The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. I.
• General Preface.
• Introduction to the Study of the Works of Jeremy Bentham;
• Section I.: Bentham’s Style and Method of Thinking.
• Section II.: The Greatest-happiness Principle and Its Application to Morals and Legislation.
• Section III.: The Pursuit of Truth.—fallacies.—principles of Evidence.
• Section IV.: System of Government.
• Section IV.: Law Reform.
• Section VI.: Principles of Punishment.
• Section VII.: Poor Laws, Education, and Other Institutions For National Amelioration.
• Section VIII.: International Law.
• Section IX.: Political Economy.
• Section X.: Logic and Metaphysics. †
• An Introduction to the Principles of Morals and Legislation.
• Preface.
• Chapter I.: Of the Principle of Utility.
• Chapter II.: Of Principles Adverse to That of Utility.
• Chapter III.: Of the Four * Sanctions Or Sources of Pain and Pleasure.
• Chapter IV.: Value of a Lot of Pleasure Or Pain, How to Be Measured.
• Chapter V.: Pleasures and Pains, Their Kinds.
• Chapter VI.: Of Circumstances Influencing Sensibility.
• Chapter VII.: Of Human Actions In General.
• Chapter VIII.: Of Intentionality.
• Chapter IX.: Of Consciousness.
• Chapter X.: Of Motives.
• Chapter XI.: Of Human Dispositions In General.
• Chapter XII.: Of the Consequences of a Mischievous Act.
• Chapter XIII. *: of Circumstances Influencing the Degree of Alarm.
• Chapter XIV.: Reasons For Considering Certain Actions As Crimes. *
• Chapter XV.: § 1. General View of Cases Unmeet For Punishment.
• Chapter XVI.: Of the Proportion Between Punishments and Offences.
• Chapter XVII.: Of the Properties to Be Given to a Lot of Punishment.
• Chapter XVIII. § 1.: Classes of Offences.
• Chapter XIX.: § 1. Limits Between Private Ethics and the Art of Legislation.
• I. Essay On the Promulgation of Laws
• Essay On the Influence of Time and Place In Matters of Legislation.
• Introduction. *
• Chapter I.: Principles to Be Followed In Trans Planting Laws.
• Chapter II.: Regard to Be Paid to Subsisting Institutions.
• Chapter III.: Rules Respecting the Method of Transplanting Laws.
• Chapter IV.: Laws Appear the Worse For Being Transplanted.
• Chapter V.: Influence of Time.
• A Table of the Springs of Action:
• A Fragment On Government;
• Preface to the First Edition, Published In 1776.
• Historical Preface, Intended For the Second Edition.
• Three Letters On the Fragment On Governmen
• Letter the First. of an Examination Into the Merits of a Critique On Blackstone’s Commentaries, Lately Published Under the Title of a Fragment On Government.
• Letter the Second. of an Examination Into the Merits of a Critique On Blackstone’s Commentaries, Lately Published Under the Title of a Fragment On Government.
• Letter the Third. By John Lind, Esq. Afterwards Barrister At Law, to D., Author of Two Letters * On a Fragment On Government.
• Introduction. *
• Chapter I.: Formation of Government.
• Chapter II.: Forms of Government.
• Chapter III.: The British Constitution.
• Chapter IV.: Right of the Supreme Power to Make Laws.
• Chapter V.: Duty of the Supreme Power to Make Laws.
• Principles of the Civil Code.
• Introduction.
• Part I.—: Objects of the Civil Law. *
• Chapter I.: Of Rights and Obligations.
• Chapter II.: Distinct Objects of the Civil Law.
• Chapter III.: Relation Between These Objects.
• Chapter IV.: Of Laws Relative to Subsistence.
• Chapter V.: Of Laws Relative to Abundance.
• Chapter VI.: Propositions of Pathology Upon Which the Advantage of Equality Is Founded.
• Chapter VII.: Of Security.
• Chapter VIII.: Of Property.
• Chapter IX.: Answer to an Objection.
• Chapter X.: Analysis of the Evils Resulting From Attacks Upon Property.
• Chapter XI.: Security and Equality—their Opposition.
• Chapter XII.: Security and Equality—means of Reconciliation.
• Chapter XIII.: Sacrifices of Security to Security.
• Chapter XIV.: Cases Subject to Dispute.
• Chapter XV.: Examples of Attacks Upon Security.
• Chapter XVI.: Of Forced Exchanges.
• Chapter XVII.: Power of the Laws Over Expectation.
• Part II.
• Chapter I.: Of Titles Which Confer a Right to Property. *
• Chapter II.: Another Mode of Acquisition—consent.
• Chapter III.: Another Means of Acquisition—succession.
• Chapter V.: Of Wills.
• Chapter V.: Of Rights Respecting Services—means of Acquiring Them.
• Chapter VI.: Community of Goods—its Inconveniences.
• Chapter VII.: Of Distribution of Loss.
• Part III.: Of the Rights and Obligations Attached to Different Private Conditions.
• Introduction.
• Chapter I.: Of Master and Servant.
• Chapter II.: Of Slavery.
• Chapter III.: Of Guardian and Ward.
• Chapter IV.: Of Parent and Child.
• Chapter V.: Of Marriage.
• Appendix.: of the Levelling System. *
• Principles of Penal Law.
• Part I.: Political Remedies For the Evil of Offences.
• Chapter I.: Subject of This Book.
• Chapter II.: Of Direct Methods of Preventing Offences.
• Chapter III.: Of Chronic Offences.
• Chapter IV.: Of Suppressive Remedies For Chronic Offences.
