary business there should be but one round of opinions, in which a man should be allowed to develope his arts; but that in matters that appeared to require discussion, the president, in conjunction with the first opinans of each order,‡ should judge whether the matter subjected to d’liberation required two rounds of opinions, and that this decision should precede the délibération.”∥
One assembly there is, in which the process of debating; and that of giving the opinions, are distinguished and kept separate; and this is that of Picardy.§ The province nearest to England has, on this important point, come over to the English practice.¶ This coincidence, however, can scarcely be reckoned other than fortuitous; it goes no farther: these opinions are the same indeterminate sort of thing, or nearly so, here as elsewhere: they are not mere speeches indeed, but they are something betwixt motions and votes; they are sorts of things of which an indefinite multitude are liable to start up, and which, in Picardy as in Haute Guyenne, require force to reduce the number of them to two.*
To wean a man completely from an error from which the chains of habit have rendered it difficult for him to break loose, no recipe is so effectual as the indication of its source. In the present instance, the cause of this entanglement of two processes, which in point of utility it is so necessary to keep distinct, may be traced pretty successfully in two circumstances. The one, which however may be looked upon as rather the effect than the cause, is the confusion of ideas indicated by the equivocal nomenclature already noticed: the other is the junction of the two processes in the practice of courts of justice, in which, as we shall presently observe, such a junction stands upon a very different ground, and is in some cases not productive of any inconvenience, and in none, of any degree of inconvenience approaching to that of which it is productive in the case of a political assembly of any other kind.
While no difference was as yet descried between original motion, motion in amendment, argument, and vote;—while men were as yet to learn how necessary the concurrence of all these objects is to the formation of a rational decision—how distinct they are in themselves, and how important it is to keep them so;—when the art of applying a correction to the original proposition, in such manner as to enable the assembly to choose between the proposition uncorrected and that which would be the result of the correction, was as yet unknown;—when, on offering a fresh proposition in the course of a debate, a man had not yet learnt so much as to ask himself what influence it would have, or what he meant it should have, on the fate of another that was already on the carpet;—what occasion, what warning, what motive should men have had for separating—in short, in this state of the progress of intelligence, what possibility of separating—argument from vote,—and that so perfectly as that all the arguments should be exhibited at one time, and all the votes at another? In common discourse, though the distinction equally exists, no such separation usually takes place; and common discourse is not only the natural, but, till some particular reason presents itself to the contrary, the proper model for regular debate.
All objects present themselves at first appearance in the lump; discrimination and separate nomenclature are the tardy fruit of reflection and experience. In Europe, a dog and a horse are become different animals; at Otaheite, the first horse was a great dog.
Not only in the unfettered intercourse of common conversation is this separation neglected, but the case is the same in the regulated practice of the species of political assemblies instituted for the purposes of justice. This practice is the model which the legislators of the modern provincial assemblies, and before them those of the ancient provincial states, would naturally have before their eyes; it is from this source that the spirit of their laws would naturally be drawn.
The mode of proceding in the States-General, which ought naturally to have been the model for popular or pretended-popular assemblies, was too unsettled to serve as a model for anything, even for itself.
Courts of justice must have existed at all times, and everywhere; and everywhere and at all times, the members of them must have delivered arguments, and given votes.
That the regulations given provisionally to the provincial assemblies by royal authority, or those settled by the assemblies, had lawyers for their authors, we are nowhere told, as it is not natural that we should be. That matters of law should be given to a lawyer to draw up, is however nothing more than natural; but to a lawyer, the model of perfection is naturally the practice of his court.
That such should have been the regimen pursued by judges in courts of justice, is not to be wondered at: nor, in courts of justice, where the number of the judges is very small, and which confine their transactions to the business of administering justice, is it to be blamed. The principal courts of justice in France, the courts of parliament, though always abundantly too numerous for courts of justice, were at their first institution less so than at present: and it was at that early period that their practice in this particular must necessarily have been settled.
These judicial assemblies, and the sort of administrative bodies formed by the provincial assemblies, were so far analogous, that both sorts were assemblies of a political nature—both had propositions to decide upon, resolutions to form, and votes to give. But there is one point in which the analogy totally fails; and this point, obvious as it appears when once started, seems totally to have escaped the observation of the man of law. In judicial assemblies, in as far as they act judicially, no resolution comes to be formed, no vote comes to be given—not even that of him who stands foremost upon the list, till after the question has undergone a full and elaborate discussion by advocates on both sides. But in political assemblies, in the narrower sense of the word, in assemblies legislative, administrative, or merely popular, there is no such distinct class of persons; at least none such has, anywhere that I recollect, made its appearance hitherto separate from the rest. In assemblies of these latter descriptions, each member unites in his single person the distinct, and in a certain sense opposite, characters of advocate and judge. By his vote he exercises the latter function; by the part he takes in the debate—by his speech, in a word—and in the case of the author of a motion, by the making of that motion—he exercises the former.
He who, standing first upon the list of speakers, gives his vote at the conclusion of his speech without hearing any of the others, acts exactly as a presiding judge would do, who should begin with giving an opinion in favour of the plaintiff or of the defendant, without hearing a syllable from the parties or their advocates on either side. I mistake; he acts still worse: he decides not ignorantly, without hearing anything from anybody; but partially, after hearing only on one side. A proposition of some sort or other is upon the carpet; it must have had somebody for its introducer: this introducer has been heard in favour of it; it is therefore upon this partial representation only that the vote of the member who stands first upon the list, must under this regimen be formed.
In the judiciary line, the French and British practice on this head are similar in appearance, without being so in effect. In both instances, each man’s vote, it is true, follows immediately upon his speech; but in the British practice this usage is attended with no inconvenience, the senior judge, from being the first to speak and to give his vote, loses nothing in point of intelligence; the junior judge, from being the last, loses nothing in point of influence. Why? Because the speeches they make in public—the speeches they are heard to make, are not the speeches by which their judgments have been determined: in a word, their speeches are not debates. What debates may happen to take place among them, are always private; they are carried on in whispers, or out of court among themselves. Before any one begins to speak, every one of them knows the mind of every other: their speeches, accordingly, are addressed, not to one another, but to the parties and the audience. Their object in making these speeches is not to make proselytes of one another: that object is either already compassed, or recognised to be unattainable. Their object, if unanimous, is to instruct the audience, and plead, each man, in favour of the whole number;—if there be a difference of opinion (an incident, in South Britain at least, very rare) to defend and justify at the bar of the public, each man his own side.
How happens this? Because the smallness of their number renders this kind of concert practicable. In England, in ordinary cases, the number is not more than four; they sit close together: the whisper of a moment is sufficient to inform them whether the opinion of the three junior judges coincides with that of the chief; if it does not, an adjournment of the cause, to give them an opportunity of debating the matter over in private, is the constant consequence.
When the whole twelve form themselves into one court—an incident that does not take place perhaps so often as four times in a twelvemonth—the small increase in number resulting from the junction makes, in this respect, no difference: here, as in the other case, the public declaration of opinions is constantly preceded by private conference.
In the court of justice composed by the House of Lords, the numbers, and other circumstances, being so widely different, the practice is accordingly different. The number who have a right to be present is very large; the number actually present is liable to prodigious fluctuation. The members of this large body are not collected together in one place—are not in the constant habit of living with one another, as are the members of that small brotherhood. Among the Lords there can be no general conference but in a formal debate: accordingly, among them the process of debating is as distinct from that of voting, when they act in their judicial capacity, as when they act in their legislative.
The French parliaments—at least the principal body of that denomination, the parliament of Paris—bear, in relation to the points in question, a much greater resemblance to the House of Lords than to the ordinary courts of justice in Great Britain, and particularly in England. The number commonly present in the House of Lords is scarcely equal to the number commonly present in the parliament of Paris, when all the chambers are assembled. When that body, stepping aside out of the track of justice, takes cognizance of business appertaining to the departments of legislation and administration, its numbers, instead of being less than on the other occasions, are commonly greater; both by the extraordinary affluence drawn by the importance of the business, and by the addition of the peers, whose presence on such great occasions is commonly requested. Yet in no instance, as far as I have been able to learn, does this assembly ever depart from the judiciary usage of confounding the two processes of debating and voting, in manner above mentioned.
Point V. In debating, no fixed order of pre-audience.
Question, with Answers exhibiting reasons.
Why not admit of any fixed order of pre-audience in debate?
Answer: 1. Because a fixed order is unfavourable to the growth of that intelligence on which rectitude of decision in great measure depends; to wit, in as far as intelligence is the fruit of industry, excited by emulation.
A man who finds himself low upon the list, may, in ordinary cases, naturally expect to find his arguments forestalled; and the lower he is, the less will it appear to be worth his while to be at the pains of studying the subject, for so small a chance of distinguishing himself, or being of use. Should superior ability or perseverance now and then get the better of this obstacle, still it is an inconvenience in itself, and a disheartening circumstance to reflect on, that his arguments cannot be produced till after the attention of the hearers may have been exhausted, and their appetite palled.
In this line, as in every other, the less a man’s faculties seem likely to be worth, either to himself or others, the less labour will be bestowed in cultivating them.
2. It tends to waste time by increasing the quantity of useless discourse.
What is lost in point of intelligence, may be made up in words. A man who stands high upon the list, standing in that conspicuous station, and finding himself perpetually called upon to speak, may fancy himself bound, as it were, to obey the summons, and speak at any rate, as it were in his own defence. Something he must every now and then say, to the purpose or not to the purpose, willing or unwilling, prepared or unprepared.—“For so many days together, nothing but a silent vote? This will never do: I must make something of a speech to-day, or people will begin to look upon me as nobody.”
Thus, while the able and willing are shoved out of the list of speakers with one hand, the ill-qualified and unwilling are dragged into it with the other.
3. It tends to diminish the measure of intelligence imparted to the assembly, and thence to diminish the chance in favour of rectitude of decision, in another way; viz. by preventing that concert between persons possessed of different talents—that casting of the different parts, which may be so necessary to the displaying of the strength of the cause on every side to the best advantage.
One man, for instance, shall be fittest for the business of statement and narration:
Another man, who is capable of urging this or that argument with a superior degree of force, shall be unable to grasp the whole compages of the business:
A third, who can begin nothing of himself, shall be excellent at improving a hint by another, or correcting an error, or supplying a deficiency:
A fourth, though sparingly endued with the power of invention, shall be good at summing the arguments offered by others, and putting each argument in its proper place.
A fixed order, with its blind inflexibility, shall chop and change all these parts, turn topsy-turvy the order designed by reason and by nature: the reasoner shall stand before the narrator, and the recapitulator before both.
Setting aside the case of previous concert, and supposing the order to be fixed any how, some error may be advanced by a man—say in matter of fact, say in matter of argument, which, as it happens, somebody of those who spoke before him is in a condition to correct, but no one of those who are to speak after him. What follows? That if the rule of fixed pre-audience be observed, the error must pass uncorrected, and be received for truth. So often as this happens to be the case—and there is no occasion on which it may not happen—truth and this rule are incompatible.
4. It tends to strengthen whatever hold might be obtainable by seductive influence; and thereby to throw discouragement in the way of sincerity and truth.
Every man having to say something in his turn, and to show the side he takes, by his vote at least, if not by a longer speech, those who stand lowest upon the list will be obliged, whether they will or no, to see, and it will be known that they see, the part that is taken by every man who stands above them. But of this more fully under the next head.
5. Considered in respect to its influence on the rights of individuals, it puts all the members upon an equal footing: and on this head at least, equality is justice. Whatever be the advantage of speaking before or after another man, no reason can be given why one member should enjoy it in preference to another: the consequence is, they ought all to have an equal chance for it.
In point of real importance, this last consideration rank at a great distance behind the preceding ones. In those cases it is the interest of millions that is concerned: in this, it is the interest of units. But even this ought not to pass unnoticed; for millions are composed of units. And in the present instance, it is the interest of the units that is the most palpable, and the most immediately at stake.
British practice.—The order in which members speak, is that in which they happen to present themselves for that purpose;* which they do by rising from their seats.† In case of doubt which person, out of a number, was up at first, it is the province of the Speaker to decide;‡ that is to say, provisionally; for ultimately nothing can be decided but by the House.‡ Upon each occasion, the race, if so one may term it, is renewed; by starting up second, on any occasion, a man does not acquire the right of being heard first upon a succeeding one.
This mode is liable to inconveniences, which a person not rendered insensible to them by habit, will not find it difficult to divine; and which will be considered, and a remedy endeavoured to be found for them, farther on. But these inconveniences are nothing in comparison of the advantage gained by the avoidance of those which, we have seen, are the inevitable result of every kind of fixed order whatever.
In the British practice, the fundamental principle is equality: and here, in prescribing equality, public utility concurs, as we have seen, with justice. In the particular course taken to enforce and apply the principle, injustice, or at least the danger or appearance of it, as we shall see hereafter, have insinuated themselves. But under the greatest practicable degree of injustice, its efficacy on this head can never fail of meeting with a powerful controul in the influence of chance—that incorruptible power, which in this, as in so many other instances, is the best guardian and firmest protector that equality can have. At the worst, it is but occasional injustice; and between occasional and constant injustice there is no comparison.
French practice.—In the English practice we have seen disorder at the surface—utility and justice at the bottom. In the French, we shall see order at the surface—inconvenience and injustice underneath: the private injustice palliated, or rather modified in different ways; but the public inconvenience remaining unaltered, and in full force.
In the code of regulations adopted by the first of the two pattern-assemblies, the provincial assembly of Berri, the following is the course laid down. The ecclesiastical members are to sit and speak in the order of their nomination to their respective benefices:∥ the noblesse, in the order of their age:§ the third estate, according to an order which it is declared shall be fixed as between the districts which they represent.¶ The monster equality being thus, by different processes, extirpated from the three different classes of citizens, order—good order, bon ordre, as doubtless it appeared—was established, and the duty of the legislator done.
The clergy, it is to be observed, stand first in dignity; after them the noblesse; the third estate in the rear. Accordingly, the clergy are placed all together at the right of the president; the noblesse on his left; and the third estate, below them on each side.* The important article of sitting being thus adjusted upon strict constitutional principles, the inferior businesses of speaking and voting admitted of a temperament. Accordingly, for the purpose of opining, the whole assembly, consisting, when full, of forty-eight members (exclusive of the two procureur-syndics,) is considered as distributed into parcels: twelve parcels, four in each parcel; the four consisting of an ecclesiastic, a noble, and two of the third estate. He who sits uppermost of the ecclesiastics is thus joined with him who sits uppermost of the noblesse, and with the two who sit uppermost of the third estate; and so downwards throughout the list.
If, by this expedient, the individuals concerned were satisfied, that was one great point gained. What was gained in the other points?
1. Nothing in point of emulation.
2. Nothing in point of saving time and words.
3. Nothing as to the convenience of casting the parts, or correcting mistakes.
4. A small matter as to the dimination of undue influence. This influence, as between men of different classes, is reduced in some degree: but the influence of man on man, in the same class, is left untouched.†
5. Nothing in the article of equality. Where all have a right to be upon an equal footing, every scheme of preference is equally unjust.
In the second of these two original assemblies, that of Haute Guyenne, a fixed order is settled upon the same principles, with some little variation as to the details:* and, as a fruit of the experience gained in the two years that had elapsed between the institution of the two assemblies, and as a means of providing the more effectually against any violations of this good order, it is provided, in terms more positive than those employed in the Berri code, that no member shall give his avis till called upon by the secretary for that purpose.† The end in view was, I suppose, to prevent interruption: but the means employed are such as render the exercise of every member’s right dependent upon their servant’s pleasure.‡
In the Assembly of the Notables of 1787, another course was prescribed by royal mandate. The voices [“voix”]∥ were here to be taken, not in the order of sitting, which we may be sure was the order of dignity, but in the reverse of that order. This course was directed to be observed as well in full assembly, as in the seven committees into which the assembly was immediately broken down.§
This plan, with all its impropriety, was no inconsiderable improvement. It was the least bad of all fixed orders that could be devised.* The influence of will on will is thus reduced to its minimum: as far as the quantum of influence is to be measured by the degree of dignity. Other advantages might be pointed out, were it worth while to spend words in measuring shades of inexpediency, with perfect expediency in full view.
Point VI. Simultaneity of the Votes.
Question, with Answers exhibiting reasons.
Why require the votes to be given all at once, rather than one after another, according to a predetermined order?
