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No. XII.: Jeremy Bentham to the Emperor of all the Russias. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 4 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 4.
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Jeremy Bentham to the Emperor of all the Russias.
London, June 1815.
I open this moment the letter in your own hand, with which your Imperial Majesty has been pleased to honour me.—Through another channel, I receive, in the words bague de prix, the interpretation of the word souvenir. My endeavours to make myself understood on that subject, have, I fear, not been altogether successful. The same packet which conveys to your Majesty this expression of my gratitude, will bear witness for me, that in my eyes,—after the proof afforded me, as above, of the place which I am fortunate enough to possess in your Majesty’s good opinion—money’s worth, as well as money, is, in this case, without value. The imperial seal will be found unbroken.
Your Majesty’s wish is—to turn my humble services, in some way or other, to account. In that view it is, that your Majesty has been pleased to point out a particular course. But so it happens, that if this and no other were the course pursued, it is not in the nature of the case, that that wish should in any degree take effect. The impossibility is the result of circumstances, which to your Majesty are not known, and which it is therefore necessary for me to bring to view: which done, I will take the liberty of submitting two courses, in either of which, the opinion your Imperial Majesty is pleased to entertain of me, might be productive of public benefit.
“Je prescrirai,” says the letter—“Je prescrirai à la commission d’avoir recours à vous, et de vous adresser ses questions.”—The course is a perfectly regular one, and nothing is more natural than that it should have been suggested, or even that it should have suggested itself, to your Majesty. Yet if this were all, your Majesty’s intentions, it will be seen, would be altogether frustrated.
In my former letter, a proposal I took the liberty of submitting was, that I should receive your Majesty’s orders, for the drawing up upon a plan of my own, and submitting to your Majesty, a projêt de loi, on the subject of some large portion of that complete body of law, which has so long been in contemplation: and in particular, of that which belongs to the penal branch: upon the closer view, which the present occasion has obliged me to take of the subject, the course which, as above, had at that time presented itself simply as an eligible one, now presents itself to me as the only eligible one.
The penal—I understood from good authority a little more than a twelvemonth ago—was the branch, on the subject of which, at that time, or a little before that time, the greatest advances had been made. From the commission alluded to, questions relative to this branch (suppose) are addressed to me. For giving answers to those questions, with any prospect of being of use, there is but one course which I could take; and this is—to draw up as above, the proposed projet de loi, and so transmit the tout ensemble. Yes, Sire: upon the tout ensemble, in a case like this, everything depends. The points to which the questions would point, would be such and such particular points. What, in such case, I should have to say in answer, I well know.—“It will not be possible for me (I should say) to determine within myself what is best to be done in relation to those points in particular, until it is understood by me what is proposed to be done in relation to such and such other points, with which those are necessarily connected.”
In an all-comprehensive body of law, such as that in question, each provision requires to be adjusted to, and for that purpose confronted with, every other. In no other way should I ever think—in no other way did I ever think, of drawing up the projet of a code. Thence it is that, if not in the first instance, at the long run, any papers sent by me in the shape of answers, would, if they amounted to anything, fall into that very shape in which I ventured to propose they should be presented in the first instance, and in which the course in question would not admit of their being presented, if at all, till at the end of an indefinitely greater length of time.
On a subject such as this, it is only in proportion as a man is himself master of it, that he is qualified for putting questions to others. On a subject such as this, in the situation occupied by the persons alluded to, if men are perfectly qualified for putting questions, they are pretty well qualified for doing the business without putting questions: at any rate, if, in their own opinion, they are qualified for putting any such questions, in that same opinion they can scarcely fail of being qualified for doing the business without putting any such questions.
But, the better qualified they are in their own opinion for doing the business, and thence for putting questions in relation to it, the less will they feel disposed: and assuredly, so long as by any means it could be avoided, no such questions would ever be put.
Suppose them, however, put—put by the persons alluded to—the questions are still their questions. In relation to those questions, before they are sent, the determination will have been already taken: taken by the very persons by whom the questions will have been penned.
The transmission of the question will be matter of form. Supposing answers sent, the reception given to the answers will be matter of form. If the acknowledgment of their being received can be avoided, avoided it will be.
If it cannot be avoided, the matter of the answers divides itself into two parts. In this or that part, does it happen to be conformable to the predetermination, taken as above? In that part it is of course needless: useless, therefore,—in any other character than that of a testimony in favour of the wisdom by which the predetermination was made:—as to the unconformable remainder, coming, as it does, from a foreigner, who, if he has some notion of the business taken in general, at any rate does not understand the state of the particular country in question, it is of course inapplicable.
Sire, this is not surmise: it is certainty—certainty, derived from reiterated experience.
The business being, under your Majesty’s government, as the like businesses are with us, in form put into the hands of a commission, or, as we say here, a board,—your Majesty’s letter to me could not, with strict propriety, have spoken of it in any other terms. But, so far as concerns original penmanship, this same business (it is no secret) is,—as in the first instance every such business ought to be, or rather cannot but be,—in the hands of one, and but one, person. Now this one person is generally known: the others being figurantes, and, except to the readers of your Majesty’s court calendar, not known. Of this one person, and no other, I must therefore speak, on pain of being unintelligible.
Of this person, though near two years in your Majesty’s dominions (it was in the years 1786 and 1787,) not having visited either capital, I have not any personal knowledge. But of his writings I know a great deal more, and of mine, he knows a great deal more, than it is agreeable to him to think of. Ever since he began his career, he has beheld in my name an object of terror: an emotion which, at several distinct times, in the view of several different persons, has betrayed itself: betrayed itself by symptoms, such as would figure in a comedy. Your Majesty has no time for gossiping anecdotes, or I could furnish written proofs.
Sire, I shall as soon have answers to send to the Emperor of Morocco as to a commission so headed. But, if you have a mind for a laugh, tell him you have received papers from me, and that they are satisfactory. But salts and smelling-bottle should be at hand.