• Chapter V.: Of Martial Law
• Chapter VI.: Of the Nature of Satisfaction.
• Chapter VII.: Reasons Upon Which the Obligation to Make Satisfaction Is Founded.
• Chapter VIII.: Of the Different Kinds of Satisfaction.
• Chapter IX.: Of the Quantity of Satisfaction to Be Granted.
• Chapter X.: Of the Certainty of Satisfaction.
• Chapter XI.: Of Pecuniary Satisfaction.
• Chapter XII.: Of Restitution In Kind.
• Chapter XIII.: Of Attestative Satisfaction.
• Chapter XIV.: Of Honorary Satisfaction.
• Chapter XV.: Remedies For Offences Against Honour.
• Chapter XVI.: Of Vindictive Satisfaction.
• Chapter XVII.: Of Substitutive Satisfaction, Or At the Expense of a Third Party.
• Chapter XVIII.: Of Subsidiary Satisfaction At the Expense of the Public Treasure.
• Part II.—: Rationale of Punishment.
• Advertisement.
• Book I.: General Principles.
• Chapter I.: Definitions and Distinctions.
• Chapter II.: Classification.
• Chapter III.: Of the Ends of Punishment.
• Chapter IV.: Cases Unmeet For Punishment.
• Chapter V.: Expense of Punishment.
• Chapter VI.: Measure of Punishment.
• Chapter VII.: Of the Properties to Be Given to a Lot of Punishment.
• Chapter VIII.: Of Analogy Between Crimes and Punishments.
• Chapter IX.: Of Retaliation.
• Chapter X.: Of Popularity.
• Book II.: Of Corporal Punishments.
• Chapter I.: Simple Afflictive Punishments. *
• Chapter II.: Of Complex Afflictive Punishments.
• Chapter III.: Of Restrictive Punishments—territorial Confinement.
• Chapter IV.: Imprisonment.
• Chapter V.: Imprisonment—fees.
• Chapter VI.: Imprisonment Examined.
• Chapter VII.: General Scheme of Imprisonment.
• Chapter VIII.: Of Other Species of Territorial Confinement—quasi Imprisonment—relegation—banishment.
• Chapter IX.: Of Simply Restrictive Punishments.
• Chapter X.: Of Active Or Laborious Punishment.
• Chapter XI.: Capital Punishment.
• Chapter XII.: Capital Punishment Examined. *
• Book III.: Of Privative Punishments, Or Forfeitures.
• Chapter I.: Punishment Analyzed.
• Chapter II.: Of the Punishments Belonging to the Moral Sanction.
• Chapter III.: Forfeiture of Reputation.
• Chapter IV.: Of Pecuniary Forfeitures.
• Chapter V.: Forfeiture of Condition.
• Chapter VI.: Forfeiture of the Protection of the Law.
• Book IV.: Of the Proper Seat of Punishment: Or Say, of Mis-seated Punishment.
• Book V.: Of Complex Punishments.
• Chapter I.: Inconveniences of Complex Punishments.
• Chapter II.: Of Transportation.
• Chapter III.: Panopticon Penitentiary.
• Chapter IV.: Felony.
• Chapter V.: Of PrÆmunire.
• Chapter VI.: Outlawry.
• Chapter VII.: Excommunication.
• Book VI.: Miscellaneous Topics.
• Chapter I.: Choice of Punishments—latitude to Be Allowed to the Judges.
• Chapter II.: Of Subsidiary Punishments.
• Chapter III.: Of Surety For Good Conduct.
• Chapter IV.: Defeazance of Punishment.
• Appendix—: On Death-punishment. ∥ Jeremy Bentham to His Fellow-citizens of France.
• Part III.: Of Indirect Means of Preventing Crimes.
• Introduction.
• Chapter I.: Methods of Taking Away the Physical Power of Injuring.
• Chapter II.: Another Indirect Method—hinder the Acquisition of Knowledge Which May Be Rendered Injurious. †
• Chapter III.: Of Indirect Means of Preventing the Will to Commit Offences.
• Chapter IV.: Problem I. to Divert the Course of Dangerous Desires, and Direct the Inclination Towards Those Amusements Which Are Most Conformed to the Public Interest.
• Chapter V.: Problem II. to Make Such Arrangements, That a Given Desire May Be Satisfied Without Prejudice, Or With the Least Possible Prejudice.
• Chapter VI.: Problem III. to Avoid Furnishing Encouragement to Crimes.
• Chapter VII.: Problem IV. to Augment the Responsibility of Individuals, In Proportion As They Are More Exposed to Temptation to Do Wrong.
• Chapter VIII.: Problem V. to Diminish Sensibility With Regard to Temptation.
• Chapter IX.: Problem VI. to Strengthen the Impression of Punishments Upon the Imagination.
• Chapter X.: Problem VII. to Facilitate the Discovery of Offences Committed.
• Chapter XI.: Problem VIII. to Prevent Offences, By Giving to Many Persons an Interest In Preventing Them.
• Chapter XII.: Problem IX. to Facilitate the Recognition and the Finding of Individuals.
• Chapter XIII.: Problem X. to Increase the Difficulty of Escape For Delinquents.
• Chapter XIV.: Problem XI. to Diminish Uncertainty With Regard to Procedure and Punishment.
• Chapter XV.: Problem XII. to Prohibit Accessory Offences, In Order to Prevent Their Principals.
• Chapter XVI.: Of the Cultivation of Benevolence.
• Chapter XVII.: Employment of the Motive of Honour, Or of the Popular Sanction.
• Chapter XVIII.: Of the Employment of the Religious Sanction.
• Chapter XIX.: Uses to Be Drawn From the Power of Instruction.
• Chapter XX.: Use to Be Made of the Power of Education.
• Chapter XXI.: General Precautions Against the Abuse of Authority.
• Chapter XXII.: Measures to Be Taken Against the Ill Effects of an Offence Already Committed—conclusion of the Subject.