Answer: 1. To save time—of which, in a numerous assembly, the taking the votes one after another, though it were in the most expeditious mode possible, must occasion an enormous waste.
Imagine the States-General of France voting, in the order of regular succession, upon every motion, how much soever in course; and contrast this process with that observed in the British House of Commons, open, as I conceive it will be found to be, to further improvements. In the House of Commons, when there is no division, as is the case with perhaps ninety-nine motions out of a hundred, the business of taking the votes is the affair of two instants: one, in which the affirmative votes—the other, in which the negative votes, are called for. In the States-General of France, under the regimen supposed, that same business would be the affair of about eleven hundred such instants: that is, about five hundred times as much time would be consumed in the latter case as in the former. One might even say more: for when eleven hundred votes are given one after another, accounts must be taken, whatever be the eventual disparity, and a deal of time consumed, in taking care not to omit any man, nor count the same man more than once.
2. To lessen the efficacy of undue influence.
I say only to lessen it; for if two men are absolutely and bonâ fide agreed to play the parts of master and slave, or pope and devotee, what possible means will there be of hindering them? Neither the process of crying Aye or No, nor that of holding up hands, can be rendered so exactly simultaneous, but that, if the slave is bonâ fide upon the watch, he may wait to observe the part taken by the master’s voice or hand, so that his may take the same. But to the slave who feels an inward disposition to rebel, the practice of simultaneity may upon occasion furnish excuses that may stand a better or worse chance of being accepted:—“I beg a thousand pardons: I took another man’s hand for your’s.” “If I have acted honestly for this once, it was through mistake: the matter appeared unfortunately so clear to me, that I made no doubt of finding your hand on the same side.”
Wherever a loop-hole offers itself at which probity may make its escape from the trammels of seductive influence, it is plain that too much care cannot be taken to leave it open. See the section on the cases where the secret mode of taking the votes is the proper one, viz. Chap. XIV. § 2.
The concealment thus recommended is not that which forms the inconvenience, where there is any, resulting from the secret mode of voting. It is only the will of the seducer that is concealed, for the moment, from the knowledge of the voter—not the conduct of the voter that is concealed, at the long run, from the knowledge of the public.
The result of a decision given in this summary way may, it is true, come to be done away by another decision, given on the same question, in the exact and regular mode: but this latter opposes, or at least may be made to oppose, to improbity, other checks which are peculiar to itself: of which in another place.†
British practice.—The mode of voting pursued in the British practice accords thus far with the recommendation given by this theory. In the summary way, the voices given on each side are all lifted up promiscuously, and at the same instant. In the regular mode, on a division, all the feet move promiscuously, and as fast as they can. A division is not conceived to be either a procession or a dance.
In both cases, the practice is not free from particular inconveniences, which will be represented, and remedies proposed for them, in another place. In both cases, the outlines might be better filled up than they are; but the outlines themselves are just.
In point of diminution of undue influence, the advantage gained is perhaps no great matter. It is out of the question altogether in the regular mode, where the part taken by everybody being deliberate and conspicuous, must be observed by everybody: and in the summary mode, it cannot be expected to amount to much on those great questions of national importance, where party puts its shoulders to the task, and the part to be taken in the House is previously settled by most of the members at private or less public meetings. But still there are not wanting a multitude of occasions on which, under favour of this part of the discipline, probity may make its escape from undue influence. Let the advantage gained in this way amount to ever so little, it is so much got out of the fire.
French practice.—In the French practice, the speeches, where a man has anything to say, are made in a predetermined order, as we have seen; and as each man’s vote comes immediately after, or instead of—in short, is confounded with—his speech,—hence vote follows after vote, as speech does after speech.
Speaking with an eye to the States-General, I have brought to view the enormous quantity of time which, upon this plan of regular succession, the mere operation of voting must of itself, in an assembly so numerous, unavoidably consume; but when to this one adds the process of debating, and the multitude of speeches which, in an assembly of eleven hundred persons, all picked men, selected for their talents by and out of four and twenty millions of people, may be extorted in a manner by the considerations above mentioned, the imagination starts at the idea.
In a company like the provincial assemblies, consisting of no more than eight and forty persons, this inconvenience might chance well enough not to rise to such a magnitude as to attract notice. But even in an assembly like that of the Notables of 1787, consisting of one hundred and forty-four, it seems already to have been apprehended. For this consideration must, at least, have been among the number of those, in virtue of which such haste was made to break down that assembly into seven committees of twenty or twenty-two each, as soon as formed. In the course of sixty-two days the plenum sat but six times: and on none of those days do the transactions, as represented by the Procès-verbal, seem to leave any room for a debate. In full assembly, nothing seems to have been done but hearing papers read, and speeches of ceremony pronounced.
Even in the provincial assemblies, consisting of but forty-eight members, it seems to have been a principle, to do the business as much as possible in committees, consisting of no more than a dozen members. In some of them, according to their historiographer,* a regulation is established, not to take into consideration any business in full assembly, that has not, in its passage from the committee in which it originated, gone through the other three. This he looks upon as “necessary, in order to avoid as much as possible the noise and bustle to which debates carried on in numerous assemblies are exposed.”*
These observations, and many others that might be added, seem to bespeak a general apprehension of the impossibility of carrying on business in the French mode in numerous assemblies; that is, not only in such as would be esteemed numerous in England, but in assemblies, for example, consisting of half a hundred, or even so few as a quarter of a hundred persons. How must it fare then with the States-General, and its eleven hundred members? Is it to have no general will? Is it, like the first assembly of the Notables, to sit for no other purpose than to hear papers which would have been better read than heard, and speeches which might as well have been neither read nor heard?
Is no business to originate there?—nothing to be done but to pronounce definitively, and in globo, upon some voluminous draught transmitted from some small and select committee? It is a fallacy, then, to speak of its having a will of its own—it is a fallacy to speak of it as possessing the power of the people. The real possessors of the power of the people are the members of this oligarchy, the select committee. But of this more fully in another place.
Observations.—The circumstance that served us to account for the usage relative to the fourth point, will afford us a means equally natural of accounting for the practice relative to the present head.
Between the practices of speaking in succession, voting in succession, and confounding speech with vote, the connexion is not, it is true, a necessary one. Speeches might be made in turn, and yet votes given all at once. Speeches might be made in the order in which persons happened to rise to speak, or in any other uncertain order, while votes were given in a fixed order.
But the connexion, though not necessary, was natural. Why? Because it was natural that judicial assemblies should have served as a model: and in judicial assemblies it was as natural that the judges should speak in a fixed order, determined by the joint influence of rank and seniority, as that each man should speak and vote at the same time.
It was a natural course, which, as far as judicial practice is concerned, is sufficient here: whether, in the instance of that practice it be of all others the most expedient, is a question that belongs not to the present purpose.
OF THE PROPOSAL OF MEASURES FOR ADOPTION.
There ought to be in every assembly one individual officially charged with the initiative, that is bound to commence the operations, and to propose the necessary measures. For if no member in particular ought to have a plan respecting the business to be considered, it may happen that there will be no plan, and that the assembly will remain in a state of inaction.
It is not only necessary that there should be a plan upon each occasion, but there ought to be a train—a connexion, between the projects submitted. It is not enough to provide for the first sitting: there ought to be a general plan, embracing all the requisite operations, disposing them in the best order, and leading them onward to their conclusion.
This obligatory initiative naturally belongs to those who convoke a political assembly, and who are best acquainted with the wants of the state. The general distribution of labour is the duty of the administration: the ministers should propose—the assembly deliberate and resolve.
But the right of initiation ought not to be the privilege of the executive exclusively:—each member ought equally to possess it. There are three principal grounds for this arrangement:—
1. That the intelligence of the whole assembly may be improved for the general good.
There is as good a chance for obtaining the best advice from one party as from the other. To limit the right of proposing, is to renounce everything which might be expected from those who are excluded: it is to institute a monopoly mischievous in every respect, both because it extinguishes the emulation of those whom it reduces to merely a negative part, and because it may retain the greatest talents in a state of inaction. The most intelligent and clever men may, under this exclusive system, be enchained by those who are greatly their inferiors in genius and knowledge.
2. That abuses may reformed. If the right of proposing belong only to the administration, those abuses which are favourable to it would be perpetual: the assembly would have no direct method of causing them to cease. This arrangement would give to the government a most commodious species of negative as against all measures which were unpleasant to it—a negative without noise and without debate.*
3. That the danger arising from the negative right, when it exists alone, may be prevented. The assembly which should possess the power of rejecting alone, would be tempted to abuse it; that is to say, to reject good measures, either from a feeling of pride, that it might show that it was not a mere nullity, that it might exercise its authority, or that it might constrain the hand of government, and lead it to concede one point that it may obtain another: for the right of refusal may be converted into an instrument of offence, and may be employed as a positive means of constraint. Such a system, instead therefore of producing harmony, would tend to produce discord by creating a necessity on the part of the assembly for the adoption of an artificial conduct towards the executive power.
But it may be said, if the direction of affairs ought to be confided to the officers of the executive power,—if they ought to propose those measures which the necessities of the state require:—how, then, can this agree with the desire which all the members may have of making propositions? For this right, if it be to be efficacious, supposes that the assembly has the power of entertaining them. But if it thus entertain them, the ministerial plan will be liable to be interrupted by incoherent, and even entirely subversive motions: there will be no longer any regular progress; and there may even result from it general confusion in the government.
I can only answer this objection by supposing in the assembly an habitual disposition to leave to the ministers the ordinary exercise of the right of proposing.
The general privilege should be reserved for all the members without distinction; but the right of priority should be conceded by a tacit convention to the ministerial propositions.
It is here that it is proper to notice the conduct of the British parliament.
In the ordinary course of affairs, all eyes are fixed upon the minister: whether he present a plan, or speak in support of it, he is listened to with a degree of attention which belongs only to him. By a general, though tacit arrangemnt, important business is not commenced before he arrives.
He proposes all the principal measures—his opponents confine themselves to attacking them: in short, he is the director, the prime mover, the principal personage. Still he has not by right the slightest pre-eminence: there is no rule which secures to his motions, a preference above those of any other member;—there is no rule which gives him a right to speak first—it is an arrangement which exists only in virtue of its convenience and its utility. Whilst the minister possesses the confidence of the majority, he is sure to preserve the right of the initiative: when he loses this confidence, he cannot much longer remain minister, but must give place to another.
It may be well here to attempt to dissipate an error which may justly be called popular, both on account of the little reflection which it discovers, and the number of those who adopt it. This error consists in concluding, that an assembly like the House of Commons is corrupt, because in its ordinary course it is led by the ministers. This pretended proof of the corruption of the assembly, or its subjection, is, on the contrary, a real proof of its liberty and its strength. Why does the minister always take the lead in Parliament? It is because unless he had the power thus to lead, he would no longer be minister. The preservation of his place depends upon the duration of his credit with the legislative assembly. Were we to suppose all the members endowed with the most heroic independence, matters could not be better arranged than they are at present.
OF THE DIFFERENT ACTS WHICH ENTER INTO THE FORMATION OF A DECREE.
Those who pay only a superficial regard to a political assembly, may think that there is nothing more simple than a motion, a debate, a decree. What is there here which is the object of science or art? The ordinary affairs of life call us all to propose, to deliberate, to decide. There are scarcely any notions more familiar than these.
It is true, it is easy to form a conception of these operations, but it is difficult to describe them. In this respect, it is the same with the actions of the mind as with those of the body. To move the arms, requires but a moment: to explain this movement—to describe the muscles which perform it, requires great anatomical knowledge.
Let us trace the formation of a decree.—The work which serves as its foundation, is a simple project proposed by an individual; when he presents this project to the assembly according to the prescribed forms, he makes what is called a motion.
The original motion having been made, every posterior motion with regard to it can only have one of two objects—either to amend or to suppress it. There are, therefore, two kinds of secondary motions:—
The first include all those which modify the original motion; since all these modifications may be considered as amendments—that is to say, ameliorations or corrections.
The second class will include all those which directly or indirectly tend to cause the original motion to be rejected; as by demanding priority in favour of some other motion, or by proposing an adjournment of the question for an indefinite time, &c.
In order to produce a decree, only three acts are absolutely necessary:—1. To make a motion; 2. To vote; 3. To declare the result of the votes.
But before arriving at the conclusion, there are, in the ordinary course of things, many steps or intermediate acts proper to be taken.
We shall here set them down in chronological order:—
1. Previous promulgation of motions, projects of laws, and amendments.
2. Making the motion which exhibits the project.
3. Occasionally ordering it to be printed and published.
4. Seconding the motion.
5. Deliberating upon it.
6. Putting the question.
7. Voting summarily.
8. Declaring the result of the summary voting.
9. Dividing the assembly—that is, demanding distinct voting.
10. Collecting the votes regularly.
11. Declaring the result.
12. Registering all the proceedings.
OF THE PROMULGATION OF MOTIONS—OF BILLS—OF AMENDMENTS, AND THEIR WITHDRAWMENT.
It is proper that the assembly should previously have before its eyes a statement of the business with which it is to be engaged, that nothing may be left to chance, and that it may not be exposed to surprises. It ought to impose on all who wish to present any motions to it, the obligation of duly preparing them, and making them known. A discussion, the object of which has been previously made known, will be the result of more deliberation, and consequently shorter: the reasons for and against, having been the subjects of ineditation, the debaters will have ascertained their strength, and taken up their positions accordingly.
This object may be accomplished by a single regulation. Let the secretary open three distinct registers—for Motions, Bills or projects of laws, and Amendments; every member being allowed to present to him a motion to be registered; and all motions, after having been printed in a journal which should only have this object, should come before the assembly in the order in which they are registered, subject to the reservation of which we shall presently speak.
The journal of motions being published daily, those who wish to propose any amendments should be bound to make them known beforehand, by presenting them to the secretary, who should transcribe them in his register, and cause them to be printed in the journal of amendments.
The same steps should be followed with respect to bills: they should be inserted in a separate register, in the order of their presentation; but they ought not to be introduced into the assembly until three months after their inscription, unless upon special application this period should be shortened.
Such ought to be the foundation of the arrangement for the table of occupations, which might be called, as in the British houses of parliament, The order of the day.
But this inflexible order for motions and bills, this arrangement founded only upon the circumstance of anterior registration of accidental priority, would be liable to the most weighty inconveniences; it might prove destructive of real order, of that order which belongs to the train and connexion of matters, and thus prove incompatible with the liberty of the assembly. Because one motion has been placed upon the list before another, it does not follow that it deserves the preference: the last in date may be the first in importance.
It would even be impracticable to subject all motions to an absolute rule requiring previous registration. Unexpected incidents demand sudden measures; and in the course of its discussion, a subject may assume altogether a different appearance; a change made in one part of a project, may require an alteration in another—an unexpcted breach must be repaired by sudden expedients.
The influence of a list of motions is therefore reduced to this:—it would serve as a guide for the ordinary progress of the debates—it would present a general picture of the labours; but it would not restrain the liberty of the assembly, which ought to be able at any time to accelerate certain motions, or to receive new ones which have not been registered.
What has been said respecting motions is equally applicable to bills: but a bill admits of greater delay than a motion; and an interval of three months would not in general be too great between the presentation of a bill to the assembly, and its passing into a law. If it have been possible to do without a given law during the course of past ages, it is possible to do without it at least three months longer. Besides, as soon as a law is proposed, the whole of the nation is more or less interested: the object is permanent; it ought therefore to be known to the public, and all the information possessed by the different parties in the kingdom ought to be collected concerning it; unless it be pretended that the deputies, by a miraculous concentration, not only possess all the judgment and knowledge of the whole nation, but even of the world itself. Laws ought to be founded upon facts; but inasmuch as the facts are particular, they cannot be collected, unless the necessary time be allowed to the parties interested to present them to the legislators.
But in respect of bills as well as motions, an inflexible rule is not required: latitude must be left for unforeseen cases, and especially in favour of the government, which is charged to provide for urgent circumstances. If after an insurrection, or on the eve of an invasion, an interval of three months were required after introducing a bill before it were passed into a law, the evil might have been consummated before it was possible to consider of the remedy. This would be to play the engines when the fire was extinguished.
