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 XI.

OF DEBATES.

§ 1.

Of the Opening of a Debate.

Ought a motion to require to be seconded? A motion is not entertained by the House of Commons, until it is supported by some one beside its author; that is to say, until it is seconded.

This regulation is considered proper, in order to prevent the introduction of motions which would consume time without producing any fruit. Before occupying the time of the assembly, the proposer should consult a friend. If he cannot find a single approver, where is the evil of abandoning his motion?—what chance has he of persuading the majority, if he have not succeeded with the man of his choice?

But this method has but little efficacy: it has none against party motions—none against a man who in the assembly has a civil or an easy friend—none against two fools or two madmen, who are determined to support one another.

Besides, it is only applicable to original motions, and not to incidental motions; that is to those which arise in the course of the debate—to those amendments respecting which there is no opportunity of concert with any person.

It may be objected against this custom, that it tends to discourage those who have most need of particular encouragement—of isolated persons, jealous of their independence, not wishing to connect themselves with any party. Should a man of this temper, after two or three trials, find no one to second him, this would be sufficient to dishearten him. But he ought not to conclude that a motion is frivolous or absurd, because at the first glance it has been rejected in this manner. How many other reasons, beside that of the demerit of the motion, may have operated to produce this refusal to second it! One may not have chosen to put himself forward; another have not liked to act the part of subaltern; a third have foreseen that it would not be successful; a fourth, that it would have made others his enemies. Many may have refused on grounds altogether foreign to the object of the motion.

When a rule operates only as a restraint, if it be not useful it is mischievous.

The House of Lords has never recognised this rule, and no one has found out that any inconvenience has resulted from the want of it.

Before the author of a motion is permitted to speak upon it, the motion ought to be read.

The motion is the only subject to which his speech ought to apply. If its subject be unknown, the speech will lose a great part of its effect. It is impossible to judge of the force or weakness of the arguments, unless the object to which they refer is clearly present to the mind.

There is not a more efficacious rule than this for preventing useless discourses. If a member who had no motion to make were to begin to speak, he would find himself obliged at the first moment to give a justifying reason for so doing: if he had none, he would be reduced to silence.

In the House of Commons, the rule is, not to speak, but upon an admitted motion, or for the purpose of introducing one; but as it is not requisite to begin by presenting a motion, it sometimes happens that long speeches are made, which are not followed by a motion.

This is an example of those laws which would be so good, so advantageous, provided only that they were observed.

In the English practice, the custom is to state beforehand to the House, more or less of the object of a motion, according to the supposed degree of its importance. But this statement is confined to a general indication: the whole motion is neither announced, nor reduced to writing. Is not this a defect? Is it not stopping half way? Certainly the same reasons which lead you to require that a motion should be announced beforehand, ought to make you desire that it should be presented complete. Is it not ridiculous to say to an assembly of legislators—“Divine, conjecture, imagine what the motion will be of which I have told you the title?”—and to hold their curiosity in suspense, as if it were necessary to excite a dramatic interest, or to catch them by surprise?

The terms of the motion not being previously known, it is not possible to prepare amendments: hence, everything concerning them is a scene of precipitation. As they are proposed without plan, they are combated under the same disadvantage: they too frequently present vague and incoherent ideas, and are crude and indigested productions: but the greatest evil which arises, is that which it is not possible to see or to appreciate—the negative evil, the evil of privation; that is to say, the non-existence of the useful amendments which would have been offered, if leisure for reflection had been afforded by a previous knowledge of the whole motion.

We have made one step. The motion being read, its author ought to be allowed the right of pre-audience. It cannot be presumed that any other person can present the reasons for it, with more advantage than himself.

It is evident that no person ought to be heard against a motion, before some one has spoken for it. For if there be no argument to be produced in its favour, the combating the motion is loss of time. The arguments for, ought to appear first, that those who oppose them may have a fixed point of attack, and not wander into vague conjectures.

In an assembly in which the members sit whilst they speak, it would be proper to agree upon a word—for instance, dixi—which should mark the close of a speech. This final word would prevent that species of preparation, that indecent impatience, which is manifested in an assembly where those who wish to speak, watch all the accidental pauses of the speaker, and do not wait till he has finished before they begin.

If the member stand up whilst he speaks, the end of his discourse will be marked by his sitting down; and this gesture will more certainly reach the eye, than a word reaches the ear. The above rule would therefore be more necessary in an assembly in which the members sit whilst speaking, than in one in which they stand; but it would be useful everywhere, as a means of preserving the speaker from the fear of interruptions, and of conducting the debate with more propriety.