CHAPTER XXI.

GENERAL PRECAUTIONS AGAINST THE ABUSE OF AUTHORITY.

I proceed to certain means that governments may employ for the prevention of the abuse of authority on the part of those to whom they confide a portion of their power.

Constitutional law has its direct and its indirect legislation. Its direct legislation consists in the establishment of offices among which all political power is divided; this is not considered in this work. Its indirect legislation consists in general precautions, which have for their object the prevention of the misconduct, the incapacity, or malversation of those who administer these offices, either in chief or in subordination.

A complete enumeration of these indirect methods will not be attempted. It is here only intended to direct attention towards this object, and perhaps to lessen the enthusiasm of certain political writers, who having caught a glimpse of one or other of these methods, have flattered themselves that they have established a science of which they have not even drawn the outline.

1.

Divide Power into different Branches.

Every division of power is a refinement suggested by experience. The most natural plan, that which first presents itself, is that which places power altogether in the hands of a single individual. Command on the one side, obedience on the other, is a species of contract, the terms of which are easily arranged when the governor has no associate. Among all the nations of the east, the frame of government has preserved this primitive structure. The monarchial power descends without division from stage to stage, from the highest to the lowest, from the Great Mogul to the simple Havildar.

When the king of Siam heard the Dutch ambassador speak of an aristocratic government, he laughed at the idea as an absurdity.

This principal method is only indicated here: to examine into how many branches the power of government may be divided, and which of all the possible divisions deserves to be preferred, would be to write a treatise upon a political constitution. I only observe that this division ought not to form separate and independent powers: this would introduce anarchy into a state. An authority must be recognised, superior to all others, which receives no law, but only gives it, and which remains master even of the rules themselves which it imposes upon its manner of acting.

2.

Distribute the particular Branches of Power, each among different copartners—Advantages and Disadvantages of this policy.

In the provinces of Russia, before the regulations of Catherine II., all the different branches of power, military, fiscal, judicial, were placed in a single body, a single council. So far, the constitution of these subordinate governments sufficiently resembled the form of oriental despotism; but the power of the governor was a little limited by the powers of the council; and in this respect the form approached an aristocracy. At present, the judicial power is separated into many branches, and each branch is shared between many judges, who exercise their functions conjointly. A law, of the nature of the habeas corpus in England, has been established, for the protection of individuals against arbitrary power, and the governor has no more right to injure than a governor of Jamaica or Barbadoes.

The advantages of this division are principally these:—

1. It diminishes the danger of precipitation.

2. It diminishes the danger of ignorance.

3. It diminishes the danger from want of probity.

This last advantage can only be the constant result when the number of copartners is large; that is to say, when it is such that it would be difficult to separate the interests of the majority from the interests of the body of the people.

The division of powers has also its disadvantages, because it causes delays and foments quarrels, which may produce the dissolution of the government. It is possible to obviate the evil of these delays, by graduating the division according as the functions to which it is applied admit of more or less of deliberation. The legislative power and the military power form, in this respect, the two extremes, the first admits the greatest deliberation, and the second requires the greatest celerity. Whilst, as to the dissolution of the government, it is only an evil on one or the other of these two suppositions:—1st, That the new government is worse than the old; 2d, That the passage from the one to the other is marked by calamities and civil wars.

The greatest danger in plurality, either in a tribunal or an administrative council, is, that it diminishes responsibility in many ways. A numerous body may reckon upon a kind of deference on the part of the public, and may allow itself to perpetrate injuries which a single person would not dare to do. In a confederation of many persons, the single individuals may throw the odium of a measure upon the others: it is done by all, it is acknowledged by none. Does public censure rise against them? the more numerous the body, the more it is fortified against external opinion; the more it tends to form a kingdom within a kingdom—a little public, having a peculiar spirit, and which protects by its applause those of its members who have incurred general disgrace.