It may be remarked, that the plan here proposed differs from that of the English parliament, every member having here the right to introduce a bill; whereas in the English parliament a bill cannot be introduced without leave given by the House—a practice well calculated for preventing the consumption of time upon frivolous or dangerous projects of laws: but when a member moves for leave to introduce a bill, the House must consider whether it will admit or reject it. This power which it now exercises upon the motion, I propose that it should exercise over the bill at the moment in which it will be presented; that is to say, that the assembly should then decide whether it will entertain it or not; because it will then decide upon better grounds, as the bill will then have been published.
It is sometimes the custom that bills should be printed before the debate; but this is not the case except upon special motion, which motion is sometimes rejected;—and, when printed, they are only distributed to members of parliament. In this respect there is a fundamental error: the printing ought to be the rule, and also the public sale of such bills. Before the invention of printing, and when the art of reading was unknown to three-fourths of the deputies of the nation, to supply this deficiency, it was directed that every bill should be read three times in the House. At the present day, these three readings are purely nominal: the clerk confines himself to reading the title and the first words. But a most important effect has resulted from this antique regulation. These three readings have served to mark three distinct degrees—three epochs—in the passing of a bill, at each of which the debate upon it may be recommenced at pleasure.
Motions and bills being thus printed and published in journals destined to these objects alone, a regulation should be made, that amendments should be printed and published in the same manner. Why should they not be? If I wish to oppose a motion, ought my intention to come upon the assembly by surprise?—ought its author to be deprived of the knowledge of my objections, and of leisure to prepare an answer to them?—ought I to be allowed to take advantage of him by an unforeseen attack? If I am only anxious for the success of my own schemes, the unforeseen amendment will best suit my purpose; but if I only desire the success of reason, I ought to make it known before the debate.
If all the amendments are previously published, and presented all together, the assembly will have before its eyes a complete picture of the subject of discussion—a picture which will itself be a safeguard against the inconsistencies and contradictions which are so likely to be introduced into a composition of which all the parts are only considered successively. The more completely it is possible to present them simultaneously, the less is the exposure to this danger. This is the grand advantage of synoptic tables: the reciprocal dependence and union of all the parts is at once perceived: any incoherence strikes the eyes.
But the rule ought not to extend to the exclusion of amendments arising at the moment; for new ideas may spring out of the debate itself, and to reject a salutary amendment because its author had not foreseen it, would be an absurdity. All that can, and all that ought to be required of him, is to declare that the delay in the announcement of this amendment was not intentional—is not insidious; that he did not intend to take the assembly by surprise. The nature even of the amendment will indicate the motive which gave rise to it.*
When a member has caused a motion, a bill, an amendment, to be inscribed in the register, he should not be allowed to withdraw or abandon it, without leave from the assembly. A simple prohibition alone is not sufficient in this respect: it ought to be an inflexible law. If the author of the act in question be not present on the day fixed, to support it—unless there be lawful reason for absence, he ought to incur the censure of the assembly, and his name should be inscribed in a separate book, having for its title, List of the deserters of motions, &c.
This rigorous law is requisite—1. In order to prevent thoughtless motions, and the confusion which would be produced by the false appearance of a great mass of business which would vanish at the moment in which it was touched.
2. To prevent the destruction of public confidence by accustoming the people to see that the motions which are announced are dropped by neglect.
3. To prevent the abuse which might be made of this instrument by announcing motions which there is no intention to support, either for the purpose of spreading alarm, or to affect the public funds; or for the purpose of preventing other parties from registering their motions or their bills, by an apparent monopoly of business; and because the evil which an individual could effect in this respect would be susceptible of the most alarming extension by means of combination among the members of a party.
OF THE DRAWING UP OF LAWS.
We proceed to consider the motions as compositions destined to become laws, and be presented to the examination of the assembly. In this respect it is desirable that they should possess that form which will allow them to be discussed in detail, and amended.
Regulation cannot prescribe perfection in style; but there are certain defects which it may prevent, certain conditions which it may impose, because every one may be subjected to them. The four following points may be prescribed:—
1. Brevity in the articles.
2. Simplicity in the propositions.
3. The pure expression of will.
4. The complete exhibition of all the clauses which the law ought to contain.
If these conditions are observed, whatever may be the extent of a motion, it will be of a manageable and ductile form; it will be easy to consider it in all its parts, and to amend it.
1. Brevity in the articles.—What is meant by an article is, so much matter as it is intended to put to the vote at one time. The longer the articles are, the more difficult is it to understand the whole together, and distinctly to see all the parts. But is it sufficient to recommend brevity? No: the force of a law ought to be given to this precept, by declaring that no project of a law, containing more than one hundred words for example, should be received, unless it were divided into numbered paragraphs, no one of which should exceed the above measure. This expedient, altogether singular as it may at first appear, is however the only one of absolute efficacy.* When it is necessary to present a long train of ideas, it is proper to assist the understanding by brevity of style. Each separate sentence forms a resting-place for the mind.
The paragraphs in a law ought to be numbered. There is no means more convenient and short for citation and reference.
Acts of parliament are exceedingly defective in this respect. The divisions into sections, and the numbers which designate them in the current editions, are not authentic. In the parchment original, the text of the law—the whole act, is of a single piece, without distinction of paragraphs, without punctuation, without figures. The word section is not even met with there, nor anything which corresponds with it. How, then, is indication made of the termination of one article and the commencement of another? Always by repeating the same formula, the same introductory clause,—and it is further enacted by the authority aforesaid, or some other phrase to the same effect.
This is a species of algebra, but of an opposite character. In algebra, one letter supplies the place of a line of words; in this, a line of words very imperfectly supplies the place of a single figure: I say very imperfectly, for these words serve for the purpose of division, but they are of no use for the purpose of reference. Is it wished to amend or repeal one section in an act? As it is impossible to point out this section by a numerical reference, one is obliged to do it by circumlocutions, which produce repetitions and obscurity. It is partly from this cause that acts of parliament are unintelligible compositions to all those who have not made them the object of long study.†
The first acts of parliament were passed at a period in which punctuation was not yet in use—in which the Arabian figures were not known. Besides, the statutes in their state of primitive simplicity and imperfection, were so short and so few in number, that the want of division could not produce any sensible inconvenience. These things have remained upon the same footing, partly from negligence and routine, but much more so from a secret interest on the part of the lawyers, who have found their advantage in this obscurity of the legal text, and who oppose to every reform the bugbear of innovation. Our forefathers lived for ages without the knowledge of commas, stops, and figures: why should they be adopted now? The argument amounts to this—Our forefathers lived upon acorns and mast; corn is therefore a useless luxury.
2. Simplicity in the propositions.—This is the principal point: the rule prescribed above respecting brevity, is established essentially on account of this.
Every article ought to be reduced to a pure and simple proposition; or at least, an article ought never to include two complete and independent propositions, of such nature that the same individual may approve one and reject the other.
Clearness would be carried to the highest point, if each article presented a complete sense, without reference to any other; but in a composition which has many parts, this species of perfection is impossible. The idea even of arrangement excludes that of independence.
A mathematical proposition is demonstrated by reference to propositions previously demonstrated; and in every series of reasoning, the links are multiplied in proportion as they are removed from the first step.
Among conjunctions, there are some which afford a mischievous facility for binding together an indefinite number of sentences into one. Of this kind are, in French, d’autant que, considerant que; in English, whereas; in Latin, quandoquidem. The introduction of these phrases is a principal fault in the style of the laws: by means of them, a mass of confusion is created; objects which it is most desirable to keep apart, being thus without reason, oftentimes coupled together.
But if the propositions ought not to be independent one of another, they need not be made complex.
A complex proposition in matters of law, is one which includes two propositions, one of which may be approved, and the other disapproved.
The following question, proposed to the Notables in 1788, may serve as an example: it referred to the composition of the States-General:—Ought certain qualifications to be required of the electors and the persons eligible? By the form of this phrase, two distinct propositions are presented, as if they formed only a single one.
Ought certain qualifications to be required of the electors?—
Ought certain qualifications to be required of the eligible?—
These are two questions, so distinct that each ought to be decided by different considerations, which may perhaps lead to a negative with regard to one, and an affirmative answer as to the other. But by uniting them in this manner, the mind is led into error: it is led to consider them as so connected together, that it is proper to give to them one common answer, either in the negative or affirmative.*
Suppose that a proposition, which is presented as a single one, really consists of two propositions—that you approve the one, that you disapprove the other: if it remain undivided, whatever may be the decision, one proposition will be passed in opposition to your will;—if it be divided, you are free to choose—you can vote against the one without voting against the other; and this, which may happen to one individual, may happen to the whole assembly.
By means of complex propositions, an assembly free from all exterior constraint, may cease to be free by a species of internal constraint: a good law may be used as an instrument to compel the passing of a bad one.
Conjunctions may arise, in which an assembly may be compelled to sacrifice its most important rights. A certain law may be proposed to it, not only good in itself, but even necessary to its own preservation, or the preservation of the state; and to this law may be joined another, by which it may be deprived of some of its essential prerogatives. What can it do? It is obliged to submit. It is in the situation of the patriarch, who, pressed with hunger, sold his birthright for a mess of pottage.
This Machiavelism, it may be said, is a gratuitous supposition—a pure fiction. But it is not: history furnishes numerous examples of it. In the ancient republics, the initiative of the laws belonged exclusively to a senate: the people had no other alternative than that of approving or rejecting the whole together; the liberty of choice was not left to them;—their chiefs made them purchase a desired law, a necessary law, at the price of some other law unfavourable to their interests.
3. Another principle of composition: Employ only a pure and simple declaration of will, without intermixing therewith, reasons, opinions, or fancies, distinct from that same will.
To assign the reasons for a law is a separate operation, which ought never to be confounded with the law itself. If it be desirable to instruct the people, it may be done in a preamble, or in a commentary which accompanies the law; but an imperative law ought only to contain the simple expression of the will of the legislator. Intended to serve as a rule of conduct, it cannot be too simple, too clear, too free from dispute. If reasons and opinions are intermingled with it, all those are ranged against the law, who do not apapprove the reasons or opinions which it expresses: instead of becoming stronger, it becomes more feeble; an instrument of attack is prepared for its adversaries, and it is delivered up to their disputes.
A single epithet is sometimes sufficient to alter the simple expression of the will. The same effect may result from the use of a term which implies blame or approbation, when it would have been proper to employ a neutral term—heretic, for example, instead of dissenter—innovation instead of change—usury instead of illegal interest.
These eulogistic or dyslogistic terms produce all the inconveniences which we have developed above: they include complex propositions; they not merely state a fact, upon which all the world may be agreed, but also an opinion, which may be received by one party, and rejected by another.
Let us give an example:—“It is decreed that no heretic shall be allowed to sit in this assembly.”
First proposition: “It is decreed that no man who is not of the established religion of the state, shall be admitted to sit in this assembly.”
Second preposition: “This assembly declares, that all those who profess any other religious opinions, merit the odious denomination of heretics.”
Here are two propositions altogether distinct and foreign to one another. The one declares a resolution relative to a fact;—the other declares the state of the opinions and affections of those who vote. The same individual might adopt the first, and reject the second.
Thus to unite into one proposition, two different things, is to commit a species of falsification, and to destroy the freedom of voting, from which no benefit can result.
Hence, from inserting in the body of a law, opinions or reasons foreign to the law, the measure may be exposed to rejection, although conformable to the general wish of the assembly.
This may happen, because, although they may be agreed upon the measure, the voters may differ much with regard to the reasons which lead them to adopt it; and if the reasons which are assigned, are opposed to the opinions of the majority, they will experience a very natural and just repugnance to profess opinions which they do not hold. To require them to pass such a law is, in fact, to exact a false declaration, and make them tell a lie in the law.
Let us imagine the following proposition:—“Considering that there is no God, all penal laws relative to the divinity are abolished.”
Even should all the members of the assembly be unanimous in favour of the abolition of these penal laws, there might not perhaps be found a single one who would not be shocked by this declaration of atheism, and who would not rather choose to reject the measure altogether, than to obtain it at this price.
It would seem that in a free assembly each proposer of a motion ought to observe this rule, if it were only as a measure of prudence, since an accessary of this nature can only tend to expose the principal motion to be rejected.
But the spirit of party does not reason thus. The more clearly a motion includes any clause offensive to its antagonists, the more clearly it proves the strength of those who cause it to pass: their triumph increases with the mortification of their antagonists.
We will give an example of this petty war of parties; we shall seek it in a remote period, although it would be easy to find specimens nearer to our own times; we shall see a motion produced in this spirit of hostility, applied in an opposite direction by the insertion of motives and opinions which presented it under an aspect altogether new.*
“A motion was made, and the question being proposed, that it be an instruction to the said committee that (in order to restore in some measure the trade of this kingdom) they do consider of the proper means to take off the duties upon soap and candles (which are so very burthensome to the manufacturers, as well as the poor in general.”)
The intention of the two phrases included in the parentheses is clear. The opposition wished to throw odium upon these two taxes, without considering that similar means might be applied to all the taxes without distinction.
The two clauses were first excluded by two very proper amendments. But this triumph was not enough: the ministerial party, wishing to throw out the motion by appearing to amend it, caused the following clause to be inserted:—
Taxes “granted and made a security for several large sums of money advanced for the service of the public, upon parliamentary credit, the greater part of the surplus whereof belong to the sinking fund, appropriated to the discharging the national debt.”
It need scarcely be added, that the motion thus altered, no longer agreeable to the one party or to the other, was thrown out by common consent.
4. A bill ought to contain a complete exhibition of all the clauses that the law ought to contain.
This has reference to certain terms which are liable to be exchanged for terms of the same kind: for example, one quantity for another quantity, one number for another number, one portion of time for another portion of time, &c. The imprisonment shall be [for a year.] The fine shall be [one tenth part of the parties’ income.] The reward shall be [twenty pounds sterling.]†
In the projects of bills which were presented to the British parliament, the custom was to leave these points in blank between two crotchets thus: The imprisonment shall be [NA;] the fine shall be [NA.]
The points thus left in blank were those respecting which there is great latitude of choice. The author of the bill has no determinate reason for the choice of one term rather than another. The first debate turns rather upon the principle of the measure, without regard to these points. They are determined in committee upon the motion of some member. The journals of the House of Commons present many examples of cases in which it has been unwilling to receive bills, because the author, instead of leaving these blanks, had filled them up.
It was said, that liberty was thus better secured; so long as no term is fixed, there is greater latitude of choice.
I cannot perceive the force of this reason. Liberty exists upon this point as well as upon every other part of the bill. It is lawful to propose the smallest number in place of the greatest, one place instead of any other place, one quantity instead of any other quantity, and so of the rest.
On the other hand, the discussion cannot but be improved, when it has a determinate foundation upon all points. It is necessary at last that the blank should be filled up—that some one should propose a term; and who is better able to do this, than the author of the motion?—from whom can we expect greater knowledge of the subject?* If no one be obliged to think about the matter, is it not to be feared that these blanks will be filled up with indiscreet precipitation, as details of trifling importance.
This custom of leaving blanks most probably arose from the prudence of the framers of the laws. “If,” they may have said, “the term be left blank, the ideas of nobody will be hurt; but if a specific term be offered, which of course will not please everybody, the loss of a number of votes is risked upon this point alone.” This train of reasoning is not unfounded; since nothing is more common in political assemblies, than that want of candour which fixes upon the first objectionable matter of detail, which might easily be remedied, and converts it into a radical objection to the measure in which it appears.†
Of the Opening of a Debate.
Ought a motion to require to be seconded? A motion is not entertained by the House of Commons, until it is supported by some one beside its author; that is to say, until it is seconded.
This regulation is considered proper, in order to prevent the introduction of motions which would consume time without producing any fruit. Before occupying the time of the assembly, the proposer should consult a friend. If he cannot find a single approver, where is the evil of abandoning his motion?—what chance has he of persuading the majority, if he have not succeeded with the man of his choice?
But this method has but little efficacy: it has none against party motions—none against a man who in the assembly has a civil or an easy friend—none against two fools or two madmen, who are determined to support one another.
Besides, it is only applicable to original motions, and not to incidental motions; that is to those which arise in the course of the debate—to those amendments respecting which there is no opportunity of concert with any person.
It may be objected against this custom, that it tends to discourage those who have most need of particular encouragement—of isolated persons, jealous of their independence, not wishing to connect themselves with any party. Should a man of this temper, after two or three trials, find no one to second him, this would be sufficient to dishearten him. But he ought not to conclude that a motion is frivolous or absurd, because at the first glance it has been rejected in this manner. How many other reasons, beside that of the demerit of the motion, may have operated to produce this refusal to second it! One may not have chosen to put himself forward; another have not liked to act the part of subaltern; a third have foreseen that it would not be successful; a fourth, that it would have made others his enemies. Many may have refused on grounds altogether foreign to the object of the motion.
