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• Errata—vol. VIII.
• Chrestomathia: Being a Collection of Papers, Explanatory of the Design of an Institution, Proposed to Be Set On Foot Under the Name of the Chrestomathic Day School, Or Chrestomathic School, For the Extension of the New System of Instruction to the High
• Introduction By the Editor.
• First Preface to the First Edition.
• Second Preface to the First Edition.
• Chrestomathic (a) Instruction Tables. Table I.
• Chrestomathic Instruction Tables. Table II.
• Appendix. No. I.
• Appendix.—no. II.
• Appendix.—no. III.
• Appendix.—no. IV.: Essay On Nomenclature and Classification. *
• Appendix.—no. V.: Sources of Motion.
• Appendix.—no. VI.
• Appendix.—no. VII.
• Appendix.—no. VIII.
• Appendix No. IX.
• A Fragment On Ontology; Now First Published, From the Manuscripts of Jeremy Bentham.
• Note By the Editor.
• Introduction.
• Chapter I.: Classification of Entities.
• Chapter II.: Fictitious Entities Classified.
• Essay On Logic: Now First Published, From the Manuscripts of Jeremy Bentham.
• Note By the Editor.
• Introduction.
• Chapter I.: Logic—what ?
• Chapter II.: Logic, Its Characteristics.
• Chapter III.: Præcognita: Or, Preliminary and General Indications Concerning Logic, According to the Aristotelians.
• Chapter IV.: Of Aristotle’s Predicaments and Postpredicaments.
• Chapter V. *: Mode of Discussion.
• Chapter VI.: Relation of Logic to the Business of Human Life In General, and Therein to Arts and Sciences, I. E. to Disciplines.
• Chapter VII.: Clearness In Discourse, How to Produce It? and Hence of Exposition.
• Chapter VIII.: Of Division.
• Chapter IX.: Of Methodization, Otherwise Termed Arrangement. † ‡
• Chapter X.: Of the Art of Invention.
• Appendix.—a.: Phenomena of the Human Mind.
• Appendix B. Division of Art and Science. †
• Essay On Language; Now First Published, From the Manuscripts of Jeremy Bentham.
• Note By the Editor.
• Introduction.
• Chapter I.: Modes Or Forms of Which Discourse Or Language Has Been Found Susceptible, Viz. Audible, Visible, and Their Respective Substitutes.
• Chapter II.: Uses of Language.
• Chapter III.: Operations Which, In the Character of an Art, Are Performable In Relation to Discourse, Or Language In General.
• Chapter IV.: Properties Desirable In a Language.
• Chapter V.: Of Improvement Considered As Applicable to Language, Or the Means By Which, In So Far As the Particular Language Employed By an Individual Admits of the Possession of Them, the Properties Desirable In Language May, On Each Occasion, Be Secured
• Chapter VI.: Analytical View of the Matter of Thought and Internal Action; Correspondent View of the Matter of Language.
• Fragments On Universal Grammar; Now First Published, From the Manuscripts of Jeremy Bentham.
• Introduction.
• Chapter I.: Definitions.
• Chapter II.: Uses of Universal Grammar.
• Chapter III.: Of the Parts of Speech.
• Chapter IV.: Of the Noun-substantive.
• Chapter V.: Of the Adjective.
• Chapter VI.: Of Pronouns. *
• Chapter VII.: Of Verbs.
• Chapter VIII.: Of Government and Concord.
• Chapter IX.: Of Prepositions, Adverbs, and Conjunctions.
• Chapter X.: Of Interjections.
• Tracts On Poor Laws and Pauper Management.
• Note By the Editor On the Tracts On Poor Laws.
• Situation and Relief of the Poor.
• Observations On the Pauper Population Table Hereunto Annexed.
• Outline of the Non-adult Value Table.
• Outline of a Work Entitled Pauper Management Improved.
• Book I.: Political Arrangements.
• Book II.: Plan of Management.
• Book III.: Collateral Benefits.
• Book IV.: Pauper Comforts.
• Observations On the Poor Bill. Introduced By the Rt. Hon. William Pitt (feb, 1797). : Chapter I. Introduction
• Chapter II.: 1. Under-ability, Or Supplemental-wages Clause.
• Chapter III.: 2. Family-relief, Or Extra-children Clause.
• Chapter IV.: 3. Cow-money Clause.
• Chapter V.: 4. Relief-extension, Or Opulence-relief Clause.
• Chapter VI.: 5. Apprenticeship Clause.
• Three Tracts Relative to Spanish and Portuguese Affairs; With a Continual Eye to English Ones.
• Advertisement For Tract the First and Second; of This Second * Publication, Namely, On the Then Proposed Spanish House of Lords. ( Anno 1820.)
• Tract, No. I.: Letter to the Spanish Nation On a Then ( Anno 1820) Proposed House of Lords.
• Advertisement to Tract the Second.
• Tract, No. II.: Observations On Judge Advocate Hermosa’s Panegyric On Judicial Delays; On the Occasion of the Impunity As Yet Given By Him to the Loyal Authors of the Cadiz Massacre, a Counterpart to the Manchester Massacre; Explaining, Moreover, the Effe
• Advertisement to Tract the Third.
• Tract, No. III.: Letter to the Portuguese Nation, On Antiquated Constitutions; On the Spanish Constitution Considered As a Whole, and On Certain Defects Observable In It; In Particular, the Immutability-enacting, Or Infallibility-assuming, the Non-re-elig
• Letters to Count Toreno, On the Proposed Penal Code, Delivered In By the Legislation Committee of the Spanish Cortes, April 25th, 1821.
• Advertisement.
• Letter I.
• Letter II.: On the Course Taken By the Legislative Committee, to Prevent, Otherwise Than By Punishment Eo Nomine, the Free Examination of Their Proposed Penal Code.
• Letter III.
• Letter IV.
• Letter V.
• Letter VI.
• Letter VII.
• Supplemental Advertisement.
• Securities Against Misrule, Adapted to a Mahommedan State, and Prepared With Particular Reference to Tripoli In Barbary.
• Note By the Editor.
• Chapter I.: Preliminary Explanations.
• Chapter II.: Public Opinion the Sole Remedy—parallel Between the Public-opinion Tribunal and the Official Judicatories.
• Chapter III.: Notification and Publication In Reference to Securities.
• Chap. IV.: The Securities In Detail.
• Part I.: Securities In Favour of the Nation Considered In the Aggregate.
• Part II.: Securities In Favour of Individuals.
• Chapter V.: Hopes of Success For Any Project Having Such Securities For Its End.

CHAPTER VI.

5. Apprenticeship Clause.

“XL. And be it further enacted, That all poor children, who shall at any time have received employment under or by virtue of this Act, and shall obtain a certificate of his or her good behaviour during the time of such employment from the person or persons appointed to the management of the poor of any parish or united parishes, with the consent of two of the visiters of the district in rotation, and confirmed by the guardian of the poor for the county or division, shall be entitled to be put out as apprentices or hired servants by the person or persons appointed to the management of the said poor, with such rewards as hereinafter mentioned, by writing under their hands, according to the Form No. NA and No. NA in the Schedule hereunto annexed, or to that or the like effect; and that every male child of the age of fourteen years, and every female child of the age of twelve years, or at an earlier age if it shall be thought fit, may be bound apprentice to any reputable person in Great Britain, to be taught any art, trade, mystery, or occupation, or any handicraft business or manufacture, which they are respectively fit for, for any term not exceeding seven years, and so that the term of such apprenticeship shall not endure beyond the age of twenty-one years for male children, and of nineteen years for female children, and in any employment of husbandry for such time not less than three years for such child or children respectively, and as the major part of the persons hereby authorized to bind such apprentices shall think most suited to the circumstances of such respective child or children, or until such child or children respectively shall attain the ages, if a male, of twenty-one years, or, being a female, of nineteen years; or such persons respectively may, if they shall think the strength or capacity of any male child or children suited thereto, cause him or them to be employed and bound as apprentices in the sea service for the time and in manner aforesaid, and according to the laws in force for binding poor apprentices to the sea service; and that every writing made in pursuance of this Act shall be as binding as an indenture between the master, mistress, and apprentice, and the guardian of the poor for the county or division confirming the same, and his successors; and shall in all respects have the same effect, and operate as an indenture for apprenticing poor children, whose parents are not able to provide for them, made and executed in conformity to any of the laws now in force relating thereto, and shall be enforced in like manner by the guardian of the poor for the county or division for the time being, according to the directions of this Act herein given, with relation to any property belonging to any parish in such county or division. And all and every child or children, of the respective ages before-mentioned, or at an earlier age if it shall be thought fit, may be hired to any reputable householder or husbandman in Great Britain by such persons as aforesaid, with such allowance of the visiters as before is mentioned, to be domestic or menial servants in husbandry, housewifery, or otherwise, for any term not less than one year, or until such child or children shall respectively attain their ages, if male, of twenty-one years, or, if a female, of nineteen years, or until marriage, at such competent rate of wages as shall be in that behalf agreed upon; and at the end or other expiration of such hiring, may be taken into employment in the said school or schools of industry, or otherwise, under the authority of this Act, or may be again hired for such term as aforesaid, and so from time to time, until they shall respectively arrive at such ages as aforesaid. And that, upon every such binding or hiring as aforesaid, the persons joining in such contracts, on the behalf of such poor apprentices or servants, shall take care that they shall be sufficiently clothed and maintained according to their respective wants and conditions, and that the wages (if any) to be paid to them shall be paid to or laid out for the use and benefit of such child or children: and the said person having authority to join in making such contracts may, with such consent as aforesaid, pay out of the funds provided for the relief of the poor by virtue of this Act, or any the laws now in force, such reasonable fee or consideration for the binding out of such poor apprentices as they shall deem necessary; and may also provide such poor child or children, so bound out as apprentices or hired as servants, with such suitable clothing as shall be necessary, at the expense of the parish or united parishes, and as a reward for the good behaviour of such child or children during their said employment in such school or schools of industry, or other places aforesaid, in which they shall have been employed before the commencement of such apprenticeship or hiring as aforesaid; and that such fee or consideration so paid or contracted for, or such suitable clothing so provided, shall not be charged or chargeable with any stamp duty whatever.”

By this clause every child of a certain description is declared to be entitled to be put out as an apprentice or hired servant, with certain advantages not specified.

This clause being but a frame, and the picture not hung up (but why not hung up?) a criticism on the picture may appear chargeable with precipitation.

Reasoning under this disadvantage, what occurs to me on the subject is as follows:—In the matter of apprenticeship, three points may be distinguished; the legal subjection during the continuance of the relation thus contracted—the exclusive privileges attached to that relation by a particular law in a numerous class of instances—and the comparative rank in life it confers in a still more extensive class of instances as compared with the condition of an unprivileged hand occupied in ordinary labour.

1. Of the utility of the legal subordination my conception is the same with that which stands apparent on the face of the bill. Conceiving of it as calculated to operate in a certain degree as a source of instruction, and in a yet higher degree in the still more important function of a security for good behaviour, every accession to the number of the instances of its existence presents itself to me in the shape of a public benefit.

2. As an instance of the monopoly in trade, I know of but one opinion relative to it—oppression, in the instance of the individuals excluded from the occupation thus engrossed—excessive earnings, in the instance of the partakers of the privilege; whence the alternation of penury with excessive plenty in a rank of life where sensual excesses supply the demand for occupation in a vacant mind:—enhancement of prices in every article connected with the subject-matter of the monopoly:—such appear to be the consequences to the several parties interested—to individuals excluded, individuals favoured, and the community at large.

3. As a source of exaltation, so long as the superiority it confers is confined to that which is the natural result of the improvement and augmentation of natural powers, the situation presents nothing but what appears to be the unavoidable consequence of any such improvement—a consequence beneficial, perhaps, in some points of view, pernicious in none: but so far from being either necessary or useful, it seems pernicious, to wit, on the accounts just mentioned, if in any respect it be the result of coercive law. But this property is what may be attributed to it in either of two cases; if a man be excluded from the situation by a direct prohibition to engage in it, or if public money be employed to pay a man for helping a boy to get into it; in the one case the coercion takes the shape of restraint, in the other case of compulsion; in the one case the monopoly is a direct one, in the other case an indirect one, produced by an addition made to the general mass of taxes.

Considered as confined to the lowest, that is, the lowest paid class of working hands, I see an uncertain chance of improvement, in point of morality, to be bought at a certain expense. I am not disposed to underrate morality, but in the present instance I am not able to obtain what to me appears a requisite assurance that the chance purchased will be worth the price. In the instance of each apprentice thus taken in consideration of so much public money, I want sufficient means of assuring myself in relation to both of two points; that an apprentice would not have been taken without the money, and that the portion of morality paid for by the money will be worth it. In the first case, the business seems exposed to the following dilemma: if the fee be small, it will not be sufficient to turn the scale; it will produce no more apprenticeships than would have been produced without it: if it be large, it opens a proportionably wide door to profusion and abuse. In the second case, the fee, large or small, holds out to improper hands a temptation, which without it does not exist. He who takes the apprentice without money can propose to himself no other advantage than what is to be derived from the service; and thence the instruction, employment, and morality of the apprentice. He who takes the apprentice with and for money, may have employment for the money without having any for the apprentice.

All this while, let it not be forgotten, there are existing laws under which the taking of apprentices, in the employment in question, without money, is compellable, and which are more or less enforced. Hence a source of complaint and jealousy and injustice, real or imagined, while one man in a parish is compelled to do for nothing that which another man is paid for.

Under these doubts, though really they are but doubts, with regard to the value of the purchase, the vis inertiæ would, I think, if it depended on me, be sufficient to keep the money in my pocket, especially while there are so many purchases to be made with it, the value of which is beyond doubt; among which the purchase of so much security in respect of property, as is constituted by the leaving the money in the pockets of the contributors, ought not to be forgotten.

To judge of the clear benefit resulting from this or that application of a sum of money, compare the gross benefit with the mischief of the most mischievous tax—for instance, the taxes operating in prohibition of justice. This test I consider as a principle in finance, and it is, for aught I know, a new one:—of the expenditure that will abide it, the utility ought, it should seem, to stand pretty clear of doubt.

If the occupations into which it is proposed to force hands by public money be of the high paid class, the question of the expediency of the provision presents itself under a different shape. If the individual thus forced into apprenticeship in this class by dint of the fee be one more than would have existed in the class without the fee, this addition, as far as its influence extends, goes to the reduction of the monopoly, and tends accordingly, though in a microscopic degree, to the diminution of the mischiefs of it. If, on the contrary, he makes no addition to the number of the sharers in the monopoly, but only occupies the place of some other individual, who, but for the fee would have occupied it, then no effect is produced, but the throwing away of so much money.

Reasons for apprehending that the addition upon the whole may be rather apparent than real, are not wanting. This expedient for forcing hands into the class of employment in question has no tendency to increase the quantity of employment in the species of employments belonging to that class: its real tendency is of the opposite kind, to send hands to the employment, not employment to the hands. But viewing the whole mass of employment, of the species in question, in the lump, while the demand for the work—for the produce of the employment—is not increased, no fresh hand can be forced into the employment in question without forcibly keeping some other out of it. The individual who would thus have been kept out, in any instance, by force of the bounty—the individual who but for this bounty would have been received into this extra paid and superior class—is more likely to be one belonging to that same class than one belonging to the inferior class. For no reason can be assigned why the superior class should not in the way of natural increase be as capable of keeping up its numbers as the inferior class; and the offspring of the superior class has better opportunity of an introduction into his own superior class than is likely to fall to the share of a member of the inferior class.

If this then be the case, it seems to follow that as often as the child of the labourer or impoverished tradesman thus gets a lift, the consequence is, that some other child of a tradesman, by finding the condition of the tradesman shut against him, must receive a fall.

Let me not be understood as pleading in favour of any forced system of casts; all I contend for is a system of equal and unexpensive liberty. Where no partitions are set up or kept up by the hand of law, good fortune and merit on the one hand, ill fortune and improvidence on the other, will keep up every degree of mixture which the interests of hope and industry can require.

The conclusion seems to be, that in this instance, as in the other, no advantage is near so certain as the expense.

If the bargain,—natural advantages and bounty taken together—be worth making, candidates for a share in it are not likely on either part—on the part of master or apprentice—to be wanting. The individuals it lies open to are “every child who shall at any time have received employment by virtue of this Act, and shall obtain a certificate of his or her good behaviour during the time of such employment, according to the form, No. (NA) in the schedule annexed.” If then £5, for example, be the apprentice fee, £5 may be the price of a day’s service. While a patron exists in whose judgment a douceur of this kind, whatever may be the amount of it, may be worth the acceptance of an obsequious client, howsoever it be with other manufactures, the manufacture of apprentices need not stagnate. Whether an article of this sort be worth throwing into any such fund as the election fund, is a question that must wait its answer till the picture above spoken of has been inserted into its as yet vacant frame.

The facility thus provided might have been regarded and intended in either of two lights: in the light of a distinction or reward, or in the light of a general benefit. In either case it may have been regarded as an instrument of morality, though exercising its operation at a different period in the two cases: in the one case, at the period previous to the apprentice-contract, acting upon the individuals concerned in the quality of candidates for the advantage; in the other case, at the period subsequent to the formation of the contract, acting upon them in the quality of persons subject to the powers conferred by the contract.

In which of these two lights it was considered is what I do not clearly see: the question is not altogether immaterial: for the purposes do not exactly harmonize, at least in the quantity of expense they call, for there is a considerable difference; in the one way the magnitude of the benefit is in the direct ratio, in the other in the inverse ratio of the numbers on whom it is conferred. The facility of admission being so great, the attainment of the advantage being so easy, it follows that unless the facility were the result of inadvertence, the direct general benefit rather than the indirect one resulting from the operation of the distinction in the character of a reward, was the object principally in view; for the certificate of general good behaviour being a matter of course, unless where some very flagrant and special instance of ill-behaviour can be proved, can scarcely be considered as drawing any other than an accidental line.

The difference between the quantity of money that may be requisite in the two cases is such as may render this point, minute as it may seem, worth settling. Call the average number of parishes in an union five; this for the 10,000 parishes in England (Wales included) makes 2000 unions. Annual average number of boys and girls capable of being put out apprentices in each union, suppose ten, 20,000 in the whole. Annual total amount of apprentice-fees at £5, £100,000; at £10, £200,000.

Suppose distinction and reward to be the object rather than immediate and universal benefit, then instead of the five, one apprenticeship for each five in the course of the year will (let us say) suffice: in this way the expense would he reduced from the £100,000, or the £200,000 to £20,000 or £40,000.

The refusal of the certificate will be a stigma: fewer or more, what is to become of the individuals thus stigmatized? Who will give them employment? Who will have anything to do with them that can help it? They who have been thus pronounced unfit either for apprenticeship or service? Those for whose good behaviour security is most wanted, these are they in whose instances the security is refused. Once more, what should we say to that pharmacopæia which, for those who are in good health, should provide aurum potabile, and other expensive drugs; but for those who are sick, nothing? whether found sick, or made sick by it as here.

The considerations thus brought under review will be apt to appear minute and somewhat vague; but that the utility of a provision should turn upon considerations to which those epithets are applicable, and that too a provision by which public money is scattered without being weighed or counted,—is not that a circumstance sufficient of itself to present the provision in a questionable shape?

Is the supposition above made of the ten apprenticeable youths per union to be regarded as a reasonable one? This is but one out of a multitude of arithmetical questions all equally pertinent, which may have presented themselves in crowds under this as well as every other of the clauses touched upon. For all such questions, I must confess myself to have but one answer—utter ignorance. The blame, however, if I may venture to say as much, lies not with this humble comment, but with the text, which, while heaping up so immense a mass of bounty, knows nothing of the numbers of those by the number of which that bounty is to be multiplied, nor consequently of the expense.

General Remarks on Home Provision.

The grant of this indulgence is limited, it is true, to the case of a man’s being “a person entitled to the benefit of this Act,” but how this point is to be ascertained is a matter which I am much inclined to believe will be found beyond the comprehension of those who are to judge—it most certainly is beyond mine—and, in the meantime, the family must not be left to starve.

But for all those bounties a fund, it may be said, is provided, and that an ample one, the fund arising from the whole stock of as yet unemployed ability, now for the first time to be turned to use.

To this I feel myself compelled to make two answers: one is, that I doubt the real produce of this stock when put in motion will turn out to be little or nothing, to say no worse; another is, that, be it ultimately what it may, it cannot for a long time be in readiness to honour the drafts thus largely made upon it.

On the first of these points I shall have occasion to touch separately; the other is more particularly to the purpose here.

The impediments to the union of profit with relief-employment, and thence all profit to be drawn from employment on the one hand, and relief and the distribution of the bounties on the other, are these:—

1st. That the distribution of the bounties is to commence at the very commencement of the Act, viz. on the 10th of July in the present year. But, by section 10, it is not till after the 29th September following that the first link in the long and complicated chain of causes and effects, on which the commencement of the means of employment is to depend, can be begun upon; a work which, where it finds willingness on the part of the great variety of persons whose co-operation is necessary, can scarcely do otherwise than take up years; and which in those districts in which there is any want of such necessary co-operation will, so long as such want continues, not be begun upon at all.

Meantime the distribution of the bounties is running on full swing, for immediately “from and after the commencement of the Act” as aforesaid, it begins as soon as “any father” is “entitled to the benefit thereof according to the provisions hereinafter-mentioned.”

For the purpose of entitling a man to the benefit of the Act there is nothing anywhere specified, from the beginning to the end of the Act, unless it be the qualification of wanting relief, the qualification spoken of in the 16th section; nor yet to disentitle a man, but the act of refusing employment or instruction, the disqualification specified in section 21. On such refusal a man is made to stand precluded not only from the “benefit of the Act;” in short, not at all from the benefit of the Act by name, but from relief itself, from every species and degree of relief whatever.

But till a man has made the refusal in question the disqualification does not take place, and till tender shall have been made refusal cannot have taken place. But tender of employment cannot be made till the means of employment exist; that is, till the establishment for affording employment has been set upon its legs. The only assignable disqualification then cannot take place in any district till nobody can say when, while the only assignable qualification, the wanting relief, exists in itself already, and exists in the shape of a qualification under the Act, as soon as the Act itself comes into existence—that is, on the 10th of July next.

Another circumstance that stands in the way of the coincidence between disbursement and supply is the impracticability of performing the condition on which the bounties are made to depend, viz. the acceptance of the instruction and employment, an impracticability that will be found to take place in many cases. That the children are not to be lodged in the schools in which they are to work seems pretty clear; that the adults are to be lodged in any such common dwelling does not appear. The districts, though not upon anything like what I have termed the large-establishment scale, will, so it seems, consist of a considerable number of parishes laid together. The greater the number of parishes that may come to be laid together, the greater the distance between the school wheresoever situated, and the houses of the greatest part of the number of the scholars, who are to be of all ages from five years upwards. Here then comes a sort of dilemma.

If the district is small, the expenses necessitated by those parts of the establishment, of which the expense is incapable of diminution, will be so great as to cut out every possible profit that could be made out of the earnings of so small a number of working hands. If the district is large, whether from the proportion of the time consumed on the journey to and fro, or from inability to perform it, or inability on the part of the parents or managers to enforce the performance of it, the labour of a great part of the intended scholars will be out of the reach of being collected.

The exclusion thus put by distance in the instance of infancy is co-extensive, it is evident, with the inability, whatever be the source.

But wherever the performance of the condition meant to be annexed to the receipt of the bounty is or is deemed impracticable, and that without any supposed fault on the part of the intended object of the bounty, the condition sinks of course, and the bounty stands alone.

After what has been said on topics of so much more weight, a hint of this topic will probably be deemed sufficient; to follow it up and apply it in the way of calculation would be matter of some difficulty, and occupy more space than can be allotted to it here.

A third reason is, that from the mode of payment a large proportion of the hands must be fully paid, while their work is worth nothing, so far from being worth enough to pay for its own charges. The mode of payment prescribed, and prescribed without limitation or exception, is payment by the piece. I do not say that this is not the best mode of payment in many instances, perhaps in by far the greatest number of instances; but in some instances it is impracticable, because the degree of advance made in quantity of work done is unsusceptible of mensuration; in other instances it is apt to be disadvantageous, on account of the difficulty of ascertaining the goodness and quality of what is done, and in proportion to the difficulty of ascertaining quality will be the certainty of bad work; and work may in many instances be so bad, as not only to afford no profit but to destroy the value of the materials. But in all instances there will be a certain period, the period of instruction, during which, with all imaginable diligence and honesty on the part of the workmen, the work will be worth nothing. But while the work is acquiring its value the workman must live, and will be made to live. Accordingly, by section 19, if “the sum allotted for the support and maintenance” of the family, whether under the name of wages, earnings, or allowances, proves deficient, the deficiency is to be made up. Payment by time, instead of the piece, will then take place in the first instance through necessity, and, having taken root, the interest which idleness will give a man in its continuance will render it not very easy to eradicate. I do not dispute but that it may in most instances be eradicated under a proper system of regulations and inducements adapted to the nature of the case; all I mean is, that I see no great probability of the growth of any such good economy, under the auspices or rather the rod of a system of legislation, which after enacting that, practicable or not practicable, the working hands, that they may do so much the more work, shall be paid according to what they do, enacts, in the same breath, that they shall go on for an indefinite time, receiving whatsoever may be thought proper to allow them under the name of maintenance, although what they do shall continue to be worth nothing; and this without so much as the inconvenience of quitting their own homes.

Had the application been left to individual discretion, a hint, coming from so high a quarter, might as a hint have been of no small use; but the precept being thus peremptory and unbending, its tendency would rather be to bring the principle into discredit than to promote the use of it.

Essay on the question,—Who are the persons for whom the several bounties provided by this Bill are intended?

When a system of bounties so various in its appearance, so vast in its magnitude, and in its apparent burthensomeness to the public so formidable, is provided, a natural question is, Who are the persons destined to partake of it? The answer I must confess myself unable to give: had I been able, it is the answer I should have given, not this essay, or, rather, as the question would have been needless, the question would not have been started.

“The benefit of the Act:”—the word benefit, as employed with reference either to the Act in general, or to some part of its contents, occurs either in the singular or the plural number in nine sections: in five of them (1, 2, 3, 19, 20) in the singular; on which five occasions such of the effects of the Act as are considered as being of a beneficial nature are considered as comprising one entire undistributed, undiversified mass of benefit: in two others in the plural (sections 4, 17); and in the two remaining ones the benefits spoken of are spoken of as resulting from particular provisions therein mentioned, and not as resulting from the entire body of the Act. In neither of these two sections, therefore, is to be found the benefit of the Act. The first time the phrase occurs, which is at the very opening of the Act, a sort of promise is made to give the elucidation here sought: “Any father entitled to the benefit thereof,” viz. of this Act, “according to the provisions hereinafter mentioned.” The accomplishment of this promise, if it be one, is unfortunately forgotten. Provisions there are enough which speak of this benefit, which allude to it, which, like this provision, speak of it as indicated, but there are none that indicate it.

Had the task been mine, having settled with myself who the persons were whom it was my view to benefit, my first care I must confess would have been either to have found or to have made for them a name. This name, and no other, is the name I should have called them by as often as occasion recurred for speaking of them.

Having fixed a name for them, little should I think of discarding that name for any circumlocution, much less a circumlocution so enigmatical as that contained in the words, “the persons entitled to the benefit of this Act:” a designation of this sort may be pleasant in a riddle; but, whether pleasant or no, is certainly not profitable in an Act of Parliament.

If it seemed to me a fit occasion for a riddle, I should, at any rate, think it incumbent on me to give the key to it; and, how little soever conformable it be to the usage of riddles, I would give the key along with the riddle in the first instance. I would say, the persons entitled to the benefit of this Act are such and such persons. But it is evident how much better it would be to say, simply, such and such persons at once, leaving the benefit to speak for itself. To state who the persons are who are intended to be bound by an Act is matter of necessity—of equal necessity and facility, because when new obligations are meant to be imposed, if nobody is bound by them, nothing is done. But to state and discriminate who the parties intended to be benefited by it are, is, perhaps, never a necessary task, and would seldom be found an altogether easy one. The very existence of benefit in any shape may be problematical; and, supposing it ever so undisputed, the wider it is in its extent, and the more pregnant in its consequences, the more difficult it is to trace. Should the benefits of this Act prove such as the benevolence of the authors of it has been expecting to see, and such as the author of this essay on it would most sincerely wish to see result from it, the more rich the benefit, the more difficult to discriminate. Of this Act it might truly be said as is said by the poet of, I forget what else,—

• Æquè pauperibus prodest, locupletibus æquè,
• Æquè neglectum pueris sembusque nocebit.

So diversified, so extensive, so lasting, so prolific, the benefit, it would be difficult to say whether rich or poor, old or young, enjoyed the largest share of it.

But little as it seems necessary in the text of an Act to make mention of its benefits, what seems indispensably necessary is to state, and that in the clearest terms, who the persons are who may be considered as entitled to such of the benefits or supposed benefits of it for which there is anything to be done: in other words, how a man may know whether he is or is not entitled to whatever he may be disposed to claim under the notion of its being a benefit; and, consequently, if anything for that purpose is to be done, what that is which becomes thus requisite to be done.

The necessity of being thus explicit will appear the more indispensable when it is considered out of what description of persons those for whom the most immediate and largest share of the benefit appears to be intended are to come—the class of all others to and for whom information of every kind is most wanting and most necessary. In such mouths a most natural, and surely not altogether an unreasonable, question is, If the writer knew which of us he meant, why did he not tell us, and if he did not, could he expect that we should?

Whatever situation in life be considered, that of the poor or lowly who are to receive the main benefit of the Act, or that of the exalted or magistrates who are to dispense them—of this, as of every other Act, all and singular the benefits depend upon its being understood, and its being understood depends upon its being intelligible.

Whatever is given in such abundance by the Act—head-money for children—supplemental wages, in default of ability and industry—cow-money—is expressly confined to those who are entitled to the benefit of the Act. Who are they? I don’t know. Where is it said who the persons are that are to be considered as entitled to this benefit? Nowhere.

In five of the Sections, as we have seen (Sections 1, 2, 3, 19, and 20,) the beneficial result of the Act is spoken of as one undiversified, indivisible, or, at least, undivided mass, and then the persons in question, the persons alluded to, are spoken of as entitled to it, viz. to the whole of it, insomuch that nobody who has any part of it can have, or at least is intended to have, less than the whole of it.

In two other Sections (4 and 17) benefits in a countless, or at least uncounted, multitude are spoken of as flowing from the Act; and now a man may have some of them without having others. By Section 4, “no person shall be excluded from parochial relief or any of the benefits of this Act” on any of the accounts there specified.

By Section 17, employment and instruction—employment and instruction, two most desirable benefits, are destined for certain persons. But, to come in for his share of the benefits, it is expressly provided that a man must be “entitled to all the benefits of this Act.” Before he can have these two, or either of them, he must take out his title to every other. Before he can obtain the smallest particle either of employment or of instruction, this vacant, this neglected, this uninstructed, this altogether unfurnished mind must possess a degree of instruction—I fear to state it—a degree of instruction, with respect I speak it, such as does not appear to be possessed by even the legislator himself—a degree of instruction (I much fear) beyond the power of any man that lives. He must have comprehended the Act; comprehended it in all its parts, traced it through all its consequences, investigated and catalogued without exception “all its benefits;” and this as an operation preliminary to the inquiry whether it be his good fortune to be entitled to any the smallest share in so rich a prize.

Confessing myself not possessed of anything like the degree of instruction exacted with so little mercy of the forlorn objects of the intended bounty, I will endeavour, to the best of my ability, to make out the list of these benefits.

I. Articles which in themselves would appear to be entitled to be comprehended under the list of benefits, though not expressly characterized by that appellation, but rather expressly excluded out of it.

1. Benefit of receiving head-money for supernumerary children.

2. Benefit of receiving supplemental wages at the public charge, in addition to such wages as individuals will give.

3. Benefit of receiving cow-money—money to buy a cow—Section 3. This is, however, expressly mentioned as neither constituting the benefit of the Act, nor so much as any part of it; since the being “entitled to the benefit of the Act” is mentioned as one of two conditions which must concur in order to give a man his chance for receiving this species of bounty. The same observation is equally applicable to both those other clauses.

In one sentence our inquirer might be tempted, for a moment, to fancy himself on the point of possessing the object of his wishes,—but disappointment would be the termination of his hopes. In Section 68, after providing that “no person shall be excluded from parochial relief, or any of the benefits of this Act, on account of the possession of” certain property therein described, it goes on and adds, “but that every person in the situation and condition before-mentioned, and not able, from other circumstances, to maintain him or herself, or his or her family, shall be entitled to all the benefits of this Act.” Absolutely? If this be the case, then, the problem is solved. Is it, then, absolutely? Alas! no; but comparatively only, Section 68, “as fully and effectually as if such person was not possessed of such property as aforesaid.” Property, or no property, so the property be not above the mark, a man will be equally entitled to these benefits: but still the question remains unanswered, What must I do to be entitled?