Sire, I should ill warrant the good opinion entertained of me, if I hesitated to pronounce him radically incapable; for, supposing this to be a truth, I am, perhaps, the only person, from whom, with any chance of good effect, your Majesty could receive it. The persons, by whom on such a subject, any judgment at all could be pronounced, are extremely few: of these few, probably not one, how intimate soever his persuasion were, could dare to avow it to your Majesty: unless, perhaps, it were some rival, whose suggestions would be liable to be referred altogether to the motive indicated by that name.
Meantime, from the person in question, with his colleagues and supporters, your Imperial Majesty will have received the assurance, that no such assistance, either from myself or from any other foreigner, is necessary: and that not being necessary, it would be but an incumbrance: for that no foreigner has or can have any tolerable acquaintance with the business: while they are become complete masters of it. In relation to this matter, I will venture to submit to your Imperial Majesty the following observations:—
When, from any country, a complete body of law, such as appears to be proposed,—or any one of its largest divisions, such as a penal, a civil, or a constitutional code,—is in contemplation,—in respect of publicity, two modes of going about the business—the close and the open mode—require to be distinguished.
Carried on in the close mode, it is carried on as in ordinary cases, by a single person, or some small number of persons, appointed by the sovereign; and not made public at all, till it comes out armed with the force of law.
Carried on in the open mode, the work, antecedently to its coming out armed with the force of law, is made public, viz. in the way in which literary works in general are made public: and this, for the purpose—if not expressly declared, at least implied and generally understood—of its being taken for the subject of observations, such as any person (keeping his expressions of course within the bounds of respect and decency) may, in a manner alike public, feel disposed to communicate. The mode, which, in the present case, will, in course, be recommended by the commission, is the close mode. Why? Because in this mode, their inaptitude, be it ever so complete, will be screened: screened, till exposure comes too late for obviating and preventing mischief, with which it is pregnant: whereas, by the open mode, it would be brought to light in time.
In regard to the demand for previous publicity, altogether different is the present case from that of ordinary legislation; i. e. legislation taking for its subject matters of detail, as they happen to present themselves. In that case, the business is, of course, and must be carried, and cannot but be, carried on in the close mode. This closeness is what follows from the constitution of the government: as that does from the extensiveness of the territory, and the state of society among the great bulk of its inhabitants. By want of time, if by nothing else, previous publicity is in that case rendered generally impracticable. The demand for legislation being, in this case, the result of sudden exigency,—such exigency requires to be provided for as it occurs, and without loss of time.
Quite different in this respect—not to say opposite—is the present case: the case (it may be called) of codification: where, of the entire field of law—a field little less extensive than the whole field of human action—some very large portion (a third, a fourth, a fifth, or some such matter)—and which, in some way or other, is—and for ages has (in some shape or other, at successive times, though, hitherto, as to a large proportion of it, in a bad enough shape) lain covered with law,—is to receive an entire new covering all at once. The field having already its old covering, hence comes the facility of waiting, and that without any more than the accustomed inconvenience, for whatsoever lights may be capable of being collected, for the elucidation of the ground: and thence, during whatsoever length of time may, for so important a purpose, be found necessary: waiting, viz. before final enactment; the formation of the new one, if as yet unformed, or the examination of it, if formed, being all the while going on. But, of this same new covering, whatsoever may be the sort of matter which it substitutes to the old, one sure effect will be (unless in so far as this or that particular exception comes to have been made and declared) to reduce the old matter, in its whole extent, to a non-entity. And, along with the facility, hence comes the demand for a delay—a precaution at once so necessary and so safe.
In a case like this, answers from me received or not received, when, by your Majesty’s authority, the code as penned by the commission first comes out, will it come out already armed with the force of law? or only in the shape of a projet de loi, continued thereupon in that state, for a length of time more or less considerable,—to the intent that, by that means, the sense of the public at large, or of a determinate portion of the public, may in the mean time be, in some shape or other, taken upon it?
On the first of these plans, in case of an illpenned code, the mischief would commence immediately, and without so much as the appearance of a chance of its being prevented.
In the other case, an appearance there will be, of a chance of prevention: but very little more than an appearance will there be.—From the calling into question, in any one particular, the more or less explicitly declared excellence of it, what inducement in any shape can any other person find?—what prospect of advantage, either to himself, or to your Majesty’s service? At your Majesty’s ear, stands the official adviser,—seen to have been in possession of it for these dozen years or some such matter,—by whom you will be assured, that the observations are nothing worth, and the author an impertinent, from whom no good service, in this or any other shape, is ever to be expected.
Such is the sort of retribution which every one would, and the only one which, in this close mode, any one could, entertain a reasonable expectation of receiving,—for any labour, which, on so important and vast a field, he might otherwise feel disposed to bestow.
Sire, the mischiefs which,—from so prodigiously extensive, and at the same time new, a body of law, drawn up by such hands,—the population of your Majesty’s vast empire will stand exposed to, are such as I tremble but to think of.
In detail, a great deal of bad legislation, the work of a variety of hands, all of them very indifferently qualified, may be endured, and the mischief flowing from it may continue to flow without much notice. Why? Because, being composed of additions gradually made to an original stock under the influence of which everybody was born,—while, of the mischief which is the result of it, a part more or less considerable, in consequence of the observation taken of it, comes sooner or later to be put a stop to,—the rest is imputed to the imperfections inseparable from human nature.
But, of a body of new law, such as that proposed, the effect is, in some very large proportion, as above, to annihilate the whole body of that fabric upon which everything which is valuable or dear to man depends: and, when the gap thus made in the old matter comes to be filled up with the new,—then it is, that, of any one of the inadvertences, or ignorances, or wrong judgments, which in this close mode, may with so full an assurance be expected,—ruin, to thousands and tens of thousands, will be but the too probable consequence.
