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 IV.

OF WHAT CONCERNS THE MEMBERS PRESENT AT A LEGISLATIVE ASSEMBLY.

§ 1.

Of the utility of a Distinctive Dress for Members.

The establishment of a particular dress for the members during the hours of sitting, is one of those points upon which it would not be proper to wound national customs. The object, however, is not altogether so unimportant as might be thought at the first glance.

1. A particular dress serves to distinguish the members from the spectators: it may prevent the usurpation of their privilege.

2. Such a dress might attain the end of a sumptuary law, without having its rigour. This apparent equality would defend the poor man of merit from a disadvantageous comparison with the pride of fortune.

3. Such a dress tends in another manner to place the individuals upon a level, by diminishing the disadvantages of those who have to strive against any bodily defect.

4. It produces a certain impression of respect upon the spectators, and places the members themselves in a more distinguished situation—two causes which equally tend to the maintenance of order, and the preservation of decency.

5. In the course of a debate, when parties are nearly balanced, and when intrigue or corruption may be apprehended, the peculiar dress may serve to detect the proceedings of the members, and to signalize what passes among them. Every communication among them becomes more manifest, and attracts the public attention.

This method, I allow, is not of great force; but if it be possible, without inconvenience, to throw one additional grain into the scale of probity, it ought not to be neglected.

6. In a popular tumult, such as every political assembly is exposed to see arise around it, a dress which announces the dignity of him who wears it, may dispose the people to respect, and give the members more influence in calming the storm.

7. If the tumult runs so high as personally to menace certain members of the assembly, the simple act of laying aside their peculiar dress would favour their retreat. The Chancellor Jefferies, so noted under James II. for his bloody decisions, succeeded, by laying aside the marks of his dignity, in eluding for a time the fury of the populace.

These different reasons are not equally applicable to all political assemblies.

§ 2.

Of the manner of placing the Members, and of a Rostrum for the Orators.

In a numerous deliberative assembly, there ought not to be any predeterminate places. Every one ought to take his place as he arrives.

This free arrangement is preferable to a fixed order, for many reasons: and first, because it tends to produce a debate of a better kind.

The members of the same party ought to possess every facility for concerting their operations and distributing their parts. Without this concert, it is impossible that the arguments should be presented in the most suitable order, and placed in the most advantageous light. It is only by a continual correspondence among the members themselves, that they can prevent a multitude of useless operations, delays, contradictions, repetitions, inconsistencies, and other incidents, of which the common tendency is to interrupt that unity of plan which is necessary in conducting business to its termination. In this respect, party interests are the same as those of the public. It is necessary for the public good that each party should plead its cause with all its force—should employ all its resources; since truth only has everything to gain in the concussion.

Consultations held previous to the assembly, cannot supply these little consultations at the moment. One particular observation, one new proposition, may give a new aspect to affairs, and render necessary a change of measures. The most consuminate foresight cannot anticipate all the incidents which may arise in the course of a discussion. It is here as in a battle,—the best plan previously formed cannot supersede the necessity of occasional orders suggested at the instant by the events of the day.

The English practice is conformable to this theory. The arrangement being free, the two parties naturally place themselves upon the two sides of the House. The first bench upon the right of the Speaker, which is called the Treasury Bench, is occupied by the ministers and other official persons; but this is a matter of courtesy, and not of right. The first bench on the Speaker’s left, is that occupied by the principal persons of the opposition party.

There is one single exception to this freedom of places—an exception, honourable in principle, but too rare in practice to be productive of inconvenience. “It is commonly understood,” says Mr. Hatsell, (Vol. II. p. 194.) “that members who have received the thanks of the House in their place, are entitled to that place whenever they come to the House, at least during that parliament; and it is generally allowed them by the courtesy of the House.”

In the House of Lords, different benches are appropriated of right to the different orders,—one to the Bishops, another to the Dukes, &c.; but these appropriations are but slightly observed.

The States of Holland and West Friesland used to assemble in a hall, in which, to judge from appearances, the fixation of places was most strict. Each town had its bench, or its part of a bench. The places being aloccupied, no one could change without occasioning some derangement. Whether any inconveniences were the result or not, is a matter of conjecture, and nothing more. Since everything passed in secresy in these Dutch assemblies, they never understood the essential connexion between liberty and publicity which support each other.