When a rule operates only as a restraint, if it be not useful it is mischievous.
The House of Lords has never recognised this rule, and no one has found out that any inconvenience has resulted from the want of it.
Before the author of a motion is permitted to speak upon it, the motion ought to be read.
The motion is the only subject to which his speech ought to apply. If its subject be unknown, the speech will lose a great part of its effect. It is impossible to judge of the force or weakness of the arguments, unless the object to which they refer is clearly present to the mind.
There is not a more efficacious rule than this for preventing useless discourses. If a member who had no motion to make were to begin to speak, he would find himself obliged at the first moment to give a justifying reason for so doing: if he had none, he would be reduced to silence.
In the House of Commons, the rule is, not to speak, but upon an admitted motion, or for the purpose of introducing one; but as it is not requisite to begin by presenting a motion, it sometimes happens that long speeches are made, which are not followed by a motion.
This is an example of those laws which would be so good, so advantageous, provided only that they were observed.
In the English practice, the custom is to state beforehand to the House, more or less of the object of a motion, according to the supposed degree of its importance. But this statement is confined to a general indication: the whole motion is neither announced, nor reduced to writing. Is not this a defect? Is it not stopping half way? Certainly the same reasons which lead you to require that a motion should be announced beforehand, ought to make you desire that it should be presented complete. Is it not ridiculous to say to an assembly of legislators—“Divine, conjecture, imagine what the motion will be of which I have told you the title?”—and to hold their curiosity in suspense, as if it were necessary to excite a dramatic interest, or to catch them by surprise?
The terms of the motion not being previously known, it is not possible to prepare amendments: hence, everything concerning them is a scene of precipitation. As they are proposed without plan, they are combated under the same disadvantage: they too frequently present vague and incoherent ideas, and are crude and indigested productions: but the greatest evil which arises, is that which it is not possible to see or to appreciate—the negative evil, the evil of privation; that is to say, the non-existence of the useful amendments which would have been offered, if leisure for reflection had been afforded by a previous knowledge of the whole motion.
We have made one step. The motion being read, its author ought to be allowed the right of pre-audience. It cannot be presumed that any other person can present the reasons for it, with more advantage than himself.
It is evident that no person ought to be heard against a motion, before some one has spoken for it. For if there be no argument to be produced in its favour, the combating the motion is loss of time. The arguments for, ought to appear first, that those who oppose them may have a fixed point of attack, and not wander into vague conjectures.
In an assembly in which the members sit whilst they speak, it would be proper to agree upon a word—for instance, dixi—which should mark the close of a speech. This final word would prevent that species of preparation, that indecent impatience, which is manifested in an assembly where those who wish to speak, watch all the accidental pauses of the speaker, and do not wait till he has finished before they begin.
If the member stand up whilst he speaks, the end of his discourse will be marked by his sitting down; and this gesture will more certainly reach the eye, than a word reaches the ear. The above rule would therefore be more necessary in an assembly in which the members sit whilst speaking, than in one in which they stand; but it would be useful everywhere, as a means of preserving the speaker from the fear of interruptions, and of conducting the debate with more propriety.
In a large assembly, the person speaking ought to stand. In this attitude, his lungs have more force, and his voice is more free—he exercises a greater ascendency over the auditory—he more readily perceives the impression he produces. But this ought not to be made an absolute rule, because it is not possible to fix the limits between a large and small assembly: besides, there are infirm persons who have sufficient strength for speaking, who are not able long to remain standing. A wounded officer ought not to be deprived of the right of speaking for his country. The last brilliant efforts of his eloquence were uttered by Lord Chatham, when he was feeble and languishing, and almost obliged to lie upon his seat.
Of free and strict Debate.
There ought to be two kinds of debate: in one, replies should be allowed; in the other, not. The first of these I should call free, every member being allowed to speak as often as he pleases; the second I should call strict, every member, with a single exception, which will be shortly noticed, being allowed to speak only once.
The strict method may perhaps be necessary in large assemblies, where there are many who wish to speak. It becomes necessary, upon the principle of equality, to secure to each member the right of being heard: there would be a kind of injustice in allowing any one to speak twice, whilst there were others who had not once been heard. If, then, there be a superfluity of speakers—that is to say, more than can be conveniently heard, consistently with the speedy progress of business—the exclusion of replies becomes a necessary law.
But still the free method possesses great advantages. In an argument between two persons, the discussion is better followed—the reasoning is more connected, than when many persons are engaged. Each reply tends to increase the information received, and to fortify the impression made. The debate becomes animated and more interesting: each one lends his attention to the argument—endeavours to understand it, and to foresee the reply it will call forth: no movement is either lost or retrograde—every step taken leads on to the conclusion. This interest is either weakened or disappointed whenever a new speaker interferes to disturb the thread of the debate, and to throw in altogether different ideas. Hence, the first feeling of men, their natural instinct, is altogether in favour of this manner of debating between two parties who alternately speak pro and con.
In the British parliament, both these methods are employed: the one when the assembly is said to meet as the house—the other when it meets in committee. When the house is assembled, the rule of speaking only once is strictly observed. In committee, it is the custom to allow of replies; and the discussion is frequently confined to a small number of individuals who have paid particular attention to the question. At all times this is rather an indulgence than a rule; and thus it ought to be, for there are some obstinate speakers who will never have done; and replies have this inconvenience, that they often lead to personalities, which might make the debate degenerate into bitter and fruitless contentions.
In allowing the liberty of replies, you expose the debates to a duration incompatible with the transaction of business. This is the strongest objection against them. But first, the cases in which prompt decisions are necessary do not often arise in a legislative assembly; and in such cases it is always master of its own rules, and always at liberty to act according to circumstances.
Secondly, Can any time be considered as lost, which has been occupied in bona fide discussion, how long soever that discussion may have been? Is rapidity the principal object? Ought we to avoid a few moments of weariness, at the risk of many hours of repentance? Excess of examination need not be feared: bad laws are rather the results of inattention and precipitation. The general rule ought to be, to reject nothing which may enlighten the assembly: but how can it be decided beforehand, that an individual who wishes to speak has nothing useful to say?
In conclusion, it is doubtful whether the admission of replies would prolong discussions. When a question is quite clear—when the two parties find that their opposition is irremediable, the debate has reached its natural conclusion, and every one will be desirous of seeing it finished. Now, the liberty of reply has a direct tendency to lead the discussion to this point. Two antagonists, engaged upon a question for which they have made preparation, will reply to each other with more strictness—they will go at once to the point without losing time in set phrases, exordiums, and apologies, as is done by each new orator, that he may give to his arguments the polish and ornaments of speech.
After all, the free method does not necessarily deprive any individual of the opportunity of speaking: it only retards the moment at which he obtains it. It is a simple transposition of time, which takes nothing from equality.
After this exposition of the reasons for and against these methods, every assembly must decide, according to circumstances, whether it will be proper to admit the one or the other of these forms of debate.
But even when replies are not permitted, an exception should always be made in favour of the author of the motion. He who opens the debate, should be allowed to speak last in reply. He may naturally be presumed to be best acquainted with the strong and weak points of his cause, and if he were not allowed the right of reply, objections to which he only could reply, might impose upon the assembly. In the British parliament, this last reply is frequently that which attracts the most attention. In this the speaker concentrates all his strength, and brings it to bear upon the essential points which ought to determine the judgment. “Videndum præoipue utrique parti ubi sit rei summa. Nam fere accidit, ut in causis multa dicantur, de paucis judicetur.”*
Of three Debates upon every proposed law.†
The general rule in the English parliament is, that every bill shall be debated three times upon different days, and these days oftentimes distant from each other. These are called the three readings of the bill. The bill may be thrown out on the first, the second, or the third reading; but it is not passed till it has been read three times.
This is not all. Between the second and third reading, the bill is discussed in a committee of the whole House.
This general committee (which is spoken of elsewhere) admits of forms of discussion more free than those allowed in the regular debates. A chairman is chosen for the occasion;—the details of the measure are discussed;—the same persons are permitted to speak several times upon the same subject; and the discussion is thus generally carried on by the individuals who possess the greatest knowledge of the particular question.
With regard to the three readings. The first is almost confined to the introduction of the bill, and general observations upon it;—the second is a debate upon its principles;—the third regards it as a whole, the terms of which have been considered and settled.
The advantages of these reiterated debates are—1. Maturity in the deliberations, arising from the opportunities given to a great number of persons, of speaking upon different days, after they have profited by the information which discussion has elicited; 2. Opportunity afforded to the public, to make itself heard—and to the members, to consult enlightened persons out of doors; 3. Prevention of the effects of eloquence, by which an orator might obtain votes upon a sudden impulse; 4. Protection to the minority of the assembly, by securing to it different periods at which to state its opinions; 5. Opportunity for members absent during the first debate, to attend when they perceive that their presence may influence the fate of the bill.
Every one knows by experience, that the strongest reasons alleged by two parties cannot be estimated at their true value the first time of hearing: they make either too much or too little impression;—too much, if they are developed with all the seduction of authority and eloquence—too little, if they are opposed by violent passions, interests, or prejudices. After an interval of a few days, the mind becomes calm—public opinion has time to act—the effect of mere eloquence ceases to operate—reason resumes its sway. Very different views are often brought to the second debate, from those which were successful on the first,—and the two parties approach each other with arguments matured by reflection and communication with the public.
Parties appear to have a necessary existence. If a single debate decide the adoption of a law, each party has an extreme interest in employing all its means to secure the victory of the day—and great heat and animosity are produced by the debate. But when it is known that a first victory is not sufficient—that the struggle must be renewed a second and a third time with the same antagonists,—strength is reserved—it is tempered, that it may not injure the cause in which it is employed; no one dares to take an unlawful advantage, because this would be to supply arms to his adversaries;—and the party in the minority, which gradually sees that its ultimate defeat approaches, gives way to it with the more moderation, inasmuch as it has been allowed every opportunity of preventing it.
In the British parliament, independently of the three readings which are necessary, there are many other occasions in which it is possible to renew the debate during the progress of a bill—the technical term which comprises all the stages through which it must pass before its completion. It must, as I have already said, be committed—and it may be recommitted. It must be engrossed, that is, written on parchment, to become the authentic text. It ought at last to be transmitted to the House of Lords, and it may be sent back again to the Commons. Each of these stages are passed upon motion by a member, and each motion may become the occasion of a new debate. The opposition very rarely makes use of these different means for retarding the progress of a bill; but they are held in reserve for extraordinary occasions, when delay may produce important results.
It may be objected, that this plan occasions great delays, and that circumstances may imperiously require that a law should be passed with rapidity. To this it may be replied, that in cases of necessity the Houses of Parliament can suspend their usual orders, and that a bill may be made to pass through all its stages in both houses in one day. An example of this kind occurred, if I am not mistaken, during the mutiny at the Nore in 1797; but such extreme measures arise from urgent necessity, which overcomes all opposition.
Those who consider the slowness of these forms as objectionable, do not perceive that their objection is directed against reflection—against that information which is often the fruit of time and study. There may be repetitions; but a reasonable conviction is not attained at once. The best argument requires to be presented at different times, and under many aspects. It is by these means that it becomes adapted to different minds, and is deposited in the memory. Those men who are persuaded by a word, are lost as easily as they are gained. Allow of obstinacy in debate, and there will result from it perseverance in conduct. In France, the terrible decrees of urgency, the decrees for closing the discussion, may well be remembered with dread: they were formed for the subjugation of the minority—for the purpose of stifling arguments which were dreaded. The more susceptible a people are of excitement and of being led astray, so much the more ought they to place themselves under the protection of forms which impose the necessity of reflection, and prevent surprises.
A more direct answer may be given to this objection on the ground of delay:—Three debates necessarily require intervals, but they do not tend to render the discussion longer upon the whole—they have rather a contrary effect. Indeed, these three debates have different objects, and divide the deliberations in the most suitable manner. In the first, the question is, Shall the subject-matter be considered at all? If its consideration be refused, there is a great saving of time, because no one has been engaged in the consideration of the details. At the second reading, the question is, Shall the principle of the bill introduced be adopted? If its principle be admitted, it is then taken into consideration in committee, and each clause is considered by itself, and amendments, if necessary, proposed in it: when the whole has been thus considered, the bill is reported to the house.
At the time appointed, the project of the law, as thus prepared, undergoes a third debate: the whole of its parts and bearings being thoroughly understood, all are prepared to consider it in its principles and details; whilst those who wish again to propose their amendments can do so, if they hope to obtain the concurrence of the majority.
Of the exclusion of Written Discourses.
The rule for the exclusion of written discourses is strictly observed in the British parliament. It ought to be so in all deliberative assemblies.*
“The principal inconvenience of written discourses consists in their want of connexion—they have no relation to one another.
“It is easily perceived that a political assembly is not a society of academicians; that the principal advantage of a national senate, and of public discussion, arises from that activity of mind, from that energy of feeling, from that abundance of resources, which results from a large assembly of enlightened men who animate and excite each other, who attack without sparing each other, and who, feeling themselves pressed by all the forces of their antagonists, display in their defence powers which were before unknown to themselves.
“Attention is like the mirror, which concentrates the rays of the sun into one focus, and produces increase both of heat and light; but attention cannot be sustained except by connected discourse, and the kind of dramatic interest which results from it. When attention is excited, nothing passes without examination: every truth tells—every error provokes refutation; a fortunate word, a happy expression, is more effective than a long speech;—and as these weapons cannot be wielded in debate except by the cleverest men, the assembly is spared from ennui, and saves its time. There is nothing useful in the plan of reading, except it be to procure for mediocrity the consolations of self-love, at the expense of the public good.
“Will it be said, that these prepared discourses will commonly have greater maturity, greater depth?—that the assembly by this means is less exposed to hear dangerous and ill-considered opinions? The effect is precisely opposite. It requires longer preparation and deeper meditation to be able to speak extempore than to write at leisure. To have completely mastered his subject—to have studied it under all its aspects—to have foreseen all objections—to be ready to answer every one: such are the conditions necessary for a public speaker. But what ordinary man is not able to write upon a given subject any number of pages? One person employs writing for the purpose of facilitating meditation, to relieve his memory, to prevent the fatigue of retaining a series of ideas; another writes, that he may dismiss from his mind what he has committed to paper. It may therefore easily happen, that a man does not understand the subject upon which he has written; but he must always understand his subject, if he will speak well upon it.
“If all those who have exhibited the talent of speaking in the National Assembly, had been asked why they were reduced to the reading of memoirs upon difficult and complicated subjects, they would have accused the shortness of the time, the premature questions, the number and variety of the subjects: but they would thus have confirmed the opinion, that the plan of written discourses is bad in itself. It will never form powerful minds in a political assembly: it favours idleness of thought, and, like the habit of being carried, produces torpor and indolence.
“In England, as elsewhere, the distinguished talent for public speaking is concentered among a small number of individuals; but the plan of reading is not tolerated there, which multiplies speeches without multiplying ideas. Does it appear that there is any want of arguments in their discussion?—is there less vigour among their political combatants? As soon as the defender of a motion ceases to speak, does not the opposite party furnish an orator, who seeks, by his opposite arguments, to efface the impression which the first has made.”
Those who do not possess the talent of public speaking, may communicate facts and arguments to the habitual speakers. This is the best method of making them useful. These communications—these contributions of ideas, continually take place in the British parliament.†
Other rules relative to Debate.
The rules we are about to exhibit are not of the same importance as the preceding, but they all tend to prevent inconveniences, and to produce a better debate. The former were dictated by necessity, these by prudence.
1. Address the president, and not the assembly in general.
This custom, constantly followed in the House of Commons, is well adapted to a numerous assembly, it gives those who speak a fixed point of direction, and a common centre for all the speeches.
It is also natural that each should address himself to the individual who is officially to judge if he wander from the question, or if he fall into any irregularity prohibited by the rules of the assembly.
A speech addressed to the president of the assembly will be more grave and temperate, than if it were addressed to the whole assembly. An excited individual addressing himself to an impartial magistrate, to a respected president, will feel the necessity of measuring his expressions, and repressing the movements of his indignation and wrath.
