Front Page Titles (by Subject) CODIFICATION PROPOSAL, ADDRESSED BY JEREMY BENTHAM TO ALL NATIONS PROFESSING LIBERAL OPINIONS; OR IDEA OF A PROPOSED ALL-COMPREHENSIVE BODY OF LAW, WITH AN ACCOMPANIMENT OF REASONS, APPLYING ALL ALONG TO THE SEVERAL PROPOSED ARRANGEMENTS: - The Works of Jeremy Bentham, vol. 4
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CODIFICATION PROPOSAL, ADDRESSED BY JEREMY BENTHAM TO ALL NATIONS PROFESSING LIBERAL OPINIONS; OR IDEA OF A PROPOSED ALL-COMPREHENSIVE BODY OF LAW, WITH AN ACCOMPANIMENT OF REASONS, APPLYING ALL ALONG TO THE SEVERAL PROPOSED ARRANGEMENTS: - 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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these reasons being expressive of the considerations, by which the several arrangements have been presented, as being, in a higher degree than any other, conducive tothe greatest happiness of the greatest number,of the individuals of whom the community in question is composed:
RESPECTING THE HANDS, BY WHICH THE ORIGINAL DRAUGHT OF A WORK OF THE SORT IN QUESTION, MAY, WITH MOST ADVANTAGE, BE COMPOSED:
INTIMATION, FROM THE AUTHOR, TO THE COMPETENT AUTHORITIES IN THE SEVERAL NATIONS AND POLITICAL STATES,
expressive of HIS DESIRE AND READINESS TO DRAW UP, FOR THEIR USE RESPECTIVELY,
ORIGINAL DRAUGHT OF A BODY OF LAW,
such as above proposed.
originally printed in 1822.
THIS PAPER CONSISTS OF TWO PARTS:—
Part I. Arguments:or Positions, with Proofs by Reasons.—This Part contains in twelve Positions a more particular explanation of the nature of the proposed work, together with the grounds on which, in point of argument, the proposal rests. These Positions form the heads or titles of so many sections, from the matter of which they respectively receive their proofs.
Part II. Testimonials.—This Part consists of divers papers, expressive of the conceptions entertained by divers constituted authorities, in divers States, in relation to the proposed Author: conceptions, concurring, as supposed, in affording a presumption in favour of his aptitude, with relation to the proposed work.
It will be for each reader to choose on which of these two Parts he will bestow the first glance.
POSITIONS, WITH REASONS FOR PROOFS.
In every Political State, the greatest happiness of the greatest number requires, that it be provided with an all-comprehensive body of law. All-comprehensiveness, practicable, and indispensable.
In the political state in question, whatsoever be the effect, which, in pursuance of any regard, entertained, or professed to be entertained, for the greatest happiness of the greatest number, it has been endeavoured to produce, by means of any expression given to the will of any person or persons exercising any of the powers of government,—only in so far as that will has been made known to the individual on whose conduct the production of that effect in each individual instance depends, can existence be given to such effect. If, in the instance of any one such effect, the notification, as above, of the correspondent will, is necessary to the existence of the effect, so is it in the instance of every other such effect. If, in this respect, there be any difference,—by him by whom it is discovered let it be declared.
This is what no man will attempt. Yet are there but too many men, to whom the idea of any such all-comprehensiveness, on the part of the rule of action, is an object of aversion and even abhorrence.
Who are they? A set of corruptionists, and a correspondent set of dupes.
1. First as to corruptionists.
In proportion as, in the whole field of law, a covering composed of real law is wanting,—room is left for different sets of men, to set up, each of them, in the character of law, this or that article of purely fictitious law, framed by them respectively on each occasion, in a shape adapted to whatever particular and sinister purposes they have, on that occasion, set themselves in pursuit of. There are two distinguishable classes of men, to whose sinister purposes every such void space in the body of the law is subservient. One is, the lawyer class: the other is the class of party men in general; and in particular, party leaders. Were any such all-comprehensive code in existence, and executed as it ought to be and might be, seldom would there be any such question as a question of law: never any other question of law than a question concerning the import of this or that portion of the existing text of the really existing law. In the case of the lawyer class, the need which a man has of void spaces in the body of the law, applies to the whole field of law, and every part of it. In the case of the party man, it is to the constitutional branch of the law that the convenience afforded by those void spaces to his purpose more particularly applies. Wherever real law is silent, the course he takes is this:—He sets up an article of imaginary law framed by him for the purpose, and by loud and confident assertion, supported by such analogical arguments as he can contrive to muster up, endeavours to produce, in the minds of his hearers or readers, the belief of a conviction on his part, that this sham law of his own fabricating is so much real law. If he be of the party in power, it is most commonly for the defence of his own party that the pretended law is fabricated: if he be of the party out of power, it is most commonly for the attack of the party in power that the fabrication has place.
Behold, then, in the above two classes of men, the corruptionists—the knaves. To their sinister interest it is, or is believed to be, conducive, that the rule of action should be kept in the completest state of uncertainty and confusion possible.
The dupes are those on whose minds the knaves have succeeded in producing, in relation to this matter, a persuasion which in their own minds has no existence. This is, that the composition of a code thus comprehensive is impossible. Of any attempt to prove the inutility of it, the absurdity would be too palpable. Remains, then, this notion of the pretended impossibility as the sole resource.
The strength of the argument lying in the ignorance and weakness of those to whom it is addressed, no direct mode of combating it with effect does the nature of the case admit of, except by the substituting appropriate knowledge and strength of mind to that ignorance and that weakness.
This not being within the reasonable hope of any man, the only sort of argument that presents any chance or prospect of success is this:—Let the endeavour to produce a code of this all-comprehensive description be employed: if it fails altogether, you are but as you were: so far as it succceds, so far at least you will be the better for it: instead of a counterfeit arrangement, fabricated on the occasion by this or that influential hand for its own particular and sinister purpose, you have a real arrangement; an arrangement, the knowledge of which, whatsoever has been its purpose, has been given, or at any rate may have been given, and given in time, to those whose lot it had taken upon itself to dispose of:—the knowledge of it, and thereby so far the power to conform to it. To give to you, whoever you are, this means of safety, is the endeavour of every public man whose end in view is the greatest happiness of the greatest number. To withhold it from you, is the endeavour of the corruptionist in every one of his shapes: to keep everything that is dear to you in the state of the most perfect insecurity possible. Why? Because in that insecurity he beholds an efficient cause of his own power: by every increase you get to your security, that power of his is lessened. It is because he is so fully conscious of the possibility of such a work, and accordingly so fearful of seeing it executed, that he is so earnest with you to persuade you to regard the accomplishment of it as impossible: to regard success as impossible, and thence every proposal for the endeavour as absurd. Supposing it really impossible, he would be without motive for taking so much pains to make you regard it as such.
The possibility—is it proved—the impossibility disproved—by the fact? Where the fact has place, are men in general satisfied or dissatisfied with it? Ask a citizen of the United States, whether it would be agreeable to him to see his constitutional code done away, and, throughout the whole field of law, party men and lawyers left at liberty to vociferate, upon each occasion, the law is so and so, the law is so and so:—to vociferate thus—as it would be left for them to do, and as they would not fail to do, when the truth is, that, by the very supposition, there is no such thing as any law about the matter. Ask him where the impossibility is, of doing that which, by that same constitutional code, has actually been done.
Well then—if, in the giving a covering of this sort to the whole field of constitutional law, there has been nothing impossible, why should there be in giving a like covering to any other part of the field of law? to the field of distributive, or, as the phrase is, civil law—to the field of penal law—to the field of judicial procedure?
Ask the Spaniard the like question.
Ask either of them—ask even the Englishman—seeing that so many parts of the field of law are actually covered by real law—what is there that should hinder the other parts, any or all of them, from receiving a like covering?
In every other case, the more strenuous a man’s endeavour is to render his work complete, is not the probability of its being rendered so the greater? Is it that the more studiously a man abstains from adding anything to it, the nearer to completeness it will be? Does not a more complete come nearer to an all-comprehensive than a less complete work does?
As to the mode of securing this same property of all-comprehensiveness to the several operations that required to be performed on the several parts of the field of law in the penning of a code, some instructions for this purpose may be seen in Part the Second of the work intituled Chrestomathia.*
In a word, be the occasion what it may, if in specie, the language cannot always be all-comprehensive—say rather all-expressive—yet such in genere it may always be: and, as every individual is contained within its species, so is every species within its genus.
The greatest happiness of the greatest number requires, that such body of law be throughout accompanied by its rationale: an indication of the reasons on which the several arrangements contained in it are grounded. Rationale, though unexampled, indispensable.
Of this Rationale, the uses may be thus enumerated:—
1. To the draughtsman himself, it will serve at once as a guide and as a bridle: as a guide, for directing his understanding and active talent in the right track, by keeping at all times in his view the universal goal or object, towards which, as above, it ought in every part to be directed.
2. As a bridle, by keeping in his mind the remembrance, that, in case of his giving place to any arrangement, for which no sufficient reasons are given, while against it, reasons, suggested by its relation to that same universal end, will be likely to present themselves to other eyes,—he may have a timely view of the condemnation, to which, at the hands of public opinion, he will in such case subject himself: as also, in the opposite case, of the crown of applause and gratitude, which, at the hands of that same universal tribunal, awaits his head.
3. To the subject-citizen, it will serve all along as a key—an instrument of interpretation: of interpretation, for the solution of all such difficulties and doubts, as might otherwise have place, in regard to the import of the terms employed.
4. To the subject-citizen, again, it will serve as a cordial—a source of satisfaction; showing to him, in a point of view not less advantageous than correct, the character of the government under which he lives: showing all along, that it is only as an indispensable means of preponderant benefit to all, that the burthen imposed upon any one is, in any part of it, so imposed.
5. To the subject-citizen, again, it will, taken all together, according to the extent occupied by it in the field of morals and legislation, serve as a code of instruction, moral and intellectual together: applying itself to, and calling into continual exercise, the intellectual faculty; and not merely, as in the case of a code of ordinary structure, applying itself to the will, and operating upon that faculty, by no other means than the irresistible force of a superior will, employed in the way of intimidation or remuneration: intimidation of necessity for the most part: intimidation, with only a small admixture of remuneration, in a comparatively small number of cases, and to a comparatively minute extent.
6. To the judge, in his situation, it will afford the same facility, guidance, satisfaction, and instruction, as to the subject-citizen in his: it will, moreover, in proportion to its clearness, correctness, and completeness, apply to his mouth, to keep him all along from turning aside into the track of corrupt or arbitrary decision—a bridle: an implement, which, in his career, is so necessary. In so far as the course he takes is confined to the track of his duty as thus pointed out, the very bridle will moreover afford him a support: a support against whatever ungrounded accusations and imputations his situation exposes him to.
7. In relation to the legislator, acting as such on the occasion here in question—in relation to the legislator, that is to say, to him who possesses or shares in the power of giving binding force to the work of the draughtsman, as above,—it will render service in all those several shapes, in which it has been thus officiating, in relation to the draughtsman, the subject-citizen, and the judge:—in the several shapes (that is to say) of a guide, a bridle, an instrument of interpretation, a source of satisfaction, and a body of moral and intellectual instruction.
8. To the mouth of the legislator, it will, in all succeeding times, keep applied that sort of bridle, and the only sort which, without the grossest absurdity, could either be attempted to be so applied to that supreme functionary, or by him submitted to. To the body of arrangements, to which it is attached, and to each distinguishable arrangement in particular, it will thus, in proportion to their aptitude respectively, form a sort of anchor, bestowing upon them respectively, at all times, that degree of fixedness, and that alone, which, for the greatest happiness of the greatest number, they ought respectively to have.
In this character, it will form a striking contrast with the only sort of steadiment that has ever yet been applied to them: with that sort of steadiment, which, with such unhappy frequency, it has been customary to apply to them: viz. that which is composed of an ungrounded expression and effusion of arbitrary will: an instrument not more remarkable for its weakness, than for the absurdity and presumption manifested in the construction of it: an attempt, on the part of the legislator, not only when less experienced and less advised, to tyrannize over himself when more experienced and more advised,—but, when rendered by death as deaf and impotent as when alive he was blind, to tyrannize over his enthroned, and vigorous, and hearing, and seeing successors.
9. Under a representative government—the only sort of government which deserves the name—under a representative government, to constituents in the character of electors, it will afford, for judging of the appropriate aptitude of proposed representatives, a test, than which, in so far as, by conduct, under and in relation to the body of the laws, occasion has been afforded for the application of it, none more apt can be afforded by the nature of the case. “On such or such an occasion, when an arrangement to such or such an effect was proposed for confirmation or alteration, what was your vote? what was your speech? when, in support of the arrangement proposed to be altered, there are such and such reasons, what counter reasons did you then offer? what are you able and disposed now to offer?” Such is the scrutiny, to which his conduct while in office might, by the lights in question, be on each occasion subjected.
The greatest happiness of the greatest number requires, that those reasons be such, throughout, as shall show the conduciveness of the several arrangements to the all-comprehensive and only defensible end thus expressed. Rationale, indicates conduciveness to happiness.
Except in so far as they do this, whatsoever portions of discourse are given under the name of reasons, do what is nothing to the purpose: the name of reasons is not with any use or propriety applicable to them. Anything that has no influence on happiness, on what ground can it be said to have any claim to man’s regard? And, on what ground, in the eyes of a common guardian, can any one man’s happiness be shown to have any stronger or less strong claim to regard than any others? If, on the ground of delinquency, in the name of punishment, it be right that any man should be rendered unhappy, it is not that his happiness has less claim to regard than another man’s, but that it is necessary to the greatest happiness of the greatest number, that a portion of the happiness of that one be sacrificed.
Reasons, indicative of this conduciveness, are reasons derived from the principle known by the name of the principle of utility: more expressively say, the greatest-happiness principle. To exhibit these reasons, is to draw up the account between law and happiness: to apply arithmetical calculations to the elements of happiness. Political arithmetic—a name that has by some been given to political economy—is an application, though but a particular and far short of an all-comprehensive one, of arithmetic and its calculations, to happiness and its elements.
To convey a sufficiently clear, correct, and comprehensive conception of what is meant by reason, or a reason, when derived from the principle of utility, and applied to law, a few words of explanation seem indispensable.
The elements of happiness are pleasures and exemptions from pains: individual pleasures, and exemptions from individual pains.
The magnitude—the greatness—of a pleasure, is composed of its intensity and its duration: to obtain it, supposing its intensity represented by a certain number of degrees, you multiply that number by the number expressive of the moments or atoms of time contained in its duration. Suppose two pleasures at the same degree of intensity,—give to the second twice the duration of the first, the second is twice as great as the first.
Just so is it with pains: and thence with exemptions from pains.*
The magnitude of a pleasure, supposing it present, being given,—the value of it, if not present, is diminished by whatever it falls short of being present, even though its certainty be supposed entire. Pleasure itself not being ponderable or measurable, to form an estimate of this diminution, take the general source, and thence representative, of pleasure, viz. money. Take accordingly two sums of the same magnitude, say twenty pounds, the one sum receivable immediately, the other not till at the end of  years from the present time, interest of money being (suppose) at 5 per cent.—the value of the second sum will be but half that of the first; namely, ten pounds: in the same case, therefore, will be the value of two equal pleasures receivable at those several times. Just so is it with pains: and thence with exemptions from pains.
The magnitude of the pleasure derived from the source in question, supposing it present, being given—as also the value to which it is reduced by distance as above—the value of it is subjected to a further reduction by whatever it is deficient in, in respect of certainty: suppose, then, that at the time for its being received, as above, the probability, instead of being as infinity to one, i. e. at a certainty, is but as 1 to 2. On this supposition, the value of it is subjected to such further reduction, as leaves it no more than the half of that which it would have been, had the receipt of it at that remote period been regarded as certain: instead of twenty pounds, as by the first supposition, and ten pounds, as by the second supposition, it will now be no more than five pounds. Just so is it with pains, and with exemption from pains.
So much as to diminution of value by remoteness and uncertainty: now as to increase by extent.
Take any two sources of pleasure: the one productive of pleasure to one person and no more: the other productive of pleasure, the same in magnitude and value, to two other persons and no more. In the eyes of a common trustee, intrusted with the interests of all three, and acting according to his trust, the value of the second source of pleasure will be just twice as great as that of the first. As a pleasure comes to be experienced by a greater and greater number of persons in a community, it extends over a larger portion of that same community: in a political community, the extent of a pleasure is as the number of the persons by whom it is experienced.
Just so it is with pains and exemptions from pains.
Instead of pleasure itself, to show how an estimate might be formed, of the diminution its value is subjected to by diminution of propinquity and certainty, it became necessary to substitute to pleasure itself some external object known by experience to be of the number of its sources or say its causes: for example, money. But, how indubitable soever the title may be, of any object to be considered as belonging to the list of these same causes, the magnitude of the pleasure produced by it does not increase in so great a ratio as that in which the magnitude of the cause increases. Take, for instance, the same cause as before: namely money. Take thereupon any individual: give him a certain quantity of money, you will produce in his mind a certain quantity of pleasure. Give him again the same quantity, you will make an addition to the quantity of his pleasure. But the magnitude of the pleasure produced by the second sum will not be twice the magnitude of the pleasure produced by the first. While the sums are small, the truth of this position may not be perceivable. But let the sums have risen to a certain magnitude, it will be altogether out of doubt; and it will then be matter of mathematical certainty that the diminution cannot have been made to take place in the case of the greatest quantity without having been made to take place, to a proportionable amount, in the case of the several lesser quantities.
Take, for example, on the one hand, a labouring man, who, for the whole of his life, has a bare but sure subsistence: call his income £20 a-year. Take, on the other hand, the richest man in the country; who, of course, will be the monarch, if there is one: call his income £1,000,000. The net quantities of happiness, produced by the two incomes respectively—what will be their ratio to each other? The quantity of money received annually by the monarch is, on this supposition, 50,000 times as great as that received, in the same time, by the labourer. This supposed, the quantity of pleasure in the breast of the monarch will naturally be greater than the quantity in the breast of the labourer: Be it so. But by how much—by how many times greater? Fifty thousand times? This is assuredly more than any man would take upon himself to say. A thousand times, then?—a hundred?—ten times?—five times?—twice?—which of all these shall be the number? Weight, extent, heat, light—for quantities of all these articles, we have perceptible and expressible measures: unhappily or happily, for quantities of pleasure or pain, we have no such measures. Ask a man to name the ratio,—if he knows what the purpose is, his answer will vary according to the purpose: if he be a poet or an orator, and the purpose of the moment requires it, with as little scruple will he make the labourer’s happiness superior to the monarch’s, as inferior to it. For the monarch’s, taking all purposes together, five times the labourer’s seems a very large, not to say an excessive allowance: even twice, a liberal one.
After it has thus been applied to the case of the richest individual in the country, apply the estimate to the case of the next richest, suppose the man with £200,000 a year, and so downwards. If the monarch’s pleasure is not in any greater ratio to the labourer’ than that of 5 to 1, the excess of this next richest man’s pleasure, as compared with the labourer’s, cannot be so great. Carry the comparison down through the several intermediate quantities of income,—in the account of pleasure, the balance in favour of the non-labourer as against the labourer will thus be less and less.
As it is with money, so is it with all other sources or causes of pleasure: factitious dignity, for example. Give a man a ribbon, you will produce in his mind a certain quantity of pleasure. To this ribbon add another, you may add more or less to the former quantity of his pleasure. You may add to it: but you will not double it. Cover him with ribbons, as, at the expense of his starving subjects, some of the King of England’s servants are covered with gold lace, till the colour of the coat is scarcely visible—add even money in proportion—still will it be matter of doubt whether the quantity of pleasure in his mind will be double the quantity existing in the mind of the labouring man above mentioned.*
The footing, upon which the process of reasoning is thus placed by the principle of utility, is not only the only true and defensible footing, but the only one (it will be seen) on which any tolerable degree of precision can have place: and, even in so slight a sketch as the present, already it may have been observed, how near to mathematical the degree of precision is, in this case, capable of being made. Considered with reference to an individual, in every element of human happiness, in every element of its opposite unhappiness, the elements, or say dimensions of value (it has been seen,) are four: intensity, duration, propinquity, certainty; add, if in a political community, extent. Of these five, the first, it is true, is not susceptible of precise expression: it not being susceptible of measurement. But the four others are.
By this mode of reasoning, the doctrine of proportions is naturally introduced, and, on every occasion, held up to view. In so far as, is the formulary by which the case thus taken is announced, and the requisite effect produced. Without thus adverting to proportions, say absolutely and simply, of the thing, whatever it be—it is so and so, or it is not so and so—in either case, if, in your bucket, as it comes out of the well, you have more or less of truth, no one can say, for no one has inquired, in how large a proportion falsehood may not have come mixed with it.
To return to the application thus made of arithmetic to questions of utility. How far short soever this degree of precision may be, of the conceivable point of perfection—of that which is actually attained in some branches of art and science,—how far short soever of absolute perfection,—at any rate, in every rational and candid eye, unspeakable will be the advantage it will have, over every form of argumentation, in which every idea is afloat, no degree of precision being ever attained, because none is ever so much as aimed at.
Till the principle of utility, as explained by the phrase the greatest happiness of the greatest number, is, on each occasion, if not explicitly, implicitly referred to, as the source of all reasoning,—and arithmetic, as above, employed in making application of it, everything that, in the field of legislation, calls itself reasoning or argument will—say who can in what large proportion—be a compound of nonsense and falsehood; both ingredients having misrule for their effect, after having, in no small proportion, had it for their object. In words, opposite to one another in character, but all of them indeterminate in quantity, may be seen the ordinary instruments of debate:—the weapons with which the warfare of tongues and pens is, in a vast proportion, carried on. In penal law, justice and humanity—in finance, economy and liberality—in judicial procedure, strictness and liberality of construction—in constitutional law, liberty and licentiousness. It is with trash such as this, that corruptionists feed their dupes, teaching them, at the same time, to feed one another with it, as well as themselves. It is with one part of it in their mouths that the holders of power pass for wise, and the hunters after it for eloquent. Thus cheap is the rate, at which, in any quantity, each combatant finds matter of laud for those of his own side of the question (not forgetting himself,) and matter of vituperation for his antagonists. It is by nonsense in this shape that the war, made upon the principle of utility by ipsedixitism and sentimentalism, with or without rhyme, is carried on.
In the titles, with which the several sections of this paper are headed, it may be observed as a singularity, that the words, The greatest happiness of the greatest number, occupy the first place. The use of them is—to serve as a memento, that, whatever be the subject of consideration,—in so far as it belongs to the field of government, matters be so ordered, as that the only defensible end of government shall never be out of sight.
To this instructive phrase, substitute any of those unmeaning terms, to which, under the lash of perpetually-accusing conscience, the enemies of good government are, at every turn, constrained to have recourse. Substitute, for example, the word legitimacy, or the word order, and say—maintenance of legitimacy requires, or maintenance of order requires, that the state be provided with an all-comprehensive—with a rationalized code of law—that, in the rationale, the several reasons, or sets of reasons, be contiguously attached to the several arrangements to which they apply, and so forth. The substitution made, see then, ask yourself, what guide, what check, is furnished by the nonsense thus substituted to useful sense? Why then is legitimacy anywhere the word? Because, owing to intellectual blindness and weakness, absolute monarchy is still established by law in so many more countries than any better form of government is. Why is order the word? Because, while the best government can no more exist without order in some shape or other than the worst, the worst order is as much order as the best. In the worst government, order of some sort is established. Does it follow that it must be good, because it is established? Must everything be good that is established? What is thus said of the body politic, apply it thus to the body natural. Take a man in whose head or stomach the gout is established: take a man in whose bladder a stone is established. Established as it is, does the gout, does the stone, contribute anything to his happiness?
Good is pleasure or exemption from pain: or a cause or instrument of either, considered in so far as it is a cause or instrument of either.
Evil is pain or loss of pleasure; or a cause or instrument of either; considered in so far as it is a cause or instrument of either.
Happiness is the sum of pleasures, deduction made or not made of the sum of pains.
Government is in each community the aggregate of the acts of power exercised therein, by persons in whom the existence of a right to exercise political power is generally recognized. Every act of power, in the exercise of which evil as above is employed, is itself an evil: and, with small exceptions, no otherwise than by such acts can the business of government be carried on. No otherwise than through the instrumentality of punishment can even such parcels of the matter of good as are employed in the way of reward, be in any comparatively considerable proportion, got into the hands by which they are applied.
To warrant the employment of evil, whether in the character of punishment or in any other character, two points require to be made out: 1. That, by means of it, good to a preponderant amount will be produced; 2. That, at any less expense of evil, good in so great a proportion can not be produced.
In every rationale, both these points ought to be constantly kept in view: in the rationale hereby offered, they will be constantly kept in view.
No otherwise than by reference to the greatest-happiness principle, can epithets such as good and evil, or good and bad, be expressive of any quality in the act or other object to which they are applied: say an act of an individual: say an act of government: a law, a measure of government, a system of government, a form of government. But for this reference, all they designate is—the state of mind on the part of him in whose discourse they are employed.
When, and in proportion as, this standard is employed as the standard of reference,—then for the first time, and thenceforward for ever, will the import of those same perpetually employed and primarily important adjuncts, considered as indicative of qualities belonging to the objects they are applied to, be determinate.
The greatest happiness of the greatest number requires, that, of this Rationale, the several parts be placed in the most immediate contact with the several arrangements to which they respectively apply. Rationale, interwoven, not detached.
1. Instances have appeared, in which, in the place of sets of reasons, attached, each set, to a correspondent arrangement taken by itself,—in place of this perpetually interwoven accompaniment,—a general preliminary discourse has been employed, prefixed, the whole of it, to this or that portion of the body of the laws. Forming a body apart, this substitute to sets of separately and contiguously attached reasons, will not, in any tolerable degree, fulfil any one of the purposes above mentioned.
Neither in respect of clearness, of correctness, nor of completeness, will it be able to stand any comparison with them.
Taken together, it will constitute a work, altogether distinct and detached from the work to which it professes to give a support, and of which it professes to make a part.
In the case of no one of the several classes of persons in question—neither in the case of the draughtsman, nor in the case of the subject citizen, nor in the case of the judge, nor in the case of the legislator, will it operate with any considerable effect, towards any of the purposes above enumerated: in particular, neither to the feet of the subject citizen will it be a lamp, nor in the case of the draughtsman, the legislator, or the judge, a bridle to the mouth. In the mind of the reader, losing their appropriate contiguity, the several parts of it will lose their application, if they have any: their application, their import, their binding force, their instructive effect.
2. When the first of the codes established by Buonaparte was first published—(it was the penal code)—attached to it was a sort of accompaniment, in the form above mentioned, viz. that of a separate and preliminary discourse. It was composed of a tissue of vague generalities, floating in the air, in the character of general principles. In that form was it delivered, and not in the form of reasons,—reasons applied, in the discourse, to the several particular arrangements, to which, in each man’s mind, they were respectively meant to apply? In that nebulous form,—and why? Because this rule of action, not having for its main end in view the above-mentioned all-comprehensive and only proper end, the greatest happiness of the greatest number,—not having for its main end any other object than the individual happiness of the individual despot of whose will it was the expression, and from whose power it was to derive its force,—the tenor of it was, from first to last, in numerous points, such, for which no reasons that could bear the light could be given: and it was for this same cause that a clear arrangement, which he knew of, and which had passed under his review, had been actually put aside: yes, contained as it was in a work, his approbation of which had been pointedly declared,* put aside, and an arrangement, which had for its undeniable purpose the organization of an all-comprehensive and appropriate system of confusion, was employed in preference.
The one put aside? Why? Because, having throughout for its object the greatest happiness of the greatest number, it took throughout, for its principle or source of distribution, the manner in which, by the several acts in question, that happiness is effected. The other employed? Why? Because, having for its main object the personal interest of the lawgiver, as above, it had for its principle or source of distribution, the manner in which, in respect of those acts, it was his will, because, in his view of the matter, it was his interest, according to his own conception of his interest, that men should be dealt with. Offences made punishable in the highest degree,—offences made punishable in the next highest degree but one—offences made punishable in the lowest degree: such has been, such continues to be, the classification—the logic—of tyranny and misrule, every where. Look for example to the matchless constitution—the envy and admiration of the world. Would you learn the difference in the nature of different classes of punishable misdeeds? It is from the intimation given of the several masses of punishment attached to them, that you must guess at it as well as you can: this must be your clue; for there is no other. It is from the words treason, unclergyable felony, clergyable felony, premunire, and misdemeanor.