At the same time it will be known—for it is known already—that the labours of an Englishman—of an Englishman, whose labours in this line stand approved, not only by other governments,—by the Bavarian—by the French, at several different periods—but by your Majesty’s,—and even by your Majesty in person—that these labours have, to this very purpose, been for these dozen years at your Majesty’s command: and, all that while, those who, on this part of the field, have been in possession of your Majesty’s ear, have been successful in their endeavours to keep the fruit of those labours from making its appearance.
In the hands of several different persons,—all unconnected with each other—all occupying, at different times, in their respective departments, the highest posts in your Majesty’s service,—I could give your Majesty reason to be assured that my being occupied in a task of this nature would be a result in no small degree advantageous to your Majesty’s empire: in this or that instance, matter to this effect, addressed to myself: in other instances, to other people. If such had not been their real persuasion, what could have been their inducement for declaring as much, to or concerning an unconnected, and in most instances personally unknown, foreigner? Then why not say as much to your Majesty? Sire, they were no longer in office: or, if they were, it had not been, or was not at that time exactly within their province; or if it was, confidence was, as the event proved, on the decline.
The disappointments which, in this same ground, your Majesty has already experienced, are no secret. Now by what cause is it that these disappointments have been produced? By this one circumstance;—by the adoption of the close, to the exclusion of the open mode: by the omitting to take the benefit of such lights, as the world at large might be capable of affording: by exclusive confidence, placed in a small number of persons, or rather in a single person, of whose aptitude for the task no proof has ever seen the face of day: a task in which the whole field of government is included, and for which the whole stock of genius, knowledge, and talent, which the civilized world affords, would not be too great.
Sir, there exists not, even in this country, that man, or that limited number of men, who, in the eyes of the public, or even in their own, would be competent to such a task, without receiving all such lights, as, after publication made for that declared purpose, the public in its utmost amplitude should be disposed to furnish. In the commission in question, is it possible your Majesty should continue to see any such matchless combination of genius, intelligence, and wisdom—to say nothing of probity—as should render superfluous in Russia, those precautions, which in England are so indispensable?
As to competition,—in the close mode, of course there could not be any such thing:—competition I mean as between two or more entire draughts, i. e. proposed codes—drawn by different hands: unless it were between member and member of that same commission or board; which, in the present instance, I take for granted, is not to be expected. By possibility, the open mode might be preserved, without admitting competition. In the state of a projet, antecedently to its being armed with the force of law, one work, and no more, being admitted, such one work might be made public, with liberty to persons at large, or to particular descriptions of persons, to make observations on it:—to point out any such imperfections of detail that might seem imputable to it, but not to propose another projet, in the whole or in part, in lieu of it: in a word, to point out here and there a symptom of weakness, but not to present anything like a general and radical remedy.
But, in this case, in so far as the mode of proceeding can with any propriety be said to be open, its openness will, comparatively speaking, be of little use. Let the badness of the only work exhibited be rendered ever so manifest, no better will be produced. Let the disease be shewn to be ever so desperate, no remedy will be at hand to be administered. The utmost good, which in this way can be done, will be—the putting an end to the design altogether, by showing the unfitness of the hands who have been employed in it. But, even out of this good—negative as it is, and no better—a great evil would be but too apt to arise. Instead of the incapacity of the workman, the cause of the bad performance may be looked for—and being willingly looked for, may be found—in the nature of the sort of work: in its supposed incapacity of being well performed: and, supposing the unfitness of the individual work sufficiently recognized, this of course is the hypothesis which, by the strongest ties of interest, the unskilful workman will stand engaged to advocate.
So much for the close mode. Now as to the open mode, competition as above, being supposed admitted. What are its advantages?
In the first place, all that incalculable mass of mischief just alluded to, is avoided.
In the next place, the greatest probability is obtained, of the best possible code: a probability, the greater the number of the competitors on the one hand, and of the critics, in the character of advocates and judges, on the other.
In the third place, the comfort and satisfaction, which so unequivocal a proof of the sincerest regard for their feelings, their wishes, their good opinion, their lasting welfare, could not fail to afford to the thinking part of the people. A more unequivocal one it surely is not in the power of a sovereign to give. Without this token,—the best possible code, suppose it even a perfect one, will want much of producing the good effect, which, by means of a work of that sort is capable of being produced: with so expressive a token, any inconvenience, of which the change may, in spite of every care, happen to be productive, will receive no slight compensation, as well as reduction, from the proof afforded of the goodness of the intention that gave birth to it.
In the last place comes, as the effect of all these several causes, the ease to your Imperial Majesty’s conscience. Think, Sir, of the responsibility—the tremendous responsibility—which you would incur, by setting the destiny of forty millions of souls, to hang, as it were, by a thread, upon a work of such vast extent, drawn up—I cannot but repeat it—by such ill-qualified hands. Yes, Sir, this would be responsibility indeed. Pursue the open mode—receive—not from mine only, but from every other hand, that can find such an offering to make, whatsoever it shall have to give—plan for the whole, plan for this or that part—miscellaneous observations,—no such burden will, in that case, press upon your Imperial Majesty’s conscience. The consciences, upon which whatever burthen there is will press, will be—in the first place, those of the volunteer workmen themselves: in the next place, those of the thinking, though not working, part of the public, whose suffrages, by another application of the same all-preserving principle—the principle of publicity, it will have been your Majesty’s endeavour to collect. At the door of this many-seated tribunal, should its judgments prove more or less erroneous, will all blame from the error lie. Your Imperial Majesty,—having towards the avoidance of error done all that it is in the power of man to do,—will stand clear from all self-reproach, as well as from all censure.