If this concluding reference had not put out the light which for a moment appeared to show itself, the introductory one would have done the business,—would have been sufficient to render the obscurity equally impenetrable. To be entitled to all the benefits of the Act, it is necessary a man should be in the situation and condition above-mentioned: and in travelling over the three preceding sections to see what that situation and condition is, it appears to be the situation and condition of him who is entitled to the benefit of the Act. Who, then, is a person entitled to the benefit of the Act? Who? why a person entitled to the benefit of the Act.

In one place (Section 16) a case is mentioned in which a certain class of persons therein specified may receive certain advantages therein specified; and a sort of person therein also specified “shall,” (it is said,) with the consent of two other persons therein specified, (two justices of the peace in the district,) “take order for” the administering to them these benefits. This, though something like light, and the most like it of anything that is to be found in the whole compass of the Bill, is not, however, that light. The advantages there spoken of are special in their nature, the description of them being contained in, and confined within that single clause; neither are they spoken of under the name of benefits. They are benefits, if to be instructed, and employed, and maintained, are benefits: but they are not therein spoken of under the name of benefits; much less as the benefits comprising the benefit of the Act.

If they were, we might cry with Archimedes, ευϱηϰα, we have found it: for to these benefits the statement of the title is as explicit as could be wished. Who are the persons entitled to these benefits?—Answer, All persons wanting relief. If these were the same persons as those alluded to by the expression, any person entitled to the benefit of this Act, with what advantage, in point of brevity as well as precision, might the former expression have been substituted to this latter.

If, then, it be really the case that by the words “every person entitled to the benefit of this Act,” is meant neither more nor less than “all persons wanting relief,” the secret is out,—the mystery is unravelled. But if all persons wanting relief are really to be let in, why are they to be thus muffled up? why all this pains to put them in masquerade? Throwing away the surplusage about benefits and titles, why not say simply, “All persons wanting relief;” or even more simply still, “all persons;” for if relief is to be had in such quantity, and on such terms, it may be difficult to say who it is that will not be “wanting” it. The adjunct wanting relief, may be the more easily spared and added to the heap of discarded surplusage, inasmuch as if a man wants relief it is intended he should have it, and if he does not want it he will not ask for it.

Unfortunately we are still at sea. The hope of a safe landing, though at such an expense of words, and after so much buffeting from clause to clause, is still but a pleasing dream. The want of relief is not sufficient to entitle a man to the benefit after all; for in the 19th Section the case is put of a man wanting relief; and it is, if not expressly stated, yet necessarily implied, that a man may want relief, and yet not be a person entitled to the benefit of the Act, “in case (says the Bill) the person wanting relief shall be a person entitled to the benefit of the Act;” so that now we are as much at a loss as ever.

Moreover, in Section 3, the being “entitled to the benefit of this Act” is one thing, and the wanting relief another; for both conditions, it is there expressly provided, must concur, before a man can be admitted to receive the bounty there provided, namely, money to buy a cow.

Another thing which we learn from that same clause concerning the benefit of this Act, is, that the receiving money to buy a cow does not constitute the benefit of this Act, nor, indeed, so much as any part of it, since the benefit of this Act is a distinct thing, which a man must absolutely be entitled to before he can take his chance for receiving this money for the purchase of a cow.

I said but now, if this clause is to be trusted to; but that this clause is not altogether nor exclusively to be trusted to, will appear from another section to which, however, it makes no reference. Should any one, in the course of his pursuit after the true intent and meaning of the Bill, be led to take any such stride as that from the 16th Section to the 21st, he will there find it written, that in regard to relief, if that be the benefit, or among the benefits of the Act, in order to be entitled to this benefit, for such it will not be denied to be, whatever may be thought of the benefits of the Act, it is not altogether sufficient to be a person, nor yet to be a person wanting relief; for that there is a sort of person who, be his want what it may, is not to be considered as “entitled to any relief from any parish or united parishes.”—“No poor person who shall refuse any work offered to him or her under the authority of this Act, which he or she is able to execute, or to receive instructions for executing such work, or who shall not, on request made, according to the directions of this Act, permit all or any of his or her family, who are able to work and cannot otherwise support themselves, to be employed under the authority of this Act, shall be entitled to ask, demand, or receive any relief . . . . except as hereinafter is provided.”

Here, if anywhere, one should have thought was the place for speaking of the benefits of this Act; in which case, if we had not learnt in direct terms who are entitled to those benefits, we should at any rate have learnt who are not, which is one step towards it. Instead of that we have the very general and extensive word relief. Thus much the mention of the word relief will be apt to do, to put a man in mind of the benefits of the Act; but this is to raise doubts, not to solve them. Is relief precisely the same thing with the benefits of this Act? It covers a great deal of the same ground certainly; but, if tried in the geometrical way of superposition, we should find it, in some parts of its extent perhaps, overhanging the benefit, in other parts, at any rate, falling short of it. The advantage of being put out apprentice can hardly be termed relief; and yet this, wherever the Bill has more benefits than one belonging to it, is surely one of them. Instruction, if instruction be a benefit, is another of the benefits of the Act; yet this is certainly not comprehended under relief, for it is expressly put in contradistinction to it: no instruction, no relief; and so with regard to employment. Besides, in the cow-money clause, (Section 3,) as we have already seen, the benefit of the Act is one thing, relief another thing; the benefit is a sort of thing he must be entitled to, the relief a sort of thing he must want, in order to take his chance for getting the cow-money. Yet, while it thus falls short of the full measure of the benefit or benefits of the Act, it extends, or at least wears the appearance of extending, beyond the Act, for it extends to whatever relief can be found to be provided by all the existing Poor Laws put together. This sends our inquirer upon the hunt over the whole body of the Poor Laws, for the purpose of picking up the several crumbs of relief, the several constituent elements of the general mass of relief provided by those laws, for the purpose of taking measure of the aggregate, and comparing it with the aggregate mass of the benefit or benefits provided by this Act.

It may here occur, that in proportion as the difficulty of finding out receivers for the bounty increases, the arguments that turn upon the alarming magnitude of the bounty will be losing their force; and that, if, after all, no claimants for it should be found, the mischief of which so much has been said in this comment will be as ideal as the benefit of which so much is said in the Act. But not to mention that the benefit of a parliamentary revisal is yet in store, let it not be thought that, because the draftsman has not perfectly succeeded in finding out the objects of his bounty Bill, there may not be others who will find them for him.

“Hunger,” says the proverb, “will break through stone walls;” it will find still less difficulty in making its way through mists: and whether it be from humanity, (for humanity, howsoever misguided, ought not to be robbed of its name,) whether it be from humanity, or from some of the less pure motives above hinted at, the efforts of those who may conceive themselves invited to put in their claim to the bounty, are not likely to pass everywhere unseconded by the corresponding efforts of those who may conceive themselves called upon to dispense it. In a word, the obscurity may plague the magistrate, but it will not prevent the mischief. Obscurity is the source of every mischief; it is a remedy to none.

The conclusion is, that I am altogether ignorant who they are that are entitled to the benefits of the Act, and how to find them; and in this I am altogether positive. Should anybody else be more fortunate, (it is not easy to be more diligent,)—any one of the million, for example, who have been set a gaping for these benefits,—let him accept my congratulations and my envy: I envy him and give him joy.

Conclusion.

To give a short specimen of prolixity, to give a clear picture of confusion is no easy task. One efficient cause of unintelligibility pervades the whole Bill. Open it where you will, you find a benefit or supposed benefit spoken of as designed for somebody. Who is that somebody? The sort of person for whom the benefit is designed. Question. What is to accommodate? Answer. To accommodate is to accommodate. Explanation. As if I were to accommodate you, or you were to accommodate me. Question 2. Who then is the person to be accommodated? Answer. The person to be accommodated. Explanation. The person entitled to the accommodation given by the Act, the person for whom the benefit of the Act is intended. It would be something, if there were but one benefit, or soi-disant benefit running through the whole; unfortunately, there are as many benefits or supposed benefits almost as clauses, with as many different sorts of persons, into whose laps they are showered down by the hand of the learned draftsman, who, through the whole of its vast expanse, may be seen dealing out his favour like Merlin in the masquerade, in the character of Fortune.

Howsoever it may be with regard to contrivance, there is no want, at least, of felicity in the result. A composition of such bulk and such texture is examination proof; the lightest comment would find itself sunk down without redemption to the very bottom of the gulf of oblivion by the ponderosity of the text.

When observations to this effect, having this or any other production of the same pen for their subject, are made, (and the occasion presents itself as often as any such production presents itself,) one answer is ready, and a distinction is at hand. How much the world of industry is a gainer by the division of labour is well known: it can be no secret to any one who has ever opened a page of Adam Smith. It is thus, that in one branch of the department of the revenue, the province of the cocket reader has been separated from that of the cocket writer; it is thus, that in a higher branch of the same department, the offices of statute writer and statute interpreter, with or without that of statute understander annexed, have undergone a similar separation; the latter having, by an arrangement of some years’ standing, been allotted exclusively to the Noble and Learned Lord who presides so worthily in the Court of King’s Bench. At the end of a certain number of months or years, and at the end of a certain number of hundreds of pounds a-piece, the poor of this country, such of them as have more money than they know what to do with, may know by a knock at the noble interpreter’s great gate, which of them this and that benefit was intended for: and then it will be, as if this or that mountain of words had been left out, and this or that word or two were inserted, which, to a plain and unlearned understanding, might as well have been respectively left out or inserted in the first instance.

This being the case, so long as Westminster Hall, the great mine of certainty, is open to all who have a golden spade to dig in it with, it seems perfectly well understood, as well at the Treasury as in Westminster Hall, that whether a Bill or an Act be or be not intelligible in the first instance is a matter of indifference. To enrich it with a proper quantity of surplusage is a necessary work: but to drop into it a single grain of original intelligibility would be a work of supererogation. Certum est, says a maxim of law, quod certum reddi potest: certain is that which certain can be made. The capacity of being rendered intelligible is an attribute that constitutes the proprium in modo, as logicians term it, of an Act; since, whether it has or has not a meaning of its own, the Court are bound to construe it, that is, to find a meaning for it; so that, in fact, it would be but an idle sort of business to be at the pains of giving a meaning to a composition, which, whether it have a meaning or no, can never be in want of one.

Carrying modesty to excess, it assumes no other title than that of “Heads of a Bill,” as if there were not such thing as a word of surplusage to be found in it. On the contrary, so rich is it in surplusage, that a man might find enough in it and to spare, not only for a Bill or for an Act, but for a whole session full of Acts; and as to heads, a head is the thing of all others of which there is the least trace or appearance to be found.

In certain circumstances, to denominate is to characterize; to class is in effect to criticise. This and this alone is the sort of criticism which a work of the nature, I mean of the bulk and texture, of that which I have before me, will admit of.

With this single dissertation, the reader is now let off; want of the necessary time, despair of attention, despair of fruit; to these he is indebted for his dismission, even at this late period: certainly not, by any means, to any want of matter in the text. Fifty is the number of pages here bestowed on it, considered in this limited point of view. Considered in the same point of view, the same or thereabouts is the number of volumes that might have been bestowed on it, and with about equal cause. The same is about the number of volumes that may at any time be bestowed with about equal cause, on almost every law, while the form in which laws have hitherto been expressed continues to be observed. Reform in the mode of composing the laws, reform in the laws considered as laws, is reform in the instrument, in the very instrument by which all the work is done. Reform in the Poor Laws, or in any other branch of the laws, is but a reform in this or that branch of the work. Bad instruments can make nothing but bad works. Reform in the instrument, how remote soever in apparent use, is, in fact, prior in importance and in necessity to any reform that can be conceived to be called for in this or that corner of the field of legislative labour.

THREE TRACTS RELATIVE TO SPANISH AND PORTUGUESE AFFAIRS; WITH A CONTINUAL EYE TO ENGLISH ONES.

TRACT, No. I.—LETTER TO THE SPANISH NATION ON A THEN PROPOSED HOUSE OF LORDS. (Anno 1820.)

TRACT, No. II.—OBSERVATIONS ON JUDGE ADVOCATE HERMOSA’S PANEGYRIC ON JUDICIAL DELAYS; ON THE OCCASION OF THE IMPUNITY AS YET GIVEN BY HIM TO THE LOYAL AUTHORS OF THE CADIZ MASSACRE, A COUNTERPART TO THE MANCHESTER MASSACRE: EXPLAINING, MOREOVER, THE EFFECTS OF SECRECY IN JUDICATURE.

TRACT, No. III.—LETTER TO THE PORTUGUESE NATION, ON ANTIQUATED CONSTITUTIONS; ON THE SPANISH CONSTITUTION CONSIDERED AS A WHOLE, AND ON CERTAIN DEFECTS OBSERVABLE IN IT; IN PARTICULAR, THE IMMUTABILITY-ENACTING, OR INFALLIBILITY-ASSUMING, THE NON-RE-ELIGIBILITY-ENACTING, THE SLEEP-COMPELLING, AND THE BIENNI-ALITY-ENACTING CLAUSES.

BY JEREMY BENTHAM, ESQ.

FIRST PUBLISHED IN 1821.

ADVERTISEMENT FOR TRACT THE FIRST AND SECOND; OF THIS SECOND* PUBLICATION, Namely, On the then proposed Spanish House of Lords. (Anno 1820.)

To those who have formed any conception, how slight soever, of the state of political society in Spain, and in particular of the enormity of the shares, possessed by the privileged orders, in the landed property of the country:—by the clergy, not less than a third of the whole; by nobles of different classes, estates equal in extent in some instances to an average English county, and those estates so entailed as to be unalienable,—to any person so informed, it can scarcely be matter of wonder that endeavours should have been employed to insert into the Spanish Constitution, in addition to the assembly composed of the Representatives of the whole people, privileged and unprivileged together, an assembly composed exclusively of the Representatives of that comparatively small, though still too large portion, with powers to this small part, in pursuit of its own particular and thence sinister interest, to frustrate all measures proposed by the Representatives of the whole for the good of the whole. This is legitimacy and social order, under the matchless constitution, the envy and admiration of the world. This is what accordingly was proposed to be made legitimacy and social order in Spain. A curious question is—how it should have happened that the Old Man of the Sea, whose gripe still continues on the neck of the modern Utopia, should not, in the early days of the Spanish national assembly, have fastened himself upon the neck of Spain. Yet, somehow or other, such is the escape on which Spain, from early times, and, from her Portugal, in these times, have respectively to congratulate themselves. That, in such a state of society, endeavours to that end should have been employed, is nothing wonderful: the wonder would have been, if they had not been employed: the wonder is, how they should have failed of being successful.

While corruptionists and their dupes are in extasy at the sight of their Utopia with her stag-neck, and three Old Men of the Sea fastened upon it, Spain and Portugal are congratulating themselves on having each but one of them, and his hold growing every day looser and looser, while they are cheered by Yankeeland, whose neck has, for these forty years, been free from all such vermin, and who bids the habitable globe observe and declare, whether, in any and what respect, she is the worse for it.

At a time when these prospects, which are now so happily realized, had not so much as opened, the name of Bentham had become familiar to whatever was liberal in the great southern peninsula of Europe. That exclusion which the system of corruption has hitherto put upon it in England, the united force of Censorships and Inquisitions has never been able to effect either in Spain or Portugal. Spite of both those bars, scarcely had those works of his, which were edited in 1802 by M. Dumont, made their appearance in France, than they found their way into both the two adjoining kingdoms. Those works, with which, neither in Oxford where he took his degrees, nor in either of the other Church of England Universities, not to speak of Scottish ones, any candidate for the loaves and fishes could confess an acquaintance, without blasting the prospects of his life,—not only now are, but, almost immediately after their publication, were, taken in hand and fed upon at Salamanca and Coimbra: fed upon with a delight, the fruits of which have in both countries manifested themselves in the acts of the sovereign body, as well as in the speeches made in it; and, ere these pages have issued from the press, will probably in this country meet the public eye. In different parts of Spain, were read, (it may be imagined with what secrecy,) courses of lectures, of which those works formed the text-books: lectures, upon those gratuitous terms which, to patriotism and philanthropy, are so natural, to legitimacy and social order, so suspected and formidable. One of these lectures had a Lawyer for its reader; it was that Mora above-mentioned; another a Churchman: for it is only in England, that to Lawyers and Churchmen, with only here and there an exception, and still fewer that dare show themselves, everything that tends to reform or genuine improvement—everything, in a word, that tends to the advancement of the greatest happiness of the greatest number—is an object of horror and abhorrence. Of the above-mentioned works of Bentham, notice has reached this country of no fewer than three, if not four translations, as being finished and ready for the press, besides extracts in periodicals. But, on the one hand, such is the unavoidable bulk of those works, on the other hand, such the scarcity of money, and the smallness of the market for literary productions in general, nothing in that way from the Spanish press has yet reached this country, except a sort of analytical view, in a hundred and forty 8vo pages, having for a first title, Espiritu de Bentham, and for a second title, Systéma de la Ciencia Social, por el Dr D. Toribio Nunez, Jurisconsulto Espanol, breathing in every page the most rapturous admiration, and devoting to public reproach the government of his country, in case of their neglecting to make their utmost profit of the treasures thus offered to their hands.

Under these circumstances, it is not impossible that the Portuguese language may get the start of the Spanish: the Regency of Portugal having, in obedience to a special order from the Cortes dated the 13th of April last, already given commencement to a translation of the whole assemblage of such of his works as are not entirely out of print, according to the list that will be added to these pages.

While the great question above spoken of was in agitation, the distinguished Spaniard spoken of in the former tract just published, was urgent with Mr Bentham to come forward and throw his weight into that one of the two contending scales, towards which the inclination of his opinion was so naturally anticipated.

Of that application the present tract is the result. Upon its arrival at Madrid, it was with all despatch translated into Spanish, by the gentleman by whom it had, as above, been called for. As soon as an opportunity could be found, a plan of proceeding having been settled amongst some leading members of the Cortes, it was read in full assembly, in its character of an Address from Mr Bentham to the Cortes, and received with loud, abundant, and all but unanimous applause. An entry, there is reason to believe, was made of the transaction in the Journals of that House. But, whatever be the cause, as yet no copy of any such entry has in this country been received.

A document, expressive of the sensation made by it in one of the most distinguished and influential of the political clubs, by which the power of the tribunal of public opinion was then, and by some of them continues still to be, exercised at Madrid, had better fate. Being read at one of the meetings of the celebrated club mentioned in our newspapers as being held at the sign of the Cross of Malta, it was commented upon in an unvaried strain of eulogy. In conclusion, it procured for the author the quality of Honorary Member of that Society, as testified by a letter, the translation of which is subjoined below,* accompanied with a formal instrument of adoption, conceived in diplomatic language. Some months, however, had elapsed before the instrument reached London: such is the difficulty and uncertainty with which the intercourse between this country and that inland capital is embarrassed.

Before the advice, thus submitted by Mr Bentham to the sovereign body of Spain, had been presented to that Assembly, advice of a contrary tendency had, as may naturally be imagined, not been altogether wanting. An illustrious house in this country has the reputation—if not of giving birth to it, at least of having, with no small care and fondness, fostered it.

Be this as it may, some time before the question was brought before the Cortes, endeavours were used to form a ground for the proposed Institution, by a reference to the place it occupies in the frame of the English Government. Of panegyric, there was of course no deficiency. Of the existence of a determinate Constitution, as belonging to that Government, the never-failing assumption was of course made. The opulence, power, and prosperity, in every shape so conspicuous in England, were on this occasion, as on so many other similar ones, brought to view, and magnified. The fallacy so regularly employed on those occasions, was employed on this. Of causes, obstacles, and uninfluencing circumstances, the usual olio was made. Whatever feature or degree of prosperity the institution in question had not been able to exclude, it received of course the credit of. If not in Spanish, at any rate in French, there was Blackstone, and there was De Lolme. Upon this stock, with the addition of whatever assistance may have been received from the above-mentioned great house, a man of distinguished literary celebrity and influence, Don Felix José Reynoso, set to work, and, under the title of “Examen de los Delitos de Infidelidad,” (Examination of the Offences of Infidelity,) published a book in which the desirableness of an Upper House in the Representative system of Spain was much insisted upon. What was the precise species of transgression meant on this occasion to be designated by the word, “infidelidad,” (the same in root, and everything but termination, as our English word infidelity,)—to what part of the field of thought and action the error thus imputed was meant to be represented as belonging—whether to that which regards conduct, or that which regards opinion—is more than can here be stated: nor, under that or any other interpretation, does it seem altogether easy, to discover the course taken by the ingenuity of the author, in making out the connexion, if any such there be, between either of the alleged errors above-mentioned, and the service promised to the people, by the introduction of a set of delegates, chosen by a comparatively small portion of the people, with interests opposite to those of the greater number, and with power to frustrate every endeavour which should have the greatest happiness of that greater number for its end in view. Whatever was the course so taken, the ingenuity displayed on this occasion, by the Spanish admirer of English Monarchical and Aristocratical vetos, in his endeavours to involve the subject in the customary cloud, seems not to have been altogether unsuccessful. At the then approaching election of Deputies from the province of Seville to the Cortes, a man, of whose regard for the greatest happiness of the greatest number, no doubt seems ever to have been entertained, Riego, so well known in England as well as everywhere else, as one of the three military men to whom Spain is principally indebted for her deliverance, scrupled not to propose him as being pre-eminently fit to serve in the Cortes for that Province, nor, on that occasion, to support him with all his influence. The virtues, moral as well as intellectual, of the illustrious publicist, were, by the still more illustrious soldier, enlarged upon in the warmest strain of panegyric. Whatsoever may have been the case with regard to the moral class of these virtues, to whatsoever was said in attestation and praise of those of the intellectual class, the most unqualified assent appears to have been attached. The more irresistible his powers of persuasion, the greater (it was said) will be the danger, if in such a situation they should come to be employed in giving their support to such a cause: to a proposed new part, by which, so sure as introduced, the force and effect of whatever is good in any of the other parts of the fabric, would be destroyed.

The opinion of the people in question had been formed: formed, after everything that had been said to them by the echo of the great English House against the offence of “infidelidad,” and in favour of an additional sovereign body, composed of, and chosen by, a set of laymen, already favoured above the rest of their countrymen, nobody could say why, and a set of churchmen, of whom the best that could be hoped for was—that, as in England, Deans, Prebendaries, and Canons are, they should be Sinecurists. All that the felicity of Don Felix could find to say on that side, they had heard: and, for anything that hath as yet appeared, nothing had been said to them in print by anybody on the other side. All this notwithstanding, their opinion was decided against the Spanish House of Lords. Whether that opinion was altogether a groundless one is a question, in finding an answer to which, it seems not impossible that the following tract may afford to the English reader some assistance. To the English reader, the question cannot indeed be anything more than a mere matter of curiosity: so closely does he feel himself held in the embrace of the grand Boa Constrictor with a coronet on his head. Not so to the man of Norway: for, somehow or other, in that country, whether for want of food, or from what other cause, the crested and bone-crushing dragon is found not to thrive. On the declivity of an elevated rock, scarce able to keep his hold, he may be seen lying in a languishing state: the men, whose bones he would once have crushed, have become too many for him. The sceptre indeed, as it could not fail to be, is outstretched to save him. Glory to the man, should any such arise, by whom this instrument of despotism and misrule shall have been rightly dealt with: dealt with, as the Boa, where he is in vigour, deals with the people’s bones.

TRACT, No. I.

Letter to the Spanish Nation on a then (Anno 1820) proposed House of Lords.

Men of Madrid, Members of the Cortes, People of Spain!—if the old man who thus addresses you is an intruder, listen to him with indulgence. He is not a spontaneous one; he would not have spoken had he not been called.

Among the subjects which I understand are before you, none is of more importance—none perhaps of so much importance—as the question, whether, in addition to a Sovereign Assembly composed of representatives, whom the subject many have appointed and can remove, there shall be another, composed of those whom the subject many neither will be able to remove, nor will so much as have appointed! If I may rely on the perhaps too partial anticipations of some amongst you,—my works on legislation having been fortunate enough, some of them, to be honoured by your notice, and, among the works of men foreign to your nation, these having been the only ones thus honoured—even my opinion, though it were but an opinion and nothing more, might, for the present, have its use. In presenting you with it,—naked, or little better than naked, of reasons, as you will see it,—the necessity of the case compels me to break through a habit, which, till now, has been a law to me. I mean, that of placing my whole reliance on the force of specific reasons, keeping my own insignificant personality as completely out of view as possible. To cover with these reasons, to the best of my ability, the whole field of legislation, has been the labour of my whole life. On these reasons, on every part of that field, I have placed my sole dependence. As to opinion—my own opinion—considered in the character of an authority—of a leaning-stock for the opinion of other men—let any man set it at as low a degree as he may in the scale of value, he cannot set it lower than it is set by myself.

Such as it is, however, I have been called upon to give it. Whosoever among you may be pleased thus to honour me, may behold it in this page.

In addition to a Supreme Assembly composed of agents whom the subject many have appointed and can remove, shall there be another composed of men whom they will not have appointed, nor will ever be able to remove? Spaniards! by the simple statement of it, is not the question already answered? Spaniards! think for yourselves! think whether, between an assembly of the ruling few thus constituted on the one part, and the interests of the subject many on the other part, there exists not a point-blank opposition, and that opposition an unchangeable one? Think whether there be a single reform—think whether there be a single considerable improvement in any shape—which a body of rulers, unappointed and irremoveable by the people, will not, on one account or another, deem it for their interest to oppose, and oppose with full effect? For this they will have avowedly full power: and for what purpose can any such power—for what purpose can a veto—be asked for, but to be used? So far as, in their own view, their own interests coincide with yours, so far indeed they will go. But, the unchangeable nature of man considered, can you, on any substantial ground, entertain any the slightest expectation of their going any further? And the rendering the separation of their own interests from yours as complete and as wide as possible, that yours may be made a sacrifice to theirs, can this ever fail to be their constant study? Their study, will it not on every occasion be, to give to the expenditure of government, and thence to the burthens that press upon you, the greatest extent possible, that, out of that expense, they may, in the shape of official emolument, extract the greatest possible profit for themselves and their connexions? Lawyers themselves, or in league with lawyers, their determination will it not be—to keep the amount of expense in judicial procedure, and thence of factitious delay and vexation, as high as possible, for the sake of lawyer’s profit extracted out of the expense? For this cause will they not be inexorable in the determination to keep exposing the unopulent many to remediless injury, at the hands of the opulent, and, at the head of them, the ruling few; denying justice to all but these few, and selling it to them at a price which they would not endure to pay, but for the impunity and the power of oppression which they buy with it? To keep the necessity of having recourse to lawyers as cogent as possible, will they not keep the rule of action in a state of as complete uncertainty as possible? will they not even keep that indispensable instrument of security from so much as coming into existence? The boon, which even Napoleon granted—the matchless boon of a really existing and accessible body of laws—will they not remain for ever determined to refuse? If, on these points, your own experience will not suffice for you, look around you: look to the men alike situated, the men cast in the same mould, the men of law in every other country, and in particular in that from which I write.

You have heard of our English Constitution—of high-born virtue as the cause of it, and consummate happiness as the fruit of it. Circumstances have, it is true, rendered the government of the few less bad here than in any other country: that happy America alone excepted, which took from it all the good, leaving all the bad behind. Circumstances have rendered it less bad here than elsewhere; but as to virtue, judge of it from one fact:—you have heard of our two parties, the Tories and the Whigs: the Tories, oppressors and plunderers in possession; the Whigs their successors in expectancy. Can you believe it? According to a set of principles, openly and deliberately avowed by both parties, making fortunes for the ruling few, at the expense of the subject many, is the very end of government. You must, all of you, have heard of our late minister, William Pitt; you must, some of you, have heard of his right-hand man, George Rose; both leaders of the Tories. You must, all of you, have heard of Burke, Edmund Burke, the most illustrious of writers among the Whigs. Each of these men published, at different times, his pamphlet on the subject of finance—each of them, such is the depravity of the ruling few, feared not to speak of this as an acknowledged principle. I, for my part, have, at different times, published two Defences of Economy: one against that same George Rose, another against that same Edmund Burke; for, long before the Tory pamphlet was written or thought of, Burke, adding treachery and imposture to rapacity, had constituted himself an advocate for economy, for the very purpose of betraying it. I consigned these papers to a periodical publication, called the Pamphleteer, mixing them thus with Government pamphlets, that they might present themselves unawares to this or that eye which, by interest, or interest-begotten prejudice, would otherwise have been closed against them. I have there shown, that, consistently with the conduct, or even with the avowed principles, of these men, not a maravedi would be left in the pockets of the people—not a maravedi, which the ruling few would be able to extract for their own use. But in this unhappy country, to stop the progress of irresistible oppression and depredation, what signifies what 1, what anybody, can write? The contest low is—not between Tories and Whigs: for, though divided against one another in the contest for plunderage, these, it has been for sometime seen, are, by a stronger community of sinister interest, united against the people. No: not between Tories and Whigs; but between the ruling few on the one part, and the subject many on the other, is the real contest. The subject many, if you believe their enemies, are enemies to property: their aim is—to take it, all of it, from its present owners, and divide it amongst one another. “No,” say the subject many, “no such design either ever was, or ever could be, entertained by anybody: by any body of men large enough to make any the smallest commencement towards it; for, long before the property could have got into the undisturbed possession of the supposed intended sharers, the destruction of property would be complete: all property destroyed, all life would be destroyed with it: and, earlier than those of the proprietors, the lives of the destroyers themselves. Scarcely out of our seventeen millions could you find a thousand men blind enough not to see this:” neither, then, have we any such design, nor can you believe we have. But this design which you so shamelessly impute to us—this design which, carried to the extent you speak of, and in the situation of the persons on whom you throw the imputation of it, is so plainly impossible—this design of enriching one’s self at the expense of others—this very design, not only you yourselves have from first to last been harbouring it, but you have all along been carrying it on: carrying it on to the utmost extent which you have found possible. For us to enrich ourselves at your expense is not possible; for you to enrich yourselves at our expense, is a design not only possible, but actually and continually carried into effect: carried into effect, and to the utmost extent to which it has been possible. Of late years, since the French revolution afforded you a pretence, so rapid have been your advances, that the increase of waste and corruption—waste for the purpose of corruption, corruption for the purpose of waste, and both for the purpose of depredation—has almost reached its limits: taxes are added to taxes, and produce is not added to produce.

With the exception of the few that have owed their rise to trade, think whether among those families which we behold seated on the summit of that emmence which is composed of power, opulence, and factitious dignity, there can have been any who have been raised by any thing better than depredation: licensed and irresistible depredation; depredation by that swarm of harpies which, in the field of government, have never been fabulous—by the harpy in the shape of the Soldier, by the harpy in the shape of the Lawyer, by the harpy in the shape of the Placeman, by the harpy in the shape of the Priest. Thus it has surely been with us: think whether it can have been otherwise with you: think whether it can have been any otherwise with any pure monarchy, with any aristocracy, with any mixed monarchy, with any other government, than the pure representative democracy—the truly matchless and unperishable government of the American United States. Leave, then, to each individual harpy the undisturbed possession of what he has: leave it to him, on the sole condition of his remaining quiet. But do not equip him for fresh mischief, as our cock-fighters do their cocks: do not, in addition to the claws which he has, arm him with new and iron ones: do not give him a veto: a veto upon every constitution, that can tend to set limits to the plunderage.

Magnanimous Spaniards! for years to come, not to say ages, in you is our best, if not our only hope! to you, who have been the most oppressed of slaves, to you it belongs to give liberty to Europe. Yes: to all Europe! nor in Europe is there that other nation that has a more incontestable or more urgent need of it than that in which I write. Now is your time or never. Fear not from this country any effectual opposition. True it is that the worst mischief the French ever did you was kindness in comparison with that which our rulers would do to you, rather than you should save yourselves. As they dealt with Genoa, as they dealt with Naples, as they dealt with the Netherlands, as they dealt with Poland, as they dealt with Germany, so would they deal with you: so, and as much worse as were necessary to prevent your salvation. Cooler, more determined, more inexorable enemies mankind never had, nor ever can have. But no such mischief, no, nor any considerable mischief is it in their power to do to you. True it is, that neither against French, any more than against English rulers, could you have any security but from their impotence. This, however, you most happily have at present, and this you will continue to have long enough for the consolidation of your independence. True it is, that the despots have, each gang of them, force enough for the destruction of its own subjects. But they have not, any of them—no, nor all of them together—force enough to destroy you. Men indeed—oh yes, men they have, and in superabundance. But money they have none; and without money, and money in large masses, men cannot be made to move.