This free arrangement is favourable to equality, in a case in which equality, not being hurtful to any one, is justice. To prevent disputes concerning precedence, those vain contests of etiquette which have so often been the principal object of attention in great political assemblies, would be in itself a great good. To correct the disposition itself which attaches importance to these distinctions, is a still greater advantage. The mode by which this scheme of graduated injuries is carried into effect, is begun by supposing that one place is preferable to every other, and that the occupation of it is a mark of superiority. This system of insults, which goes on regularly increasing from the last to the first place, is what is called order, subordination, harmony; and these honorary distinctions—that is to say, these gradations of affronts—given and received with privilege, are commonly regarded with more respect, and defended with more obstinacy, than the most important laws.

This, then, is one cause of contention and trifling, which ought to be excluded from a political assembly. Distinction of places, and disputes concerning rank, ought to be unknown there. Merita sua teneant auctores, nec ultra progrediatur honos quam reperiatur virtus.

In England, a quarrel respecting precedence is sometimes heard of, but it is only in assemblies for amusement; most generally among females, and only among themselves. If these disputes reach the men, they treat them as a joke.

Ought there to be a place assigned for those who speak?

Before answering this question, two points ought to be determined,—the form and size of the place of meeting, and the number of members.

In a numerous assembly, the speaker is best heard when he speaks from a tribune, placed near the centre and visible to all. The debate, more easily followed, causes less fatigue. Those who have weak voices, are not obliged to strain themselves that they may make themselves heard at the extremities; and this is a consideration which ought not to be disregarded in a political assembly, in which there ought to be a large proportion of aged and studious men.

Regularity is better preserved. If every member may speak from his place, there is at least a danger of confusion, and it is more difficult for the president to prevent irregular interruptions. The necessity of going to the tribune, stops a crowd of insignificant and precipitate proposals. It is a deliberate act, which an individual will hardly perform without having first considered what he intends to say: it makes him conspicuous, and he must feel that it is ridiculous to fix attention upon himself, when he has nothing to say wherewith to repay that attention.

Besides, when a tribune is established as the place from which to speak, all the rest of the assembly ought to be obliged to be silent. If any one speak out of the privileged place, he commits an obvious irregularity, and may immediately be called to order.

The tribune presents also a certain advantage connected with impartiality. If the assembly, according to the disposition of all political bodies, form itself into two parties, each naturally tends to station itself in a certain portion of the place of meeting; and if each one speak from the midst of his party, it is known beforehand on which side he is going to speak: but there are always some men more or less impartial and independent. It is well, therefore, to require all the members to speak from a tribune, which being the same for all, relieves the individual from the association of ideas which would connect him with a given party. It must, however, be acknowledged, that this method is not perfectly effectual, because all the members know each other; but it is well calculated to have this effect with the public who listen to him, and who would be thus called upon to judge the speaker by what he says, and not by the place from which he speaks.

It may be objected, that this is a restraint, and that this restraint may deprive the assembly of the information possessed by a timid individual, who would fear to push himself forward upon the scene in too marked a manner.

It may be said, that a loss of time would result from it, if, for a single word, a short explanation, a call to order, it were necessary to cross the house, and to ascend the tribune.

These two objections are of very little value. The first supposes a degree of timidity which is soon overcome by use: a practised speaker will speak from one place as well as another; but he will speak best when he is best heard: he will speak more freely, or he will speak with less effort.

As to short explanations, the president might permit a member to make them without quitting his place. These are minutiæ, with respect to which a routine of detail will readily be formed.

The two houses of the British parliament have no tribune, and no great inconvenience results from the want. It must be observed at all times, that these assemblies are rarely numerous, that there are few habitual orators, and that those almost always occupy the same places. But when a member speaks from a distant seat, he speaks under manifest disadvantage. He is less heard by the assembly, and often not heard at all in the gallery. There are few important debates in which the reporters for the public papers are not obliged to omit certain speeches, of which only scattered sounds and broken phrases have reached them.

§ 3.

Of the hours of business, fixed or free.

It is very necessary to have a fixed hour for the commencement of business.

But is it proper to have a fixed hour for breaking up the sitting, although in the middle of a debate? There ought to be a fixed hour, or very nearly so; but it should be admissible to finish a speech which is begun.

This regulation appears to me very reasonable, and more important than would be imagined at the first glance.

With reference to the personal convenience of individuals, this fixation of the hour is useful to all, and necessary for the infirm and the aged. An inconvenience which may deter feeble and delicate persons from this national service, is worthy of consideration.