If the members speak directly to each other, the discussion will more easily degenerate into personalities.
There is no custom more useful in a political assembly, than that of treating the president with deference and respect; and there is nothing more likely to form this habit, than the considering him as the centre of the deliberations—as the assembly personified.
2. Avoid designating the members of the assembly by their proper names.
This rule, strictly followed in the House of Commons, renders it necessary to recur to circumlocutions in designating a member: “The Honourable Member on my right,” or “on my left”—“the Gentleman in the blue ribbon”—“the Noble Lord”—“my Learned Friend,” &c. Most of these expressions are polite, without being insipid. The proper names would often be accompanied with a catalogue of complimentary epithets, of which we may see many examples in the speeches of Cicero pronounced in the Roman Senate: but the real inconvenience is, that the mention of the name in debate is a stronger appeal to self-love than every other designation. It is less offensive to say, “the honourable member who spoke last has fallen into a gross mistake,” than to call him by his name: it is as though an abstraction were made of the individual, that he might be considered only in his political character. The observation of this rule is troublesome; and when the debaters are warm, it requires an effort to submit to it;—but this very circumstance proves that it is necessary.
3. Never impute bad motives.
This also is an absolute rule in British debate. You are at liberty to impute ignorance to a previous speaker—to tell him of his mistakes, his false representations of facts—but not to say one word inculpating his motives. Direct your energy against the mischievous effects of his opinions, or the measures he supports; show that they are fatal—that they tend to establish tyranny or anarchy; but never suppose that he foresaw or designed these consequences.
This rule is strictly founded on justice; for if it be difficult always to know our own true and secret motives, there is much more temerity in pretending to develope those of others;—and from our own experience we ought to know how easy it is to be deceived in this respect. The reserve which this rule imposes, is useful to all. It is favourable to the freedom of opinion. In political debate as in war, you ought not to employ any means which you would wish should not be employed against you.
But this maxim is especially conformable with prudence. Is your antagonist in error?—he may receive the truth you skilfully present to him: but if you impugn his motives, you offend him—you provoke him—you do not leave him the quiet necessary for listening to you with attention: he becomes opposed to you: the fire communicates from one to another—his friends make common cause with him, and oftentimes resentments, which are prolonged beyond the debates, carry into political opposition all the asperity of personal quarrels. It is not enough to exclude personalities: it also is proper to proscribe all violent and bitter expressions; it is proper to proscribe them as signs of awkwardness, still more than as traits of passion.
All who have watched political assemblies know that improper expressions are the sources of the most tumultuous incidents and of the most obstinate wanderings.*
4. Never mention the wishes of the sovereign or the executive power.
This wish in itself proves nothing in regard to the fitness or unfitness of the measure: it can have no good effect, and can only be productive of evil.
The admission of this instrument would be incompatible with the liberty of the assembly, not only upon the particular occasion but upon every other; for if it may be alleged at one time, it will be alleged at all times; and if the least value be granted to a consideration of this nature, the power of the assembly is reduced to nothing: there is substituted for its will, the will of a superior.
If this wish, when announced by one party, should be disputed or condemned by another party, it would follow that the head of the executive power would become the personal object of the debates—that its dignity would be compromised; and there would result a most fatal species of discord—that which leads on to civil war.
This rule has been long established and strictly followed in the parliamentary debates. The king’s speech at the opening of the session only contains general recommendations; and besides this, it is only considered as an act of the minister. It is therefore freely discussed without mention of the king, and the opposition attack it as they do any other ministerial measure.
5. Never quote any justificatory piece, or means of proof, which has not been presented to the assembly in consequence of a motion made to that effect.
Omnis demonstratio ex præcognitis et præconcessis.
This rule is founded upon two manifest reasons:—
1. To secure the authenticity of the matter which is taken as a foundation for the decision.
2. To give every member an opportunity of being acquainted with it, and informed of the use which it is desired to make of it.
In consequence of neglecting this rule, the highest bodies in the state in France have sometimes fallen into errors with which the lowest official persons cannot be reproached in England. The parliament of Paris, in its famous remonstrances of the 16th and 24th July 1787, enumerated Charles V. and Henry IV. among the kings who had assembled the States-General, which is not true either of the one or the other.*
How often has the National Assembly passed decrees upon mere hearsay—upon facts said to be of public notoriety!—without thinking that there is nothing more deceitful than popular rumour, and that the more widely a fact was known, so much the more easily might proof be collected of it.
The legislative assembly transmitted articles of accusation against M. de Lessart to the high national court, which contained only vague and declamatory imputations, without stating a single fact, and without having heard the accused.†
6. Do not permit any motion which has been rejected, to be presented afresh during the same session, or before an interval [of three months.]
This rule has for its object the repression of the obstinacy of parties, which would never leave off repeating questions which had been already decided against them, either from a hope of thereby keeping up the zeal of their partisans, or from a desire to embarrass the operations of the assembly.
This rule can only be strictly applied to motions which are identical. A party will never allow itself to be restricted by the prohibition to reproduce its motion. If it see any chance of success, it will not fail to present it again under a new form.
It is, however, always well to insert this article in the regulations. It will follow from it in ordinary cases, that a motion once rejected will not reappear in the same session.
A rule which should permit the definitive rejection of motions without return, would be the greatest possible attack upon liberty: it would be to seek to enchain one’s self or one’s successors.
Of the Election of Debaters.
I proceed to point out a mode of reducing the number of orators, in an assembly too numerous to allow the right of discussion to all.
It would, however, only be applicable to democratic constitutions; for with good regulations, six hundred persons at least might exercise the right of speaking without any occasion to limit it to a certain number.
The most simple method would be to elect in the first instance, twenty-four orators by name; 2dly, To choose one hundred other persons by lot, in order to give a chance to all parties; 3dly, To permit each of these to waive his right in favour of any other member of the assembly at pleasure. Those who did not possess the talent or inclination to speak, would then voluntarily surrender their places to such members of their own party as seemed best fitted to fill them. But it would be proper to reserve for all the members the right of making a motion—that is to say, a principal motion—and of explaining it.
At first sight, it would appear scarcely possible to class amendments, since they may embrace every modification which the human mind can conceive with respect to a given motion. Upon calling analysis, however, to our assistance, we shall discover that this difficulty vanishes.
All amendments are necessarily relative to the choice of terms, or to the mode of their connexion.
Amendments which relate to terms, can only have for their object one or other of these three objects—to suppress, to add, or to substitute. This last operation is effected by the union of the two first.
Amendments with reference to the connexion of ideas, can only have for their object—their division, their union, or their transposition.
Does the original proposition appear to me too complicated? I demand that it be divided, with the intention of allowing the assembly the power of rejecting one part, without rejecting the other.
Does it appear proper that two propositions which are separated in the original project, should be considered together, or one following the other? I demand their union.
Amendments which consist in transposing a certain word or phrase may have the effect of entirely changing the project: the word only, for example, placed in different situations, will produce a meaning totally different.
Amendments are thus reduced to six kinds, and are capable of receiving clear and precise denominations:—
These technical terms appear necessary to prevent the confounding of ideas which only differ from each other by very slight shades. Things which are not classified, and which have no proper names, are always ill understood, and cannot be designated but by periphrases which are often obscure.
A proper name is a great assistance to the understanding, to the memory, and to the communication of ideas. The greatest difficulty which can be alleged against new words is, that they are difficult to be understood; but those derived from more familiar terms are perfectly intelligible.
It frequently happens, that many amendments are offered upon one motion, and even amendments which refer to a previous amendment: this is what is called a sub-amendment. In what order ought they to be discussed? It is very difficult to give positive rules in this respect: each party will support the importance of his own, and seek to obtain priority. If a debate were always necessary to decide the matter, the principal question would be lost sight of, and the attention of the assembly exhausted upon these accessories.
These contests may be rendered more rare and short, by laying down as a general principle, that amendments upon the connexion shall always be taken into consideration first. What is their object? To place the objects to be discussed in the most suitable order: but this order, once formed, is that which most tends to produce a good discussion. Among this class of amendments, the divisive ought to have the priority. Complex questions are the occasion of the most obscure and obstinate debates.
Among amendments as to the choice of terms, it might also be laid down as a general principle, that suppressive amendments ought to have the priority over the two others of the same kind. The suppression of a single term may remove the strongest objections, and that which is omitted is no longer the subject of debate: on the other hand, additive or substitutive amendments may be productive of sub-amendments of the same species.
The value of these observations will only be fully apprehended by those who have had experience in political assemblies. They will be aware how much confusion is produced by multiplied amendments, and how happy it would be, if without absolute rules some thread could be found which would lead out of the labyrinth.
There remain many more difficulties upon this subject. When there are many additive amendments in concurrence, in what order should they be submitted to the vote? Ought they to be presented singly, or all at once? If they are presented singly, by deciding according to priority you do not give the others an equal chance. It is the same in elections. If you have to choose among many candidates, you do not treat them with equality if you put them to the vote one after another. He who is presented first, will in general have a great advantage; and if he be elected, the others would be rejected without having any chance of success. It is proper, therefore, to vote for rival amendments after the elective manner. I see no other inconvenience than the length of the process. It would be proper always to have recourse to this in cases of great importance. In ordinary cases, it may be allowed to the president to put amendments to the vote in the order which appears to him most suitable, it being understood, that if objection be made, it belongs to the assembly to decide.
It is scarcely necessary to say that amendments are only trials which ought to admit of every possible variation. If the amendment pass, it does not follow that the clause amended shall be adopted. The motion, thus modified, becomes the object of debate, and may be rejected. That which has been suppressed, may be re-established: that which has been added, may be struck out. Words may be placed and displaced, as in the corrections of style, without deciding upon the value of the composition, which after this labour may be condemned or destroyed.
One rule which ought to be absolute with respect to amendments, is—not to admit any which are insidious.
I call those pretended amendments insidious, which, instead of improving the motion, represent it as ridiculous or absurd, and which cannot be adopted without making the motion fall by means of the amendment itself.
Ridicule is useful for the overthrow of an absurdity which does not deserve to be seriously attacked; but an epigram in the shape of an amendment is a piece of wit which is unbecoming the gravity and the design of a political assembly. To propose an amendment, is to declare that one seeks to improve the motion, that it may become worthy of approbation: to propose an amendment which renders the motion ridiculous, is a species of fraud and insult, resembling that particular kind of impertinence which in society is called jeering.
Besides; these insidious amendments are altogether useless. They cannot pass unless the majority of the assembly be already disposed to reject the motion itself. It is therefore to go round about, in order to reach the end which may be attained by direct means. You only render necessary two operations instead of one. You begin by receiving the amendment which renders the motion absurd, and then reject the motion thus amended.
Let us apply these observations to the celebrated vote of the House of Commons in 1782—a vote which served as the foundation of a kind of revolution in the government:—
“It is declared, that the influence of the crown has increased, is increasing, and that it ought to be diminished.”
Let us suppose that one of the opponents of the motion had proposed that it be adopted, upon the insertion of the word necessary before influence.
Here would be an example of the amendment insidious; since the insertion of this word would have rendered the motion contradictory, and even criminal; and the amendment having been admitted, the motion ought to be rejected.
Another example:—A motion having been made for the production of all letters written by the Lords of the Admiralty to an officer of marines,—it was proposed to add as an amendment, the words “which letters may contain orders, or relate to orders not executed, and still subsisting.” The amendment having been adopted, the whole motion was rejected without a division.
This mode of procedure united both the inconveniences I have mentioned: insult and derision were its object—cunning and tergiversation were its means. It was entirely opposed to the maxim—suaviter in modo, fortiter in re.
OF DILATORY MOTIONS, OR MOTIONS OF ADJOURNMENT.
A motion made, and its proposer heard, it is lawful for any member, from this moment to the conclusion of the debate, provided he does not interrupt any speech, to propose a dilatory motion; and this shall take precedence of the previous motion.
There are three kinds of dilatory motions:—
This latter motion consists in proposing to adjourn till after a future event: for example, till after the discussion of another motion, or of some bill already upon the order-book—or till after the presentation of a report, which ought to be made by a committee, &c.—or a communication from the king, or expected petitions.
All these motions ought to be permitted, in order to secure to the assembly the exercise of its will; which would not be completely free, if any one of these modifications were excluded.
The relative adjournment, or post quam, is necessary as a preservative against the danger of coming to an unsuitable decision in the absence of the necessary documents.
Fixed adjournment, or in diem, may have the same object, the procuring of new documents upon a question which does not appear sufficiently clear; or it may be for the purpose of arresting a discussion which assumes too lively and passionate a character.
Precipitation may arise from two causes: from ignorance, when a judgment is formed without the collection of all the information required—from passion, when there is not the necessary calm for considering the question in all its aspects.
What may happen to an individual, may happen to an assembly. The individual may feel, that in the actual conjuncture he is not so sufficiently master of his passion, as to form a prudent determination, but he may be sufficiently so, not to form any—
“Quos ego. Sed motos præstat componere fluctus.”
Æn. I. 139.
“I would beat you,” said the philosopher to his slave, “if I were not angry.”
This faculty, of doubting and suspending our operations, is one of the noblest attributes of man.
These two species of adjournment decide nothing as to the merit of the motion: but to demand an indefinite adjournment, is to cut short the debate by rejecting the motion itself. Ordinarily, the partisans of the original motion will be opposed to this adjournment, and they will employ all the arguments which they can advance in its favour, in opposition to the adjournment. In this case the debate will be less direct, but not shorter. But it may happen that they may themselves favour the indefinite adjournment, if they judge by the complexion of the debate that the chances of success are unfavourable, and that they can attempt their object with more success at a future time.
When an indefinite adjournment is adopted, it is probable that the original motion would have been rejected. The prompt termination of the debate is then an economy of time.
This subject is both difficult and important. The freedom of an assembly resides in the expression of its will. It is necessary, therefore, so to proceed, that every one may give his vote in conformity with his real wishes, and that in the result we may be sure to have obtained the general wish.
The processes of voting are susceptible of divisions derived from many sources:—
1. Voting upon questions, or voting respecting persons. The first takes place with reference to the adoption or rejection of a motion; the second with reference to the election of a person to an office.
There is no real difference between these two cases. To vote upon an election is to vote upon the question whether a certain individual shall be elected: to vote upon a question, is to vote upon an election whether the project shall be chosen or rejected.
2. A simple or a compound vote. The simple vote occurs when the question is so reduced that it is only necessary to say yes or no—such a project shall be adopted, or shall not—such person shall be elected or shall not.
The compound vote occurs, when many operations are to be performed;—when it is necessary to decide among many projects, to choose one person from among many candidates, or to nominate to many places.
With regard to motions, it is proper to reduce the question to the simple form, in which one side may vote by yes, and the other side by no.
With regard to elections, the compound mode is often necessary. When a committee of twenty-four persons is to be chosen from among 1200, there will be 1200 persons eligible for each place, and twenty-four places for each of which it is necessary to choose out of 1200.
3. With reference either to motions or elections, the votes may be given secretly or openly: the secret mode is called ballot.
4. The mode employed for obtaining a decision, may be either dependent or independent of human will. Hence a new distinction—election by choice—election by lot.
5. In conclusion, there is also regular and summary voting. In the regular mode, all the votes are counted, and the exact number on each side known: in the summary mode, the president puts the question, and calls upon the assembly to express its will by sitting down or rising up, or by holding up the hand, &c.; the president judging which party has the majority, and his decision being valid, unless objected to.
Of open and secret Voting.
In general, it is very desirable that the voting should be open rather than secret.
Publicity is the only means of subjecting the voters to the tribunal of public opinion, and of holding them to their duty by the restraint of honour.*
This supposes that publicity is in accordance with the public welfare.
In general, this supposition is well founded. The opinion formed by the public is always conformable to what appears to be its interest; and in the ordinary course of things it sees its own interest, whatever it may be. It is always opposed to misconduct; it always respects the probity, the fidelity, the firmness of its governors and judges.
Still, however, the opinion of the public may be incorrect, since all the members of this tribunal are men. If there be measures upon which the wisest men are not agreed, how is it possible that the public should agree, who are not all wise? If there be errors in morals and legislation, which have led the noblest minds astray, how can the multitude, over whom prejudices have so great an empire, be secured?
It may therefore be said, that in those cases in which public opinion is erroneous, it is desirable that the legislators should vote in secret, that they may be withdrawn from unjust censure, and rendered more free in their votes.