3. Such being the principle of arrangement,—instead of reasons, formed by application of the principle of utility, and making reference throughout to the only legitimate end,—reasons all along particularly apposite to, and placed in contiguity with, the several particular arrangements they were meant to be applied to,—instead of any such really useful accompaniment, came the above-mentioned preliminary discourse: a glittering object, floating in the air, and composed of clouds. Why any such preliminary discourse? Answer: that, in the eyes of the prostrate multitude, a display might be made of extent and profundity of reflection: that where, in comparison of what might have been done, little good was really done, much might be thought to be done.
4. In the newly-erected kingdom of Bavaria—erected under that same ever-selfish, though never needlessly cruel despot’s influence—under that same influence, a penal code, with the same arrangement, and the same sort of accompaniment, was established.†
5. Not many years ago, in a political state not altogether so ample in extent, the above-mentioned natural principle of arrangement having been adopted,—the attaching of a rationale, samples of which lay on the table, was proposed. It was not accepted. For what alleged reason was it that reasons were not to be admitted? For this reason—that reasons are dry things. Gay and amusing in its own nature, a code of law would be divested of those its pleasant qualities, if any such dry matter as that which is composed of reasons were intermixed with it. This gay reason, is it possible that it should have been the real one? Impossible. What, then, could have been the real one? What but this—that, in the place of the sort of matter thus cast out,—those by whom it was cast out having to insert some matter of their own, by which no such test as that of reason, deduced as above from the greatest-happiness principle, could have been endured,—having some object of particular and latent interest—of interest-begotten prejudice—of authority-begotten, or of habit-begotten prejudice or caprice,—to stick in—or something good, to which those powers were adverse, to keep out—thus it was, that against an inmate so inconvenient and troublesome as reason, the door was shut. If any cause that can better bear the light can be found, it were well that it should see the light: if, in the eyes of those by whom this exclusion was effected, it be honourable to them, it were pity the honour should not be reaped by them. Invitation is here given to them to produce their names, and thus to come forth and claim it.
6. To the draughtsman principal in labour and eminence, permission was (it is said) given to give reasons: but these reasons were to be his, and not the legislator’s, and, lest they should be too clear, too closely apposite, too instructive,—they were to put off the garb of particular reasons—they were to be rarefied and sublimated, and confounded as above, into the form of a general preliminary discourse.
In a lately published tract on the Spanish proposed penal code,‡ may be seen the sort of notice taken by the draughtsman in the Cortes, of the demand that (it seems) had on that occasion been made, for something in the nature of a rationale, and the sort of apology by which the giving satisfaction to that demand was evaded. So far as regarded the legislators themselves, assurance was given to them, that every demand of that sort stood completely superseded, by the consummateness of the wisdom of those same legislators: and, as to the rest of the people—of that people for whose benefit the demand for this instrument of elucidation, justification, instruction, and satisfaction, might by some be thought to have place—that people from whom the draughtsman, and those colleagues of his whom he was addressing, derived all the authority they could pretend to—no such objects (it should seem) happened to present themselves to the draughtsman’s view.
Whatsoever cause for regret the omission may in that case have afforded, no just cause of wonder can it afford in any case. The easiest of all literary works, bulk for bulk, is a code of law stark naked: a code altogether bare of reasons in any shape: next to the easiest, a code with no other habiliment than a separate tissue of vague and commonplace generalities, with a gloss of reason on the surface of it. Not only the most important, but the most difficult of all human works, may be safely pronounced, an uniformly apt and all-comprehensive code of law, accompanied with a perpetually-interwoven rationale, drawn from the greatest happiness principle, as above.
The greatest happiness of the greatest number requires, that for the function exercised by the drawing of the original draught of such a code, the competitors he as many as, without reward at the public expense, can be obtained: and so, for that of proposing alterations in such draught as shall have been adopted. Plan for obtaining competitors.
The contents of the preceding sections have for their subject the characteristic nature and plan of the here proposed work.
The contents of this and the succeeding sections have for their subject the choice of hands for the execution of it.
On this occasion, never be it out of mind, that the work in question is—not a body of law in its ultimate state—in that state in which it receives the sanction of the sovereign power:—it is nothing more than the original draught, drawn up in the view of its receiving that sanction as above: of its receiving it indeed—but eventually only: and not till after it has undergone all such alterations as, by any of the several persons among whom respectively the sovereign power in matters of legislation is shared, shall have been proposed,—and, by those whose concurrence is necessary to the application of that sanction, adopted: in a word, by the several authorities in that behalf constituted.
Yes; if, while, from any one or more individuals, an original draught, or any number of such original draughts, were admitted to the exercise of this function, all other persons were excluded from it, or even all persons other than those among whom the power of sanctionment, as above, is shared; Yes: in such a state of things,—were it the state of things here proposed,—true it is, that by the admission given to some, coupled with the exclusion put upon others, not only would a power be created, but the very power which, in consideration of its unnecessary and mischievous magnitude, it is the object of the very arrangement here proposed, to exclude.
On this part of the subject, six principal positions have been the result of the inquiry: in the table of contents they may have been seen at length. They are here recalled to view in brief, each of them in company with a correspondently brief intimation of the principal considerations or reasons by which it was suggested. The first of them, with a development of its reasons, constitutes the matter of the present section: the rest will, in the like manner, occupy the five next succeeding ones.
I. Admission universal.—Competitors, for the function exercised by the furnishing of the original draught, as numerous as possible.
Reasons.—1. Chance, for the greatest possible degree of aptitude on the part of the work, a maximum: to sinister interest, and other causes of inaptitude, on the part of those on whom the quality of the work in its ultimate state depends, the strongest bridle applied that the nature of their situation admits of.
2. School for legislative and other functionaries, thus instituted.
II. Remuneration at an additional public expense, none.—Reason 1. Avoidance of inaptitude, on the part of the work, through patronage and favouritism: also, through precipitation according to one mode of payment; through delay, according to another: delay, ending perhaps in final non-performance.
III. Hands, not more than one.—Reason 1. Avoidance of inaptitude in the work, by reason of moral inaptitude in the workman, through want of responsibility for bad workmanship, and want of encouragement for good. 2. Avoidance of inconsistency: of want of unity of design, and symmetry of execution, as between part and part.
IV. Hands, not only single, but known to be so.—Reason. Else the responsibility and the encouragement deficient.
V. Not only the hand single, and known to be so, but whose it is, known.—Reason. Else the responsibility and the encouragement still deficient.
VI. The hand of a foreigner, not only admissible but preferable.—Reason. Exemption from local sinister interests and prejudices: deficiency in local knowledge being easily amendable by native hands, in the course of the progress of the work, through the constituted authorities.
Note, that in a representative government, the hands ordinarily employed in the providing of the original draught are those of a legislation committee. With the exception of the second point, namely, the gratuitousness of the service, the desirable results, referred to by the above reasons, are, in this case, all of them, either foregone or lessened. Gratuitous in this case the service naturally and commonly is in appearance unquestionably: but to the degree in which it may be otherwise in effect, no bounds can be assigned: in the nature of the case there are no others, than those which apply to the quantity of depredation and oppression, exercisible, in the community in question, by a government over which the people have no more than a nominal controul, compared with that exercisible where the people have a real and efficient controul: a few restraints on the liberty of the press and public discussion may suffice to establish the difference.
These are but faint anticipations. For placing in their full light all these several points, considerable development and explanation will be unavoidable.
1. As to the proposed universality. By it would be instituted a mode of codification, which, for distinction, might be styled the open mode.
The following slight sketch may serve to convey a general conception of it:—
In the name of the constituted authorities, or of the legislative body alone, let invitation be given to all persons without distinction, who, (with the exception of the members of the legislative body during the time of their serving in that capacity,) regarding themselves as competent, may feel inclined to transmit to the legislative body, each of them a general sketch or outline of the proposed original draught of a work of the sort in question: with a sample or samples, of the mode in which it is proposed to execute it, expressed in the words in which it is proposed to stand: to which samples may be added, general indications, on such occasions on which the nature of the case admits not of the taking any determination respecting the individual words.
2. Let intimation be at the same time given, that, in proportion to the aptitude of the work according to the estimate formed of it by public opinion, evidence will be regarded as having been given, of appropriate aptitude on the part of the workman, with relation to many of the most important public offices, to which pecuniary emolument stands already attached.
3. In such sketch, and sample or samples, should be comprehended as well the civil as the penal code: so intimate being the connexion between those two parts, that without a comprehensive and conjunct view of both, no clear, correct, complete, consistent, and well-ordered mode of execution, could be given to either.
4. In the samples and in the general sketch, it may perhaps be found necessary that the constitutional code be omitted: for, so universal and tenacious and craving is the appetite for power, that the idea of any considerable change in this part of the field of legislation affords little promise of being found endurable unless when imposed by force or intimidation.
5. In a representative democracy, there need be no difficulty. In the advertisement for this purpose, the legislative body, however, might probably, without objection, if it saw any use in so doing, lay down as a fundamental and indispensable principle, that, immediately or unimmediately, all functionaries shall be placed, and at short intervals displaceable, by the greatest number of the adult population, or of the male part of the adult population: or rather might give intimation, that for any departure from this principle, some special and convincing train of reasons would be expected to be assigned.
6. For the giving in of these samples, some determinate day, it should seem, would unavoidably be to be fixed. That day arrived, it will then be to be put to the vote which sample shall be preferred; or whether, for want of any satisfactory sample, the time shall be enlarged.
7. Suppose a sample pitched upon. A further day will then be to be assigned, on or before which, a proposed complete code in terminis, embracing these two branches, with such blanks only as the nature of the case necessitates, shall be given in.
8. Though, if samples more than one have been sent in, adoption, if given to any, must be given to some one of them—it is not necessary that any peremptory exclusion should be put upon such complete draughts as any other of the competitors may be disposed to present. This (it may be said) is the sample most approved of. But all other persons are still at liberty to propose, each of them, his draught. It will, on that occasion, then be for each of them to consider—whether a completed draught, in conformity to the pattern most approved of, will not afford him the most promising chance.
9. On this plan, the remuneration—remuneration suited as above to the nature of the case, and of the sort of service rendered—need not, and naturally would not, be confined to the competitor by whose samples, nor in conclusion to the competitor by whose completed draught, the largest share of approbation has been obtained.
10. By the preference thus given in the main to this or that sample, or to this or that draught, the legislative body would not be precluded from giving indication of this or that portion of this or that other draught, as being regarded fit to be employed in the draught most approved.
11. The invitation to send in original samples, and afterwards completed draughts, will, of course, be accompanied or followed by a correspondent invitation to send in observations on, and proposed amendments to, all samples and completed draughts, to which any such acceptance, total or partial, shall have been given as above.
12. Be the number of these patterns ever so considerable, the expense of printing and publishing should be defrayed by government. Were it not for this, the expense might be a bar to the work of the least affluent competitors: and thereby to those, in whom, as such, the habit of intellectual labour, and thence the promise of intellectual, and even of appropriate moral aptitude, is fairest.
13. The produce of the sale might either be applied in alleviation of the expense, or be given to the respective authors. The expense on this score neither promises nor threatens to be very considerable. Be it what it may, so long as, in the whole of the official establishment, so much as a single sinecure, or useless, or needless, or overpaid office is to be found, to this expense no objection can with any consistency be made.
If, in consequence of this plan, any addition were to be made to the number of salaried offices it found in existence, it would be that of a functionary, with some such title as that of Conservator of the laws. Upon the following ground, stands the demand for an office of this nature. Regular and symmetrical would naturally be—would necessarily be, if well executed—the structure of a code, having for its accompaniment a rationale as above. By subsequent additions and alterations—without a degree of skill and care too great to be constantly reckoned upon, on every occasion, and from all legislative hands promiscuously taken—the symmetry would be liable to be injured, and confusion introduced: to obviate this inconvenience, in so far as it can be obviated without prejudice to the uncontrouled exercise of the legislative power, would be the office of this functionary. Before the sanctionment of each law—or when the pressure of the time was regarded as not admitting of the delay, as soon afterwards as might be—to him it would belong to propose for the substance of the new law, a form adapted to the structure of the code. Thereupon, if the form so proposed were adopted by the legislature for the time being, so much the better: if not, it would remain as the subject-matter of a virtual and tacit appeal to succeeding legislatures.
14. Supposing the office here in question established, the author of the draught most approved of seems to be the person, to whom, if expected to be found willing to accept of it, the offer of it would naturally be made.
15. But the choice should be left unfettered. Be the literary composition ever so well penned, fitness for the office would not, on the part of the author, be a necessary consequence. Various are the points of appropriate aptitude, in which, relation had to the business of this office, he might still be deficient. Witness, aptitude in respect of health, assiduity, uncorruptness, firmness, gentleness, quickness in execution, &c.
16. After the completion of the code, it might not improbably be a considerable time, before the need of the offer thus described would manifest itself.
Reasons for the above described open mode.
They are constituted by the advantages, which, with reference to the greatest happiness of the greatest number, would be the result of it.
1.—Reason 1. The chances, in favour of the aptest possible draught, rendered the greatest possible. The more draughts sent in, the more will there be for those to choose out of, to whom it belongs to choose.
2.—Reason 2. The greater the number of draughts sent in, the greater the number of those, out of which, portions might, upon occasion, be selected for the amendment of that one, whichsoever it were, that shall have been chosen to serve as the principal basis of the completed work.
3.—Reason 3. Advantages derivable from the school that would thus be established, for functionaries in the legislative departments.
4.—Reason 4. Advantages from the school thus established, as applied to the case of functionaries in the judiciary and administrative departments.
Masters in these schools, the authors of the proposed codes: scholars, the readers of these same codes. Note, that in this branch of art and science, as in every other, the pleasantest and most effectual mode of learning is by teaching;—by teaching, or at least endeavouring to teach.
By the reading of books and articles in periodical works, on subjects belonging to this or that small spot in the field of legislation—by reading in this way, with or without the hearing of speeches, are statesmen formed at present. But from such scattered and casually visited springs, what is the greatest quantity of information capable of being derived, in comparison of all those several floods, by each of which the whole field of legislation and government will be covered?
True it is, that, in regard to offices belonging to the judicial department, the same observation applies to these as that which has just been applied to the proposed future contingent office of conservator of the laws. By no degree of aptitude, be it ever so high, on the part of any such legislative draught, can any absolutely conclusive evidence be given, of aptitude on the part of the author, with relation to any of these certainly and constantly indispensable offices. Witness, in addition to the elements of aptitude instanced in that case, fluency in speech.
So likewise in regard to offices belonging to the several branches of the administrative department. Further exemplification will not here be necessary.
Still, as far as it goes, still even with reference to every such office, what can scarcely fail to have a place is—that by the authorship of an intellectual work, so matchless in difficulty as well as importance—in the extent of knowledge as well as correctness of judgment necessary,—evidence of appropriate aptitude—evidence in a pre-eminent degree probative—will have been exhibited—exhibited by a no inconsiderable proportion of the whole number of competitors.
1.—Objection 1. Fruitless the invitation: none will be found to accept it.
Answer. The objection has been anticipated. What!—is money of no value?—is power of no value? The highest of all bloodless glories, is that too of no value? Vain would it be to say—despair of success will drive men from so arduous a work. Not it indeed. In each man’s eyes, success will depend—not on absolute, but on comparative aptitude.
But, suppose no such work sent in, where is the evil? Absolutely none. On the contrary, there is this positive good: evidence given to the subject many—evidence, and that of the most conclusive kind—of sincerity on the part of their rulers, in respect of the sacrifice thus made of so large a portion of power to the universal interest.
2.—Objection 2. The press would be inundated and overloaded; public money would be wasted in the publication of so many voluminous compositions; public time wasted in the consideration of them.
Answer. Strange indeed it would be, if the objection were not completely anticipated by the two great political schools—by the school for legislative functionaries, and the school for executive functionaries, as above. For any the most trifling branch of art and science, in what instance was any the most inconsiderable school ever established by the government of a country at so small an expense?
3.—Objection 3. An innovation this: unprecedented this open mode of legislation.
Answer. True, in point of fact: but what is the application of it in point of argument? Unprecedented it must be confessed is this open mode, on the part of men whose station is in that place from whence it is proposed that the invitation should come. Unprecedented: but why? Only because, in breasts so stationed, pre-eminent regard for the greatest happiness of the greatest number, in preference to all particular and thence sinister interests, is unprecedented.
4.—Objection 4. By the adoption of this open mode, the two situations of representatives and constituents would be confounded: the power that had been transferred, would thus be given back.
Answer. What if it were—what if, for the purpose of passing condemnation, a word to which a dyslogistic sense stands associated, such as the word confusion, could, without impropriety, be applied? Suppose not only these but all other situations confounded, where would be the evil, if, by such confusion, the greatest happiness of the greatest number would be increased?
Not that there is any such thing as confusion in the case. True it is—that, by every exercise given to the legislative function, a power is exercised: for, of this function, the exercise is confined to a comparatively small number, all others being excluded from it: to that function, therefore, power is effectually attached. But, by the very supposition, from the exercise of the function here proposed to be laid open to every man, no man is excluded. Here, therefore, no power has place. True it is, what is proposed is—that a service be performed: a service which, if well performed, will be the most beneficial, as well as the most difficult, of all services: but still, by the performance of it, though it were by ever so great a multitude, not an atom of power would be exercised.
Reasons for not giving to members of the legislative body the exclusive faculty of furnishing original draughts:—of furnishing them in this extraordinary case, as has been hitherto everywhere the practice in all ordinary cases.
1.—Reason 1. They have no time applicable to it.
The composition of a body of law,—which is to be at the same time all-comprehensive, and on every point, by means of a perpetually interwoven rationale, justified and explained,—presents of itself an irresistible demand for the whole quantity of applicable time, at the disposal of whatsoever individual may be engaged in it: if so, then, in the case of every individual possessing any share in the aggregate of legislative power, if any part of his time be employed upon this work, the consequence is—that either the ordinary function called, or liable to be called, continually into exercise by the exigencies of the day, or else this extraordinary function, or both the one and the other, will of necessity be neglected.
In the practical result of this reason, is comprised (it may be observed) an exclusion put upon the members of the legislative body, as to the function of drawing up any such draught. It applies not however to the persons—this exclusion:—it applies only to the time: and as to time, it applies not to any portion other than that which, by their engagement, stands appropriated to the ordinary duties of such their situation. It applies not to the exclusion of any draught already prepared by any member, antecedently to the day on which the all-comprehensive invitation shall have been resolved upon: it applies not to any portion of time subsequent to that, during which his exercise of those same ordinary functions is continued: it is therefore no bar to his entering, immediately after such invitation, upon the task of penning such a draught, provided that on that occasion he vacates his seat.
Objection to the above temporary exclusion. Presence of the author necessary for explanation and justification. What (it may be asked) must be the condition of any such original draught, if the author, of whose views it is the expression, is not, at the time of its being on the carpet, enabled by his presence to supply such explanations and justifications as may be requisite for the support of it?
Answer 1. To the case of an original draught of the ordinary kind—of a draught containing nothing but an assemblage of expressions of will, without anything whatever in the shape of reason for the justification or explanation of it,—true it is, this objection would apply with no inconsiderable force. But, in the case of an original draught of the sort here in question, an instrument of explanation and justification is by the supposition always present: and this too in a form beyond comparison more apt than any that could be given to a set of impromptuary and orally delivered observations: more apt, namely, in clearness, correctness, completeness, conciseness, compactness, methodicalness, consistency (meaning, exemption from inconsistency): naturally, not to say necessarily, more apt, and that to an indefinite degree.
2. The original draught, whatever it be, being given in, the having composed it is no bar to the author’s being a member of the assembly in which it is the subject of discussion.
In truth, supposing him not to be a member, he might throughout the discussion be present, with the faculty of giving his assistance to both those purposes. Nothing more natural, because nothing more obviously useful, and as it should seem unexceptionable. His not having the power of a member, is no reason why the assembly, and through the assembly the nation, should not have the faculty of receiving from him this service.
2.—Reason 2. By the competition thus proposed, a bridle will be applied to the power of the constituted authorities: a bridle, and that an unexceptionable and indispensable one.
The need of this tutelary instrument has for its cause the influence of sinister interest: that particular interest, by which, in case of competition, and to the extent of the competition, every individual is prompted to make sacrifice of the happiness of all besides to his own individual happiness: in every situation every individual prompted, and, in every political situation, in proportion to the power and influence attached to that situation, enabled, to make this sacrifice: say the sinister sacrifice.
Behold now what this bridle is, and how it is that, by the unlimited number of original draughts let in by the proposed open mode, it is applied. By the supposition, each draught comes provided with its rationale; and true it is that, by that same rationale, as above mentioned, a bridle is applied, nor that an inefficient one: applied, namely to the mouth of the author of that same draught. Small, however, will be the utmost tutelary force of that one bridle, compared with that which may be applied by the aggregate of all the several draughts, with their respective rationales, to which, in a number altogether indefinite, it is the object of the here-proposed arrangement to give birth. The bridle which, in this shape, each man makes for his own mouth, will of course be as light and soft as he thinks he can venture to make it. Let any one therefore judge, how inadequate the force of this one check, and that applied by so partial a hand, cannot but be, when compared with the united force of all those instruments of salutary controul which, in an indefinite number, he sees about to be applied: applied by so many different hands, preserved, all of them, by the very nature of the case, from all partiality in his favour: instruments, which though not made, any of them, for his mouth in particular, will not be the less effective.
Of this composite bridle, the tutelary force will apply itself successively to both situations: in the first instance, to that of the framers of the several original draughts, on which the several members of the legislature are to sit as judges, and when it has produced its effect in that quarter, then to the situation of members: to the legislators themselves, when occupied respectively in the formation of their several judgments, and in the consideration of the line of conduct to be pursued by them in consequence. In the case of each individual draughtsman, the controul has for its cause, the anticipated view of the body of information, that may come to have been furnished by the several rationalized codes sent in by his competitors: in the case of the legislator, it is the actual view of them when sent in. When the collection of them has been completed, each member of the legislature, according to the measure of his zeal and industry, will of course compare them with one another in his own mind, and out of such of them as appear to him worthy his attention, he will form for himself the substance of a new draught, composed of whatsoever arrangements have obtained his preference. In this new draught, in what way soever the component parts of it may have been put together,—whether in the letter-press or only in his own mind,—the rationale will be the standard of comparison, by which the text of each arrangement, in each several draught, will be judged of by him: and, of the correspondent portions of text, will be composed the aggregate of the several arrangements, to which his duty will be calling upon him for his support. Moreover in this same aggregate, each private individual, whose attention is applied to the subject, will see the ground of whatever judgment he puts himself in a way to pronounce—whether in the general character of member of the tribunal of public opinion, or in the particular character of constituent, on the conduct of his representative, on the occasion of the judgment passed by him on the subject of the work, in the aptitude of which the whole nation has so deep an interest.
Reader, be not alarmed by the idea of the possible immensity of the supposed aggregate. The state of things, which in an eminent degree seems probable, is—that, be the number of the draughts what it may, of some one of them—the most apt upon the whole—the consistency will be such, that if it be employed in any part, it will be employed, almost to the exclusion of all others; and that the only use made of these others, will be the deriving from this and that one of them, an amendment for this or that particular imperfection, that may have been observed in the fundamental work.
A pattern of this sort being in every man’s view—a literary composition, of which, in every part, the component words stand determined—conceive now the advantage, with which, in his capacity of censor, every citizen will be enabled to act, while calling to account this or that member of the legislative body, in respect of the code, or any part of the code, to which his concurrence has been given:—“Behold this and this unfit arrangement in the draught that has your support—to arrangements, the unfitness of which stands demonstrated in the portion you see of the rationale belonging to this other draught. Behold the draught, in which are this and this fit arrangement, which, in your draught, though in the corresponding parts of its rationale their fitness stands so conclusively demonstrated, are not to be found! With the so much better lying before you, wherefore is it that you have given preference to the worse? For such preference, what justification, what apology, can you produce?” Of this nature are the questions, by the fear of which the bridle is applied.
Compared with a judgment formed with such a pattern for its ground,—how vague and ungrounded must be the best grounded judgment, which, in relation to the subject matter in question, can be formed!—formed, even by the best constructed mind in the present state of things! Neither for approbation, nor thence for disapprobation, is anything, approaching, though at ever so wide a distance, to a determinate ground, to be found anywhere, by any man: nothing better than the ever indeterminate, and ever changing, as well as ever inadequate, stock of such crude, incorrect, incomplete, mutually and perpetually discordant conceptions, as may be found extractible from the existing stock of literary matter, belonging to the several departments of legislation and government: with or without the addition of such information and advice, as it may happen to him to have obtained from this or that other man, whose conceptions and judgment have been derived from the same muddy source: both judgments all the while exposed, and without warning, to the delusive influence of all those fallacies, and other instruments of delusion, with which the whole field of government is, in every portion of it, so abundantly infested.
Deteriorated rather than improved, is this fluctuating standard, this ever changing pattern, by such flashes of eloquence, addressed so much more frequently to the passions than to the judgment—those momentary lights, of which orally delivered speeches are in so large a proportion almost unavoidably composed. The greatest-happiness principle, with its mild and steady radiance, will be an extinguisher to all such false lights.
Antecedently to the formation of the sort of pattern here described,—in forming a judgment in relation to what on this or that part of the field the law ought to be, the condition men’s minds are in, is analogous to that in which, on so large a portion of that field, they are, in relation to what the law is: namely, on that portion of it which is under the dominion of that spurious and fictitious substitute to really-existing law—that fictitious offspring of each man’s imagination—so improperly though generally designated by the name of unwritten or common law.
Not only to any representative of the people may questions, with this ground to them, be addressed, but to any other sharer in legislative power, whose situation is accessible: not only to the situation of representative of the people does the corresponding bridle apply, but to that of any servant of the monarch in the situation of minister: of minister:—for, as to the fleshly idol of which the minister is the priest, deafness as well as dumbness are of the number of his attributes.
Not only by a constituent, to a candidate for the situation of representative, on the occasion of an election,—but by any individual whatever, and on every occasion, so his situation be but an accessible one, may the sort of questions above exemplified, searching as they are, be addressed.
If appropriate moral aptitude in perfection, seconded by appropriate intellectual and active aptitude in correspondent perfection—if consummate wisdom and consummate talent under the guidance of consummate virtue, be not among the never-failing accompaniments of power—if, in a word, for the security of the subject many, a bridle in any shape to the power of the ruling few, be needful,—a softer and less galling bridle than the one here proposed—a softer and less galling one, whatsoever may be its efficiency—cannot easily be imagined. Whatsoever be the constitution it finds established, not any the slightest change would it produce or so much as hint at.
Even under a pure monarchy, if in such a government a bridle in any shape, applied to the mouth of the earthly representative of the Divinity, in any part of the field of his dominion, could be endurable,—a bridle in this shape might, not impossibly, be endured. In the penal and the civil portion of the field, it would be so, if in any. As to the constitutional portion, on which, under this form of government, nothing reasonable can be said in support of anything that has place,—on which, darkness, silence, and motionless prostration on the one part are the indispensable means of security on the other,—on this domain, the touch of a feather in the shape of a bridle would be intolerable: the more efficiently contributory an arrangement were demonstrated to be to the greatest happiness of the greatest number, the more intolerable would the sight of it be to the supremely ruling one, with his sub-ruling few.
Discarding now all these flattering suppositions,—take in hand the sad case, which as yet has at all times and everywhere been in this respect the only real one. Proposed code, none visible, but the one, whatever it be, which has had the seat of power—of irresistible power—for its birthplace. Out from it comes the draught,—and in every part of the field, be its inaptitude ever so portentous, this it is that must have the stamp of authority upon it—this or none. All better ones have been kept out of existence.
Would any man wish to see in how high a degree inimical to the greatest happiness of the greatest number, a proposed code is capable of manifesting itself?—of manifesting itself, after all the lights, which, down to the present time, have been spread over the field of its dominion?—let him turn to the work, with which, in the character of a penal code, Spain, while this page is penning, is still menaced.
The greatest happiness of the greatest number requires—that, for the drawing of any such draught, no reward at the public expense be given. At additional expense, reward none.
Of the above-described unexpensive plan, the advantages cannot be more clearly brought to view, than by bringing to view the several detrimental effects, produced or liable to be produced, by the expensive one.
In this as in other instances, where service is proposed to be called for, in behalf of the public, at the hands of individuals,—a natural enough conception is—that, by factitious reward, allotted to the purpose at the public expense, a proportionable degree of aptitude may probably be obtained for the work: a degree greater than could otherwise be obtained for it: insomuch that the higher the reward, the greater is the probability of the highest possible degree of aptitude.
On an attentive examination, so far will this be from being found to be the case, that by, and even in the direct proportion of the magnitude of such factitious reward, will the probability of the highest possible degree of aptitude be seen to be diminished.