Unity, in all cases in which it is possible, that is, in all cases which do not require the combined knowledge and wills of many, as in a legislative body—unity, I say, is desirable, because it makes the whole responsibility, whether moral or political, to rest upon a single head. It divides with no one the honour of its actions; it bears, at the same time, the whole weight of the blame; it sees itself set against all, with no other support than integrity of conduct, no other defence than general esteem. When the individual is not honest from inclination, he becomes so in opposition to himself, in virtue of the position in which his interest is inseparable from his duty.

Besides, unity in the subordinate person employed, is a certain means for enabling the sovereign to discover, in a short time, the real capacity of individuals. A false and limited mind may hide itself for a long time in a numerous company; but if it act alone upon a public theatre, its insufficiency is soon unmasked. Men of mediocrity or inefficiency, always ready to seek for places where they may shelter themselves under the merit of others, will be afraid to expose themselves in a dangerous career, in which they will be reduced to their own value.

But it is possible to unite, in certain cases, the advantages which result from combination, and those which necessarily belong to the responsibility of an individual.

In subordinate councils, there is always an individual who presides, and upon whom the principal reliance is placed. Associates are given to him, that he may profit by their advice, and that there may be witnesses against him when he neglects his duty. But it is not necessary, for the accomplishment of this object, that they should be his equals in power, nor that they should have a right of voting; all that is necessary is, that the chief should be obliged to communicate to them all that he does, and that each one should make a declaration in writing respecting each of his acts, testifying his approbation or blame.—Such communication, in ordinary cases, ought to be made before an order is given; but in those which demand particular celerity, it would be sufficient if made immediately after. This arrangement could not fail in general to obviate the danger of disscusions and delay.*

3.

Place the power of Displacing in other hands than the power of Appointing.

This idea is borrowed from an ingenious pamphlet, published in America in 1778* by a deputy of the Convention, charged with examining the form of government proposed for the State of Massachusetts.

The pride of man is interested in not condemning his own choice. Independently of all affection, a superior will be less disposed to listen to complaints against one of his own nominees, than he would be against an indifferent person, and will have a prejudice arising from self-love in his favour. This consideration serves in part to explain those abuses of power so common in monarchies, when a subaltern is charged with great authority, for which he has only to render an account to the same individual who appointed him to his office.

In popular elections, the part that each individual has in the nomination of a magistrate is so small, that this kind of illusion hardly exists.

In England, the choice of the ministers belongs to the king; but the parliament can effectively displace them, by forming a majority against them. This, however, is only an indirect application of this principle.

4.

Suffer not Governors to remain long in the same Districts.

This principle particularly applies to considerable governments, in distant provinces, especially when separated from the principal body of the empire.

A governor armed with great power may, if leisure be given him, seek to establish his independence. The longer he remains in place, the more he may strengthen himself, by creating a party, or by uniting himself with a previously existing party. From oppression towards some, and partiality for others, though he may have no party, he may render himself culpable by a thousand abuses of authority, without any one daring or seeking to complain to the sovereign. The duration of his power gives birth to hopes or fears, which are equally favourable to him. He makes some his creatures, who regard him as the sole distributor of favours; whilst those who suffer, fear lest they should suffer more, if they offend a chief whom they have no hope to see changed for many years.

This will be true, especially with regard to offences which are more hurtful to the state than to individuals.

The disadvantage of rapid changes is, that it removes a man from his employment when he has acquired knowledge and experience as to its business. New men are liable to err through ignorance. This inconvenience will be palliated by the institution of a subordinate and permanent council, which would continue the progress and routine of affairs. What you gain by this means, is the diminution of a power that may be turned against you: what you risk, is the diminution of the degree of knowledge. There is no equality between these two dangers, when revolt is apprehended.

The arrangement ought to be permanent, to avoid giving umbrage to individuals. It is proper to accustom the minds of men to regard the change as fixed and necessary at determinate periods. If it take place only in certain cases, it may serve to provoke the evil it is destined to prevent.

The danger of revolt on the part of governors, only exists in feeble and ill-constituted governments. In the Roman empire, from the time of Cæsar to Augustus, nothing else is seen but governors and generals raising the standard of independence. It was not that this means of which we speak was neglected: changes were frequent: but either they knew not how to make a good use of this preservative, or they wanted vigilance and firmness, or, from other causes, they knew not how to hinder the frequency of revolt.

The want of a permanent arrangement of this nature is the most evident cause of the continual revolts to which the Turkish empire is subject, and nothing more completely proves the stupidity of this barbarous court.

Among the European governments which have stood in need of this policy, may be mentioned Spain in her American colonies, and England in the East Indies.

In the better civilized Christian states, nothing is more uncommon than the revolt of a governor. That of prince Gagarin, the governor of Siberia, under Peter I., is, I believe, the only example which can be cited in the last two centuries; and this happened in an empire which has not even yet lost its Asiatic character. The revolutions which have burst forth, have owed their origin to a more powerful and more reputable principle—the opinions, the sentiments of the people, the love of liberty.

5.

Renew the Governing Body by Rotation.