But the principal reason is, that there is no other method of securing to each subject a degree of discussion proportioned to its importance. When the duration of the debate is unlimited, the impatience of those who feel themselves the strongest, will lead them to prolong the sitting beyond the term in which the faculties of the human mind can exercise themselves without weakness. The end of the debate will often be precipitated, if it be only from that feeling of uneasiness which results from fatigue and ennui.

In those circumstances in which parties are most excited—in which each of them, awaiting the decision, would be most desirous of exceeding the ordinary time—it is then that the rule would be particularly useful: by interrupting the debate, it favours reflection, it diminishes the influence of eloquence, it gives to the result a character of dignity and moderation.

1. But it will be said, delay results from it. Those who dread being found in a minority will prolong the debates, in the hope that another day may give them some advantage.

I think that a systematic plan of delay, founded upon this law, is but slightly probable. The individual who should speak merely to consume the time, would do too much injury to himself. To talk to no purpose, in an assembly in which are heard the murmurs of indignation, and before the public which judges you, is a part which demands a rare degree of impudence; and, moreover, it would be necessary to suppose that a great number of individuals should enter into this disgraceful conspiracy, in order to make it succeed.

2. It may perhaps be said, that it opens a door to intrigue—to that kind of intrigue which consists in personal solicitations to the members, in the interval between two sittings.

But this objection amounts to nothing. There is no greater facility for solicitation after the first debate, than there was before it: there is even less; for those who have announced their opinions, would fear to render themselves suspected by so sudden a change of opinion.

If this objection were solid, it would lead to the conclusion that everything should be unpremeditated in political assemblies—that the object of deliberations should not be previously known, and that the only mode of guaranteeing their integrity is to take them unawares, and to separate them from all communication from without.

English practice.

There is a fixed hour for beginning the sittings; there is none for their termination. Hence, debates which excite great interest have sometimes lasted from twelve to fifteen hours, and even beyond that.

The inconveniences which result from this practice are sufficiently numerous; but there is no danger, at least with regard to projects of laws, because the regulations secure certain delays. Every bill must be read three times, besides being discussed in committee. Two adjournments are therefore necessary, and there may be a greater number.*

The sittings do not generally commence before four o’clock, and even later. This arises from the composition of the assembly. The ministers are engaged in the morning in their offices; the judges and lawyers in the courts of justice; a great number of merchants are necessarily occupied with their business. The different committees of the house require the attendance of a multitude of persons, and this service, in a large city, can only be conveniently rendered during the day.

These circumstances have caused evening sittings to be preferred, notwithstanding the inconvenience of prolonging the debates far into the night—of often producing precipitation, from the desire of concluding them—of affecting the health of delicate persons, and of exposing this public service to the formidable concurrence of all the dissipations of a large city. If the ancient usage of assembling in the morning were re-established, this change alone would necessarily change the composition of the House of Commons.

§ 4.

Duty of attendance—Mischiefs resulting from non-attendance.

I begin with two propositions:—the first, that in every legislative assembly the absence of the members is an evil:—the other, that this evil is sufficiently great to justify a law of constraint.

The inconveniences may be ranged under six heads:—

1. Facility of prevarication.

2. Occasion of negligence.

3. Admission of less capable individuals.

4. Inaction of the assembly, when the number requisite for the validity of its acts is not present.

5. Danger of surprises.

6. Diminution of the popular influence of the assembly.

1. Facility of prevarication.—There is more than facility—there is entire security, not for complete prevarication, but for demi-prevarication. Suppose a measure so bad that a deputy, if he were present, could not in honour refrain from voting against it. Does he fear to offend a protector, a minister, or a friend? He absents himself: his duty is betrayed, but his reputation is not compromised.

Every voter produces by his vote two equal and distinct effects: he deprives one party of his vote, and gives it to the other. The absent produces only one of these effects, but there is always half the mischief.

2. Negligence.—Is one obliged to vote upon all questions? It is natural to pay some attention to them, to make one’s self acquainted with them, lest we become absolute ciphers in the assembly. But this feeling of honour does not exist when individuals may freely absent themselves. They will abandon their duty, rather than compromise themselves—they will give themselves up to indolence; and the more they neglect their business, the less will they be qualified to engage in it.

3. Admission of less capable individuals.—So soon as an employment becomes a source of consideration and of power, without imposing any restraint, it will be sought after—will be bought and sold, by men who have neither inclination nor power to render themselves useful in it.