From any such factitious reward, the following are in detail the evil effects that will be seen to be the result: effects either as detrimental to the degree of aptitude in relation to the work in question, or as productive of evil in this or that other shape:—
1.—Evil 1. The effect of the reward is—to give birth to so much expense: and it will immediately be seen, that this expense is not merely useless, but worse than useless. Say, Expense wasted.
2.—Evil 2. The tendency of the reward is to lessen, instead of increasing, the number of apt competitors: thence the probability of the highest degree of aptitude is lessened instead of increased. Say, Number of competitors lessened.
3.—Evil 3. The tendency of the reward is—to place the work in hands less apt, instead of more apt, than those in which it otherwise would have been placed. Say, Less, not more apt hands,—the result.
4.—Evil 4. The tendency of the reward is—to produce precipitate execution, thence comparative inaptitude, or else extra-delay, up to ultimate non-performance, according to the mode of payment in respect of time. Say, Precipitation, or else delay up to non-performance, the result.
5.—Evil 5. The effect of the reward is—to deprive the public of the benefit of all such works as, how useful soever, would not in point of extent be adequate to the desired purpose. Say, Useful, though not adequately extensive, performances, excluded.
6.—Evil 6. The effect of the factitious reward is—to lessen the number of the instances, in which, by the natural reward alone, proofs of aptitude for political service in various shapes would be brought to view. Say, Legislation school narrowed.
Now for a few explanations:—
Evil 1. Expense wasted.—True it is—that if, by increase of remuneration, any reasonable promise of a corresponding increase of aptitude were afforded,—the highest reward, that could with any chance of success be proposed, could not be too great. But, whether any such promise could be afforded may now be seen.
Evil 2. Number of competitors lessened.—It will be lessened by the non-appearance of all such otherwise apt competitors as by the apprehension of the want of interest (in the English phrase) of the want of protection (in the French phrase)—in a word, of the want of appropriate favour in the eves of those on whom the choice depends, will be deterred from entering the list.
By the introduction of factitious reward in the shape in question, the case would be rendered a case of patronage: of patronage, in the hands of the person or persons, on whom the choice of the individual or individuals to whom the service, with its reward, shall be allotted, depends. As to patrons, and their number,—they may be many, few, or one: the whole legislative assembly, for example, a legislative committee of the assembly, a council of ministers, the president of the legislation committee, or the minister of justice. With respect to the result in question, no one of these diversifications will make any considerable difference. In the eyes of every person in the situation of patron—in the eyes of every person in the situation of protegé,—the reward will, in the ordinary course of things, be at the least the principal object; the service, if an object at all, at the utmost a subordinate one. But, the greater the reward, the greater in all these several eyes will be the ratio of its importance to that of the service: the greater the reward, the less therefore will be the chance the service has of being in the highest degree well performed.
Evil 3. Less, not more apt, hands,—the result.—Unless any adequate reason can be shown to the contrary, the chance in favour of the best possible workmanship will of course be diminished by every diminution in the number of the candidates: and, the number of the candidates being (suppose) the same, the chance in favour of the best possible workmanship will again be diminished, by every diminution that can be shown to be effected, in the aggregate aptitude of all the candidates. But, for a work of the sort in question, the probability in favour of aptitude on the part of the workmen is rather diminished than increased, by that felicity of connexion, of which, as above, interest in the English sense, protection in the French sense, is the natural result. For superior aptitude in this line, the most intense and persevering habit of scrutiny and reflection, with a correspondent and adequate stock of information for the subject-matter of it, is not too much: and such habit is more likely to be persevered in, such stock more likely to be laid in, by one who, as the phrase is, has mixed little with the world—in the high world—in the aristocratical world in all its several orbs,—than by one who has mixed much. A person not known to the patron, whoever he be, cannot be an object of his choice: of those who are known to him, he who in his eyes is the most agreeable object, stands a better chance of experiencing his support, than he who, even in those same eyes, is in the highest degree possessed of appropriate aptitude, with relation to any such dry work.
True it is—that, to the apt composition of a work, by which the condition of all classes from the lowest to the highest is undertaken to be disposed of, while for its success it depends upon the state of the human mind in all those several classes,—opportunities for the observation of it should not, in the instance of any of them, have been altogether wanting. But, for this purpose, a slight intercourse will, in each instance, be sufficient: slight is the intercourse that will be sufficient to convince an attentive observer, that, where literary culture, intellectual and moral, has not been altogether wanting or deplorably misapplied, the degree of regard for the greatest happiness of the greatest number is rather in the inverse than in the direct ratio of a man’s elevation in the conjunct scales of opulence, power, and factitious dignity. The less the need a man feels of the good will of others, the less solicitous will be his endeavours to possess it, and, that he may possess it, to deserve it.
Evil 4. Precipitation or else delay, up to non-performance, a natural result.—Of precipitation, the effect as applied to the case in question is, as the term in a manner supposes, on the part of the work, inferiority of aptitude. In the instance of the most apt workman, the time allotted for the work not being sufficient for the purpose of giving to it so high a degree of aptitude as it would otherwise have possessed, aptitude in the work will, in a correspondent degree, be diminished.
If unnecessary delay has place, and in proportion as it has place—i. e. if the time allotted for the completion of the work, and thence for the receipt of the reward, is greater than what is necessary for giving to it its best chance for possessing the highest degree of aptitude—the difference, between the length of time appointed and the length of time that would have been sufficient, gives the length of time, during which the advantages resulting from the work fail of having place: which is as much as to say—the evils, that have place in the as yet existing state of things, continue unremoved.
If, in his view of the matter, the interest of the workman requires, that the work be performed with precipitation, with precipitation it will of course be performed: and from precipitation comes, as above, proportionable inaptitude.
If, in his view of the matter, the interest of the workman requires, that the task be performed with delay, with delay it will of course be performed: and if, in his view of the matter, his interest requires that it be not ever completed by him at any time, it will not ever be completed by him at any time.
Of these several cases, no one is altogether an imaginary one: of the one last mentioned, an exemplification will presently be brought to view: and by this one, exemplification in the case of the two others will be rendered unnecessary.
Had factitious reward in this case been regarded as necessary, and accordingly recommended,—a task that might here have been called for, is the showing by what course both these rocks might be avoided: and, for this purpose, the several possible modes of connexion, between reward and service, with reference to time, might have required to be brought to view in full detail. As it is, nothing more belongs to the purpose than what is necessary to the giving of a tolerably distinct conception, of the advantage in this respect possessed by the gratuitous, as compared with the stipendiary mode.
For exemplification, here follow a few of the most obvious modes, with the attendant evils:—
Mode 1. Payment none, till the service has been completed; and a time fixed, within which, on pain of non-payment, it must have been completed: Evil, actual or probable, precipitation; thence, on the part of the work, correspondent inferiority in the scale of aptitude.
Mode 2. Payment none till the service has been completed; but no such time for it fixed: Evil, actual or probable, precipitation, with inferiority as above.
Mode 3. Payment, the whole at once, made or (what comes to the same thing) secured, before any portion of the service has been rendered: Evil, actual or probable, delay; ending or not ending in ultimate non-performance, partial or total.
Mode 4. Payment going on while the service is rendering, or supposed to be rendering: Evil, delay, ending or not ending in non-performance, as above.
Mode 5. Payment, part of it made in a mass, beforehand, as above; other part in instalments, as last mentioned: as in the case of a pension, for a time fixed or not fixed, limited or not limited: Evil, delay, ending or not ending in non-performance, as above.
For illustration of all these several imaginary modifications, a single actually exemplified one may, it is believed, suffice.
Before me lies the unpublished, and even undenominated, yet assuredly authentic, plan of a still-existing official establishment for the production of an all-comprehensive code. State, Russia; year, 1804: aggregate annual amount of salaries, roubles of that time 100,000: pounds sterling, say 10,000: this, exclusive of the salaries of two master men, by one of whom auspices were furnished, by the other, labour, or the appearance of it: crowning salaries, over which, probably in consideration of their enormity and disproportionateness, a veil of secresy is spread. Of each salary, the whole, secured to each workman or alleged workman, so long as the work remained unfinished: the work finished, to each possessor an indeterminate chance for the continuance of a part, possibly even the whole of it. (See in page 33, article 16.) Such the adjustment of means to ends. Date, 4th of February 1804. In August 1821, no such code as yet, either in whole or in part: interval, 17½ years: exclusive of the unknown additions, money expended, unless engagements have been violated, £170,000.
Suppose all such factitious reward out of the question, none employed but in the natural and unexpensive shape, proposed in the last preceding section, danger is, in all the several above-mentioned shapes, either excluded, or at least lessened. A time (suppose) is fixed: nor can such fixation be easily avoided. Each competitor, if, to his own satisfaction, he is able, will complete his work by the time. But, if not in this degree able, he will not on that account give up the pursuit: he will either send in his work, although it be in what to him appears an incomplete or otherwise imperfected state, and thus take his chance for acceptance in the first instance; or, leaving it to others to send in their works by the time, send in his own afterwards, in the hope of its presenting matter capable of being employed in the way of amendment to whatever draught shall have received the stamp of authority. In either case, appropriate aptitude, in whatsoever shape and degree possessed by him, will have been displayed: and, with or without the honour of being aggregated to the body of the law, the produce of his labour will serve as evidence of his aptitude for official situation, in this or that other and more tangibly profitable shape.
Evil 5. Useful, though not adequately extensive, performance excluded.—The evil that presents itself in this shape has just been brought to view.
Evil 6. Legislation school narrowed.—In whatsoever shape and degree appropriate aptitude, with reference to the sort of work in question, may have been displayed, the demand for fresh exertions in the same line can never be altogether made to cease. Not even with reference to the time, be it what it may, at which it has received the stamp of authority, will any draught, either in universal opinion or in its own nature, possess the attribute of absolute perfection: and, even supposing it possessed of that super-human attribute with reference to that moment of time, fresh times, with correspondent states of things, will continually be presenting more or less demand for change. Such will be the case, perhaps, as long as, in any community whatsoever, the species continues in existence. But at the present moment, at how vast a distance, in the best organized community, is the state of things from that ideal point!
In respect of form, including method and expression, absolute exemption from all need of change is not by any means so completely ideal as in respect of substance. In respect of method, there will be seen to exist in this case, in the line of aptitude, a point at which the problem of the highest degree of that quality will have been solved: solved, in such sort, that whatever shall from time to time come to be the changes made in respect of substance, no further advantage remains to be obtained from change in respect of method. Even in regard to expression—expression given to the substance, such as it is at the time in question—this point may not be absolutely unattainable, though the time of its attainment will not arrive so speedily in this case as in the other. But, as substance changes, expression undergoes of necessity a correspondent change. Meantime, in regard to such men as from time to time shall have succeeded in obtaining this or that change in respect of substance, the nature of the case admits not of any sufficient assurance that they will all of them be at all times willing, and at the same time able, to give to the new matter a mode of expression, or even a method, corresponding in every point with that which it found in existence.
Here, then, comes the demand for the sort of scientific skill alluded to in the last section: and to a supply of this skill, the legislation school herein described would give commencement; and, after commencement, continuance: but, to the establishment of this legislation school, the perfectly open competition above described has been shown to be necessary.
Supposing these objections to the remuneration plan well-grounded and conclusive, in no state of things can they be useless: in no state of things can a plausible demand for inducement in this shape be altogether wanting. For example, take the case of a legislation committee. By no such body (it may indeed be said,) nor by any member of it, can remuneration in any shape be expected or received: to no such portion of itself could the legislative body at large propose to make any such allowance. True. But if a rationale is to enter into the composition of the work, it has been seen how plainly impossible it is that this extraordinary business should, by any man or men in that situation, be carrying on at the same time with their part in the ordinary business: always remembered that the time within which it must be completed by them stands limited to two years: that being the utmost time anywhere allotted for the continuance of their authority. This being supposed,—then, if the work is to be executed at all, comes the necessity of turning it over to other hands. Thereupon, in a manner altogether natural, comes in the proposal of a remuneration. Custom and shame would have concurred in forbidding the offering any such boon to their own hands; but, this being a public service, custom would seem to require, and shame would not forbid, their offering it to other hands. Hereupon comes the necessary question, as above—in what patronizing hands shall the choice of the operative hands be lodged? and, let the answer take what shape it may, then come the evil consequences that have been brought to view. Patronizing hands—say, those of the legislation committee—say, those of the legislative body at large—say, those of the chief of the state: in a monarchy, the monarch’s; in a representative commonwealth, the president’s: time of payment, in the whole or in part—say, antecedent to the commencement of the service—say, concomitant with the service—say, posterior to the conclusion of the service: under no one of all these modifications will the result stand clear of the evils above specified.
The greatest happiness of the greatest number requires—that every draught, so given in, be, from beginning to end, if possible, the work of a single hand. Hands not more than one.
On a nearer inspection, this position will be found composed of two distinguishable ones: two, which, standing on different grounds, will, at the outset, require to be distinguished. One is—that each part, considered by itself, should be the work of not more than one hand: the other is—that, whatsoever be the number of the parts, they should be, all of them, if possible, the work of that same single hand.
In regard to each part taken by itself,—the ground on which the position stands is—that of moral aptitude: two, or any greater number of workmen, will not be so effectually disposed to take the greatest happiness of the greatest number for the object of the work, as any single one of them would: comparative want of appropriate probity is the cause of the inferiority in this case. In regard to the several parts taken together,—the ground on which the position stands is—that of intellectual and active aptitude: two, or any greater number of workmen, all equal in good intention and skill as above, but taking each one of them a different part of the work, will not render it so well adapted to that same end as any one of them would, supposing him to execute the whole. Want of consistency in the workmanship, is the cause of the inferiority in this case.
I. In the case of each part, taken by itself, let us now see in what manner appropriate moral aptitude on the part of the workman, and thence aptitude on the part of the work, as far as depends upon such aptitude on the part of the workman, are affected by the number of the hands.
Upon the efficiency of the inducements, whatever they are, by which the workman is prompted to render his work as highly contributory as possible to the greatest happiness of the greatest number, in despite of all temptation offered by sinister interest in all its several shapes,—will depend, so far as depends upon moral aptitude on his part, the degree in which the work will be contributory to that same all-comprehensive and only justifiable end. But, it is by the power of the popular or moral sanction, as applied by the tribunal of public opinion, that these inducements, whatever they may amount to, have to be applied. In the case of this, as of every other sanction, it is of the anticipation, either of eventual evil having the effect of punishment, or of eventual good having the effect of reward, or of both together, that the inducement will consist.*
Let us first see the effect of multiplicity in this case, in diminishing the power of the tribunal of public opinion, in so far as depends upon the influence of evil having the effect of punishment; diminishing, in a word, the degree and the efficiency of responsibility.
1. The greater the number of the workmen concerned in the work, the greater is the difficulty of knowing, in case of bad workmanship, who are to blame, and which is most to blame.
Say even that the number is no greater than two: still, in regard to blame, everything is in the dark: in regard to each distinguishable part, by which of them it was brought forward: from which of them it received the most strenuous support: in the giving support to it, what were the arguments—what the other means, if any, that were employed.
2. The greater the number, on whom, on this as on any other occasion, disapprobation falls, the lighter it falls and sits on each. It keeps floating as it were in the air, not knowing where to settle; and no sooner does it attempt to alight on any one, than, like a shuttlecock, it is driven back again, or driven on against another.
3. The greater the number of the workmen, the more ample and efficient is the aggregate of the support which the unapt work will be apt to receive everywhere, in the legislative body, and even in the nation at large, notwithstanding its inaptitude. For, the greater the number of the workmen, the more extensive will be the aggregate of their several connexions; and, the more extensive as well as the more influential those connexions are, the more efficient will be the support which they will afford.
The reputation of the bad workmen will be supported by them and their connexions for the sake of them and their connexions: and for the sake of their reputation, the reputation of the bad work will be supported. For a protection to particular arrangements inimical to the interest of the greatest number, rules of judging inimical to that interest will be devised and circulated. Also, for the sake of ulterior bad arrangements, bad principles—the fruitful seed of such bad fruit. Everything that is most inimical to the greatest happiness of the greatest number, does it not find in one single word, legitimacy, one of its most efficient supports?
Of the tribunal of public opinion, there may be seen in every country two sections: the democratical, and the aristocratical. In each section, the judgments of the tribunal are of necessity determined by the interest of the judges: by what are, or if there be any difference, by what are supposed by them to be, their interests. In relation to every such work, and the conduct of the workman or workmen on the occasion of it,—the judgments of the democratical section of this same tribunal will be more or less favourable or unfavourable, according as that same work and that same conduct are regarded as being more or less contributory or detrimental to the greatest happiness of the greatest number: of the aristocratical section of that same tribunal, the judgments will, in relation to that same work and that same conduct, be more or less favourable or unfavourable, according as they are respectively regarded as being contributory or detrimental to the greatest happiness of the ruling and influential few, whatsoever may become of the happiness of the subject many—the altogether uninfluential or less influential many. To the aristocratical section of this same tribunal can scarce fail to belong, in the case of the sort of work here in question, whatsoever workmen are occupied in the composition of the work. The greater the number of these same workmen, the more efficient therefore is the support, which, in the legislative body, a draught drawn by such hands is likely to receive—to receive, in whatsoever degree it may have been rendered unapt with reference to the greatest happiness of the subject many, by attention paid to the particular and sinister interest of the ruling and influential few.*
Thus much as to the influence of a multiplicity of workmen, in diminishing the efficiency of the punitory power of the tribunal of public opinion, as operating towards the suppression of bad works. Now as to its influence in diminishing the efficiency of the remuneratory power of that same tribunal, as contributing by its general influence to the production of good works:—
1. In regard to the whole—the general complexion of it being by the supposition meritorious—in regard to each several arrangement contained in it, the greater the number of the workmen, the greater will be the difficulty, in distinguishing from those, if any, to which no share, those to which some share of the honour is due; and, among these, in distinguishing to whom the greatest share is due.
2. The greater the number of the workmen, the less the share which each one of them has in the aggregate mass of the honour bestowed upon the work. On him to whom it is indebted for the greater part or even the whole of the aptitude displayed by it, it may happen that no more honour shall be bestowed, than upon him to whom it is not indebted for any more than the smallest part, or than upon him to whom it is not indebted for any part. From him whose share in the merit is greatest, more or less of the honour may thus be drawn away, by the others and their connexions. In its endeavour to fix upon the proper person, and in the proper proportion,—honour, from causes correspondent and opposite, will find as much difficulty in this case, as dishonour in the opposite case. Number of colleagues, suppose five: parts taken by them, suppose undistinguishable. Here, then, he who had most of the merit, or even the whole of it, may, instead of the whole of the honour, have no more than a fifth part of it.
Thus, by means of the multiplicity of the hands, will the probability of the ultimate adoption of the most apt work be diminished, as it were, at both ends: diminished by the conjunct operation of the two opposite moral forces: of the inducements to bad workmanship, the force will be increased—of the inducements to good workmanship, the force will be diminished.
Another circumstance there is—by which, more particularly in a case such as the present, by and in proportion to the number of the working hands, the probability of bad workmanship, and the probable badness of it, are increased. So many workmen, so many individuals, by each of whom a particular sinister interest of his own may be possessed; and, in the texture of so vast a whole,—arrangements, indefinite in number, extent, and importance, inserted: inserted, under favour of that exclusory initiative, which would be done away by the above proposed open mode. On this as on every other occasion, each particular interest will of course be using its endeavours to make provision for itself, at the expense of all opposing interests. The interests, which each of these workmen will find standing in collision with and in opposition to his own, are the universal interest, and the several particular interests of his several colleagues. Of his own particular interest, or that of any particular connexion of his, no one of them all will willingly consent to make sacrifice: if at all, not without a degree of reluctance proportioned to his conception of the importance of the sacrifice: at the same time, in regard to sacrifice of the universal interest, scarcely in the breast of any of them will the degree of reluctance, if any, be so great. Why? Because, in the close situation here in question, independent of public opinion every one of them is; no one is so of any of his colleagues: thus circumstanced, his own interest no one will sacrifice to the rest; the public interest, every one. As to proportions, true it is—that, in respect of influence, wheresoever operating—whether within doors or without—whatever be the number of these collaborators, no such assurance as that of an exact equality can have place. Power, opulence, talent, reputation—in every one of these may be seen an efficient cause of influence: and in regard to each of these, in how ample a scale gradations may have place, is sufficiently manifest. But, in a small knot of men, each of them so circumstanced, that for an indefinite length of time it may be in his power at every turn to stop the course of the rest, another instrument of influence there is, and that is pertinacity:—in the language of those by whom, on the occasion in question, the exercise given to it is not approved—obstinacy: an instrument, the influence of which is capable of being full as great as that of any of the four others: but, proportioned to pertinacity on the part of one individual is vexation, or say annoyance, on the part of the rest: annoyance, and thence the amount of the sacrifice in all shapes, which each of them is willing to make, on condition of being rid of it. In an English jury, with this single weapon, how often has not one man overpowered eleven others!
Interest—sinister interest, has here been mentioned for shortness. But interest-begotten prejudice, authority-begotten prejudice, habit-begotten prejudice, and inbred intellectual weakness, are, each of them, not less capable of suggesting arrangements inimical to the greatest happiness of the greatest number, and at the same time of giving birth to pertinacity, not always less intense than such as is produced by sinister interest.
By means of the vitiating influence of the multiplicity so often spoken of,—suppose an unapt work produced in a legislation committee,—proportioned, in this case, to the degree of confidence reposed in that select body—in that selection of the select—will be its probability of making its way through the several other appropriate authorities:—not to speak of the national mind at large. True it is—that if by the members of the legislative body at large, it be seen or supposed to be, in this or that part, adverse to their respective particular interests—true it is, that, in those parts respectively, any such alterations as seem well adapted to the rendering it conformable to those same interests, will willingly enough be made in it. But, so far as, in those parts of it which are adverse to the universal interest, nothing particularly adverse to these same particular interests happens to be observed,—the confidence, the existence of which stands demonstrated by the choice made of the members of that same select and close body, will naturally prove sufficient to carry it, without considerable opposition, through the body at large. Such will be the case, where the sinister arrangements introduced into the original draught by the sinister interests of the several workmen of all classes are simply not unfavourable to the particular interests of the members of the body at large: much more surely in so far as they are seen or supposed to be decidedly subservient to these same particular interests. To the situation of the monarch, where there is one—of the monarch, his subordinates, dependents, and partisans, these same observations may of course be seen to have equal application. And thus, under a form of government, having for its declared end in view the greatest happiness of the greatest number—thus, by the conjunct predominance of a cluster of particular and sinister interests over the universal interest, may existence come to be given—given even to a sanctioned work—as inimical to the greatest happiness of the greatest number, as even to that proposed, but happily not yet adopted, penal code, with which the Spanish nation was so near being afflicted.
Note, that in this close mode, any number of stages of subordination as between workmen and workmen may have place: in each stage, any number of workmen, and on the part of each, with or without observance and consent of superiors, this or that pernicious suggestion, of sinister interest, interest-begotten prejudice, authority-begotten prejudice, or inbred intellectual weakness, may have slipt in, and contributed to give their increase to the aggregate mass of inaptitude in the work.
In each stage, in the breast of each individual, contributing or not contributing labour, but in either case exercising influence, there will be two distinguishable masses of particular and sinister interests, in perpetual action against the universal interest: namely, 1. Whatsoever sinister interests may chance to appertain to him in his individual capacity. 2. Whatsoever particular and sinister interests appertain to whatsoever particular class or classes of men he happens to belong to: and, to the same man it may happen to belong, at the same time, to little less than the whole number of the classes included in the aggregate of the aristocratical classes.*
Suppose even the case to be that of a commonwealth, altogether clear of monarchy, or a monarchy in which the monarch has no share in the legislative power. The workmen, on whom, in the first instance, the texture of the work depends, will in this case be the members of a legislation committee. The sinister interest, here predominant, will be the interest of the legislative aristocracy: and, in the breast of each member, whatsoever other branches of the aristocracy it happens to him to belong to, to his larger sinister interest will be added those their several smaller sinister interests. As to the sinister interest belonging to the legislative aristocracy as such, it is an object, the existence of which is obvious and undeniable. What it prompts to is—the giving, to the aggregate mass of emolument, power, and factitious dignity attached to the executive branch of the government, the utmost magnitude possible, that, in their own persons, or those of their respective connexions, the shares obtained and enjoyed by the members of this legislative branch may be proportionably abundant.
As to the other branches of the aristocratical interest—of itself, no one of them can do anything for itself. But, with the assistance of the legislative branch, they may, each of them, do anything. The sinister interest, common to the legislative body, has therefore, for its natural ally and supporter, the sinister interest of every one of those other branches.
To the reader, according to the constitution of the political state he belongs to,—to the reader it must be left, to take note and observation of these several stages: with the present design, no such detail would be compatible.
II. Lastly, as to want of consistency. This, to an extent more or less considerable, has already been stated as an evil that will unavoidably have place, if by one workman one part of this great whole be executed, by another workman another. Moreover, what is sufficiently evident,—the inconsistency of the whole will be the greater, the greater the number is of those same parts executed, each of them by a different hand.
Vast is the diversity of design incident to so vast a work: vast again is the diversity incident to the mode of execution: correspondent to the diversity in both, will be the diversity that can scarce fail to have place in respect of the leading terms. If he who is occupied in the penal code is not at the same time working on the civil code,—neither in respect of method, nor thence in respect of language, will the one fit in to the other: and so, as between the compound of these two codes, compared with the constitutional code. Much to be regretted will, at the least, be the obscurity and ambiguity that will ensue: proportionable the change, which, in one or both, will be necessitated: unless for the affliction of the subject citizen, these two so intimately connected imperfections be suffered to remain unremedied. In this state of things, if, of two of these parts, namely, the penal code and civil code, one be allotted to one of two draughtsmen, the other to the other, what will be to be done? Upon the coming in of the two draughts, even supposing the approbation bestowed upon them ever so exactly equal, a necessity will be seen, for taking one of them for the groundwork, and altering the other in such sort as to make the several portions of it to fit in to the corresponding portions of the first. But, to the difficulties that would be attendant on any such operation, or the time that would unavoidably be to be expended on it, no limits can be assigned: while, by the simultaneous and all-comprehensive mode of operation here proposed, all such difficulty, with its attendant delay, is of course avoided.
So, as between the main body of the law, or say system of substantive law, and the system of the law of procedure, or say system of adjective law, included in each such part as above. In each part, the adjective branch has for its object and business the giving execution and effect to the substantive branch. Conceive now, in the penal and civil parts, taken together or separately, a system of procedure, having for its object the giving execution and effect to a system of benefits and burthens, of rights and obligations, the forms and denominations of which remain to be determined: the system of substantive law, the production of one workman; the system of procedure, which is to give execution and effect to it, that of another: both works going on without concert at the same time. In such a state of things, in what case is he, to whose lot it falls to pen the system of procedure? Instead of seeing the system of offences as exhibited in the penal code, and that of the efficient causes of rights and obligations as exhibited in the civil code, he is reduced to grope for all those objects in the dark in the region of conjecture.
The greatest happiness of the greatest number requires—that such original draught, being the work of a single hand, be known to be so. Hand, known to be but one.
Reason. Else, neither of the inducements to good workmanship afforded by the singleness, will have place.
Suppose that, the case really being, that, in the composition of the work in question, no more than one workman has had anything to do,—a notion, however, has place, that another, or others, in whatsoever number, have each of them borne a part in it. In this case, as to what depends upon the responsibility,—the tutelary force of the bridle it applies, on the only existing workman, is by those imaginary collaborators lessened, as much perhaps as it would be by so many real ones. As to what depends on the honour and the encouragement it affords, this too is in much the same case. So many imaginary assistants, of so much of the honour is he a loser, though there is no one by whom it is gained.
True it is—that, to the evil of want of consistency on the part of the work, this circumstance has no application. Suppose the parts of the work executed, all of them, by the same hand,—no want of consistency will be produced in it by the erroneous supposition of their having been executed by different hands. But of the two evils, this, it has been shown, is the minor one.
The greatest happiness of the greatest number requires, that the work, being the work of a single hand, and known to be so, it be known whose the hand is. Hand, known whose it is.
Reason. Else, as above, neither of the inducements to good workmanship will have place.
Only in so far as it is known who the workman is, can the work be known to be the work of no more than a single hand. As to knowledge, true it is—that, strictly speaking, no such thing is here possible. In addition to the declared workman’s own declaration, all that, in relation to the matter, can be absolutely known, is—that by competent authority, a suitable declaration has been made—a declaration (suppose) to this effect:—“This man” (naming him) “is the man, by whom alone this draught” (naming it) “has (we believe) been penned.” On the other hand, if the declaration were no more than to this effect—“The work is the work of a single hand,” the hand not being named, the circumstance of the concealment would be apt to operate in disproof of the fact in question—of the fact thus mysteriously and imperfectly declared.