The reasons for not allowing a governor to remain long in office, all apply, with still more force, to a council or a body of directors. Render them permanent: if they agree among themselves, with regard to the generality of their measures, it is probable that, among these measures, there are many whose object is to serve themselves and their friends, at the expense even of the community which has confided its interests to them. If they divide, and are afterwards reconciled, it is highly probable that the price of their reunion will still be at the expense of the community. But, on the contrary, if you remove a certain number at a time, and there are abuses, you have a chance of seeing them reformed by the new-comers, whom their associates will not have had time to corrupt. One portion ought always to be left, to continue the current of affairs without interruption: ought this reserved part to be greater or less than the part renewed? If it be greater, it is to be feared that the ancient system of corruption will maintain itself in vigour; if it be less, it is to be feared that a good system of administration may be overturned by capricious innovations; whichever it be, the simple right of removal will scarcely answer the end, especially if the power of replacing belongs to the body itself. This right should never be exercised but upon extraordinary occasions.

Those who have been removed, ought they to be ineligible for ever, or only for a time? If they are ineligible for a time only, it will happen in the end that they will be re-elected, and that the spirit of federation will run its course in the body. If they are ineligible for ever, the community will be deprived of the talents and experience of its most skilful servants. Upon the whole, this species of policy appears only an imperfect substitute for other means which will be hereafter mentioned, and especially for the publicity of all proceedings and all accounts.

This arrangement of rotation has been adopted in England, in the great commercial companies; and, for some years past, it has been introduced into the direction of the East India Company.

This political view is not the only one which has been taken of rotation. It has often been adopted for the simple object of effecting a more equal distribution of the privileges which belong to office.

The great political work of Harrington (Oceana) turns almost entirely upon a system of rotation among the members of government. A man of wit, who does not see the full extent of a science, seizes a single idea, developes it, applies it to all cases, and sees nothing beside it. It is thus that, in medicine, the less the extent of the art is perceived, the more are people inclined to believe in an elixir of life, a universal remedy, a marvellous secret. Classification is useful, for the purpose of directing the attention successively to all the means.

6.

Admit Secret Informations.

Every one knows, that at Venice secret informations were received. Boxes were placed in different situations about the palace of St. Mark, whose contents were regularly examined by the inquisitors of state. According to these anonymous accusations, it is pretended that certain persons have been seized, imprisoned, sent into exile, and even punished with death, without any ulterior proof. If this were true, there was nothing more salutary and more reasonable than the first part of the institution—nothing more pernicious and abominable than the second. The arbitrary tribunal of the inquisitors has been a reasonable ground of reproach to the Venetian government, which must have been in other respects wise, since it maintained itself for so long a period in a state of prosperity and tranquillity.

It is a great evil when a good institution has been connected with a bad one: all eyes are not able to use the prism which separates them. In what consists the evil of receiving secret informations, even though anonymous in the first instance? Without doubt, it would not be right to hurt a hair upon a man’s head upon a secret information, nor to give the slightest uneasiness to an individual; but, with this restriction, why should the advantage which may result from them be lost? The magistrate considers if the object denounced deserve his attention: if it do not deserve it, he disregards the information; in the contrary case, he directs the informer personally to appear. After examining the facts, if he find him in error, he dismisses him, praising his good intentions, and concealing his name; if he have made a malicious and perfidious accusation, his name and accusation ought to be communicated to the party accused. But if his accusation has foundation, judicial proceedings commence, and the informer is obliged to appear and give his depositions in public.

Is it asked, upon what principle an institution of this kind may be advantageous? Precisely upon the same principle that votes are collected by ballot. In the course of the procedure, the defendant ought certainly to be informed who the witnesses are who depose against him; but where is the necessity that he should know them before the process commences? In this last case, a witness who may have any thing to fear from a delinquent, would not expose himself to a certain inconvenience, for the chance of rendering a doubtful service to the public. It is hence that offences remain so frequently unpunished, because individuals will not make personal enemies to themselves, without being sure of serving the public.

This means has been considered under the head of abuses of authority, because it is in opposition to official persons that its efficacy is most marked; seeing that in this case, the power of the supposed delinquent is one more weight in the scale of dissuasive motives. In this kind of case, the superior having received a warning which puts him upon his guard, may pass by the first offence, and discover the guilty party in the commission of a second.

The resolution to receive secret and even anonymous informations, would be good for nothing, unless publicly known: but once known, the dread of these informations will soon render the occasion of their occurrence most rare, and thereby diminish their number. And whom will this fear affect? only the guilty, and those who intend to become so; for with publicity of procedure, the innocent cannot be endangered, and malice will be confounded and punished.

7.

Introduce the Lot, in requests addressed to the Sovereign.

When informations reach the Minister only, they may have their use; but to secure their utility, they ought to come to the knowledge of the Sovereign.

Frederick the Great received directly the letters of the lowest of his subjects, and often wrote the answer to them himself. This fact would be incredible, if it were not well attested.

It must not be concluded from this example, that the same thing could be done under all governments.

In England, every one has liberty to present a petition to the King; but the destination of these petitions, delivered at the same moment to a gentleman of the chamber, is proverbial: they furnish curl papers for the maids of honour. It may be believed after this, that such petitions are not frequently presented; but they also are not very necessary in a country in which the subject is protected by the laws, which do not depend for their execution upon the sovereign. There are other means for the private man to obtain information; there are other channels of information for the prince.