Your Imperial Majesty has seen, on the one hand, the close mode, with its mischiefs: on the other hand, the open mode, with its advantages. Let the course, which from the first I ventured to point out, be adopted,—your Imperial Majesty will see all those mischiefs avoided—all these beneficial results secured.
In my proposal, as above,—the open mode, with all the advantages naturally attached to it—the open mode, with the benefit of competition—was implicitly included.
My projet, I took for granted, would be presented to your Imperial Majesty ready printed. Produced thus to the world before it had ever met your Imperial Majesty’s eye,—the work might be ever so inapplicable, or even absurd, your Imperial Majesty would not be subjected to any imputation on that score. The only source of responsibility would be the choice thus made of the person, to whom the encouragement would thus have been given: but, from all imputation of improvidence on that score, your Imperial Majesty stands, it is hoped, sufficiently exempted, by the testimonies which in my first letter were submitted to your Imperial Majesty’s notice.
In this state, let me suppose it published (I mean my projet) at St. Petersburgh. Over and above any particular degree of aptitude which it may be found to possess,—the advantages which result from the circumstance of its coming from a foreign hand, will presently (I can not but flatter myself) appear manifest.
Of any such publicity given to the work, the object or end in view can be no other than the receiving, from the thinking part of the public, indication of any such imperfections, as it may be in the power of any person to point out in it,—with or without the indication of correspondent remedies, or supposed remedies: unless for a distinct object be to be taken the enabling and encouraging them, to give indications of the like nature, in relation to whatsoever body of law may have been the final result.
In this view, when the publication is announced,—notice given in some shape or other to the public at large,—notice, having for its object the obtaining, from all such as in their own conception are qualified to furnish it, communication of the sort just mentioned,—seems to follow as a matter of course.
Publication, it is true, might have place, without any such notice. Moreover, the notice being given, the purport of it might confine itself to simple permission; without any direct and positive invitation. But, without positive invitation,—very limited, and even precarious, would the effect of the notice be in the way of encouragement. So, on the other hand, the warmer the invitation, the stronger the encouragement: the stronger the encouragement, and therefore the greater the probability thus afforded, of the accomplishment of the object thus supposed to be in view.
In so far as, in any imperfection or supposed imperfection having place anywhere in the proposed body of law, it happens to any person to see a probable cause of mischief, to himself or any other person or persons, in whose welfare he feels an interest—in so far, to engage him to do what depends on him towards making known such mischief, to those in whose power it is, or to him seems to be, to afford relief, motives cannot be wanting: all that can be necessary is the removal of restraints. By the invitation above supposed, this necessary removal will, at least, be strongly promoted, if not universally accomplished: I say, if not universally accomplished; for, in so far as, in the event of his making any such communication, an individual, by whom it would otherwise have been made, sees reason for apprehending injury at the hands of any subordinates,—in so far the invitation, given by the sovereign, cannot but, in the instance of that individual, fail of such its intended purpose.
But motives, how adequate soever, suffice not without adequate means: and, for the purpose of giving publicity in this way to all such useful information as, if means were not wanting, might be afforded,—the stock of necessary means at the command of individuals, would, I cannot but apprehend, be very far from sufficient, unless facilities were for this purpose afforded by the hand of government.
By the following very simple arrangement, if I do not much deceive myself, not only may the facilities necessary to this purpose be afforded,—but, in the only way in which it can be either necessary or conducive to the service, encouragement may be afforded, and that without any unproductive or superfluous expense; and moreover—and still without any additional expense—a school of legislation formed, out of which, for filling offices belonging to this department, individuals may be chosen, distinguished by the most conclusive proofs of that aptitude, of the deficiency of which the recorded confessions lie before me: proofs, such as the nature of things will not suffer to be afforded by any other means.
In the whole or in part, let the author of every such communication be eased of the expense of printing: in the whole or in part, let him moreover be eased of the expense of printing-paper: viz. to the extent of a limited number of copies: but with permission to add, at his own expense, paper for as many additional copies as he thinks fit: and so in regard to advertisements: money, received on account of the sale, to be paid, either all of it to the author, or all of it to the treasury, or in this or that proportion divided between the individual and the treasury, according to circumstances.
But an essential precaution, without which, mischievous deception instead of useful information will be the result, is—that this facility be afforded indiscriminately to every one that offers. If, under the notice of a selection to be made of the most deserving, the choice be left to any one man or body of men,—the consequence will be—that, to such communications alone as suit the personal purposes of these judges, whoever they are, will the facility be afforded: in every instance, in which, either in the matter, or in the author, there is anything that does not suit these personal purposes,—suppression, not publication, whatsoever be the merit of the work, will be the almost sure result.
To whom, then, shall the facility be afforded? To every offerer, without distinction, so long as any press remains unoccupied: he who first offers being all along first served.
But suppose every press thus occupied, who is it that shall then determine?—I answer, Fortune. Fortune has no sinister interest: men will, in such a case, be almost sure to have such interest, and to be more or less swayed by it.
Deception—the result of partial information—will not be the only mischief: instead of reward, he by whom a communication—useful in itself, but to the judge or judges in question unacceptable—is tendered, will in return for it receive punishment. As long as he can be kept, he will be kept in a state of expectation and anxiety, dancing attendance, and wasting—perhaps his money, and certainly his time: when at last his patience is exhausted, then it is that he will discover, or not discover, that from the very first he had no chance.
Another result, altogether natural, is—that, by persons on whom the decision depends,—with or without other persons on whom, though erroneously, it will be supposed to depend,—bribes will in some shape or other be received: and the candidates from whom they are extracted will be—as well those to whom it was predetermined to deny the facility, as those to whom it was predetermined to afford it.
The expense of such a facility—even if granted to the utmost extent of the demand—will it be considerable enough to be felt as a burthen by your Majesty’s treasury? Glorious indeed will be the burthen—auspicious the sign—in such a case.