This argument is unsound: for upon what is it founded? Upon the presumption that the opinion of a small number is more correct than the united opinions of a large number. This may be true; but a wise and modest man will be always unwilling to attribute to himself this superiority over his fellows—to pretend to make his opinion triumph over the general opinion. He will choose rather to submit his opinion to that which generally prevails in the nation, and especially will he not desire a victory obtained by clandestine votes, of which he knows the danger.
It follows, therefore, that recognizing the fallibility of the public, it is proper to act as though it were infallible; and that we ought never, under pretence of this fallibility, to establish a system which would withdraw the representatives of the public from its influence.
But may it not be apprehended that this publicity will render men too feeble—that is to say, disposed to sacrifice their real opinions to the general opinion? No: this plan tends in the long run to give greater strength and elevation to their characters. Experience will soon disclose the great difference between the opinion which arises out of a particular circumstance, and that which is formed after mature reflection—between the clamour of the multitude, which is dissipated in noise, and the enlightened opinion of the wise, which survives transitory errors. Freedom of opinion conciliates the respect even of those whom it opposes, and mental courage is no less honoured in free states, than military bravery.
It is, therefore, in a correct knowledge of public opinion, that the means must be found for resisting it when it is considered ill founded: the appeal lies to itself—as from Philip misinformed, to Philip correctly informed. It is not always according to public opinion that an enlightened and virtuous man will decide,—but he will presume, in consulting general utility, that public opinion will take the same course; and there is no stronger moral probability in a country where discussion is free.
Such are the principles which may be advanced for the establishment of the general rule with regard to the publicity of voting.
This rule must be subject at all times to widely extended exceptions.
The cases in which publicity would be dangerous, are those in which it exposes the voters to the influence of seductive motives more powerful than the tutelary motives which it furnishes.
In judging whether a motive ought to be referred to the class of seductive or tutelary motives, it is necessary to examine whether, in the case in question, it tend to produce more good or more evil—whether it tend to favour the greatest or the smallest number.
If, for example, a nobleman be called to decide between his own personal interest and the interest of the body of the nobility,—the motive, whatever it may be, which leads him to prefer this interest to his own, deserves to be called tutelary. If this same nobleman be called to decide between the interest of the body of the nobility, and that of the total mass of the citizens,—this same motive loses its tutelary quality, and can only be considered as a seductive motive.
Hence l’esprit de corps, a social principle, when it leads to the sacrifice of the interest of the individual to that of the particular society, becomes anti-social when it leads to the sacrifice of the great interests of the public.
The same observation is applicable to friendship. If this motive lead me to serve my friend at the expense of my own interest, it is social and tutelary: if it lead me to serve him at the expense of the general good, the same motive becomes anti-social and seductive.
From these considerations, it is proper to add to the general rule respecting publicity, a limiting clause:—
Votes ought to be given secretly in all cases in which there is more to fear from the influence of particular wills, than to hope from the influence of public opinion.
What are these cases? To answer this question, it is necessary to distinguish two species of interest: the one factitious—the other natural.
Interest is purely factitious when the voter has nothing to gain or to lose in consequence of his vote, except when his vote is known.
Interest is natural when the voter may lose or gain in consequence of his vote, even should it remain unknown.
For example, the interest which results from the contract whereby I engage to sell my vote to a stranger, is a factitious interest.
Secret voting destroys the influence of factitious interest: it has no effect upon the influence of natural interest.
Under the régime of secresy, the buyer could have no sufficient security that the contract would be faithfully executed by the seller: an individual may be sufficiently dishonest to commit a fraud, but not to commit treason: the lesser crime is always more probable than the greater.
The system of secresy has therefore a useful tendency in those circumstances in which publicity exposes the voter to the influence of a particular interest opposed to the public interest.
Secresy is therefore in general suitable in elections. Are the votes given openly?—no one can tell to what extent friendship, hope, or fear, may take away the freedom of voting.
It would be a great evil, if in elections, especially popular elections, the effect of secresy were to destroy all influence. This idea of absolute independence in the voters is absurd. Those whose situation does not permit them to acquire political knowledge, have need of guidance from more enlightened persons; but happily the secret mode of election does not diminish the influence of mind on mind: all other things being equal, the most deserving individual in elective assemblies will have the ascendency over the more obscure member;—the man distinguished by his services will have more votes than he who does not rise above the common level. The opulent proprietor, the employment of whose fortune presents a spectacle to the observation of the multitude, will be more readily taken as a model for imitation, than the individual who moves in a narrower circle. This preponderance of the aristocracy is as natural as it is just and necessary. The advantages of wealth and rank suffice, in case of equilibrium in other respects, to turn the balance: but if the one of the candidates had exposed himself to public contempt, whilst the other, rising from obscurity, had acquired the general favour, the illusion would be broken;—and if the votes were free, merit would be preferred to fortune.
It is proper to observe, that the secret mode does not prevent those who desire it, from making known their sentiments. A constrained and universal secresy in elections would be a bad measure: this servile silence would be in contradiction to freedom of action. Each candidate ought to have his friends—his defenders—to cause his claims to be duly estimated by the assembly, to dissipate false imputations—in a word, to enlighten the decision of his judges. Since to proceed to an election is to proceed to try the candidates with the intention of bestowing a reward,—to exclude previous vivâ voce discussion, is to decide the cause of the candidates and that of the public, without allowing the interested parties an opportunity of being heard.
It is true that these public debates—these manifestations of party—may sometimes, in popular elections, produce a tumultuous ferment; but this is a small evil, compared with that of restraining the expression of the public feeling. It is by this freedom that the people are interested in persons and things, and that the firmest bonds are formed between the electors and the elected. Even in England, where these periods rarely return, the fear of this species of popular assize exercises a marked influence over those who devote themselves to the career of politics.
With this mixture of publicity, secret voting appears to me, then, most suitable for elections; that is to say, the most suited to prevent venality, and to secure the independence of the electors. In political matters, I do not see any other case in which it can be recommended as a general rule. But it is proper to observe here, that a nation may find itself in particular circumstances, which will demand the same system upon other points. It may be, for example, that at the period when secret suffrages were introduced at Rome the change was desirable. Cicero though otherwise.
The adoption, however, of one of these methods, does not exclude the other. There are cases in which it is advantageous to combine them, by making them follow upon the same question. The result of these two operations, whether they coincide or whether they differ, would always furnish very instructive indications.
I find a very singular example in the latter days of Poland, when she made a last and generous effort to withdraw herself from the dominant influence of Russia.
The permanent Council, the depositary of the executive power, exercised the supreme power during the interval of the Diets: this Council, intimidated or corrupted, was only the instrument of the will of Russia. It was proposed to raise an army to cause the territory to be respected,—it was proposed to place this army under the orders of a commission, independent of this Council. On the 16th October 1788, they voted upon this proposition:—publicly collected, the votes showed a majority of 80 against 60 for the negative. The secret vote reduced this majority to 7.*
On the 3d of November, the same proposition was discussed again:—the open vote gave for the independence of the commission 114, against it 148; but the secret vote turned the majority on the other side—for the independence 140, against it 122. Thus, among 262 votes, this change of method had made a difference of 52.†
When secret voting is established, it ought only to be when circumstances render a hidden influence suspected; and even then, it is proper that it should be preceded by open voting. Publicity ought to be the ordinary plan.
Secresy ought only to be admitted as a kind of appeal. To demand a ballot, is to appeal from the apparent to the real wish of the assembly.
To take the opposite direction—that is to say, to proceed from secret voting to open voting—would be wrong. The natural order is to pass from the false, or what is suspected to be false, to the true. The real wish once ascertained, what good purpose would be served by taking another vote, which would not be the real vote if it differed from the former?
That these two methods may have their highest effect, they ought to be carried to the highest possible pitch. In secret voting, the secresy cannot be too profound: in public voting, the publicity can never be too great. The most detrimental arrangement would be that of demi-publicity—as if the votes should be known to the assembly, and should remain unknown to the public. Individuals would thus be exposed, in all their votes, to every seductive influence, and would be withdrawn from the principal tutelary influences. This is the system which it would be proper to establish, if we would secure punishment to probity, and reward to prevarication.
In governments in which there are public assemblies, acting in conjunction with a powerful monarch whose influence is feared, it has been thought that the secret mode ought to be the ordinary plan, that the members might be withdrawn from the factitious interest which the monarch might create by his threats or his rewards.
If the monarch can act upon the assembly by means of force, imprisonments, or depositions,—security does not exist—liberty is but a name. The intimidated members would find in secret voting an asylum against public opinion.
In relation to the modes of seduction, those which are public may be arrested by laws excluding from the assembly those individuals who hold certain employments at the nomination of the sovereign.
With regard to clandestine favours, or what may be called corruption,—the danger can never be equal, in a numerous assembly, to the grand antiseptic effect of publicity. The number of persons who could be reduced to dependence by such means will never be large: the majority will be restrained by the dread of shame; a still larger number by the fear of being removed in an assembly liable to change.
Should a sovereign grant perpetual favours,—he would most frequently purchase ingratitude. Should he grant his favours periodically,—these secret negotiations would be too disgraceful and perilous to be frequent. Does one kind of honour enjoin the observation of a clandestine bargain?—another kind of honour directs the breach of it, at least in the case when it cannot be observed without openly offending public opinion.
Of summary and distinct Voting.
Every numerous political assembly which has many operations to perform, has soon been led, by the necessity of economizing time, to ascertain its votes in a summary manner—contenting itself with knowing them by approximation in cases in which the result is manifest, or in which it is not of importance to ascertain the respective numbers with precision. This is the case with regard to the greater number of motions relative to current affairs.
It is better to takes the votes by a visible sign, rather than by acclamation, especially if the assembly be numerous: the sense of sight is a more correct judge than that of hearing. The raised hands, or the persons standing up, are always distinct: voices are more easily mistaken. Are the proportions doubtful?—the operation by standing up and sitting down may be repeated or prolonged without inconvenience: prolonged or reiterated exclamations would be equally ridiculous and inconvenient.
Besides, the voice is a deceptive witness: strength of lungs or party feeling may give to a small number an apparent majority, or at least render the result more often doubtful, and distinct voting necessary.
Acclamations ought to be avoided for another reason: they have a contagious quality, which tends to inflame the mind, and to produce quarrels. In matters which excite a lively interest in the parties, they are a sort of war-cry.
The plan of rising and sitting down discovers the voters—the plan of acclamation hides them in a crowd: it may be employed for stifling all opposition, for oppressing liberty, and causing falsehood to triumph.
Indeed, to say that anything has passed by acclamation, is to wish to make it be believed that it has passed unanimously; but if this unanimity were real, more would be gained by proving it by distinct voting.
The votes should not be taken successively, but all at once, as far as it is possible.
Reference is here made to those cases in which the votes are taken openly. This mode of taking the votes simultaneously is not only recommended as summary—it is also recommended as tending to weaken the influence of party and authority, at least in those cases in which there has been no pre-concerted arrangement.
Distinct or regular voting is that in which all the votes are taken and counted:—this operation is called dividing the assembly.
It may be effected by various methods: by lists, upon which each member inscribes his vote—or by counters—or by a simple change of place on the part of the voters. The choice depends on circumstances, or the nature of the assemblies. Precautions ought to be taken against all possible frauds, either on the part of the voters, lest they should give many votes; or on that of the scrutineers, lest they should falsify the votes.
Each member ought to have the right of demanding it by a simple formula delivered to the president,—I require the division.* For it is not proper to deprive any member of the right of knowing whether the decision be really conformable to the wish of the assembly, or of that of appealing to public opinion, by making known those who vote for or against a measure.
He who demands a division can only have the one or other of two objects in view. Is the disproportion manifest?—he desires to make known the relative force of the two parties—or he wishes to subject the voters to the law of publicity. In this case, it is a species of appeal to the people against the decision of the majority—or, to speak more strictly, it is a demonstration of the votes.
If this privilege were abused by the frequency of divisions for slightly important objects, it might be remedied by requiring the concurrence of a certain number of individuals in a requisition for distinct voting. But such an abuse is scarcely probable. One individual would not often desire to divide the assembly solely to show that he alone was opposed to all the rest.
The mode used in the House of Commons appears to me liable to several inconveniences.
All business is suspended—the assembly is in a state of confusion, whilst the account is taken of the votes of those who leave the House, and of those who remain. This tumultuous movement of parties, and this interruption, which often last half an hour, has none of the dignity which ought to characterize a legislative assembly.
But this is the least evil. As this derangement is agreeable to no one, a regular division is often foregone in order to prevent the inconvenience; and as it is particularly disagreeable to those who are subjected to temporary expulsion, it is often a subject of controversy to determine upon whom the inconvenience ought to fall. For determining this controversy, a rule has been required: but this rule itself has furnished a crop of the most abstruse metaphysical questions: a volume might be filled with the difficulties which have arisen from this branch of parliamentary jurisprudence. This great assembly has been occupied in discussing points altogether as clear in themselves as the famous question of the schoolmen: Utrum chimæra bombilons in vacuo posset comedere secundas intentiones.†
These useless creations of science have for their common effect the restraint of liberty and the concealment of truth. The majority of individuals recoil with affright from the aspect of this labyrinth, and allow themselves implicitly to be led by those who are willing to purchase, at the price of a dry and disgustful study, the privilege of domination. Here, as elsewhere, mystery opens the door to imposture.
To create the world out of nothing was the work of divine power: to create a science out of nothing, and for nothing, has often been the employment of human folly.
From a train of these subtleties, one circumstance still more extraordinary has arisen in English voting: it is, that a member may be forced to vote against his will, and that the legislative assembly should commit an act of falsehood. If the members have, from inattention or any other circumstance, neglected to go out before the door is shut, it is no longer at their option to vote as they wish—they are counted as voting with those who remain in the House, although it be known that their vote is contrary to their known and avowed inclination.—Hatsell, Edit. 1818, II. 195.
This mode of voting is an ancient custom, established when printing was not invented, and when the art of writing was not common. In ancient Rome, the Senate voted nearly in the same manner:—“Manibus pedibusque descendo in sententiam vestram.”‡
I shall only say one word concerning the French practice—it has been spoken of elsewhere. In the National Assembly, the summary mode takes place by sitting and standing. The regular mode takes place by calling over the names—a method so long, so fatiguing, so little favourable to individual independence, that one is almost tempted to believe that the governing party has preserved it as a means of intimidating the weak. It is true, that silence is imposed upon the galleries—that signs of approbation or disapprobation are prohibited: but the sovereign people often mutiny against these prohibitions.
In regular voting, every member ought to be required to give his vote. This obligation is founded upon the nature of his office, as we have seen more in detail in treating of absence. He cannot, as appears to me, neglect this duty, except from indifference, pusillanimity, or corruption.
“No,” says a wise man, “I shall not vote because I am not sufficiently enlightened upon the question: I am equally afraid of error in declaring myself for or against.”
Indecision is a possible state. The mind is as susceptible of this modification as of the two others. To require an affirmative or negative answer from a man who is in doubt, is to substitute constraint for liberty—is to oblige him to tell a lie. The ancient Romans, in penal matters, had seized the distinction of these three states of the mind, and had found formulas for their expression: absolvo—condemno—non liquet. The jurisconsults and legislators, who have drawn so many absurd and atrocious laws from Roman jurisprudence, have never thought of adopting this simple arrangement—this religious homage to truth.
I propose, therefore, a new form of voting. There have hitherto been only two lists, or two ballots—the one for the ayes, the other for the noes; I would establish a third, for the neuters.
But it may be asked, why require a man to vote, whilst he is permitted to give a vote which will have effect neither on the one side nor the other?
It is replied, that a neuter vote subjects the individual who gives it to the judgment of public opinion. By abstaining from voting, he may escape observation, or he may excuse himself upon divers grounds. But admit a neuter vote in a case in which the public interest is manifest, the voter cannot withdraw himself from censure—it will exhibit either his crime or his incapacity in as clear a manner as if he had decidedly taken the wrong side.
In cases which admit of honest doubts, the number of neuter votes would serve to enlighten the assembly, by showing that its deliberations had not yet reached maturity.*
Of Special Committees.
The more numerous an assembly is, the less is it fitted for certain labours. By dividing itself into committees, it multiplies itself—it resolves itself into many parts, each one of which is better calculated to attain a certain object than the whole body would be.
