The Online Library of Liberty

A project of Liberty Fund, Inc.

• Principles of Judicial Procedure, With the Outlines of a Procedure Code.
• Note By the Editor.
• Preface.
• Introduction.
• Chapter I.: General View—ends of Judicature.
• Chapter II.: Ends Apt and Unapt.
• Chapter III.: Procedure—its Relation to the Rest of the Law.
• Chapter IV.: Judiciary Establishment.
• Chapter V.: Procedure—its Subject-matters.
• Chapter VI.: All-comprehensive Arrangements.
• Chapter VII.: Practical General Rules.
• Chapter VIII.: Judicial Application.
• Chapter IX.: Proxies.
• Chapter X.: Judicial Communication.
• Chapter XI.: Evidence.
• Chapter XII.: Initiatory Hearing.
• Chapter XIII.: Defence, How Elicited.
• Chapter XIV.: Suits, Their Sorts.
• Chapter XV.: Suits, Continuance Of.
• Chapter XVI.: Suits—termination.
• Chapter XVII.: Suits, Their Stages.
• Chapter XVIII.: Means of Execution.
• Chapter XIX.: Counter-security.
• Chapter XX.: Remedies,—compensation.
• Chapter XXI.: Judicial Transfer.
• Chapter XXII.: Prehension.
• Chapter XXIII.: Jury-trial.
• Chapter XXIV.: Special Juries.
• Chapter XXV.: Grand Juries.
• Chapter XXVI.: Quasi-jury.
• Chapter XXVII.: Recapitulatory Examination, Or Quasi-trial.
• Chapter XXVIII.: Appeal and Quasi-appeal.
• Chapter XXIX.: Natural and Technical Systems Compared.
• Appendix A.: Initial Sketch of the Procedure Code.
• Appendix B.: Account-taking Judicatories.
• Appendix C.: British India—jury System.
• From the Right Honourable Sir Alexander Johnston, to the Right Honourable Charles W. Williams Wynn, President of the Board of Controul.
• The Rationale of Reward.
• Advertisement By the Editor.
• Remarks By Mr. Bentham.
• Preliminary Observations.
• Book I.—: Of Rewards In General.
• Chapter I.: Definitions.
• Chapter II.: Matter of Reward—sources.
• Chapter III.: Of Reward and Punishment Combined.
• Chapter IV.: Of the Union of Interest With Duty, and of Self-executing Laws.
• Chapter V.: Matter of Reward—reasons For Husbanding.
• Chapter VI.: Remuneration Ex Post Facto.
• Chapter VII.: Punition and Remuneration—their Relations.
• Chapter VIII.: Remuneration—where Hurtful.
• Chapter IX.: Remuneration—where Needless.
• Chapter X.: Proportion As to Rewards.
• Chapter XI.: Choice As to Rewards.
• Chapter XII.: Procedure As to Rewards.
• Chapter XIII.: Rewards to Informers.
• Chapter XIV.: Rewards to Accomplices.
• Chapter XV.: Competition As to Rewards.
• Chapter XVI.: Rewards For Virtue.
• Chapter XVII.: Accompaniments to Remuneration.
• Book II.—: Rewards Applied to Offices.
• Chapter I.: Salary—how a Reward.
• Chapter II.: Rules As to Emoluments.
• Chapter III.: Fees and Perquisites—none.
• Chapter IV.: Minimize Emolument.
• Chapter V.: No More Nominal Than Real.
• Chapter VI.: Couple Burthen With Benefit.
• Chapter VII.: By Emoluments Exclude Corruption.
• Chapter VIII.: Give Pensions of Retreat.
• Chapter IX.: Of the Sale of Offices.
• Chapter X.: Of Qualifications.
• Chapter XI.: Of Trust and Contract Management.
• Chapter XII.: Of Reforms.
• Book III.—: Reward Applied to Art and Science.
• Chapter I.: Art and Science—divisions.
• Chapter II.: Art and Science—advancement.
• Chapter III.: Art and Science—diffusion.
• Appendix.
• Leading Principles of a Constitutional Code, For Any State.
• Section I.: Ends Aimed At.
• Section II.: Principal Means Employed For the Attainment of the Above Ends.
• Liberty of the Press, and Public Discussion.
• Advertisement.
• Jeremy Bentham to the Spanish People.
• 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.
• Letter II.: On the Liberty of Public Discussion In Free Meetings.
• Letter III.: On the Liberty of Public Discussion In Free Meetings—continuation From Letter II.
• Letter IV.: On the Liberty of Public Discussion In Free Meetings—continuation of the Subject From Letter III.
• An Essay On Political Tactics, Or Inquiries Concerning the Discipline and Mode of Proceeding Proper to Be Observed In Political Assemblies: Principally Applied to the Practice of the British Parliament, and to the Constitution and Situation of the Nati
• Chapter I.: General Considerations.
• Chapter II.: Of Publicity.
• Chapter III.: Of the Place of Meeting and Its Dependencies.
• Chapter IV.: Of What Concerns the Members Present At a Legislative Assembly.
• Chapter V.: Of the Presidents and Vice-presidents Belonging to Political Assemblies.
• Chapter VI. *: of the Mode of Proceeding In a Political Assembly In the Formation of Its Decisions.
• Chapter VII.: Of the Proposal of Measures For Adoption.
• Chapter VIII.: Of the Different Acts Which Enter Into the Formation of a Decree.
• Chapter IX.: Of the Promulgation of Motions—of Bills—of Amendments, and Their Withdrawment.
• Chapter X.: Of the Drawing Up of Laws.
• Chapter XI.: Of Debates.
• Chapter XII.: Of Amendments.
• Chapter XIII.: Of Dilatory Motions, Or Motions of Adjournment.
• Chapter XIV.: Of Voting.
• Chapter XV.: Of Committees.
• Chapter XVI.: Of Formulas.
• The Book of Fallacies: From Unfinished Papers of Jeremy Bentham. Edited By a Friend.
• Preface By the Editor of the Original Edition.
• The Book of Fallacies.: Introduction.
• Section I.: A Fallacy, What.
• Section II.: Fallacies, By Whom Treated of Heretofore.