Here then, Sir, is your school of legislation: and presently I shall have to show you, that,—among the scholars, thus performing their exercises in this school,—persons will be to be found, better qualified than any others could be for doing that for you, which, in my situation, the most consummate wisdom would not qualify a man for doing for you.
My proposed code will be but an outline. Why? Because, in my situation, the most consummate ability could not furnish—moderate wisdom would not suffer a man to profess to furnish—anything more.
Among the circumstances by which a demand for legislation is produced, some are of universal growth, others only of local growth: to such only as are of universal growth, could a foreign hand undertake to afford in terminis an adequate supply of legislative provision, with any sufficient ground for confidence. In this outline will accordingly be contained so much of the proposed code as can be proposed to stand in terminis. For the filling up of this outline, notwithstanding the utmost degree of ability with which it can possibly be penned, whatsoever matter of detail, adapted to circumstances of local growth, may be necessary, must be prepared by some native hand: at any rate by some person, to whom those circumstances have been made sufficiently known by residence.
For this matter of detail, the demand will be produced—in the first place, by the widely different condition of different provinces; in the next place, by the different condition of different classes of persons in the same province.
Meantime, even in regard to these details, what I could do, what I am accustomed to do, and what in my proposed code I should make a point of doing, is—to furnish suggestions, having for their object the affording guidance and assistance to the local penman, in the adjustment of the details: in such sort, that the general principles exhibited and pursued in the outline—the principles adapted to such circumstances as are of universal growth, and such circumstances of local growth as are generally notorious—may likewise in the filling up be pursued. Accordingly, in this way likewise,—the microscope being, in this field, not less familiar to me than the telescope,—I should hope to be of use.
For shortness, I have said filling up; aware at the same time, that, to put the work in a state fit for use, not only addition, but subtraction and substitution, may occasionally be necessary.
Now then, Sir, comes the grand use—the immediate practical use—of your Majesty’s legislative school, formed as above. For the filling up of the outline thus drawn, whether by my own or any other foreign hand,—matter of detail, as above, will be necessary. I might add, perhaps, even native hand: for, in your Majesty’s vast empire, such, in many instances, are the differences between province and province, that the native of one will be little other than a foreigner to another. By whom, then, shall this business be performed? I answer—by some scholar or scholars, by whom proof of qualification for the function has been exhibited,—exhibited by exercises, performed as above, in that school: by him or them, in preference, by whom,—according to the best-grounded judgment that can be formed,—the proofs of greatest aptitude have thus been furnished. Among them all has no one been found, by whose works proof sufficient of this species of aptitude has, in a sufficient degree, been thus furnished? If so, I am truly sorry for it: for, this being the case, then not in the whole of your Majesty’s vast empire, does there exist any person sufficiently qualified for the business. In the scale of aptitude,—that person, by whom proof of any degree of aptitude, how low soever, has been furnished, stands, at any rate, above all those by whom no such proof has been furnished.
Will it be said, by way of objection, that the same difficulties, as those just represented as attaching upon the choice of works for publication, will attach upon every choice to be made, among the authors for the filling of situations such as those in question, after the works are published? Not, surely, on any sufficient ground. For, of a selection made for publication, the consequence is—that, by every work not selected (except in the instances in which the author may have the resolution to publish at his own expense—instances which, under such discouragement, do not promise to be very numerous) the public sustains a loss: and, on that plan, among those who upon the open plan would have produced and given in their works, some there may be who, by despair of acceptance, may be deterred from applying their thoughts to the subject. A work thus stifled or nipt in embryo, is dead to every purpose: whereas a work, which, through the medium of the press, has once been brought to light, remains upon the carpet, capable at all times of being taken for the subject of an appeal by which every injustice, done to it in the first instance, may be repaired.
In this way, how unfortunate soever the choices made should eventually prove, still what will at the same be seen—seen by all eyes—by your Majesty—by your Majesty’s subjects,—by foreign sovereigns—by foreign subjects—is—that those choices have not been altogether groundless: on the contrary, that, for the securing the best choices possible, the best adapted and most promising means have been employed.
By every such contributor—the authenticity of the production being supposed to be out of doubt—I mean the fact of its having been composed by him whose name it bears—(for this is a point that must not be overlooked) proofs of attention, bestowed upon the subject, will at any rate have been furnished: and this is more than will have been furnished by any one else.
Behold now the advantages, from the circumstance that the hand, by which the outline has been drawn, is a foreign one:—
1. No restraint whatsoever on the liberty of criticism. The hand, by which the work is presented, is one from which no man has anything to fear, any more than to hope. From such a hand, whatever comes is, as the sportsmen say, fair game. Not disfavour, but favour rather, will be looked for from the hunting it. Imperfections, and not merits, will be the objects looked out for with most alacrity by every native eye.
2. Suppose it put to use:—in the ultimately sanctioned code, suppose as considerable a portion of this outline employed, as the nature of the case will suffer to be employed. How pure will in such case be the satisfaction of the people! Here cannot have been any undue partiality—anything like favouritism. The author all the while at a distance, without connexion, and,—with the exception of that mutually honourable influence which is exercised by understanding on understanding,—altogether without influence: to the sovereign, not so much as his person known: and all this, matter of universal notoriety. Under such circumstances, by what imaginable cause can any preference that has been given to the work have been produced, but the opinion at least—the unbiassed opinion—of its suitableness to the purpose?
3. In this case, too,—howsoever it may be in other countries foreign to Russia,—an Englishman being the workman, critics can never be altogether wanting in England. From your Majesty a simple invitation would, I make little doubt, suffice to produce works undertaken expressly for this purpose. But, at any rate, reviews exist, by none of which, consistently with their interests, could a work, executed under these circumstances, be passed by unexamined. And well may your Majesty be assured, that for discovering in it imperfection in every shape, imagined as well as real, adequate motives cannot be wanting here.