It is in absolute monarchies that it is essential to keep a constant communication open between the subject and the monarch. It is necessary for the subject, that he may be sure of protection; it is necessary for the monarch, that he may be sure of being free.

Though the people may be called canaille, populace, or what you will, the prince who refuses to listen to the lowest individual of this populace, very far from increasing his power by so doing, in reality diminishes it. From this moment, he loses the faculty of governing by himself, and becomes an instrument in the hands of those whom he calls his servants. He may imagine that he does what he likes—that he determines for himself: but, in fact, it is they who determine for him; for to determine all the causes which a man has for action, is to determine all his actions. He who can neither see nor hear, but as it pleases those who surround him, is subject to all the impulses which they may choose to give him.

To place an unlimited confidence in ministers, is to place an unlimited confidence in the hands of those who have the greatest interest in abusing it, and the greatest facility for so doing.

Whilst, as to a minister himself, the more upright he is, the less need will he have of such confidence: and it may be affirmed without a paradox, that the more he deserves it, the less will he desire to possess it.

The sovereign who cannot read all these petitions, without sacrificing precious time, may have recourse to different expedients for relieving himself from dependence upon those in whom he confides, and assuring himself that they do not withdraw the most important from him. He may take certain ones at hazard; he may have them distributed under different heads, and have them presented without selection. The details of such an arrangement are neither sufficiently important, nor sufficiently difficult to require a particular development. It is sufficient to have suggested the idea.

8.

Liberty of the Press.

Listen to all counsel: you may find yourself the better for it; you run no risk of being the worse. This is what good sense says. To establish the liberty of the press, is to admit the counsels of every body: it is true, that on many occasions the public judgment is not listened to before a measure is determined upon, but after it is executed. This judgment, however, may always be useful, either with reference to measures of legislation which may be reformed, or with respect to those of administration which may have to be repeated. The best advice given to a minister alone may be lost; but good advice given to the public, if it serve not upon one occasion, may serve upon another; if it be not employed to-day, it may be employed in future; if it be not offered in a suitable form, it may receive from the hands of another those ornaments which shall make it relished. Instruction is a seed, which, so to speak, must be tried in a diversity of soils, and cultivated with patience, because its fruits are often of slow growth.

This measure is far preferable to that of petitions, as a means of emancipating the sovereign. Whatever may be his discernment in the choice of his ministers, he can only take them from a small number of candidates, whom the chances of birth or fortune present to him. He may therefore reasonably think that there are other men more enlightened than them; and the wider he extends his faculty of knowing and hearing, the more he extends his power and his liberty.

But insolence and drollery may mingle themselves with the manner of giving this advice. In place of confining an examination to measures, its criticisms may extend to persons. And, indeed, how difficult is it to keep these two operations properly separated! How can a measure be censured, without attacking, in some degree, either the judgment or the probity of its author? There is the rock. Hence it is, that the liberty of the press is as rare as its advantages are manifest. It has ranged against it all the fears of self-love. Joseph II. and Frederick II., however, had the magnanimity to establish it. It exists in Sweden; it exists in England: it might exist everywhere, with some modifications, which would prevent its greatest abuses.

If, owing to the habits of the government, or from particular circumstances, the sovereign cannot permit the examination of the acts of his administration, he ought at least to permit the examination of the laws: though he claim the privilege of infallibility for himself, he need not claim it for his predecessors. If he be so jealous of the supreme power as to make every thing respected which has been touched by the sceptre, he might leave open to discussion mere science, principles of right procedure, and subordinate administration.

If the liberty of the press may have its inconveniences, arising from pamphlets and loose sheets being spread among the public, addressed to the ignorant as well as to the enlightened part of a nation, the same reason need not be applied to serious works of greater length—to books which can only have a certain class of readers, and which cannot produce any immediate effect, but which allow time to prepare an antidote.

Under the ancient French regime, it was sufficient that a book of moral science had been printed at Paris, to raise an unfavourable prejudice against it. The instructions of the Empress of Russia to the assembly of deputies were prohibited in France: the style and the sentiments were too popular to be tolerated under the French monarchy.

It is true, that in France, as elsewhere, negligence and inconsistency palliated the evils of despotism. A strange title served as a passport to genius. The rigour of the censorship serves only to drive the trade in books to other nations, and to render the satire which it seeks to suppress only the more severe.

9.

Publish the Reasons and the Facts which serve as the Foundation for the Laws and other Acts of Government.

This is a necessary link in the chain of a generous and magnanimous policy, and an indispensable accompaniment to the liberty of the press. The one of these institutions is due to the people; the other is due to the government. If the government disdain to inform the nation of its motives upon important occasions, it thereby announces that it depends upon force, and counts the opinion of its subjects for nothing.