Oh yes, my friends! put everything to hazard, rather than let in the menaced veto: the many-headed, the all-devouring, the insatiable monster, worthy successor of the Trojan Horse. In vain would any one pretend that its interest is the same with yours. To be free from arbitrary imprisonment, from forfeiture, from death, from torture, this, it is true, is their interest not less than yours. True, but then, in their own eyes at least, they have to themselves a dearer and counter interest, by which this vulgar and common interest is sure to be eclipsed. The security—the blessing which they could not hold without having you to share it with them—this they behold with disdain, this is without value in their eyes. The power—the factitious dignity by which they are distinguished—distinguished from you and above you—this with them is everything. For his own security then, will each of them be content to trust to other sources: to his own good fortune, to his own address, to that prostration before the footstool of power—to that “prostration of understanding and will,” to which, to make everything else sure, he is determined there shall be no bounds: that “prostration of understanding and will,” which, in so many words, his Lordship of London preaches to us.

Spaniards! in you is our hope; for this long time our only hope: save yourselves, you save us; save yourselves, or we sink. What you, till so lately were, we at this time are. If you had your slaughterers, we have ours: if you had your torturers, we have ours: if you have your embroiderers, we have our tailors. As to our liberties—our so much vaunted liberties—inadequate as they always were, they are gone: corruption has completely rotted them: preserved they cannot be; if ever in future possessed by us, they must be regained. Our government is already become a military one: if but a child cries, a troop is sent to quiet it. As to our Lawyers, they, whether on Benches or on Seats, are what they have always been, and, so long as monarchy lasts, always will be,—tools of power, tools to the Government, all of them, as soon as they can get into it; tools to the Opposition, some of them, that they may show themselves, and till they can sell themselves. Even in our Soldiers more hope have the friends of good government than in our Lawyers. As it is, the forms of it are all that remain; the substance is all gone: the shell we make a show with, the kernel is rotten. Seated—not by us, but by money or by terror, or at the best by themselves or one another, we behold in our representatives, as they call themselves, the most mischievous and most implacable of our enemies.

I who write this, haste to write to you while I am still able; I say, while I am still able: for all sense of security has long been fled from me. Cartwright, Burdett, are under prosecution. Hobhouse has already endured, manfully endured, his punishment: and, unless he saves himself by silence or desertion, punished over and over again, it seems his destiny to be. As to me, who, I hear it said continually, am more criminal than any of them—me, for the fruit of whose labours, criminal as they are styled, the honestest and wisest among you are, at this moment, if I have been rightly informed, calling aloud that they may press it to their lips; there is something—it belongs not to me to say what—that hitherto has saved me. But my hour cannot be far distant. Already, for what I have written, others have been punished. Not in the hermitage from which I write, but in some prison shall I die. I could not die in greater comfort than by dying in your service.

JEREMY BENTHAM.

ADVERTISEMENT TO TRACT THE SECOND.

The occasion, on which the paper that forms the subject of these remarks, was published, is that of the ever-memorable massacre perpetrated at Cadiz, the principal sea-port in Spain, the principal seat of commerce in that country—the city next in population to the Capital. The day on which this tragedy was acted, was the tenth of March, 1820. For its declared object it had the preservation of that state of things which, under a despotism, is designated by the words social order;—for its perpetrators, those who profit by—those whose particular and sinister interest is interwoven with—the maintenance of that order; for its instruments, perfidy and treachery.

In the great contest which, now for about half a century, has been carrying on in the field of the habitable globe—in the contest between the many and the few—this has not been one of the least conspicuous scenes. Impatience and cruelty have everywhere characterized the deportment of the ruling few, long-suffering and forbearance that of the subject many. In this contest, the object of the greatest number has, of course, all along, been that which, on pain of their extinction, it can never cease to be—the greatest happiness of the greatest number: of the ruling few, under the like impulse, the greatest happiness of the ruling few. By the greatest number—by the subject many—their object—their real object—has nowhere—has never—been disavowed: it has not been, it never can be, an object for them to be ashamed of. By no motive could they have been led to disavow it. By the most irresistible impulses, they have, everywhere and at all times, been impelled to the avowal of it: all their prospects of success have depended on the extent given to the avowal made of it. Not so the ruling few. Consistently with common decency, consistently with common prudence, consistently with any hope of advantage, consistently with any assurance of security to themselves, at no time, nor anywhere, can their object have been, or in future be, avowed: to say to the subject many, sacrifice your happiness to ours, would be to say, be fools, that we, for our own profit, and at your expense, may be knaves.

Being thus, by the very nature of their claim, precluded from the use of reason in support of it, they have been driven by necessity to lay hold on custom, as the only support that could be found for it. The government—the unbridled government—of one, being the simplest possible form of government, and that to which, in the early stages of society, each horde found itself, under pain of immediate extirpation, necessitated to submit itself during its warfare with the neighbouring hordes, of which warfare either the existence or the immediate expectation was incessant,—this was the form of government that succeeded everywhere to primeval anarchy. For a long time, if, on any occasion, power felt any such sense as that of restraint, it was only from momentary and easily assuageable dissatisfaction: not till after a long course of mutual and variously terminating struggles, could it have anywhere, as here and there it has done, found itself under the necessity of submitting to any determinate and settled limitations. In comparison with the political communities in which all such limitations remain still unknown, few are those in which any such galling shackles have had or have place. Hence it is that, subject or not subject to this or that limitation, submitted to for the purchase of the voluntary support of the sub-ruling few, everywhere has the government of one had custom for its support. Hence it is likewise that, while Monarchy and Custom have everywhere had Reason for their adversary, with exceptions to a correspondently small extent, and those of scarce any other than a recent date, they have had reasoning and reasoners for their support. Everything being to be hoped from the support given to the claims of the one and the few, nothing to be hoped, but everything to be feared, from support given to the cause of the many, and on this part of the field of discourse, the great mass of the language, as it stands, having had for its manufacturers those reasoners upon paper, who all the while have been reasoning under the yoke of this sinister influence, the language furnished by custom for the occasion, has been everywhere a tissue of fallacies, spread abroad for the support of it.

Hence, as part and parcel of that tissue, the jargon, the contents of which, on this field, Custom has engaged men to accept at one another’s hands, in lieu of reason. Over and above those fallacies, which require, each of them, a sentence, or perhaps a paragraph, to give expression to it, and of which a list in some detail has been given in another work,* —hence those still more commodious fallacies, for the propagation of which a single phrase, or even a single word, is sufficient. Witness, dignity of the crown, dignity of the throne, splendour of the crown, splendour of the throne, matchless Constitution, English institutions. Witness legitimacy, order, social order. By a custom, commenced by paid and enlisted, reinforced by gratuitous and deluded scribes, all these imaginary and verbal blessings have been placed in the catalogue of things to be cherished and maintained: to be maintained, all of them, with equally ardent devotion, and indefatigable perseverance. Of the greatest happiness of the greatest number, nowhere, till of late years in the united Anglo-American states, nowhere, without absurdity could it anywhere have been stated as belonging to the number of those things which ought to be maintained. Why it could not, will be seen as soon as mentioned: that which is nowhere established, cannot anywhere be maintained. No objection, it is true, is this to its being put upon the list of those things which ought to be established. Accordingly, now that in that only seat of established good government, it is already upon the list of those things which ought to be maintained, and now that, in some political communities, it has been put upon the list of those things which ought to be established, and which with all their energy, men are labouring to establish,—even the best paid, even the most hungry, even the most strenuous supporters of the claims of the ruling one and the sub-ruling few, see no hope of advantage from any direct denial opposed to so uncontrovertible a position, as that the greatest happiness of the greatest number ought everywhere to be established. In the diverting of men’s attention from that sole basis of good government, is their only hope; and hence it is that, from Thrones, and Houses, and Benches, the ears of the people are so indefatigably plied with the confused and senseless din, composed of matchless Constitution, English institutions, wisdom of Ancestors, dignity of the Crown, splendour of the Crown, dignity of the Throne, splendour of the Throne, balance, mixture of classes, wash (or something else) that “works well,” Holy Religion, Licentiousness, Blasphemy, Atheism, Jacobinism, Legitimacy, Order, Social Order, with et ceteras upon et ceteras.

Let Reason be fruitful, Custom barren, is among the aphorisms of Lord Bacon. In saying this, he said what he wished to see, assuredly not what he saw: in the field of government—in this field, beyond all others—Reason (and we have seen why) breeds like a shemartin; custom, like a doe-rabbit.

Finding themselves hemmed in on all sides—sure of discomfiture and overthrow, should they, on any occasion, venture to act upon the field of reason—always dissatisfied with themselves—always condemned by conscience, always beholding, in the prevalence of reason and the spread of intellectual light, the downfal of their power—the temper prevalent among the oppressing tribe has, always and everywhere, been congenial to this their situation; their conduct to their temper: their temper feverish, their conduct sanguinary and atrocious. In the many, the sacrifice of whose interest to their own has been their constant object and perpetual occupation, they could do no otherwise than behold so many constant objects of their contempt and hatred: of contempt for their actual patience, of hatred and that, notwithstanding the contempt, never altogether clear of alarm, from the unassuageable apprehension of the ultimate cessation of that patience. Makers and Masters of the laws, death and torture, in rich variety of shape, they have spread over the whole contexture of those laws, for the gratification of those angry passions, and for the maintenance of that order, to which every word from the voice of Reason, sounded in their ears as pregnant with disturbance. Hence the apparatus of gibbets, halters, axes, pillories, chains, and dungeons: hence the anxiety and abundance with which the musket and the sabre are at all times kept in store; kept in store, and, by the despatch and extent given to their operations, held in preparation to anticipate, support, and relieve the labours of the judicatory. Hence the implacable enmity to the liberty of the press: hence the indefatigable exertions for the extinction of it. Hence the Association, self-styled Constitutional, headed by the heads of factitious religion and standing armies, at the invitation, and to the emolument, of lawyers: the too real association, formed for the protection of a non-entity, by the destruction of whatever good was ever spoken of as belonging to it.

The causes have now been seen of that contrast which, since the commencement of the great contest above spoken of, has, at all times, been exhibited, between the conduct of the ruling one and sub-ruling few on the one hand, and that of the subject and suffering many on the other.

Of the two so opposite systems of political action—that which has for its object the greatest happiness of the ruling few, and that which has for its object the greatest happiness of the subject many—would you see at one view an exemplification as striking as it is instructive? Look to the now so happily independent Anglo-American States. Look back to the state of things in that country, at the period of the great contest, of which it was the scene. Note well the several systems of warfare, on which the two contending parties were prepared to act. Look first to legitimacy, and matchless constitution: mark the fate, which, in case of success to their side, they had prepared for their adversaries: strangulation for necks, amputation for heads, laceration for bowels, severance and dispersion for quarters: and, lest all this should not be sufficient for the punishment of the so-styled guilty, denial of justice for creditors, purposed indigence for untried and unaccused wives and children, purposed indigence even for indeterminately distant kindred, whether sharers in, unapprized of, or even adverse to, their designs:—for all these, in indeterminable and unheeded multitudes: for, such is the inscrutably complicated result—wire-drawn, nobody knows when, by nobody knows what King’s creatures, in the situation of ever removeable Judges, out of so short and irrelevant a phrase as corruption of blood: a phrase, invented by the corrupt in will and understanding, for a mask to the atrocity, by which, in such countless multitudes, the confessedly innocent are pierced through and through, for the chance of conveying an additional pang to the bosom of the so-styled guilty, whose proper powers of sufferance, it is thus proved, were still, after being put to the utmost stretch, insufficient for satiating the appetite of groundless vengeance: vengeance, against which it was assumed that nothing could be said—because law had been made the instrument of it, and all-comprehensiveness and perpetuity had been given to it.

Such being the system, in pursuance of which, in case of success, under the orders of the all-ruling one, the ruling few were on that occasion prepared to act, as in such contests they never have failed, nor in case of success ever can fail to act,—mark now the system of counteraction, employed in that country, by the oppressed and subject many, for their protection against those destined perpetually impending, and perpetually threatened horrors. Look in the first place to the commencement of the contest: mark well the character of the measures of resistance, organized and put in action, before the sword was as yet resorted to. To treason-law, as above described, including corruption of blood as above described, what was it they opposed? Neither more nor less than the infliction called tarring and feathering. And this tarring and feathering, what was it? The substituting, to a part of the sufferer’s usual clothing, a covering composed of feathers, made to adhere to his body by a coating of tar. Humiliation, by means of scorn and derision, was accordingly, it may well be concluded, a suffering actually sustained. But, to this mental, what corporal sufferance was added? None whatever. To the sufferance thus inflicted in the name of punishment on the person of the alleged offender, to this properly-seated punishment—what addition was made in the shape of mis-seated punishment? what punishment was purposely inflicted on those to whom no offence was so much as imputed? None whatever.

Look, in conclusion, to the termination of the contest: look to Saratoga look to York Town. What, in the eyes of the victors, were the prostrate vanquished? Not rebels, not traitors: not anything but what Englishmen have been wont to be to French victors, Frenchmen to English victors—unfortunate, yet not the less respected, enemies.

Of the manner in which, in the season of ascendancy the subject many bear their faculties, would you see another exemplification? Cast a momentary glance on Ireland.* Behold the vast majority of the people in that country, objects of inveterate oppression and legalized depredation, victims of a system of studied and inexorable misrule, carried on through centuries. Under such provocation, mark their deportment, when circumstances had placed the power of retaliation in their hands. Look, in the first place, to the five or six years’ period between the years 1778 and 1783. Compare the state of the country in that period with the state of it not only before but ever since: compare the conduct maintained there in relation to one another by those same universally contrasted parties, both of them having the contest in America, and latterly the termination of it, full in view.

Favoured by circumstances, favoured by the happy weakness of their tyrant neighbours, linked in the bands of a no less peaceful than free and voluntary confederacy, open to all whom situation permitted and affection disposed to enter into it, behold the oppressed many, rising up in arms. Scarce had they begun to show themselves, when, without a life sacrificed, without a blow struck, they saw the votaries of corruption, by the mere apprehension of what they were able to do and of what had been deserved at their hands, laid prostrate at their feet. For five years and more, by the confession of the most adverse parties, by the testimony of all journalists, of all historians—the whole power of the country was in their hands. What was the use they made of it? What use, in the zenith of their power, did these Irish Insurgents make of those English supports of legitimacy and social order—axes, and gibbets, with their et ceteras as above? What use made they even of the American instruments of self-preservation—tar and feathers? None. What, in fine, viewed in every point of view, was the true, the universally undisputed, the indisputably proper appellation of this period of Irish history? Yes: it was the golden period, the no longer fabulous—the visible golden age.† Behold now the sad reverse. Unhappily for both islands, peace was at length restored to England. The hands of English tyrants were thus set free. What was the consequence to Ireland? The golden age vanished: the age of iron returned: the age of iron, and, with it, that scene of oppression and legalized depredation—of insolence on the one hand, of ever just and ever boiling howsoever smothered indignation on the other; thereupon came that conspiracy among the few, having for its avowed object the extermination of the many.—that conspiracy, of which it is so well known to everybody that it need not be said by anybody, who the men are, who so lately were avowedly, and because not now avowedly, are not the less determinately and effectively at the head.

Thus much as to the catastrophe. Now as to the actors. The men, by whom this golden age was thus created and so long preserved—what were they? What, but the men of universal suffrage? Yes: and by them in that island, and from that island in this, within a few years after its establishment in United America, would the system of universality, secrecy, equality and annuality of suffrage have been established, and the no longer fabulous golden age have been thus extended and perpetuated, but for the unhappily restored peace above-mentioned, in conjunction with the treachery of certain of the people’s pretended friends; one of whom, in the teeth of that same five years’ fresh experience, had the effrontery to speak of universal division and consequent destruction of property, as the certain consequence of that very state of things, which, having under the eyes of all men, but in a more particular manner under his own, been so recently experienced, had produced none but the most opposite—unprecedentedly opposite effects.

Look at this moment to Portugal: behold that now magnanimous and regenerated nation, casting off at once the double yoke of a domestic and foreign despotism. Before the auspicious day arrived, think what had been the oppression on the one hand, the forbearance on the other, the wretchedness in consequence: read it in the documents of the time. Since that auspicious day, inquire what has been the vengeance: inquire ever so sharply, no such thing will you find.

Warmed by the subject, the pen has been running riot. Recollection commands it back to Cadiz.

On the 10th of March, 1820, at a moment of general festivity,—the assembled multitude being no less peaceful, no less unsuspecting, no less crowded, no less defenceless, than, in the preceding August, they had been at Manchester,—at the instigation—not of a simple Priest, but of a Bishop—a selection, carefully made from the refuse of the army, fell upon the people, and, not with cutting weapons only, but with fire-arms, commenced an equally indiscriminating slaughter. As to the number of those slain on the spot, accounts vary from three hundred to between four and five hundred; as to the wounded, they agree in estimating it at a thousand.

The triumph was not of long duration. The cause of the people finally prevailed; the authority of the law, such as in that country it is, was restored. But the law thus restored, was itself the law of tyranny. It was a system of law, which had for its end in view the same as that of matchless constitution, envy and admiration of the world: which had for its end in view, in a word, (need it be mentioned?) the establishment of the greatest happiness of the ruling one and the sub-ruling few, at the expense, and by the sacrifice of the greatest happiness of the greatest number. Amongst other tribes of the ruling few, the establishment of the greatest happiness of the lawyer-tribe,—manufacturers of an unassailable tyranny, the necessary and ever ready instrument of every other tyranny.

In Spain, as, with scarce an exception, in every other of the countries governed by Rome-bred law,—effectual care had been taken, that, in all cases, in which the sinister interest of the ruling one was concerned, the fate of the accused should be completely at the disposal of an ever-obsequious instrument of that same ruling one: a judge, nominated, and at all times removeable, by his fiat: and that, for that purpose, the proceedings in general, and the collection of the evidence in particular—of that mass of information, on the collection of which the result of every cause necessarily depends,—should, from first to last, remain covered with a veil of impenetrable secrecy. In England, only in cases where property is at stake, does this last-mentioned security, for injustice, corruption, and official depredation—this secrecy in the collection of evidence, stand as yet established: any designs formed by the head of the law upon jury trial—any such designs, howsoever intimated, not having as yet been particularized and brought forward: and though when the whole of the richest man’s property is at stake, property is thus disposed of by the instrumentality of secretly collected, or, as in bankruptcy cases, by that of uncrossexaminable evidences—still, in smaller masses, it is left to be disposed of, by a system of evidence, which, how replete soever with absurdity and inconsistency, is, upon the whole, somewhat less flagrantly and completely hostile to justice.*

TRACT, No. II.

Observations on Judge Advocate Hermosa’s Panegyric on Judicial Delays; on the Occasion of the Impunity as yet given by him to the loyal Authors of the Cadiz Massacre, a counterpart to the Manchester Massacre; explaining, moreover, the Effects of secrecy in judicature.

Complaints, I observe, have been made, of the delay experienced in the case of the Cadiz massacre. Of a paper, signed, according to the English translation, “Sanlucar de Barrameda, 20th August, 1820, the judge of instruction, Cormel Fiscal Gaspar Hermosa,” the professed object, is—to satisfy the Spanish people, that, from this delay, misconduct is not, in any shape, justly imputable to that judge. The business in question, is the business of the day. But, on the occasion of this business, I see principles avowed, the influence of which is of as lasting a nature as that of the system of law, of which they make a part, and from which they were imbibed.

“I remind the public,” (says this judge,) “I remind the public, that delay in judicial proceedings, is a tribute which is due to justice, and, as it were, the price at which the security of the citizen is purchased: that the judicial forms are”—(if, instead of are, he had said ought to be, his proposition would have stood rather clearer of dispute)—“that the judicial forms are—the shields of liberty, and precipitation the most dangerous rock in the way of justice.”

This defence of his excepted, from no individual fact do I see any reason for suspecting that the functionary in question is chargeable with misconduct in any shape: that, for example, he has any improper connexion with the parties accused, or any of them: any improper connexion either by complicity, unity of affection, fear of displeasure, bribery, or corruption in any other shape. Of the particular facts belonging to the individual case, all that is known to me is known to everybody: and they are, all of them, in his favour: namely, that, on this melancholy occasion, both actors and witnesses must have been, in a degree seldom if ever exemplified in the annals of judicature, numerous: and that, whatever be the occasion, the greater the number of the persons to be examined, the greater, cæteris paribus, must have been the quantity of time requisite to be occupied in the examination.

What, on the other hand, is but too true, is—that if, to a man in his situation, the above charges were, all of them, justly applicable, and accordingly applied,—this is the exact complexion of the sort of defence, that he would make. It is the sort of defence, which any man, in what degree soever guilty, would have it in his power to make, and which every man, who is guilty, would, if he saw any probability of its being received and productive of effect, be sure to make. It is the sort of defence, which I will not say no man, who is innocent, would ever make, (for innocence does not necessarily give right discernment, either to the person who pleads, or to those before whom he pleads,) but which an innocent man, if he has right discernment, would naturally avoid employing: and for this plain reason—because it is the interest, and necessary object, of the man who is innocent, to render his case as clearly distinguishable as possible from that of the man who is guilty.

Yes: when a man is really innocent, the course he takes will, naturally speaking, be exactly the reverse of the course thus taken. It will not consist of vague generalities such as the above: of aphorisms, without applications. No: but, as far as time and space will permit, he will hold up to view, in all their circumstances, the individual facts by which his innocence may be made manifest. In the present instance, for example, number of days of sitting, and hours in each day: number of persons that have been examined on the several days: number of persons that, as far as known, remained to be examined, &c. &c.

Instead of this, or anything like it, what does this judge? Addressing himself to the Spanish public, as a schoolmaster to his scholars, he recalls to their minds, in the form of maxims, certain lessons which, in his view of the matter, are in danger of not being sufficiently present to their memories. To each of these several maxims, I shall proceed to give a separate examination: namely to the end that it may be seen how far they are conducive, or repugnant, to the incontestably proper ends of judicature.

If, in my view of them, the evil tendency of the principles thus inculcated were confined to the screening of one individual, or a limited number of assignable individuals, from just censure, never would this pen have employed itself, in a task so ill-adapted to the situation of one who is a stranger to the country in which the facts had place. But, in my view of them, the tendency, though it were too much to say the object, is—to provide a screen for malpractice, in every shape, on the part of all Judges, to the prejudice of the subject many in all places, and at all times: a screen for all individuals in that situation, and, at the same time, for the system under which they act: a system which, in my view of it, has, all along, had misrule, in that shape, for its very object, as well as for its effect: a system, on the utter extirpation of which, in my view of it, the ultimate salvation of Spain, and of every country that has broke loose from the trammels of despotism, depends.

1. Maxim the First:—maxim as to delay. “Delay in judicial proceedings, is a tribute,” (says he,) “which is due to justice, and, as it were, the price at which the security of the citizen is purchased.”

That, to the operations, in the performance of which judicial procedure consists, as to operations of every other kind, time is necessary, is a truth, of which, if that was his meaning, it needed not a remark from a public functionary to remind us. But, by the mention of the word price, what is insinuated is this—namely, that whatsoever be the occasion, the greater the quantity of time is, that elapses before a definitive decision is known to have been pronounced, the greater the probability is, that the decision will be conformable to justice: for, generally speaking, the higher the price you are content to pay for your goods, the better the goods are that you will have. But if, in the case of delay, this were true, the surest way of pronouncing a right decision would be, never to pronounce any decision at all: for, in that case, the price paid would be the very highest price possible.

On the other hand may be seen a truth or two, of which our instructor himself seems to stand somewhat in need of being reminded: namely—that, though operations are performed in time, they are not performed by time; that the professing to be employing one’s self in the performance of an operation, and the being actually so employed, are not exactly the same thing; that, while delay increases, recollection weakens, and the very sources of evidence vanish; that delay in judicature is, so long as it lasts, denial of justice, and that a panegyric on delay is, therefore, a panegyric on denial of justice.

True it is that to the quantity of delay, that, by possibility, may be necessary to rectitude of decision, there is no certain limit. Why? Because there is no certain limit to the quantity of time that may be necessary to the collection of this or that piece of evidence. But mind the artifice. Under the sanction of the pretence formed by vague generalities such as these, what is true of no more than one cause out of a hundred, is applied to the hundred: a cause which might be despatched in twenty minutes—(and of this sort is by far the greater number of causes)—is made to occupy twenty years: and a cause, which, by the attendance of both parties, in the presence of a single judge, in an open judicatory, the bystanders, rendering the service that is pretended to be done, but never can be done by a judicatory of appeal, might be terminated without expense—is, for the sake of the profit upon the expense, nursed and kept alive; kept alive till the party, whose condition, in respect of pecuniary circumstances, is least favourable, is—if alive, alive in the pit of ruin, and his adversary more or less near to it.

Unfortunately for justice and for mankind, in regard to the use made of the word delay, an imperfection there is, under which, language seems, very generally, to labour. Two objects there are, for the designation of which there is but this one word, though, between the objects themselves, the distinction is not only clear and perfect, but, for the most important purposes, is continually requiring to be brought to view: namely, on the one hand, an addition stated as being made to an already allotted quantity of time; that statement not being accompanied with any consideration of the propriety of the so allotted quantity; on the other hand, an addition, the quantity of which is considered as being excessive. In this unfortunate ambiguity, the supporters of all systems of judicature contrary to the ends of justice, find a most useful instrument of defence. “Delay is, frequently, necessary to justice: namely, delay without excess: therefore, so” (say they) “is delay in excess; for delay in excess, is delay; and delay, you cannot deny, is necessary to justice.” Such is their argument; and such the logic of it.

On the present occasion, speaking as he does, of delay as a tribute due to justice, in which of these two senses would this professor of justice wish us to understand the term he thus employs? Delay without excess? the proposition is a nugatory one. What ought to be done, ought to be done: such is the instruction conveyed by it. Delay in excess? the proposition is an absurd and false one.

2. Maxim the Second. Precipitation is the most dangerous rock in the way of justice. Here, after another subject (of which presently) has been passed on to, up comes the same fallacy again in other words. Precipitation? What can be meant by it, but despatch, or promptitude in excess?

As to the maxim, setting aside the rhetoric of it, what is the plain import of it? That the quantity of time you employ—or at least profess to employ—in the operations of judicature, ought not to be insufficient: it ought not to be what it ought not to be.

Let it but mean anything—give it but a determinate meaning—the very reverse of it will be seen to be true. Numerous, indeed, are the modes of mal-practice to which the term precipitation might, without impropriety, be applied; speaking in general terms, in regard to any operation whatever, that, in the case in question, happens to be necessary to right decision, the omitting to employ the whole or any part of the quantity of time necessary to the performance of the operation, and thereby putting an exclusion upon the operation itself: in particular, putting, in this way, an exclusion upon such or such an evidentiary document; upon the attendance of such or such a witness; upon such or such a material question to such or such an attending witness; upon the answer, or any part of the answer, that would or might have been given by him to such or such a question; upon such or such a comment that would otherwise have been made upon his evidence. But the sense, in which, of all imaginable senses, it seems most likely to be understood, is—the omitting to employ more or less of the whole time that would have been necessary to a man, to form, by means of reflection, a right decision, on such grounds of decision as, in all shapes taken together, have been actually presented to his view: in a word, a deficiency in the time necessary for reflection.

Precipitation in judicature being thus understood, and admitted to be a rock, now let us see whether, of all imaginable rocks, this is really the most dangerous.

Look to English judicature. Adverse as, in so large a part of its extent, the system is—uncontrovertibly adverse—to the ends of justice—still, taken as a whole, it is, perhaps, the least so of any as yet anywhere established: strange indeed it would be, if it were not much less so than that of Spain. Of the two distinguishable branches of this system of procedure, namely, the natural and the technical, the only branch commonly in view is the technical branch: of this branch, the part most highly, most generally, and least undeservedly esteemed, is that in which the judicatory is composed of a professional judge, with a company of non-professional judges under the name of a jury: the jury, in the exercise of their functions, acting, in so far as it is their choice to do so, under the guidance of the judge. Now then, in this case, how stands the dangerousness? If, in the business of judicial procedure, the danger from precipitation were so great as supposed; in other words, if the mischief from it is so great and so frequent as supposed, here, it will be seen, we have a case in which it would display itself in its utmost possible magnitude. But how stands the fact? So small, if any, is the mischief, that in no one instance perhaps as yet, has it ever so much as attracted notice: in no one instance, at any rate, is complaint known to have been produced by it. Now then, note how the case stands: No sooner is the evidence with such comments, if any, as have been made on it by the parties or advocates on both sides closed, than, without so much as a moment’s delay taken for reflection comes, if at all, the opinion of the Judge: opinion or no opinion, immediately again, comes thereupon, as often as not, the decision of the jury. The promptitude thus displayed—is it in the power of precipitation, taken even in the bad sense, to exceed it? The same promptitude, again, has it ever, on the part of any person, been the subject of complaint? No, never. When promptitude, in this degree, has place, does it ever enter into any one’s mind, that any such condemnatory or disapprobative appellative as precipitation is, on that account, applicable to it? No, never. If promptitude, in such a degree, (and, in no higher degree can it have place,) is precipitation, precipitation, so far from being the most dangerous rock on which judicature can strike, might, with much more propriety, in the language of the same rhetoric, be spoken of as the harbour towards which it is to be wished that its course should be directed.

Never, surely, was aphorism more unfortunate! What is the evil to which, in the scale of evil, the highest place is assigned by it. The very evil which not only is, in every country, the least mischievous, but in the country, in which the warning is thus given, the least probable.

Delay, as above—delay, so long as it lasts—is injustice: for it is denial of justice: and, whether blame accompany it or not, the effect to the parties is the same.

In precipitation, unless misdecision be the result of it, there is no injustice: with it, there may be folly, but, from it, there is no injustice.

In regard to delay, thus it is as to its immediate effects, in both branches penal and non-penal taken together, and considered with reference to its effect in the particular cause in which it has place. In the penal branch, consider now its effects on the whole complexion and character of that branch. In so far as punishment has place, from delay in excess comes severity in excess: for by delay, and in proportion to the delay, the value, and effective influence of the punishment is diminished: diminished, by diminution of propinquity, and thence also of certainty. But, on the back of this evil, comes another evil. What is wanting in propinquity and certainty is then endeavoured to be made up for in magnitude: and thus we have severity in excess.

But, again, from severity in excess, and thence, as above, from delay in excess, comes inefficiency. For, as the punishment increases in magnitude, here again it loses in certainty. For the efficiency of the punishment depends, cateris paribus, upon the frequency of the known instances of its infliction, compared with that of the known or suspected instances of the delinquency which called for it. But infliction depends upon conviction, and conviction depends upon the co-operation of all operators necessary: necessary, in the several characters of informers, arrestators, witnesses, Judges, and functionaries acting under the command of Judge: and, in all these classes, to an extent proportioned to the degree of humanity that has place in the character of the age and country, those who would otherwise be co-operators, shrink from the task.* In Spain, of all countries, warn Judges against precipitation! Warn then the snail against running herself off her legs.

Rhetorician! if you must have a rock, keep to your rock then, but reverse the name of it. For precipitation say delay, and you will speak true. Delay not precipitation, will then be your name for your “most dangerous rock in the way of justice.” Thus, then, you have a rock, on which, in Spain, ever since Rome-bred law, with its system of procedure, has been ruling, Justice has been splitting: a rock on which, unless that chaos, with its rocks, be speedily annihilated, justice will, ere long, split to pieces, and the constitution along with it.

When the justice necessary to the keeping of society together cannot be had from judicature, it is looked for from despotism. Then does despotism itself, as being the minor evil, put on not only the colour, but even the character of good: as such, it is looked for, called for, exercised, and, not altogether without cause, even applauded. And this is among the causes why, in the eyes of the lovers of despotism, a system of procedure repugnant in the extreme to the only true ends of judicature, is an object of indifference, or even of complacency.

Those who will have rocks cannot object to harbours. When factitious delay, the artificial rock set up by the confederated ingenuity of official and professional artists, stands in the way of justice—despotism, calm unruffled despotism, is the harbour, in which, whatever security is regarded as obtainable, will be sought. To the artists themselves, the change would be no evil, were they the only harbour-masters. But when in the hands of lawyers, despotism fails, recourse is had to priests and soldiers.