Compare, Sir, with the legislation or codification school thus sketched out, the unschooled codification-establishment, at present or lately in existence.
The report made to your Majesty of the 28th February 1804, lies before me. Whatsoever may be its character in any other point of view,—in an historical point of view, it is of no small value. From 1700 to 1804—a space of 104 years,—commission after commission—office upon office—salary upon salary—and still nothing done. Thereupon, in 1804, a commission in a new form:—eleven years more, and still nothing done. Why? Because the only sort of means, by which, in the nature of the case, anything could be done—or at least tolerably well done—(I mean those above submitted) have never yet been taken. So that money is but spent, no matter how it is applied. So far as concerns salaries, in Russia (I cannot but suspect)—in England (I cannot but see)—such has all along been the principle acted upon: the consequences have been—those which, by the nature of things, are attached to such principles.
According to this report, in the time of Catherine II. the whole field of legislation was divided amongst fifteen commissions, composed all together of no fewer than 128 members. By each of these commissions, a mass of paper was covered with written characters: masses 15 (p. 12,) not one of them found fit to make its appearance. How should it have been? where should any of them have got their skill—these codificators? What motives, what means, had they for the acquiring of it? Seven years of hard labour, real or supposed, on the part of this set of commissioners (p. 12,) and then, if I understand the matter right, seven more years of the like labour on the part of another set—(p. 13,) and still nothing done. Publicity—the most unlimited publicity—the only possible means of doing anything,—and still nothing but the closest secresy put in practice!
Always the same failure—always from the same causes—and to the last the same hopeless course pursued. Ah, Sir, with what regret did I not see (it was in the report of 28th February 1804, p. 35) the long list of offices with pecuniary appointments, all of them to last—(for how in common compassion could it be otherwise?)—to last for the lives of the official persons. Official persons, 48: total of annual expense, roubles 100,000. But in these salaries were not included those of either of two personages,—each of them lending his name, neither of them anything else,—High Excellencies, the amount of whose appointments in that quality, shame, it should seem, kept out of the list.
By what portion of that multitude of salaried workmen has anything been done? and by such of them by whom anything has been done, in what quantity: and to what value, has work been done?
Not but that, in the way of collecting materials, and putting them in order,—workmen, even in that multitude, may have been, and, for aught I can know to the contrary, have been, usefully employed: materials, consisting of dispositions of existing law, distributed under heads. Few perhaps are the occasions on which,—to the forming a sufficiently grounded judgment on the question, what, in relation to this or that head, ought to be law,—it is not necessary to know what actually is law. Statements, showing what is law, are therefore among the materials, which he to whom it belongs to say what ought to be, and thence what shall be, law, must have to work with. But, the workman by whom materials of this sort are collected and brought to the spot, is but the hod-carrier. And where are the architects, or so much as the bricklayers?
By any one of the volunteer workmen whom I have thus been labouring to introduce into your Majesty’s service,—not a penny can be received, but for work, which, well or ill done, will, at any rate, have been done: no, nor in any other proportion than that of the quantity actually done: and, among those will be—not only bricklayers, but underarchitects:—whichsoever function each man feels or fancies himself most fit for. After trial, if this or that man does not prove fit, so much the worse: but it is only by trial that he, or any one, can have had much chance of being made fit, or any chance at all of being proved to be fit.
Where, work or no work, salary is received, what you are well assured of is—a man’s affection for the salary. Where, in the way here proposed, without salary, or pecuniary allowance in any other shape, work is done,—what you are pretty well assured of is—a man’s affection for the work.
Affection, indeed, is not itself aptitude: but, in every case it is one cause of aptitude, and, in the present case in particular, there cannot be a more efficient, not to say a more indispensable one.
Meantime, if I have not been misinformed, one code at least—and that on the penal branch—if not already in print, is already in more or less forwardness, from the official hand. Now for a few suppositions:—1. It is out already;—2. It is not out yet, but comes out, before any outline from me is at St. Petersburgh;—3. It comes out, but not till after an outline from me has been for some time out at St. Petersburgh;—4. It never comes out at all. In these several cases, what may be the effect expected from my work?—from my work, including school of legislation, built on the tribunal of free criticism, which, as above, I consider as an accompaniment to it, or as one fruit of it.
Case 1. It is out already. But at any rate not with the force of law already given to it: for, had this been the case, I should have heard of it. I should not expect to find that it is so, even in the probationary state. If it is,—then, before it receives the force of law, it will rest with your Majesty to determine, whether the tribunal of free criticism, above proposed for my own work, shall not take cognisance of it. But, in case of the affirmative, on which I cannot help reckoning—in that case, your Majesty’s declaration on that head had need to be explicit—“L’original est confirmé de la propre main de sa Majesté Impériale dans les termes suivans: ainsi soit fait.” Thus in French. In English, Woe to all gainsayers! Such was the ægis, with which the authors of the report of 28th February 1804, thought it advisable to provide themselves. Critics, be dumb! Woe be to all gainsayers!
At any rate, if it be your Imperial Majesty’s pleasure to cause a copy to be transmitted to me,—observations on it from me,—or, with your Imperial Majesty’s permission (that my work may not be stopped,) from some friend of mine,—shall be submitted to your Majesty with all possible dispatch. It will then rest with your Majesty’s pleasure, what delay, if any, to allow for the delivering in of my work, before the sanction of law is given to that, or any other.
Case 2. It is not out yet, but comes out before any outline from me has reached St. Petersburgh.—In the mean time, shall I have been useless? No, Sir—all this while, though I were all the time asleep, I shall have been rendering to your Majesty useful service. To the official hand, have been all the while applied the spur and the rein, formed by the idea of the tribunal of free criticism, which is waiting for that work: and, in conjunction with this idea, the idea of the rival work, from the hand, by the shadow which, at this distance, the official hand hath, as above, been so often made to tremble.