In a large assembly, the person speaking ought to stand. In this attitude, his lungs have more force, and his voice is more free—he exercises a greater ascendency over the auditory—he more readily perceives the impression he produces. But this ought not to be made an absolute rule, because it is not possible to fix the limits between a large and small assembly: besides, there are infirm persons who have sufficient strength for speaking, who are not able long to remain standing. A wounded officer ought not to be deprived of the right of speaking for his country. The last brilliant efforts of his eloquence were uttered by Lord Chatham, when he was feeble and languishing, and almost obliged to lie upon his seat.

§ 2.

Of free and strict Debate.

There ought to be two kinds of debate: in one, replies should be allowed; in the other, not. The first of these I should call free, every member being allowed to speak as often as he pleases; the second I should call strict, every member, with a single exception, which will be shortly noticed, being allowed to speak only once.

The strict method may perhaps be necessary in large assemblies, where there are many who wish to speak. It becomes necessary, upon the principle of equality, to secure to each member the right of being heard: there would be a kind of injustice in allowing any one to speak twice, whilst there were others who had not once been heard. If, then, there be a superfluity of speakers—that is to say, more than can be conveniently heard, consistently with the speedy progress of business—the exclusion of replies becomes a necessary law.

But still the free method possesses great advantages. In an argument between two persons, the discussion is better followed—the reasoning is more connected, than when many persons are engaged. Each reply tends to increase the information received, and to fortify the impression made. The debate becomes animated and more interesting: each one lends his attention to the argument—endeavours to understand it, and to foresee the reply it will call forth: no movement is either lost or retrograde—every step taken leads on to the conclusion. This interest is either weakened or disappointed whenever a new speaker interferes to disturb the thread of the debate, and to throw in altogether different ideas. Hence, the first feeling of men, their natural instinct, is altogether in favour of this manner of debating between two parties who alternately speak pro and con.

In the British parliament, both these methods are employed: the one when the assembly is said to meet as the house—the other when it meets in committee. When the house is assembled, the rule of speaking only once is strictly observed. In committee, it is the custom to allow of replies; and the discussion is frequently confined to a small number of individuals who have paid particular attention to the question. At all times this is rather an indulgence than a rule; and thus it ought to be, for there are some obstinate speakers who will never have done; and replies have this inconvenience, that they often lead to personalities, which might make the debate degenerate into bitter and fruitless contentions.

In allowing the liberty of replies, you expose the debates to a duration incompatible with the transaction of business. This is the strongest objection against them. But first, the cases in which prompt decisions are necessary do not often arise in a legislative assembly; and in such cases it is always master of its own rules, and always at liberty to act according to circumstances.

Secondly, Can any time be considered as lost, which has been occupied in bona fide discussion, how long soever that discussion may have been? Is rapidity the principal object? Ought we to avoid a few moments of weariness, at the risk of many hours of repentance? Excess of examination need not be feared: bad laws are rather the results of inattention and precipitation. The general rule ought to be, to reject nothing which may enlighten the assembly: but how can it be decided beforehand, that an individual who wishes to speak has nothing useful to say?

In conclusion, it is doubtful whether the admission of replies would prolong discussions. When a question is quite clear—when the two parties find that their opposition is irremediable, the debate has reached its natural conclusion, and every one will be desirous of seeing it finished. Now, the liberty of reply has a direct tendency to lead the discussion to this point. Two antagonists, engaged upon a question for which they have made preparation, will reply to each other with more strictness—they will go at once to the point without losing time in set phrases, exordiums, and apologies, as is done by each new orator, that he may give to his arguments the polish and ornaments of speech.

After all, the free method does not necessarily deprive any individual of the opportunity of speaking: it only retards the moment at which he obtains it. It is a simple transposition of time, which takes nothing from equality.

After this exposition of the reasons for and against these methods, every assembly must decide, according to circumstances, whether it will be proper to admit the one or the other of these forms of debate.

But even when replies are not permitted, an exception should always be made in favour of the author of the motion. He who opens the debate, should be allowed to speak last in reply. He may naturally be presumed to be best acquainted with the strong and weak points of his cause, and if he were not allowed the right of reply, objections to which he only could reply, might impose upon the assembly. In the British parliament, this last reply is frequently that which attracts the most attention. In this the speaker concentrates all his strength, and brings it to bear upon the essential points which ought to determine the judgment. “Videndum præoipue utrique parti ubi sit rei summa. Nam fere accidit, ut in causis multa dicantur, de paucis judicetur.”*

§ 3.