• Section III.: Relation of Fallacies to Vulgar Errors.
• Section IV.: Political Fallacies the Subject of This Work.
• Section V.: Division Or Classification of Fallacies
• Section VI.: Nomenclature of Political Fallacies.
• Section VII.: Contrast Between the Present Work and Hamilton’s “parliamentary Logic.”
• Part I.: Fallacies of Authority, the Subject of Which Is Authority In Various Shapes, and the Object to Repress All Exercise of the Reasoning Faculty.
• Chapter I.
• Chapter II.: The Wisdom of Our Ancestors; Or Chinese Argument—( Ad Verecundiam. )
• Chapter III.: Fallacy of Irrevocable Laws.
• Chapter IV.: No-precedent Argument—( Ad Verecundiam. )
• Chapter V.
• Chapter VI.: Laudatory Personalities— (ad Amicitiam.)
• Part II.: Fallacies of Danger, the Subject-matter of Which Is Danger In Various Shapes, and the Object to Repress Discussion Altogether, By Exciting Alarm.
• Chapter I.: Vituperative Personalities— (ad Odium.)
• Chapter II.
• Chapter III.: Fallacy of Distrust, Or, What’s At the Bottom?—( Ad Metum. )
• Chapter IV.: Official Malefactor’s Screen—( Ad Metum. )
• Chapter V.: Accusation-scarer’s Device—( Ad Metum. )
• Part III.: Fallacies of Delay, the Subject-matter of Which Is Delay In Various Shapes—and the Object, to Postpone Discussion, With a View of Eluding It.
• Chapter I.: The Quietist, Or “no Complaint”—( Ad Quietem )
• Chapter II.: Fallacy of False Consolation— (ad Quietem.)
• Chapter III.: Procrastinator’s Argument ( Ad Socordiam. )
• Chapter IV.: Snail’s-pace Argument.—( Ad Socordiam. )
• Chapter V.: Fallacy of Artful Diversion—( Ad Verecundiam. )
• Part IV.: Fallacies of Confusion, the Object of Which Is, to Perplex, When Discussion Can No Longer Be Avoided.
• Chapter I.: Question-begging Appellatives—( Ad Judicium. )
• Chapter II.: Impostor Terms—( Ad Judicium. )
• Chapter III.: Vague Generalities—( Ad Judicium. )
• Chapter IV.: Allegorical Idols—( Ad Imaginationem. )
• Chapter V.: Sweeping Classifications—( Ad Judicium. )
• Chapter VI.: Sham Distinctions—( Ad Judicium. )
• Chapter VII.: Popular Corruption—( Ad Superbiam. )
• Chapter VIII.: Observations On the Seven Preceding Fallacies.
• Chapter IX.: Anti-rational Fallacies—( Ad Verecundiam. )
• Chapter X.: Paradoxical Assertion—( Ad Judicium. )
• Chapter XI. :non-causa Pro Causa: Or, Cause and Obstacle Confounded—( Ad Judicium. )
• Chapter XII.: Partiality-preacher’s Argument—( Ad Judicium. )
• Chapter XIII.: The End Justifies the Means—( Ad Judicium. )
• Chapter XIV.: Opposer-general’s Justification:—not Measures But Men; Or, Not Men But Measures—( Ad Invidiam. )
• Chapter XV.: Rejection Instead of Amendment—( Ad Judicium. )
• Part V
• Chapter I.: Characters Common to All These Fallacies.
• Chapter II.: Of the Mischief Producible By Fallacies.
• Chapter III.: Causes of the Utterance of These Fallacies.
• Chapter IV.: Second Cause—interest Begotten-prejudice.
• Chapter V.: Third Cause—authority-begotten Prejudice.
• Chapter VI.: Fourth Cause—self-defence Against Counter-fallacies.
• Chapter VII.: Use of These Fallacies to the Utterers and Acceptors of Them.
• Chapter VIII.: Particular Demand For Fallacies Under the English Constitution.
• Chapter IX.: The Demand For Political Fallacies:—how Created By the State of Interests.
• Chapter X.: Different Parts Which May Be Borne In Relation to Fallacies.
• Chapter XI.: Uses of the Preceding Exposure.
• Anarchical Fallacies; Being an Examination of the Declarations of Rights Issued During the French Revolution.
• Advertisement.
• An Examination of the Declaration of the Rights of the Man and the Citizen Decreed By the Constituent Assembly In France.
• Preamble.
• A Critical Examination of the Declaration of Rights.
• Declaration of the Rights and Duties of the Man and the Citizen, Anno 1795.
• Observations On Parts of the Declaration of Rights, As Proposed By Citizen Sieyes.
• Principles of International Law.
• Essay I.: Objects of International Law.
• Essay II.: Of Subjects, Or of the Personal Extent of the Dominion of the Laws.
• Essay III.: Of War, Considered In Respect of Its Causes and Consequences.
• Essay IV.: A Plan For an Universal and Perpetual Peace.
• Appendix. * —junctiana Proposal.
• A Protest Against Law-taxes, Showing the Peculiar Mischievousness of All Such Impositions As Add to the Expense of Appeal to Justice.
• Supply Without Burden; Or Escheat Vice Taxation: Being a Proposal For a Saving of Taxes By an Extension of the Law of Escheat, Including Strictures On the Taxes On Collateral Succession Comprised In the Budget of 7 Th December 1795.
• Preface.
• Section I.: General Idea.
• Section II.: Order of the Details.
• Section III.: Advantages.
• Section IV.: Originality.
• Section V.: Produce.
• Section VI.: Application.
• Section VII.: Heads of Objection, With Answers. †
• Section VIII.: Existing Law.
• Section IX.: Ancient Law.
• Section X.: Blackstone.
• Tax With Monopoly; Or Hints of Certain Cases In Which, In Alleviation of the Burden of Taxation, Exclusive Privileges May Be Given As Against Future Competitors, Without Producing Any of the Ill Effects, Which In Most Cases Are Inseparable From Everyth
• I.: Stock-brokers.
• II.: Bankers.