Case 3. My Outline has reached St. Petersburgh, and from the official hand no Projet hath as yet been delivered in, but comes out afterwards.—The official faculties will now have been put to their utmost stretch. The enemy—the foreign enemy—has been seen already on the field. For this his work, here will be at least one critic, by whom the virtual challenge can scarcely have been refused. Against the intruder’s work, whatsoever can be said,—here at least is one,—and, at his back, others by dozens and by scores,—who, all of them, have had the strongest interest in saying it.
And now, the fresh subject being come in, the legislative school finds a fresh recruit of scholars:—scholars, as many as can descry for themselves any the least chance of advancement, from their exercises as performed in it.
Let me not here withhold the acknowledgment, which even already seems to be due. What from that hand I should expect to find, is—a work not unsusceptible of criticism,—of examination. In it I foresee a work, in which the forms of method will have been observed: in it will be found distinguishable parts. This I collect from what I see in the above rapport. A point (mathematicians tell us) has no parts: a chaos, how vast soever, has not any more. The fifteen masses of proposed legislative matter, spoken of in the rapport, had not, any one of them, any thing like method:—had not any distinguishable parts:—thus much I collect from the rapport. By this methodicalness, the sketch given in that same rapport,—and, I should suppose, whatsoever may have been shown to your Majesty since,—stands distinguished, I take for granted, from, or at least above, all that had gone before it. Here was one step, towards the one thing needful. This, I suppose, is that which gained for the author,—and, as far as it went, on grounds, the justice of which is above dispute,—your Majesty’s favourable opinion and acceptance.
Altogether above dispute, are the importance of good arrangement to legislation, and the importance of a set of synoptic tables,—(systême figuré is the word used by the French Encyclopedists) to good arrangement: good arrangement and good tables are at once effect and cause. A man,—who, feeling the need of it, is able to frame an implement of this sort,—is beyond comparison better qualified for the main work, than one, who is either blind to the use of such a security for good arrangement, or unable to produce it.
This, then, is one step made towards the one thing needful: but it is not itself the one thing needful. Here are so many drawers or boxes. But the contents?—what will they be? Everything depends upon the contents: and, from nothing that I have ever seen or heard, can I entertain any favourable expectation, in regard to the contents, with which, if with anything, those same boxes are destined to be filled.
Your Majesty was well advised, in the acceptance given to those services. I see not well how they could have been refused. But the misfortune was—the yielding to that anxiety, which on the part of a person in that situation was at once so natural, and so pernicious:—the anxiety to preclude the sovereign, according to custom, from receiving, from any other quarter, services, of which the whole civilized world could not afford a supply too large.
Case 4. Lastly—suppose that notwithstanding the spur so applied, as above, a reasonable time has elapsed, and still no work has appeared from the official hand.—Inwardly felt conviction, of at least the comparative goodness of the already published work,—self-conscious inability to produce a better, if any at all,—such, it will have become manifest, is the state of mind, which the silence has had for its cause. Meantime, here,—by the supposition—here, at any rate, is a something in hand: I mean my own work, whatever it may be found to be:—a something, which, but for this my humble proposal, would never have had existence.
To the number of commentators—under the assurance that, where the author is an unconnected foreigner, they will be critical ones,—and thence of self-appointed judges, under the assurance that they will not be favourably partial ones,—your Majesty sees plainly enough, that it is not without concern, that I should see any limits.
But,—in regard to the sort of a work itself, which is to be the subject of this criticism,—one condition, I must confess, I should not be sorry to see required,—whatsoever, in the way of limitation, might be the effect of it.
This is—that, to each considerable mass of matter,—nay even to each single word where the importance of it required as much,—considerations, destined to serve in the character of reasons,—stated, in proof of the propriety of whatever were so proposed to be established,—should all along be annexed.
This subject was touched upon in my former letter:—I cannot too earnestly solicit your Majesty’s attention to it.
Sir, it is only by the criterion—it is only by the test—thus formed,—that talent can be distinguished from imbecility, appropriate science from ignorance, probity from improbity, philanthropy from despotism, sound sense from caprice,—aptitude, in a word, in every shape, from inaptitude.
Reasons, these alone are addresses from understanding to understanding. Ordinances without reasons, are but manifestations of will,—of the will of the mighty, exacting obedience from the helpless. Absolve him from this condition—rid him of this check,—not only the man, who presents a code to you for signature,—but the man who presents your shirt to you,—is competent to make laws. The man who presents the shirt? Yes, Sir, or the woman who washes it.
Give up this one condition,—Germany alone, on any one subject that you please, will furnish you with as many hundred codes as you please:—all of them faithfully copied from the chaos, which for a different part of the world was put together, some twelve or thirteen hundred years ago:—all of them composed upon the most economical principles:—all of them written at the rate of so many pages an hour:—all of them, without any expense of thought.
No reasons! No reasons to your laws!—cries Frederick the Great of Prussia, in a flimsy essay of his, written professedly on this very subject. Why no reasons? Because, (says he) if there be any such appendage to your law,—the first puzzle-cause of a lawyer, (le premier brouillon d’avocat)—that takes it in hand, will overturn it. Yes, sure enough: if so it be, that,—a text of law pointing one way,—a reason that stands next to it points another way,—that is, if either the law or the reason is to a certain degree ill constructed,—a mishap of this sort may have place. But, is this a good reason against giving reasons? No more than it would be against making laws. As well might it be said—No direction posts! Why? Because, if, coming to a direction post, a mauvais plaisant should take it into his head to give a twist to the index, making it point to the wrong road,—the traveller may thus be put out of his way.