Of three Debates upon every proposed law.†

The general rule in the English parliament is, that every bill shall be debated three times upon different days, and these days oftentimes distant from each other. These are called the three readings of the bill. The bill may be thrown out on the first, the second, or the third reading; but it is not passed till it has been read three times.

This is not all. Between the second and third reading, the bill is discussed in a committee of the whole House.

This general committee (which is spoken of elsewhere) admits of forms of discussion more free than those allowed in the regular debates. A chairman is chosen for the occasion;—the details of the measure are discussed;—the same persons are permitted to speak several times upon the same subject; and the discussion is thus generally carried on by the individuals who possess the greatest knowledge of the particular question.

With regard to the three readings. The first is almost confined to the introduction of the bill, and general observations upon it;—the second is a debate upon its principles;—the third regards it as a whole, the terms of which have been considered and settled.

The advantages of these reiterated debates are—1. Maturity in the deliberations, arising from the opportunities given to a great number of persons, of speaking upon different days, after they have profited by the information which discussion has elicited; 2. Opportunity afforded to the public, to make itself heard—and to the members, to consult enlightened persons out of doors; 3. Prevention of the effects of eloquence, by which an orator might obtain votes upon a sudden impulse; 4. Protection to the minority of the assembly, by securing to it different periods at which to state its opinions; 5. Opportunity for members absent during the first debate, to attend when they perceive that their presence may influence the fate of the bill.

Every one knows by experience, that the strongest reasons alleged by two parties cannot be estimated at their true value the first time of hearing: they make either too much or too little impression;—too much, if they are developed with all the seduction of authority and eloquence—too little, if they are opposed by violent passions, interests, or prejudices. After an interval of a few days, the mind becomes calm—public opinion has time to act—the effect of mere eloquence ceases to operate—reason resumes its sway. Very different views are often brought to the second debate, from those which were successful on the first,—and the two parties approach each other with arguments matured by reflection and communication with the public.

Parties appear to have a necessary existence. If a single debate decide the adoption of a law, each party has an extreme interest in employing all its means to secure the victory of the day—and great heat and animosity are produced by the debate. But when it is known that a first victory is not sufficient—that the struggle must be renewed a second and a third time with the same antagonists,—strength is reserved—it is tempered, that it may not injure the cause in which it is employed; no one dares to take an unlawful advantage, because this would be to supply arms to his adversaries;—and the party in the minority, which gradually sees that its ultimate defeat approaches, gives way to it with the more moderation, inasmuch as it has been allowed every opportunity of preventing it.

In the British parliament, independently of the three readings which are necessary, there are many other occasions in which it is possible to renew the debate during the progress of a bill—the technical term which comprises all the stages through which it must pass before its completion. It must, as I have already said, be committed—and it may be recommitted. It must be engrossed, that is, written on parchment, to become the authentic text. It ought at last to be transmitted to the House of Lords, and it may be sent back again to the Commons. Each of these stages are passed upon motion by a member, and each motion may become the occasion of a new debate. The opposition very rarely makes use of these different means for retarding the progress of a bill; but they are held in reserve for extraordinary occasions, when delay may produce important results.

It may be objected, that this plan occasions great delays, and that circumstances may imperiously require that a law should be passed with rapidity. To this it may be replied, that in cases of necessity the Houses of Parliament can suspend their usual orders, and that a bill may be made to pass through all its stages in both houses in one day. An example of this kind occurred, if I am not mistaken, during the mutiny at the Nore in 1797; but such extreme measures arise from urgent necessity, which overcomes all opposition.

Those who consider the slowness of these forms as objectionable, do not perceive that their objection is directed against reflection—against that information which is often the fruit of time and study. There may be repetitions; but a reasonable conviction is not attained at once. The best argument requires to be presented at different times, and under many aspects. It is by these means that it becomes adapted to different minds, and is deposited in the memory. Those men who are persuaded by a word, are lost as easily as they are gained. Allow of obstinacy in debate, and there will result from it perseverance in conduct. In France, the terrible decrees of urgency, the decrees for closing the discussion, may well be remembered with dread: they were formed for the subjugation of the minority—for the purpose of stifling arguments which were dreaded. The more susceptible a people are of excitement and of being led astray, so much the more ought they to place themselves under the protection of forms which impose the necessity of reflection, and prevent surprises.