3. Maxim the third. “The judicial forms are the shields of liberty.”

The judicial forms?—What judicial forms? What, is not said, but what is insinuated, and doubtless meant to be understood, is—that such are the judicial forms of the Spanish edition of the system of Rome-bred procedure:—the system, under which the preacher of wisdom, in this shape, was acting, and under which, by the help of these convenient and well-worn aphorisms, he is thus endeavouring to find shelter. Liberty, indeed! What liberty? whose liberty? What in his dictionary means liberty? What? unless it be liberty to rulers to oppress subjects, and to lawyers to plunder suitors? Liberty, indeed! Why thus keep hovering over our heads in the region of vague generalities, but that he finds his procedure unable to stand its ground on the terra firma of individual and appropriate facts?

Be this as it may, how stands the case in reality? These judicial forms, what are they? What, but the means employed by judges in their progress towards the ends or objects, to which the course of the proceeding is directed, whatsoever are these ends.

Now, under the Rome-bred system of procedure in general, and under the Spanish edition of it more particularly, what are the ends towards which the course pursued by those who framed it, has at all times been directed? by those who, from time to time, have been employed in the framing of it, not to speak of the course pursued by those who, from time to time, have been acting under it. I will tell him what are these ends: they are the ends diametrically opposite to the ends of justice: they are the ends pointed out by the personal and other private interests of those by whom this power has been exercised: ends standing in constant opposition to the interests of the rest of the community, but more particularly to the interests of the subject many, in respect of the ends of justice: they are the sinister ends, to the pursuit of which the ends of justice have, to a greater or less extent, been everywhere made, and still continue to be made, a continually repeated sacrifice.

Liberty, indeed! shields of liberty! under the Rome-bred procedure anywhere—under the Spanish edition of it more particularly—is it of liberty that the forms employed are the shield? O yes! if, instead of liberty, we may read despotism, oppression, depredation, and corruption: with this one amendment, the maxim may be subscribed to without any the smallest difficulty.

What are the ends—the proper—the only defensible ends of judicial procedure? Direct, all-comprehensive, and positive end—rectitude of decision: collateral and negative ends, reducing, to the least possible quantity, the evils unavoidably produced by the pursuit of the direct end; namely, the evils comprised under the three heads, of delay, vexation, and expense.

Such being the only proper ends, what, then, are the actual ends—the ends actually pursued by those, by whom, in this, as in every other instance, the system of judicial procedure has been framed? If they have been men, these ends have everywhere been their own personal ends: the advancement of their own particular interests. And what have been those particular interests? On every occasion on which, in each man’s view of it, his interest would be better served by misdecision,—misdecision accordingly: on all other occasions, rectitude of decision; this being pursued, according to the best of the man’s judgment, for reputation’s sake: for reputation’s sake, that so, by probity, practised where it might be practised without sacrifice, power might be increased: that power, (for reputation is power,) under favour of which, improbity, coupled with impunity, might be practised, as often as advantage presented itself, in any sufficiently tempting shape, as the fruit of it. Thus much as to what regards the direct end of justice: then, as to what regards the collateral ends, the swelling, to the utmost amount, the aggregate mass of delay, vexation, and expense: the expense for the sake of the lawyer’s profit extractable out of it: the delay, with its attendant vexation, for the sake of the opportunities which it affords for addition, to the amount of profit-yielding expense; of profit-yielding expense, in all cases; and of misdecision in every case, in which it presents itself as prescribed by personal interest in any shape, as above.

The founders of this same system, were they men? or, if not, what were they? If men, then so it is that, in the circumstances in which they acted, unchecked as they were, free as they were from all check, applied or applicable by the subject many, whose interests they were thus disposing of—such, in the framing of the system, could not but have been the ends that, from first to last, they had in view. For, on the constantly prevailing habit of self-preference, does the human species depend—depend, not merely for its happiness, but for its existence. No rule more important for the legislator’s guidance; no rule, on which, with stronger determination, his eyes, should, on every occasion, remain fixed; no rule, against which the eyes of men in general are more obstinately closed. Yes: self-preservation it is that is the necessary occupation, and, with the exception of maternal care, the only necessary occupation: Yes; on any extensive scale, social sympathy, and the conduct that flows from it, is an article of luxury—the luxury of the most highly polished life: the habitual enjoyment of it, the privileged endowment of here and there a superior and superiorly cultivated mind.

Delay, vexation, and expense,—these, in conjunction with misdecision, compose, in all its modifications, the aggregate mass of all the evils to which, taken by itself, the system of judicial procedure is liable to give birth. Add uncertainty, an evil, in the generation of which, the main body of the law, whether by its silence or by its language, shares and vies with the system of procedure: add these together, you have the aggregate mass of evil, of which is composed the patrimony of the fraternity of lawyers: of the man of law, in all his shapes: of lawyers, of all classes, and all ranks: of the attorney, of the advocate, of the judge, of his ministerial instruments: of these, and, above them all, of the patron, by whom the judge, in all his shapes, is appointed. Delay, vexation, and expense, as well in their natural and inevitable, as in their factitious, and purposely organized, forms: of evil in all these shapes, as well in that in which it is the purposed work of man, as that in which it is the work of that power, into the designs of which no human eye can penetrate. No: in no branch whatever, in no place, at no time whatever, can any system of government, that we see, or ever have seen established, have been directed to any other object than the particular good of those by whom it has been established: to the good of the subject many, no further than in as far as it appeared to the ruling few, that, by serving those beneath them, they were, in some shape or other, rendering service to themselves. From the eyes of the multitude, these truths, incontestable as they are, have almost universally been hidden: hidden by a covering of the thickest and most universally and indefatigably employed imposture. Yet, only in proportion as those same eyes are open to these same truths, can man be freed from the oppression, depredation, and debasement, under which, in every country, he still labours. In every country? yes: even in the Anglo-American United States. For, though not at all by despots, nor much by priests, even there is he deluded. Yes: deluded he there is; and in proportion to the delusion, preyed upon and oppressed by lawyers; by England-bred lawyers, whose iron-rod, having been in the night of servitude, is still in the days of independence suffered to be wire-drawn out of a system of sham law, and that of foreign growth—the English common law.

The good, whatever it be, that is derived from the judicial system, from whence, then, is it derived? From those things which are actually done? In a small degree, yes; but in a very small degree: in a much greater degree, from those things which, in the case in question it is how erroneously soever supposed, would, if the experiment were made, be done.

In the teeth of their own experience, deluded by those false conceptions, which, in books and speeches, the lawyer-tribe, with one accord, are so indefatigable in disseminating, it is among the expectations, for example, of Englishmen in general, that, for injury in any shape, law will afford them an adequate compensation. All the while, the fact, the incontested and incontestable fact is, that to a vast proportion, probably to more than nine-tenths of their number, the obtainment of any such compensation is, in every case, impossible. And, for the opposing a perpetual bar to any increase in the number of those to whom it shall be possible, leaders in both factions, corruptionists in possession, and corruptionists in expectancy, stood up but t’other day, stood up, in declared confederacy. Stood up, and where? Even in that House, the very name of which is so happily become a name of reproach in Europe.

Thus stands the matter in England; the country in which, till the birth of the Anglo-American United States, the plague of lawyers was least destructive. But, if thus in England, how in Spain can it fail to be still worse?

To return to our official preacher of delay, the no less learned than gallant advocate of Forms, in the great cause of Forms against Substance. The body of his sermon, is now, it is hoped, understood. Come we now to the practical inferences.

On my zeal, says he, “I exhort them” (the public) “to depend.” On his zeal, for what? Thus the explanation is at the same time given: his zeal to do what he is professing to do: “placing myself,” says he, “above the influence of the passions, and listening only to the voice of justice?” And this zeal—by what was it called into action? By those laws, of course, under which he was acting: by the laws he speaks of, as those “which regulate the order of proceeding,” those “inviolable laws” (so he terms them) “which,” he says, “are the only safeguard of liberty.”

Neither with the person of the gentleman in question have I any acquaintance, nor, in relation to the reputation he bears, have I received any the slightest intimation: in relation to him, all that I have any conception of is—the official situation he was occupying, and the principles of the system of law under which he was acting. Now, of that situation, indeed, my conception wants something of being determinate: but, of the system of law in question, my conception, is, so far as regards the present purpose, as determinate as I could desire it to be. This premised, it will, I hope, be sufficiently understood, that, in whatever I may find occasion to say of him, it is to the species only, and not to the individual, that it can have been intended to be applied. And so then, of this string of phrases is composed the ground, on which the gentleman expects us, our eyes shut all the while against the manifold matters of fact which the case furnishes us with, expects us to rest the unbounded confidence which, by the word depend, he calls upon us to repose: as if these words were not just as easy to write as an equal number of other words of the same length: as if acting were less common upon a bench than upon a stage: as if it were not just as easy for the most dishonest, as for the most honest man upon earth, to commit to paper, or to the air, phrases of this sort, in whatever quantity the purpose were thought to require: as if the most notoriously rapacious and sordid hypocrites this country knows, were not every day, not only pouring forth professions of virtue such as these, but confirming them with appeals to God, and ever-ready tears. In answer to this call, as one of the public, I will here take the liberty of stating to him my conception of the course which, under the invitation given him by those same “inviolable laws,” I “depend” upon his having pursued. For the gratification of those same “passions” to the influence of which, for no other reason than that he has been at the trouble of saying so, he desires us to believe him to be so effectually superior, he has been employing these facilities which, for that same purpose, under the cover of that veil of impenetrable secrecy, which they have so religiously thrown over all judicial proceedings, those same laws have, in their bounty and their wisdom, been so careful to place in his hands. Proceeding then, according to established order, (for everything is as nothing in comparison with established order,) he has begun with taking an account of all such delinquents, whose power of hurting him is such as to exempt them from the necessity of coming to market for his services: in favour of these, the power, the unlimited and irresponsible power of pardon, which, by the wisdom of those same laws, has, by its not being nominal, been rendered but the more effectually real—has been exercised gratis. Another class, which he may, or he may not, have taken the trouble of forming, has been composed of those, towards whom he has found, in the sentiment of sympathy—in any shape, public or private—a motive, of sufficient strength to engage his exercising the godlike attribute upon the same disinterested and magnanimous terms. These two unprofitable classes being deducted, remained the class composed of all such other persons, in whose instance, upon due inquiry, a capacity of showing gratitude, in the pecuniary, or any other more refined, though not less valuable shape, has been found: and, in these instances, he would have been wanting in what was due to both parties, if he had not taken the requisite measures for improving the capacity into act. Uniting in his person, (if my inference from his official title be not erroneous,) the military character to the judicial, he would have been an offender against the laws of gallantry, had he neglected the opportunity afforded him by those same “inviolable laws,” for applying beauty to its appropriate use. In civil cases, under the French edition of Rome-bred procedure, the goodness of a man’s title depended, nominally, upon contracts or conveyances, really upon the beauty of a wife, sister, or daughter, in the eyes of the most influential Judge. It was manifestly for this, amongst other reasons, (for there could not have been a better,) that, under that system, personal solicitation was not only permitted but exacted.

When using the word “depend,” I said—this is the sort of conduct that I should depend upon his having pursued, it was because, in the translation of the judicial document in question, depend was the word I saw before me. Here, lest I should be doing injustice as well to the gallant and learned gentleman as to myself, depend, it may be proper I should confess, would, in my view of the matter, be rather too strong a word for the case. Dependence on the part of the contemplating mind corresponds to certainty, on the part of the event contemplated: probability, though a greatly preponderant probability, is all that I see here. Such are the diversities in human character, that, when corrupt laws, the fruit of corruption, have done their utmost to lead men into temptation, this or that individual there will still be, in whose instance effectual resistance will have had place. But, utterly unacquainted as I am with everything belonging to the Gentleman in question, except his situation, and the system of law under which he has been acting, if I were obliged to lay a wager, I would lay at least twenty to one, not to say a hundred to one, that, with any such degree of inflexibility as that in which we have seen him professing resistance, he has not resisted.

To make anything like a complete statement of the grounds of this above-mentioned persuasion, would require a volume: it would require a complete exposure of the system of those same “inviolable laws.” But, for the justification of such a persuasion, one single feature in that system is quite sufficient; and that is—the impenetrable darkness in which the whole procedure is enveloped. You have seen already the use and reason of this darkness. In Spain, a man must be more or less than man, if he does not put it to this use. For Spain, put Portugal, Italy, Germany: take any country where Rome-bred law reigns; the case will be little varied. Cases excepted too minute to be here worth mentioning, take this for an incontestible rule—Where there is no publicity, (I speak of judicatories,) there is no justice. Oppression, depredation, corruption—all that there is—everything rather than justice. Under Rome-bred law, in the pleadings of advocates, in here and there an instance perhaps, you will see publicity admitted. In pleadings, yes: but upon what ground? Upon no other ground than that which is formed by evidence, manufactured at pleasure under the veil of secrecy: the cause thus corrupted in its vitals, and in the judicatory, responsibility destroyed: destroyed—the thing itself, and thence the sense of it—by the multitude of the judges. From the stage, at which, by forming a sort of partial succedaneum, how inadequate soever, to an ungarbled public, the multiplicity of Judges might apply some restraint to corruption—from this stage it stands excluded: the stage at which it cannot be of any such use, that is the stage at which it is admitted. By the presence of almost any man, much more by the presence of one invested with equal authority, a Judge might, by the fear of divulgation, be deterred from any such palpable injustice, as the putting an ungrounded exclusion upon a witness, or suppressing or falsifying any part of his evidence. But when, after a decision already pronounced by one judicatory, a question comes in the way of appeal before another, and that other a many-seated one, nothing is there to hinder any one member of it from giving to his vote the direction, whatever it be, that corruption indicates. As to fear of divulgation, no place is there for any such thing. How should there be? there is nothing to divulge.

So far as concerns individuals all this being mere supposition, let us close with another supposition which, to every generous and feeling mind, will be a so much more acceptable one. The conduct of the functionary is now in perfect conformity with his professions: it is without spot. How irksome must it then not be to him, to be all along acting under a system, under which, while he is acting, he cannot, by any discerning mind, be regarded as otherwise than more or less corrupt!

A system, by which he is placed in so degrading a situation—how odious must it not be in his eyes? how anxious must he not be, to embrace with the utmost promptitude every the smallest chance for seeing substituted to this foul and technical system a pure and natural one? “Foul,” I have said, and “technical.” But, when applied to a system of judicial procedure, foul and technical will one day be universally understood to be synonymous terms: technical being said of it, foul will be put aside as superfluous.

As to the screen for corruption—the screen made out of the panegyric on delay and forms, I have seen it in use these five and fifty years: the name of the manufactory is visible on it. Esprit des loix the manufactory: Montesquieu and Co. the name of the firm: a more convenient or fashionable article was never made.

In Montesquieu, as in Blackstone, whosoever has misrule in any shape to attack or to defend, may find this and that and t’other thing, that, with more or less exactness of application may be seen or made to fit his purpose. If your wish is to put the business off, quote Montesquieu—you may put it off as long as you please: if your wish is that it shall come to nothing, there is Montesquieu who will do this for you likewise. In addition to increase of delay, vexation, and expense, the forms invented by the lawyer tribe have had everywhere for their object the enabling them to bring a suit to nothing whenever they are so disposed. What has been done is found to be unconformable to this or that same rule or form: to a rule or form already made, if there be an already made rule or form that is near enough to the purpose; if not, to a new form, which, on pretence of being found ready made, is made to suit the purpose. Behold here the key, to a part, perhaps the greatest part, of the absurdities, portentous as they are, which may be seen swarming in every system of procedure that was ever made. Made: to which must be added—or pretended to have been made, in so far as it is not exhibited in any other shape than that of common, alias unwritten, alias imaginary, alias sham and counterfeit law.

Montesquieu was a man of gallantry—a bel esprit—a fine gentleman, and a philosopher. But, before he was anything of all this, he was a lawyer: a lawyer, bred up in the corruptions of Rome-bred judicature: a French Judge with the rank of President, in one of those oppressive and predatory corporations called Parliaments; a name which, in all its senses, will one day be as universally a term of reproach as the Inquisition is already. With all his merits—and pre-eminent most unquestionably they were—it could not escape his sagacity, how intimate the connexion was between his rank in society, and the respect entertained for the abuses by which that rank was conferred.

A man, who has an abuse to defend, must for that purpose, were it only for decency’s sake, have a something with which he may be supposed satisfied. As to the something here in question, if our Colonel Fiscal was more of a Fiscal than of a Colonel, it is no more than he himself may naturally have provided himself with, and kept for use: if he was more of a Colonel than of a Fiscal, some other person who was a fiscal without being a colonel, put it perhaps into his hands. It will continue to be needed and to be used, so long as any particle, either of the nuisance called Roman common law, or of the nuisance called English common law, remains unextirpated.

The disorder has been seen: it admits but of one remedy. The disorder has for its cause a system of procedure, produced in a dark age by interests and designs, directed to ends opposite, in the degree that has been seen, to the ends of justice. The remedy, if it ever has any, will be constituted by a system of procedure, produced in an enlightened age by interests and designs, directed from the first towards those only legitimate ends, and, from first to last, pursuing the same undeviating course. The difference between a work directed to the one, and a work directed to the other of these opposite objects, will, in and by such a work, have been rendered visible to all eyes. In the hands in which the power of the country is—in these hands, will be then the choice.

ADVERTISEMENT TO TRACT THE THIRD.

In the beginning of November 1820, not long after the time when the last of the four letters just published “On the Liberty of the Press and Public Discussion,” was sent to Spain—the letter, now for the first time printed in the original, was sent by a mercantile friend of Mr Bentham’s to a correspondent at Lisbon, to the intent that it might be there translated into Portuguese, and the translation published. Of that paper, whatever was the cause of the failure, no tidings could ever be obtained. When all prospect of its answering its purpose at Lisbon was at an end, another copy was at length sent in the same manner to Oporto, and had better fate. That at Oporto it found a translator, and the translator a printer; and that copies of it found their way to Lisbon, is out of doubt. Of that translation, indeed, no copy is yet known to have reached England. What is much more to its advantage, the work has, however, since then, received a translation, and that translation publication, from the masterly pen of Dr Rocha, in his monthly paper, intituled “O Portuguese:” in which the matter of it is applied and enforced by comments, as well as recommended by the warmest eulogiums.

Not long after the news arrived in London of the formation of the Portuguese Cortes at Lisbon, a packet, containing a copy of Mr Bentham’s works, such of them as could be collected, was sent for that metropolis in the same manner. The design was—that communication should be made of the contents in such manner as should be found practicable, and judged most proper, to the newly constituted authorities:—it was equally unfortunate. The failure being at length ascertained, another such parcel was sent, and produced that sensation, of which a communication to Mr Bentham from the Cortes, a translation whereof is annexed in the form of an Appendix to this paper contains the expression. By him, nothing had been written on the occasion or on the subject either time, to any person either here or in Portugal.

1st July, 1821.

TRACT, No. III.

Letter to the Portuguese Nation, on antiquated Constitutions; on the Spanish Constitution considered as a whole, and on certain defects observable in it; in particular, the immutability-enacting, or infallibility-assuming, the non-re-eligibility-enacting, the sleep-compelling, and the bienniality-enacting clauses.

Portuguese!

You hear me from England. You will have heard of me from Spain. Hear the voice of an unbought, an unexpectant friend. Hear a voice, which, for more than fifty years, has been labouring to qualify itself for addressing you as it does now.

1. First, as to Constitution. Take example by your friends in Naples. Do as they did. Adopt it as a mass: time admits not of picking and choosing. Exceptions, few in number, simple in conception, mighty in import, I will point out presently. In the scheme of representation, you see the basis. Take it for all in all, nothing as yet practicable can be so good for you. For them it is good; for you it will be still better: this you shall see. To find ready made a work already so suitable, is a blessing too great for expectation; an advantage beyond all price. Somewhat which I should otherwise have said, I am stopped from saying by an odd accident. With the exception of some details, which necessity excluded from Spain, it is exactly the same with the scheme which, without concert, I was planning exactly at the same time. Mine, ere you receive this, will be courting your acceptance. In both, you may see universality, secrecy, equality, and annuality or bienniality of suffrage; in mine, annuality; in the Spanish, bienniality, substituted to annuality by a local necessity—a necessity which you will see: and which, unless you make it so, is not yours. In mine, as in the English, one stage of election: In this Spanish, four. Oh monstrous complication! But perhaps it could not there be otherwise. I am sure it could not have been as mine is.

2. Now secondly as to Cortes. Look abroad or not, a Cortes you have of course. But, under the same name, lurks the difference between life and death. The question is between fresh and stale. The stale was bad, even when fresh: what then would it be now? The last you had was in 1640: 1640 is not 1820: these figures suffice for proof. The Cortes of 1640 is that which the late regency would have given you; it therefore suited their purpose; it therefore would have defeated yours: another short argument, yet of itself a sufficient one. Before that of 1640, had there been a thousand, in none of them would the interest of the subject many have been the first object of regard: in none of them any other than that of the ruling one, and that of the sub-ruling few. The one thing needful is that by which the interest of ruler is made the same with that of subject; of representative with that of constituent. This is what the Spanish constitution may be brought to do for you. This is what your old stale constitution never did, nor ever would be brought to do, for any body.

Exceptions I have prepared you for.

Exception 1. The immutability-enacting, alias the infallibility-assuming clause. This is what my respect for Spain makes me almost ashamed to name. Amendment—none for eight years to come, and nobody can say for how much longer! As well might it have been said, no amendment till the end of time. The longer the thing continued without change, the stronger would be the reasons against change: the longer would be the experience of the needlessness of change. Immutability in the work, assumes infallibility in the workman: infallibility, (for such was the hurry,) without so much as time for thought. I, who have been thinking of such matters for more than fifty years, would no more think of giving a twelvemonth’s immutability to any such work of mine, than I would set myself up for that Being who is as immutable as infallible. Nor, though infallibility were conceded, would it reconcile the arrangement with sanity. Tying up all other hands, the legislator tied up his own in the same bonds. The infallible of today, will he not be at least as infallible tomorrow? Or would infallibility decrease as experience increased.

Alas! this is not the only instance in which what is most absurd upon the face of it may be made not only reasonable but necessary, by a reason which is not, because it cannot be, avowed. For this absurdity, glaring as it is, Spaniards (so they tell me) had a reason, and I fear too good an one. What was feared was a relapse. The resource was—to anchor the constitution at the highest mark at which the flux should carry it, and thus to guard against the reflux which the remnant of despotism could not but labour to produce. The anchor dropped, as often as any retrograde proposition shall be made, a short answer is now ready for it. “The constitution is unchangeable: you have sworn to it: this measure would change it.”

Portuguese! thank heaven! this reason applies not to you. You are not cursed with the everlasting presence of an arch-enemy: an enemy who, if a man, is, in his situation, necessarily an implacable one.

2. Exception the second: the non-re-eligibility clause: Articles 108, 110, the clause which excludes from the next Cortes all the members of the first. Experience is the mother of wisdom, says a proverb which can hardly be peculiar to the English language. No, says the author of this arrangement: not Experience, but Inexperience. Either that is what he says, or this:—In a legislative assembly, wisdom is worse than useless.

Oh but (says somebody) men might, but for this, give, each of them, perpetuity to his power. Oh yes, so they might, and would: were it not for the power which you give to the people—that power of removing them—all and each of them—at the end of every two years: which two years, were it not for Ultramaria, would be but one year. What! is it then so sure a thing, that, under a free mode of election, should the majority of the representatives show themselves unfit, the majority of their constituents would re-elect them notwithstanding, and that such would be the ordinary result? If so, then not only is this system of representation radically a bad one, but so is every system of representation whatsoever.

Appropriate moral aptitude—appropriate intellectual aptitude—appropriate active talent—in these may be seen the three elements, of which, in this as in every other situation, the perfection of appropriate aptitude is composed. Which of these elements is it that, by this exclusion, it is intended to secure? As to appropriate moral aptitude—the inhibition does not merely prefer untried men to tried; it puts an inexorable exclusion upon whoever has been tried; either it prefers chance to certainty; or, to secure certainty, it excludes it. Apply this to appropriate intellectual aptitude, or (to use the word of parade) wisdom: here the absurdity is still more glaring. Moral aptitude, or if you please, probity, having more in it of a negative than a positive aspect, if, at the commencement of a man’s career, it is entire, habit cannot, as to its principal part, make any addition to it. Not so intellectual aptitude. Especially with reference to a situation such as that in question, is it possible, decay of faculties apart, that at the end of the man’s career, be it long or short, it should not be greater than at the commencement? And, in regard to active talent, the case is too nearly the same to need distinguishing.

If rawness is a security for aptitude, let not the public, in any part of the field of thought and action, be without the benefit of it. Apply it to the fine arts: apply it to the ordinary arts. When a history painter has practised painting for two years—(I should have said for eight months, for in the Spanish Cortes year, there are but four months)—inhibit him then from practising it any longer: at any rate, till an interval of two years has elapsed: and so in the case of the smith, the carpenter, and the weaver. Or is the perfection of appropriate aptitude so much more quickly as well as surely attained in legislator’s work, than in smith’s and carpenter’s work?

Note now the application which this same non-re-eligibility clause makes of the power of punishment and rewards. When no delinquency is so much as imputed, it inflicts punishment without mercy. The utmost punishment which it is in the power of constituents to inflict on representatives in case of the most enormous and flagrant breach of trust, is—forbearing to re-elect them. This punishment the clause inflicts without discrimination upon the most guilty and the most meritorious: upon the most meritorious, upon no other ground than that of a possibility of their having been guilty, refusing to them the possibility of proving themselves not to have been guilty, in the eyes of their natural Judges; those Judges who, in each individual case, have before them all the means of judging which the case affords, while the legislator has not any.

True it is, that, after two years of destitution, the capacity of being re-elected revives. But this circumstance only gives complication to the case, without making any material change in the mass of argument, and without making any change in the practical conclusion.

Thus to neglect details and proportions, is among the effects and marks of rawness in the business of legislation. Against some experienced or apprehended evil, an expedient presents itself, as affording the promise of a remedy. Imagination, heated by self-love, swells it: it takes possession of the mind, fills up the cavity, and keeps the door fast shut against all counter-considerations.

In case of delinquency, deemed such by the competent judges, in case of delinquency, how pernicious and flagrant soever, it secures the delinquent against the natural punishment—the punishment flowing, without need of prosecution—flowing as it were of itself, out of the offence;—arising without any of that uncertainty, delay, vexation, and expense, which in a greater or less proportion is inseparable from judicial procedure: and which, in the system most eulogised is swelled by an enormous mass of all those evils artificially accumulated. This punishment consists in the suffering produced by the loss of the power so misused: a result, for the production of which nothing more is needed than a sort of negative operation, if so it may be called, in the situation to which the power stands attached.

On the other hand, at the same time, in case of good conduct, it excludes him from the correspondent and natural reward: in case of good conduct, how pre-eminently meritorious soever.

To obtain admission for such a regulation, something more must, of course, have been said. But I should be curious to see this something: and to see it confronted with what is above.

Let me recollect. A something more, I think, I have sometimes heard of. Of the annual recurrence of the capacity of being removed, the result (I have heard say) is the perpetuity of inaptitude. To its paradoxicality does this position seem to me indebted for whatever reception it may have obtained. When, from a mind to which a certain degree of sagacity is ascribed, a position wearing upon the face of it a hue of absurdity is seen to come, credit is apt to be given for some latent truth at the bottom of it. But, in this case, mark the logic. Of the supposed effect—namely, inaptitude in some shape or other—the existence is, in the first place, taken for granted. Taken for granted? But on what ground? For it, there is no evidence: against it, there is—there never can fail to be, a host of evidences—the opinions of all who, by concurring in the election, have given their attestation to the man’s aptitude. Sitting in his closet, taking in hand this or that individual case, the author of the paradox takes representatives in the lump, without evidence, and without other ground than this theory of his, pronounces them unapt. And what representatives? All that have ever sitten, or can ever sit a second year, after having sitten a first: or, if these numbers be objected to, let him change them, till he comes to say—all who have sitten a fifty-first year after sitting a fiftieth. Individually taken, what does he know of them? next to nothing; perhaps nothing; while the electors know, each of them, of the representative he had voted for, as much as he pleases. But the electors, those too in their situation he pronounces unapt: unapt to form any judgment respecting the aptitude of their representatives. These electors—how many of them does he know—know in any such sort as to be qualified for pronouncing a judgment on their aptitude? not one perhaps in a hundred.

3. Exception the Third: the sleep-compelling clause. Articles 106, 107: duration of the time for business, three months of each year in course; one month more at the utmost; nor this, but at the instance of the king, or of two-thirds of the deputies: forced sleep, eight months or nine months. So much for actual law: now as to reason and expediency.

If there be one thing more impossible than another, surely it will be—the saying at any time of the year, upon any sure grounds, what time may be requisite and sufficient to the business: to the business that may, in the course of the remainder, happen to require to be done. If such must still be the case—in a year when everything has long been settled, how much more necessarily must it not be the case, at a time at which scarce anything has as yet been settled? If such be the case, where the business is familiar to the majority of the hands, how much more necessarily must it not be the case, when, as yet, whether by necessity, or, as above, by institution, there can be no hands to it, but new ones? If such be the case, in a nation which (like the French) is more apt to go beyond the proper pace than fall short of it, in how much greater a degree must it not be the case in a nation, which, if proverbs are not slanderers, is so much more apt to fall short of the mark, than to go beyond it? Under these circumstances, comes the Spanish legislator, and inhibits himself and his fellow-workmen from working more than three months out of the twelve in ordinary cases, more than four months at the utmost in the most extraordinary cases. Thus then it is, that the union of King and Cortes—the supreme power in the state, is doomed to impotence. To impotence, and by what? By a spell composed of half a dozen lines, for which, at any rate, not a grain of reason has been assigned or produced, whatever may have been found.

4. Example the Fourth; the bienniality clause.

Another amendment, my friends, you may perhaps see reason to make: though it shrinks into insignificance when brought into comparison with any one of the three former. This is, the substituting annuality of election to the Spanish bienniality. Of the bienniality, the cause is evident enough: it lies in Ultramaria. Had the duration given to the trust been no longer than one year, a quantity of time equal to the whole of the time allotted to the business they will be sent for, might have been consumed in voyages and journeys to and fro: as it is, scarcely more than half this proportion of time will perhaps be thus wasted.

Ultramaria being thus mentioned, let me congratulate you, my friends, on your being unencumbered with this nuisance. The King of the Brazils has already eased you of so much of it: of that part, in comparison with which all the rest is next to nothing. This remnant, I take for granted, you will sit still, and see him keep or take, without any attempt to hinder him. John the Sixth will not wage war with John the Sixth: the European King with his American self; the constitutional King, with the as yet non-constitutional King. You will look down with an eye of sympathy on your neighbours the Spaniards, who are still encumbered and drained by the sort of nuisance of which you are rid. Unite yourselves to those same neighbours by the closest bonds. I dare not speak the nature of them. You have the same interests: you have the same dangers: at the worst, forbear to add to those dangers by any disagreement between one half of the peninsula and the other half.

Note now, one in particular, of the bad effects of an immutability-enacting clause. Inhibiting legal, it necessitates and produces anti-legal changes. To amendment, it substitutes violation—violation of the law—and by whom? By the legislator himself: by him whose example is the highest and most impressive of all examples. If, in his breast, the propensity to violation finds no bar, how can it be expected it should in any inferior ones? Such, then, is the tendency, at least of an immutability-exacting clause, to plant anarchy, and to destroy confidence.

Now for an example. In article 108, “the deputies,” it is said, “shall be renewed entirely, every two years.” Lest this should not be precise enough, by article 110, the deputies cannot be elected “a second time without another deputation intervening;” that is, (adds the zeal of the English translator,) “a member is not eligible to two successive parliaments.” Thus stands the law. How, under this law, stands the fact? Amongst its members, this second Cortes beholds in multitudes, and beholds with universal congratulation, those who had sitten in the last preceding Cortes. In the decree, by which the constitution was established, was any amendment made as to this clause? If yes, then was the immutability clause violated; if no, then was the non-re-eligibility clause violated.* Which of the two was the case, has not reached the ear of.

JEREMY BENTHAM.

*∗* In the original edition there is an Appendix of documents relating to a “Communication from the Portuguese Cortes to Mr Bentham, respecting the Translation of the whole Collection of his works into Portuguese by order of the Government.” These will be found already printed in “Codification proposal,” vol. iv. pp. 573-4, Nos. 1, 2, and 3. The Appendix is followed by this addendum:—

In the Traveller of Tuesday, July 17, 1821, appeared, and from thence in other papers appeared, the following paragraph sent from the Post-Office as being a translation from a Portuguese paper:—

“Lisbon, June 29.—In the Sitting of the Cortes of the 26th, a letter from Mr Jeremy Bentham was read, and the President said, the Assembly could not but be highly gratified with the approbation given to their labours by the first political writer of Europe. It was ordered to be printed in Portuguese and English, not to lose the force and beauty of the expression.”

