Front Page Titles (by Subject) LETTER I.: On the Liberty of the Press—the approaching Eight Months' sleep of the Cortes—and the Exclusion of Experience from the succeeding Cortes. - The Works of Jeremy Bentham, vol. 2
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LETTER I.: On the Liberty of the Press—the approaching Eight Months’ sleep of the Cortes—and the Exclusion of Experience from the succeeding Cortes. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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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.
[* ]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.
[* ]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.
[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.