A more direct answer may be given to this objection on the ground of delay:—Three debates necessarily require intervals, but they do not tend to render the discussion longer upon the whole—they have rather a contrary effect. Indeed, these three debates have different objects, and divide the deliberations in the most suitable manner. In the first, the question is, Shall the subject-matter be considered at all? If its consideration be refused, there is a great saving of time, because no one has been engaged in the consideration of the details. At the second reading, the question is, Shall the principle of the bill introduced be adopted? If its principle be admitted, it is then taken into consideration in committee, and each clause is considered by itself, and amendments, if necessary, proposed in it: when the whole has been thus considered, the bill is reported to the house.

At the time appointed, the project of the law, as thus prepared, undergoes a third debate: the whole of its parts and bearings being thoroughly understood, all are prepared to consider it in its principles and details; whilst those who wish again to propose their amendments can do so, if they hope to obtain the concurrence of the majority.

§ 4.

Of the exclusion of Written Discourses.

The rule for the exclusion of written discourses is strictly observed in the British parliament. It ought to be so in all deliberative assemblies.*

“The principal inconvenience of written discourses consists in their want of connexion—they have no relation to one another.

“It is easily perceived that a political assembly is not a society of academicians; that the principal advantage of a national senate, and of public discussion, arises from that activity of mind, from that energy of feeling, from that abundance of resources, which results from a large assembly of enlightened men who animate and excite each other, who attack without sparing each other, and who, feeling themselves pressed by all the forces of their antagonists, display in their defence powers which were before unknown to themselves.

“Attention is like the mirror, which concentrates the rays of the sun into one focus, and produces increase both of heat and light; but attention cannot be sustained except by connected discourse, and the kind of dramatic interest which results from it. When attention is excited, nothing passes without examination: every truth tells—every error provokes refutation; a fortunate word, a happy expression, is more effective than a long speech;—and as these weapons cannot be wielded in debate except by the cleverest men, the assembly is spared from ennui, and saves its time. There is nothing useful in the plan of reading, except it be to procure for mediocrity the consolations of self-love, at the expense of the public good.

“Will it be said, that these prepared discourses will commonly have greater maturity, greater depth?—that the assembly by this means is less exposed to hear dangerous and ill-considered opinions? The effect is precisely opposite. It requires longer preparation and deeper meditation to be able to speak extempore than to write at leisure. To have completely mastered his subject—to have studied it under all its aspects—to have foreseen all objections—to be ready to answer every one: such are the conditions necessary for a public speaker. But what ordinary man is not able to write upon a given subject any number of pages? One person employs writing for the purpose of facilitating meditation, to relieve his memory, to prevent the fatigue of retaining a series of ideas; another writes, that he may dismiss from his mind what he has committed to paper. It may therefore easily happen, that a man does not understand the subject upon which he has written; but he must always understand his subject, if he will speak well upon it.

“If all those who have exhibited the talent of speaking in the National Assembly, had been asked why they were reduced to the reading of memoirs upon difficult and complicated subjects, they would have accused the shortness of the time, the premature questions, the number and variety of the subjects: but they would thus have confirmed the opinion, that the plan of written discourses is bad in itself. It will never form powerful minds in a political assembly: it favours idleness of thought, and, like the habit of being carried, produces torpor and indolence.

“In England, as elsewhere, the distinguished talent for public speaking is concentered among a small number of individuals; but the plan of reading is not tolerated there, which multiplies speeches without multiplying ideas. Does it appear that there is any want of arguments in their discussion?—is there less vigour among their political combatants? As soon as the defender of a motion ceases to speak, does not the opposite party furnish an orator, who seeks, by his opposite arguments, to efface the impression which the first has made.”

Those who do not possess the talent of public speaking, may communicate facts and arguments to the habitual speakers. This is the best method of making them useful. These communications—these contributions of ideas, continually take place in the British parliament.†

§ 5.

Other rules relative to Debate.

The rules we are about to exhibit are not of the same importance as the preceding, but they all tend to prevent inconveniences, and to produce a better debate. The former were dictated by necessity, these by prudence.

1. Address the president, and not the assembly in general.

This custom, constantly followed in the House of Commons, is well adapted to a numerous assembly, it gives those who speak a fixed point of direction, and a common centre for all the speeches.

It is also natural that each should address himself to the individual who is officially to judge if he wander from the question, or if he fall into any irregularity prohibited by the rules of the assembly.