Suppose now, that, notwithstanding both these declarations, so it is, that the individual whose work the draught is declared to be, had not really borne any part in it. Still, however, so far as depends upon responsibility, here is an individual on whom it attaches, and in its entire state.
Lest it be supposed to have been overlooked is this case brought to view, rather than on account of any such importance as seems attached to it. In a case such as the present, no great probability seems to belong to any such supposition as that of a fraud, concerted between two persons, a real workman and a pretended one, of whom the real one shall have found adequate inducement, for foregoing the honour of a work of this sort really his, and for being at the same time accessary to a solemn falsehood and imposture,—while the pretended workman, for the sake of that same honour, shall have found adequate inducement for exposing himself to his part of the dishonour of that same falsehood and imposture.
The only case that presents so much as the faintest colour of probability seems to be this:—For the hope of remuneration in the naturally attached shape above mentioned,—an individual, having interest, or say protection, without aptitude, engages another, who has aptitude without protection, to execute the work, and assign over to him the honour of it, with the looked-for consequences. In certain schools and colleges, this sort of traffic has not been altogether an uncommon one. In the present case, if the danger were thought worth combating at such a price, it might be pretty effectually excluded by a public examination, to which, previously to his entrance upon any office of the sort in question in remuneration for his legislative draught, the declared author should be subjected.
Remains the case, where, by one individual, by whom the principal part in the work has been borne,—assistance, in one shape or other, has been derived from the labours of others, in what number is not material: he at the same time declaring himself by name as the workman, by whom the work has been executed, saying nothing of any others. This case presents itself as being a completely natural and probable one. But, in this case, the grand point—the responsibility—is sufficiently secured: and, as to the honour—the encouragement,—if, for the sake of the assistance in question, the only individual interested is content to part with more or less of it, the public service profits by the exchange, and no individual suffers by it.
The greatest happiness of the greatest number requires, that, for the drawing of the original draught, all foreigners be admitted into the competition: and that, in so far as applicable, unless it be in all particulars taken together decidedly inferior, the draught of a foreigner be employed in preference. Hand, a foreigner’s preferable.
That, on this occasion, admission should be given to all foreigners has been shown already: for all foreigners are men.
What remains here to be shown is—that, for the original draught, aptitude in other points equal, the hand of a foreigner is even preferable to that of a native; and, on that account, to bespeak attention for any such draughts, as chance may have drawn from any such hands. Nor is the position altogether superfluous: only in proportion as attention is bestowed upon the work, can any admission given to it be of use.
On this occasion, again, as on every other, if a solution be desired of the question concerning the probability, absolute or comparative, of appropriate aptitude, it must be considered separately and successively, with reference to the several elements of which such aptitude is composed.
I. As to appropriate moral aptitude. Note on this point, how superior the ground is on which the nature of the case has placed the expectation of pure service at the hands of a foreigner as such. In both situations, the obligation, of including in the work a perpetually interwoven rationale, will have been a most substantial security. In both situations, with or even without a rationale, the principle of universal admission and that of singleness in workmanship, will have been two additional securities. Still, however, in the case of the native, there will be the swarm—the unascertainable and incalculable swarm—of personal connexions; thence of particular and sinister interests and affections; from the irresistibly-tempting and seductive influence of which, the situation of the foreigner bespeaks him free.
For giving effect to these same sinister interests and affections, the native would, in those same connexions, find a support more or less extensive and efficient: the foreigner, no such support.
Supposing him employed,—the foreigner will naturally, if any attention at all be paid to his draught, be an object of more notice than the native, and thence of proportionable jealousy:—he will be more closely watched: of any sinister interest or affection, supposing him under any such dominion, any bad effects will, in a corresponding degree, be more likely to be held up to view and obviated.
II. Next, as to appropriate intellectual aptitude. On the present occasion, this element of appropriate aptitude will require to be further decomposed: decomposed into appropriate judgment and appropriate knowledge.
1. As to appropriate judgment. In regard to this branch of appropriate intellectual aptitude, on the occasion of the question as between a single hand and divers hands, mention came to be made of the erroneous tracks into which the pen of every such draughtsman stands exposed to be led, by prejudice in different shapes: thence, the probability of correspondent aberiations, on the part of the work, from the all-comprehensive end so often mentioned. These prejudices will, to a large extent, be of a local nature: peculiar, in degree of strength at least, if not in kind, to the country in question. From the influence of these causes of error, while the native labours under it, the foreigner stands free.
The foreigner will, indeed, have his prejudices to contend against, and in particular his local prejudices. But here, as in the case of interests and affections, while those of the native will find support in the prejudices of all around him,—for those of the foreigner, not only will there be no such support, but there will be opposition: opposition, by the supposition, from reason,—and moreover from counter prejudices.
2. Next remains to be considered, appropriate knowledge.
In relation to this branch of appropriate intellectual aptitude, the native, it is true, in the ordinary state of things, possesses an advantage: an advantage alike obvious and unquestionable. On his part, extent of acquaintance with the local and other peculiar circumstances of the country in question, is at its maximum: on the part of the foreigner, at its minimum.
Supposing appropriate aptitude in all its other elements exactly equal on both sides, the advantage of the native under this head would therefore, obviously and unquestionably, be sufficient to turn the scale in his favour, and put an exclusion upon the foreigner altogether.
But, for the reason already brought to view, it will have been seen—whether, individuals out of the question, and situation being compared with situation, in the several articles of appropriate moral aptitude, and appropriate judgment, the superiority be not, and in no inconsiderable degree likely to be, on the side of the foreigner.
From his inferiority in the scale of appropriate knowledge, as above particularized, no objection whatever to the placing the business in his hands will be found to result. For, in the first place, the importance of the deficiency in his case is not so great as it will be apt to appear: in the next place, be it what it may, a complete supply to it stands assured—assured, from the authority, to which his draught will of course be referred.
1. In the first place, the deficiency is not so great as it will be apt to appear.
Of the circumstances on which the demand for legislation, and the nature of the course required to be taken by legislation, depends,—some are common to all countries, to all races of men, and all times: say, in a word, universally applying circumstances: others are, in different countries, in the case of different races of men, and in different times, more or less different; say, exclusively applying circumstances.
In comparison of the universally-applying, the extent of the exclusively applying circumstances will be found very inconsiderable. Moreover, throughout the whole of the field, the exclusively applying circumstances will be found to be circumscribed as it were by, and included in, the universally applying circumstances. The great outlines, which require to be drawn, will be found to be the same for every territory, for every race, and for every time: only in this or that territory, only for this or that race, only for this or that time, as distinguished from this or that other, will the filling up of those lines be found to require to be, on this or that point, more or less different. In every country, and for every race, at every time,—of the all-comprehensive and only defensible end—the greatest happiness of the greatest number—of the four most comprehensive particular and subordinate ends, viz. subsistence, abundance, security, and equality—with their several divisions and subdivisions, will the description be found the same: only of the means best adapted to the accomplishment of those great ends, in this or that country, or for this or that race, at this or that time, will the description, in this or that particular, be found, in a greater or less degree, different.
On pursuing the inquiry further and further into the region of particulars, the result will still be found the same. The same, in every country, for every race, and at every time, will be found the misdeeds by which security is liable to be affected; the classes and genera, of the names of which the list of those misdeeds will require to be composed; and the definitions, by which the points of agreement and difference as between one genus of misdeed and another, as well as between each of them and innocence, or (what will come to much the same thing) unpunishableness, will require to be determined and expressed. In this or that country, in the case of this or that race, at this or that point of time,—circumstances may indeed afford room for producing injury, in this or that particular shape, in which, in this or that other country, in the case of this or that other race, at this or that other time, man is not exposed to it. True. But the species of mischievous act to which the mischief, when in this particular shape, may be said to belong, is a species, which, upon observation, will be found comprehended in a genus of injury, to which, in every country, men of every race stand at all times exposed.
Thus, a corporal injury will be an injury everywhere, and to every human being. But, in Hindoostan, for example, to the feelings of a certain race, corporal injury is produced, by a species of contact, by which no injury would be produced in any part of Europe.
So again in regard to simple mental injuries: including so many various forms of as yet undenominated injury, which have their seat nowhere but in the mind. By a portion of audible discourse, or by a visible exhibition, by which contempt is expressed, for opinions, to this or that effect, entertained in relation to religion,—pain of mind is liable to be produced. According to the amount of it, in the case of pain produced from this source, as in the case of pain produced from any other,—the act, by which it is produced, may, under certain circumstances, be with propriety regarded and dealt with as injurious everywhere: but, in some countries, and in the case of some persuasions on matters of religion, the description of the thus injurious discourse, or exhibition, will be of one sort; in others, of another.
Of the distinction between those universally applying and these exclusively applying circumstances, the above examples will, it is hoped, be found to afford a conception sufficient for the purpose. The distinction is capable of being carried, and in the proposed code will of course be carried, throughout the whole field of legislation. In this place, to pursue it further, would be to force so much of the matter belonging to the proposed code, into a slight preliminary sketch extraneous to it.
Such being the distinction, now for the application of it to the case in hand. Of whatsoever country the draughtsman be a native, these circumstances, which are of universal occurrence and applicability, may be equally and perfectly present to his notice. For those shades of difference, which are peculiar to his own country, the native, as compared with the foreigner, will be—if not exclusively, at least preferably, qualified. But, suppose two men, the one a foreigner, the other a native, and the foreigner more fully conversant with the circumstances of universal occurrence than the native,—and in all other particulars better qualified for making, throughout the whole field of legislation, that provision which those same circumstances require,—this supposed, that which without much difficulty may happen is—that, even in regard to these same particular circumstances, it may be in his power to afford to the work a degree of aptitude, such as, but for him, could not have been possessed by it.
For though, by the supposition, so far as depends on particular arrangements conceived in terminis, he is not competent to the filling up of the outline;—yet, by virtue of his comparatively greater command over the whole field, it might be in his power, by means of instructions furnished by him in general terms, to afford, to any natives, on whom the task devolved, superior assistance: assistance, of such sort, as should enable them to give a more apt execution to it, than without him it would have been in their power to give to it. In their power—not to speak of their inclination: for, considering the atmosphere of sinister interest and prejudice, in which (as hath been seen) all native functionaries, as such, have to live and move,—this is a distinction which should never be out of mind.
II. In the next place, to the deficiency, be it what it may, a complete supply stands assured.
The hands from which, of course, it will in the first place be received, are those of the legislation committee.
To the aptitude of the supply from this quarter, one moment may present an objection, but another will dispel it.
By the supposition (it may be said) these natives will be labouring under those causes of inaptitude—those sinister interests and affections, as well as prejudices—by which their appropriate aptitude, as well in point of moral aptitude, as in point of appropriate judgment, is, according to you, placed so much below that of the foreigner. True: but, by that same supposition, the draught—the groundwork, which they will have to work upon—is a draught, not drawn by their own hands, nor by those of any other native, but by the foreigner: and it is by him that it has been furnished with its rationale. In the outline, then, of his drawing,—with or without the inspection above spoken of, will they find a check to, and a security against, the effective predominance of those same sinister interests, and other causes of inaptitude.
In a word, in section 5, under the head of universality of admission, it has been shown—with how promising a degree of efficiency the proposed open mode, with its string of rationales, will apply to the mouth of the man in power, the only bridle which the nature of his situation admits of: in the case of the foreign draughtsman, this bridle will afford the same security as in the case of the native.
Now as to all elements of appropriate aptitude taken together.
For the direct and appropriate use made of it,—the work, whatsoever be the workman, will depend altogether upon the constituted authorities, and in particular on the legislative body. But, in regard to this use, two things may be stated as altogether certain: 1. That they will not give adoption to it, unless in their own judgment it be decidedly more apt than any draught sent in by a native workman; 2. That neither will they thus make it their own, unless, in their own expectation, the like opinion will be entertained of it by the people at large. For, on their own part, what other inducement could they find for giving to it any such acceptance? If, in their view, though equal, it were no more than barely equal, to the most apt work produced by a native hand—in this case, interest, prejudice, affection in all manner of shapes, would concur in urging them to give the preference to the work of their fellow-countryman: and if, in their minds, any serious apprehension should have place, lest, after obtaining acceptance at their hands it should fail of being generally acceptable to the people,—by what adequate inducement could they be brought to hazard the good opinion of their constituents, by fastening upon their necks any such work?—a work which, in the nature of the case, could not be contributory to the greatest happiness of the people in question, any further than it were thought by them to be so.
How intimate the connexion is between the two questions—between that concerning admission and this concerning preference,—is sufficiently manifest. The truth is—that it is rather for the sake of the question concerning admission, than for its own sake, that the question concerning preference is here argued. What is meant to be said to the reader is to this effect:—“Fear not to give admission to the foreigner’s draught: for if, in its proposed character of a basis for the sanctioned code, a draught, having a foreigner for its author, and having, as here proposed, been admitted, comes to be adopted,—the probability is—that, so far from being in the scale of aptitude inferior to the most apt draught sent in by a native, it is, in a high degree, superior.”
So again in regard to preference. If (says somebody)—if, as you have said, it is only in case of its being regarded as considerably superior in the scale of aptitude that it is likely to be preferred, and if at the same time it is in that case likely to be preferred,—to what use plead for the position, that if it be but equal in aptitude to the most apt of those sent in by natives, it is entitled to the preference? The answer is—the observations here may be considered as made to each reader individually: and on that supposition I say to each—If among the several draughts there be one which, being a foreigner’s, is in your eyes equal in aptitude to the most apt of all such as are sent in by natives,—fear not to give your suffrage in favour of it. Why? Because, unless in the legislative body a general persuasion has place—not only that it is more apt than that of any native, but that it is likely to be regarded as such by a majority of the people,—it will not be adopted:—therefore, supposing the draught ever so unapt, there is no likelihood, that any vote you can give in support of it will be attended with any pernicious consequence.*
On the part of an individual, proposing himself as draughtsman for the original draught of a code of laws, willingness or unwillingness to interweave in his draught a rationale as above, is the most conclusive preliminary test, and that an indispensable one, of appropriate aptitude in relation to it. Willingness as to rationale, draughtsman’s test.
The four grand points in question, are (it has been seen) the proposed all-comprehensiveness of the work—the rationale proposed to be interwoven in it—the universality of the admission proposed to be given to all competitors for the honour of furnishing the original draught—and the choice of a single workman for the work, to the exclusion of every greater number. If what has above been said in relation to the usefulness and importance of these several points has proved satisfactory,—the position, which forms the title of the present section, will already have received its proof: if not, nothing further, that can with propriety be ranked under this head, affords any promise of being of use.
On the constituted authorities alone (it may be observed, perhaps) will depend the course taken, in relation to all these several points, and in particular that which regards the rationale: and on that account, willingness or unwillingness on the part of individuals was not (it may be thought) worth speaking about. But, supposing a work of this sort in contemplation, volunteers may, for this as for any other branch of service, be, without much strain upon the imagination, expected to offer themselves, antecedently to any determination taken by the legislature. On this consideration is grounded the invitation here given, to all whom it may concern, to consider—whether, in comparison of the workman who is willing to give this security for good workmanship, any one, who is not willing to give it, has any pretension to be heard.
On the part of a ruler, willingness or unwillingness to see established an all-comprehensive code, with its rationale as above, and to receive original draughts from all hands, are among the most conclusive tests of appropriate aptitude, in relation to such his situation. Willingness, as to rationale and universal admission, legislator’s test.
That which, in a less pointed manner, has been applied to the situation of proposed draughtsman, will be seen to apply, in a more pointed manner, to the situation of actual legislator.
Whence comes it, then, that in the Anglo-American United States—whence comes it that, under the only form of government which ever had, or ever could have had, for its end in view, the greatest happiness of the greatest number,—the constituted authorities have been so generally, though happily not universally, shrinking from this test? The answer shall be given in the words of two of them. See Testimonials. VII. 1 & 2.
What the sacrifice is that is involved in the endurance of this test cannot have passed unobserved. How much easier any such sacrifice is to propose than to bear a part in, must have been alike manifest. But—the greater the difficulty, the greater the glory: the greater the difficulty, the smaller the number of those, whose magnanimity enables them to surmount it, and the more exalted that virtue, to the embrace of which so few will be able to aspire.
*∗* The occasion on which this opinion was declared, is that of a motion made by Sir Francis Burdett, Member for Westminster, for the purpose of introducing a series of resolutions, framed, and known to have been framed, by Mr. Bentham, at Sir Francis’s desire, to serve as a basis for a reformed representation of the people, on the ground of universality, secresy, equality, and annuality of suffrage.
The publication, from which the matter is extracted, is intituled, “Hansard’s Parliamentary Debates.” Mr. Hansard is son to the printer to the House of Commons.
The ground, on which it is stated, in this general way, as the opinion of the House of Commons, is this:—In the House, as in the nation, there were, then as now, three parties: the Tories, the Whigs, and the Radicals: these last so called as being the partisans of a radical reform in the Commons’ House. Of the Tories, the leanings are on the side of monarchy; of the Whigs, on the side of aristocracy; of the Radicals, on the side of democracy. On this occasion, Sir Francis Burdett spoke on the side of the Radicals; Mr. Canning, on the Tories’ side: Mr. Brougham took the lead on the Whig side. On the Radical side, there was but one speech—that of Sir Francis Burdett: on the Tory side, but that one speech—that of Mr. Canning: on the Whig side, there were four speeches—Mr. Brougham’s, Mr. Lamb’s, Mr. Parnell’s, and Mr. William Smith’s. In no speech, other than Sir Francis Burdett’s and Mr. Brougham’s, is any mention made of Mr. Bentham: whatever was said in approbation of him by those two gentlemen, stands therefore uncontroverted. Generosity and discretion are competitors for the honour of this silence. Sir Samuel Romilly, known as the old and intimate friend and disciple of Mr. Bentham, was then on his seat in the House: by his silence, the particular appeal, made to him by Mr. Brougham, stands confirmed. He was, heart and head, a Radical: but could not, consistently with any chance of doing what little good he was permitted to do in matters of detail, declare himself as such. Mr. Brougham, on this occasion, is seen taking, off the shoulders of the Tories, the burthen of the defence of the existing system against the attack of the Radicals. As to interests, in the existing system of waste and corruption, the Whigs and the Tories have one common interest: the only difference is—as to the class of hands, by which the profit shall be reaped.
At the end of the report of Sir Francis Burdett’s speech, “The above,” says the reporter in Hansard’s debates, “is an imperfect account of a speech, which was listened to by both sides of the House with the deepest attention.”—Ed. of original Edition.
Extracts from Sir Francis Burdett’s Speech.
“Since that period, the question of reform had been greatly agitated: the ablest men of the age had fully discussed it, and sifted it to the bottom. Above all, Mr. Bentham had, with unrivalled ability, proved how easy and safe it was to carry the principles of reform into practical effect.”
“Annual Parliaments and the most extensive mode of suffrage had been advocated by the late Duke of Richmond, in his famous letter to Colonel Sharman, with a strength of argument quite unanswerable. The same principles had been investigated and maintained with additional force and acuteness and philosophical accuracy, accompanied with complete demonstration of the safety with which they might be reduced to practice, by Bentham. If any anti-reformer could answer Mr. Bentham’s arguments, he would do more efficacious service to reformers and anti-reformers, than could ever be effected by dealing out false imputations and unsubstantiated slander, these being, with a due portion of misrepresentation and exaggeration, the only intellectual weapons hitherto employed by the enemies, against the friends, of reform.”
“If it could be shown that the most comprehensive suffrage would produce no inconvenience in practice, it ought not in justice to be withheld. Mr. Bentham had, by incontrovertible arguments, demonstrated that no danger whatever would arise from the most extensive suffrage that could be established.”
Extract from Mr. Brougham’s Speech.
“From this charge of inconsistency there was one great authority who was exempt—he meant Mr. Bentham. He had the greatest respect for that gentleman. There existed not a more honest or ingenuous mind than he possessed. He knew no man who had passed a more honourable and useful life. Removed from the turmoil of active life, voluntarily abandoning both emoluments and the power which it held out to dazzle ambitious and worldly minds, he had passed his days in the investigation of the most important truths, and had reached a truly venerable, although, he hoped, not an extreme old age. To him he meant not to impute either inadequate information, or insufficient industry, or defective sagacity. But he hoped he should not be deemed disrespectful towards Mr. Bentham, if he said that his plan of parliamentary reform showed that he had dealt more with books than with men. He agreed with his honourable friend, the Member for Arundel (Sir S. Romilly,)* who looked up to Mr. Bentham with the almost filial reverence of a pupil for his tutor, in wishing that he had never written that work. But Mr. Bentham was a real advocate for universal suffrage. He was a far more sturdy, and infinitely more consistent reformer than the honourable baronet, as he gave votes not only to all men, but to all women also. He drew no line at all; he weighed not with practical nicety the claims of different classes; he recollected that his principle was universal; he tossed away the rule and the scale altogether, and without restriction let in all: young or old, men or women, sane or insane, all must vote—all must have a voice in electing their representatives. He did not even sanction the exceptions which the honourable baronet seemed inclined to admit with respect to persons of an unsound mind.
“The veteran reformer (Major Cartwright) had lately favoured the world with a plan of suffrage, illustrated by plates, where balloting-boxes, ball-trays, &c. &c. in most accurate array, met the eager gaze of the much-edified inquirer. Now Mr. Bentham was the patron of the ballot, and his doctrine was, that all who can ballot, may enjoy the elective franchise. The moment a person of either sex was able to put a pellet into a box, no matter whether he were insane, and had one of the keepers of a mad-house to guide him, still Mr. Bentham said, that though he did not support the utility of allowing idiots or mad persons to vote for their own sakes, yet rather than make any distinction, he would allow them, as they could not do any harm, and the unbending consistency might do some good. Mr. Bentham had such an invincible objection to lines of every description, that he could not admit of one being drawn, even at the gates of Bedlam. It was not necessary for him to controvert doctrines of this nature, but they were certainly consistent with each other; and he did not think himself uncharitable in saying, that some of the principles promulgated in that House were nearly as chimerical and visionary without being at all consistent.”
In page 1151, stands the following note to the word Brougham, at the commencement of Mr. Brougham’s speech:—
“As the speech of Mr. Brougham on this occasion was deemed of peculiar importance in a party view, and with respect to the line taken by the Whigs on the question of parliamentary reform, it was hoped he might have been able to print a corrected account of it. But we understand that it was made unexpectedly, without any previous intention of speaking having been entertained by him: so that he could not comply with the wish generally expressed.
Extract from Sir Francis Burdett’s Reply.
“The learned gentleman (Mr. Brougham,) whilst he professed himself friendly to reform, had at the same time attempted to render ridiculous the ablest advocate which reform had ever found—the illustrious and unrivalled Bentham. It was in vain, however, for the learned gentleman to attempt, by stale jokes and misapplied sarcasm, to undervalue the efforts, of a mind the most comprehensive, informed, accurate, acute, and philosophical, that had perhaps in any time or in any country been applied to the subject of legislation, and which, fortunately for mankind, had been brought to bear upon reform, the most important of all political subjects. The abilities of Bentham, the learned gentleman could not dispute—his disinterestedness he could not deny—his benevolence he could not but admire—and his unremitted labours he would do well to respect, and not to attempt to disparage. The conviction of such a mind after mature investigation, overcoming preconceived prejudice, could not be represented as the result of wild and visionary speculation; and the zealous and honest adherents of the cause of reform might be well contented to rest the question on the foundations, broad and deep, upon which Bentham had placed it. The learned gentleman, therefore, unless he found himself competent at least to attempt to answer the reasons of Bentham, ought, for his own sake, to be more cautious how he endeavoured to misrepresent those reasons, or to effect by mis-statement, what he was unable to accomplish by argument.”
The motion was got rid of, by a motion for the order of the day. On the division, there were:—For the order of the day, ayes 106; noes 0, except Sir Francis Burdett and Lord Cochrane, members for Westminster, the two tellers. The Whigs joining with the Tories. The resolutions moved were by this means prevented from being entered upon the journals of the house. At the instance of Sir Francis Burdett, these resolutions had been drawn by Mr. Bentham. They were employed as drawn, with the exception of two resolutions which had been inserted for the purpose of completing the view given of the constitution in all its parts, but without expectation of their being employed: the one bearing so hard on the monarchical, the other on the aristocratical branch. In addition to the above important changes, a few of minor importance might perhaps be found. They were made, all of them, without concert with Mr. Bentham, he having given up the matter without reserve to his friend, on whom alone all responsibility rested.
Observations from without doors on the above Speech of Mr. Brougham.
As to minors under the age of 21, that which is insinuated in this speech, viz. that Mr. Bentham’s plan gave admission to their votes, is not true. It provided for their exclusion.
As to persons insane, it forbore excluding them, because it would be almost an even chance whether their votes would be on the right side, or the wrong side; because the greater part would be kept from the place of voting by the judicial procedure that authorized their confinement; because if all that voted were on the wrong side, their number would not suffice to produce any practical ill effect; and because the admission given to them excluded those disputes and litigations to which, in this or that individual case, the question sanity or insanity might give birth.
On the admission of females Mr. Bentham’s plan forbore to lay much stress: because it found no grounds for any very determinate assurance, that in that case the result would be materially different; and because no minds could be expected to be at present prepared for it. But it declared that it could find no reasons for exclusion, and that those who in support of it gave a sneer or a laugh for a reason, because they could not find a better, had no objection to the vesting of absolute power in that sex and in a single hand: so that it was not without palpable inconsistency and self condemnation, that the exclusion they put upon this class could be brought forward.
Criminals are another class, to which, in Mr. Bentham’s plan, the door is left unclosed, and upon the same or similar reasons. In this case, considered as a ground of exclusion, criminality means mischievousness, or it is nothing to the purpose. But if mischievousness—that is to say, such a presumption of future as is afforded by past mischievousness, were a sufficient ground for exclusion,—a much stronger ground for it would be afforded by a seat in either house, than by a situation in a penal prison or a hulk: the mischief produced, to which in both houses a vast majority of the members are constantly contributing, is produced upon the largest scale: the mischief produced by the inhabitants of the penal prison and the hulks is produced upon the smallest scale.
The supposed errors in Mr. Bentham’s plan of parliamentary reform are, by Mr. Brougham, imputed to his having “dealt more with books than with men.” But, in this very instance, it was by his knowledge of men that he was guided, and in the teeth of those notions that are so uniformly inculcated in books: and more particularly in all law books. In these, a fundamental and continually employed principle is—that the quantity of virtue is in the ratio of the quantity of power directly: in his conceptions, inversely. Witness the twelve Cæsars: witness all eastern monarchs, not to speak of others: witness the allied despots.
Mr. Bentham (says Mr. Brougham) “drew no line at all.” This is not correct. He drew a line between the greatest multitude of the apt and the unapt for the exercise of this power: the same line that, without his knowledge, was at that same time drawing by the framers of the Spanish constitution; viz. that between those who are able, and those who are unable to read, that is, to receive the evidence—which the judgment, the electors give by their votes, has for its grounds. By this line, the benefits sought for in admission, and the benefits sought for in exclusion, are conjoined. It excludes all those who have not made this only proof, that can be made, of appropriate aptitude: and yet it excludes no man: for, this proof, it puts it in the power of every man to give.
Nothing has been more annoying to the corruptionists, Tory and Whig together, than this test, which the Spanish and the English radical reformists were, each without knowledge of the other, thus occupied in framing at the same time. Coming to the reading qualification, “This we protest against,” says the Edinburgh Review, in its critique on Mr. Bentham’s parliamentary reform plan—“we protest against it.” So far the pen went. At that point it stuck: stuck like a tongue stopt by a locked-jaw. Reason not being to be found, the whole authority of the work was thus brought out in form to supply her place. The interest—it need scarcely be observed—the same interest which produced the speech in the House of Commons, produced, much about the same time, the article in the Edinburgh Review. Where the shadow of an answer presented itself, the shadow was employed: where not so much as a shadow could be found, the argument was left unnoticed. A sufficient refutation of speech and article together, might, it is believed, be afforded by a bare list of the arguments which in both are passed unnoticed.
As to Mr. Bentham,—on the field of legislation, no man ever copied so little from books: no man ever drew so much from observations made on man. He has not had much acquaintance with drawing-rooms: none with levees. But he has had some acquaintance with cottages, and much with offices. He has been in the secrets of ministers: and, from 1783 to the present, there has not been a ministry with which he has not been in relation, nor from which he has not received marks of confidence.