The partisan of arbitrary power does not think thus: he does not wish that the people should be enlightened, and he despises them because they are not enlightened. You are not able to judge, he says, because you are ignorant; and you shall always be kept ignorant, that you may not be capable of judging. Such is the eternal circle in which he entrenches himself. What is the consequence of this vulgar policy? General discontent is formed and increased by degrees, sometimes founded upon false and exaggerated imputations, which are believed from want of discussion and examination. A minister complains of the injustice of the public, without thinking that he has not given them the means of being just, and that the false interpretations given of his conduct are a necessary consequence of the mystery with which it is covered. There are only two methods of acting with men, if it be desired to be systematic and consistent: absolute secresy, or entire freedom—completely to exclude the people from the knowledge of affairs, or to give them the greatest degree of knowledge possible—to prevent their forming any judgment, or to put them in a condition to form the most enlightened judgment—to treat them as children, or to treat them as men: a choice must be made between these two methods.

The first of these plans has been followed by the priests of ancient Egypt, by the Bramins in Indostan, by the Jesuits in Paraguay; the second is practically established in England; it is established by law in the United States of America only. The greater number of European governments fluctuate continually between the one and the other system, without having the courage to attach themselves exclusively to either, and never cease placing themselves in contradiction to themselves, by the desire of having industrious and enlightened subjects, and the dread of encouraging a spirit of examination and discussion.

In many branches of administration it would be useless—it might be dangerous, to publish beforehand the reasons which determine measures. It is requisite only to distinguish the cases in which it is necessary to enlighten public opinion, to prevent its going astray; but in matters of legislation, this principle is always applicable. It may be laid down as a general rule, that no law ought ever to be made without a reason either expressly assigned or tacitly understood. For what is a good law, if it be not a law for which good reasons can be given? There must always be a reason, good or bad, for making a law, since there is no effect without a cause. But oblige a minister to assign his reasons, and he will be ashamed not to have good ones: he will be ashamed to offer you base coin, when he is required to present you with a touchstone to ascertain its quality.

It is a means whereby a sovereign may reign after his death. If the reasons for his laws are good, he gives them support that they can never lose. His successors will be obliged to maintain them from a sentiment of honour. Thus the more happiness he has bestowed upon his people, the more happiness will he secure to his posterity.

10.

Exclude Arbitrary Power.

“Clotaire made a law,” says Montesquieu, “that an accused person should not be condemned without being heard: this proves that a contrary practice prevailed in particular cases, or among a barbarous people.”—Esprit des Lois, chap. xii.

Montesquieu dared not speak out. Could he have written this passage without thinking of lettres de cachet and the administration of the police, such as it was in his time? A lettre de cachet might be defined to be—an order to punish without any proof for a fact against which there is no law.

It was in France and at Venice that this abuse reigned with the greatest violence. These two governments, in other respects moderate, have calumniated themselves by this foolery. They exposed themselves to imputations often false, and to the reaction of terror; for these precautions themselves, by inspiring alarm, created danger. Behave yourself well, it is said, and the government will not be your enemy. But how may I assure myself of this? I am hated by the minister, or by his valet, or by his valet’s valet. If I am not hated to-day, I may be to-morrow, or some other day—and I may be taken for another person; it is not upon my conduct that I depend, but upon the opinion of men more powerful than me. Under Louis XV., lettres de cachet were an article of commerce. If this could happen under a government which passed for gentle, what would it be in countries where manners are less civilized?

In default of justice and humanity, it seems to me that the pride of governments ought to suffice for the abolition of these remains of barbarity.

Lettres de cachet may have been established under the veil of maxims of state: at the present day, this pretence has lost its magic. The first thought which presents itself to the mind is that of the incapacity and weakness of those who employ them. If you dared to hear that accused person, you would not close his mouth; if you keep him silent, it is because you fear him.*

11.

Direct the Exercise of Power by Rules and Forms.

This is another head of police with regard to subordinate offices, no less applicable to absolute monarchies than to mixed governments. If the sovereign consider himself interested in remaining independent of the laws, he is not interested in communicating this same independence to all his agents.

The laws which limit subordinate officers in the exercise of their power, may be distinguished into two classes:—To the first belong those which limit the causes with regard to which they are permitted to exercise certain powers; to the second, those which determine the formalities with which they shall exercise them. These causes and these formalities ought to be all specifically enumerated in the body of the law: this being done, the subjects ought to be informed that these are the causes, and these the only causes, for which an attack can be legally made upon their security, their property, their honour. Hence the first law with which a great code ought to be begun, should be a general law of liberty—a law which should restrain delegated powers, and limit their exercise to certain particular occasions, for certain specific causes.

Such was the intention of Magna Charta, and such would have been its effect, without that unfortunate indeterminate expression, “Lex terræ,” &c.; an imaginary law, which spreads uncertainty over the whole; because, by unceasingly referring to the custom of ancient times, examples and authorities have been sought among the abuses which it was intended to prevent.

12.

Establish the Right of Association; that is to say, of Assemblies of the Citizens for the expression of their sentiments and their wishes upon the public measures of Government.

Among the rights that a nation ought to reserve to itself, when it institutes a government, this is the principal, as being the foundation of every other. However, it is almost useless expressly to mention it here: the people who possess it, need not to be told to preserve it; and those who do not possess it, have little hope of obtaining it; for what is there which can induce their chiefs to give it them?