Such places will often become the appanage of fortune and dignity; but if it be requisite assiduously to discharge their functions, the little motives of vanity will not outweigh the bonds of labour. We shall only find among the candidates those who discover, in these public duties, some particular attractions;—and though inclination for an employment does not prove talent for its discharge, there is no better pledge of aptitude for the labour than the pleasure which accompanies it.

4. Inaction for want of the number required.—This evil is connected with the preceding. So soon as the places are occupied by men who only love the decorations they afford, they will neglect to attend, at least upon ordinary occasions. It will become necessary to fix a quota for forming an assembly, and this expedient will itself produce many days of inaction.

5. Danger of surprises.—We may consider as a surprise, every proposition the success of which has resulted from absence, and which would have been rejected in the full assembly.

6. Diminution of influence.—Public opinion in a representative government is naturally disposed to conform itself to the wish of the assembly, and requires only to know it. But will the wish of the whole assembly be the wish of that portion from which the decision emanates? It is this which becomes more problematical, in proportion as this part is less than the whole. Is the part absent greater than that which is present? The public knows not to which to adhere. In every state of the case, the incomplete assembly will have less influence than the complete assembly.

§ 5.

Means of insuring attendance.

I confine myself here to the general idea. The first of these means would consist in requiring of each member a deposit, at the commencement of each quarter, of a certain sum for each day of sitting in the quarter; this deposit to be returned to him at the end of the term, deduction being made of the amount deposited for each day for every day he was absent.

If the members receive a salary, this salary should be placed in deposit, subject to being retained in the same manner.

This retention should always take place without exception, even in those cases in which there are the most legitimate excuses for absence.

This plan may at first appear singular, but this is only because it is new. This, however, is not a feasible objection to it, if it be particularly efficacious. It belongs to that class of laws which execute themselves.* If instead of this retention you establish an equal fine—there then becomes necessary an accuser—a process, a judgment: on the other hand, the deduction is not liable to uncertainty—it operates after a simple calculation, and does not bear the character of a penal law.

Emoluments are the price of service,—Is there any ground of complaint, if they are attached to the rendering of service?

If the employment be of a kind to be undertaken without salary, the chance of losing a part of the deposit ought to be regarded as the price of the place.

To admit any cases of exception, would be to alter the nature of this instrument. Its essence consists in its inflexibility—admit excuses, you admit fraud, you admit favour; refusal to receive them would become an affront,—you would substitute a penal for a remuneratory arrangement. But it may be said, in case of sickness, is it right to add to this natural misfortune, another factitious evil? Yes, upon so important an occasion. The professional man, the artisan, are subject to the same losses. At the price of this single inconvenience, contraventions without end are prevented, the public service is secured, which could not be secured by any means more easy and manageable.

This expedient itself will not suffice. It is necessary to add to it a coercive punishment; for it is always necessary to come to this, to give effect to the laws. I only propose one day of arrest for each contravention, it being always understood that every legitimate excuse for absence is admissible as a ground of exemption from this punishment.

This is necessary for constraining a class of persons upon whom the loss of the deposit would have only an uncertain influence.

The rich are often led by vanity to make pecuniary sacrifices: they would not be indisposed to acquire an honourable office, even though it were expensive, provided they were not compelled to attend to its duties; they might even glory in the infraction of a rule when the punishment was only a pecuniary fine. Hence there would perhaps be formed two classes in the assembly—those who were paid for their functions, and those who paid for not fulfilling them; and as wealth sets the fashion, it might happen that a kind of degradation would be reflected upon the useful and laborious class.

A punishment is therefore necessary, which should be the same for everybody—a slight but inevitable punishment. It is true that excuses would be admissible; but it is not to be expected that, for the purpose of avoiding the inconvenience of one day’s arrest, any one would compromise his honour by a lie.

These means should also be strengthened by a register, in which every case of absence should be specified. The name of the absent member should be inscribed therein, with the date of his absence, in order to indicate the sitting or sittings from which he was absent, the excuses he has made, or the days during which, he was subject to arrest. This memorial should be printed at the end of every session.

The power of granting leave ought not to exist. This power would soon reduce the demand which was made of it to a mere formality.

If this regulation had existed in the Roman senate, the letters of Cicero would not have contained so many bitter complaints against those senators, who left him to strive alone against corruption and intrigue, that they might enjoy their pleasure in voluptuous repose, or rather that they might avoid compromising themselves, and might prevaricate without danger.

§ 6.

British practice in relation to attendance.