CHAPTER I.

GENERAL CONSIDERATIONS.

§ 1.

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.

§ 2.

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:—*

1. Inaction.

2. Useless decision.

3. Indecision.

4. Delays.

5. Surprise or precipitation.

6. Fluctuations in measures.

7. Quarrels.

8. Falsehoods.

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.

§ 3.

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.*

§ 4.

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.

§ 5.

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.]

[† ]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.

The election ought to be direct. If it be made by more steps, the people, who only elect the electors, cannot regard the deputies elected as their work; they are not connected with them by the affection of choice, nor by the feeling of power. The electors are connected with the people neither by gratitude nor responsibility; there is no approximation of the superior and inferior classes, and the political bond continues imperfect.

Amoveability is absolutely necessary. What is an election? It is a solemn declaration that a certain man actually enjoys the confidence of his constituents. But this declaration does not possess a miraculous virtue, which will guarantee the character and the future actions of this man. It is absurd to cause a whole nation to assert this grave foolery:—“We declare that these five hundred individuals, who now possess our confidence, will equally possess it whatever they do during all the rest of their lives.”

The conditions to be required are of a more doubtful nature. Eligibility founded upon pecuniary conditions appears to turn upon a general distrust of individuals who cannot offer the pledge of property: they are considered as less attached to the established order, or less secure from corruption. The conditions required to constitute an elector, have for their object the exclusion from political power of those who are considered incapable of exercising this power with intelligence or probity;—they are precautions against venality, ignorance, and intrigue.

The number is an important consideration: legislative functions demand qualities and virtues which are not common; there is no chance of finding them except in a large assembly of individuals.

Legislation requires a variety of local knowledge, which can only be obtained in a numerous body of deputies chosen from all parts of the empire. It is proper that all interests should be known and discussed.

Legislation is not susceptible of direct responsibility. A small junta of legislators may have particular interests in making laws opposed to the general interest. It will be easy for the executive power to subject them to its influence. But number is a preservative against this danger. A numerous body of amoveable legislators participate too strongly in the interest of the community to neglect it long. Oppressive laws would press upon themselves. Even the rivalries which are formed in a large assembly become the security of the people.

In conclusion, if the number of the deputies were too small, the extent of the electoral district would render the elections embarrassing; and by reducing the value of a vote almost to nothing, would proportionally diminish the authority of the electors, at the same time that it augmented the relative value of the offices so much, as to expose the elections to the most violent contests and intrigues.

[* ]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.

The nobility are naturally indolent; they dislike business, because, they are unaccustomed to it. Even in England, the House of Lords is extremely negligent of its senatorial functions. It is frequently necessary to recruit it, to maintain it in activity. They are like certain Indians, who allow themselves to be governed by men brought from another climate.

Those who have most to lose are in consequence most timid. Their rank makes them most prominent. They cannot escape in the crowd. If they render themselves unpopular, this unpopularity follows them everywhere.