At first sight, this right of association would appear incompatible with government; and I allow, that to consider the right as a means of repressing government would be absurd and contradictory: but the case is very different. If the slightest act of violence be committed by one or many of the members of the association, punish them as if it had been committed by any other individual. If you find that you want the power to punish them, it is a proof that the association has made such progress as it could not have made without just cause; indeed, that it is not an evil, or that it is a necessary evil. I suppose that the government possess a public force, an organized authority, everywhere. If, then, these associations have become so strong as to intimidate it in the midst of all its regular sources of power—if it have not formed associations on its own side, though it possess such superior means for establishing them, it is an infallible sign that the calm and reflecting judgment of the nation is in opposition to such government. This being settled, what reason can be offered for continuing in the same state—for not satisfying the public wish? I cannot find any. Without doubt, a nation, being composed of men, is not infallible: a nation, as well as its chiefs, may be deceived as to its true interests; nothing is more certain: but if the great majority of a nation be found on one side, and its government on the other, may it not be presumed, in the first instance, that this general discontent is founded upon real grievances?

Far from being causes of insurrection, I consider associations as the most powerful means of preventing this evil. Insurrections are the convulsions of weakness, which finds strength in the moments of despair. They are the efforts of men who have not been permitted to express their feelings, or whose projects could not have succeeded, had they been known—of conspirators, who, being opposed to the general feelings of the people, can only succeed by surprise and violence. Those who frame them can therefore only hope for success by means of force; but those who can believe that the people are on their side—those who can flatter themselves with the hopes of triumph through the influence of public opinion,—why should they employ violence? why should they expose themselves to manifest danger without utility? I am therefore persuaded, that men who have full liberty of associating, and who can do so under the protection of the laws, will never have recourse to insurrection, except in those rare and unfortunate cases, in which rebellion is become necessary. Whether associations are permitted or prohibited, rebellions will never break out sooner.

The associations which were openly formed in Ireland, in 1780, produced no evil, but served rather to maintain tranquillity and security in the country; though this country, half civilized, was torn by every possible cause of civil war.

I even believe that associations might be permitted, and become one of the principal means of government, in the most absolute monarchies. These kinds of states are more tormented than others by revolts and risings; every thing is done by sudden movements: associations would prevent disorders. If the subjects of the Roman empire had been in the habit of association, the empire and the life of the emperor would not have been continually sold by auction by the prætorian guards.

Associations, however, cannot be permitted to slaves: too much injustice has been done them, not to afford reason to fear every evil from their ignorance or their resentment. It is not in the West Indies, it is not in Mexico, that the people may be armed and permitted to associate; but there are countries in Europe in which this strong and generous policy might be set up.

It must also be acknowledged, that there is a degree of ignorance which renders associations dangerous: this proves that ignorance is a great evil, and not that associations are not a great good. Besides, this measure itself may serve as an antidote against its ill effects: in proportion as an association gains in extent, being formed in security, all its bases are discovered; the public is enlightened; the government employs every means in disseminating the knowledge of facts, and dissipating errors; freedom and instruction join hand in hand; freedom facilitates the progress of knowledge, and the progress of knowledge represses the wanderings of freedom.

I know not how the establishment of this right can give uneasiness to the government. There is no one which does not fear the people, which does not consider it necessary to consult their wishes, and to accommodate itself to their opinions: the most despotic are the most timid. What sultan is so quiet, so secure in the exercise of his power, as the king of England? The janissaries and the populace make the seraglio tremble: in London, the voice of the people is heard in legitimate assemblies; in Constantinople, it speaks in outrages: in London, the people speak by petitions; at Constantinople, by fires.

The case of Poland may be presented as an objection, in which associations produced so many evils: but this is deceptive; the associations were produced by anarchy, and did not produce it. Besides, in speaking of this means as a restraint upon governments, an established government is supposed—a medicine, and not the daily food, is spoken of.

I observe again, that even in the states in which this right exists, circumstances may arise, in which it will be proper, not entirely to suspend, but to regulate its exercise. An absolute and inflexible rule is not requisite in this respect. We have seen, in the course of the last war, the British Parliament restraining the right of assembling; not allowing political unions, till the object had been publicly announced, and sanctioned by the magistrates, who possessed the power of dissolving them; and these restrictions taking place at the same time that the citizens were called upon to form military bodies for the defence of the state, and whilst the government announced the noblest confidence in the general spirit of the nation. When these restraints ceased, every thing remained in the same condition: it might have been supposed that the restrictive law continued. It was because a people, secure of its rights, enjoys them with moderation and tranquillity: if it abuse them, it is because it is doubtful of them: precipitation is the effect of fear.

[* ]This is the plan adopted by the East India Company. Formerly it was the Council of Madras or Calcutta which decided every thing by a plurality of votes. At present, the Governor ought to consult the Council, and each member ought to give his opinion in writing; but they have no vote—they are simply advisers: the Governor decides every thing in the last resort. Consequently, it is not sufficient for him to gain a majority in the Council, to elude the responsibility which rests altogether upon him.

[* ]Reprinted in Almon’s Remembrancer, No. 84, p. 223.

[* ]This does not extend to extraordinary circumstances, similar to those under which the habeas corpus act has been suspended in England, with known precautions.