In order to perceive how far this abuse of absenting themselves may be carried, it is only necessary to consider what happens in England.

In the House of Commons, out of 658 members, the presence of 40 is required to constitute a house, and often this number is not found. Its annals offer few examples of a sitting in which one-fifth of the whole number was not wanting. An opinion may hence be formed of the ordinary attendance. The two parties in this assembly are composed of persons to whom their parliamentary functions are only a secondary object. Setting aside the official personages, and the heads of the opposition who seek to succeed them, there remain lawyers, merchants, and men of the world, who, unless they have a particular interest in the question, only attend the house as a show, for the purpose of varying their amusements. At the invitation of the slightest pleasure they leave the house. It is these persons who in general compose the class whose votes are the object of dispute to the two parties, and to whom they address their pleadings.

Is this the fault of individuals? No; since in this respect as well as in every other, men are what the laws make them to be.

The laws which exist for the prevention of this abuse are well calculated to be inefficacious. In ancient times there was a statute of fines: first, five pounds; afterwards ten, and afterwards forty, &c. This mode is gone by—there remains only imprisonment in the custody of the sergeant-at-arms (this implies a sufficiently heavy ransom under the name of fees.) But even this punishment scarcely exists except as a threat. It cannot take place but upon a call of the house, as if a constant duty ought only to be performed at certain periods; and in the case of a call of the house, any excuse, solid or frivolous, vague or particular, is sufficient to prevent the infliction of this punishment. It is not possible to expect that the tribunal will be severe, when all the judges are interested in the contravention of the laws. Neither can it be expected that a political body will make efficacious laws for the prevention of abuses, in the continuance of which each member finds his account, unless compelled to do so by the force of public opinion.

It must be acknowledged, that this habitual negligence, which has destroyed every other assembly, has its palliatives, which diminish its evil effects, and which are peculiar to the parliamentary régime.

The division into two parties, has insensibly led them to allow themselves to be represented by a certain portion of each. Each portion is as the whole. In questions of importance—that is to say, of an importance relative to the party—the chiefs give the signal, and the members come up in mass.

There is little danger of surprise, because the principal motions are announced beforehand, and because all the ministerial measures pass through many stages, upon different days. If the decision taken by the small number be contrary to the wish of the majority, they assemble in force the day following, and abrogate the work of the previous day.

§ 7.

Of the practice of requiring a certain number to form a House.

With good regulations against absence, there would be no necessity for a recurrence to this instrument.

Its principal use is to contribute indirectly to the compelling an appearance. Is the fixed number deficient? Business is retarded; public opinion is thought of; an uproar is dreaded. Those who direct the assembly are obliged to take pains to obtain the attendance of the requisite number, and rigorous methods have an excuse if the negligence become extreme.

This fixed quota is the last expedient to which recourse should be had with this view; since the suspension of business oftentimes produced by it, is nothing more than a punishment inflicted upon the constituents, when the representatives only are in fault.

It appears at first extremely singular, that the power of the whole assembly should be thus transferred to so small a portion. It arises from the circumstance, that abstraction made of intentional surprise, nothing more is to be feared from a fraction of the assembly than from the total number. Allowances being made for the differences of individual talents,—as is the whole, so is each part.

If there be no disposition on the part of the whole to prevaricate, there is no reason to attribute this disposition to any portions of the whole. Besides, responsibility with regard to the public is always the same.

It might be apprehended, that where parties existed, those who found themselves one day in superior force, would abuse this superiority to the production of a decree contrary to the will of the majority. But this danger is not great; for the majority of to-morrow would reverse the decree of the past day, and the victory usurped by the weaker party would be changed into a disgraceful defeat.

The general advantage, in case of absence, is altogether on the side of the executive power. It is this which is always in activity—it is this which has all the particular means of influence for securing the assiduity of its partisans.

§ 8.

Visitors—mode of admission.

We have seen, in the chapter on Publicity, the reasons for admitting a certain portion of the public to the sittings of the assembly, and we have pointed out the cases of exception. The number admitted ought to be as great as possible, without injury to the facility of speaking and hearing—a principal consideration, which reduces the size of the place of assembly to dimensions much less than those of an ordinary theatre; since there ought not to be required of a deputy of the people, the strength of voice and the declamation of an actor.