LETTERS TO COUNT TORENO, ON THE PROPOSED PENAL CODE, DELIVERED IN BY THE LEGISLATION COMMITTEE OF THE SPANISH CORTES, APRIL 25TH, 1821.

WRITTEN, AT THE COUNT’S REQUEST,

BY JEREMY BENTHAM, ESQ.

FIRST PUBLISHED IN 1822.

ADVERTISEMENT.

The history of the present publication is as follows:

At the writing of the ensuing Letter, in so far as a judgment, which it has more than once happened to me to hear pronounced, is correct,—the writer of it—the Conde de Toreno—one of the Deputies to the Spanish Cortes from the province of Asturias, of the 149 European Deputies the only one whose name is a titled name,—was one of the most influential men, not to say the most influential man, in all Spain.

On the 9th of August, 1821, without any antecedent intercourse, or previous expectation on my part, I had the honour of receiving it from him. It is in the following terms:—

Paris,le 6 Août 1821.

Monsieur J. Bentham,
Monsieur,

Notre commun ami Mr Bowring veut bien se charger de vous faire passer le volume cijoint, qui comprend le projet du Code pénal présenté par le Comité à la deliberation de 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 defenseur 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’empressement que je mettrai toujours de vous offrir l’hommage de mon admiration, et de ma profonde considération.*

Le Comte de Toreno.

On the 22d of that same month (August, 1821,) and not before, I received the work which it announces.

On the 11th of September 1821, the Count being still at Paris, I sent off in manuscript, directed to him at that capital, by the post, the first of these seven Letters. The succeeding ones were directed either to him at Paris, to the care of the Spanish Mission there, or to him at Madrid. The day, on which the last of them was sent off, was the second of November, 1821.

The reader, as he proceeds, can scarce fail to be more or less curious, to have some conception of the result produced by it, on the part of the two distinguished statesmen principally concerned:—Comte Toreno, at whose instance, the observations were made and communicated; and Mr Calatrava, Chairman of the Legislation Committee of Cortes, composed of five members, by whose names the work which is the subject of them stands authenticated.

To this curiosity, such imperfect satisfaction, as is in my power, is here afforded. Its principal aliment will be—a second Letter, of the 26th September, 1821, from the same illustrious hand. The reader will naturally enough expect to find it in this place. But as, at that time, the three first of these Letters of mine were on Count Toreno’s table, any conception, which could be conveyed by that Letter of his to a person not acquainted with the contents of those same Letters to which his bears reference, would be altogether inadequate. For this reason,—this, together with all such further explanations as can be given, are referred to the conclusion of these Letters, and will be found under the head of Supplemental Advertisement. Suffice it in this place to mention, that, by that second letter of the Count’s, his consent to that intention of publication, which the reader will find declared by me, is signified.

Note.—In Letter I. (p. 491,) the reader will see certain positions, mentioned as designed to accompany the offer of an all-comprehensive and rationalized Code; and to serve as heads to so many sections in that address. In the list of these positions, though substantially they remain the same, considerable changes in respect of order and expression have presented themselves: and the tenor of the offer is intended to undergo a correspondent change. In the four first, no change is proposed to be made. But to the seven succeeding ones, the eight which here follow are now intended to be substituted.

5. 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 admitted be 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.

6. The greatest happiness of the greatest number requires—that, for the drawing of any such draught, no reward at the public expense be given.

7. 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.

8. The greatest happiness of the greatest number requires—that, such original draught being the work of a single hand, it be known to be so.

9. The greatest happiness of the greatest number requires—that, such original draught, being the work of a single hand, it be known whose the hand is.

10. 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.

11. 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.

12. On the part of a ruler, willingness or unwillingness to see established an all-comprehensive Code, with its rationale as above, is among the most conclusive tests of appropriate aptitude, in relation to such his situation.

LETTER I.

Queen’s Square Place,Westminster,Sept. 11, 1821.

Sir,—

On the 9th last, I received, in due course, through the House of our friend, the letter with which you have been pleased to honour me. On the 22d last, and not before, I received the work which it announced (“Proyecto de Codigo Penal,”) and to which it bears reference. So far as regards myself, that letter of yours will assuredly not be lost: nor yet to the world at large, so far as there is any truth in the supposition, that any beneficial effect in any shape will be produced by any thing that comes from my pen: for, among the testimonials which I may ere long have occasion to produce, it will shine with its due lustre.

When, in speaking of the effects producible by the treasures you have put in my hands, I have said thus much, I have, I fear, said little less than all which there is to be said; for, by any particular remarks which I could find occasion to make on the work in question, I see, I must confess, but very little probability of my being able to render any service worth your notice. No such remarks could present any chance of being of use, otherwise than by means of a reference made by them, expressly or tacitly, to some standard of right and wrong, considered as already established. Of no attempt towards the establishment of any such standard do I know, other than that which is contained in my own works: which standard I am about to endeavour at the completion of, and, should life last me a year or two longer, not altogether without hope of success. This standard I term the Rationale of the Code: and, in the Code which I am about to begin to draw up, the matter of it will be interwoven throughout with that of the several proposed arrangements, which it is employed to explain, justify, and show the grounds of. Here then, apt or unapt, will be a standard, by which, if it be thought worth while, the work in question may in any part be judged of: but, without it, were I to take the proposed Code in hand, with a view to the making remarks on particular parts of it, I should never know where or how either to begin or end.

By the whole tenor of your letter, as well as the declared and only possible object of it, I am not only authorized but compelled to believe, that the more extensive any communication made by me on the subject may be, the more acceptable it will be to you; for, the subject to which you are pleased to invite my attention is no less than the whole of the projected Penal Code, not merely this or that one of the particular arrangements contained in it. Now, then as to this matter, the case stands thus—Exactly what you express your wishes to see me do, it is not in my power to do, with any the least prospect of good effect: in process of time, however, I am not only willing and desirous, but actually endeavouring to do that and a great deal more. In the following positions, which form the heads or titles of so many sections, the sort of work I am alluding to is expressed more correctly as well as concisely than I could in any other way express it.

Positions, designed to accompany the offer of an all-comprehensive and rationalized Code. They form the titles of so many sections, the matter of which gives the proofs.

Section 1. In every political state, the greatest happiness of the greatest number requires, that it be provided with an all-comprehensive body of law.

2. The greatest happiness of the greatest number requires, that such body of law be throughout accompanied by its rationale: i. e. with an indication of the reasons on which the several arrangements contained in it are grounded, and by which they are elucidated and justified.

3. The greatest happiness of the greatest number requires, that these reasons be such throughout as shall show the conduciveness of those several arrangements to the all-comprehensive and only defensible end thus expressed.

4. The greatest happiness of the greatest number requires, that in this rationale, the several reasons or sets of reasons be contiguously attached, to the several arrangements to which they respectively apply.

* 5. The greatest happiness of the greatest number requires, that, of this all-comprehensive body of law, with its rationale, the whole ground-work or first draught be, if possible, the work of a single hand.

6. The greatest happiness of the greatest number requires, that, being the work of a single hand, the work in question be known to be so.

7. The greatest happiness of the greatest number requires, that the work in question being the work of a single hand, and known to be so, it be known whose that hand is.

8. The greatest happiness of the greatest number requires, that, aptitude in other respects not being inferior, the hand, of which the discourse in question is the work, be that of a foreigner, rather than that of a native.

9. The greatest happiness of the greatest number requires, that the work be, if possible, performed in the ordinary sense of the word gratuitously: in such sort, that no determinate factitious reward, in any shape, at the hand of any person, shall be either received or expected for it; but that, under that restriction, the number of rival works be the greatest obtainable.

10. On the part of any proposed draughtsman, willingness, or unwillingness to interweave in his draught a rationale, as above, is the most conclusive test, and that an indispensable one, of appropriate aptitude in relation to it.

11. On the part of a ruler, willingness, or unwillingness to see established an all-comprehensive Code with its rationale, as above, is among the most conclusive tests of appropriate aptitude, with reference to such his situation.

Of these positions the design is, to form the ground of an offer to compose the sort of work therein described; viz. the first draught of an all-comprehensive and rationalized Code for whatever nation or nations it may find able and willing to give acceptance to it. This paper is very nearly finished; and, when revised, endeavours will be used to get a copy or copies of it conveyed to Madrid. If in print, as I believe it must be, copies shall be endeavoured to be sent to you, in any number you may be pleased to command, and through any channel or channels you may be pleased to indicate. Copies will likewise be sent to Portugal: where, consistently with the disposition already manifested, acceptance can scarcely be refused. As to any other countries to which it may happen to them to be conveyed, the nature of the case renders any express mention of them unnecessary.

On this occasion, an idea I must beg of you to bear in mind is—that, in whatever I write with a view to Spanish law as above, the greatest happiness of the greatest number, as per articles 4 and 13 of the Constitution, is the object I have in view, and employ my labours, such as they are, in the endeavour to give increase to: and that accordingly, subordinate to that end must necessarily be, whatever I can do in compliance with the wishes of this or that individual, how exalted soever his situation and reputation may be.

Sometime ago, I received from Mr Antonio Arguelles the honour of an invitation similar to this of yours. It had, however a determinate and comparatively limited subject-matter,—the use proper to be made of the institution of a Jury. That gentleman had already received copies of all such of my works as I had been able to collect. He had even, without my knowledge, from the spontaneous and self-sacrificing generosity of a friend of mine, received duplicates of a considerable number of them. Not long after my receipt of his letter, a work of mine on a part of that subject, viz. Special Juries, a work, which, after having been printed, had for ten years been suppressed by the fears of a bookseller, was obtained of that bookseller by another, and published. The Spanish mission took charge of a copy for Mr Arguelles: no letter accompanied it. I have not heard whether it has been received. Taken up out of its proper order, anything that I could find to say on that or any other particular subject, without reference to the tout-ensemble, could not be anything like satisfactory to my own mind: it could not contain anything that I should choose to abide by. I have, however, at different times dictated to an amanuensis a few premature and undigested thoughts, which I may perhaps endeavour to forward to him: but whether in manuscript or print I cannot yet determine: at any rate, sooner or later, they are intended to appear in print.

On the occasion of an intercourse such as this, public virtue and the greatest happiness of the greatest number, stand exposed to a danger of which, Sir, you are perhaps not aware. The functionary consulting has points of his own to compass. For support, he looks out for this or that individual, whose reputation with reference to the subject is more or less established. He applies to him for his opinions—on the whole subject-matter, or on particular parts or points in it. The opinions come. What is the consequence? In so far as they suit his views, he makes use of them: in so far as the name of the author appears needful to give support to the opinions, mention is made of it: in so far as this is not the case, the matter is sunk or appears under another name.

A short supposition will serve to exemplify my conception of the effect. I say—Let the Code pass: but the duration given to it will be, I hope, but temporary. You say—Let the Code pass: even Bentham, after all he has said against it, says so. Supposing this your wish, what should hinder you? who could even blame you? All this you see is but supposition: but it will serve to convey to you my conception of the mischief in question, just as well as if it were fact; as in part indeed you will find it to be.

So much for the functionary consulting. Now as to the individual consulted. Flattered with the notice taken of him, he gives opinions, and to whatever extent suits his purposes. But whether for the sake of the public or no, at any rate for the sake of his own reputation, and the pleasure of seeing exercise given to his power, his wish is, to see effect given to the thoughts he communicates. In respect of these his wishes, he feels himself at the same time in a state of entire dependence on the individual by whom he has been consulted. To render his communications as acceptable as may be to this patron of his, is therefore an object he must not lose sight of. How is that to be done? By rendering his suggestions as favourable as may be to the patron’s supposed wishes, that is, to his supposed particular interests and prepossessions. If no opinion contrary to his own is delivered in this view, at any rate he forbears to give any opinion which in his expectation would give offence. To what good end indeed should he? Nothing that the functionary consulting finds unpleasant to him, can the individual thus consulted entertain any reasonable expectation of seeing employed by him.

Here then is an individual, native or foreigner no matter, whose thoughts on the subject in question, on the supposition of his competence, the statesman in office is desirous of seeing. Is it for his own sake? His desire will be to see no more of them than what may suit his particular purposes, and these he will keep to himself, or make use of in such proportion and manner as may be best adapted to that purpose. Is it for the sake of the public? His desire will be to see the whole without limitation, to see it displayed to the best advantage, and to see the whole public in possession of it.

Proceeding upon the supposition, that my notions on the subject of Legislation have been fortunate enough to obtain a place in your re-regard, all, therefore that I can do consistently with the principles above submitted to you, all that I can do (I mean except the trifle which I shall mention presently, and which I cannot do but in the particular way which I shall also mention, and I have accordingly taken measures for it) is to beg your acceptance of a copy of three pamphlets, in which I have at different times used my endeavours, but as yet for the most part with very little success, to submit to the Spanish nation my ideas on several points of cardinal importance.

They are as follows:

1. The tract on the once proposed chamber of the privileged orders in the Cortes. (This stands first in one of those three pamphlets.) A translation, for which I was indebted to the pen of Mr Mora, was read, if I may believe the newspapers, in the Cortes: it was even fortunate enough to be followed by unequivocal tokens of approbation on the part of that august assembly, if I may believe the information received through various channels, public and private, unconfirmed as it is by any communication from the assembly itself.

2. Observations on Judge Advocate Hermosa’s panegyric on Judicial delays, &c. (It stands second in the above-mentioned pamphlet.) A copy was, with a view to publication, sent to Mr Mora, and in process of time, on presumption of its failure, another copy was sent by our friend to a friend of his at Cadiz. I am not certain whether the receipt of the first copy has ever been acknowledged, and I am certain that no acknowledgment of the receipt of the second copy has been received here.

3. The letter to the Portuguese Nation, chiefly turning on some supposed imperfections in the Spanish Constitutional Code. (It stands 3rd and last in the above-mentioned pamphlet.) This found I know not what translator and publisher at Oporto: it would therefore be rather extraordinary, if some copies of the translation have not long before this found their way to Madrid.

4. The pamphlet on the Liberty of the Press and Public Discussion.* Of this, two copies, the second on the presumption of the failure of the first, were sent to Madrid, addressed also to Mr Mora, and in a letter written by that gentleman, (I believe it was during the time of his being in confinement,) he mentions his having gone about half way in a translation of it.

5. The remaining pamphlet of the three, intituled Observations on the restrictive and prohibitory commercial system, especially with reference to the Decree of the Spanish Cortes of July 1820,† was not, like the above-mentioned ones, sent to Spain, or anywhere else, in manuscript. At a time considerably posterior to the transmission of the latest of the above-mentioned tracts, by the spontaneous care of my friend Mr Bowring, whose name stands on the title page, it was committed in the first instance with additions from him, to the English press: and, if I am not much disappointed, a copy must ere now have reached your hands. (So likewise of the two others.) Of this, you will, ere long, I have reason to think, see a Spanish translation in print, if the Spanish press be open to it.

In addition to the above-mentioned little assemblages of my ideas, covering as they do but a small, howsoever important, portion of the field of penal legislation,—you have all along, through that language of which you are so perfect a master, had, in common with that part of the Spanish public which is acquainted with that language, access to those assemblages of my ideas, by which in a certain way the whole of that field is covered. In detail, it is true, not much: but in principle, in a manner more or less particular, indication of not much less than everything that comes within the field of the officially proposed Penal Code, is there given. If the opinion, expressed in terms so flattering to me, continues to be entertained, what I have just indicated will afford an ample stock of matter, by means of which that opinion may manifest itself in practice.

All this while, my wish is—to pay what obedience is in my power, to commands so honourable to me, and at the same time without exposing either of us to any such imputations as those above-described. For this purpose, should I on the present occasion find any use in submitting to you (principally, I must confess, with a view to my above-mentioned offer) a few scattered thoughts,—an effectual, and the only effectual course that the nature of the case admits of, and which I shall accordingly take, is—the giving to our correspondence whatever publicity it is susceptible of. In the liberty I thus venture to take, you will not, I am confident, see any cause of complaint on your part. On no anterior occasion, either in person or in writing, has any intercourse had place between us. In this letter of yours, no desire of secrecy is expressed: no reason for ascribing to you any such desire on my part do I see in it. On any future occasion, should it happen to me to receive the honour of any further communication from you, accompanied with an intimation, that in the whole or any part of it secrecy is desired, your commands to any such effect shall most punctually be observed.

On running over the remarks, which a few irregular dips into the document in question, made in the double view already mentioned, have already suggested, I find the aggregate quantity too bulky by a great deal to be forced into the compass of the present letter. With as much despatch as weak eyes, the labour of which, in the revision of the work of a copyist, is indispensable, will admit,—I propose, however, to transmit the substance of them in a series of future letters, of the respective contents of which some idea may, in how imperfect soever a manner, be conveyed by the following titles.—[Here follow the titles of the succeeding Letters.]

LETTER II.

On the Course taken by the Legislative Committee, to prevent, otherwise than by Punishment eo nomine, the free Examination of their proposed Penal Code.

Sir!—

I continue. On the subject of the word free, as here applied, a word or two in explanation may have its use: misconception and ungrounded imputation of error may be obviated by it.

When, in speaking of action on the field of government, use is made of the word freedom,—of freedom considered as designative of a possession capable of being infringed or violated—it is pretty generally understood, though perhaps not quite so generally as it were to be wished, that it is not merely by physical force, or fear, or sufferance of evil in this or that shape, but likewise by hope or receipt of good, that the infringement or violation of it is capable of being produced. It is in the case of Election to Office, that this extended acceptation seems to be most distinct and general: but, in regard to formation and manifestation of opinion, be the subject of consideration what it may, it will be found no less proper and needful. As evil is more easily producible, and capable of being carried to a higher pitch of intensity, than good, fear of evil, as applied to the purpose in question, is upon the whole the more efficient instrument of the two. But, though there are some cases in which the smoother instrument cannot be employed at all, and others in which both may be employed together, other cases again are not wanting, in which, while the rougher is altogether inapplicable, the smoother may be employed, and is continually employed, with perfect facility and sure effect. Examples may perhaps offer themselves, Sir, to your view before this letter closes.

I proceed: In my desire to give the utmost extent in my power, to whatever service my labours may be capable of rendering to my fellow-creatures,—neither the nation, nor the government of which you bear so distinguished a part, could fail to be included. To the endeavours, already directed by me to this particular effect, you are not altogether a stranger; nor yet, I believe, to the difficulties which hitherto these same endeavours have found in their way. Of these difficulties of course not the least effective has been, the aversion with which the foreign productions in question have but too unquestionably been regarded—regarded by that same Committee, on whose work you were pleased to call for my observations: and, to speak plainly, yet I hope not improperly, the consequence is—my fixed apprehension, and that a very serious one, that as far as depends upon the gentlemen in question, unless some change should take place in their sentiments, the Spanish mind will be rendered inaccessible to me.

The liberty of the press is a topic, on which (as above) I have already touched, in one of those recent tracts which I hope are, ere this, in your hands. But that little work was completed and printed before this authoritative work of the Spanish Legislation Committee was in mine. So paramount in my eyes is the importance of this liberty to good government—more so perhaps, supposing the separation possible, than even the form of government itself,—so intimate, at the same time, the connexion, between the liberty thus denominated, and whatever chance any work of mine may otherwise have, of becoming productive, in Spain, of any part of the effect aimed at by it,—that, on this occasion, in the course of my endeavours to obtain the access in question, I find myself unavoidably led to make some addition to what I have there said; and, what renders me the less scrupulous about troubling you on the subject, is—that thereby, to how small an extent soever, my remarks, as far as they go, will be so many testimonies of my desire and endeavour to pay obedience to the commands, with which, Sir, you have been pleased to honour me.

The subject-matter in question being a proposed Code of Law, sure, like every other human work, to have its imperfections, the consequence is,—that if any remarks on it come to be received as desired, only in so far as, to an extent more or less considerable, indication is given of its imperfections, can any such remarks be productive of any use. Of any such imperfections, simple indication is of some use, and, by an operation of this sort, some service is rendered. To propose a corresponding alteration, if, and in proportion as, the alteration is well adapted to the purpose, is to render an ulterior and still greater service. On the presumption of its contributing to the melioration of the subject-matter, alteration is in the language of English legislation, adopted into the French, termed amendment. Amendment is either omission, insertion, or, which is a compound of the two, substitution. If this be true, of this cast therefore, and this only,—of this disapprobative cast, and not of the approbative cast,—are the remarks which a workman, really solicitous for the ultimate goodness of his work, will be desirous of receiving, and use his endeavours to receive.

To the truth of the above position, one exception indeed there is: and to preserve the statement from the imputation of error or oversight, though the exception has no place in the present case, I will mention it. If so it be, that the work in question has been made the subject of delusive remarks, or insufficiently-grounded conclusions of the disapprobative cast, then so it is, that by counter remarks of an approbative tendency,—in a word, by remarks of a justificative cast with reference to the work, service may also be rendered.

Such then, and such alone, are the sort of remarks by the communication or receipt of which the greatest happiness of the greatest number can on the present occasion be promoted: receipt, namely, by the two descriptions of persons, to whom in their respective situations it belongs to judge: by the legislators, that, for the benefit of their constituents, they may themselves put the remarks to use: by their constituents, that they may judge how far their representatives have put to use the information furnished to them, and thence how far they have given themselves a title to a renewal of confidence.

Unfortunately, in the eyes of legislators themselves, in the eyes of public trustees in whatever situation, no remarks of any such disapprobative cast is it their interest to see received by their principals: no such remarks would it be altogether agreeable to them to receive themselves, even if (what can scarcely be) they were assured that the remarks so received would not ever find their way to any one of those same principals. As to what regards liberty of discussion, the truth is, (how should it be otherwise?) in every country (so is human nature constituted) what every man desires is, to see all other men in possession of the most perfect liberty of making public all such ideas, by the publication of which the accomplishment of his views and purposes would, in his view of the matter, be promoted; to see no man in possession of any such liberty as that of making public any such ideas, by the publication of which the accomplishment of his views and purposes would, in his view of the matter, be impeded. If it be of human beings that the population of Spain is composed, this account of the matter will be no less applicable to that country than to any other.

In every political state, without exception, it has been the practice of rulers to employ the power attached to their situation, in the endeavour to give effect to this desire in both its branches; in every political state but one, this is still their practice. You will not, I hope, Sir, insist on my speaking of Spain as being that one. In my pamphlet on the liberty of the press and public discussion, I have already pointed it out: the Anglo-American United States.

Correspondent to this desire is, in that same commanding situation, the regard entertained for all such useful truths in general as belong to the field of government. Ever anxious is this regard: but the expedient employed for securing access and acceptance to all such truths, at the hands of other men, is, in case of diversity of opinion, actual or possible, to prevent men from hearing anything about the matter from any other than one side. What that side is may without much difficulty be imagined.

As this one side is of course the side fixed upon by these same tenderly-solicitous and all-commanding functionaries, the partiality thus manifested might be productive of some danger, were it not for that conjunction of infallibility with impeccability, the belief of which it is their equally solicitous and all-comprehensive endeavour to inculcate into the minds of men in general; but of course more particularly into the minds of all those, whose happiness it is to live in subjection to their power.

Twenty years, if I misrecollect not, was the term during which it was at one time the determination of a National Assembly of France, that the Constitutional Code framed by them should continue exempt from all alteration at the hands of any set of men; and in particular of any set of men elected by their Constituents, in the same way as they themselves had been. Not quite so intense perhaps was the persuasion of their being in possession of the same useful pair of attributes, in the breasts of the authors of your already established Constitutional Code. Not greater than eight years was the term appointed for this purpose: this for a finite term; but, at the end of this finite quantity, came another, on the face of which a colour, not altogether unlike that of infinity, is visible. But of this I have spoken in one of those tracts of mine already mentioned.

It cannot, I think, appear questionable to you, Sir, that it is by these same universally prevalent dispositions, that, on the occasion in question, the conduct of the gentlemen of the Committee in question has, with no small degree of exactness, been regulated: regulated, in relation to two kindred objects, to the connexion between which your attention has been above invited, namely, the liberty of the press in general, and the faculty desired by me of submitting to the consideration of the whole body of the representatives of the Spanish nation a series of works, the first of them having the same subject-matter as that of the work laid before them by that same Committee. When brought home to individuals, the idea, which on the present occasion stands associated with it, is not a pleasant one: yet, for clearness, and that the state of the case may be immediately and distinctly seen, I must e’en ascribe to it its proper relative character, and call it a work coming in competition with theirs: a work which, with reference to theirs, is a rival work.

I shall first speak of the policy in question, as it may be seen applying itself to the more extensive and major object, the liberty of the press at large. I shall then take leave to request your more particular attention, for the bearing which it has upon the particular work in question—the proposed rival work: but even from the first, this minor object will unavoidably be ever and anon peeping out, and offering itself to view.

Good, operating in the way of reward, evil, operating in the way of punishment:—these I think have been already mentioned, as the instruments, and the two only instruments, by which, on an occasion such as that in question, for a purpose such as that in question, the minds in question could in any direct way be operated upon.

Applied to the purpose here in question, the matter of reward not only admits but requires some refinement in the mode of applying it. On the present occasion, the object which gave room for such an application was, the obtaining at the hands of the Cortes at large in the first instance, and ultimately and finally at the hands of their constituents, the people at large, acceptance for the proposed work.

Though not in name, nor in the shape of a determinate sum of money already deposited in a bag, the faculty of making application of the matter of reward, in its principal shapes, money, power, and reputation, could not, in the nature of things, fail to be virtually at the disposal of men in the situation in which the gentlemen in question were acting. Between the whole legislative body, of which they were and are such distinguished members; between this body on the one part, and the immediate and avowed givers of all the above-mentioned political good gifts, namely, the Monarch, &c., on the other, I need scarce remind you how intimate the connexion is, which cannot but have place.

Turning to Article 171, to the King, by his sole authority, I see it belongs (No. 16) to nominate and remove (if separar means to remove) the Ministers of State and Despatch, namely, the seven ministers, of whom (Art. 222) the Gobierno is composed; (No. 5) to fill up (if proveer means to fill up) all civil and military employments; (No. 8) to command the army and navy, and to appoint the commanders; (No. 19) to nominate ambassadors, ministers, and consuls; (No. 12) to order the application of the funds, appropriated to each branch of the public administration; (No. 7) to grant honours and distinctions of every class according to law; (No. 13) to pardon delinquents according to law. Now then, Sir, it being so completely in the power of the members of the Cortes to obtain for themselves, and their connexions, an undefined indeed but thence a boundless share in the aggregate mass of all these good things; and this, in the instance of each of them, without so much as a pretence of meritorious service in any individual shape, or of any probable expectation of any such service, must it not, if there be any difference, be matter of increased facility to them, to obtain for other persons, shares, in that same vast mass, by reference made to incontestably existing service? service rendered in such well defined as well as universally conspicuous shapes, as those which stand recorded in so many portions of written discourse, having for their subjects, matters so superior in extent and importance to those which form the ordinary subjects of official service?

The gentlemen in question may perhaps assure you, Sir, (and I should not wonder if they did,) that this notion of their having any such good things at command is my mistake: for that in articles 129, 130, the Constitution has, by express prohibition, taken care to preserve their virtue against temptation in every such shape; and that in article 202 of their own proposed Penal Code, by forfeiture, infamy and expulsion, it has been their care that that same article in the Constitutional Code shall not be a dead letter. A prohibition? Excuse me, Sir, speaking with respect, the mistake is not mine, but theirs. Not prohibition, but permission is the effect (and can I avoid adding the object?) of these same self-denying ordinances:—of the severe virtue, thus displayed by the constitution-makers of the first Cortes, and of the rigour with which the gentlemen in question have proposed to enforce it. True it is, that by article 129 no deputy, while such, can receive for himself any employment of the number of those which are conferred by the king! Alas! no: if he is unfortunate enough not to see any person whom he can trust to receive it for him, he must e’en wait for it till the unexpired part of the term of his deputyship, namely till from two days to not much less than two years, has elapsed. By the next article (130) if a pension or a lot of factitious dignity be the object of his wishes, he must even wait one year longer for the fulfilment of them. Moreover, what he is there declared incapable of receiving for himself, (admitir, obtenir,) he is by both articles taken together prohibited, and during the same length of time, from soliciting for another. Solicit? No, to be sure, no such thing ought he ever to do: it would be beneath his dignity. It is for the creatures of the Crown to solicit, and at his hands, the honour which a member of the legislative body would do to them by his acceptance. So much for the process of solicitation: a process, it must be acknowledged, ill suited to a person so exalted: accordingly the trouble and humiliation of it is saved to him, the benefit remains untouched and pure.

The severity thus displayed is indeed most exemplary: but the act in the proscription of which it expends itself, is an event that can never happen. What? can solicitation be necessary to a man, to produce the supposition that money, power, or factitious dignity, for himself or his connexion, are among the things he would like to have? Such, Sir, is the footing on which the prohibition (meaning always the permission) stands in the Constitutional Code. This is the footing on which, in the projected Penal Code, gentlemen found it placed; and on this same footing have they left it.

The faculty, which, under your constitution, the representatives of the people have, of making their bargains with the advisers of the Crown, and thereby, so it be in a number sufficient to compose a majority, employing the whole force of government, in the exercise of depredation, and of oppression in all its other shapes, at the expense of their constituents,—this disastrous faculty comes in here, it must be confessed, but as in a parenthesis. It is, however, that sort of parenthesis, which can scarcely, on any occasion, avoid obtruding itself: for, what is the occasion in which the state of things thus alluded to will not be exercising its irresistible influence? Yes, Sir, it is the necessary result of the existence of any race of irremoveable functionaries whatsoever, with a certain quantity of the objects of general desire at their disposal. The legislator who gives to any such race this power, gives the invitation. The people’s representative, who is content to act as such, without using any endeavours to remove the power, out of the hands so situated and so filled, gives his acceptance; a tacit indeed, but not the less effectual acceptance. Whether, in your circumstances, anything better could have been done, is another question: meantime, be it ever so bad, that which is done, is not the less done.

On the part of the representatives of the people, during the first days of such a constitution, before things are come to a settlement, and persons are come to an understanding, fear or ambition may produce refractoriness. Little by little, however, if the constitution keeps upon its legs, by mutual interest a sort of agreement will be produced, and a sort of partnership concern, always at the expense of the people, established, and carried on: partnership, carried on, and, in some proportion or other, variable according as individual character varies,—division of the common stock of the objects of general desire continually made. Day by day, stock, and power of enlarging it, will receive increase: day by day, the purse of government will be replenished: day by day, the hands of government will be strengthened: strengthened by that course, which, death in hand, death for everything, gentlemen (I see) have already been exerting themselves with so much energy in marking out: an energy, some samples of which it will lie in my way, Sir, to submit to your consideration. Yes, Sir, a state of contest, and ill-humour, such as seems to have place at present, or a state of agreement such as that I have just been giving intimation of, and gentlemen with their code have thus been making preparation for—such, in every nation on whose shoulders an irremoveable chief, clothed with any such body of power as above, or anything approaching to it, is fastened,—such, Sir, is the only alternative.

Well, Sir, my parenthesis is at an end.

But (says somebody) this reward that you speak of, as being held out to annotators—in what shape is it that you see it held out? Sir, in no shape: in no shape, and thereby in all shapes: in all shapes, in which it may be regarded as being, either immediately or by the intervention of other hands, capable of being administered to such as shall use their endeavours to be thought to merit it. From no such quarter as that in question can be invitation given, but reward, of itself, places itself at the back of it. Seeing the invitation, you see the reward: seeing the reward, you see it in all the shapes, that imagination, warmed by hope, can give to it.

Now then as to the invitation itself. In the preface to this proposed Code, (see the preface, p. xii.,) you may see the invitation in question given. Invitation! and to what service? To the service that would be rendered by the composition of an entire work on the subject in question? of any work fashioned throughout by a single hand? Of the advantage attendant on this plan of operation you see, Sir, the exposition I have announced. Rival works indeed? On this, or any other occasion, have gentlemen given encouragement in any shape to rival works? Not they indeed. And why not? The answer is almost too obvious to bear mentioning. Suppose a rival work produced—a work to any amount, howsoever great, more eminently conducive than theirs to the end professed to be aimed at,—suppose this done, the work would not have been theirs, the praise would not have been theirs, the rewards, in whatsoever shape looked for, would not have been theirs,—at any rate would not have all of them been theirs. How then could any such idea as that of a rival work have been an endurable one?