Each committee may be engaged with a different matter. The labour is distributed—progress is accelerated—a degree of attention may be given to all the details of each new project, of which a large assembly would be incapable. This formation of committees, or bureaux, is absolutely necessary for the collection of documents—for engaging in those preparatory researches which require that a great number of persons should be heard—for the verification of accounts.—&c. &c.
It is there frequently that the preparation of a law is completed—a species of labour for which a large assembly is very ill adapted, and which, if attempted in such an aseembly, would be attended with a considerable loss of time.
Ought these committees to be named for the whole session, or upon each occasion. The correct answer will depend upon the circumstances and the object in view. In matters of finance, of commerce, of political economy, there will be in a permanent committee greater coherency in their proceedings, more experience and special knowledge.
Occasional committees have the advantage of being composed of members who, having made the object in question their particular study, may be considered as better acquainted with it; and who, as they are only charged with a single operation, may give more application to it, that they may better justify the choice of the assembly.
The great difficulty lies in the manner of naming committees. The best mode, perhaps, would be to begin by a free nomination—each member being allowed to name a certain individual as a candidate, and from this list to make nomination according to the relative majority of suffrages.
But whatever may be the merit of these committees, it is not proper that the assembly should so far rely upon them, as to dispense with any one of its opportunities of debate. By so doing, it would be in danger of insensibly transferring the power of the whole body to a small body of individuals, naturally exposed to secret influences.
Of Committees of the whole House.
In relation to all legislative measures, the two Houses of Parliament are accustomed to resolve themselves into Committees of the whole House, that there measures may be discussed more freely than in the course of a regular debate. The following are the points of difference between these two methods:—
Some of these distinctions appear useful; others are altogether arbitrary:—
1. It is highly proper that bills and motions composed of a series of articles, should undergo two different discussions—first as a whole, and afterwards article by article. This subject has already been considered in Chapter XI. § 3, “Of three Debates.”
2. It is highly proper, that upon important subjects there should be two forms of debate: the strict debate, in which each member may speak, but speak only once—and the free debate, in which he has the liberty of replying.
3. With regard to the change of the president, the inconveniences of allowing the president of the assembly to take part in its discussions have been elsewhere pointed out: he is a judge, and as a judge ought not to be exposed to the danger of being infected with party spirit.
Formulas are models of what ought to be said upon each occasion by the individual to whom it is prescribed that he should express himself in a certain manner. It can scarcely be determined beforehand, how many formulas an assembly may require: they will be many or few, according to the number of the members, and according to the nature of its powers.
It is proper, for example, that the president always take the votes in the same manner, employing the same expressions—that the members make use of the same terms in presenting their motions, in requiring the exercise of any of their rights,—&c. &c.
Everything unnecessary in such formulas is pernicious. Clearness and brevity:—such are the essential qualities: to attempt to ornament them at the expense of precision, is to disfigure them.
Formulas not only save words: they have a superior utility—they prevent variations which may have a concealed object—and, above all, they prevent disputes.
In England, the royal sanction is always expressed by the same words: Le Roi le veut; and if he reject a bill, the formula of refusal is equally determined: Le Roi s’avisera.
Judicial formulas have too often merited the reproach which has been almost everywhere thrown upon them, of being at the same time vague and prolix—of sinning by omission and by excess.
Their prolixity is easily accounted for in all cases in which lawyers have been able to find, in the multiplication of words, a pretext for their services, and the increase of their price. And when the spirit of revenue has been introduced into procedure, and a traffic has been made of words, increase of length has been given to the formulas, that more profit might be derived from them.
It has in certain cases been thought right to proportion the number of words to the importance of the subject. To dismiss a grave matter in two or three words, it has been considered, was not to form a sufficiently high idea of it—not to treat it with a sufficient dignity. This is the error of a little mind. The most sublime thoughts are often expressed by a single word.
THE BOOK OF FALLACIES:
(originally printed in 1824.)
PREFACE BY THE EDITOR OF THE ORIGINAL EDITION.
The substance of this treatise, drawn up from the most unfinished of all Mr. Bentham’s Manuscripts, has already been published in French by M. Dumont; and considering the very extensive diffusion of that tongue, the present work, but for one consideration, might seem almost superfluous.
The original papers contain many applications of the writer’s principles to British institutions, and British interests; which, with a view to continental circulation, have been judiciously omitted by M. Dumont.
To the English reader, the matter thus omitted cannot but be highly important and instructive. With the view of enabling him to supply the deficiency, and to obtain separately a treatise of general importance, which in the French work has somewhat unfortunately been appended to one of more limited interest,—namely, that on the mode of conducting business in Legislative Assemblies,—the Editor has made the present attempt.
To have done justice to the original matter, the whole ought to have been re-written: this, the Editor’s other pursuits did not allow him leisure to accomplish, and he has been able to do little more than arrange the papers, and strike out what was redundant. In preparing the work for the press, Mr. Bentham has had no share;—for whatever, therefore, may be esteemed defective in the matter, or objectionable in the manner, the Editor is solely responsible. Still, he thought it better that the work should appear, even in its present shape, than not appear at all; and having devoted to it such portion of his time as could be spared from the intervals of a life of labour, he hopes he shall not be without acknowledgment, from those who are competent to appreciate the value of whatsoever comes from the great founder of the Science of Morals and Legislation.
M. Dumont’s work contains an examination of the declaration of the Rights of Man, as proclaimed by the French Constituent Assembly. This forms no part of the present volume, to the subject of which, indeed,—Fallacies employed in debate,—it is not strictly pertinent. But in fact, the original papers have been mislaid, and they seemed to lose so much of their spirit in a translation from the French, that the contents of the additional chapter would not compensate for the additional bulk and expense of the book.*
THE BOOK OF FALLACIES.
[* ]The Board of Agriculture, which at the solicitation of Sir John Sinclair was formed during the administration of Mr. Pitt, was designed to carry purposes similar to those recommended above into effect.
[* ]See An Introduction to Principles of Morals and Legislation, Vol. I.
[* ]“En effet, la plupart de ces savans ne sentent plus les choses en elles-mêmes. Ils sont comme ces imaginations faibles, qui, subjuguées par l’éclàt des dignités et des richesses, admirent dans la bouche d’un grand ce qu’ils trouveraient pitoyable dans celle d’un homme du commun. Ainsi, l’ancienne réputation et les langues savantes leur imposent, et changent tout à leurs yeux. Telle pensée qu’ils entendent tout les jours en François sans y prendre garde, les enlève s’ils viennent à la rencontrer dans un auteur Grec. Tout pleins qu’ils en sont, ils vous la citent avec emphase; et si vous ne partagez pas leur enthousiasme, Ah! s’écrient-ils, si vous saviez le Grec! Il me semble entendre le héros de Cervantes, qui, parcequ’il est armé chevalier, voit des enchanteurs où son écuyer ne voit que des moulins.
[* ]“Tu fidem dabis ad observandum omnia statuta, privilegia, et consuetudines hujus universitatis Oxon. Ita te Deus adjuvet, tactis sacro sanctis Christi evangeliis.”—Parecbolæ sive Excerpta e Corpore Statutorum, p. 250, Oxon. 1756.
[* ]“Statuimus,” say these reverend legislators, “idque sub pœna perjurii,” in a multitude of places.
[† ]The title at length is Epinomis, seu Explanatio Juramenti quod de observandis Statutis Universitatis a singulis præstari solet: quatenus scilicet, seu quousque obligare jurantes censendum est.
[* ]If the nature of the case admitted the possibility of any such result, the endeavour of this constitution would be—on each occasion, to maximize the felicity of every one of the individuals, of whose interests the universal interest is composed; on which supposition, the greatest happiness of all, not of the greatest number only, would be the end aimed at.
[† ]By subsistence—or say matter of subsistence—may be understood everything, the non-possession of which would be productive of positive physical suffering:—that, and nothing more. In so far as distinct from, and not comprehended in, the corresponding branch of security, namely, security for subsistence—subsistence itself must be understood as being, in the field of time, limited to a single instant—any instant taken at pleasure.
[‡ ]In the words good and evil, apt additaments being employed, may be seen two appellatives, which,—opposite as are the sensations and other objects which they are employed to designate,—are, as to no small part of their extent, interconvertible: by ablation of good, evil is produced; by ablation of evil, good. But, on some occasions, the one is the more convenient appellative; on others, the other; on others again, both. Infinite, and in no small degree perhaps irremoveable, are the ambiguity and obscurity produced at every turn by the imperfections of language: language, that almost exclusively applicable, though so deplorably inadequate, instrument of human converse.
[* ]The giving execution and effect to precautionary arrangements, taken with a view to calamity, belongs to one branch of that part of the business of the executive department, which in the ensuing code is styled the preventive service: the giving the like support to such precautionary arrangements as are taken with a view to hostility at the hands of the unofficial and resistible class of adversaries, belongs to the other branch of that same service.
[* ]To this arrangement, no objection, wearing the face of a rational one, could ever be made, other than that of impracticability—an objection formed by the assertion, that, consistently with internal peace and security, no such arrangement can have place. But, in the case of the Anglo-American United States, the groundlessness of this objection has been completely demonstrated by experience—demonstrated by the very first experiment ever made; while, to the purpose of all such persons as had a new constitution to make, this same arangement, even on the supposition that the experiments made of it had, in a considerable number, all of them failed, might still have remained the only eligible one: for, as will be seen below, the above-mentioned constitution is one, which, bating irresistible force from without, affords a reasonable promise of everlasting endurance; whereas every other form of government contains, in the very essence of it, the seeds of its own dissolution—a dissolution which, sooner or later, cannot but have place.
[† ]Namely, immediately or unimmediately, at the hands of those by whom the responsible agents in question were chosen; as is the case in the Anglo-American United States. Say—dislocability, immediately: punibility, unimmediately; namely, by the hands of other agents.
[* ]See “Three Tracts relative to Spanish and Portuguese affairs” in this Collection.
[* ]May 31, 1821.—People of England! is it not high time that you too should know it? Well, then, so you shall, in so far as it is in my power to make you know it.
[* ]In fact, the Cortes did not desert its post. In deference to the constitutional code, the members forbore to promulgate acts in their corporate character, but, consenting to the return of the smaller part of their number to their constituents, a considerable majority remained in the capital, continuing their consultations: and it was by their interposition that it was preserved from the hands of a governor, nominated—not less pointedly against the letter than against the spirit of that code, by the monarch alone, without the concurrence of any other constituted authority in that behalf appointed.
[* ]Before this letter was sent off, grounds were received for the hope, since confirmed, that this set of fears might, for the present at least, escape being realized. In the copy that went to Madrid, this paragraph was accordingly omitted. But under the Matchless Constitution, the envy and admiration of the world, let English readers, especially those by whom the endeavours of Romilly were followed by sympathizing eyes, say whether there are any of these fears on which the impatation of being imaginary can be fastened.
[† ]In its corporate capacity, accordingly, so it was: in consequence, the constitution would have been destroyed, had not the members of the Cortes, in their individual capacity, continued at their post, and saved it and themselves in the manner mentioned in a former note.
[* ]Seditious meeting act, passed December 24, 1819, 60 Geo. III. & 1 Geo. IV. c. 6, § 26.
[* ]This work is now first published in English, being edited from the work of M. Dumont, and the papers of Bentham.
[† ]Four conditions are requisite to inspire a nation with permanent confidence in an assembly which is considered to represent it:—1. Direct election; 2. Amoveability; 3. Certain conditions for being an elector, or elected; 4. A number proportioned to the extent of the country. It is upon these points that questions of detail multiply.
[* ]See also the Synoptical Table, page 304, in which these heads of inconvenience are differently arranged.
[† ]I understand by this, the being in a state of irresolution in relation to questions upon which it is desirable to take one side.
[* ]It is in reality only an intellectual act which can be identical among many individuals, and constitute the principle of unity in a body. It cannot be a physical act: such an act, peculiar to the individual who exercises it, does not offer any foundation for this identity. When the Roman senate decided that the consul Opimius should put Tiberius Gracchus to death, this decision was literally, and without figure, the act of each senator who contributed to it by his vote. When Opimius in consequence slew Gracchus with his sword, the blow struck was the act of Opimius alone. Jurists say that this act was no less the act of the senate than the other. Qui facit per alium, facit per se. I am not examining whether this mode of expression, which tends to confound one person with another, may have any use; all that I intend to observe here is, that if, for the sake of abbreviation, or for greater emphasis, this stroke of the sword be represented as the act of the senate, it can only be so in a figurative sense.
[* ]This inconvenience will be lessened if the deliberations are public and successive. The reasons which have prevailed in one assembly will be known in the other.
[* ]Mr. Bentham not having executed this labour, I have endeavoured to supply it.—Dumont.
[* ]To the reasons already given, for thinking that the nobility when united in one chamber are less to be feared than is commonly thought, it would be proper to add another, which is drawn from their character.
[* ]For example, the riots in London in 1780.
[* ]Dean Tucker.
[† ]See Paley’s Moral Philosophy, b. vi. ch. 6, in which this subject is treated in a manner to which there is nothing to add.
[* ]In the Swiss cantons, no strangers are admitted to the debates in their representative councils, nor are any accounts of their proceedings published.
[† ]All the papers published by the House of Commons are now allowed to be sold (1838.)—Ed.
[‡ ]They have in the present House of Commons a gallery appropriated to themselves (1838.)—Ed.
[* ]By the French constitution of the year 1814, it was directed, that “all the deliberations of the Chamber of Peers should be secret.”
[* ]I proposed this plan of Mr. Bentham’s to many of the members of the Constituent Assembly of France. They considered it very ingenious, and even very useful, but that it could not be carried into effect, because of the rapidity of the motions and operations of the assembly. During many months I attended all its sittings with the greatest assiduity; and I cannot forget how often I have experienced difficulty in ascertaining what was the subject of deliberation: I have asked many members who were not able to inform me. When even the motion was known, it was only in its general object—never in all its details and in its precise terms. There were consequently continual disputes about words: a momentary absence, a momentary abstraction, a late entry, were sufficient to produce entire ignorance of the subject of debate. Individuals sought to instruct themselves by conversations, which formed the assembly into groupes, and gave rise to little particular debates. A multitude of motions thus presented passed as spectres, and were only half known. Hence the indolent members either went away without voting, or voted upon trust; that is to say, not being able to form an opinion, they abandoned themselves to that of their party.
[* ]The Roman senate could not begin any business before the rising of the sun, nor conclude any after its setting. This was a precaution against surprises; but the English method is much preferable. Demosthenes caused a decree to be passed by surprise, after the party opposed to his had retired, believing the sitting finished. Such an event could not have happened in the British senate.
[* ]See Rationale of Reward, Book I. Ch. IV. p. 198.
[* ]It was for a long time a trade among the common people, to seize at an early hour upon places in the gallery of the National Assembly, for the purpose of selling them.
[† ]All this is reconciled in England by an unauthorized but established custom. A small sum given to the doorkeeper of the gallery, introduces you into the gallery, as well as the order of a member.a
[* ]The word President, I employ in preference to any other term which the English or any other European language offers as capable of being made to express the function I have in view.
[* ]For instance, putting the question; declaring the decision from the number of the votes; giving orders to subordinates; giving thanks or reprimands to individuals; or, in short, using, in the name of the assembly, any other discourse of any kind which is not deemed of sufficient importance to be penned by the assembly itself.
[† ]An assembly may in this point of view be deemed too numerous, when it is too numerous for the opinion of each member to be recorded distinctly in his own terms. This takes out of the rule such assemblies, for instance, as the boards of administration, and the principal courts of justice in Great Britain, and the boards established in the dominions of the English East-India Company.
[* ]In contradistinction to a comparative one: i. e. if there be a number of candidates, the having more votes than any other candidate ought not to determine the election, unless he who possesses such comparative majority have a majority of the whole number of the votes.
[† ]For instance, where a king or other chief magistrate in any state institutes a new assembly, or convokes one not already provided with one by ancient designation, it might be of use that he should name a president for this purpose only.
[‡ ]Thus, in an English county meeting, it may be better to accept of the presidency of the sheriff, though an officer of the king’s appointment, than to consume the time in debating who shall fill the chair.
[* ]This chapter was originally published in 4to, in the year 1791. In the preface to that publication it is stated, that “the circumstance which gave rise to the publication of this detached chapter, was the notification that had been given of the then approaching meeting of the French States-General, since termed the National Assembly.
