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Subject Area: Law

Observations on the Treason Bill; † - Jeremy Bentham, The Works of Jeremy Bentham, vol. 10 (Memoirs Part I and Correspondence) [1843]

Edition used:

The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 10.

Part of: The Works of Jeremy Bentham, 11 vols.

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Observations on the Treason Bill;†

By a Well-Wisher to the Object of it.

“The proposition assumed as the principle of the Bill, is, that the protection afforded by the laws in being to the person of the sovereign, and to the constitution of the realm, fails of being adequate to the purpose: to supply the deficiency is accordingly the object of the bill.

“Admitting the principle, and approving most cordially of the object, I will venture to hazard a few observations on the provisions of detail, by which that object is pursued.

“In many instances they appear to me to go beside the mark, tending, in appearance at least, to involve the innocent in the punishment, and, at any rate, in the terror, intended only for the guilty. In other instances, they appear to fall short of the mark, leaving, or even rendering the intended protection weak or inefficient. I proceed to the consideration of the several particular passages by which these general apprehensions have been suggested; and, in proportion as the several supposed defects present themselves, I shall take the liberty of proposing such alterations as appear calculated to afford the proper remedies.

“I. Sect. 1. Description of the treason—Words descriptive of the intentions respecting the person of the king. Among these words I find the word imagine—I would humbly propose to leave it out—I must confess myself to have a very near interest, indeed, in the omission—a personal interest of the highest nature. If to imagine the death of the king be treason, then am I a traitor—I, who am imagining it in the sole view and purpose of contributing to the prevention of it. Judges, jury, counsel, audience, all who contribute to, or are present at the trial of a traitor of the description in question, will be traitors. Who, in short, is there in the whole country that will not be a traitor? To imagine is to figure to one’s self. There is no occult meaning, no Saxon, no Gothic, no Runic etymology in it. It is of Latin origin: we all know whence it comes. The verb to imagine, imaginari, is from the substantive imago, image. To imagine a transaction, is to raise up, or simply to contain the image, the picture of that transaction in one’s mind. A man at this rate may be a traitor, not only without any fault, but without so much as any action whatever on his part. Under a clause thus worded, the case of the subject would be rather of the hardest; not only any man may of himself become a traitor, without his knowing anything of the matter, but any man may fasten upon any other, and make a traitor of him in spite of his teeth. A man who, in obedience to his majesty’s proclamation, should repair to a magistrate to give information of the villain who threw the stone, would, before his information was so much as completed, have planted the taint of treason in the bosom of the magistrate; for, in short, if a man will be talking to me about a plot, or anything else, how can I help imagining it? Not a human being in the country will be safe asleep any more than awake. If, in a dream, I imagine an assassin attacking the person of his majesty, and myself defending that sacred person, I am a traitor under this clause. Dionysius punished men as traitors for their dreams.—Is it really necessary to the preservation of his majesty, that he should be converted into a Dionysius?

“It was in hate, or in wrath, (I forget which, the difference is not great,) that the Psalmist, as he himself has the candour to confess, took upon him to say, “All men are liars.” May I venture to ask, whether the learned penner of this clause may not have been in a predicament a little similar to that of the Psalmist, when he took upon him thus to declare, “All men shall be traitors?” Laws made with pure and laudable intentions, directed to a laudable and important object, should not be made to go out of the way, for the mere purpose of putting on the language of an odious and useless tyranny.

“All this while, what I am perfectly aware of, and equally ready to admit, is, that in common parlance, (I mean common legal parlance,) the language of an act of Parliament, or other law instrument, is not, in the estimation of learned gentlemen, reputed legal, unless it contain a certain quantity of surplusage, composed of words which add nothing to the sense. But, with great submission, with all the submission becoming a man who has too long ceased to be learned to have any pretensions to that title, it is sufficient that the surplusage should not add anything to the sense intended; it is not necessary that, to the sense really intended by the authors of the measure, it should add another sense, as odious to their feelings, as it is remote from their intentions.”*

Two specimens of epistolary communications, the first to Lord Lansdowne, the second to Miss F—, are remarkable for their oddity:—

[† ] This was the Bill which was passed into the Act of 36 Geo. III. c. 7, for defining the application of the law to those constructive treasons which had been raised by the courts of law on the statute of Edward. The phraseology attacked by Bentham is adopted from the old Act.

[* ] This paper was to have been “continued,” but no continuation has been found.