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Bentham to the King of Bavaria. - 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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Bentham to the King of Bavaria.

“Sir,—

I am that Bentham of whose work on legislation so much is said in M. Bexon’s proposed Code. Since that time I have not been idle. Respect for your Majesty’s time enjoins economy in words.

“Causes of this address: the delight inspired by your late speech, and the hope of rendering assistance to designs so generous, so exemplary, and, especially from a throne, so unexampled.

“Provincial States—Penal Code, all-comprehensive, and in harmony with the public voice.—Justice administered with open doors.—Sole ground of decision, as far as practicable, vivd voce evidence:—on all these subjects, with so many others inseparably connected with them, this speech of your Majesty’s found me occupied.

“Nothing can well be conceived worse adapted to their professed ends, than the aggregate mass of our law, really existing and purely fictitious taken together, (for purely fictitious is whatever is called unwritten law,) with the Judiciary Establishment and system of Procedure thereto belonging: whatsoever of prosperity we are in possession of, being the result of causes, other than the aptitude of those professed means, with reference to their declared ends.

“The labour of sixty years of the fourscore I have lived, has, at length, succeeded in drawing to these truths the eyes of the public, and even of Parliament.

“Of a proposed Code of mine—all-embracing, all-comprehensive in its extent—an outline, with considerable explanations of detail, is in preparation; and will, I trust, be ready for presentation in the course of our next Session: some parts excepted, which are declaredly reserved, as not being suited to present times. In proportion as a fair copy advances, any person sent by anthority of your Majesty shall be welcome to transcribe it.

“In the meantime, your Majesty’s acceptance is requested for a few articles in print, all aiming at being contributory to the above purpose. These are:—

“I. Codification Proposal:—here mentioned in the first place, because, by the annexed testimonials, assistance may be lent to an anticipative judgment, whether, by information from the source in question, adequate payment for any further attention is likely to be made.*

“II. Proposed Constitutional Code. Vol. i. this, unbound; vol. ii. not being as yet printed, nor, indeed, quite completed: Preface, embracing both volumes, consequently not capable of being prefixed.

“This requires not only explanation, but apology.

“The political communities which, on this occasion, I had in view, were those whose constitution may be considered as being as yet unsettled. Such are, for example, the newly formed, or newly forming States, of late Spanish America. A representative democracy is the only form of Government which those States, or any of them, seem disposed to endure. It is, moreover, the only form of Government which, to political communities so circumstanced, I could, with any degree of sincerity, or on any tenable grounds in point of argument, take upon me to propose. Your Majesty’s magnanimity will forgive this declaration; your Majesty’s discernment will note the use of it: after such an acknowledgment, there can be no concealed design: no design to injure on pretence of serving.

“So far as regards those countries,—the above-mentioned testimonials will, some of them, help to show whether my labours in this vineyard have been altogether without fruit: so likewise the published translation made of those of my works into Spanish. In those countries, no young man, who is not conversant with them, is regarded as having had a liberal education: such, at least, is the information I have repeatedly received from official sources.

“To return to the above-mentioned proposed Code. Though, in what regards the supreme power, not adapted to any form of Government other than a Republican, yet in no inconsiderable quantity, may be seen in it matter which, if applicable with advantage under any one form of Government, may be so under any other.

“Follow a few examples:—

“1. Plan for keeping in its state of all-comprehensiveness, and whatever symmetry may have originally belonged to it, an all-comprehensive Code, when once formed: preserving it, at the same time, from being overrun, and obscured, and loaded, by an overgrowth, composed of what is so self-contradictorily called Unwritten Law: that is to say, of deductions made, and made by any and everybody that pleases, from judicial decisions. What is proposed to be done for this purpose, on the occasion of the proceedings of Legislative bodies, may be seen in this volume: to wit, in Ch. vi., Legislature, Section 29, Members’ Motions: [Works, vol. ix. p. 190-91.] What is proposed to be done for this same purpose, on the occasion of the proceedings of judicatories, will be to be seen in the as yet unprinted volume: that is to say, in Ch. xii. Judiciary Establishment, Section 19, Judges’ contested-interpretation-reporting function; Section 20, Judges’ eventually-emendative function; Section 21, Judges’ sistitive, or say, execution-staying function; Section 22, Judges’ preinterpretative function, [p. 502 to 512.]

“2. Plan for an all-comprehensive and systematical registration of the proceedings of all Public offices. Ch. viii., Prime Minister, Section 10, Registration System, [p. 209]: and Ch. ix., Ministers collectively, Section 7, Statistic function, [p. 232 to 253.]