A speech addressed to the president of the assembly will be more grave and temperate, than if it were addressed to the whole assembly. An excited individual addressing himself to an impartial magistrate, to a respected president, will feel the necessity of measuring his expressions, and repressing the movements of his indignation and wrath.

If the members speak directly to each other, the discussion will more easily degenerate into personalities.

There is no custom more useful in a political assembly, than that of treating the president with deference and respect; and there is nothing more likely to form this habit, than the considering him as the centre of the deliberations—as the assembly personified.

2. Avoid designating the members of the assembly by their proper names.

This rule, strictly followed in the House of Commons, renders it necessary to recur to circumlocutions in designating a member: “The Honourable Member on my right,” or “on my left”—“the Gentleman in the blue ribbon”—“the Noble Lord”—“my Learned Friend,” &c. Most of these expressions are polite, without being insipid. The proper names would often be accompanied with a catalogue of complimentary epithets, of which we may see many examples in the speeches of Cicero pronounced in the Roman Senate: but the real inconvenience is, that the mention of the name in debate is a stronger appeal to self-love than every other designation. It is less offensive to say, “the honourable member who spoke last has fallen into a gross mistake,” than to call him by his name: it is as though an abstraction were made of the individual, that he might be considered only in his political character. The observation of this rule is troublesome; and when the debaters are warm, it requires an effort to submit to it;—but this very circumstance proves that it is necessary.

3. Never impute bad motives.

This also is an absolute rule in British debate. You are at liberty to impute ignorance to a previous speaker—to tell him of his mistakes, his false representations of facts—but not to say one word inculpating his motives. Direct your energy against the mischievous effects of his opinions, or the measures he supports; show that they are fatal—that they tend to establish tyranny or anarchy; but never suppose that he foresaw or designed these consequences.

This rule is strictly founded on justice; for if it be difficult always to know our own true and secret motives, there is much more temerity in pretending to develope those of others;—and from our own experience we ought to know how easy it is to be deceived in this respect. The reserve which this rule imposes, is useful to all. It is favourable to the freedom of opinion. In political debate as in war, you ought not to employ any means which you would wish should not be employed against you.

But this maxim is especially conformable with prudence. Is your antagonist in error?—he may receive the truth you skilfully present to him: but if you impugn his motives, you offend him—you provoke him—you do not leave him the quiet necessary for listening to you with attention: he becomes opposed to you: the fire communicates from one to another—his friends make common cause with him, and oftentimes resentments, which are prolonged beyond the debates, carry into political opposition all the asperity of personal quarrels. It is not enough to exclude personalities: it also is proper to proscribe all violent and bitter expressions; it is proper to proscribe them as signs of awkwardness, still more than as traits of passion.

All who have watched political assemblies know that improper expressions are the sources of the most tumultuous incidents and of the most obstinate wanderings.*

4. Never mention the wishes of the sovereign or the executive power.

This wish in itself proves nothing in regard to the fitness or unfitness of the measure: it can have no good effect, and can only be productive of evil.

The admission of this instrument would be incompatible with the liberty of the assembly, not only upon the particular occasion but upon every other; for if it may be alleged at one time, it will be alleged at all times; and if the least value be granted to a consideration of this nature, the power of the assembly is reduced to nothing: there is substituted for its will, the will of a superior.

If this wish, when announced by one party, should be disputed or condemned by another party, it would follow that the head of the executive power would become the personal object of the debates—that its dignity would be compromised; and there would result a most fatal species of discord—that which leads on to civil war.

This rule has been long established and strictly followed in the parliamentary debates. The king’s speech at the opening of the session only contains general recommendations; and besides this, it is only considered as an act of the minister. It is therefore freely discussed without mention of the king, and the opposition attack it as they do any other ministerial measure.

5. Never quote any justificatory piece, or means of proof, which has not been presented to the assembly in consequence of a motion made to that effect.

Omnis demonstratio ex præcognitis et præconcessis.

This rule is founded upon two manifest reasons:—

1. To secure the authenticity of the matter which is taken as a foundation for the decision.

2. To give every member an opportunity of being acquainted with it, and informed of the use which it is desired to make of it.

In consequence of neglecting this rule, the highest bodies in the state in France have sometimes fallen into errors with which the lowest official persons cannot be reproached in England. The parliament of Paris, in its famous remonstrances of the 16th and 24th July 1787, enumerated Charles V. and Henry IV. among the kings who had assembled the States-General, which is not true either of the one or the other.*

How often has the National Assembly passed decrees upon mere hearsay—upon facts said to be of public notoriety!—without thinking that there is nothing more deceitful than popular rumour, and that the more widely a fact was known, so much the more easily might proof be collected of it.