Be this as it may, this was not the service called for. See then what was that service. It was the taking in hand the existing work, the only work which, so far as depended upon them, gentlemen would suffer to come into existence; the taking in hand this work, and the sending in remarks upon it. Remarks,—but of what description? Of that description, which alone could, with reference to the greatest happiness of the greatest number of your fellow-countrymen, Sir, be of any use? remarks, in a word, of the disapprobative cast already mentioned? remarks indicative of imperfection, with or without proposed amendments? Oh, no: such was not the sort of remarks wished for. To remarks of this cast no prohibitive bar, it is true, stands opposed. But to what purpose should any such bar have been opposed? what need of it could the nature of the case admit of? In what shape, by any man of common sense, could reward in any shape be expected from any such remarks? Yes, peradventure, from indication given of this or that little spot, or supposed spot, in the sun, just for the sake of showing what it might be in the power of the observer to discover in other luminaries, if it were made worth his while. Yes: a drop or two of gentle censure, but tempered with becoming diffidence and apology, sweetened by an ample infusion of panegyric, and atoned for by intimations of more unreserved obsequiousness on a more favourable opportunity.

Thus it is that, even supposing it were in the terms of it held out to all, a reward offered for such a service would, in the interpretation put upon it, be unavoidably narrowed: narrowed by the consideration of the situation from whence it came. The situation, as above described, considered,—descriptions of persons, more than one, may be named, from whom, how well soever qualified, the probability could not, in the eyes of the gentlemen in question, be great, that without special invitation any such remarks should come. Take, for an example of one of these classes, natives known to be not well affected to the recently introduced order of things: take for another example, foreigners: to them, unless the design had been to prevent remarks from being sent in by them,—to them should special invitations have been addressed. And why not? why not, even to the most hostile? From a hostile hand, out of a hundred remarks, suppose ninety-nine not only in their form hostile, but in their tendency mischievous: so long as there is one that is beneficial, to reject it for no better reason than that of its coming from a hostile quarter, is it consistent with common sense? because this or that man has laboured to hurt you, is that a reason why you should refuse to convey a benefit to those for whom you are in trust?

So much as to undoubted enemies. But from the foreigner, as such, nothing of hostility could have been apprehended. Knowing the prepossessions he would have to encounter, by what inducement, but the hope of rendering, or that of being thought to have rendered, useful service, could he have been led to impose upon himself the labour, necessary to the making trial, whether it would be permitted to him to render it?

Such, if I do not mistake the matter, being the course which a preferable regard for the greatest happiness of the greatest number of Spanish citizens, would, on the occasion in question, have caused to be taken in relation to foreigners, be pleased now, Sir, to observe the course actually taken.

Advertisements were proposed to be inserted, and doubtless were inserted, in the National Gazette:—advertisements inviting remarks from all hands, inviting them with the most eloquent energy imaginable.

Tercero says (page xx.) Que asimismo, por anuncio en la gaceta, se invite, á todos los literatos y personas instruidas que de este modo quieran concurrir á una empresa tan recomendable y de tanto interes para toda la nacion, espandose que las Cortes apreciarán sobre manera el que lo ejecuten, y dén este testimonio depatriotismoy amor á la causa pública.

At that very time, one hand was not unknown—one hand, from which, with well-grounded assurance, gentlemen might have expected—if not exactly the sort, much more than the sort, of service thus called for. The interval, and more than the interval, allowed for these communications, namely, between some day previous to the 21st of April, 1821, and the 1st of July, 1821, had passed away; and by that hand no intimation to any such effect had been received. Whatever information, now in the middle of September, the individual in question is possessed of, it is to yourself, Sir, that, viz. on the 22d of August, and not before, he became indebted for it. Was it that his name, or his works, were unknown to them? No, assuredly. For in the hearing of the gentlemen in question, one of those works had been read: with others he is not without reason for believing, that of old some of them had been familiar. Others again, and in no small number, had, to their knowledge, been presented to the illustrious body, of which they are such distinguished members; and, if he has not been egregiously misinformed, presented, and, with no very common tokens of approbation, accepted. Is it that the way to the scene of his labours,—is it that the way to his hermitage—was unknowable or unknown to them? Sir, (not to speak of private correspondence through the Spanish mission at the Court of London,) the Finance Minister of the day in his public capacity, the Minister of the Interior of the day in his private capacity, the whole Gobierno of the day, the whole septemvirate of Ministers, had found the way to it.

But no: not merely on that one foreigner,—no, but on all foreigners without exception, was the exclusion meant to be put: witness the word patriotismo; for, the Spanish being the nation in question, whatsoever were the service rendered by any foreign hand, whatsoever were the generous affection manifested by any such service, it is not any such word as patriotism that could be the name for it.

On this word patriotismo a not uninstructive comment is supplied, by the affront put, through the medium of the French papers, on one of the members of the French legislative assembly, and on the present which, doubtless in the presumption of a due regard on the part of the constituted authorities of Spain for the interest of their principles—he had ventured to make to the Cortes: little, of course, could that distinguished representative of the French people think, that for the good he was seeking to do to the Spanish nation, evil in that or any other shape would be the requital. This, of course, has for its ground the supposition of a participation, on the part of the gentlemen in question, in the affront so given: what truth there may be in it can scarcely be unknown to a person in your position, Sir, but is altogether unknown to me: only from what is known to me, namely that which is known to everybody, can any judgment of mine be formed. In that case, what there was of purposed affront out of the question, if any real injury was done, to what party or parties was it done? to the individual, by whom the information, whatever it was, was thus presented? No, but to the people, who see in the gentlemen in question their appointed agents and trustees. Is it not to them, Sir, that the injury, if any, was done?—an injury, the magnitude of which will be in the direct ratio of the relative usefulness of the information thus rejected.

Oh! but, Spanish wisdom! such is the transcendency of Spanish wisdom! by it all the assistance that could be had from the whole world besides, is rendered superfluous and useless! Thus it is that self-regard and self-sufficiency think to hide themselves under a cloak of patriotism. To every man’s vanity a bribe is thus offered in the shape of a compliment; and such a compliment! And for this bribe it is, that he is called upon to give the reins to particular and sinister interest in the breast of these his agents, and to make sacrifice of whatever benefit, to an amount altogether boundless, might have been the result of the assistance it accepted: assistance given to inexperience by experience on a field of action, at once the most important and the most difficult that can be named.

True it is that, in a certain way, in speaking of what they have already done, mention is made by them, but in the most general terms imaginable, of their having taken cognizance of foreign Codes,—an alleged token of zeal, industry, magnanimity, and prudence, for which, by the very mention made of it, praise is claimed. As this was no more than what every eye would look to them for as a duty, no praise was to be had for the avoidance of it: on the contrary, it was only from the alleged performance of the task that anything in the way of praise could be expected.

But information in the field of legislation being the thing to be looked for, for what reason look for it in the works of men clothed in power,—in works, too, in and by which that very power has been exercised—for what reason look for it to such works, not only in preference to, but even to the exclusion of, the works of men not so distinguished? Supposing the greatest happiness of the greatest number of their constituents their end in view, there were two reasons, why to unofficial even the preference should have been given over all such official productions. In the very nature of the situation from which they have come, what is made manifest by all such official productions, is—that they were produced under the irresistible influence of a sinister interest: an interest separate from, and throughout the whole field of legislation, in numerous and important points, diametrically opposite to, that of the greatest number: in a word, a particular interest, to which, throughout the whole extent of such opposition, the universal interest would of course be sacrificed. In regard to the official productions, this was matter of certainty: it could not be otherwise: in regard to the unofficial productions, though, by the unavoidable exposure to the temptations held out by the ambition of having a place among the ruling few, the like result is in each man’s case rendered but too probable, yet there was no such certainty as in the other case.

So much as to what depends upon moral, now as to what depends upon intellectual, aptitude.

From the situation of the unofficial publicist, something in the way of a rationale might be expected: expected, and even with full assurance. Why? Because on this would be his sole dependance for whatever influence he could hope to exercise. To the work of the official publicist in question,—if the writer whose writing, whatsoever might be the purport of it, was to have the force of law,—no such needless encumbrance had ever been seen attached. From that situation, prisons and gibbets, such as the gentlemen in question have prepared such abundant work for, they saw everywhere set up in the place of reasons; and by those irresistible instruments, the proverbially feeble one, as they saw but too plainly, has in all such works been, in the judgment of the workmen at least, rendered needless and superfluous.

Thus it is, that, in a kindred and congenial sinister interest, the sinister interest to the operation of which the gentlemen in question, in their situation, stood so inevitably exposed, found a natural ally: while the indiscriminating prejudice, which power, by whomsoever possessed, and how ill so ever exercised, has everywhere found means to establish in favour of itself and its own operations, gave its sanction to the expectation that, in works of that description, fit models and objects of imitation for their own work would be viewed: works of which, accordingly, in that character, I cannot but hope to find, Sir, that in your opinion but too much use has been made.

The truth is—who can deny it?—one exception alone excepted—as between the rulers of every nation and the rulers of every other, there exists a community of sinister interest, and correspondent sympathy. In particular, in the union of impeccability with infallibility, may be seen a pair of attributes, the belief in which is to all of them alike convenient: and in the assumption of which they accordingly fail not, any of them, to join, with equally plenary and unqualified self-satisfaction and assurance. True it is, that to be inferior in the conjunct scales of moral and intellectual virtue to those whose place is inferior to their own in the conjunct scales of power and opulence, is a condition entailed upon them by the unalterable nature of things: for in the direct and not in the inverse ratio of the need he has of voluntary good offices at the hands of his fellow-creatures, will be the strength of a man’s solicitude and endeavours to stand high in their esteem, and to deserve well at their hands. But, the certificate to the contrary, which, with an unanimity that only within these few years has begun to experience any disturbance—this most convenient and comfortable certificate, which, under the same sinister influence, has been signed by almost all writers, from whose works men have derived that instruction by which mind is formed,—has as yet kept minds for the most part shut against a truth, which, when once received, will be found pregnant with all comprehensive practice.

Upon the sort of service in question, at the hands of foreigners, friendly or unfriendly, with what pretension to consistency, could an exclusion, in any shape, direct or thus indirect, be thus put? I mean always on any such supposition as that the greatest happiness of the greatest number of their constituents was the end in view. For, that they derived whatever service was in their eyes capable of being derived from foreign Codes, is what gentlemen themselves declare, (p. xii.,) and even give themselves credit for. By any such accidental circumstance as that of its having received the sanction of a government in a foreign country, is it in the nature of the case, that the utility of any arrangement with reference to Spain shall have received increase? And in that case, let the draughtsman have been who he may, was he anything more than one out of an indefinite number of his countrymen, from each of whom equally well-grounded expectation of the like service might with equal reason, not to speak of the superior reason above-mentioned, have been entertained? With perfect consistency, however, it must be acknowledged, might that be done which was done, on the supposition that it was their own particular interest, in preference to, and to the exclusion of that all-comprehensive interest that gentlemen had in view. For in the case of the Codes, the service, said in general terms to be profited by, being already rendered, was a service, the rendering of which it was not in their power to prevent coming into existence: and the individual by whom it had been rendered not being known, could not rob them of any part of the looked-for rewards in any shape: whereas in the case of any foreigner by whom an invitation given by them had been accepted, the individual by whom the service had been rendered would have possessed, and naturally speaking have exercised, the faculty of making himself known, and thereby have come in for his due share, whatever it might have been, of the reward: at any rate of the praise.

As to foreignership at large—foreignership in unofficial situations—this condition, which, by the gentlemen in question, has been taken for a cause of effective exclusion, is the very one which, in the paper above referred to, you may have observed me employing in the character of a ground for preference. The reason is—the comparative inaccessibility of that situation to all corruptive influence. After what has been said, I would rather hear you answer, than say myself, whether it was not by the consideration of this very inaccessibility among other circumstances, that the exclusion was determined.

But not only is the door thus shut by them against all information from foreigners and from opponent fellow-citizens, but with still more effective and inexorable rigour is it shut against the greater number of those individuals, how well soever affected, whose happiness it cannot but have been gentlemen’s wish should be understood to have been their end in view. You see already, Sir, that it is of ultramarians that I speak: of such of those whose distance from the seat of legislation precluded them from the possibility of causing any information on the subject to be delivered in from them within the appointed time: that is to say, of all of them in the lump: those only excepted, to whom, in a number scarcely equal to that of Frenchmen, it may have happened during the interval to have had their residence within the Spanish part of the Peninsula. No political bar, it is true, here: nothing more than a physical bar. But the physical bar is as insuperable as those political bars which your legislature (pardon me, Sir) has been in so much haste to set up—I mean those which belong to the prohibitive and restrictive anti-commercial system—are feeble and inefficacious. Your thus excluded fellow-citizens, such of them as still remain to you,—what think you will they say to this? to a proceeding, in which, so far as regards them, even the common exterior forms have not been observed? If Spaniards are lovers of forms—and they have not unsparingly been spoken of as being rather too much so for their own interest—if Spaniards are lovers of forms, how will the matter be taken by these your distant kinsmen? Are they Spaniards? are they non-Spaniards? If Spaniards, what treatment is this that has been given to them? If non-Spaniards, where is your right to legislate over them? where is so much as your pretence?

When speaking of information from foreign hands, it is of themselves (p. xii.) that, of course, they speak, as the persons of all others to adopt whatsoever shall be “most analogous to the political state of the nation.” Ah, Sir! should you ever see the remarks I have ventured to make, and the arrangements I have ventured to propose, with an equal view to the greatest happiness of Peninsular and Ultramarian Spaniards,* you will see perhaps “how much more analogous to the political state” of the greatest number, is the system proposed by one foreigner at least, than the one proposed by these so highly distinguished and selected Spanish citizens. Yes, Sir; with no eye other than an equal eye, could a person not exposed either to sinister influence or to interest-begotten prejudice, have considered the interests and claims of the two so unhappily conflicting parties: and in the unendurableness of all useful and impartial information on that subject, may not the aversion to receive any such service from any such hand, have had one at least of its causes?

Ah, Sir! it is not only from what it may be in men’s power to do, but likewise from what it may be in their inclination to do, that, to have any chance of proving correct, our inferences must be deduced. And whatever be the meaning of the phrase “analogo al estado politico de la nacion—” whatsoever be the meaning of this so conveniently nebulous insinuation—think, Sir, if in all its parts your system of legislation were equally “analogous to the politicalstate” of those Spaniards, who in greater number are inhabitants of Ultramarian Spain, as of those who in lesser numbers are inhabitants of Peninsular Spain, where would be the advantage that could possibly be derived by the lesser number from the dominion claimed by them over the greater? But this is among the parts of the field of thought and action, on which, that their view of them may be the clearer, men in your country, as in every other, are so unhappily confirmed in the habit of shutting their eyes: at any rate of striving, might and main, to keep shut the eyes of their fellow-citizens. O yes! if Ultramarian could as easily be shut as Peninsular eyes! then would all be peace and amity.

Such being the descriptions of persons against whom, with their remarks, the door is shut, a word as to those to whom it is left open. These are natives of the Peninsular Spain at large, and one particular class—the class of lawyers. (See p. xix.) To the invitation given to natives at large, apply those observations which need not be repeated.

As to lawyers, being already comprehended in that general description, to them no special invitation, no second invitation, could naturally have been given, but for some special purpose. What can have been that purpose?

If there be a class of men whose particular interest is in a state of diametrical and immoveable opposition to the best interests and greatest happiness of the greatest number, it is the class of lawyers: it is their interest that, in regard to every possession, for the security of which men look to law, uncertainty should be at the highest degree of the scale at which it can be, consistently with the sufficiency of the fund, from which the professional profit must be drawn: it is their interest that the expense, with its sources and accompaniments, the delays and vexations attached to the purchase of a man’s claim for justice, be as abundant as possible, for the sake of the profit extractible out of the expense.

In this profession, the state of the mind—is it not, to a first view, that of a perfect indifference as between right and wrong, for the defence of either of which, as it may happen, a man is hired? to a nearer view, a predilection in favour of wrong, as being the most dependent and most profitable customer? The assassin so called, is the malefactor, who, for the hire he receives, risks his life; the lawyer is the malefactor, who, for the hire he receives, risks nothing: risks nothing; but, on the contrary, like the conqueror, obtains at the hands of the foolish and corrupted multitude applause and admiration, in the direct ratio of the quantity of human misery he has produced.

If there be a profession, by which a man is prepared for the perpetration of mischief, in a profitable, so it be an unpunishable shape, is it not the profession of the law? If there be a profession by which, by the power of continual practice and continually received remuneration, all regard for truth is completely eradicated—a profession, by which insincerity is by the same means, with correspondent effect, injected and fixed, is it not the profession of the law? If there be a profession, by which, by the same perpetually recurring operation, a man is more effectually prepared than by any other for the letting his faculties out to any person, for any purpose for which reward in apposite shape and adequate quantity is to be got—if there be a profession, by which, for even the most inconsiderable reward, a man is prepared, so it be without personal hazard to himself, at the instance of any one who is able and willing to give him that reward, to render to the greatest amount a sacrifice, of the greatest happiness of the greatest number,—is it not the profession of the law?

These considerations—all which stand on the surface of the case—these considerations, which so stare every man in the face, can they have been a secret to the gentlemen of whom I speak? Was it possible for them to doubt of the object and tendency of any remark, that, consistently with the nature of man, could come from such a source? Was it possible for them to be uninformed of the alliance between the particular and sinister interest of this class of men, and whatever particular and sinister interest their own situation exposed them to the action of?

I shall presently, Sir, have to request your notice, for a sort of auction which, in this preface of theirs, gentlemen have set up:—an auction, at which the lots on sale are composed of recommendations, to be given by them to the favour of the givers of good gifts, and the biddings are to be in expressions of praise bestowed upon this their own work; the first bidding, above which all others are to rise in a sort of indefinite height, having, as you will see, been made by themselves. Supposing the auction to find bidders, can there have been any doubt in gentlemen’s minds, of the spirit with which biddings would come from the class of purchasers thus exclusively distinguished?

Not that the door ought to have been shut against lawyers, any more than against any less determined enemies of good government and good laws; only that it should not have been thrown open to them so much wider than to friends; in a word, than to all the world besides.

On an occasion such as this, in the force of public opinion, any man, even though a lawyer, would, if it were in his own single person that he came forward with his remarks, find some restraint: some restraint on the effusion of particular and sinister interest in one situation seeking to be admitted into partnership with particular and sinister interest in a situation more elevated and effective. Even of this restraint, on looking at the terms of the special invitation thus addressed to lawyers, it seems as if the removal were among their objects. Copies of the proposed Code are ordered by them to be sent—Sent whither? To the three sorts of bodies corporate thus denominated; namely, “Universities, Tribunals, and Colleges of Advocates.” By whom, in such a case, might it most naturally have been expected, that the returns, if any, made to all this magnanimity, would be made? By whom? unless it be by the several bodies, to whom before all other persons, if not to the exclusion of all other persons, it was to be, and I cannot but conclude has been, made known. But by any body in the situation of this Committee,—from any of the bodies so addressed by it, what, consistently with the universal principles of human nature, as evidenced by universal practice, could be expected? what, unless in the accidental case of discord produced by particular interests, could be expected, but one uninterrupted chorus of ecstatic praise?

Will it be said, that by the words employed in the designation of these bodies, nothing more was meant than to make known the channels employed for conveying the great work to the cognizance of individuals, and that it was from the members in their individual capacity, and not from the bodies, (that is to say, not from some of the leading members, released by their union from all responsibility as towards public opinion,) that the remarks were looked for? But had this been the meaning, where could have been the difficulty of finding expression for it? Whether this could have been their meaning, you, Sir, from your situation, perhaps know; by us, at our distance, no conjecture can be made, but from such details respecting lengths of time, compared with lengths of work and space, as gentlemen themselves have been pleased to supply us with.

I say from lengths of time, &c. The twenty-first day of April is the day of the date attached to their preliminary discourse: and thereupon come the authenticating signatures, latest day allowed for the sending in of remarks, the first of July then ensuing: interval, two months and nine days. The document, to which on that day these signatures were affixed—in what state on that same day was it? in the manuscript or in the printed state? If in the manuscript state, then to find the time left for distribution, receipt, and composition and transmission of remarks, will be to be deducted the time employed in the printing of the work: of a work containing in the preliminary discourse 20, in the body of the work 248, 4to pages. In either case, it is from “the secretary of this same committee,” or “through the medium of the Gobierno,” the septemvirate of Ministers, that the packets had to go: to go to the utmost bounds of your extensive country, not very advantageously distinguished for the goodness of its roads, or for the facility of its communications of any kind. Now suppose one of these packets arrived at the residence of the official person to whom it has been addressed: thereupon, whatever further distribution it can have has to wait his leisure, and the determination of the individuals, within whose reach the several copies shall be placed, will depend more or less upon his choice: upon his choice, either singly or in conjunction with the individuals, whoever they may be, in whom he sees his necessarily consultable colleagues.

Now, Sir, within any such space of time, taking it at its maximum, to this display of condescending magnanimity, what was the sort of return—the only sort of return—that could have been looked for? Indication given of particular imperfections, with or without indication of means of remedy, grounded on the separate consideration of the several articles? could any such instructive indication have been of the number of the communications that were expected, or of the communications that could have been made? No, surely. But if not, what others? The answer is sufficiently obvious. In the form of addresses, laudatory orations, conceived in the most general terms, and vieing with one another in intensity of admiration as above: of time for these, whensoever inclination had place—for these in any number, there could be no want: for no remarks of the other cast, in a condition fit to make their appearance—for no remarks of any such unwelcome cast, even supposing inclination ever so alert, could there have been anything approaching to a sufficiency of time.

Thus it is that, independently of all those other securities, under the ingenuity thus displayed, the mere circumstance of time served to secure to whatever communications could be received, that laudatory character which, if any, it had been determined they should possess.

Praise was the one thing needful: praise was a thing gentlemen were determined to have. This I have been forced to say over and over again. But what I have not yet said, or, if I have, not yet shown, is—that for fear of accidents, some they were determined to have that should be of their own making. I have spoken of the auction, of the lots to be sold at it, and of the prices in expectation of which the lots were put up to sale: I have spoken of their being themselves the first bidders, and of their bidding as being the price at which each lot was put up. Be pleased now, Sir, to look at the terms of it.

“It will be worthy of being reckoned (says p. xix.) among the most celebrated Codes of cultivated Europe: it will merit the esteem of wise nations; it will merit the gratitude of the Spanish nation: it will merit the veneration of the present age; it will perpetuate the memory of the legislature of 1821 in all future generations.” Now, what, Sir, is the work thus spoken of? What is it but that which has been the fruit of the united wisdom of the gentlemen themselves, who are pleased thus to speak of it?

True it is, that before it has been raised to this pitch in the scale of excellence, not to speak of the remarks sent in, in no time, as above, it will have had the benefit of such remarks and consequent amendments as shall have been made by the legislature at large: but the remarks and amendments made on it by the legislature, what will they have had for their groundwork? This same work of the gentlemen in question: this, and nothing else. Now what at the utmost can be the amount of any alterations, which, after anything like an adequate discussion, can by possibility be made within the quantity of employable time, so anxiously and effectually narrowed as it has been by the Constitutional Code? Time sufficient for adopting each several article by acclamation:—yes; even on the supposition that before the acclamation each article is not only to be read, but read well: for this operation the quantity of time left applicable to the business may be sufficient. But suppose anything that could be called a discussion to have place, long before the first title could have received any tolerably well-considered amendments, the whole quantity of time applicable to the business will have been consumed.

All this while, self-abasement there is—and that in no small quantity as well as intensity: magnification of the burthen, and of their inability to bear up under it: great reliance professed in the assistance looked for from without; looked for from the zeal, not only of colleagues and fellow-citizens, but of foreigners. Speaking of the heavy charge (la pesada carga) which they felt pressing on their shoulders, and of the debility of those same shoulders, (“que gravitaba sobre sus debiles hombros,”) they speak on the other hand of the alleviation which they promise themselves from the assistance of well-informed men of divers descriptions, concluding with estrangeros. But all this is in p. xi.: and page xix. is the page in which, this self-confidence having in the interval risen to the degree just mentioned, the desire of receiving assistance from strangers gives way to the anxiety for the exclusion of it.

The self-diffidence has the air of an introduction, employed to prepare the way for the self-confidence. The self-diffidence looks as if drawn from some treatise of rhetoric; the self-confidence as if drawn from some other source.

Such as you have been seeing, Sir, is gentlemen’s persuasion of their own appropriate aptitude; thus transcendant and consummate is it in their own eyes! But, not to speak of their colleagues in the legislature, their constituents,—if eyes they have, what will it be in the eyes of their constituents? For the support of any such claim, not a particle of ground, as far as I can find, have they, any of them, in any shape, at any time, made anywhere. Right of succession? can that be their ground? Impossible: for you will see how energetically they have negatived it. If that were their ground,—at the very lowest point, if they themselves are to be believed, would their station be in the scale of aptitude. If to their judgment, if to their pointedly declared judgment, any confidence is due, down to the moment at which this function devolved upon them, never can there have been anything more consummate than the inaptitude, by which the productions of all who have gone before them in the same track have been characterized. Their constituents—what will they say to them? The assent of their constituents—will that be given to this judgment of condemnation, to a condemnation so severe, so universal, and at the same time so pregnant with practical inference? Well, suppose the assent given. The gentlemen themselves—what will they be the better for it? From this rule, sweeping as it is, the confidence with which they look for an exception in their own favour is indeed entire. But this confidence—on what ground does it stand? None, as I have already said;—none whatever have they made for it. Of their aptitude, of the existence of which in their imagination everybody stands persuaded—persuaded, as if it had been made manifest by the strongest evidence, what evidence have they to show? Have they so much as their own evidence? Not they indeed: not so much as their own evidence: unless an event altogether supernatural and miraculous be to be believed: believed upon the ground of this same evidence. True it is, that while page xix. was writing, their persuasion of their own aptitude was such as is there described. But, at the time when page xii. was writing,—what was it? This too you have seen: so that, if they are to be believed, the change from a state of self-lamenting debility to a state of exulting vigour, took place within the interval occupied by the composition of these seven pages.

It is from Spaniards, be pleased to observe,—from these same Spaniards, that, with a declared exception in favour of themselves, and one other which the rules of politeness could not fail to add in favour of the company present, and a presumable one in favour of the author of the Constitutional Code, this assertion comes, of a universal state of inaptitude, with reference to the work of legislation on the part of all Spaniards.

So much for these Spaniards. Now, as to this same point, what would naturally be the judgment of an impartial foreigner? As, down to this moment, according to their own conviction, men born and bred under Spanish government have been in so eminent a degree unskilful, the probability is, (he would say,) that even now, at this moment, they are not so consummately skilful, that assistance from abroad should be peremptorily rejected: rejected, under any such notion as that of its not affording so much as a chance of being of any use.

On their own assertion, as you have seen, rests the notion of their own aptitude: upon their own assertion, and that a self-contradicted one: for to no other proof have they so much as made reference. Of the inaptitude of their predecessors, their notion stands on somewhat better ground. In proof of this, they have given statements and references, of which I cannot resist the temptation, Sir, of presenting you with some specimens. Scarcely can language furnish expressions more energetically declarative of consummate worthlessness. The essence of the national legislative wisdom they found concentrated, they inform you, in a compilation—the work of the then impeccable and infallible, but now extinct Council of Castile: a mass composed (say they, p. xi.) of collections made with a view to the amendment of the law. Disgust is the sensation declared to have been produced by its contents: a parcel of rough drafts, loose remarks, incoherent and undigested pages: dissertations half religious, half political: extracts from various penal laws, with notes exhibiting coincidences and repugnances. Apparent destination of the whole, furnishing patchwork for insertion into a new edition of the statutes at large. (Recopilacion.) Plan, the old plan: “salutary innovation, none: convenient reform, none: sole object, preserving and giving support to the antiquated and vitious system: basis, the same: punishments, the same: with a vast heap of laws and titles unsuited to the present day.”

Under the notion of reform, the best thing that had been thus proposed to be done was—the giving a new edition of the old system in the old spirit, and upon the old plan: of which old system they had already, in p. vi., spoken in terms in which every vitious quality a system of law is susceptible of, is spoken of as exemplified by it in the highest degree conceivable: incomprehensibility in the style, absurdity and iniquity in the regulations, atrocity in the punishments employed for giving effect to them; and so forth.

At the end of what is said of the above plan for the amendment of those same laws, (p. xii.)—that the spirit of them may be anticipated from the nature of the subjects, examples of those subjects are brought to view.

“Holy Trinity—Catholic faith—Jews, and their expulsion from the kingdom—Moors and Moriscos—heretics and persons excommunicated—diviners, sorcerers, and soothsayers—oaths and perjuries—sacrilege—money-lending and usury—eccentricities of the sexual appetites in respect of species and sex: these and others which” (they conclude with saying) “ought not to have any place or direct insertion in any good criminal Code.”

Thereupon, Sir, comes a natural question:—what answer shall I give to it? The depravity, so unreservedly ascribed to the whole body of the law—to the whole of the law then and even still in existence—by what causes was it produced? Was it not by sinister interest? by interest-begotten prejudice? by authority-begotten prejudice? by inbred intellectual weakness, the fruit of bad education, in a country into which no good book, unless by stealth, could ever penetrate? of a mind-debilitating and mind-perverting system of education, and those habits of thinking and acting, that could not but have kept flowing from it throughout life? All these causes of inaptitude—is it in the nature of man, that, at any point of time whatever, the influence should all on the sudden cease? The explosion, by which some of the instruments of tyranny were driven from about the throne, and some of its victims cast into their places—this or any other political convulsion, is it in the nature of it to change with equal rapidity the whole texture of men’s minds?

Gentlemen speak of new lights, (p. vii. ix. xix.:) even the King’s Proclamation to the Ultramarians (April 27, 1820) speaks of new lights. It was by these new lights (or if not, by what else?) that this self-confidence, of which, Sir, you have been seeing such abundant testimony, was inspired. But, these new lights—from what sources were they derived? From Spanish sources? No: even by gentlemen themselves this supposition, you have seen, is energetically negatived. From what sources then? From what but foreign ones? Yet, that from these sources—from the only sources, from which the lights which form their sole dependance have ever come—any fresh lights should come, this is what they cannot endure the thoughts of.

Instead of eulogy, suppose melioration the thing desired,—what, in advertising for remarks, would have been the course taken? Would it have been any such close course? No, Sir: it would have been a course as open as the nature of the case could possibly have admitted. “Send in your remarks,” (it would have been said,) “send in your remarks, whoever you are, they shall be printed: not only to our eyes shall they be presented, but to the eyes of all our constituents; of all our and your fellow-citizens; in a word, of all mankind; of all those beings, on whose condition, in respect of happiness, your remarks will exercise their influence: exercise it? Yes:—in proportion to the value possessed by them, in the first place in the eyes of the selected and official judges, in the next place in the eyes of all men sitting as judges in the tribunal of public opinion. Send in, each of you his work, without name or other token, by which, antecedently to the time for its being put to use, the judgment passed upon it might be perverted: perverted by good or ill-will as towards the person of the workman. Send it in without any such public notification: and be assured, that if, for drawing aside the impartiality-securing veil, any private intimation be conveyed,—the avenging eye of the public will be on him by whom the corruptive information is conveyed, and on him, whoever he be, on whom it is productive of the effect it aims at.”

P. S. I should be curious, Sir, to know, if the thing were possible, how many and what the communications are, that, in pursuance of the invitation to send in remarks on their draught, have been received by the legislative committee: received, antecedently to the appointed day, July the first, or at any time since: what received, and from what public bodies, and what individuals respectively sent in, and from what places: and, of those received, what have been printed and published for the information of constituents, beginning with the people of Madrid. It might to any one be matter of curiosity, to say no more, to see what sort of agreement there has been, between the facts and the inductions above hazarded in relation to them: hazarded by a man, whose eyes or ears no positive information whatever had ever reached.

LETTER III.

Sir!—

The efficient power of the matter of reward is great, but its applicability is limited: it is limited by the limits which the nature of things has set to the quantity of the matter of good to which this destination can be given, and by the number of the persons to whom it is possible to flatter themselves with the hope of a share in it. In the present instance, their number falls short—very short—of the whole number, of those on whose part, for the attainment of the end, acquiescence at least has been regarded as necessary. To produce acquiescence at the hands of the vast majority, no instrument of less force and applicability than punishment was looked upon as sufficient.

Follow a few samples of the use made of it.

Of the acts marked out for punishment, one is—that which consists in the endeavour to make an alteration of any kind in the political constitution of the Spanish Monarchy. For this offence, the punishment appointed is death. The article, by which the anxiety to secure obsequiousness is thus expressed, is the very first in the whole Code: and, as in this, as in any other work, the commencement is that part to which the attention of the workman will naturally have been most closely applied, it may, at least without intentional injustice, be taken for a sort of sample of the whole. Whatsoever may have been the design,—here already, so far as regards effect and tendency, two intimately connected objects may be stated as being in a certain way provided for: namely, the securing order in the legitimate style, and the keeping at a distance two troublesome sets of men—impartial critics, and impertinent and presumptuous competitors.