But Mr. Brougham and Mr. Bentham were, and are, and always have been, friends: and assuredly, not the less so for that speech: and, consistently with that opposition which situations necessitate, nothing (it is seen) could be more friendly, than the opposition given by the friend in the senate to the friend in the closet.—Ed. of original Edition.
My dear Bentham,—
I cannot sufficiently express to you, how sensible I am to the interest you take in our Genevan Penal Code, and how grateful for the generous offer you make to us: it goes beyond everything that I could have asked of you. Well may you regard this undertaking of ours with a fatherly affection, considering with what truth it is, that, from the first mention of this affair, I declared to our commission, that the whole of the matter I should have to submit to them, not plan only but details likewise, had been extracted from your manuscripts.
The conversation I have been having with Mr. K., and which he will have reported to you, had for its principal object, the showing to him, that what you looked for had, virtually and impliedly, been already done. I had declared to our penal law commission, that I found myself at a stand, because in your manuscripts there were gaps, which on my own part I could not flatter myself with the being able to fill up: many articles omitted or left unfinished, under the head of offences against condition in life: nothing, absolutely nothing, under the head of offences against justice. I said, moreover, that there were many questions, on which I had asked your opinion by letter, and that for answer you had given me an invitation to visit you in the country, in consideration of the difficulty of carrying on discussions, on matters of this nature, in the way of epistolary correspondence. I had requested leave of absence for five months, that I might come to England: and this suspension, though contrary to the general instructions we of the commission had received from our government, considering the recommendation to us to use all the diligence that the nature of the subject admitted of,—was granted without difficulty.
In regard to all such articles as we have drawn up as yet, nothing has been definitively established: the whole will be to be recast, before we have done; so that, as to the titles, as well general as particular, that have passed through the hands of the commission, you are not to consider them as anything but faint sketches, which will be to be gone over again.
It is I that am reporter to the commission; that is to say, to me appertains the initiative function, and the conduct of the business. Considering that it is under your auspices that it commenced—considering the declarations made by me, that it was on no other ground than that of your manuscripts that I could work,—you have all the moral security which the nature of the case admits of, that everything that you do for us, even the whole matter of the code, without regard to anything we have done already, will be received with gratitude, and examined with care: and, if there be this or that point, on which the commission fails to adopt your ideas,—the failure will certainly not have for its cause either negligence, indolence, or any unfavourable prepossession: for, the contrary disposition is already effectually manifested, by the admission given to your plan, and to the titles general and particular. In relation to this matter, I regard myself as warranted in giving you the strongest assurance: and I am persuaded, that there is not one of my colleagues that would not join with me, in soliciting at your hands the magnificent work of which you give me the promise, and which you alone are capable of executing.
I have commissioned Mr. K. to desire of you that, as the work proceeds, a copy may be taken at my expense, that the original may remain in your hands, and because it would not be possible for me to occupy myself with the translation here,* considering my other occupations.
Cross of Malta. Patriotic Society of the Friends of the Constitution. Letter, introducing an instrument, constituting Mr. Bentham an Honorary Member—Madrid, 18th Sept. 1820.—(N. B. Though this Society was not of the number of the constituted authorities, its freedom, added to its numerousness, rendered its testimony but the more valuable.)
The patriotic society of Friends of the Constitution, established in the Malta Coffeehouse of this Corte, have, in a public meeting, heard read, from the tribune, the work, addressed by you to all liberal Spaniards: and, as a testimonial of the gratitude with which the people of this capital in general, and this society in particular, have received and appropriated this one of the literary fruits of your illustrious mind, have the honour of transmitting to you the title of honorary associate, saluting you with sentiments of the most intimate fraternity.
The Citizen President Patricio Moore.
Andrei Rogo, del Canizal,Secretary.
Citizen Jeremias Bentham.
Don Augustin Arguelles, Minister of the Interior, requesting the opinion of Mr. Bentham on the subject of Jury Trial.—Madrid. No date. Received through the Spanish Mission, 22d January 1821.
Dear and most esteemed Sir,—
I have received, through various channels, your different works on matters of law and politics. Sincerely grateful for such a distinction as this, I feel more and more regret, that my ill fortune deprived me of the pleasure of knowing you personally when I was in your country in 1806-7, and my friend and countryman Mendoza de Rios, who was your friend also, was very desirous that I should visit you, and even spoke to me about it: but a severe indisposition, that tormented me during the two years of my abode in London, deprived me of that pleasure. Though I had proposed to myself to write to you on various matters connected with the events of Spain, I was obliged to abandon the intention for want of time. That which I infinitely desire, and should deem a singular favour, would be that you should communicate to me your ideas on the institution of the jury. Out of England, the genuine character of this tribunal is not well understood. A clear and circumstantial exposition, of the mode of proceeding in criminal cases by jury, would be very useful: and, at the same time, I should desire, if possible, that you should tell me your opinion on the following queries:—
“In a country where a jury has not been established, and in which there are party-divisions, can it be introduced without that party-spirit’s mingling with their verdict?”
“What precautions ought to be taken, to secure the impartiality of the jury under such circumstances?”
I trust that your goodness, and your ardent love of liberty, will pardon this my presumption, availing myself of this opportunity to offer you my respect and friendly consideration, entreating you to dispose, in any way most agreeable to you, of the esteem and attachment of your most obedient servant,
P. S.—I write to you in my own language, as many years have elapsed since I wrote in English.
Don José Canga Arguelles, Minister of Finance, expressing the desire of the Gobierno (composed of himself and the other six Ministers) to receive from Mr. Bentham, in pursuance of an offer of his, the draught of an all-comprehensive and rationalized Code, as described in Part I.—Madrid, 20th February 1821.
Mr. Jeremy Bentham—Sir,
Don Diego Colon has transmitted to me the letter you wrote to him, offering to form a complete code of laws for Spain. It belonging to the minister of grace and justice to take cognizance of the object to which it refers, I have delivered it to him, in order that he may arrange with his Majesty such resolution as he may deem fit.
This is all that it has been competent to me to do in this business: but I cannot but declare to you, with the greatest satisfaction on my own part, that the wishes which animate you to serve my country so usefully, are highly grateful to the Gobierno—and that, for my own part, I have for this long time entertained the highest respect for that mass of intellectual light, of which you have given such resplendent proofs, and which has obtained for you the estimation and honourable name you bear, among all who know how to appreciate merit and distinguished talents. On this consideration, I remain at your disposal, Sir, your most respectful and obedient servant,
(Signed) Joseph Canga Arguelles.
El Conde de Toreno, Deputy to the late Cortes, requesting Observations from Mr. Bentham, on the subject of the proposed Penal Code—6th August 1821.
Paris, le 6 Août 1821.
Monsieur J. Bentham—
Monsieur, Notre commun ami Mr. Bowring veut bien se charger de vous faire passer le volume ci-joint, qui comprend le projet du code penal présenté par le comité à la deliberation des Cortes, qui doit avoir lieu l’hiver prochain. Vous y verrez des choses bonnes, d’autres fort mauvaises. N’allez pas pourtant vous effrayer, Monsieur, des articles qui parlent sur la religion: celà ne passera pas: le tems des persecutions en Espagne n’existe plus, et, malgré toutes les lois, il y a dans le fait une tolerance très grande. Je soumets. Monsieur, à vos lumières, et à la profondeur de votre esprit et de vos connaissances, ce projet. Ayez la complaisance de me faire passer vos observations, d’ici aux derniers jours de Septembre, que je dois retourner en Espagne: je vous en serai extrêmement redevable: j’en profiterai dans la discussion. A qui pourrais-je en effet mieux m’adresser, qu’au constant défenseur de l’humanité, et au profond écrivain de tant d’ouvrages célèbres sur la legislation?
Soyez sûr, Monsieur, du plaisir, et même du devoir, que je me ferai, d’écouter vos conseils dans cette matière, et de l’empressment que je mettrai toujours de vous offrir l’hommage de mon admiration, et de ma profonde consideration.
Le Comte de Toreno.
Paris, 6th August 1821.
Mr. J. Bentham—
Sir, Our common friend Mr. Bowring has the goodness to undertake to forward to you the accompanying volume, containing the project of the penal code, presented by the committee, for the deliberation of the Cortes, at its next winter’s meeting. You will see in it some good things, others very bad. Do not, however, frighten yourself, Sir, about those articles which speak of religion: they will not pass: in Spain, the time of persecutions is no longer in existence: and, spite of all laws, a very extensive toleration has place in fact. I submit this proposed code, Sir, to the consideration of your enlightened mind. Do me the favour to convey to me your observations on it, between this and the last days of September, at which time I shall be on my return to Spain. I shall be highly obliged by your so doing. I shall make my profit of them in the course of the discussion. An address of this sort—to whom could it be made with more propriety, than to the constant defender of the principles of humanity, to the profoundly thinking author of so many celebrated works on legislation?
Be assured, Sir, of the pleasure, and even of the sense of duty, with which I shall attend to your suggestions on this subject, and of the eagerness with which I shall embrace every occasion, of offering to you the homage of my admiration and of my high consideration.
Le Comte de Toreno.
Extract from the Report of the Prison Committee of the Cortes, recommending the application of Mr. Bentham’s Plan of Construction and Management, styled the Panopticon Plan, to all Prisons throughout Spain and her Dependencies—28th September 1820.
The select Committee, named by the Cortes for the purpose of its presenting a plan of regulation and improvement for the prisons of the kingdom, has carefully examined the measures proposed by Messrs. Villanova, Calderon, and Canabal, relative to this object, as also the expositions presented by Don Joseph Guyar, with the accompanying documents.
With the same scrupulous attention, the Committee has also examined the work of the jurisconsult, Jeremy Bentham, translated by Don Jacoba Villanova, by whom has been added an appendix, and various notes of primary importance; and the Plan for Prisons, which, with the work aforesaid, he presented to the Cortes, and which they received with particular acknowledgment.
Desirous to avail itself, on this occasion, of whatsoever appropriate assistance should be found obtainable,—the Committee communicated to the government (gobierno) the information, which the Economical Society of Madrid had addressed to the king through the Home Department: on which occasion, with its accustomed zeal and intelligence, that Society bestows the highest eulogium on the work of the above-mentioned Bentham, and on the observations and appendixes subjoined by the jurisconsult Villanova: expressing its entire approbation of the application of the Panopticon principle, in relation to the establishments appertaining to the prisons of the kingdom.
The Committee, after inspection made of these documents, could not do otherwise than agree in great measure with his beneficient ideas for the service of humanity, which, having been outraged in the highest degree in the buildings hitherto used for the imprisonment of culprits and condemned criminals, calls for the most prompt and efficacious measures of alleviation.
The Committee has obtained a full conviction of the truth of those principles which, with so much wisdom, have been delivered and applied in detail by those intelligent friends of mankind.
☞ Thereupon follows a discussion, continued through nine pages, and occupied principally in the exhibition of the deplorable state of prison and prison management in Spain.
Page 10 commences with a proposed law, in twenty-six articles, the whole ranged under three titles.
Article 1. In all the capitals of the provinces of the kingdom, and in those towns in which are the seats of judicatories having cognizance in the first instance,—shall be constructed prisons, upon the Panopticon plan, or as nearly approaching to it as possible.
Article 25. For the construction of these prisons, the government shall turn to the best account the value of the existing ones, and propose to the Cortes, in the estimates for the expenditure of the home department, the sums which it shall propose to allot to this object, as also the charitable funds,* which it regards as capable of being employed to the purpose of these establishments.
Article 26. All these measures and provisions shall extend to the provinces of Ultramaria.
Don Toribio Nunez, Deputy from Salamanca to the present Cortes, requesting for Spain and its Cortes the assistance of Mr. Bentham on all matters of legislation.—Extracts.—Salamanca, 20th Dec. 1821.
Occupied successively by the political affairs of this city and province, and by the consideration of the penal code, submitted to our extraordinary Cortes, and lately referred to a commission of this literary University, of which commission I am a member,—I have been unable sooner to answer your valuable letter. You are, however, assured of my gratitude, by your correspondent, who transmitted it to me from Victoria, and with whom I hope to have further intercourse at Madrid. In that letter, you ask me to give you some account of my past life, and of the accident which brought me acquainted with your works. The praises, which you bestow upon me, are due rather to your principles and analyses, than to the new arrangement in which I have presented them in the “Ciencia Social.”† In the concluding part of your letter, you relate to me some particulars concerning the course of your studies, and concerning the Universities of Oxford and Cambridge, and you desire to know what were my studies at that of Salamanca.
Respect and gratitude compel me to oblige you in everything: and the pleasure I feel, at finding myself in familiar conversation with my adored master, of whose existence I doubted, makes my own satisfaction inseparable from the fulfilment of my duty towards you. * * * *
The appearance of your works, published in the French language at Paris, coincides with this epoch; but as I had retired from Seville, with the profits of the business I had carried on there since the death of the duchess, and was living amidst relations and friends in the mountains of Castille,—I heard nothing of them until the passage of the French army through Salamanca to Portugal, in 1807, when your principles of civil and penal legislation were brought among other books for sale. To describe to you their effect upon me is impossible. Suffice it to say, that, in spite of the inconsistencies which I found in them, and which I have always attributed to your editor, I saw so much light, that I hailed, as a favourable prognostic for the prosperity of my country, the perfidy of the monster, who by irritating our national honour, set in motion our enthusiasm.
The delight I had formerly tasted in dispensing benefits was replaced by the anticipation of that which I should derive from seeing diffused through my country those principles which teach the science of governing, and of introducing useful reforms without injury to actual rights. In your works I saw the causes of the failure and of the evils of the French Revolution, which had excited our youthful attention. I began immediately to inform myself of the means, by which my country might be freed from the horrors which afflicted it. I found all made easy by the operation of your principles: but unfortunately they were unknown in Spain. Even now an acquaintance with them is by no means general. Yet, notwithstanding our inveterate prejudices on the one side, and notions à la Française on the other, a knowledge of them is extending itself; and, among the deputies elected for the next Cortes, I am convinced there are many initiated in your precious mysteries. I hope you will not find it inconvenient to transmit to your disciple, Nunez, the code which, I am assured by our amiable friend Bowring, you have been preparing expressly for Spain. Do not doubt that the lights you have diffused will be of great service to us; that the number of your appreciators will be great among the new deputies; and that among them will be found many lawyers who revere you, and many learned physicians, who are imbued with your luminous system. * * * *
May heaven grant that my knowledge, corrected by your’s, my integrity, and my prudence, may correspond with my good intentions; as, with your aid, I hope they will: and if, with this disposition, I implore whatever instruction my enlightened master can still give me, I am persuaded he will not refuse to assist with his advice his “beloved” disciple * * * *: and the nation to which he has the honour to belong, and to which such proofs of your affection have been already given, * * * *.
I must confess to you, that, if information does not rapidly spread, I fear we must wait a long time before we shall see the fruits it ought to produce; and certainly, until we do see them, we are in danger. I seek not to discourage you, nor to diminish your cheerfulness: God forbid!—Genius of good! you will not deny to us the instructions which we hope from your philanthropy: and we, on our part, will sedulously endeavour to propagate them. Your instructions will conduct us, in our search for those demonstrative proofs, by which all minds shall be brought into unison. You alone have realized the project of Socrates—you have justified the assertion of Galileo—you have made palpable the opinion of Locke—and have given consummation to the laudable commencements of Beccaria.
Adieu! may you live long for the benefit of the human race, and for the enjoyment of that glory, which it has been given to no other mortal to acquire!
Minute of the Portuguese Cortes, ordering a translation to be made of all Mr. Bentham’s works—Lisbon, 13th April 1821.
Read by Secretary Freire a letter presented by Senhor Sepulveda, to whom it had been addressed by Senhor Carvalho, member of the regency of the kingdom,* along with the works of Jeremy Bentham, offered by their venerable author to the Portuguese nation: in which letter it was said, that the writer could not give a more authentic testimony of the value he set upon so generous and flattering an offering, than by accompanying it with a wish, that, in their practice, the cortes may take for their guidance the liberal doctrines of the principal and earliest constitutionalist of Europe.
Penetrated with those sentiments of esteem, that are so justly due to the illustrious Bentham—to that sage, by whose luminous ideas the whole civilized world has been enlightened, and to whom its free nations should erect a monument of gratitude, for the indefatigable zeal with which he has made application of those ideas to the service of the great cause of liberty and good government—the assembly has resolved, not only, that of this his offering honourable mention be made in their journals, but also that direction be given to the Regency to cause to be translated and printed all those his works, and that, by one of the secretaries of this august assembly, a letter be written to him, conveying to him the grateful acknowledgments of the cortes, accompanied with the intimation, that those his gifts were addressed to the assembly by one, and presented by another, of the persons who planned and took the lead in consummating those glorious measures, which gave commencement to our political regeneration: and that to the said Bentham be sent an authentic copy of the paragraph in our journals, in which expression is given to this resolution of the sovereign assembly. Hermano José Braamcamp de Sobral, Presidente—Joao Baptista Felgueiras, deputado, Secretario—Agostinho José Freire, deputado, Secretario.
(A true copy)
da Costa Posser.
Order of the Cortes to the Regency for that purpose—Lisbon, 13th April 1821.
Most illustrious and excellent Sir,—
The General and Extraordinary Cortes of the Portuguese nation, desirous of giving a testimony of the particular satisfaction with which they have received the valuable present, made to them of his works, by the illustrious citizen of the world, Jeremy Bentham, and at the same time of contributing to the utmost of their power to the diffusion of the luminous and transcendently useful mass of information contained in those his so interesting productions,—have given orders for the transmission of them to the Regency of the kngdom, for the purpose of its causing a translation of them to be made, and printed at the national printing office, and with superior dispatch published. Your Excellency will accordingly make communication of this to the Regency, that due execution may be given to it.
God preserve your Excellency!
Palace of the Cortes, 13th April 1821.
(A true copy)
Joaquim Guilherme da Costa Posser.
Senhor José Baptista Felgueiras, one of the Deputies to, and Secretaries of, the Cortes, to Mr. Bentham, on conveying the above.—Lisbon, 24th April 1821.
The General and Extraordinary Cortes of the Portuguese Nation, having received the obliging present of those your alike celebrated and interesting works, which have been addressed to them by one, and presented by another, of those well-deserving citizens, who have borne a distinguished part in the glorious achievement of the political regeneration of the Portuguese monarchy,—have resolved, that their grateful acknowledgments for so valuable an offering be made to you, and that they be accompanied by the copy of a minute in their journals, in which honourable mention thereof is made: and moreover, that those same works be translated and published, in such sort as to render manifest to all eyes the extraordinary regard and particular attention with which, by this sovereign assembly, acceptance has been given to those most important writings of the illustrious friend of man, and conspicuous advocate of the cause of nations. God preserve you, Sir!
Given at Lisbon, at the palace of the Cortes, this 24th day of April [1821.]
Joao Baptista Felgueiras.
Mr. Jeremy Bentham.
On the Cover was the direction following:—“A o Sñr Jeremias Bentham, Londres, do Deputado Secretario das Cortes Geraes e Extraordinarias da Naçao Portugueze, Joao Baptista Felgueiras.”
Senhor Felgueiras, as above, to Mr. Bentham—Lisbon, 22d December 1821.—Received 25th January 1822.
Most illustrious Sir,—
In conformity to a resolution, passed by the Cortes, of the 26th November last, which I had the pleasure to communicate to you the 3d instant,* I have the honour to transmit to you a collection of the journals of the Cortes, as far as they are published, down to the present time, and in which are contained the Nos. down to No. 229: and they will be conveyed to you through the medium of the Portuguese mission in London; from whence also the succeeding ones, as they come out, will be transmitted to you, in pursuance of the resolution of the Cortes. I avail myself with much pleasure of the opportunity thus afforded me of expressing to you those sentiments of particular consideration and esteem, with which I am, Sir, your most respectful and affectionate venerator,
Joao Baptista Felgueiras.
To the most illustrious Jeremy Bentham.
Lisbon, Palace of the Cortes,
On the outside cover, in another hand, was what follows:—“By the first conveyance;—On the second, the letter will be accompanied by a package, which will be sent by the first opportunity by sea.”
17th April 1822.—In the list of these testimonials [No. 4,] mention is made of the special offer, on my part, to the Portuguese Cortes, to draw up a code of the description in question for that nation in particular: and of the acceptance given to that same offer by that same Cortes. In the preceding column is Mr. Secretary Felgueiras’ letter to me of the 22d December, announcing a copy of the Portuguese journals, in which mention is made of a resolution of the Cortes, as having passed on the 26th November 1821, and been communicated to me, by a letter of his, dated the 3d of the then next ensuing month. Neither the collection of journals so announced, nor the letter by which it is announced, have ever yet reached me.† From the Portugese mission in London I have just received assurance, that neither that copy of the journals which was destined for me, nor another which was destined for that mission, were yet come to hand. The Diario do Governo is an official daily paper, by which, publication is given to state papers from the Cortes, as well as from the various subordinate offices. No. 284 of that paper, dated the 30th of November 1821, lies before me. In it is a translation of that same letter of mine. It is preceded by a notice, of which the following is a literal translation:—“The following paper is that which was referred to in the 241st sitting, as reported in the Diario of Tuesday last, No. 281.” “Translation of the Letter which the venerable jurisconsult, Jeremy Bentham, addressed to the Cortes of Portugal, and of which an account was given by Mr. Deputy and Secretary Felgueiras, in the sitting of the 26th of November.” This 26th is the same day, on which, according to his abovementioned letter, the resolution was passed, ordering the copy of the journals to be sent to me. It seems, therefore, that on this same day, on which the account was so given by him, the resolution, containing the acceptance of the offer, was passed: and that the order for the transmission of a copy of the journals, being a natural consequence, was included in it. Of this resolution, mention cannot but have been made in some No. of the Diario published between that same 26th November, and that No. which bears date on the 30th: but all the endeavours of my personal friends, to which (I am assured) have been added those of the Portuguese mission, to find here in London a copy of the No. thus desired, have been fruitless. At the end of little less than three months, reckoning from the 25th of January 1822, in which Mr. Secretary’s above-mentioned letter was received by me, irresistible circumstances forbid my delaying any longer the completing of the impression of this proposal, imperfect as is the state, in which these testimonials are thus brought to a close. Jeremy Bentham.
At the end of the translation of my letter, is an apology from the Cortes, for the interval that had elapsed, namely, between the 26th—the day on which the account had been given of it, as above, and the 30th—the day on which the translation was published in the Diario. The following is a literal translation:—
“N. B.—The above letter was not published on the day above designated, from the translations not having been finished in the office of the Cortes. The short-hand writer reported this delay, being officially directed to be prepared on the day announced.”
Reference being made as above to the letter from the individual to the Cortes, and a conception of it, not quite correct in several particulars, having been conveyed by an English re-translation inserted in an English newspaper from the Portuguese,—the following copy of the original one may be thought, perhaps, to be not altogether out of place:—
Jeremy Bentham, London, to the Portuguese Cortes—7th November 1821.
Portuguese Cortes! Worthy rulers of a regenerated people! Worthy rulers, only because faithful servants!
Our correspondence is a singular one: the world’s eye is upon it. It is an useful, it is an instructive one. I continue it.
Once already I have put your virtues to the test: nobly have they stood it. One trial still remains.
Once more must I bring to your view the never to be forgotten phrase—greatest happiness of greatest number—all-comprehensive and sole justifiable end of government. On a collection of works, by which the light of that all-commanding principle has, with more or less intensity, been shed on almost every part of the field of government, the seal of your approbation has been already stamped. All together, however, they form little more than an outline, nor that anything better than a rough and incomplete one. That outline, would you see it not only corrected and completed, but filled up?—filled up by a body of proposed law, conceived, and, as to all the most important parts of it, expressed, not in detail only, but in terminis? Speak the word, and you shall have it.
In the first place, a proposed penal code; in the next place, a proposed civil code; in the last place, a proposed constitutional code—this is what I have to offer you. In all of them, the circumstances in which Portugal stands will be kept steadily in view: these circumstances, so far as they can be learned from your judicial customs and existing ordinances, more particularly such ordinances as, in the intervening interval, shall have emanated from the regenerated legislature. To these will be added, whatever information, from any appropriately intelligent citizen of yours, I may be fortunate enough to have found within my reach. Where, owing to the fluctuating nature of the incidents, by which the demand for legislation is produced, arrangements proposed in terminis would be inapplicable, general directions or instructions will be substituted. Finance law will suggest to you examples.
Subjoined to this address is an appendix. In Part I. are Testimonials: in Part II. Reasons for acceptance. It is for your table this appendix:—not for your ears.
As to testimonials, those, which you yourselves have given me, are worth all others put together. Still it may be some satisfaction to you to see, that in your own opinion in favour of this your proffered servant, there is not anything, with which that of other countries, more particularly his own, seems likely to be in discordance. Of the reasons for acceptance, the matter (I have said) is for your table. Length, and respect for your time, have rendered the separation necessary. To your ears, however, I venture to submit the heads of it.
No: I will not, as yet, seek to burthen you with it. It is, however, ready, and the next post shall bring it to you.
Legislators! such is the mite I offer to cast into your treasury. But before the cast, or the mite itself, can have been made, something on your part must have been done—something to this effect you must have said to me: “Friend of man, send in these works of yours; they shall be laid upon our table. Rejection in toto—consideration in detail—sanctionment, of one part or of another part—at one time, at another time, or at no time—all this will depend, for it cannot but depend, upon the judgment formed by us, as to what is most conducive to the greatest happiness of the greatest number of the people under our charge. For thus much, however, the Cortes pledges itself, in so far as it is in its power to pledge itself: each of these your proposed codes shall, on its arrival, by the earliest opportunity, be taken for the subject of our deliberations.”
“Well but,” says somebody, “this present of his—why all this talk about it? why not send it to us at once?”
Legislators! it is not made: and because it is not, therefore it is that I thus offer it.—Without acceptance, such as that I have spoken of, I am not sure that it ever can be made: what I am sure of, is—that it cannot be made either so promptly or so well. At the age of three-and-seventy, the current of the blood runs slow: something is wanting, something from without to quicken it.
One short word more. Let there be no mistake. Acceptance is what I call for; acceptance—nothing more: no such thing as preference, much less exclusive preference. As to rival works, not to exclude, but to multiply them, would be my wish: rival works, from any hands, but more particularly from native ones. Of the sincerity of this wish, proof more than in abundance is already in your hands. It may be seen at length in one of those former works, by the acceptance of which your character has already shed its lustre on the untitled and title-scorning name of
*∗* For the words untitled and title-scorning, the words in the Portuguese are—simples e humilde. The accordance (it may be seen) is not, in this instance, altogether a perfect one.
The Portuguese Cortes to Jeremy Bentham.—Received through the Portuguese Mission at London, 22d April 1822, since the impression of the above. Acceptance given to his offer of an all-comprehensive Code: Acts and Journals of the Cortes to be accordingly sent to him successively.
The General and Extraordinary Cortes of the Portuguese Nation,—presentation being made to them, in the sittings of the 26th of November last, of a letter addressed to them by you, making offer of, and requesting acceptance for, three proposed codes—one civil, another penal, and another constitutional, accommodated, all of them, to the circumstances of Portugal; adding the mention of an appendix, intended to be sent by the then next conveyance,—have resolved that, in an act of the Congress, mention be made of that highly valued offer, which the Cortes have accepted with particular pleasure, inasmuch as the well-known lights and experience of so celebrated a jurisconsult, and illustrious friend of mankind, will thus come in aid of an undertaking of our own, in which that same field is comprehended: as also, that a translation of the afore-mentioned letter be published in the daily paper of the government, and with the original in front of it in the Journal of the Cortes: and that transmission be made to you of a collection of the acts and journals of the Cortes, as also of the several continuations thereof as they come out. All which, by order of the Cortes, I have the pleasure of communicating to you for your information. God preserve you, Sir!
Joao Baptista Felgueiras.
Lisbon, Palace of the Cortes,
The Portuguese Cortes to Jeremy Bentham.—Received through the Portuguese Mission at London, 22d April 1822. Translation ordered of his Letters to Count Toreno, on the proposed Spanish Penal Code.
Most illustrious Sir,—
The General and Extraordinary Cortes of the Portuguese Nation, to which I gave an account of your letter of the 30th of January of the present year, have heard with pleasure the obliging expressions which it contains, and received with thankfulness the present sent by you of a work intituled “Letter to Count Toreno, on the proposed Penal Code, delivered in by the Legislative Committee of the Spanish Cortes:” and they have resolved that, on that occasion, transmission shall for the second time be made to you, of the letter of the 3d of December of the last year, and that to the minister of foreign affairs orders be given to take the necessary arrangements, in such sort that this correspondence, as also the successive continuations of the journals of the Cortes, shall, with all promptitude and certainty, be transmitted to you through the Portuguese legation at London, in conformity to the resolution of the 22d of December 1821. All which, by order of the Cortes, I have the pleasure to communicate to you for your information. God preserve you, Sir!