The legislative assembly transmitted articles of accusation against M. de Lessart to the high national court, which contained only vague and declamatory imputations, without stating a single fact, and without having heard the accused.†

6. Do not permit any motion which has been rejected, to be presented afresh during the same session, or before an interval [of three months.]

This rule has for its object the repression of the obstinacy of parties, which would never leave off repeating questions which had been already decided against them, either from a hope of thereby keeping up the zeal of their partisans, or from a desire to embarrass the operations of the assembly.

This rule can only be strictly applied to motions which are identical. A party will never allow itself to be restricted by the prohibition to reproduce its motion. If it see any chance of success, it will not fail to present it again under a new form.

It is, however, always well to insert this article in the regulations. It will follow from it in ordinary cases, that a motion once rejected will not reappear in the same session.

A rule which should permit the definitive rejection of motions without return, would be the greatest possible attack upon liberty: it would be to seek to enchain one’s self or one’s successors.

§ 6.

Of the Election of Debaters.

I proceed to point out a mode of reducing the number of orators, in an assembly too numerous to allow the right of discussion to all.

It would, however, only be applicable to democratic constitutions; for with good regulations, six hundred persons at least might exercise the right of speaking without any occasion to limit it to a certain number.

The most simple method would be to elect in the first instance, twenty-four orators by name; 2dly, To choose one hundred other persons by lot, in order to give a chance to all parties; 3dly, To permit each of these to waive his right in favour of any other member of the assembly at pleasure. Those who did not possess the talent or inclination to speak, would then voluntarily surrender their places to such members of their own party as seemed best fitted to fill them. But it would be proper to reserve for all the members the right of making a motion—that is to say, a principal motion—and of explaining it.

[* ]Quint. V. 13.

[† ]In this chapter I have attempted to supply a subject omitted by Mr. Bentham, who makes frequent allusions to these reiterated debates, but who has not treated of them expressly.—Dumont.

[* ]Bentham does not appear to have discussed the above topic. The paragraphs which follow have been extracted from “La Courrier de Provence, No. 65.”—Dumont.

[† ]They occurred even in the National Assembly. I have often seen M. de Mirabeau, in going to the tribune, and even in the tribune itself, receive notes, which he has glanced at without interrupting his speech, and which he has sometimes interwoven with the greatest art into the train of his discourse. A wit once compared him to those mountebanks, who cut a ribbon in pieces, chew it for a moment, and then pull the ribbon in one length out of their mouth again.—Dumont.

[* ]Mr. Fox, the most distinguished orator of England, who attacked his adversaries with so close a logic, carried to the highest pitch the art of avoiding everything which might irritate them. In his most animated moments, when he was as it were borne onward by the torrent of his ideas, always master of himself, he was never wanting in the most scrupulous regard to politeness. It is true, that this happy quality was in him less a secret of the art of oratory, than the effects of the benevolence of his character—modest amidst its superiority, and generous in its strength. Still, however, no man ever expressed himself more courageously, or less ceremoniously. “Les mots allaient,” as says Montaigne, “ou allait la pensée.”

[* ]This fact is drawn from L’Histoire du Gouvernement François, p. 147.

[† ]Every nation has its weakness and its endemic imperfections; and the greater the empire they have obtained, the greater the importance of knowing and guarding against them. Of all the faults with which French writers can be accused, inexactitude is the most marked—the most incontestible. If the English nation has any decided advantage over its rival, it is in the quality opposed to this defect that its cause should be sought for.

An historical work without authorities would be received in England very nearly as a plea without proofs, or as a romance. But in France, a great number of historians have considered it unnecessary to give references to original authorities: the condition they impose upon their readers is to believe them on their word. But if the author had the original documents before him, why did he not cite them? Is it more difficult to make a reference than an extract? What reliance can be placed upon his judgment, if he have not felt that the confidence he demanded depends upon this exactitude? And if it arise either from negligence or trifling, that he has refused the labour necessary for furnishing his proofs, may it not with much stronger reasoning be presumed that he was incapable of taking the pains necessary for acquiring them?

There is a kind of maxim proverbial in France, that it is proper to regard the meaning without weighing the letters—without quarreling about the words;—as if the meaning did not depend upon the words—as if correct ideas were not produced by correct words. This pretext is the resource of feeble and careless heads, which would be thought strong; for there is no defect which has not attempted to employ itself as a mask.