Suppose now a code produced, as usual, without any such perpetual commentary of reasons: prefaced, for form sake, and to make a show of wisdom—prefaced, as hath so repeatedly been done, by a parcel of vague and unapplied, because inapplicable, generalities, under the name of principles. It may be approved, and praised, and trumpeted. But on what grounds? If, in regard to this or that particular provision or disposition of law, any distinct and intelligible grounds for the approbation are produced,—they will be so many reasons. Why, then (may it be said to the draughtsman)—why, if you yourself know what they are,—why, unless you are ashamed of them—why not come out with them in the first instance?—why not spread them out, at one view, before the public at large,—instead of whispering them, one at one time, another at another, in the ear of this or that individual, pre-engaged by interest or prepossession, in quality of trumpeter?—But if no such grounds—that is, if no grounds at all—can be produced, where is the truth or value of any such praise?
On the other hand,—suppose a body of law produced, supported, and elucidated, from beginning to end, by a perpetual commentary of reasons: all deduced from the one true and only defensible principle—the principle of general utility—under which they will, all of them, be shown to be included.—Here, Sir, will indeed be a new æra:—the æra of rational legislation: an example set to all nations:—a new institution:—and your Majesty the founder of it.
The penal is the branch of law, with which, in contradistinction to the civil, I in a manner took for granted that it would be deemed most proper to commence. Reasons are obvious, and seem conclusive. In the penal branch for instance, circumstances of universal growth have place in a larger proportion than in that other. On that account it lies, in a more extensive degree, within the competence of a foreign hand. In the penal branch, too, changes to any extent may be made, and—so they be but for the better in other respects,—neither danger nor alarm be produced by the change.
Not so in the case of the civil branch. Of that branch, the grand and all-pervading object is—to keep out change:—to prevent as much as possible, those disappointments, which are the result of actual and unexpected change, and those alarms, which are produced by the tremulous expectation of change. In this case, general uncertainty in the state of the law—that perpetual source of unexpected changes, in individual instances, to an unfathomable extent—is the grand source of evil: and uncertainty is the inherent disease of that wretched substitute to law, which is called unwritten law, and which, in plain truth, is no law at all. For this disease, written law—the only sort of law which has any other than a metaphorical existence,—is the only remedy. A remedy of this sort, Napoleon had the merit of giving to France. With what degree of skill it is made up, I have never yet seen any use in the inquiring. But, wretchedly bad indeed must this remedy have been, if it has not been in a signal degree better than none. Happy had it been for mankind,—if, in this way alone, he had set an example to its rulers.
It remains for me to speak of the way alluded to at the outset, as the other way, in which, with your Imperial Majesty’s approbation, such services as it may be in my power to render, may, in some sort, be put to use; and in some degree, though not an equal degree, the objects, above spoken of, attained.
By the same conveyance with the letter from your Majesty, came one from Prince Adam Czartoriski. It is to remind me of an eventual promise I had made to him, and to call upon me for the eventual performance. Poland was, of course, the subject of this promise. What gave occasion to it, your Majesty may, perhaps, have heard already from that Prince. All that passed between us on either side was in generals: things were not at that time ripe for entering upon particulars: your Majesty’s intentions were not sufficiently known. But, from the nature of the case, an inference I was led to draw, was—that in relation to that country, the constitutional,—antecedently at least to every other,—was the branch, with relation to which, my services were in view. But, of all branches of law,—the constitutional is that, in relation to which, so far as concerns the drawing of a general outline, a foreign hand seems less competent than in relation to any other. Why? Because constitutional law depends throughout upon localities. Here, then, the plan of giving answers, as above, to incidental questions, is the only one that seems suited to the nature of the case.
Not that in this case, any more than in the other, there could be any use in sending answers,—any further than as, in the place to which they were sent, they found a disposition to put them to use. But if, in the present instance, there be any deficiency on that head,—the application, so obligingly reiterated to me by that prince, is an effect without a cause.
Meantime, if it were your Majesty’s pleasure to give me orders for an outline of penal and civil law, commencing with the penal law, for Poland,—my labour, although the field of it were confined to Poland, would find motives altogether adequate to the production of it.
My purpose would thus be answered, but not that which I can not but hope to find your Majesty’s. For Russia,—no competition, no tribunal of free criticism, no school of legislation, no nursery for functionaries, employed in the department of legislation: nothing but a faint telescopic view of those establishments, as existing in Poland. The destiny of Russia delivered over to a single hand,—such as everything I have either seen or heard, concurs in forcing me to regard as an insufficient one.
Your Majesty sees my importunity? Why should I be ashamed of it? It is not for money: it is not for power: it is not for dignity: it is not even for favour:—it is for a chance of being of use:—of use?—and to whom of use?
Not inconsiderable,—either in extent, or number, or importance,—are the subjects of consideration, which I have thus ventured to submit to your Majesty’s decision. But, so far as regards anything to be done by me, few points there are of any importance, in which the decision can be—at once so simple, so easy, and so safe.
To set me at work, all that would be necessary would be—an intimation of your Majesty’s pleasure to that effect. English must be the language in which I write. It is accordingly in that language, that, in the first instance, it must be printed. But sheet by sheet, as fast as it comes out in English, Mr. Dumont, serving upon the same terms that I do, would—I am as certain as if he were here, and told me so—be happy to render it into French: in which case, the French translation would be in print nearly as soon as the original. The expense of the work in English would be my concern: with regard to the French, it would be as your Majesty pleased. To Petersburgh, as many copies,—in English, in French, or in both,—as your Majesty pleased to order, should be transmitted. What should be done in relation to them when there, would of course depend altogether upon your Majesty’s pleasure. But, I hope your Majesty will have no objection to the giving me a promise, that when there, they shall see the light. The work will not be a libel: and, if disapproved,—and, with or without reason assigned, the disapprobation declared,—any such disapprobation will not, naturally speaking, experience much difficulty in making itself respected. I have the honour to be, Sir, your Imperial Majesty’s ever faithful servant,