Joao Baptista Felgueiras
Lisbon, Palace of the Cortes,
Opinion of the Italian Liberals, in relation to Mr. Bentham, as delivered in the Antologia, a Periodical work published at Florence, 1822.—(N. B. From any constituted authorities in that quarter, nothing of this sort (it is evident) can be expected.)
Geneva, 15th January 1822.
There appears at Florence a miscellany (Antologia,) in which, from the work on evidence, is a translation of a chapter on publicity, which I had given to the Annales de Legislation, published at Geneva. It is not altogether without surprise that I can see a government, subject to the immediate influence of Austria, thus permitting the appearance of an article such as the one in question, accompanied as it is with the excellent notes of Rossi, whose name is so far from being in good political odour, either in Milan or in Rome. The work on evidence is there announced and spoken of in these terms:—“Gli amici dell’ umanitá desiravano di veder trattata la materia delle institutioni giudiciarie, da quel genio veramente superiore della etâ nostra, dal Signor Jer. Bentham, chiamato a ragione il Bacone della scienzia legislativa. I suoi trattati di legislazione civile e penale, e le altre opere di questo sublime pensatore, presentavano finora una lacuna su questo articolo, che niuno meglio di lui avrebbe potuto riempire.”
“The friends of mankind had been desirous of seeing the subject of judiciary institutions treated of by that truly superior genius of our age, Mr. Jeremy Bentham, styled with such good reason the Bacon of the legislative branch of science. His treatises on legislation, civil and penal, and the other works of that sublime mind, have till now been presenting on this field a gap, which no one could have been better qualified to fill up.”
After that, comes a biographical article, tolerably correct, taken from the French work, “Biography of men now living.”
To account for the allowance, given by the censorship in an Italian metropolis, to the publication of such an article, it is necessary you should understand, that Tuscany has been fortunate enough to have preserved that publicity in judicial proceedings, for which it had been indebted to the influence of the French government.
The Newton of Legislation was an appellation, bestowed upon the same author, in an Italian publication, which appeared at Milan a few years ago, but was soon suppressed: the reference cannot at this moment be recovered. In the physical world, Bacon cleared away the rubbish of antiquity: Newton built.
☞ See, under this head, the list of these testimonials.
ANGLO-AMERICAN UNITED STATES.
Governor Plumer’s Letter to Mr. Bentham, announcing the intended communication of his offer to the Legislature of New Hampshire.
New Hampshire, Epping, October 2, 1817.
A few days since I received a note from my much esteemed friend the Hon. Mr. Adams, now Secretary of State, accompanied with your “Panopticon,” and “Papers relating to Codification;” in the last of which, with a generosity truly honourable not only to you as an individual, but to man in general, you gratuitously propose to devote your time and talents in drawing a code of laws for any State who shall require it, both civil and criminal, to supersede the unwritten law.
I have long considered such a work as a great desideratum in legislation—and that it would, in a great measure, not only correct the numerous errors and gross absurdities, but destroy the great uncertainty of what is called the common law, and render our government, more emphatically, what it has with so little propriety boasted of—a government not of men but of laws. How far it is practicable to establish such a system in New Hampshire, I cannot determine. We have not only a host of prejudices to encounter, but the interests of a body of lawyers, many of whom here, as in all other countries, dread reform, fearing it would diminish their individual profits. Public good is too often sacrificed to private interest. When will the individual learn, that his private interest is most effectually promoted, by permanently securing that of the public?
The Legislature of this State usually hold annually but one short session, and that in June. At their next session, I will, if I live, communicate your “Papers” to our legislature; and I hope they will receive that candid consideration which their high merit demands.
My continuance in office depends on annual elections—and the authority vested in me is restricted. I have no power, as chief magistrate of the State, to request you to draw a code of laws for this State; but, whether I continue in office, or return to private life, whatever communications you may hereafter please to make to me on that subject, I will find means of transmitting to our legislature; and will do everything in my power to effect a thorough investigation of them.
Persevere, my dear Sir, in the great and important work in which you are so disinterestedly engaged. The world, if not now, at some future period, will profit by your labours—and though immediate success may not follow, you yourself will enjoy the noble consciousness of having faithfully served the best interests of society—and a rational prospect that sound principles will eventually prevail.
Should you wish a copy of the laws of New Hampshire, if you will intimate it to me, I will take effectual care to forward them to you.
Be pleased to accept copies of my three last public communications to our legislature—and an address to the clergy of New England, which I wrote during our late war with your nation. These small pamphlets I inclose under the same envelope with this letter.
Accept my grateful acknowledgments for your communications—and believe me to be, with much respect and esteem, Sir, your most obedient humble servant,
Extract from a private Letter to Mr. Bentham, from a distinguished Functionary in the United States, Member of the House of Representatives in his State, and Delegate therefrom to Congress, informing him, how, by the Governor of New Hampshire, Mr. Bentham’s above-mentioned offer had been recommended to the consideration of the House of Representatives; and stating the influence of the fraternity of Lawyers as the cause of the reluctance in the several States as to the acceptance of any such offer: stating, moreover, the adoption which at that time had been given to divers of Mr. Bentham’s ideas in several of the States.—(N. B. Those of Mr. Bentham’s works which were edited by Mr. Dumont, being in French, were not at that time known to the writer, and had scarcely found their way into the United States. October 2, 1818.)
The letter, which the governor of New Hampshire wrote you about a year since, having been published in England, was copied into the newspapers of that state, a short time before the meeting of the legislature, accompanied with many very foolish and absurd remarks, in which your character and designs were ridiculed, and your proposed system of laws abused and misrepresented, in a style and manner not much unlike that which a little earlier appeared in the Quarterly Review of your “Plan of Parliamentary Reform.” It is hardly necessary to add, that the governor came in for a full share of the censure heaped upon you for the approbation which his letter contained of your proposed work. You will perceive, however, from his message at the commencement of the session, that he was not prevented by this circumstance from bringing your proposal fairly before the legislature.
To give it a better chance of success, a son of his, who is a member, at the same time caused the greater part of an article on this subject, in a late Edinburgh Review, to be republished in the leading republican newspaper of that state, and to be put into the hands of the members of the legislature. When, however, that part of the message was taken up in the house of representatives, on report of a committee it appeared, that, except that gentleman, all the lawyers of both parties (twelve or fifteen, the most influential members of the house) were decidedly opposed to passing any other resolve on the subject than a general one—that it was inexpedient to accept your proposal.
Of the members of the bar who were thus unfriendly to this design, some were no doubt influenced by a belief (not unnatural with those who have made the common law their study during life, and who for twenty years have heard and repeated its eulogium, as the perfection of human reason, without once suspecting that it admitted of any improvement) that little or no alteration was necessary, and least of all, so entire and radical a change as that proposed by you. To those somewhat advanced in years, the thought of commencing a new system, and of becoming learners when they had been long accustomed to teach, was an idea certainly not very pleasant, and one which they did not choose to adopt, for the uncertain prospect which it presented to their minds of some remote and doubtful advantage to the community. Others were perhaps swayed by the persuasion, that the new system would prove injurious to the profession, by rendering the law more clear and explicit, and thus diminishing the profits which are at present derived from its uncertainty and obscurity. From these, or other motives, they pronounced the project visionary, impracticable, unnecessary—unworthy of attention, because presented by a person who must be ignorant of our situation, and unacquainted with our wants;—with many other similar objections, all addressed to the ignorance, the prejudices, and the pride, of men whose sober judgment was prevented, by every artifice, from applying itself to this important subject with candour and impartiality. While, therefore, those who were supposed to know the most in relation to our legal establishments and the means of their improvement, were all opposed to the introduction of a new system, and those who were willing to give it a fair trial were in general but little acquainted with its merits,—you will readily perceive the disadvantages under which it laboured. It was not indeed difficult, in my opinion at least, to return satisfactory answers to all these objections. But you have, I think, yourself remarked, that it is not always by the most rational arguments that the strongest impression is made. The motives, therefore, which I have mentioned, with others of a like nature, added to the novelty of the subject and the pressure of other business, induced the house finally to accept the report of their committee, which was, that the further consideration of this subject be postponed to the next session of the legislature, which is in June 1819. Your proposition was therefore, strictly speaking, neither adopted nor rejected, but postponed. It will next June be reported among the unfinished business of the last session. Whether anything further will be at that time effected, I am unable to say, but I am afraid there is very little hopes of any favourable result.
I have taken some pains to ascertain whether your proposal has met with a more just reception in any other of the United States; but I am inclined to think that it has not. I do not find it mentioned in the speeches or messages of any of the governors to the several state legislatures which I have seen.
Under these circumstances, permit me, with deference, to suggest the following views for your consideration:—
What may be called the philosophy of law—that is, the general principles of civil and criminal jurisprudence, founded on the broad basis of utility, and adapted to the wants of a civilized and enlightened people, engaged in the ordinary pursuits of agriculture, manufactures, and commerce—has never yet, so far as I am acquainted with books, been justly and correctly treated, in all its bearings, and in the amplitude of its details, by any author who has written upon the subject of law. We have indeed systems of the Roman law, of the Feudal law, and of the English law, and other national systems: and Montesquieu has given us “L’Esprit des Loix”—an excellent title, and in truth an excellent book, but not exactly such a one as I wish to see written. We still want a work, unfolding the true principles of law in the abstract, as derived from the nature of man, and the necessary structure of society—the beau-ideal of law, such as it never yet has been in any state, such as it never will be, but such as every state ought, as near as possible, in its own case, to make it. We have now no general standard of legal perfection, in all its various branches—no model of acknowledged excellence, with which to compare our different systems. You, Sir, are eminently qualified to provide such a model, to raise such a standard, to mark out the boundaries, and prescribe the form of a truly wise and enlightened system of jurisprudence. You have expended a vast fund of original thought, and devoted years of patient examination to every part of this extensive subject. Permit me, then, to request, that you would enrich the public with the important results of these laborious studies.
Two modes occur to me as the only ones in which this service could be rendered to mankind. The first is—by the publication of a work in the didactic form, in which the general principles of law should be unfolded and explained—as, for example, those of political economy are, in Smith’s Wealth of Nations. Perhaps this has already been done in your “Introduction to the Principles of Morals and Legislation,” or in the works published from your papers by M. Dumont. I have sent to London for these books, but have not yet obtained them.
The second mode of communicating to the public the result of your labours in jurisprudence—a measure not inconsistent with the former—would be to publish a complete code of laws drawn up in terminis:—a Pannomion—founded upon correct principles, and extending, if such a thing be possible, so as to embrace the whole mass of human transactions, cognizable by human laws. In such a work you would be at no pains to accommodate your enactments to what is already law in Europe or in America,—but to what ought to be law in the most improved state of society—to the true principles of general utility, on which alone all just legislation rests. Yet, supposing such a work once completed, and further, that each of its provisions was in itself the best that could possibly be imagined, it would still be doubtful, whether any state or nation could be found to whose circumstances it would exactly apply: and it is, I think, very certain—such is the temper of deliberative assemblies—that there is no state which would at once, and by a single act, adopt all its provisions. But, if executed with half the ability which you would bring to the undertaking, an immense advantage would result to mankind from the publication of such a work. A standard would thenceforth exist, by which we in the United States, at least, might estimate the true value of our legal systems, improve them where they admitted of improvement, reject such parts as are injurious or imperfect, and incorporate such new principles, or new applications of old principles, as are suited to our situation; and in a word, perfect our legal, as we have endeavoured to do our political establishments, by calling to our aid the wisdom and the philosophy, the speculations and the experience, of all ages and of all countries. The utility of such a work would be acknowledged in every part of the civilized world, because in every country the improvement of the law is an object of primary and permanent importance. Instead, then, of waiting for the previous sanction of some legislative body, if you were to publish your proposed code of laws, as soon as it is completed, or such parts of it as admit of being separately exhibited, there is very little doubt, that the beneficial effects which you anticipate from its entire adoption would in a very considerable degree be ultimately obtained.
The influence of your writings has already been extensively felt in the United States. Your work on usury has passed through several editions in this country; and its principles begin to be pretty generally adopted by men of enlarged views and liberal minds amongst us. In the constitution of the new State of Mississippi, which was formed in 1817, it is provided that the legislature of that state shall “pass no law impairing the obligation of contracts, prior to 1821, on account of the rate of interest, fairly agreed on in writing, between the contracting parties, for a bona fide loan of money; but they shall have power to regulate the rate of interest, where no special contract exists in relation thereto.” This provision of the constitution of Mississippi, being limited to four years, was no doubt intended as an experiment; but, having once felt the advantages of unrestrained liberty, and a free competition in this branch of trade, there is little danger of a return to the absurd restrictions which prevail in other States of the Union.
In the Alabama territory, an act has this year been passed, repealing all the laws against usury, and allowing the parties in all cases to fix their own rate of interest.
A similar law, introduced by Mr. Hayes in the Virginia house of delegates, was rejected by a majority of six or eight votes only, out of two or three hundred.
In New Hampshire, the same subject was agitated in the house of representatives, at their last session; but they are not yet prepared to renounce their old prejudices.
On the subject of state prisons, or penitentiaries, many of your suggestions have also been reduced to practice, though no building has, I believe, been erected on the plan of the panopticon in any of the states. The contract-principle, so strongly recommended by you, has been adopted, with great advantage, though not to its full extent, in some of our state prisons.*
*∗* For other testimonials from the United States, also from Russia and Poland, see List of Testimonials in Contents, Nos. X. XI. and XII.
Prince Alexander Mavrocordato, Secretary to the Provisional Government of Greece, to Jeremy Bentham; introducing No. 2.
Je m’estime heureux d’être chargé de vous faire connaître les sentimens de gratitude et de reconnaissance de mon gouvernement, pour les observations que vous nous avez envoyées sur notre loi organique. Il était digne d’un ami de l’humanité, d’un des plus respectables philosophes de notre temps, d’apporter l’attention de son génie au bonheur d’une nation, en qui quatre cents ans d’esclavage et de misère, n’avaient pû parvenir à effacer le sentiment de ses droits, et de ses devoirs.
Continuez, donc, Monsieur, de nous éclairer par vos conseils, de nous diriger par cette raison superieure, qui immortalise vos ouvrages, et que votre suffrage, cité en faveur de notre cause, en devienne le plus ferme appui, comme il est déjà le garant le plus certain, de notre triomphe.
Veuillez bien agréer, Monsieur, l’assurance de ma parfaite estime, et celle de la haute considération avec laquelle j’ai l’honneur d’être, Monsieur, votre très humble et très obéissant serviteur,
(Signé) A. Mavrocordato.
Tripolitza, Juin 22 (Juillet 4) 1823.
A Mons. M. Jeremy Bentham,
I think myself happy in being charged to communicate to you the sentiments of gratitude and thankfulness of my government, for the observations you have sent to us on our fundamental law. It was worthy of a friend of humanity, of one of the most respectable philosophers of our time, to direct the attention of his genius to the well-being of a nation, in which four centuries of slavery and misery had not been able to efface the sentiments of its rights and its duties.
Continue, then, Sir, to enlighten us by your counsels, and to guide us by that superior intelligence which immortalizes your works, and let your good opinion, when quoted in favour of our cause, become the firmest basis, as it is already the surest guarantee, of our triumph.
And accept, Sir, the assurance of the high esteem and consideration with which I have the honour to be, &c. &c. &c.
(Signed) A. Mavrocordato.
Tripolitza, June 22 (July 4) 1823.
To Mr. Jeremy Bentham,
Πϱοσωϱινὴ Διοίϰησις τῆς Ἑλλάδος.—Ὁ Πϱόεδϱος τοῦ Βουλευτιϰοῦ πϱὸς τὸν Κύϱιον Ἱεϱεμίαν Βενθάμ.
Ὁ φιλελληνιϰώτατος Κύϱιος Βλαϰιαῖϱος, ϰαὶ φίλτατος συμπολίτης μας Κύϱιος Α. Λουϱιώτης ἐπϱόσφεϱαν, ἐξ ὀνόματός σας, εἰς τὴν Βουλὴν τῆς Ἐλευθέϱας Ἑλλάδος, ἐπὶ ϰοινῆς Συνεδϱιάσεως, τὰς εἰς τὸ Πολίτευμά μας παϱατηϱήσεις Σας· ϰαὶ ἡ Βουλὴ τὰς ἐνεπιστεύθη εὐθὺς εἰς Ἄνδϱα, εἰδήμονα τῆς Ἀγγλιϰῆς Γλώσσης, διὰ νὰ τὰς ἐξελληνίσῃ ὅσον τάχιον εἰς ϰοινὴν χϱῆσιν ϰαὶ ὠφέλειαν.
Ἡ Ἑλλὰς ὀφείλει νὰ ὁμολογήσῃ εἰλιϰϱινῶς ϰαὶ παῤῥησίᾳ πόσον ἐχάϱη ϰαὶ ἐμψυχώθη, βλέπουσα τὸν Νομοδιδάσϰαλον τοῦ διϰάτου ἐννάτοὺ Αἰῶνος νὰ διαϰόψῃ πϱὸς ϰαιϱὸν τὰς σοφάς του ἐϱγασίας, ἀφοϱώσας τὴν ϰοινὴν εὐδαιμονιάν τῆς Εὐϱώπης ὅλης, διὰ νὰ πϱοσηλώσῃ τὴν πϱοσοχήν του ϰαὶ τοὺς ϰόπους του εἰς μόνην τὴν εὐδαιμονίαν τοῦ Ἑλληνιϰοῦ Ἔθνους.
Ἡ Βουλὴ πϱολαμβάνει, ϰαὶ δημοσίως Σᾶς ϰοινοποιεῖ δἰ ἐμοῦ τὴν εἰλιϰϱινῆ της χαϱὰν ϰαὶ βαθεῖάν της πεϱὶ τούτου εὐγνωμοσύνην, βέϐαιος οὖσα, ὅτι ἔχουσα τοιοῦτον Συνεϱγάτην, ὅστις ϰαὶ τὰς χϱείας γνωϱίζει τοῦ ἀνεγειϱομένου Ἔθνους ἀπὸ τὴν πολυχϱόνιόν του πτῶσιν, ϰαὶ ἱϰανώτατος εἶναι νὰ εὕϱῃ τὴν ἀνήϰουσαν ϑεϱαπείαν, ϑέλει φθάσει ϰαὶ συντομώτεϱον ϰαὶ εὐτυχέστεϱον εἰς τὸ μέγα ἔϱγον τῆς ἠθιϰῆς του ἀναπλάσεως, ὅθεν ϰϱέμαται ἡ ἀληθής του ϰαὶ μόνιμος δόξα.
Ἡ Βουλὴ, ἡ ὁποία νομίζει ὄχι μιϰϱὸν εὐτύχημα τῆς Ἑλλάδος νὰ ἀναγεννηθῇ εἰς τὰς ἡμέϱας, ϰαθ’ ἃς ζῆτε, πεποίθησιν σταθεϱὰν ἔχει, ὅτι ὠφελουμένη ἀπὸ τὰς τωϱινάς Σας παϱατηϱήσεις, δὲν ϑέλει ϰαὶ εἰς τὸ ἑξῆς στεϱεῖται τῶν σοφῶν Σας ὁδηγιῶν, ὥστε ϰαὶ ἀπὸ τὰς μετὰ ταῦτα βοηθουμένη, νὰ ἀσφαλίσῃ τὴν ἀναγέννησιν τῆς φιλτάτης Σας Ἑλλάδος, μὲ τὴν ἀϰαταμάχητον εὐνομίαν, τὸ μόνον ἀσφαλὲς πϱοπύϱγιον τῆς ἐθνιϰῆς της εὐδαιμονίας.
Αὐτὰ Σᾶς ϰοινολογῶ, Κύϱιε, ἐϰ μέϱους ὅλης τῆς Ἐθνιϰῆς Βουλῆς· ὅσον τὸ ϰατ’ ἐμὲ, εὐτυχὴς εἶμαι, ὅτι ἔλαϐον αὐτὴν τὴν ἔντιμον Διαταγὴν νὰ ϰοινοποιήσω τὰ τοιαῦτα εἰς Ἄνδϱα, πϱὸς τὸν ὁποῖον πϱοσφέϱω ἰδιαιτέϱως τὸ βαθὺ σέϐας, ϰαὶ τὴν ἀνήϰουσαν ὑπόϰλισιν.
Ὁ Πϱῶτος Γϱαμματεὺς τοῦ Βουλευτιϰοῦ,
Τῆ ιϐ′ Μαΐου τοῦ αωϰγ’
Provisional Government of Greece. The President of the Legislative Council to Mr. Jeremy Bentham.
Mr. Blaquiere, that distinguished friend of the Greeks, in conjunction with our beloved fellow countryman, Mr. A. Luriottis, has delivered, in your name, to the Legislative Council of Liberated Greece, in general convocation assembled, your observations on the subject of our form of government: the council has thereupon committed them to the care of a person skilled in the English language, with directions to translate them, with as much dispatch as may be, into Greek, for the common use and benefit of the nation.
It is a duty incumbent on that nation to make an open and sincere declaration of those sentiments of affection and delight with which she beholds the preceptor of the nineteenth century in the school of legislation, suspending the course of those labours, which were embracing the general happiness of Europe, for the purpose of devoting them, in a more particular manner, to the service of Greece.
The Council has been the first to feel, and takes this public mode of communicating to you, through me, its heartfelt delight and profound gratitude; confident that, with such a coadjutor, whose comprehension of the exigencies of a nation raising herself out of a long-continued depression, and of the most appropriate mode of providing for them, is so consummate, she will make her advances with proportionably greater speed and better fortune, in the great work of that moral regeneration, upon which her truest and most permanent glory depends.
The Council, in whose estimation it is matter of no slight happiness to Greece, that it is in your lifetime this great work is in progress, cherishes the persuasion, that after having thus been already favoured with your well-timed observations, it will not for the future have to lament the want of your fostering guidance; so that henceforward, by your assistance, it may secure the revival of your beloved Greece, by an unsubvertible good government—the only inexpugnable bulwark of national felicity.
This, Sir, is what, by these presents, I communicate to you, on the part of the whole National Council. On my own part, I regard it as matter of good fortune to myself to have received so honourable a commission as that of making a communication of this sort, to a man for whom I personally feel such deep respect, and all becoming reverence.
First Scribe of the Council,
Tripolitza, May 12, 1823.
Prince Alexander Mavrocordato, Secretary to the Provisional Government of Greece, to Jeremy Bentham: introducing the two Greek Envoys.
Je suis particulièrement chargé par mon gouvernement de vous recommander la mission qui, chargée d’éclairer la nation Anglaise, et par elle toute l’Europe, sur le véritable état des choses en Grèce, et de détruire les calomnies que nos ennemis n’ont que trop répandues contre les principes et le but de notre entreprise, a besoin de vos sages conseils, et de l’appui de vos suffrages en faveur de notre cause, afin d’arriver à son but.
Persuadé de la noble et généreuse assistance que vous voudrez bien accorder, par l’influence de vos talens, à une cause que vous avez déjà si victorieusement défendue, je vous prie, Monsieur, d’agréer d’avance la gratitude du gouvernement provisoire et de la nation Grecque, ainsi que celle de mon estime particulière, et de ma plus haute considération.
(Signé) A. Mavrocordato.
Tripolitza, le 24 Juin, 1823, V. S.
A Mons. M. Jeremy Bentham,
I am especially charged by my government to recommend to you the mission which, being ordered to instruct the English nation, and through it, the whole of Europe, as to the true situation of things in Greece, and thus to destroy the calumnies which our enemies have but too widely spread against the principles and the object of our struggle, will have need of your judicious counsels, and the support of your suffrages in favour of our cause, in order that we may reach the [desired] end.
Anticipating that generous assistance which you will kindly grant by the influence of your talents on behalf of a cause you have so victoriously defended, I pray you, Sir, to accept beforehand the gratitude of the Provisional Government of the Greek nation, as well as that of my individual esteem and highest consideration.
(Signed) A. Mavrocordato.
Tripolitza, June 24 (July 4,) 1823.
To Mr. Jeremy Bentham,
Jeremy Bentham to the Greek Provisional Government—Letter 1. In answer to the foregoing.
Legislators of regenerated Greece!—
Whether for the sort of encouragement with which you have been pleased to honour me, any such praise is due as that of discernment, it belongs to the world at large, not to him who is the object of it, to pronounce. Of the magnanimity manifested by an address of this complexion to a man whose position is so completely destitute of everything which could render him an object of such notice to ordinary minds—to a man from whom no service can possibly have been looked for in any shape but that in which a small particle of it has already been so richly remunerated,—there can be but one opinion: such is the honour your body has conferred on itself, and by nothing more that I could say, could any addition be made to it.
As to me, to the illustration conferred on me by such a letter, has been added the most singular one of its being delivered by the hand of the very person, by whose signature, in his character of president of your body, it was authenticated; a man whose warrant I have already for calling him by the endearing name of son. “Orlando,” said I to him t’other day in French, “thus, and thus only, can I address you. Monsieur Orlando?* My lips close against the words. Monsieur Solon? Monsieur Pericles? Monsieur Epaminondas? Monsieur Philopœmen? Who ever heard any such barbarisms?” “Let me but call you father,” was the answer, “and call me what you please.”
Κύϱιος Bentham, indeed? Legislators! To others, if you please: to me, as you love me, no more Κύϱιος. Common as the word is, there is a glare of legitimacy upon it that hurts my eyes. Give it to my imperial correspondent; give it to the Αὐτοϰϱάτωϱ—the modern Alexander; from him, peradventure, you may have a note of thanks for it: but, in this case, or you may lose your labour, it should be in the superlative—sublimated into Κυϱιώτατος.
Oh yes! when you speak to me, add ἡμέτεϱος to it,—or, as you now say, μας. This I have already merited: this, if from you, would be my most honourable title. If to do so be in the power of labour, no hired servant ever merited it better, unless by the pleasure so intimately combined with it, the merit, as in the eyes of certain casuists, would be annihilated. Seventy years ago, I devoted myself to the service of mankind: and now, at length—for by you am I enabled—now, at length, nor yet altogether without prospect of success, do I behold myself occupied in the performance of that vow.
This will be delivered to you by the worthy comrade of our Luriottis, Edward Blaquiere, by whom his title of φιλλεληνιϰώτατος, as given to him in yours to me, continues to be so well merited.
Farewell, legislators! May success ever attend your labours in the council, as it has done those of your heroes in the field. Should any modern Xerxes presume to offer obstruction to them, may his fate be that of the ancient one. Already, in thus writing to you, I have perhaps written too much. I resume the pen which yours found me writing with for you. What remains is—to subscribe myself, and with somewhat more truth than is common in such subscriptions, your δοῦλος.
(Signed) Jeremy Bentham.
Queen’s-Square Place, Westminster,
To the Sovereign Legislative Council of Greece.
Πϱοσωϱινὴ Διοίϰησις τῆς Ἑλλάδος.—Ἡ Βουλὴ τῶν Ἑλλήνων πϱὸς τὸν Φιλέλληνα Κύϱιον Ἱεϱεμίαν Βένθαμον.—Πεϱίοδος β′, ἀϱιθ. 1122.
Ἂν ἡ λαμπϱὰ ϰαὶ Εὐδαίμων Ἂγγλία σεμνύνεται διότι σὲ ἔχει Πολίτην, ἡ Μητέϱα τοῦ Λυϰούϱγου ϰαὶ Σόλωνος, ἡ δυστυχὴς Ἑλλὰς χαίϱει, διότι εὐτύχησεν νὰ ἀπολαύσῃ εἰς τὴν ἀναγέννησίν της τὸν Σοφώτατον ϰαὶ φιλανθϱωπότατον Νομοδιδάσϰαλον.
Τὰ τέϰνα τῆς φίλης Ἑλλάδος ἀνθολογοῦντα ἀπὸ τὸν Πολυανθῆ λειμῶνα τῶν ποιημάτων σου, ἀναπτεϱοῦνται πάντοτε εἰς τὸ ὕψος, τὸ ὁποῖον νὰ φθάσωσιν ἀϰόμη δὲν δύνανται, τὰ Μέλη τοῦ βουλευτιϰοῦ ἀναπτύσσοντα τὰς δυνάμεις των, ϰαὶ ϰατὰ τοὺς ἐπιστημονιϰούς σου ϰανόνϰς, συντελοῦσιν εἰς τὴν βελτίωσιν τοῦ πολιτιϰοῦ τῆς Ἑλλάδος Συστήματος.