The experience of France has shown other dangers, arising from the number of spectators equalling or exceeding that of the assembly. It is true, that these dangers might have been prevented by a severe police; but this police is more difficult to be maintained, in proportion as the number is large. Besides, there are some men, who, surrounded with the popularity of the moment, would be more engaged with the audience than with the assembly; and the discussion would take a turn more favourable to the excitements of oratory, than to logical proofs.

It would be proper, in the distribution of these places, to allow a particular seat for the short-hand writers; another to students of the laws, who would find there a school and models; another for magistrates, whose presence would be doubly useful. It would be proper also to keep certain places in reserve, at the disposal of the president, for ambassadors and strangers, who would carry from this exhibition advantageous impressions respecting the nation, which would fructify in noble minds. Cyneas left Rome more impressed with respect by his view of the senate, than by all the magnificence of the court of Persia.

With regard to places in the public seats, they should be paid for. This arrangement is most favourable to equality, in a case where equality is justice. If you allow them to be taken by the first comers; when there is a large concourse, many persons will be disappointed. The strongest and the rudest will have all the advantage in the struggle.* The gallery would be filled with spectators, who would be the least profited by the debates, and who have the most to lose by the cessation of their labours. Their number, and their want of education, would often lead them to brave the anger of the assembly, and to disturb its deliberations by their approbations or their murmurs.

If the granting of tickets of admission were in the hands of the government, there would not be persons wanting who would accuse it of partiality and dangerous intention. There! they would say, the ministers have surrounded us with their creatures, in order to restrain our deliberations, &c.

This subject of discontent would be removed, by giving the tickets of admission to the members themselves; and I see only one objection to this: it would restrict the prerogative of publicity, instead of extending it, by making a common right degenerate into a personal favour, and thus opposing the principle of equality without any advantage.†

A price of admission unites all the conditions. It is an imperfect measure, it is true, but it is the only possible one, of the value attached to this enjoyment. It is also a proof of a condition in life which guarantees a respectable class of spectators.

This plan, I acknowledge, is not a noble one; but the employment of the produce may ennoble it; whilst, as respects those witicisms which may be borrowed from the language of the theatre, they must be expected, and disregarded.

Ought females to be admitted? No, I have hesitated, I have weighed the reasons for and against. I would repudiate a separation, which appears an act of injustice and of contempt. But to fear is not to despise them. Removing them from an assembly where tranquil and cool reason ought alone to reign, is avowing their influence, and it ought not to wound their pride.

The seductions of eloquence and ridicule are most dangerous instruments in a political assembly. Admit females—you add new force to these seductions; and before this dramatic and impassioned tribunal, a discussion which only possessed the merits of depth and justice, would yield to its learned author only the reputation of a wearisome lecturer. All the passions touch and enkindle each other reciprocally. The right of speaking would often be employed only as a means of pleasing; but the direct method of pleasing female sensibility consists in showing a mind susceptible of emotion and enthusiasm. Everything would take an exalted tone, brilliant or tragical—excitement and tropes would be scattered everywhere; it would be necessary to speak of liberty in lyric strains, and to be poetic with regard to those great events which require the greatest calmness. No value would be put but upon those things which are bold and strong; that is, but upon imprudent resolutions and extreme measures.

Among the English, where females have so little influence in political affairs—where they seek so little to meddle with them—where the two sexes are accustomed to separate for a time, even after familiar repasts,—females are not permitted to be present at the parliamentary debates. They have been excluded from the House of Commons, after the experiment has been tried, and for weighty reasons. It has been found that their presence gave a particular turn to the deliberations—that self-love played too conspicuous a part—that personalities were more lively—and that too much was sacrificed to vanity and wit.

[* ]The Roman senate could not begin any business before the rising of the sun, nor conclude any after its setting. This was a precaution against surprises; but the English method is much preferable. Demosthenes caused a decree to be passed by surprise, after the party opposed to his had retired, believing the sitting finished. Such an event could not have happened in the British senate.

[* ]See Rationale of Reward, Book I. Ch. IV. p. 198.

[* ]It was for a long time a trade among the common people, to seize at an early hour upon places in the gallery of the National Assembly, for the purpose of selling them.

[† ]All this is reconciled in England by an unauthorized but established custom. A small sum given to the doorkeeper of the gallery, introduces you into the gallery, as well as the order of a member.a

[† ]All this is reconciled in England by an unauthorized but established custom. A small sum given to the doorkeeper of the gallery, introduces you into the gallery, as well as the order of a member.a

[a]This practice is now prohibited, by an order dated July 2, 1836, and no person is now admitted without a member’s order.—Ed.