[* ]Order, useful as it is in general to facilitate conception, and necessary as is the assistance it affords to the weakness of the human faculties, is good for nothing else: so that in the few cases where instruction can be administered to more advantage by dispensing with the laws of order than by the observance of them, to adhere to those laws with an inflexible pertinacity would be to sacrifice the end to the means.
[† ]I speak of the regulations themselves: for, as to the principles by which the propriety of regulations is to be tried, and the particular reasons on both sides deducible from those principles, these are matters which lie still open to the researches of invention in every province of the demesnes of law.
[* ]These reasons bear each of them a relation to some particular principle of the number of those laid down in Chapter I. This will account for their being conceived in a form not always the most natural, and which consequently, were it not for the advantages dependent upon this sort of symmetry, would not have been the most eligible.
[† ]Meaning by nothing, the foundation of no monasteries.
[‡ ]Viz. Brittany, Lanquedoc, and Burgundy.
[∥ ]Berry and Haute Guyenne.
[* ]Procès-Verbal de l’Assemblée Provinciale de Berri, 23 Novembre 1778. The declaration here spoken of does not, it is true, in express terms comprise any other regulations than those relative to the “convocation and the formation” of the assemblies in question; but, as the committee who on that day presented a code of regulations relative to those two heads, are the same also who, three days afterwards, present another code relative to the mode of proceeding to be observed, it cannot be supposed that the documents, which had been taken for a model on the first of those occasions, were neglected on the second.
[† ]i. e. as well momentary and particular orders and resolutions as permanent and general laws; so likewise addresses, declarations of opinion (termed also resolutions in the British practice,) and reports.
[‡ ]i. e. whether motion or bill, or draught of any other sort of act of assembly, not comprised under the name of motion.
[∥ ]This last point is not altogether of equal importance with the preceding ones: but as it is so naturally connected with the 4th and 5th, and concurs with them in marking the opposition between the French and British practice, it was not thought worth while to separate it from them.
[* ]This is according to the British practice. In two subsequent chapters relative to the previous promulgation of motions and bills, I shall have occasion to propose an additional mode of introducing propositions; which mode, if adopted, would require an alteration to be made in the penning of this article: but, however different from this in other respects, it is, with respect to the points here noted, grounded on the same principles.
[† ]i. e. by at least a comparative majority of the number of voters present. Shall the majority of the voters present be sufficient, if it falls short of amounting to a majority of the whole number of persons entitled to vote?
[‡ ]Form for a motion; i. e. for the introducing of a proposition:—“I, the undersigned, propose the Draught following, to be made an Act of the Assembly.” (Signed) “A. M.”
[∥ ]In a subsequent chapter, I endeavour to show that the author of a motion ought to be heard in support of it, immediately after, but not, as is the British practice, before he makes it.
[§ ]The passage in brackets expresses the British practice; theremainder, an operation which I have ventured to recommend as a preferable one in a succeeding chapter, in which I propose an instantaneous mode of performing it: but the main point, as will be seen, is the putting a negative upon all fixed order; and in that respect both methods agree.
[¶ ]The passage in brackets expresses the British practice; the remainder, an operation which I have ventured to recommend as a preferable one in a succeeding chapter, in which I propose an instantaneous mode of performing it: but the main point, as will be seen, is the putting a negative upon all fixed order; and in that respect both methods agree.
[* ]Lords’ Orders, Art. 45. Lords’ Journals, 14th December 1621; 23d February 1623; 20th May 1626.
[† ]Commons’ Journals, 27th January 1697.
[‡ ]Commons’ Journals, 22d March 1603; 7th April 1614; 3d February 1620; 21st February 1623.
[∥ ]Precedents of Proceedings in the House of Commons, with Observations, by John Hatsell, Esq., First Clerk of the House, 1785. Vol. I. p. 59.
[* ]II. Hatsell, 59.
[† ]I lay out of consideration at present the case of an amendment: of which hereafter. If an amendment is proposed, it is by some other member, who has the same right to propose the alteration, as the author of the original motion had to propose such motion. The amendment being carried, the amended motion comes instead of the original motion; and the resolution passed by the assembly has two authors—two equally known and avowed authors, instead of one.
[* ]II. Hatsell, 81.
[† ]History of the Rebellion, b. iii. vol. i. p. 275, 8vo edition, 1705.
[‡ ]Commons Journals, 9th March 1620.
A debate arising in the House touching the ancient order and course of the House in the method of raising supplies, and concerning the precedency of the lesser sum;
The House upon the question did resolve and declare it an ancient order of the House, that when there comes a question between the greater and lesser sum, or the longer or shorter time, the least sum and longest time ought first to be put to the question.
The resolution as it ought to have been given in by the author of the motion, and entered by the clerk.
Resolved, [and it is hereby declared to be an ancient order of the House,] that when [in matter of supply] there comes a question between the greater and the lesser sum, or between the longer and the shorter time, the least sum and the longest time ought first to be put to the question.
[* ]Résultat des Assemblées Provinciales, p. 18.
[* ]See Ch. XIV. Of Voting, p. 367.
[* ]Résultat, p. 27.
[* ]Art. 9, page 14, of the journal of 1779. This of Haute Guyenne is the second of the two original assemblies (Berri being the first,) the constitution of which was taken as a model for the others, since established all together in 1787.
[† ]Procès-verbal de l’Assemblée de Haute Guyenne, 4to, 1779, p. 143.
[‡ ]Chap. IV.
[∥ ]Essai sur l’Histoire des Comices de Rome, des Etats-Généraux de la France, and du Parlement de l’Angleterre, 3 vols. 8vo. Philadelphie, (Paris) 17[Editor: illegible number]9 vol. ii. p. 195.
[* ]See Chap. III. § 2, Table of Motions.
[* ]Haute Guyenne, I. 143; anno 1780.
[† ]Orléans, page 163; anno 1767.
[‡ ]By the first opinans of each order, I suppose was meant the first parcel of opinans: if so, pity but it had been expressed so.
[∥ ]What is meant by the word délibération here—whether the arrété—the act or resolution of assembly, which in the French nomenclature is frequently termed déliberation—or the assemblage of acts whereby these avis are respectively exhibited by the individual members—is more than I can take upon me to say: I give the passage as I find it. The same confusion pervades the Berri code; which has served as a sort of model to the rest, and which, in this respect, has been but too faithfully copied.
[§ ]Picardie, p. 184, 13 Decembre 1787; Reglement II. art. 5 and 6.
[¶ ]. . . . Apres la proposition chacun pourra, à son tour, faire telles-observations qu’il jugera convenables; . . . .
[* ]Picardie, Reglement II. art. 10.
[* ]II. Hatsell. Commons’ Journals, 2d May 1604.
[† ]Ibid. 76.
[‡ ]Ibid. 76. Commons’ Journals, 2d May 1604.
[∥ ]Ber i, Vol. I. annon 1778. Reglement pour la Convocation et la Formation de l’Assemblée Sect. II. art. 5. p. 35.
[§ ]Ibid. III. 7, p. 37.
[¶ ]Ibid. IV. 13, p. 40.
[* ]Berri, Vol. I. anno 1778, 10. p. 31.
[† ]The small utility of the arrangement in this point of view, is more particularly observable in the instance of the ecclesiastical order; in which inequality of dignity is liable to be connected with subordination in point of power. When a bishop, for example, and a number of his diocesans, sit in the same assembly—a case exemplified, perhaps, in every one of these assemblies—none of these subordinates can open his mouth, till after the superior has declared his pleasure. If an historiographer of these assemblies is to be believed,a a bishop, in one of them, was explicit enough to declare, that an ecclesiastic ought always to be of the same opinion with his bishop. Admit this proposition, and a good deal of time might be saved from consumption, as well as a good deal of truth from violation. The multitude of the members, one of the most formidable rocks which the institution of the States-General is exposed to split upon, might be most happily reduced by giving, to every bishop chosen, the proxies of as many of his suffragans as are returned with him. I mention this only in the way of illustration, not as affording a specimen of a mode of thinking which can possibly be a general one. The anecdote, probably heightened, or grounded upon some hasty expression, would not have been given by the author from whom I take it, but for its singularity. It would be injustice to the nation, as well as to the order, to view it in any other light.
[* ]Haute Guyenne, page 119; anno 1780, Sect. I, art. 15.
[† ]Ibid. Art. 21, page 121.
[‡ ]Wherever the exercise of a right is deemed invalid till after some act has been performed by a particular individual, that individual, however insignificant in other respects, possesses thereby a negative upon the exercise of that right: and though he might not venture to exercise such a negative upon his own bottom, he might, when supported by a faction.
[∥ ]What do voices [“voix”] mean here? Speeches only, or votes only, or both together? The royal mandate does not say, and a strangermay be permitted not to know. In practice, I am inclined to think it was construed to mean votes, or at least the short and summary opinions given instead of votes. A debate must have preceded, if what, I understand from good authority be true; and that carried on in a mode not only as irregular as the English, but rather more so. Half-a-dozen voices at a time, I am assured, was no uncommon concert; so natural is the connexion between bad government and anarchy.
[§ ]Proces-Verbal, p. 78, in 8vo. Paris 1788.
[* ]It puts one in mind of Solon legislating for the Athenians, and giving them—not good laws, but the best they could be brought to bear. But since that day, national wisdom among our Athenians has made an immense shoot; and they are become ripe for good laws, if ever a people were.
[† ]See Chapter II. On Publicity with regard to the proceedings of a political assembly.
[* ]Résultats des Assemb. Prov. p. 18.
[* ]In ancient times, the Scottish parliament was subject, as to the order of its labours, to a committee named by the King: the Lords of Articles alone had the initiative of all measures. They prepared beforehand everything which was to be presented to the Assembly, and consequently had an absolute negative, much more powerful than they could have had after the debate.—Robertson’s History of Scotland. Book I. Reign of James V. [They were not named by the King, but by the several Estates of the Parliament.—Ed.]
[* ]If it be necessary that motions should be composed beforehand, in order that they may be presented to the legislature, which is composed of the élite of the nation,—for a much stronger reason is this precaution indispensable with regard to popular assemblies, which are formed and dissolved in a day, and which can have little or no practice in the art of debate.
[* ]The longest paragraphs in the Code Napoleon do not exceed one hundred words, and there are very few of that length.
[† ]See General View of a Complete Code of Legislation, Chap. XXXIII. Of the style of the Laws.
[* ]This sophism corresponds with that which in the logic of Aristotle is designated by the words—“Secundum plures interrogationes, ut unam—are honey and gall sweet?” This is a jeu d’esprit for perplexing children, but it is often employed in legislation for deceiving men.
[* ]Journals of the House of Commons, Vol. XXI. p. 235, 24th February 1728.
[† ]These exchangeable terms may be called congeneric competitors.
[* ]These blanks are now always filled up in a type of a character different from that of the other parts of the bill.—Ed.
[† ]For the other rules relative to the drawing up of laws, see also General View of a Code of Laws, Chap, XXXIII. Of the style of the Laws.
[* ]Quint. V. 13.
[† ]In this chapter I have attempted to supply a subject omitted by Mr. Bentham, who makes frequent allusions to these reiterated debates, but who has not treated of them expressly.—Dumont.
[* ]Bentham does not appear to have discussed the above topic. The paragraphs which follow have been extracted from “La Courrier de Provence, No. 65.”—Dumont.
[† ]They occurred even in the National Assembly. I have often seen M. de Mirabeau, in going to the tribune, and even in the tribune itself, receive notes, which he has glanced at without interrupting his speech, and which he has sometimes interwoven with the greatest art into the train of his discourse. A wit once compared him to those mountebanks, who cut a ribbon in pieces, chew it for a moment, and then pull the ribbon in one length out of their mouth again.—Dumont.
[* ]Mr. Fox, the most distinguished orator of England, who attacked his adversaries with so close a logic, carried to the highest pitch the art of avoiding everything which might irritate them. In his most animated moments, when he was as it were borne onward by the torrent of his ideas, always master of himself, he was never wanting in the most scrupulous regard to politeness. It is true, that this happy quality was in him less a secret of the art of oratory, than the effects of the benevolence of his character—modest amidst its superiority, and generous in its strength. Still, however, no man ever expressed himself more courageously, or less ceremoniously. “Les mots allaient,” as says Montaigne, “ou allait la pensée.”
[* ]This fact is drawn from L’Histoire du Gouvernement François, p. 147.
[† ]Every nation has its weakness and its endemic imperfections; and the greater the empire they have obtained, the greater the importance of knowing and guarding against them. Of all the faults with which French writers can be accused, inexactitude is the most marked—the most incontestible. If the English nation has any decided advantage over its rival, it is in the quality opposed to this defect that its cause should be sought for.
[* ]See Chap. II. Of Publicity.
[* ]Courrier de l’Europe, 22d Nov. 1788.
[† ]Gazette de Leide, 5th December 1788.
[* ]The form used in the House of Commons is not so simple, nor so conformable to truth. The Speaker declares the majority in favour of the ayes—The ayes have it. It is necessary, in order to divide the House, that a member of the other party should deny the truth of this report, and say, The noes have it, even in the case when he may be found voting alone in opposition to hundreds. I am well aware that this assertion, founded upon ancient usage, is neither understood as giving the lie to the Speaker, nor as expressing the opinion of him who makes it. But wherein consists the propriety or utility of a legislative assembly employing a form which, beside other inconveniences, is everywhere else an indecorum and a lie?
[† ]The general rule which has served as the foundation of all this ridiculous science is, “That those that give their votes for the preservation of the orders of the House, should stay in; and those that give their votes otherwise, to the introducing of any new matter, or any alteration, should go out.”—Journals of the House of Commons, 10th December 1640; Hatsell, Edit. 1818, II. 187.
[‡ ]The inutility of this form is clearly shown by the circumstance, that when the same individuals in the same number call their assembly a committee of the whole House, this expulsion does not take place. In this case, they have discovered that the two sides of the House are as sufficient to mark the separation of the two parties, as two different rooms. It may perhaps happen in the long run, that they will profit by this discovery.
[* ]It would seem that this form, very applicable to facts, is less so to the making of laws. He who is undecided ought to be for the negative, for he sees no sufficient reason for making the law.
[* ]The original papers above referred to having been recovered, they will immediately follow the present work in this collection.
[* ]May 31, 1821.—People of England! is it not high time that you too should know it? Well, then, so you shall, in so far as it is in my power to make you know it.
[† ]All this is reconciled in England by an unauthorized but established custom. A small sum given to the doorkeeper of the gallery, introduces you into the gallery, as well as the order of a member.a
[* ]The word President, I employ in preference to any other term which the English or any other European language offers as capable of being made to express the function I have in view.
[* ]This chapter was originally published in 4to, in the year 1791. In the preface to that publication it is stated, that “the circumstance which gave rise to the publication of this detached chapter, was the notification that had been given of the then approaching meeting of the French States-General, since termed the National Assembly.
[† ]The small utility of the arrangement in this point of view, is more particularly observable in the instance of the ecclesiastical order; in which inequality of dignity is liable to be connected with subordination in point of power. When a bishop, for example, and a number of his diocesans, sit in the same assembly—a case exemplified, perhaps, in every one of these assemblies—none of these subordinates can open his mouth, till after the superior has declared his pleasure. If an historiographer of these assemblies is to be believed,a a bishop, in one of them, was explicit enough to declare, that an ecclesiastic ought always to be of the same opinion with his bishop. Admit this proposition, and a good deal of time might be saved from consumption, as well as a good deal of truth from violation. The multitude of the members, one of the most formidable rocks which the institution of the States-General is exposed to split upon, might be most happily reduced by giving, to every bishop chosen, the proxies of as many of his suffragans as are returned with him. I mention this only in the way of illustration, not as affording a specimen of a mode of thinking which can possibly be a general one. The anecdote, probably heightened, or grounded upon some hasty expression, would not have been given by the author from whom I take it, but for its singularity. It would be injustice to the nation, as well as to the order, to view it in any other light.
[a]Expired. See Orig. Act of 30th April 1790, chap. 36, page 92, vol. ii.
[b]See the Constitution, Amendments, art. 1. page 72, vol. i.
[a]This practice is now prohibited, by an order dated July 2, 1836, and no person is now admitted without a member’s order.—Ed.
[a]See the collected edition of Dumont’s Bentham, (Brussels, 1289,) I. 453, et seq.
[a]Résultat des Assemblées Provinciales, 8vo. 1788, p. 25.