Χαῖϱε λοιπὸν φίλε τῆς Ἑλλάδος! ἔχεις ἀξίαν ἀμοιϐὴν τῆς Ἀϱετῆς σου, τὴν ὁποίαν ἀπολαμϐάνεις ἡδονὴν διὰ τὴν εὐδαιμονίαν τῶν φίλων σαυ. Χαῖϱε! ϰαὶ
“Βάλλ’ οὕτως αἴϰεν τι φόως Δαναοῖσι γένηαι.”
Ὁ Ἀντιπϱόεδϱος Θεοδώϱητος.
Ὁ Πϱῶτος Γϱαμματεὺς τοῦ βουλευτιϰοῦ
Provisional Government of Greece. The Greek Senate to Mr. Jeremiah Bentham, Philhellenist.—Letter 2. Noticing his Letter 1.—Period 2d, No. 1122.
If splendid and happy England is proud of having you for a citizen,—unhappy Greece, the mother of Lycurgus and Solon, rejoices that she has had the good fortune to obtain in her regeneration a most able and humane law-giver.
The children of friendly Greece, gathering flowers from the flowery meadow of your works, are continually soaring to a height which they have not as yet been able to attain. The members of the senate are developing their powers; and, according to your scientific rules, are co-operating in the amendment of the political system of Greece.
Hail, then, friend of Greece! you possess a reward worthy of your virtue, in the pleasure which you receive from the happiness of your friends. Farewell, and
“Strike thus, that you may procure some salvation for the Greeks.”—Homer, 282.
Jo. Scandalides,Chief Secretary of the Senate.
Napoli, August 11, 1824.
Provisional Government of Greece. The Secretary-General to J. Bentham, Esq.—Period 2d, No. 254.
It is with great satisfaction suffering Greece has observed, that, while she took up arms to assert the rights of her political existence, the enemies of the public good, and the friends of their own narrow interests alone, have, with all their sophisticated attempts, not been able to attach the slightest blame to the sanctity of her cause; but, on the contrary, their intrigues have caused the veil to be withdrawn which has hitherto concealed the truth from the eyes of the many.
She cannot, however, refrain from expressing her thanks to those persons whose feelings of humanity have prompted them, from the beginning, to interest themselves in her defence of those indisputable rights which belong to her, and have shown, in various ways, that they wished to behold the light which was kindled and kept alive by Thrasybulus and Epaminondas—the light of freedom—again burning upon her sacred soil, and which the right of the stronger had extinguished for so great a length of time.
Sir, your noble sentiments were long ere this well known to our nation. But your timely proposal of the plan of a political and constitutional code—which, as being the offspring of so distinguished a political philosopher, will happily organize the infant constitution of Greece—has still more clearly evinced your friendly sentiments for the Greeks. But, besides this, your proposal for educating three young Greeks at your expense, offers still further motives to the sincere gratitude of the Greek nation, and the great satisfaction of that government, whose sentiments I am charged to interpret: for from this it is evident that you wish not only the political existence, but the moral welfare of our nation.
I am charged also to assure you, that my government desires you will not cease continually to watch over her operations, and to afford her the benefit of those deep political views of which Greece at present stands so greatly in need, in order to be led happily to the sacred end of her independence; an end which the respectable friends of the Greek cause will not cease to accelerate by all possible means that are consistent with the general good of human nature; and while tradition and history will preserve immortal the revered names of such persons, the gratitude which exists in the hearts of the Greek nation will remain indelible.
The Provincial Secretary-General,
(Signed) P. G. Rodios.
The 12th of August 1824, O. S.
Letter 2. To the Greek Provisional Government: with the Buenos Ayres Tactic Code, &c.
Ci-joint est un present que je prends la liberté de vous offrir. Ce n’est pas ce qui auroit été un ouvrage de ma façon, un simple projet, et rien de plus: c’est un réglement, qui déjà pendant trois années a dirigé tous les procédés d’une assemblée legislatrice. Cette assemblée est celle de la république de Buenos Ayres, dans l’Amerique Méridionale. L’éxemplaire pour lequel je prie l’honneur de votre acceptation, en est peut-être le seul qui existe présentement en Europe. La date, comme vous voyez, n’y est pas. Il m’a été envoyé par son auteur, Bernardino Rivadavia, dans une lettre, datée du 26 Août, 1822, laquelle, par je ne sais quel malheur, ne m’est parvenue qu’au 5 Avril dernier (1824.) Il y a environ une quinzaine que j’ai eu la satisfaction, si inesperée, de le serrer dans mes bras ici à Londres, où il est venu pour quelques affaires, gouvernant toujours par les élèves qu’il a formés, et la reputation unique qu’il a acquise. De tous les états formés, ou plutôt qui se forment, sur les débris des monarchies Espagnoles et Portugaises en Amerique, le seul, qui a pris jusqu’ici une assiètte ferme et heureuse, est celui dont on peut le dire le fondateur: aussi est-ce le seul auquel le gouvernement Anglois a donné des marques non-équivoques d’estime. Je viens d’en voir, qui, pour n’être pas publiques n’en sont pas moins essentielles et authentiques.
Législateurs! Je vous envoye ce réglement, et je ne l’ai pas même lu. Voici pourquoi. Dans le moment, nul besoin pressant, ne me portait à le lire, et je me suis contenté d’en faire faire une traduction Angloise, que je garde. Présentement, ce n’est que depuis quelques heures que l’idée de le mettre a profit de cette manière se m’est presentée. Le navire est au point de partir. Si, après l’avoir lu, il m’etoit arrivé de trouver, ne fût-ce qu’un seul point, sur lequel je ne fus pas d’accord avec l’auteur, je n’aurois pas pû vous l’envoyer sans réserve: et cette réserve, je ne l’aurois pû faire sans en donner les motifs, ce qui auroit entrainé des longueurs point du tout convenables. Cependant, au moins d’avoir des raisons suffisantes pour être persuadé, que le tout ensemble est d’accord avec mes principes, je n’aurois pas eu la hardiesse d’y attacher, pour ainsi dire, mon cachet en vous en faisant l’offre. Dans le moment, je trouve une copie que j’en avais fait tirer de la lettre qui l’accompagna: elle pourrait vous faire voir si c’est sans fondement que je me fie à sa conformité avec mes principes.
“Bon pour la théorie, mauvais pour la pratique,” aphorisme qui se contredit lui-même, mais qui n’en est pas moins en faveur auprès ceux dont les interêts particuliers se trouvent contrariés, par une mesure contre laquelle il n’y a pas autre chose à dire. Quoiqu’il en soit, le présent n’est pas du nombre des cas où ce sophisme puisse espérer à trouver acceptation: car il y a déjà trois années au moins, pendant lesquelles cette base de toutes les loix a soutenu avec éclat l’épreuve de la pratique.
Les offices qu’occupait Rivadavia, lorsqu’il a redigé ce réglement, et qu’il a continué d’occuper jusqu’au moment de son départ pour Londres, sont ceux de ministre de finance, ministre de l’intérieur, et ministre des affaires étrangères.
J’ajouterai peut-être un ou deux autres morceaux de même main, dans la pensée, que, peut-être, par occasion, ils pourront, à vos yeux, être utiles à consulter au moins, si non à servir de modèle.
Quant à moi, je viens de faire passer dans les mains d’un Grec bien instruit, pour être traduite, la première feuille d’un projet d’un code constitutionel pour un etat quelque ce soit; ouvrage qui m’a déjà coutè plus de deux années de travaux sevères, qui heurcusement approchent à leur terme. Il sera imprimé ici en Anglais, en Grec, et peut-être en d’autres langues. L’Espagnol ne sera pas oublie.* Les occasions qui pourroient s’offrir pour vous en offrir des exemplaires, en nombre suffisant, ne seront pas perdues. Législateurs, vous leur donnerez le sort, que vous prescrira votre sagesse.
(Signé) Jeremy Bentham.
Londres, Sept. 21, 1824.
Legislators! Annexed is a present which I take the liberty to offer you. It is not merely what a work of my making would have been—a simple project, and nothing more; it is a regulation, which already, during three years, has directed all the proceedings of a legislative assembly. This assembly is that of the Republic of Buenos Ayres, in South America. The copy, for which I beg the honour of your acceptance, is probably the only one that now exists in Europe. The date, as you see, is wanting. It was sent me by its author, Bernardino Rivadavia, in a letter dated the 26th August 1822, and which, by some means, did not reach my hands until the 5th April 1824. It is now about a fortnight since I had the unlooked-for satisfaction of clasping him in my arms here in London, where he is come on some business, still governing, however, by the pupils which he has formed, and the reputation which he has acquired. Of all the States formed, or rather forming, out of the wreck of the Spanish and Portuguese monarchies in America, the only one which hitherto has taken a firm and happy footing, is that of which he may be called the founder: it is, too, the only one to which the English government has given unequivocal marks of esteem. I have recently seen evidence of it, which, though not public, is not less authentic.
Legislators! I send you these regulations, and I have not even read them. This is the reason: there was no immediate motive for my doing so, and I have contented myself with causing an English translation to be made, which I retain. Meanwhile it is only within these few hours that the idea of thus putting it to use occurred to me. The ship is on the point of sailing. If, after having read it, I had chanced to find, were it only a single point, on which I did not agree with the author, I could not have sent it you without a reservation, and that reservation I could not make without giving you the reasons, which would have drawn me into discussions of inconvenient length; nevertheless, I am persuaded I have sufficient motives for thinking it agrees with my principles on the whole, or I should not have had the hardihood to attach as it were my seal to it, by making you the offer of it. I have this moment found a copy which I had taken from the letter which accompanies it. You will see by it whether I have not justly trusted to its conformity with my principles.
“Good in theory, bad in practice,” is an aphorism which contradicts itself, but which is not the less in favour with those whose particular interests are thwarted by a measure against which there is nothing else to say. However, the present is not amongst the number of cases in which this sophism can hope to find acceptance; for three years at least have passed, during which this basis of all laws has sustained with éclat the proof of practice.
The offices which Rivadavia filled when he drew up these regulations, and which he continued to fill, up to the moment of his departure for London, were those of minister of finance, minister of the interior, and minister of foreign affairs.
I shall add, perhaps, one or two sentences by the same hand, in the idea that, in your eyes, they may appear useful to consult, if not to serve as models.
With regard to myself, I have just delivered into the hands of a well-informed Greek, for the purpose of translation, the first sheet of the project of a constitutional code applicable to any state—a work which has already cost me more than two years of hard labour, which is fortunately approaching a close. It will be printed here in English, in Greek, and perhaps in other languages. The Spanish shall not be forgotten. Any opportunities that may offer to transmit you copies shall not be lost. Legislators, you will give them that fate which you in your wisdom may think they merit.
(Signed) Jeremy Bentham.
London, September 21, 1824.
Theodore Negris to Jeremy Bentham, desiring his assistance towards forming a Civil Code.
Dans l’intention de travailler à la formation d’un code civil pour ma nation, je sens le besoin d’être guidé à ce travail. Votre rare mérite à cette science profonde, et votre amour pour le bien de l’humanité, si connus du monde, me faisaient chercher l’occasion de m’addresser à vous. Ce fut la connaissance que j’ai eu l’honneur de faire dernièrement de l’illustre ami de la Gréce, M. le Colonel Stanhope, qui vient de me la procurer. J’en profite, Monsieur, pour vous dire en peu de mots que je me propose de travailler sur le Code Civil des Français, en y substituant toutefois tout ce que je croirais plus conforme à notre regime constitutionnel. Quant à l’ordre des matières, je ne crois pas pouvoir trouver un meilleur code que celui-ci.
C’est là, Monsieur, le plan du travail que je me propose d’embrasser. Je me fais un devoir de le mettre sous vos yeux, afin de savoir votre opinion à cet égard, et profiter de vos lumières pour tout le detail de l’ouvrage.
Le code civil étant de nature à influer indirectement au moral des hommes, comme il influe directement au sort de la société, il est essentiel pour notre régénération qu’il ne s’éloigne point, s’il est possible, des principes immuables de la raison. Le seul moyen d’y parvenir est d’obtenir encore votre assistance et votre direction, que vous ne me refuserez pas sans doute, vû qu’il s’agit de contribuer à la guérison des plaies d’un peuple, jadis illustre pour ses lumières, et renommé pour les avantages qu’il a procurés à la société.
Quant à ce qui concerne les autres moyens dont je pourrais avoir besoin dans ce travail, M. le Colonel a bien voulu prendre connaissance.
Au reste, je saisis cette occasion pour vous donner l’assurance des sentimens de haute estime et considération distinguée, avec lesquelles j’ai l’honneur d’être, Monsieur, votre très-humble et très-obéissant serviteur,
(Signé) Th. Negris.*
A Monsieur Mon. J. Bentham, &c. &c. &c.
Intending to labour in the formation of a civil code for my nation, I feel the necessity of a guide in this undertaking. Your rare merit in this profound science, and your love for the cause of humanity, are so well known, that they compel me to seek a motive for addressing you. The acquaintance which I had lately the honour to make with that illustrious friend of Greece, Colonel Stanhope, has procured me this gratification. I avail myself of it, Sir, to tell you, in a few words, that I propose to work on the French Civil Code; substituting, nevertheless, all that I think more conformable to our constitutional regime. With reference to the arrangement of subjects, I do not believe I can find a better code than this.
This, Sir, is the plan of the work that I purpose to undertake. I think it my duty to place it before you, in order to ascertain your opinion on this head, and to profit by your remarks in all the details of the work.
The civil code being of a nature indirectly to influence the moral conduct of man, as it directly influences the situation of society, it is essential for our regeneration, that it should wander as little as possible from the immutable principles of reason. The only means to obtain it is to have your assistance and your direction, which, without doubt, you will not refuse me, seeing that it will contribute to heal the wounds of a nation, formerly illustrious for its knowledge, and renowned for the benefits which it has conferred on society.
With regard to what concerns the other matters of which I may stand in need in this work, Colonel Stanhope has kindly taken charge of. I take this occasion to assure you of the high sentiments of esteem and distinguished consideration, with which I have the honour to be, Sir, your very humble and very obedient servant,
(Signed) Th. Negris.
To Mr. Jeremy Bentham, &c. &c. &c.
Jeremy Bentham to Theodore Negris, in answer to his letter No. 6.
Ἱεϱεμίας Βενθὰμ τῷ Θεοδώϱῳ Νέγϱῃ, χαίϱειν.
C’est avec un plaisir bien sincère que j’ai reçu, par les mains de notre illustre et excellent ami l’Honorable Colonel Leicester Stanhope, la lettre dont vous avez bien voulu m’honorer. Je recevrai, si je suis encore en vie, avec une satisfaction correspondante, votre travail dont vous me donnez l’espérance sur le code civil; et j’y porterai l’attention, dont, au dire de notre susdit ami, il ne peut manquer d’être digne. A l’en croire, c’est un vrai bonheur pour la Grèce, de contenir dans son sein une main, si bien assortie à une espèce de travail littéraire, dont l’importance laisse en arrière à une distance infinie toutes les autres.
Quant au Constitutionnel—un code, sur lequel j’ai travaillé à-peu-près deux années, manque peu d’être en état d’être envoyé en manuscrit à Paris, à votre excellent Docteur Corai,* qui a eu la bonté de promettre d’en faire une traduction en Gréc moderne, laquelle sera imprimée à Paris, et je crois avec l’Anglais à coté, pour les exemplaires en être distribués en Grèce.
Vous m’obligeriez, Monsieur, en me donnant quelques renseignemens sur les endroits qui seroient les plus convenables à cet égard, et les personnes dans ces endroits auxquelles il seroit le plus convenable de les adresser.
Aprés la situation de Premier Ministre, lequel, dans le corps legislatif est dans mon code le premier fonctionaire, à-peu-près comme chez les Etats Unis Anglo-Americains, le President—la plus importante est celle de Ministre de la Justice: et c’est avec une satisfaction peu ordinaire que je crois voir, dans la personne de l’auteur destiné du code civil, un legiste, et homme d’état si capable de la remplir.
Ayant oul dire, que par ci et par là en Grèce, il existe plusieurs exemplaires de mes ouvrages edités en Français par mon ami Dumont, ou au moins de l’ouvrage principal, nommé Traité de Legislation, Civile et Penale, en trois volumes, en 8vo, il m’est triste d’apprendre, qu’aucun au départ de Stanhope, n’en avoit jamais passé dans vos mains. Par la présente occasion, j’ai fait ce que j’ai pû pour combler une partie de ce vide, et je me mets en devoir pour en trouver d’autres. Un exemplaire d’un traité sur les Preuves Judiciaires, dans lequel j’ai tâché de couvrir le champ entier de ce sujet jusqu’ici vierge, est actuellement dans mon pouvoir: mais par cette occasion, qui est pressante, je ne sais pas dans le moment si je pourrais trouver ici des exemplaires de l’un ou de l’autre des deux autres de mes ouvrages ci-dessus indiqués. Je vais envoyer tout ce qui, dans le moment, est en mon pouvoir, de ceux qui sont en langue intelligible. Quant a ceux qui sont en Anglais, ce n’est pas le moment pour chercher à en encombrer vos tablettes.
La presente est accompagnée d’une liste à-peu-près complette de ceux de mes ouvrages qui ont jusqu’ici sorti de la presse. Ils ne sont pas tous encore publiés.
Dès que ce paquet vous soit parvenu, je me fie à votre amitié pour saisir la première occasion de m’en faire recevoir la nouvelle.
(Signé) Jeremy Bentham.
I have received by the hands of our illustrious and excellent friend Colonel Leicester Stanhope, with very sincere pleasure, the letter with which you have been so good as to honour me. I shall receive, if I am still alive, with corresponding satisfaction, the work which you allow me to hope for on the civil code; it shall have my best attention, of which, according to our said friend’s account, it cannot fail of being worthy. It must be truly an honour to Greece, to possess a pen so appropriately qualified for a literary labour, whose importance leaves all others at an infinite distance.
As far as the constitutional part is concerned, a code upon which I have laboured nearly two years, is very nearly in a state to be sent in manuscript to Paris, to your excellent Doctor Corai, who has had the goodness to promise to make the translation into modern Greek, which will be printed at Paris, and I believe with the English annexed, in order that the copies may be distributed in Greece.
You will oblige me, Sir, by giving me some information respecting the most eligible places for that purpose, and also the persons at those places to whom it will be proper to address them.
After the situation of prime minister, who, in the legislative body, is in my code the first functionary, nearly similar to the President of the Anglo-American United States, the most important is that of the Minister of Justice; and it is with no little satisfaction, I perceive, in the person of the author of the civil code, a legist and statesman so well able to fill that office.
Having heard, that here and there in Greece there are several copies of my works, written in French by my friend Dumont, or at least of the principal work, entitled, “Traité de Legislation Civile et Penale,” in three volumes in 8vo, I regret to find, that at the period of Colonel Stanhope’s departure it had not been seen by you. By the present occasion I have tried to repair that loss, and shall also avail myself of future opportunities. A copy of a treatise on judicial evidence, in which I have tried to lay open the whole field of argument, is now finished; but by this opportunity, which is a hurried one, I am in doubt whether I shall be able to forward copies of either one or the other of these works. I shall send all I possess which are in a language familiar to you. With regard to those which are in English, it will not be worth while to encumber you.
The present is accompanied by a nearly complete list of such of my works as have already issued from the press, but they are not yet all published.
As soon as this packet comes to hand, I trust to your friendship to take the first opportunity to let me know you have received it.
(Signed) Jeremy Bentham.
Letter 3. To the Provisional Government of Greece: with part of a Constitutional Code.
Legislators,—On the 25th of October last, 1824, I had the pleasure to receive the two letters with which you were pleased to honour me, both dated from Napoli de Romania; the one, of the 11th August 1824, with the signatures of the vice-president, and chief secretary of the senate; the other, of the next day, with the signature of the provisional secretary-general, P. G. Rodios, according to the translations with which I was favoured by your three deputies here.
The favourable mention which you are pleased to make, of such of my papers as you had then received, fills me with shame and regret at the thoughts of the imperfect state in which I was obliged to send those fragments. My hopes were, that they might prove somewhat better than nothing: and it was in that hope that I ventured thus to put to hazard any little reputation which may belong to me.
Since that time, to wit, by a letter dated 24th September 1824, or thereabouts, I ventured to address to you, together with an explanatory paper or two, an ordinance in Spanish relative to the tactics of the legislature of the republic of Buenos Ayres, in late Spanish America. For my pardon for this liberty, I trusted to the accompanying assurance given me by the illustrious draughtsman, that it had been framed in conformity to the principles developed in a work of mine, which for these fourteen years has been before the public in French.
I now take the further liberty of begging your acceptance of a concisely expressed, but, in so far as my conception is correct, an all-comprehensive plan, for the education, location, and remuneration of the functionaries of any republican government, in all their several official situations. Without any addition at the expense of the public, the same plan is calculated to serve for an entire system of national instruction, so far as regards those whose condition in life requires, while their pecuniary circumstances enable them, to improve their minds by intellectual culture. I have therein, I hope, made tolerably well apparent the inseparable connexion which, in the case of official men, I have found to have place between the strictest frugality and the highest degree of aptitude, with reference to their several situations. Principle, title, and motto—Official aptitude maximized—expense minimized. I know not whether, in any such compressed form, it will be found translateable, with correspondent concision, into your present language. From first to last, in preparing these papers, I have kept a more especial eye on what has been represented to me as being the situation of that country—I need not name it to you—which is in so preeminent a degree dear to me.
This plan is contained in four out of the twenty sections, or thereabouts, of the twenty-eight chapters, or thereabouts, into which the matter of my proposed code, in its present state, stands divided. Alas! it is not even yet completed: still, so far as regards the proposed text, it wants but very little of being so. Reasons, expository matter, and instructions for the legislator, are settled in substance, and may from time to time follow, according as time and occasion permit. My hope is, that, in some degree, the proposed text will be found to contain in itself the essence of the reasons by which it was suggested. I inclose the titles of the several chapters and sections of the whole, as they stand at present.
A circumstance which, in no inconsiderable degree, has contributed to the retardation, is the necessary and most intimate connexion which has place between the code of judicial procedure, and that part of the constitutional code which regards the judiciary branch of the official establishment. In that same procedure code, I have already made considerable progress. In it my endeavour has been, to apply upon a national scale, as far as circumstances will allow, those simple principles by which the conduct of a kind and prudent father is guided, in the judgment exercised by him on the conduct of his children. If I live to finish it, it will be the first code of procedure that ever had the ends of justice for its sole, or so much as its main, object: all others having had for their main object the advancement of the sinister interest of their makers—the ruling functionaries; more especially those of the judiciary class, and those their professional associates, from whom they spring: and to this cause may be attributed all that harshness, obscurity, unnecessary complicatedness, and expensiveness, by which all the procedure codes as yet in existence are more or less strongly marked.
Another paper, which I now add, is designed to serve as a substitute to a short section in the former edition—if I may so call it—of my Code: it is that which regards the re-eligibility of the members of the legislative assembly, composed of deputies of the people. The object of it is, to supply, for that most important of trusts, a constant stock of competitors, composed of tried men, whose degrees of aptitude, absolute and comparative, have been manifested by experience; instead of placing things, as is customary, upon such a footing that, whether the first choice be fortunate, or ever so unfortunate, the people find themselves, notwithstanding the forms of election, under a sort of necessity to continue it. This point I flatter myself with having secured; and at the same time, without depriving the people of any part of that advantage, which is looked for in the continually increasing experience and wisdom of those who have distinguished themselves among their colleagues.
Postscript relative to the ten Greek Youths brought to England, Anno 1824, by Mr. Blaquiere.—(It will be read to the Legislative Council, or otherwise disposed of—for example, by being sent to a Government newspaper—as they may be pleased to direct.)
In regard to the Greek youths, whom Mr. Blaquiere brought hither for education, I have observed in one of the Greek newspapers, a little misconception, which it seems incumbent on me to rectify. Three is there mentioned as the number for which I have undertaken to provide. Two, and two only, is the number to which my engagement applied. This appears from the printed work published here in London, by Colonel Stanhope, intituled, “Greece in 1823 and 1824,” in which is inserted the commission given to him on that subject by me; as also from my correspondence on the subject with your deputies here, as contained in two letters, one from me to them, dated March 1824, the other from them to me, dated March 1824: and the time mentioned as that during which my engagement for their maintenance and education here was to continue, stands limited to three years. The expense to me will be from about £160 to about £180 a-year—dollars 850, more or less, per annum.
No disappointment will, I flatter myself, be experienced on that account. Ten is the number of youths whom M. Blaquiere took charge of. Regretted, to the degree that may be imagined, one of them died on the passage. Of the nine that arrived, one has been taken charge of by a friend of mine, with whom I am likely, every now and then, to see him: my friend being highly delighted with him, and entertaining, in relation to his intellectual proficiency and political usefulness, the most sanguine expectations.
The two, whom, upon hearing the report of the trust-worthy persons with whom they have been stationed for the purpose of learning to hold conversation in English, I have taken charge of, are Stamos Nakos, son, if I am not misinformed, of an eparch of Livadia, and Eustratios Rallis. Not many days ago, under the charge of one of the masters, they went to the school, the character of which, as abundantly made known to me, constituted an inducement, without which I should never have ventured to take upon myself so serious a charge.*
Three are thus accounted for. The other six remain under the care of those of our distinguished Philhellenists who have so long combined their benevolent labours under the aggregate name of the Greek Committee.
Receive once more, venerable legislators, the ardent good wishes of your laborious and devoted servant,
Queen’s-Square Place, Westminster,
Letter accompanying the Certificate of Jeremy Bentham’s Election as a Member of the Philanthropic Society at Tripolitza.
Σεϐαστὲ Ἄνεϱ,—Ἄν ϰαὶ δὲν ἐδυνήθην νὰ ϰαϱπωθῶ πϱοσηϰόντως ἀπὸ τὰ σχεδὸν ἀϱχέτυπα τῆς πολιτιϰῆς φιλοσοφίας συγγϱάμματά σου, διὰ τὴν ὁποίαν πϱαγματεύονται ὑψηλὴν ὕλην, ϰαὶ πολλῷ ἀϰόμη ὑψηλοτέϱαν εἰς τοὺς σημεϱινοὺς Ἕλληνας, δὲν ἠμποϱῶ μ’ ὅλον τοῦτο ν’ ἀποσιωπήσω ὅτι ἀπὸ τὴν ἀνάγνωσιν τούτων ὠφελήθην, ϰαὶ ὅτι ἡ ὠφέλεια αὕτη δὲν μένει πολλάϰις χωϱὶς ϰαϱπὸν εἰς τὰς νομοθετιϰὰς τοῦ Ἔθνους μου ἐϱγασίας, εἰς τὰς ὁποίας ἡ Πατϱίς μου μ’ ἔστειλε συνεϱγόν. Κατὰ χϱέος λοιπὸν ἀπαϱίτητον, σοὶ ὁμολογῶ ἀπείϱους χάϱιτας, ϰαὶ σοὶ ἐπεύχομαι ὑγείαν ϰαὶ μαϰϱοϐιότητα διὰ τὴν ὀϱθὴν διευθέτησιν ϰαὶ ὠφέλειαν τοῦ πολιτιϰοῦ ἀνθϱώπου.
Ἐϰ τῶν ἀντιπϱοσώπων τῆς Κϱήτης,
(SUBSTANCE OF THE ABOVE.)
Honoured Sir,—Though not able to avail myself of your writings to their full extent, I have received much instruction from their perusal, and I trust they will be permanently useful to my country. Allow me, then, to communicate to you my own thanks, and the thanks of my countrymen, and to hope your life may be prolonged many happy years. I have the honour to subscribe myself, Sir,
The Vice-President of the Island of Candia, &c. &c.
Napoli, 11-23 August 1824.
Ἀϱιθ. τοῦ Πϱωτοϰόλλου.
Κατατάττεται Ὁ Κύϱιος Ἱεϱεμίας Βενθάμης εὶς τὴν πϱώτην τάξιν τῆς Φιλανθϱωπιϰῆς Ἑταιϱίας.
Ἐδοθη ἐν Ναυπλίῳ τῆιδ′ Αὐγουστου Αωϰδ Δ′τῆς Ανεξαϱτησίας.
The name of Jeremy Bentham is inscribed in the first class of the Philanthropic Society.
Given at Napoli, 14th August 1824.
Jeremy Bentham to Alexander Mavrocordato.