Indication of alleged imperfections, indication of arrangements calculated to effect the removal of those same imperfections, indications of other Codes in and by which the removal or exclusion of those same imperfections has been effected—of indications of any one of these three sorts separately, at any rate of any two or of all three conjunctly, if the design be not to produce alteration in the system of which they are the subject, I know not what design they can have.

In the midst of all the care thus taken of the liberty of the press, an apprehension appears to have presented itself: an apprehension, of a certain overweening scrupulosity, to say no worse, on the part of this or that judge, the effect of which might be—to exempt the “traitor” (for such is the name given to the offender) from the lot so justly merited. For the tranquillizing, as it should seem, any such apprehension, (for in whatever I say in regard to any of the designs that seem to be indicated in and by this Code, I speak with unfeigned diffidence,) for greater security at any rate,—by article 213, provision is made of a more lenient visitation: six years’ seclusion in a fortress. Nothing more than this, except that the situation of the fortress may be, and is to be, in one of the islands: the quantum of the suffering being accordingly susceptible of such undescribed and undescribable additions, as the case may be found to require, without any of those unsuitable alleviations, which the eye of so troublesome a public as the public of Madrid, might be disposed to look out for, if access were possible to it.

True it is that, to the sort of offence which seems to have been in view in both cases, the wording given in this latter case is (by article 213) not exactly the same as that given in the former case (by article 191.) In that former case, a characteristic word is alterar, to alter: in this latter case, guardarse, to be kept: but that, by this change in the language, any change is meant to be made in the idea conveyed, is more than I can see.

Not that, in this case any more than in the other, I can take upon me to say, but that, in the view taken of the matter by this or that person, in the situation of legislator, or in the situation of judge, a milder might eventually, in preference to the more efficient interpretation, be the proper one. But here comes in the misfortune, if not the policy: two periods are here in question: the period anterior, and the period posterior, to the sanctionment of the law. To the anterior period lest legislator, or constituents should be more or less alarmed, the milder interpretation is, without doubt or difficulty, the best suited. Comes the posterior period, and then, according as the decision falls to the lot of this or that judge, and according as the side, in support of which the obnoxious act has been done, is the wrong side or the right side, the interpretation put upon the words is the milder of the two, or the more efficient.

When confronted with some of the other articles, by which tongues and pens are endeavoured to be tied, this article 213, with the word guardarse in it, throws me into no small perplexity. By this article, every Spaniard, who, by word of mouth or in writing, shall endeavour to produce any such persuasion (tratore de persuadir) as that, in Spain or in any of her provinces, the political Constitution of the monarchy, in the whole or in part, ought not to be kept (guardarse,) is to be chastised (castigado) as a subversor of that same Constitution in the first degree, (whatever be meant by the first degree, for the explanation of which no reference do I see,) and suffer imprisonment for six years: which, if it be in the Peninsula that he has been condemned, is to be in some fortress in one of the adjacent islands, as above: not to speak of et cœteras. But, by article 191 as above, if a man do but conspire to subvert this same Constitution, (trastornar,) he is to suffer death: much more, surely, by parity of reason, must he, on the assumption made by that same article, (213,) namely, that he has actually been a subversor of it, which being admitted, he, whether the fact be so or not, is to be deemed and taken to have subverted it. Under the two articles taken together, what then is to be done with him? Under article 213, he is in the first place to be put to death,—put to death in the first degree, or put to death as if he had been (though he has not been) a subvertor of the Constitution in the first degree: whatever is meant by the first degree, which is more than I can take upon me to divine: and, when the breath is out of his body, then it is that he is to be shut up in the fortress, and so forth, as above.

Now, Sir, suppose prosecution under these two articles, one or both of them. Figure to yourself advocates pleading, and think what a widow’s cruise of learned arguments! learned arguments upon the proper meaning of the two momentous words trastornar and subvertir, whence subversor: learned arguments, for the purpose of settling whether the two modes of action, thus differently designated, are different or the same.

But two articles after that, comes another, (Art. 215,) according to which every Spaniard, who, by word of mouth or by writing, propagates any other maxim or doctrine, which has a direct tendency to destroy or subvert (destruir ó trastornar) that same Constitution, is to suffer imprisonment: imprisonment, from two to six years, besides loss of employment, and so forth; but nothing is here said of fortresses or adjacent isles. As to other, it means (as it should seem, though this is not said) other than what is specified in the last preceding article (214.) More learning, poured forth upon the question; wherein consists the difference,—the difference between the endeavouring to persuade men that the Constitution oughtnot to be kept, and the propagating a maxim or doctrine tending to destroy or subvert that same Constitution? Supposing a difference, the latter of the two offences seems, to a plain understanding, to have in it the larger dose of ill-will, and, if there be any mischief in the case, of mischief. For my own part, I have had the misfortune to conceive, and the temerity to declare in print, an opinion that in this same Constitution there is this and that article, that had better not be kept than kept: but, notwithstanding all the imperfections I think I see in this same Constitution, I set much too high a value on it to use my endeavours, or so much as to harbour a wish, to see any such fate as can be aptly expressed by the words destruction or subversion, befall any part that to me seems good in it.

Not more than three articles after this, comes article 218, which says, “Whatever person,” (and this is not confined to Spaniards) “whatever person, by word of mouth or by writing, shall provoke any one to the non-observance of the Constitution, with satires or invectives,” shall suffer—what? death, and then imprisonment, as above? Oh, no! in the course of half a page, all such severity seems already to have been forgotten. What he is to do now, is to pay a fine of from ten to fifty dollars (duros,) or else suffer arrest (arresto) for from fifteen days to four months; and, if he be a public functionary, the punishment is in both cases to be doubled.

To so plain a man as myself, the endeavouring to provoke men to a purposed non-observance (inobservancia) of the Constitution—under which words I should suppose that any open and avowed disobedience to this or that one of its ordinances would be regarded as comprehended,—seems to have rather more of mischief in it than the using a discourse, the object of which were simply to produce an opinion, that it ought not to be kept; under which words, it would seem to me that any discourse might be comprehended, having for its object to show that it would be for the advantage of the nation, that by the competent authority, this or that article in it should be repealed or altered. If so, I do not see, how, in any view commonly taken of the matter,—how it is, that by the employing on this occasion satires or invectives, (whatever be meant by satires or invectives, words loose enough to call forth learning in abundance,) how it is, that by the employing of poisoned weapons in either of these shapes, the malignity or the mischievousness of the offence, if it has any should be diminished.

It seems to be by some principle, though from a principle which I am altogether unable to reach so much as by conjecture, that the comparative encouragement thus given to satires and invectives, was prescribed. In Article 327, compared with that which stands next after it, I find another proof of the influence of this same principle, whatever it be. By Article 327, the offence described is that of him, who “by word of mouth shall excite or provoke directly (directamente) to disobedience to the Government (Gobierno) or to any public authority.” This is one branch of the offence: then comes a second, “or to resist or impede the execution of any law, or other act, of those” (acto de los: quere, whether those acts or those persons?) “expressed (espresados) in Article 325.” So much for the description of the offence. Thereupon comes the description of the punishment: “reclusion or prison (prision,) for from six to eighteen months, if the excitation or provocation has not taken effect: in the opposite case, (so I understand pero en este caso,) from one year to four years.”

Thus much for Article 327, in which nothing is said of satires or invectives. Then comes Article 328. Here the description of the offence agrees, as to part of it, with the description given, in the last preceding article, of the first branch of the offence created by it. He who “by word of mouth or by writing” (as before) “shall provoke” (the word excite is now omitted) “with satires or invectives to disobedience to any law, or to the Gobierno, or other public authority.” So much for the offence. Now for the punishment. Instead of reclusion or prision for from six to eighteen months, arrest for from fifteen days to two months at the utmost, with an alternative of a mulct of 180 dollars, with loss of employment, &c., if the offender be a public functionary, &c.; the wording and pointing being so ambiguous, as to leave it at the option of the judge to let off the offender with the fine, in case of his not being a public functionary, &c.

Thus then you see, Sir, if, in the endeavours used by him to provoke men to the disobedience in question, a man abstains from all satires and invectives, he may suffer as much as eighteen months of reclusion or imprisonment, nor can he suffer less than six months; but if, on this same occasion, he indulges himself in satires and invectives, in this case his arrest cannot last longer than two months, and may be limited to fifteen days.

Note, that as to what is meant by the laws or other acts, said as above in Article 327, to be “expressed in Article 325,” you are sent for it of course to Art. 325: when you have got there, you are sent to Article 290; and when you are at 290, you find yourself in a labyrinth, the clue to which I should scarce hope to be able to find, if my life depended on it; but at the end of it what I do find is four years of reclusion. Next to this article, and for the declared purpose of an explanation of it, comes Article 291: for the meaning of which you are further sent to four articles more, all in the lump, namely, 326, 341, 353, and 356: when you are at 353, you are sent to 346, and to 344; when you are at 346, you are sent to the whole cluster of articles contained in Title iii. of Part ii.; and to another cluster, contained in Chapter iii. of Title vi. of that same Part ii.

In the entanglement, produced by the indirect mode of designation above exemplified, may be seen a sort of instrument, of which, considered as applied to the field of legislation, the gentlemen in question, so far as recollection serves me, are the inventors. In some instances, the reference is in the simple form: from one article you are simply sent on to another: and here you suffer nothing worse than useless labour. But, in other instances, and these most unhappily numerous, words significative of relation are employed,—equally (igualmente), in the same manner. Whatsoever may be the decoration added by this contrivance, not small is the price paid for it: paid for it by the subject citizen, in the shape of serious inconvenience suffered. By it, is thus imposed upon the reader, the task of comparing the article which is clearly to the purpose, with another which may be to the purpose, or not, as it may happen; and in either case the task of establishing the fact of the identity of signification, or, in case of difference, the nature and extent of the difference: neither in the memory nor in the conception, can an article be lodged, without being coupled with another, or others, which do not belong to it. Thus, a burthen, which, taken at its minimum, is but too heavy, receives from this artificial contrivance an indefinite increase: and, as the result may, in each instance, be a degree of perplexity and uncertainty, to which no limits can be assigned, as little can any limits short of death be assigned to the mischief, to which, in case of an interpretation deemed erroneous by the judge, the citizen may be subjected: for, such may be the mischief, in a case in which death is the appointed punishment; which case, as above, is that provided for by Art. 191—the very first of the offence-creating articles in the Code. The citizen, when thus perplexed, if rich enough to take the chance for saving himself, repairs to a lawyer: which lawyer perhaps finds himself equally perplexed. But, for the suffering of the perplexed lawyer, compensation to his own satisfaction, is made: while by his unhappy client, in addition to his perplexity, comes, instead of compensation, the burthen of affording the compensation to the professional man, by whom the perplexity has or has not been decreased, and by whom security against the mischief has or has not been afforded. (Asimismo) as well (tambien) and so forth: and here, to the simple labour are added, not unfrequently, perplexity and uncertainty to an indefinite degree.

Such is the entanglement that has place, when there are but two articles thus unnecessarily and incommodiously connected; when, with the article with which you have to do, no more than one other with which you have nothing to do, is linked. What then must be the embarrassment, when, from the only one with which you have anything to do, you are sent on pain of not knowing what it means, to a second, with which you have nothing to do; from the second to a third; from the third to a cluster of others; from each of them perhaps to another or others? But, such is the frequency with which this mode of designation occurs in this same Code, that scarcely have I opened a page without finding instances of the employment given to it. Quite sufficient (one should have thought) are the difficulties inseparable from the subject, without its being clogged by any such useless and factitious instruments of uncertainty and embarrassment.

Having no example in anything that was ever written on the subject, nor any particular use that I can discover, this mode of expression presents itself to me as having something of a colloquial cast: as such, it operates in confirmation of the suspicion before intimated, that in the course of gentlemen’s studies, the fascinating art of rhetoric has obtained rather too much of their attention, at the expense of the repulsive art of logic.

Thus much, by the by, for a specimen of the use made of references. But, of the proposed Code there are certain parts, which, it should seem, gentlemen make sure of finding lodged in the memory of every individual, who stands exposed to the temptation of committing an offence in any shape. Of these parts, one is—that in which an enumeration is made of the several modes of punishment. Being able to read, and having time sufficient to dip into some parts of this composition, though not to read so much as perhaps a twentieth part of it, my good fortune had conducted me to page 10, in which that enumeration is commenced. I was thus preserved from an error into which I might have fallen otherwise. Seeing how far this composition was from any steady observance of that indispensably useful instrument of certainty in a law, ideis eisdem verba eadem, to the same ideas the same words, the words reclusion, prision, arresto, might have passed upon me, as meant to be designative of the same punishment. Turning, however, to Art. 29, I found that reclusion is one sort of punishment, the scene of it being a house of hard labour; prision, another; the scene of it a fortress: both of them ranged under the head of corporal punishments. Looking for arresto, I found it, to my no small surprise, at a distance from the other two, and under the head of punishments not corporal: and in explanation of this word, it was that I found, but in words of the loosest texture, intimation given of some further punishments, which were to be considered as attached to all punishments ranged under the head of corporal punishments. For the conveying of this intimation, the words civil effects are the words employed; and for showing what is to be understood by these civil effects, no reference do I see.

In my Code, every word, the signification of which is not beyond all danger of dispute settled by universal usage, receives a definition: and all words so defined, stand distinguished by one and the same particular type: and thus, by means of an alphabetical index, all ambiguity and obscurity may be cleared up in the shortest space of time. In the Code is thus contained a Law Dictionary; that dictionary a complete one, and having the same authority as the text, with every word of which it has been confronted.

Sir, what you have seen hitherto, is no more than a part of what I was led to by Art. 191, being the very first of all the articles in which any description is given of particular offences. When I have done with this same proposed Code, scarcely perhaps shall I have read one-twentieth part of it. To what end should I? No use would there be in my reading it, any further than as I write about it: and if my determination was to go through with it, and say all that it occurred to me to say of it, my life would assuredly be at an end, before my comments were at an end. Sir, you have already had before you that one specimen: before I have done, you may perhaps have before you a few others. What if the whole work should be found to be of a piece with these specimens of it?

“Oh! but this is not what we meant: we meant so and so.” This is what I figure to myself gentlemen saying, should it happen to you, Sir, to present to their view this or that passage, in which it might happen to them to suspect that a change might be made, not altogether to its disadvantage. “Gentlemen, only from what the Code itself says, not from what, either in private or even in public, you may, any of you, be pleased to say, your meaning was while penning it,—only from what, in the eyes of everybody, the Code itself says, to the exclusion of whatever may have been said of it by this or that individual, can the meaning of it, in any part of it, be understood.”

Sir, there is a very dry, dry indeed, but at the same time not unuseful branch of art and science, denominated Logic: upon it, where government is the field of operation,—upon it, as well as upon politics and morals,—hangs life and everything else that man holds dear to him. Upon it, depends the choice of words: of those words by which, according to the interpretation put upon them, man is destroyed or saved. If, in the instance of the gentlemen in question, this wearisome and unamusing art has been among the objects of their studies, the success of those studies has not, I fear, been quite so great as their constituents may, perhaps, see reason to wish it had been. Of all the several articles by which either particular delinquency is described, or particular punishment appointed, the very first (you see Sir,) is among those in which this laxity on the one part, so incompatible with security on the other, has been manifested. To inquire how far onwards a habit so unfortunate has extended its influence, belongs not to the present occasion, nor on any occasion, to any design of mine: to speak of it in the gross, in my view of the matter, it is a radical indisposition, having its root in the method which has been pursued, and not curable, but by another and very different one. Of this imperfection, if it be one, I may perhaps, have occasion, Sir, to submit to you, here and there, a few other indications.

Opposite stands a very brilliant and fascinating art, called Rhetoric, in which the preliminary discourse I have had such occasion to advert to, evidences no ordinary proficiency: if the time bestowed upon this instrument of fascination had been bestowed upon the instrument of sound instruction, the character of the proposed rule of action would naturally have been somewhat different, and as far as regards national peace, security, and contentment, would not (so it seems to me) have been the worse. If by Rhetoric men are sometimes saved from destruction, as well as sometimes consigned to it, it must be by logic, and in proportion as it is well applied, if they are secured against it.

In their preface, (page xii.,) Gentlemen state the manner in which the whole of their work was parcelled out amongst the five. If so it be that of that same work, the method is not altogether what might have been wished, of whatever imperfection there may be in it, one cause I am inclined to think might be found in this partition treaty. In the observations made in support of my Codification Offer, Section 7, (Draughtsman why single, &c.)* the disadvantages thought to be attached to every such plan of operation are brought to view.

Apropos of “doctrines or maxims.”

What if the doctrines or maxims, call them which you please, “the direct tendency of which is to destroy or subvert the political constitution of the monarchy”—what, if these doctrines or maxims, for the propagation of which every Spanish propagator is by article 215, to suffer imprisonment from two to six years, with et cæteras, should be found in the Constitution itself? In such a case is the punishment to receive an inexorable application? By its doctrines being to be found in that place, does it the less come under the description here given of the offence? For an example of a thus destructive or subversive doctrine or maxim, take the doctrines or maxims by which, in articles 4 and 13, the greatest happiness of the greatest number is stated as being the only proper end of government. For an example of the tendency of such a doctrine to destroy or subvert the political constitution of the monarchy, namely, by putting the office of monarch out of it, take the following consideration. By a statement which I have before me, taken in the years 1787, 1788, from Spanish sources, the expense of maintaining that one functionary was about one-fourth part of that of the whole expenditure of government: that is to say, the ordinary, avowed, settled, and officially stated expense, over and above whatever was extraordinary and unavowed, though not the less constantly repeated. At present I should not expect to find it quite so much: but, be it what it may, an inference presents itself, as one, the conclusiveness of which would not be materially varied by any denomination, which that portion of the public expenditure has experienced, or seems to be in any likelihood of experiencing. The giving any such application to any part of the public expense, how (may it not be asked?) is it conducive to the greatest happiness of the greatest number? Especially when the whole income is not sufficient for the effective protection of the people against the neighbouring pirates, not to speak of the insurgent privateers; or, of the expense of defending almost all Ultramaria against its inhabitants.

Of the office thus endowed, what is the specific beneficial effect produced in any shape? What effect more obvious or more indubitable, than the giving establishment to a set of men, who, partly by legal power, partly by force, partly by corruption, have it so completely in their power to weaken, and in time to destroy, the constitutive power given to the people?—to destroy it? Yes: and through the medium of the share possessed in the operative power by their representatives. Two authorities does this projected Code exhibit—two conflicting authorities, who the one of them with one portion of it in hand, the other with that which is next to it, will, if it be but sanctioned and carried into execution, be waging a war of extermination, till the one or the other of them is exterminated.

In the political constitution of the Anglo-American United States there is no such office: and, for this omission, in what respect is anybody the worse?

Of the arrangements thus proposed, for putting to death all persons, by whom any conjunct endeavours shall have been employed for remedying any imperfections in the Constitution, what was the object? To preserve the liberty of the nation, if the gentlemen in question are to be believed. Contrary to the liberty of the nation, according to them, is any such endeavour: for, at the very head of the offences against the liberty of the nation, do I see it placed—Tit. 1. Cap. 1. “Capitulo Primero. De los delitos contra la libertad de la nacion.”

As to this word liberty, it is a word, the import of which is of so loose a texture, that, in studied discourses on political subjects, I am not (I must confess) very fond of employing it, or of seeing it employed: security is a word, in which, in most cases, I find an advantageous substitute for it: security against misdeeds by individuals at large: security against misdeeds by public functionaries: security against misdeeds by foreign adversaries—as the case may be. In the present instance, if, by the word liberty, as thus employed, security in any shape—security against persons of any description, considered in the character of public functionaries, or persons acting under the orders, or in support, of public functionaries—was intended and meant to be afforded,—it must have been security not only for individuals, but for a certain class of public functionaries, against enterprises on the part of another class of public functionaries. Be it security, be it liberty, that was the blessing here in view, I should not, I must confess, have supposed, that anything in favour of it had been intended to be done, by any such arrangement, as that to which I have had occasion, Sir, to request your attention, had it not been for the assurance given in this same title.

Seeing the course taken by Gentlemen in their endeavours to preserve the “liberty of the nation,” I could not but be alarmed, when I found, that—not content with preserving in their way the liberty of the nation, they had taken up the determination to preserve in the same way the liberty of the press. I should have said, indeed, the preservation of that liberty against abuse. Still, however, it is the liberty of the press that, in a section of the Code exclusively allotted to the purpose, I see taken in hand. “Titulo noveno. De los delitos y culpas de los impresores, libreros y otras personas en el abuso de la libertad de imprenta. Cap. único: Art. 172.” Such being the hands into which I saw this instrument of liberty taken—taken by means of a body of arrangements separated and distinguished from all others by a title of its own, I could not but tremble for the fate of it.

Nor, after a glance at the contents, has my anxiety been removed. Sir, I know of one individual, of whose desire to see the press in possession of all that liberty which is conducive to the greatest happiness of the greatest number, and of no more than all that liberty, I cannot entertain a doubt: it is your humble servant. In no Code drawn by him will there be any such title. I know even of a government, of whose desire to see the press in possession of all that liberty which is conducive to the greatest happiness of the greatest number, and of no more than all that liberty, I cannot entertain a doubt. It is the government of the Anglo-American United States: Sir, in their Code, there is no such title.

For the state of the law in that seat of ever undisturbed internal peace, concord, tranquillity and amity, I must e’en beg leave once more to refer you to that one of my pamphlets, which has for its subject the Liberty of the Press and Public Discussion. Under that government, from the 14th of July, 1798, to the 3d of March, 1801, there existed a law having much the same objects as Titles i. and iii. and ix. of the proposed Code. Viewing the whole of it together, and comparing it with the matter of those titles taken together—viewing both in the lump (for of any such task as that of analyzing either of them there would be no end) its utmost rigour (you will see) was tender mercy. Being, however, the whole of it, plainly useless, and much worse than useless,—creative of a disease, which otherwise would not have had existence,—having but one good thing belonging to it, which was its temporariness as above,—it was suffered to expire: the authors of it, at that time the leaders of one of the two then contending parties, lost thereby the public confidence, and with it their political influence. That party (the aristocratical) having expired,—ask there for parties, no such thing will you find.

In every Code, in which I see any such title as the liberty of the press, I look of course for the destruction of it. I look to the committee’s Code, and I have not been disappointed. In no one of all the Anglo-American United States is any desire more universal, or more intense, than that of seeing this liberty preserved. Accordingly in no one of the Codes is there any such title. What I shall have to say on the subject comes in of course, and no otherwise than in an incidental way, under the head of offences against reputation. To offences of this class, where the individuals injured are public functionaries considered as such, my Code, so far from regarding the circumstance as a cause of aggravation, gives some indulgence. The indulgence has for its ground the great importance it is of, that no misdeeds of men in that situation should remain unknown, and the more than ordinary facility, which, in case of the groundlessness of the imputation, they have for defending themselves: for defending themselves, or rather of being defended by others, without having the trouble to defend themselves. See my accompanying tract on the liberty of the press. But this indulgence I confine to the case of temerity: for, in the case where the falsehood disseminated by the disseminator himself is known to be a falsehood, though in this case disproof and refutation are so much more easy to men in power than to men not in power, still I see no need, nor therefore any warrant, for manifesting indulgence to immorality in a shape so mischievous. A distinction which on this occasion I am careful to make, is that between defamation and vituperation: defamation, the imputing to the person in question, the having done this or that specific act of a punishable or disreputable nature; vituperation, the mere expression of dislike to the individual, in terms of a reproachful and offensive nature. Of these, in proportion as they are understood to be unmerited, the punishment naturally attached, falls of itself on the head of the offender, and with small, if any, assistance from factitious punishment, suffices for the purpose. In case of defamation, the law of England (it is that part of the law which is made by judges and reporters of their decisions) disallows the proof of the truth of the imputation in the character of a cause of exemption from punishment: for the law made by these creatures and dependants of the Monarch, has for one of its effects (it is needless to add its objects) the providing a screen for delinquency in every shape, on the part of themselves, and of their associates in the system of misrule. Bad as it was in principle, even the exploded Anglo-American law just mentioned gives express allowance to this proof.

[* A rule which has been established by lawyers in England, and which I should expect to find adopted by the fraternity in the United States, prohibits indeed, in case of defamation, the interrogation of the party defamed, for the purpose of proving the truth of the fact imputed to him: and prohibits it,—not only in a civil suit in which he is the avowed plaintiff, but also in a criminal suit, which, while it has the king for the nominal, has the individual for the real, plaintiff. My Code allows it in most cases, and in particular where the party defamed is a public functionary, defamed as such. In one of the two above-mentioned cases, the prohibition has its foundation in an ill-expressed Latin rule, made nobody knows when, by nobody knows who, namely, Nemo tenetur se-ipsum accusare: as if confession were accusation. In proportion as laws are tyrannical, this contrivance for giving impunity to delinquents is beneficial: nor could I think of expunging it out of any such system of law as in England we have, or from any such as if the force of law is given to this proposed Code, Spain will have: suppose the laws not tyrannical, the rule, and the imaginary law made out of it, is purely mischievous: on better ground, in tenderness to the accused defendant, would all other testimony be excluded: for who is so little likely to give false testimony to a man’s disadvantage as the man himself is? But, in such a government as we have, and Spain seems in danger of having, in a word in a government which has for its object the sacrifice of the many to the few, the best thing that can happen is—that all offences that are such merely against government, should go unpunished, and be followed by their designed effect. Of this portentously absurd rule, those, according to whom the greatest happiness of the greatest number is the only proper end of government, lay fast hold, for the sake of the application made of it to offences against government:—to offences against those laws which, having for their end in view the sacrifice of the happiness of the greatest number to the separate interest of the ruling few by whom they were made, would of course, if carried into anything like full effect, render the greatest number miserable. Lovers of the people cherish the absurd rule, for the sake of this particular application which cannot be refused to it. Lawyers cherish it, for the sake of the protection and encouragement it gives to delinquency in all shapes, giving proportionable increase to the number of their customers. For this reason, in every country, it is the interest of lawyers to see depravity consummate: accordingly in every country, it is, to the utmost of their power, their endeavour to keep or render it so.]

This collection of arrangements, in which such special care is taken of the press—such anxiety manifested for preserving its liberty from abuse,—this collection of arrangements—stands exhibited in 12 articles, namely, those from 592 to 604 inclusive; and occupies 4 out of the 240 pages of the Code. I have glanced over it. The result is—a confirmation of the conception above brought to view: namely, that, at any rate on the 21st of April, 1821, that being the declared day of signature, the wish and endeavour of the gentlemen in question was, at the prices there expressed in the shape of capital and other punishments, to prevent as far as possible the diffusion of all ideas whatsoever, that should, in any degree, be productive of sensations of an unpleasant nature in their own minds, or in the minds of any person in connexion with them: trusting, as they would naturally do, that by the same interests, prepossessions and affections,—their successors, whosoever they were, would, by so universally convenient an arrangement as this of theirs, be fixed in those same wishes and endeavours: that, in this view, their endeavour was—to keep the eyes of their fellow-citizens for ever hermetically sealed, against all written or printed discourses, the tendency of which should be to produce any such unpleasant effect: and that it is in this same view that, by article 602, they have extended the exclusion to discourses, in the Spanish language, printed elsewhere than in Spain, and by articles 598 and 601, to discourses of the like tendency in any language other than the Spanish, wheresoever printed.

If there be any one foreigner who, more than any other, not to say more than all others put together, has been the object of their jealousy, who can it be, Sir, but your unfortunate humble servant? And if such were their wishes in relation to him even from the first, what will they be, should ever any such provocation meet their eyes, as cannot but be afforded by so unwelcome a proof as this is which is now given in obedience to your commands?

For the purpose of keeping matter such as the above from the eyes of constituents, what then is the punishment which the proposed Code provides? Sir, you have seen already—the punishment of death. From this punishment, fortunately for him, true it is that, by remoteness from your country, the person of your above-mentioned humble servant is kept safe. But, by the terror of that same punishment, any the most useful of communications which in his eyes it would be worth his while to make, are not the less effectually excluded.

On this occasion permit me, Sir, to recall to your view that same leading article (article 191) in which death is the punishment, appointed for every person by whom endeavours shall have been used to bring about any alteration in the political constitution of the Spanish Monarchy. In speaking of that article, one word, nor that an altogether immaterial one, I must acknowledge the having omitted the mention of. This is the word conspirare—to conspire. The omission had not for its cause either oversight or any deceptious design: or in short any other cause than the convenience there is in speaking of no more than one thing at a time. No such effect had it (no such effect had the omission I mean) as that of narrowing or otherwise varying the description of the offence, unless, in the breast of a man who is not insane, any such endeavour or design can be supposed to have place, as that of effecting an alteration of the kind in question by his own single power, without aid from any one else.

The truth is—that, on this occasion, it was my own unfortunate case that occupied the first place in my view: for, saving all proper exceptions, such is the nature of man, self will on every occasion be intruding itself. Among my own endeavours as well as designs, has been that of causing to be printed in the Spanish language and circulated in Spain, written discourses more than one, in relation to which I cannot flatter myself with any the faintest hope, that, in the minds of gentlemen, the sight of them could fail of producing, though to my own most sincere regret, sensations of a cast more or less unpleasant: nor, in regard to some of those same writings, can I help being sincerely apprehensive, that, in the eyes of the gentlemen in question, the endeavouring to give publicity to them, would be the endeavouring to produce an “alteration” in that same political constitution.

True it is, that on this occasion, so far as regards my own personal safety, I do not, from any such conception in those or any other Spanish breasts, see any cause for apprehension. But an endeavour of this sort could not be used without assistants: without assistants, who, in the language of the proposed Code, would be accomplices: nor, by and between the principal and such his accomplices, could any correspondence be carried on without that which in the same language would be a conspiracy. Among these accomplices would in this case be a translator, a printer and a bookseller. Of these the translator might possibly be one, who would not be in any greater danger of death, or whatever were the other punishment, than myself: and to the case of the printer, the same consoling possibility may be found applicable. Still there remains the bookseller, without whose assistance my plot for the contributing, in conformity to articles 4 and 13 of your Constitution, to the greatest happiness of the greatest number of your fellow-citizens, whatsoever in this shape or in any other may be in my power, could scarcely by any means set itself to work. And thus it is, that if the wish that seems to be entertained as to this matter, by the gentlemen in question, as evidenced by this part of their proposed Code, is carried into effect,—mine stands on the verge of hopelessness.

Even if the net, spread by the word alterar in article 191, were not sufficient to catch us, (I mean myself and my accomplices,) another net of not much less amplitude, I see spread for us, in the next article, by the words embarazar sus sesiones y deliberaciones: penalty, death as before. For, of the arrangements that my temerity might find to propose, what embarrassment it might happen to this or that one to produce in the deliberations of the august body, should they ever come under its view, if it were during the time of its having the happiness of numbering the gentlemen in question among its number, I tremble but to think of.

On this occasion, one little difficulty in particular there is, the effect of which could scarcely fail to produce, more or less of embarrassment in the deliberations in question, should any endeavour be thought fit to be used for the solution of it. In pursuance of any such mortally wicked design as those above described, should a man content himself with doing what at present I am doing—that is, with the employing a non-Spanish language in the composition of such his political poisons,—in this case, such is the lenity manifested, by article 598, his portion of punishment is to be no more than the half of that which he would suffer were it in the Spanish language. Duros, yes: anos, yes. . . but I hope I am not using satire, and I am sure I am not using invective, when I observe, that neither in Euclid, nor in any other book, would gentlemen be able to find any process, for the bissection of a punishment, of which death is to be the result.

One manifestation more, and that a finishing one, of the care taken by gentlemen for the preservation of the press from abuse, remains yet to be brought to view. It is the establishing—Yes, the establishing in regenerated Spain—an Index Expurgatorius. An Index Expurgatorius? and by whom composed? composed by no less an authority than a new species of supreme legislature, proposed to be established for this single purpose: a legislature, in which the initiative function is to be exclusively in the Gobierno, (the septemvirate of ministers, every one of them appointed and at pleasure removeable by the king:) the initiative function in this Gobierno, and the consummative in the Cortes. Of this proposed new legislature, I find mention made—not only in the cluster of articles, which form part of those especially destined to the preservation of the liberty of the press from abuse, namely, in articles 599, 600: but in that preceding cluster, which has for its special destination the preservation of the Spanish mind from error on the field of religion: and, on both occasions, the existence of an instrument of this sort, framed by the new authority just mentioned, is supposed, and in a manner taken for granted.

