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 II.

OF PUBLICITY.

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.

§ 1.

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.†

§ 2.

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.

§ 3.

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.

§ 4.

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.

§ 5.

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.*

§ 6.

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.*

[* ]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 can discover no good reason for this secresy. If publicity be dangerous, it appears to me that there is least danger for the peers, who are the least exposed to the danger of popular ambition.

Non-publicity appears to me particularly disadvantageous to the peers. They require publicity as a bridle and a spur; as a bridle, because in virtue of their situation they are thought to have interests separate from the body of the people—as a spur, because their immoveability weakens the motives of emulation, and gives them an absolute independence.

I suppose that the Chamber of Peers is considered as being, or about to become, eminently monarchical, as being the bulwark of royalty against the attacks of the deputies of the people. But in this point of view, is not the secresy of their deliberations a political blunder? Public discussion is allowed to those who by the supposition are enemies of the royal authority, or at least too much inclined to democracy; and those who are considered the hereditary defenders of the king and his dominion, are shut up to secret discussion. Is not this in some manner to presume that their cause is too feeble to sustain the observation of the nation, and that to preserve the individuals from general disapprobation, it is necessary they should vote in secret?

When a proposition in the Chamber of Deputies has obtained great popular favour, is it not desirable that the arguments by which it has been opposed should be known? that the body which has rejected it should have the right of publicly justifying its refusal? that it should not be exposed to the injurious suspicion of acting only with a view to its own interest? that it ought not to be placed in so disadvantageous a position in the struggle which it has to sustain? The body which speaks in public, and whose debates are published, possesses all the means of conciliating to itself numerous partisans, whilst those who deliberate in secret can only influence themselves. It would therefore seem that this secresy, so flattering to them, had been invented as a means of taking from their influence over opinion, more than was given to them in superiority of rank.