Encouragé par Bowring, je me hazarde à vous adresser de cette manière, mon fils, pour vous présenter quelques petits conseils, qui conviennent, ce me semble, à votre position, et dont les motifs ne peuvent pas être méconuus. Pour fondement, je suppose (car dans toute autre supposition, il ne vaudrait pas la peine de lire davantage)—je suppose qu’à l’égard de quelque partie de mon projet ue code constitutif, il n’y auroit pas de repugnance à en faire plus ou moins d’usage. Or c’est en vous que je crois voir le chef déstiné de la république. Dans mon code le chef ne s’appelle que Premier Ministre, soumis entièrement au corps legislatif, comme celui-ci est au peuple en sa qualité de corps constitutif. Nonobstant cette double sujettion, voilà, ce me semble, un poste qui ne serait pas à dédaigner par quelque individu que ce soit, même par celui qui sans cela serait le chef et le seul chef. Car vous voyez, ou bien vous verrez, comme il a sous ses ordres tous les sous-ministres dans les départemens desquels, pris dans leur ensemble, est compris le total de l’autorité administrative; et comme c’est à lui à les deplacer aussi bien qu’à les placer: et qu’il n’est pas, comme le chef des Etats Unis, éntravé par un senat, lequel, tout en lui allégeant, et rendant, pour ainsi dire, ineffectif, le joug de la responsabilité, lui ôte en même tems à l’égard du placement d’une grande partie des fonctionnaires en sous ordre vingt-une sur vingt-deux parties: puisqu’il ne peut rien faire dans ce genre sans le consentement de la majorité de leur nombre, c’est à dire de quarante: ainsi il ne tient qu’à eux d’exiger que sur chaque vingt-deux places chacun d’eux place un de ses protégés, en lui laissant la vingt-deuxième.
Quant à cette double sujétion ci-dessus, je n’y vois rien qui devroit vous donner le sentiment d’un gêne incommode; ni par rapport à l’intêrét de l’état, ni par rapport à votre intêrét en particulier. Il me semble, que si vous avez le bonheur de posséder le degré de popularité que l’on dit que vous possédez, vous n’en souffreriez rien en effet. Car, au gré du peuple en son entier, je ne saurois m’imaginer comment un homme, qui, sous une forme de gouvernement provisoire, est en effet le chef de l’êtat, puisse mieux mériter, qu’en le placeant ce même peuple, au moyen du pouvoir constitutif, sur la tête de la puissance legislative; laquelle, sans cette subordonnation, auroit le pouvoir absolu, puisqu’elle n’est pas éntravée par aucune puissance coordonnée, par aucun autre corps politique, ni par un veto dans les mains d’aucun individu. Cela étant, si pour accepter la position que je vous déstine, vous avez un sacrifice à faire en apparence, ma pensée est, que dans votre particulier ce ne serait qu’en apparence puisque ce que vous perdriez en pouvoir nominal et ostensible, vous en gagneriez l’equivalent, et même d’avantage, en influence effective; si cela est, la diminution de pouvoir effectif ne serait pas pour vous: elle ne serait que pour vos successeurs. Vous l’auriez pour la vie ce pouvoir si solide, à moins que le corps legislatif ne s’avise à vous deplacer: mais si vous vous conduisez de façon à conserver l’estime du peuple, le corps législatif, soumis comme il est au pouvoir constitutif de ce même peuple—ce corps dont chaque membre peut en tout tems être deplacé par ses commettans—n’oseroit pas vous déplacer.
Au reste, quant à ce pouvoir, que j’appelle dislocatif, que je donne au peuple, non seulement à l’égard des membres du corps législatif, et cela, mais aussi à l’égard du premier ministre, ne craignez pas qu’il n’en abuse à votre prejudice. Oui, si en deplaceant un premier ministre, il pourrait en même tems en mettre un autre à sa place; car, dans ce cas, il ne sauroit manquer tel et tel boutefeu, constamment emploié à les engager à deplacer le fonctionnaire actuel, sans raison valable, et seulement pour l’avantage, à lui boutefeu, de s’emparer de la dépouille ou de la faire donner à quelqu’un avec lequel il agit en concert.
Mais, d’après le code dont il est question, aucun meneur du peuple ne sauroit se faire un profit particulier, de cette façon ni d’aucune autre: ainsi, si jamais il se trouvoit quelqu’un assez hardi pour en faire la proposition, ce ne pourroit être que dans la persuasion que le bien de l’état demande ce changement d’une manière imperieuse: persuasion, dans laquelle, pour réussir, il lui faudroit la concurrence, active et soutenue, de la majorité du peuple.
On verroit, il est vrai, le corps législatif et le corps constitutif, c’est à dire le peuple, au-dessus de vous: ainsi, ce n’est que provisionellement que l’on vous verroit placé pour le vie; puisque non seulement le corps législatif mais aussi le corps constitutif, auroit toujours le pouvoir de vous deplacér.
Mais, au lieu d’un pouvoir adverse, le pouvoir du corps constitutif seroit pour vous une sauvegarde: car si, par avoir bien servi les intérêts du peuple, le corps legislatif s’aviserait de vous deplacer, il ne manqueroit pas d’encourir le ressentiment du peuple, et par là, l’influence individuelle des membres de ce corps seroit reduite à nullité.
Et ce pouvoir du corps constitutif, quelque grand qu’il paroisse, puisqu’il renferme celui de déplacer tous ses fonctionnaires—qu’estce en effet? Ce n’est qu’un pouvoir purement défensif, et il n’y a aucun motif par lequel il pourroit être conduit à en abuser. Oui; s’il s’y trouvoit attaché le pouvoir de placer, ne fût-ce qu’un seul individu, dans une situation, douée, soit d’un grande masse de richesse, soit d’un grand pouvoir; dans ce cas, il en auroit et la tentation et le moyen; car, dans chaques corps de votans il y auroit quelque meneur, qui, pour acquérir, soit pour lui-même, soit pour un associé, l’objet désirable, s’efforcerait d’en faire dépouiller le possesseur. Mais sous le code proposé, hormis les sièges dans l’assemblée legislative, ni le corps constitutif en son entier, ni aucune de ses sections, n’a la moindre place à donner; de toutes les places, le patronage se partage entre vous et le ministre de la justice; et ces places dans l’Assemblée, il n’y en a aucune, qui donne au possesseur dans son particulier le moindre objet de convoitise: le seul objet de la sorte, dans la collation duquel il possède la moindre influence directe, c’est l’office de premier ministre: et dans l’exercice de cette fonction il n’a qu’un pouvoir fractionnaire, n’étant à cet égard rien par lui-même:—rien, sans avoir avec lui la majorité de ses collègues. Je finis à la Romaine—Vale et me ama.
Encouraged by Bowring, I venture to address you in this manner, my son, for the purpose of suggesting to you a few considerations which present themselves to my view, as being applicable to the position you are in. Of the liberty I am thus taking, the motives are too obvious to be in danger of being misunderstood. For a postulate I assume—for, but for this supposition, all motive for reading further would be wanting to you—I assume that, in regard to this or that part of my project of a constitutional code, there will not be on your part any insurmountable repugnance to the making more or less use of it. To this supposition I add another, namely, that in you I behold the destined chief of the republic. In this code of mine, the appellation of the chief single-seated functionary is simply Prime Minister—his situation altogether subordinate to that of the legislative body, as that of the legislative body is to that of the people, in their quality of constitutive body. Notwithstanding this two-graded subordination, here, in my view of the matter, is a situation not likely to be an object of disdain, even to a person who otherwise would be a chief, and even the sole chief; for, you see, or at least may see, how it is, that under his direction are all the several ministers, in whose departments, taken in the aggregate, is comprised the aggregate of the administrative authority, and in what way it is in his power to dislocate them (as I call it) as well as locate them; and that his authority is not, like that of the chief of the United States, clogged by that of a senate, which, while on the one hand it lightens to such a degree as almost to render inefficient the yoke of his responsibility, strips him, at the same time, of one-and-twenty out of two-and-twenty parts of his power of location, with regard to each of a great part of the whole number of functionaries whose situation is subordinate to his. For (the number of the members of the senate being forty) nothing in this way can he do without the consent of a majority of that number, that is to say, one-and-twenty at the least; a consequence of which is, that it rests at all times with each of them to obtain a situation of this sort for one of his protégés, on condition of leaving to the president (such being their title of their chief functionary) the undisturbed nomination of one other, and no more than one.
As to the above-mentioned double-graded subordination, so to style it, I see nothing in it that will, when viewed in its true light, present to you the image of a troublesome yoke; troublesome either with reference to the interest of the community at large, or with reference to your own personal interest in particular. It seems to me, that if you have the felicity of possessing that degree of popularity which you are said to possess, the yoke, such as it is, is one from which you will not feel any real inconvenience; for it seems not to me in what way it is possible for a man who, under a popular form of government, is in effect as well as in name the chief of the state, in any other way more effectually to recommend himself to the favour of the whole body of the people, than by putting and keeping that same body in effect over the head of the legislative authority—that same authority which, but for this subordination, would be in possession of absolute power, not being shackled by any other authority that is co-ordinate to it, by any other body politic, nor by a veto in the hands of any single person. This being the case, if so it be that, by giving your acceptance to the situaation which I have thus marked out for you, a sacrifice of any sort would be to be made by you, my notion of the matter is, that in your own individual instance any such sacrifice would be in appearance only; the case being, that for whatever you lost in nominal and ostensible power, you would gain more than the equivalent in effective influence: in which case, the diminution of power would not apply to you; it would be confined to your successors. This power, substantial as it is, you would possess for life, in every other case than that of the legislative body’s taking upon itself to displace you; but if you do but so comport yourself as to preserve the esteem of the people, the legislative body, subject as it is to the constitutive power of this said people, liable as every member of it is to be displaced by that part of the people of which his electors are composed, would not dare to attempt to remove you.
Nor yet, in regard to this power, which I call the dislocative power, and which I give to the people, exercisable not only on the members of the legislative body, but also on the prime minister himself, fear not its being abusively employed to your prejudice. Yes, if, after displacing a prime minister, it were also in their power to put another in his place; for in that case seldom would there be any want of this or that demagogue, whose constant object and employment it would be to engage them to displace the functionary in office, whoever he was; to displace him without any sufficient reason, and for no advantage to anybody but this same demagogue, whose object it would be, either to possess himself of the spoil, or to get it bestowed upon some one with whom he was in league.
But under the code in question, no such sinister profit could any leader of the people make, either in this way or in any other, the sole power of filling up the gap remaining with the legislature. Thus it is, that, should there ever appear a person bold enough to bring forward any such proposition, it could not be any otherwise than under the persuasion, that the good of the state presented an imperative demand for the proposed change; a persuasion by which no effect could be produced in any other case than that of its being shared in by the majority of the people.
True it is, there would be the legislative body—there would be the constitutive authority; that is to say the people, in a situation superior to your’s; insomuch that it is but provisionally that you would be seated in it for life, since, as above stated, not only that same legislative body, but that same constitutive body, will always have it, each of them, in its power to displace you.
But instead of a power adverse to your’s, that of the constitutive body would be a safeguard to it; for if on account of your having done good service to the interests of the people, the legislative body were to take upon it to displace you, it could not fail thereby to incur the displeasure of the people; by which means, each individual whose conduct had been adverse to you, would find his influence in the body reduced to nothing.
And this same dislocative power, thus given to the constitutive body, vast as it appears, since it includes in it the power of displacing every other functionary in the state, what is it in effect? It is nothing more than a purely defensive power, not exposed to the action of any motive, of the operation of which the abuse of it would be a natural consequence. Yes, if attached to it there were any power of placing, though it were no more than a single individual, in a situation endowed with a large mass, either of the matter of wealth, or of the matter of power: in either case, the people would at once be in possession of the means and the motive for making a mischievous exercise of such its power; for, as above, in each body of voters there would be some leader, who, to obtain, either for himself or for some associate, this object of desire, would be making it his business to endeavour to despoil the possessor of it. But, under the proposed code, no situation whatever, except that of a seat in the legislative assembly, has the constitutive body, either in its entirety, or in any of its sections, the power of conferring. Of all official situations, the patronage would be divided between you and the minister of justice; and of these same seats in the assembly, there is not one which gives to the possessor in his single capacity any the least object of general desire; the only object of that kind, in the conferring of which any member of the legislative body possesses so much as the smallest degree of direct influence (with the exception of the situation of minister of justice) is that of prime minister, and in the exercise of this function, the member possesses no other power than what may be called a fractionary one, he being as nobody taken by himself—as nobody except in so far as he has along with him the majority of his colleagues.
I conclude in the Roman style, “Vale, et me ama.”
Letter from Bernardino Rivadavia to Jeremy Bentham.
J’ai emporté de votre ville le profond regret de n’avoir pas eu le bonheur de vous trouver visible, lorsque je me rendis à votre maison, afin d’avoir l’honneur de prendre congé de vous. C’est une occasion de m’instruire que le sort m’a ravie, et que je souhaiterois bien reparer, autant que possible, en obtenant quelques mots de réponse à celleci. Jamais le souvenir flatteur des procédés obligeans dont vous avez daigné m’honorer, pendant mon sejour à Londres, ne s’éffacera; et croyez que je saisirais avec bien de l’empressement l’occasion qui s’offrirait de vous en temoigner ma vive reconnaissance.
Depuis le dernier instant que j’eus l’honneur de passer avec vous (il y a plus de dix-huit mois,) je n’ai cessé de méditer vos principes en matière de legislation; et à mon retour ici, j’ai éprouvé une satisfaction bien grande, en voyant les profondes racines qu’ils jettaient, et l’ardeur de mes concitoyens à les adopter. Vous verrez, Monsieur, que le réglement de notre chambre des deputés cijoint, que j’ai eu l’honneur de lui proposer et qu’elle a sanctionné dans une de ses séances, est entièrement basé sur les incontestables et frappantes vérités contenues dans votre ouvrage sur la tactique des assemblées legislatives; et dans la chaire de droit civil que j’ai fait instituer, se professent les principes eternels, démontrés si savamment dans votre cours de legislation (publié par M. Dumont,) ouvrage déstiné à faire marcher à pas de géant la civilisation chez les peuples assez heureux pour savoir l’apprécier.
Vous me ferez le plus sensible plaisir si vous daignez, dans la réponse que j’ai déjà sollicitée de votre bonté, et que j’attends avec une impatience proportionnée au prix que j’y attache, me donner votre avis sur ce même réglement de la chambre, et m’indiquer les changemens, additions, ou modifications qu’il vous parâitrait nécessaire d’y faire. L’amour de l’humanité qui vous anime, me porte à croire que ma prière ne vous semblera point importune, et aussi, que vous ne lirez point sans intrêt, le précis des ameliorations que la nation se glorifie de devoir à l’impulsion que je m’efforce de donner aux choses, guidé par vos sages préceptes. Ainsi donc vous saurez que je me suis appliqué à réformer les anciens abus de toute espèce, qui pouvaient se rencontrer dans l’administration; à empêcher que d’autres ne s’établissent; à donner aux séances de la Chambre des Représentans la dignité qui leur conviennent; à favoriser l’établissement d’une banque nationale sur des bases solides; à réformer, après leur avoir assuré une indemnité juste, les employés civils et militaires qui surchargeoient inutilement l’état; à protéger par des loix repressives la sûreté individuelle; à ordonner et faire exécuter des travaux publics d’une utilité reconnue; à protéger le commerce, les sciences et les arts; à provoquer une loi, sanctionée par la chambre, qui réduit de beaucoup les droits de douane; à provoquer également une réforme ecclésiastique bien necessaire, et que j’ai l’éspérance d’obtenir: en un mot, à faire tous les changemens avantageux que l’espoir de votre honourable approbation, m’a donné la force d’entreprendre, et me fournira celle d’exécuter.
Agréez, Monsieur, l’assurance de ma parfaite estime, et à l’avance, l’hommage de ma reconnaissance, pour la réponse que j’attend de votre bonté.
(Signé) Bernar. Rivadavia.*
Buenos Ayres, le 26 Aout 1822.
I sincerely regret not having had the pleasure of seeing you, when I called at your house previous to my leaving London, in order to bid you farewell. It would have proved an opportunity of instruction, of which fate has deprived me, and which loss I wish to repair in as far as it is possible, by obtaining a few words of reply to this letter. Never will the flattering marks of kindness which you loaded me with during my stay in London, be effaced from my recollection; and believe me, I shall embrace eagerly every opportunity of showing my lively gratitude.
Since the last moment that I had the honour to pass with you (now more than eighteen months ago,) I have never ceased to meditate on your principles of legislation; and on my return here, I have experienced very great satisfaction in seeing the deep root which they have taken, and the ardour of my fellow-citizens to adopt them. You will observe, Sir, that the annexed regulation of our chamber of deputies, which I had the honour to propose to it, and which it has sanctioned in one of its sittings, is entirely founded on the incontestable and striking truths contained in your work upon the tactics of legislative assemblies; and in the chair of civil law which I have instituted, they profess the eternal principles so learnedly demonstrated in your course of legislation, (published by Mr. Dumont,) a work destined to cause civilization to march with gigantic strides amongst those states that are happy enough to appreciate it.
You will confer upon me the most sensible pleasure, in your reply to this, which I have before solicited, and which I anxiously wait for, with an impatience equal to the high value I attach to it, by giving me your advice respecting this same regulation of the chamber, and to point out to me the changes, additions, or modifications, which you may think proper to make in it. The philanthropy which animates you, induces me to hope my expectations will not seem importunate, and also that you will read with interest the particulars of the amelioration of a nation, who glory in having, through my exertions, received the impulse from your sage precepts. You will also perceive that I have applied myself to reform the ancient abuses of all kinds found in our administration, and to prevent the establishing of others, to give to the sittings of the chamber of representatives the dignity which becomes them; to favour the establishment of a national bank upon a solid basis; to retrench (after having allowed them a just indemnity) those civilians and military who incumber uselessly the state; to protect individual property; to cause to be executed all public works of acknowledged utility; to protect commerce, the sciences, and the arts, to promulgate a law sanctioned by the chamber, which reduces very materially the custom-house duties; to promote equally an ecclesiastical reform, which is very needful, and which I hope to accomplish: in one word, to make all the advantageous alterations which the hope of your approbation has given me the strength to undertake, and will enable me to execute.
Accept, Sir, the assurance of my perfect esteem, and my anticipated gratitude for the reply which I hope from your goodness.
(Signed) Bernar. Rivadavia.
Buenos Ayres, 26th August 1822.
(Copy.)—José del Valle, Guatelama, to Jeremy Bentham.
Sus obras le dan el titulo glorioso de legislador del mundo. Los que han sido llamados por sus destinos á formar ó discutir projectos de codigos civiles ó criminales han pedido luces a V.; y yo tengo mas que otros necessidad de ellas.
La Assemblea de este Estado de Guatemala se ha servido nombrarme individuo de la comision que debe formar nuestro codigo civil. Yo he vuelto los ojos a V. y sus dignas obras. Tengo algunas; me faltan otras; y sus pensamientos serian por mi de precio infinito.
Permitame V. le suplique vuelva su atencion á una republica que acaba de nacer, y cuia felicidad me intereza en el grado mas alto. Sirvase comunicarme sus pensamientos. Sabrá apreciarlos quien ofrece á V. los respetos y consideracion con que tengo el honor de ser su mas ato. serv.
Jose del Valle.
A Mr. Jeremias Bentham.
Your works give you the glorious title of legislator of the world. Those whose lot it has been to be called on to prepare, or to discuss, projects of civil or criminal code, have requested your guidance; I, more than any, feel the want of it.
The Assembly of this State of Guatemala has been pleased to name me a member of the committee for forming our civil code. I turn my eyes to you and your excellent writings: some I have, others I have not; but your thoughts would be of infinite value to me.
Allow me, then, to entreat you will turn your attention to this newly-born republic, whose happiness is of the highest interest to me. Kindly communicate your ideas, which will be duly appreciated by him who offers you all the respect and attention with which, &c. &c.
(Signed) Jose del Valle.
To Mr. Jeremy Bentham.
*∗* In Brazil, a little before the act of despotism, or say the revolution, by which the Emperor dissolved the Cortes, shipping off the supposed democratically disposed members, some to the Peninsula, others to Goa, in Hindostan, Jose Bonifacio d’Andrade, the then prime minister, made no secret of his intentions, on the meeting of the Cortes, to move that application should be made to Mr. Bentham for his assistance in the formation of a code for that state. This intention of his had been twice declared in conversation, with William Effingham Lawrence, Esq., who, in a vessel of his own, touched at Rio Janeiro, in his way to Van Diemen’s Land. This information is contained in a series of highly interesting letters, written from thence by Mr. Lawrence to Mr. Bentham.
These letters, with the two passages to the above effect in them, were seen by several of Mr. Bentham’s friends; but, having been lent out or mislaid, cannot at this moment be recovered. The passages particularly in question were scarcely longer than those here employed in giving intimation of them. But in those same letters there was a great deal more about the cognizance taken of Mr. Bentham’s works by the statesmen in question, and others belonging to different parties.—Ed. of original Edition.
end of volume iv.
[* ]Take a man who has hitherto belonged to the class of dupes: if, in his body, he has a mind capable of reflection, and will allow himself a little time for making use of it, the following considerations may serve him for a clue. By words such as state of things, event, things immoveable, things moveable, action, forbearance, misdeed, obligation, command, prohibition, permission, condition, right, punishment, reward—by these, with the addition of a few others, not only has the whole field of legislation, but the whole field of possible thought and action, been covered. Well then, if by these, why not by others of less extensive imports?—of imports included in the imports of these several words respectively? by others of this or that less extensive import, according as the occasion serves?
[* ]A medicine, in so far as it produces the desired effect, is an instrument of exemption from certain pains. An instrument of political security in any shape, is an instrument of exemption from certain pains. Of the one as of the other, the value, at any point of time, is as the sum of the pains it has exempted men from, deduction made of the pains it has produced, and the pleasures it has excluded.
[* ]On the ground of these considerations, in the author’s work on legislation, on the field of the civil, or say the distributive branch of law, in settling the particular ends or objects of pursuit proper to be on that occasion kept in view, in the distribution made of benefits and burthens—on the ground of these considerations it is, that, to the objects expressed by the words subsistence, abundance, and security, was added that which is expressed by the word equality. For, on the occasion of the arrangements by which this distribution is effected, it is no less material that this object should be added to the list, than it is necessary that those others should be provided for and take the lead. Absolute equality, is that sort of equality which would have place, if, of the several benefits, as also of the several burthens, each man had exactly the same quantity as every other man: by practical equality, understand whatsoever approach to absolute equality can be made, when provision as effectual as can be made has been made for those three other particular ends of superior necessity. In regard to security, understand likewise, that, amongst the adversaries, against whose maleficent designs and enterprises security requires to be provided,—are not only foreign enemies and internal malefactors commonly so called, but moreover those members of the community, whose power affords them such facilities for producing, with impunity, and on the largest scale, those evils, for the production of which, upon the smallest scale, those who are without power are punished by them with so little reserve. As to absolute equality, it would be no less plainly inconsistent with practical equality than with subsistence, abundance, and security. Suppose but a commencement made, by the power of a government of any kind, in the design of establishing it, the effect would be—that, instead of every one’s having an equal share in the sum of the objects of general desire—and in particular in the means of subsistence, and the matter of abundance, no one would have any share in it at all. Before any division of it could be made, the whole would be destroyed: and, destroyed, along with it, those by whom, as well as those for the sake of whom, the division had been ordained.
[* ]“C’est un ouvrage de genie” were the words, as almost immediately reported to the author of this address. Not to speak of discernment, such was the candour and magnanimity which, in the mind of that extraordinary man, embellished his selfish prudence.
[† ]See Papers on Codification, &c. p. 514.
[‡ ]Letters to Count Toreno, &c. Letter V.
[* ]In so far as evil having the effect of punishment is the inducement, responsibility, i. e. exposure to eventual punishment, is a word which, in this case, is in possession of being employed: it is by his sense of responsibility, that is, by his perception of this exposure, that, be the work what it may, the workman is, in this case, induced to endeavour to make good work, to render his work in this or that way contributory, to abstain from rendering it in this or that way detrimental, to the maximum of happiness.
[* ]Modes of support to a bad work. The following may serve as an exemplification of the devices wont to be employed, for the purpose of eluding or unduly mitigating the judgment of condemnation, due from the tribunal of public opinion, to the author or authors of a law or other authoritative literary composition, adverse to the greatest happiness of the greatest number:—
[* ]In every civilized nation there exists a natural aristocracy, of which the following may be stated as the main branches, having each of them its own particular interest: namely:—
In a monarchy, to these are added two factitious branches: namely—
[* ]In situations, in which the choice of operative rulers depends upon the people, the jealousy of foreigners has, for want of reflection, been copied, from situations in which the choice does not depend upon the people. For want of reflection: for, on reflection, nothing (it will be seen) could be more groundless, than any such apprehension, as that a set of men, be they who they may, will be imprudently partial to a foreigner in preference to themselves, or even to one another. Nothing can be more contrary to theory derived from the universal nature of man: nothing more completely unsupported by particular experience.
[* ]This was said in presence of Sir S. Romilly, and by his deportment and silence stood confirmed.
[* ]Meaning, in England.
[† ]The instrument is from an engraving, with blanks for names and dates.
[* ]These funds are composed of bequests made for charitable purposes.
[† ]A work entituled ESPIRITU DE BENTHAM Sistema de la Ciencia Social.—Ideado por el Jurisconsulto Inglis Jeremias Bentham y puesto en ejecucion conforme a los principios del Autor original por el Dr. D. Toribio Nuñez, Jurisconsulto Español, Salamanca: Imprenta nueva: Por D. Bernardo Martin, 1820: 8vo, pages 140.
[* ]This body was composed of four members: The Conde de Sampaio, President, and Messrs. Carvalho, de Sao Luis, et Soto Maior.
[* ]March 15th, this letter of the 3d of December has not yet come to hand.
[† ]See No. 5, which was afterwards printed in Appendix.
[* ]The following paper exhibits the proportion, between the number of lawyers, and the number of men of all other professions, in the Congress of the Anglo-American United States, anno 1820. It is an exact reprint of a slip of printed paper, sent without explanation, to Mr. Bentham, by a diplomatic functionary:—
“CONGRESSIONAL ‘COMPOSITION.’ “A Statement of the Professions of the Members of the present Congress, made out by a Member.
“In House of Representatives.—100 lawyers; 13 physicians; 62 planters and farmers: 9 merchants; and 2 mechanics.
“188 Representatives, 2 Delegates, 44 Senators. Whole number of Members of Congress, 233. From New England and New York, in the house of representatives, 40 lawyers. Whole number of representatives from do. 68: deduct lawyers, 40; other professions, 28.”—(Western Journal.)
[* ]He was, in Corfu, Mr. Hamilton Browne’s master for the Greek language.
[* ]At this time, all that in England was known of that gentleman was, that in his own country he had filled the highest situations of public trusts.
[* ]May 1827. Of the two volumes of which it consists, an impression (a translation of the first) is far advanced: translator, Dr. Puigblanch, late professor of Hebrew at Alcalá, and subsequently, Deputy from Catalonia to the last Spanish Cortes.
[* ]Theodore Negris, who was at this period Minister of Justice, was one of the few men who had formed a correct estimate of the wants of his country; and since his death no individual has appeared to supply his place by forwarding, or even by recommending the adoption of any code of laws, which has long been, and still is, one of the primary necessities of Greece. Negris had the sagacity to see the necessity of a prompt attention to this subject, and the virtue to urge the early consideration of it on all whom he could influence. But his power was inconsiderable, even when he possessed office, and he died soon after the dispatch of the above letter.
[* ]By the ill health of that excellent man, this design was frustrated.
[* ]Nakos, having for a considerable time been labouring, to an alarming degree, under the indisposition called, in familiar language, mother-sickness, and his mother, at the same time, under the corresponding malady, was, at their joint request, sent back to Greece, under the care of the then Greek envoys, Messrs. Orlando and Luriottis; but, when he went, it was with a declared intention to come back again, if he could find means, after a residence of a year or two in his native land. Rallis, before he had passed at Haslewood his term of three years, had made such progress, and conducted himself so well in every respect, that he received from the masters an invitation to continue his residence at the school, in quality of usher, which invitation he accepted.
[* ]At the recommendation of Mr. Bentham, Mr. Rivadavia sent two of his sons to Messrs. Hill’s school, at Hazlewood, near Birmingham, from which an off-set is just planted at Bruce Castle, near Tottenham; and so well satisfied has Mr. Rivadavia been with the situation of these his sons, that six more pupils have come from that part of late Spanish America, making, in the whole, eight, among whom some others are relations of Mr. Rivadavia.—Ed. of orig. Edit.