“3. Plan for carrying economy and aptitude, at the same time, on the part of functionaries, to an ideal point of perfection, as indicated by three words, destined for the title of a separate publication: namely, Official aptitude maximized; expense minimized: and it is shown how, so far from being repugnant, diminution of expense is subservient to augmentation of aptitude. Chapters and Sections—Ch. ix., Ministers collectively, Section 15, Remuneration; Section 16, Locable who; Section 17, Located how; Section 18, Dislocable how: [p. 266 to 294.] In a monarchy, this of course cannot be applicable to the situation of monarch: but it may to any or all subordinate ones.

“The tract entitled Letters to Toreno, is sent on account of some views which it contains relative to Penal Legislation, and which are not to be found elsewhere.

“Some annexed manuscript Tables of Contents, as indicated by Titles of Chapters and Sections, may help to convey a faint anticipation of my views on the subject of the Judicial Establishment, the Penal Code, and Judicial Procedure: between criminal and civil no demand having, on this occasion, been found for any line of separation.

“Another accompaniment of this address is a packet of eight leaves, containing so many exemplars, all written at the same time by the same hand: name of the system of transcription which they exhibit—the manifold system. Mechanical as it is, the sort of operation, the result of which is thus exemplified, forms, by the application thus made of it, no inconsiderable article in the list of those on which, in my own view of the matter, the usefulness of my Procedure Code depends. With the exception of any such suits as, by their want of importance, fail of affording a sufficient warrant for the expense,—each portion of discourse, or other material incident whatsoever, on the occasion of any suit, civil or criminal, as it passes before the Judge, is minuted down in writing: minuted down, that is to say, in this same manifold form; to wit, either in the first instance, or in the form of so many copies taken, by one and the same operation, of a rough draft. In this way, as far as fourteen exemplars have actually been taken at once: and eight, in characters as legible as these, have habitually been taken, for several years past, for commercial and comparatively private purposes. An account of the invention, and its uses, as applied to all government proceedings, judicial more particularly, may be seen in the accompanying Code, in Ch. viii., Prime Minister, Section 10, Registration System. [Works, vol. ix. p. 209.]

“As to beauty,—for purposes of such superordinate importance,—a quality of such subordinate importance will not, assuredly, be deemed worth regarding.

“As to usefulness, one great use is this. In case of Appeal, these Exemplars, one or more of them, go up to the Appellate Judicatory, by the Letter post. This, except to a party who chooses to employ an Advocate, will, at the Superior Judicatory, constitute the whole of the expense.

“For registration and preservation, of written instruments giving expression to transfers made of property in all its shapes, and to obligatory agreement of all sorts,—preservation of them from falsification, as well as from destruction, the usefulness of it will be equally incontestable.

“The invention is by a lady of good family, whose husband is a gentleman of note, and in easy circumstances. What makes this mention necessary, is—that to perform the operation would require some instruction: a few weeks might even be necessary; and, otherwise than through them, no such instruction is to be had. They would, I will be answerable for them, with pleasure afford it to any person coming with authority from your Majesty to receive it.

“Of the appropriate paper, the price is here less than that of the most ordinary writing paper: the cost of the apparatus, consisting of the thinnest and cheapest pieces of silk (the more worn the better)—the habitual wear and tear would not raise it above that price. I see no reason for supposing the sort of paper not to be already made, or at any rate without difficulty capable of being made, in your Majesty’s dominions. Meantime, in this country it may be had in any quantity for the experiment; but, in this case, would be to be added of course the price of freight.

“This letter, more or less of it, will, probably, sooner or later, be printed and published, unless commands from your Majesty to the contrary are received. Should the intentions manifested in it be regarded as meriting so high a reward, it will be conferred by a letter, written in your Majesty’s own hand, notifying the receipt of this. In this shape alone do I receive rewards at the hands of monarchs. In this shape, I received my sufficient reward from the late Emperor Alexander. In my correspondence with that monarch, as printed in my herewith sent Papers on Codification, it may be seen that any service it may be in my power to render to crowned heads is not the less zealous—and assuredly it is not the less sincere—for being, in the ordinary sense of the word, gratuitous.

“A nearly complete list of my works is added. Such of them as are still in print are at your Majesty’s service, gratuitously; or at the bookseller’s price, as your Majesty pleases. Of the Constitutional Code, vol. i., herewith sent, a Spanish translation has, at the expense of the author, been made, and printed for gratuitous distribution.

“To conclude. Till now—in vain, if disposed to insincerity, could I deny it—all the arguments I have been able to find on the subject of monarchy, tend in disfavour of it. Even now, the only argument I can see—but it is no weak one—in favour of that form of government, is this same speech of a King of Bavaria.

“With unfeigned respect and admiration, nor altogether without hope of usefulness, I remain, Sir, your Majesty’s servant to command,” &c.

[* ] In the same volume, this tract is followed by another on the same subject, of anterior date; and one on the subject of the Penal Code, that had been proposed for Spain. (Note to the letter.)