It is therefore in their zeal in support of religious truth, that, in the exercise of the conjunct attributes of impeccability and infallibility above spoken of, this manifestation of zeal for truth in general, in the breasts of the gentlemen in question, appears to have taken its rise: and what cannot be denied, is—that by him, whoever he may be, by whom, for the happiness of mankind, those same divine attributes happen to be possessed, exercise too extensive cannot be given to them. But in proof of a man’s being so gifted, evidence, something more conclusive than his own insinuation, nay even than his own assertion, however positive, may, it should seem, not altogether unreasonably be required.

Before this finishing measure for the consummation of political security receive the sanction of law, there is one other thing, Sir, which I could not but be glad to see recommended to the consideration of the august assembly, not to speak of the supremely influential body—the Gobierno, of whatever individuals it may at this moment be composed. This is—supposing this extraordinary duty on their shoulders, and anything like adequate time for discussion allotted to the business,—whether from year’s end to year’s end, for the fulfilment of their ordinary duties, there would be so much as a single moment of time left.

I have spoken of logic, as an art, which, though not quite so agreeable, has, with reference to the greatest happiness of the greatest number, rather more of the useful in it than the brilliant art of rhetoric. There is moreover another dull and plodding kind of art, which, if a recommendation from me could promise to itself any weight, I would take occasion, from the incident here in question, to recommend to the attention of gentlemen in your exalted station. It is the art of mensuration: I do not mean as applied to land or timber, but as applied to time: to time on the one hand, compared with the quantity of business to be done in it on the other. From a want of proficiency in this art, such as it is, two effects both of them of rather an unpleasant nature, are liable to be produced: the exclusion of good measures, and the adoption of bad ones: the exclusion of good ones, for want of their being so much as proposed for consideration; the adoption of bad ones, for want of their being in a sufficient manner made the subjects of consideration. If, of this last-mentioned effect, an example should be desired, a not uninstructive one may, I am inclined to think, be found without much difficulty, in the recently established prohibitive and restrictive commercial, or, as I should rather say, anti-commercial system, under which, trade was to have been increased by the exclusion of customers.

Gentlemen having, in the manner you have been seeing, Sir, shown their sense of the necessity as well as importance of the office of Censor,—having moreover assigned, as and for the whole or a part of its business, the composition and continual completion of this same instrument of legitimate order, I mean the purifying Index,—it being also considered how natural, on the part of the inventor of any instrument, the wish is—to see the application of it placed in his own hands,—what if the powers—the whole powers of it were to be conferred on the gentlemen in question, I mean on all five of them, and in a state of exemption from all other cares, during their respective lives? In this power, for further security, might be included not only all actually existing works in their entire state, but all such doctrines or “maxims,” as, if they were in existence, would be possessed of the “destructive” or subversive tendency so often mentioned. In this case, however if it were in my power to make conditions, one little condition I would venture to propose to them, and that is,—that they would not insist upon attaching to the publication of the books in question, or of the maxims or doctrines in question, any of those severities, by the proposal of which their religious and patriotic zeal has on the present occasion manifested itself. No, Sir: if in the eyes of the public at large, their intellectual worth be but half as great, as, from the above quoted passage in their preface, it should seem to be in their own, the authority of their names, when employed in marking out for exclusion from all eyes and ears the obnoxious works, will be quite sufficient, without the aid of penal visitation or physical repression, performed in the proposed or any other shapes.

After all, thus much must be confessed:—be the instrument what it may, destroy the instrument you prevent the abuse of it: destroy eyes, you prevent the abuse of eyes: destroy ears, you prevent the abuse of ears: destroy hands, you prevent the abuse of hands: destroy liberty, you prevent the abuse of liberty. Such would be the effect, supposing the destruction total, and thence impartial. But, so far as either the liberty of the press, or the liberty of discourse through the medium of any other instrument, is the subject, the destruction which the gentlemen in question aim at effecting—the destruction, which they even profess to aim at effecting—is not total and thence impartial, but decidedly partial: and being so, the effect of it, in so far as it has any, will be—not to prevent, but to establish and secure, the abuse of the liberty of the press; in a word, of the liberty of discourse: of the whole of that branch of liberty which they thus take in hand. For wheresoever, by any person, on any controverted point, a judgment is to be pronounced,—what can be a greater abuse of the faculty of discourse, than the keeping all the arguments on one side in a state of suppression, or though it be but restriction, while those on the other are left in a state of liberty? of absolute, or even though it were but comparative, liberty?

In regard to this matter, one very simply expressible mistake seems, from first to last, to have taken possession of gentlemen’s minds, and guided their operations: I mean, the mistaking a cause for a remedy: the taking, for a remedy to the disease they have had in view—for a remedy and that an indispensable one that very morbific cause, but for which the disease would not have had existence. Supposing that to be the case, apply the supposed remedy, you produce the disease: burn the remedy, you kill the disease. Such, after a three years’ experience of the imagined remedy was the practice of the Anglo-American United States: and, after twenty years of uninterrupted experience, the salutary efficacy of that same practice has received in the face of all mankind as complete perhaps a confirmation, as any practice, political or even physical, ever yet exhibited.

LETTER IV.

Sir,—

In the title of this fourth letter, as it is announced in the first, the words severity of the were, I fear, omitted. They are requisite, however, for giving expression to the idea, which, in reviewing that part of the matter, and penning a title for it, was uppermost in my mind. On a second glance, along with what bears special reference to that circumstance, I find some matters, of which the same thing cannot, I must confess, be said with equal propriety.

On the other hand, the subject, on which it touches, is one of which special notice is taken in your letter: what is said in relation to it will help to prove the respect with which your commands have been attended to; and whatever may be the offence committed against the laws of method as above, it is on this circumstance I must rely for whatever atonement it may be in my power to make.

Pena de muerte! Pena de muerte! Pena de muerte! By these words, I see, with grief of heart, a war of mutual extermination organized; Code in hand, I see partisans of the king and partisans of the people, under the name of partisans of the Constitution, slaughtering each other, and thus maintaining order in the legitimate style. No man can serve two masters. So at least I have read somewhere: and I am inclined to think there may be some truth in it. Looking to the people of your peninsula, I see two masters made for them: one all head without body: the other all body without head. No man being able to serve both masters, I can see no man who is safe. In the Anglo-American Union, no man has any master; and there everybody is safe.

In that seat of universal security, there were, for a course of years, two parties, and between them war was waged with a fury not to be exceeded, even among you. The weapons, however, were words only, not swords or bullets: “satires and invectives” met in incessant clouds: but they met tax-free: no duros were ever paid for them: ink flowed in torrents: ink on both sides: but, of blood, not a drop on either side. Little by little, the less liberal party was silently absorbed into the more liberal: finally there is no party, and now, even in words, it is all peace.

Yes, Sir, between the death to preserve “liberty” (Tit. 1. Cap. 1.) and the death to preserve “Monarchy,” (Tit. 1. Cap. 2.) I see every man between two fires.

Remembering the use made, on a former occasion, of the word corporation, as mentioned in my tract on the liberty of the press, &c., I see in Article 191 a somewhat more efficient use found for it. A sympathy, I hope not unpardonable, places before me, on this occasion, my brethren of the Cross of Malta. If they are tired of life, the words “ò á que se radiquen en otras corporaciones ó individuos,” may upon occasion help them to get rid of it.

But, perhaps, the citizens who, all over the kingdom (if our newspapers do not deceive me) are still meeting for the purpose of considering what, under articles 4 and 13 of the Constitution, may be most conducive to the greatest happiness of the greatest number, if it were only that they may learn how to give their votes,—may not be quite so eager to see themselves killed, as the Committee seems to be to see them killed: and, if they are not altogether pleased at the thoughts of being killed under the name of citizens, I should not expect to find that the thoughts of being killed under the name of members of corporations would render them more so.

For how many things which they themselves have done, and which I cannot but applaud them for having done, do I not see gentlemen appointing this same punishment of death! the only punishment, the mischief of which is, in case of misapplication, altogether out of the reach of remedy! Right, that which at the moment suits us: wrong, that which does not suit us:—this, or something like it, is it not the principle?

As it is with vituperation and defamation, so, without much difference, is it with sedition, insurrection, and their et cæteras. In a government that has for its object the greatest happiness of the greatest number, little or no need is there for any such denominations with exclusively appropriated punishments. A public functionary is a man: gentlemen do not seem to me to be altogether aware of this: with my respectful compliments, do me the favour, Sir, to convey to them the information of it. A public functionary is a man. Not only is his reputation the reputation, but his person the person, his property the property, of a man. By sedition and so forth, if any real mischief is done by it, it is to the person or the property of some man that the mischief is done. Ill indeed must the public functionary, whoever he is—the Monarch if there be one, ill indeed must he have comported himself, if, on the part of the people at large, there is not, on every occasion, and in all manner of ways, more promptitude to afford protection against injury, in this or any other shape, to him, than to an individual not so distinguished.

In a country, the government of which has for its end in view the greatest happiness of the greatest number, let a man seditionize—let a man insurrect—see what he will get by it. He will be laughed at: laughed at, as an untoward lamb might be, if seen running and butting against its mother: he would be laughed at, and there would be an end of it. Colonel Burr insurrected: Colonel Burr tried to make himself Emperor of Mexico: Colonel Burr thought to make himself Emperor of the United States: many is the laugh I have had with him about all this—I, who write to you. In the United States, has he had his entrails torn out of his body? a man in his place would have been so dealt with in England: has he seen them burnt before his face? No: there he is in New York, subsisting quietly, as other lawyers do, upon the indiscriminate defence of right or wrong, now at the end of his career, just as he did at the commencement of it. Ask Miss Wright, Sir, if it be not so—see what her book, (Views of Society and Manners in America, by an Englishwoman,) translated ere this into French, says of him in one of the notes.

Out of the 639,—that being the whole number of the articles in the Code, deduction made of those general ones, 190 in number, which are not occupied in the creation of particular offences, or the appointment of particular punishments,—out of this number of 639, not more than 89 had I run over before I had counted 21 as the number of times in which this same punishment of death had been attached to so many different offences. True it is that, in speaking of penal laws, to speak of the multitude of the laws as a conclusive proof of severity on the part of the whole system,—to speak of multitude in this case without notice taken of extent,—is, I am fully aware, a mode of speaking no less pregnant with misconception than it is frequent. In the English chaos, for example, where stealing or destruction is the mischief to be obviated, you have one law for one sort of vegetable, another for another: and so throughout: a plan, according to which, the vegetable kingdom would of itself, if all other penal laws were abrogated, furnish matter for between 50,000 and 100,000 of them, and still leave all but a small part of the field of mischievous delinquency uncovered. But in the present instance, the rigour of the punishment will be found not mismatched by the amplitude of its extent.

But the striking and deplorable circumstance, is—to find the highest lot in the scale of punishment attached to so great an extent, to acts, in regard to which, in that system of law which is productive of the happiest effects, it is after such a length of experience universally understood and acknowledged, that there exists not any demand for punishment in any shape.

As to the taking of these cases, or any of them, one by one, and, by a regular application made of pre-established principles, considering, in the first place, whether the act ought to be placed upon the list of offences, in the next place, whether death would be an apt punishment for it, and if not what other would be,—no such discussion, Sir, can I, upon the present occasion, think of attempting to trouble you with. In any Code of my drawing, this would be done, and in a manner which in my eyes would be complete, at a much less expense of words than the least that could be bestowed upon it in any work having for its subject a Code by another hand, even supposing the particular arrangements determined by a set of pre-established and declared principles: and not, like the one in question, so completely and even avowedly unprincipled, that a volume might be occupied in the endeavour to reach by conjectures, antecedently to examination, the considerations that, in the character of reasons, may have given birth to this or that one article.

On the subject of religion indeed, it being the only one which has received any special mention in your letter, I had, at the time when the first of these of mine were sent off, written a few pages, to which I thought of giving insertion in this. But, by a second glance on this part of the proposed Code, observation was insensibly and perhaps unfortunately elicited, in a quantity much too great to be consigned to a letter, in which any other subject were brought to view. Should it ever reach your hands, Sir, it will accordingly be in the form of a 7th letter, written in addition to those announced in the first.

One word more about death: about the grim tyrant, and the once established and, established or not, everywhere honoured Code, by which the door was shut against him. Seeing the use made by the gentlemen in question of this instrument, hardly should I have expected to find that of these “most esteemed European Codes,” the wisdom of which (as p. xii. of their Preliminary Discourse informs us) they had made theirs, this same Tuscan Code had been one: this same Tuscan Code, in which, of this same instrument, no use at all was made. Either my memory deceives me greatly, or, in some authentic statements made at the time, I read, that after the innovation thus introduced,—though anything like the whole of the benefit which by its leniency the Code was calculated to produce, had not yet had time to manifest itself,—the number of those crimes, to which the punishment of death had been used to be attached, had not received increase. Yet so it is, that not only the Code of the French Constitutional Assembly of 1791, but this same celebrated Tuscan Code, had passed under their review. So in page xv. of their Preliminary Discourse they expressly tell—us I was going to say—I beg their pardon, Sir, I should have said tell—their colleagues.

P. S. Before this letter goes to the post, I have just time to acknowledge the receipt of a 2d letter from you, dated Paris, 26 Sep. 1821.

Though what was said of me by our friend was the pure result of his own generous zeal, and altogether without warrant from me,—the consequence which has resulted from it is—not in the less, but in the greater degree, a source of gratitude in my mind as towards him, as well as satisfaction and pride on my own account: for, never was declaration more sincere than mine was, when I spoke of myself as receiving honour as well as pleasure from such a correspondence. Few things could have contributed more strongly to confirm me in that sentiment, than the frankness of your consent, to that publicity, by which, whatsoever service such a correspondence may be capable of rendering to that country which is the object of our common affection, will be so effectually cleared, of the inconveniences with which it would otherwise have been clogged.

At the same time, believe me, Sir, it is not without the sincerest sympathy and unfeigned uneasiness that I can reflect, as I have but too much and too frequent occasion to do, on the invidious and unpleasant situation in which it has been impossible for me to avoid placing you, by the necessarily unwelcome freedom, which I have all along found myself compelled to use in speaking of this production of your illustrious colleagues. For, how can they do otherwise than behold in you the cause of so many strictures, of which, should they be thought to amount to anything, sensations, of a nature very far from pleasant, cannot but be the result? But, in the opposite case, and in proportion to the importance of any of the suggestions which it has fallen in my way to submit to you, the warmer your love for that country of which you are one of the most conspicuous and brightest ornaments, the more valuable in your account will be the indemnification, which, in the character of a Spanish citizen and a representative of the Spanish nation, you will receive.

LETTER V.

Strange indeed, unexampled indeed, would the case be, if it were otherwise: but, so far from being a reason for the omitting the mention of any instances in which it is exemplified, the strength of the propensity in human nature to produce such sacrifices, is a reason why the search after them should be the more rigid, and the display of them the more complete.

To attempt to bring to view the several particulars, by the observation of which a supicion to this effect was produced, would be to attempt to bring to view little less than the whole contents of that same official and pre-eminently important work. I must content myself with a few samples. But they shall be such as are either all-comprehensive in their extent, or do not want much of being so.

Example 1. Fundamental principle neglected. What I have here in view is—the profound silence as to the fundamental principle of the Constitutional Code: as to the two leading articles 4 and 13, into which by far the greatest part of its merit and beneficial influence is condensed: namely, the so often mentioned principle, by which the greatest happiness of the greatest number is laid down in form in the character of the proper end of government, and as the object to the attainment of which the several arrangements of detail included in that same Code, were meant to be understood as having accordingly been directed. The application, which this your troublesome humble servant makes, of this instrument of Spanish construction—you see, Sir, how continual and indefatigable it is: it is a light, by which every step in his career is lighted. Such is the use made of it by an Englishman. The gentlemen in question being Spaniards, how comes it that, all the time that they have been at their work, this matchless Spanish instrument has been lying in its case? how comes it, that these articles, to which, from first to last, reference express or tacit could not consistently with consistency have been omitted, remains from first to last a dead letter in their hands?

These same articles of this Code,—for what purpose were they put there? Was it only for show? The authors of that same Code—was it not their intention the principle should be made use of? The articles—were they placed there in no other character than that of so many flowers of rhetoric?

But, the authors of this proposed penal Code, it is with them that our concern is at present. Of the neglect in which they have left this light of lights, what can have been the cause? Sir, can it have been any other than this; namely, that it did not suit their purposes? From what follows, your judgment on this point may perhaps acquire some assistance.

Example 2. Rationale rejected. What is above leads me immediately to the matter of the rationale.

Of my plan, the rationale is an essential, I should rather say the characteristic, feature. But what does it consist in? In neither more nor less than the undiscontinued application of the above-mentioned fundamental principle: an application of this basis of your constitution to every the minutest line in the several arrangements, by the making of which, the operations of the legislator are carried on. In the very act of proposing this accompaniment, a sort of challenge to all legislative draughtsmen was contained. From the challenge thus given, the gentlemen in question shrunk. Why, Sir, did they shrink from it? To their constituents, as I have shown, to the subject-citizen as such, it would have been at once a source of interpretation—a fund of instruction, moral as well as political—a source of security, satisfaction and comfort: a source of security against arbitrary rule in the hands of the legislator, and against arbitrary interpretation in the mouth of the judge: to the judge, a continual guide, but at the same time as continual a bridle: to the body of the law, in the whole and every part of it, an anchor, giving stability, just so far, and no further, as reason, assisted by experience, shall have shown that stability will be conducive to the all-comprehensive and all-commanding end so often mentioned. This being among the undeniable properties of the instrument in question, why, Sir, I ask once more, did gentlemen shrink from it when offered to their hands? Sir, I will tell you plainly. They had two reasons, for turning their backs upon an instrument, the matter of which is composed of reasons in another sense. In it they saw a guide, but a guide whose course it did not on every occasion suit them to pursue. In it they saw a guide, but in it they at the same time felt a bridle: and all this in both their capacities, that of legislative draughtsmen, and that of sanctionative legislators. To which may perhaps be added, that, not impossibly in their view of the matter, to construct, and make undiscontinued application of, an instrument of this nature, was not quite so easy as to propose it.

In that paper of mine, the heads of which I have had occasion to submit to you in the first of these my letters, the two last heads are Section 10. “On the part of an individual proposing himself as draughtsman, &c., 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; Section 11. On the part of a ruler, willingness or unwillingness to see established an all-comprehensive Code, with its rationale, as above, . . . is among the most conclusive tests of appropriate optitude with reference to such his situation.”*Among the most conclusive, I said: speaking of a ruler, in whatever rank and in whatever department: and, when speaking of a ruler in the rank of supreme legislator, or in that of possessor of a share in that all-commanding power, might I not have said absolutely the most conclusive?

Sir, the time, at which these propositions with the demonstration of them were penned, was by a long time anterior to that in which, by your favour, the proposed Code with the preliminary discourse prefixed to it came into my hands. To my mind, no otherwise were the authors of that work present, than all other men, by whom that same or the like pre-eminent situation shall have been filled, were, are, and will be present. But, if and so far as that which of all men without exception in their situation is there said, is true,—of them in particular it is true: nor can it, consistently either with sincerity, or consistency, be retracted.

In that work of mine, in which, of the sort of instrument in question, with its use, a description more or less particular is given,—in that work, the existence of which was assuredly no secret to any member of the Spanish Cortes, nor to any of the gentlemen in question in particular—in that work is even contained a sample of the application made of this same instrument:—a sample of the mode of applying it, and of the sort of work produced by it. To judge from a paragraph in their preliminary discourse, it looks as if somebody or other had even been troublesome enough to endeavour to draw their attention to this same part of that same work:—and “What say you to this? will not you give us something of this sort in your Code?”—one would think these or some such questions had been put to them: put to them, and in so troublesome a way, that, to this matter, in that same preliminary discourse, something, by way of excuse for their silence on the subject, was thought necessary: at any rate, that on this subject something should be said. Be this as it may, in that same page of theirs, on this same subject, something actually is said.

What is it? Sir, it is what I am truly glad to see. For, (as you have seen already, in the way of allusion at least, statement being referred to in another paper,) as in this way, in my dull logic, you have seen reasons for the use of reasons,—so here, in their brilliant rhetoric, we have gentlemen’s reasons against the use of reasons.

First comes their all-comprehensive determination—their determination, respecting all such parts taken together as come within the field of their labours: then come exceptions, six in number: exceptions, speaking of six points in particular, in relation to which, thus as it were in a parenthesis, such reasons, as it has seemed good to them to submit to your consideration, follow.

With regard to the tout ensemble, their determination being—not to give any reasons bearing separately upon the several arrangements, or any of them, with the exception of the six just mentioned,—in the place of the excluded reasons, they give you one reason—one reason, which in their view is a conclusive one—for not giving them. This reason, what is it? Ah! Sir, disallow it if you can,—disallow it, if you can find it in your heart to be so ungenerous. Sir, in the all-sufficiency of that unerring test of right and wrong, which you all, Sir, have the self-satisfaction of bearing in your own breast—it is in that security that they find a succedaneum, to everything, which, on any occasion, it would be in their power to find in the shape of a reason: a succedaneum so fully adequate—a substitute so much better than merely adequate, that anything in that way on their part would be worse than useless. To the conclusiveness of this antirational reason, what objection can you oppose? Sincerity will suffice to prevent your disputing it in your own instance; politeness, in that of any of your colleagues.

After an observation, respecting the matter of the Title termed by them the Preliminary Title,—namely, that, giving as they do the whole of it, they do not give any part of it over again, regarding as they do any such repetition as useless,—“because,” say they, “we regard every such addition as useless” (a conception, in which no man can, I think, refuse concurring with them) after so saying, they go on in page xiii. and say, “As little will the Committee—as little will it give any exposition of the reasons (raziones) on which it has grounded the several articles respectively, for that they (meaning doubtless the reasons in question) cannot have kept themselves hidden from the superior perspicacity (illustration) of the Congress:” meaning the Cortes, into the ears of which, in full assembly, the stream of this eloquence, I take for granted, was pouring itself forth.

By this illustracion, a term for which, in the sense in which it seems here to be employed, I find not, in my own language, any exact equivalent—for illustration will not serve—by this one endowment, that which gentlemen appear evidently enough to have in view, is—the pair of contiguous organs, to which I had occasion to make allusion in the second of these letters: namely, the same to which Dr Spurzheim would, after a sufficient inspection, give the denomination of the organs of impeccability and infallibility: organs, which, without need of any such assistance as that of the ingenious anatomist, all rulers in chief, except of late years those of the Anglo-American United States, have so universally felt upon their own foreheads; and of the extraordinary prominence of which, in their own instance, the authors of your Constitutional Code, so well followed up by these successors of theirs, have given such extraordinarily prominent demonstrations.

Now, Sir, as to these same colleagues of yours, the matter must be left to themselves. But as to yourself, Sir, pardon me,—if so it really be that you are a sharer with them in the good fortune of being in possession of these same organs, or either of them, it is plainly more than you yourself know of: you might as well not have had any such things. Of the possession of any such useful implements had it happened to you to be conscious, never could I have received any such letter, as that, by the receipt of which, your humble servant received that honour, of his gratitude for which you see the fruits. In the course of the contest for your favour, here, Sir, you have two compliments to choose out of: which of them is most in accordance with truth? which of them is most in accordance with your taste?

For the reason above-mentioned, to their colleagues, say the gentlemen in question—to all these representatives of the Spanish nation without exception—any such implement as that same rationale would have been useless. Well, for the moment, and for the purpose of the argument, be it so. But these same distinguished citizens, whom, to the number of from 150 to 200, they are thus addressing—in the whole Spanish nation, were they the only individuals, by whom either the faculty called reason, or the faculty called sensibility, was possessed? The privileged organs in question, by which governors have hitherto regarded themselves as distinguished, are they in your country in the possession of the governed likewise? If so, what need can there be of governors? And here, alas! comes one of the proofs of the position which gives title to this letter:—namely, that, in and by the official work in question, the interest of the subject many is, designedly or undesignedly, sacrificed throughout to the interest of the ruling few. Look, Sir, to the excluded foreigner: look to these your select, your native legislators:—the whole body of their fellow-countrymen, their security, their satisfaction, their instruction—which of all these objects has ever been forgotten by the foreigner? which of all of them was remembered by these their representatives in this effusion of their eloquence? But their colleagues, for whose ears the compliment had been composed—these colleagues were present objects; constituents, all of them distant ones—all of them distant from their thoughts:—by the interest of the select and present and associated few, the whole field of their vision was pre-occupied; the interest of all was, in their eyes, too minute an object to be a perceptible one.

Six, however, though no greater than six, is the number of those points, to which, in the opinions of these your selected colleagues, your all-sufficiency, Sir, (yours is of course here plural,) did not, at that time, extend. Accordingly, in relation to these several points, they proceed, or at least profess, to lay before you their reasons. Why? because these were the points, in relation to which, amongst certain persons not named or indicated, the most considerable controversy had had place. In this controversy it is that they find the source of an obligation, by which they feel themselves called upon to be thus particular: “solo se cree obligada á indicarlos motivos que en algunos puntos muy controvertidos la inclináron á la opinion que ha abrazado.” p. xiii. The points are in brief as follow:

• 1. Drunkenness.—Shall it in any case have the effect of warranting any mitigation of the punishment? Answer: No.
• 2. Transportation.—Shall it be employed as a punishment?—Answer: At present, no: in the contingent future, yes.
• 3. Stigmatization.—Shall it be employed as an ingredient in any lot of punishment? Answer: Yes; but in no other case than that of condemnation to hard labour for life.
• 4. Asylum.—On the ground of its connexion with religious worship, shall any place continue to possess the property of affording impunity to delinquents? Answer: No. This unanimous.
• 5. Pardon.—Power of pardoning, shall it be continued to the Monarch. Answer: Yes; but subject to certain restrictions. Allusion is made to them, but no reference in figures.
• 6. Judicatories of exception.—Shall there be any? Answer: Two only; namely, military and ecclesiastical. Military, for military offences; ecclesiastical, for ecclesiastical.

Now then comes a question. All-sufficient with regard to all other points in the legislative compass, how comes it that gentlemen’s organs fail them when applied to this half-dozen? Compared to what is left untouched, these are but as so many drops, in that ocean, to which, as above, they have given the character of the Pacific. And so, in the conception of these gentlemen, only in so far as controversy has had place, can there be any demand for reason! Sir, among the points touched upon in my Code, whatever may be the number of those to which it has happened to have produced controversy, the number of those to which no such accident has happened, I should expect to find still greater. Is it only as an instrument of victory, Sir, that reason is of any use?

On the above points of exception, to say anything more would be wandering from the announced purpose of this letter. One alone, namely, Judicatories of exception, upon looking into the article on this subject in the proposed Code, presented matter which seemed not inapplicable here; and with this the present letter will close.

Example 3. Method anti-popular employed:—method, indicative of disregard to the interests of the subject many. In my own Code, the method pursued was suggested, partly by considerations of a purely logical nature, partly by considerations of a moral and political nature. Those of a purely logical nature belong not to the present occasion: those of a mixed nature, partly logical, partly moral and political, apply to it: and by a principle of connexion, of which it has not happened to me to see any notice taken elsewhere.

In regard to the order to be given to the several groups of acts, converted by prohibition and punishment into offences, considerations of a moral and political, concurred with those of a logical nature, in producing the determination that was pursued.

Where, of one of two objects, a perfect conception may be conveyed, without any conception conveyed or entertained of the other, while the converse of this does not hold good,—give the first place to that one, the conception of which is thus independent of that of the other. On the opposite plan, two objects will unavoidably be spoken of at the same time: the one directly and explicitly, the other indirectly, and in the way of allusion: and confusion will thus throw its clouds on the whole texture of the discourse.

To the domain of logic belongs this rule. By it has arithmetic been guided in the order given to the numbers in the numeration table.

Apply this to the matter of a Penal Code. Of offences against individuals—against individuals determinate and assignable—the mischief is intelligible to all: intelligible in all its shapes, upon the bare mention of it; intelligible, without any the least need of reference to offences against this or that particular class of not assignable individuals, or to any of those against the government, or the nation at large: the offences of which two last divisions have for their common character, that the mischief produced by them affects not any one individual or class exclusively, but, if it affects any one, affects the whole. Of offences of the first description, the mischief may be said to be actual: in the case of those of the two last descriptions considered as such, it is only in tendency that the act is mischievous. In this or that instance, the mischief which is but in tendency may indeed have actual mischief to any amount for its accompaniment: in which case, the author may be dealt with accordingly: but, when it stands clear of any such accompaniment, the demand, whatever it be, for prohibition and punishment, may still remain: of that mischief which is in tendency only, the correspondent actual mischief forms the sole and indispensable basis. From those of which the mischief is but in tendency, suppose it ascertained that no actual mischief can in any shape result, the ground for placing them in the catalogue of punishable offences vanishes.

Note that, to be actual, mischief must consist either of pain or loss of pleasure: pain in some determinate and assignable shape, or loss of pleasure in some determinate and assignable shape.

Such being the order prescribed in the first instance by logic, observe now the consequence of it with regard to morals and politics.

At and from the very commencement, of a Code commencing in this way,—every man perceives, at first view, the benefit it has conferred on him, the care which the legislator has taken of his interest—of his happiness. Let a man but open the Code, by the very first glance he casts upon it, a conception thus satisfactory, how can it fail to be conveyed to him? What man is there, that has not, in some shape or other, a body, a mind, a reputation, property, a condition in life? In the prohibition and punishment, attached to acts, by which, through injury done to those several possessions of his, his happiness is liable to be diminished, he sees the protection which, in these several shapes, has been provided for him by the law. In the legislator he beholds a kind guardian, to whom his welfare, in all its shapes, has been an object of all-comprehensive and laborious solicitude.

Instead of offences against individuals, let offences against the government now occupy the first place. Everywhere but in the Anglo-American United States, religion being seized on and converted into a state-engine, employed in giving support to the power of the rulers,—the care for the support of religion in this character, will, in some way or other, be combined with the care for the support of government.

The protection he now sees afforded, to whom does he see it afforded? To himself? No. But either to an Almighty Being, to whom it cannot be of any use, or to another man or set of men among whom he is not included. Here then you see, Sir, the advantages that have just been brought to view vanish.

Returning now to the former case,—suppose the legislator, by what considerations soever induced, whether by the above logical rule, or by the political consideration—regard for the greatest happiness of the greatest number—suppose him to have, in his Penal Code, begun with giving the first place to the class of offences against individuals. This point settled, suppose him to have taken up the subject of offences against government. The government in question is (suppose) a monarchy: chief functionary, the monarch. What follows? Seeing in this man neither more nor less than a man, he would, perhaps, as in the Anglo-American United States, have regarded the security of this man as being sufficiently provided for, when provided for in exactly the same way as that of all other men: if not, he would at any rate have inquired, whether in this case any difference should be made: and if yes, what, and on which side, and on what account: and so on, in regard to all classes of persons, functionaries or not, by whom, or in whose behalf, he found privilege in any shape enjoyed.

Unfortunately, in those same Codes of greatest credit and “reputation in Europe,” (p. xii.) drawn as they have all been by men, employed by a supremely ruling one, and themselves belonging to the class of the ruling few;—and of course careless to what degree they made sacrifice of the interests of the subject many, to the interests, real or supposed, of the said ruling few and supremely ruling one;—in these exclusively consulted Codes no such simple and natural order of insertion has been observed. How should it have been? No such order would have suited the purposes the ordainers of them had in view.

In my view of the matter, title to regard is determined, and degree of regard measured, by the numeration table: two have title to twice as much regard as one: three, to thrice as much; and so on. Accordingly in my Penal Code, my first care being to make provision in the most immediate way for the security of all,—thus it is that, no objection to this plan of arrangement presenting itself, nor any special use as derivable from any different one, it is by the cluster of arrangements employed in the establishment of this security, that the first place in that same Code is occupied. And thus, by this political consideration, has the order originally suggested by the logical consideration, in my view of the matter, been confirmed.

Not so, in the view taken of the matter by the bespeakers, nor consequently by the makers, of those same supremely accredited Codes. In their view of the matter, title to regard is determined and measured by dignity: a sort of phantasm created by Power, in the imagination of Imbecility, for its own use.

Shaping their practice to this theory,—in the ruling one—in the monarch, who is upon earth—they have seen the vicegerent and express image of the person of him who is in heaven: in him they have seen the one for whose use all others were created; in the subject many, those who were created for his use. In him they have seen all excellence; in them all depravity: between the one and the other they have seen an intermediate class, composed of individuals, whose respective places, in the scale of excellence, moral and political, are in correspondence with their places in the conjunct scales of power, opulence, and factitious dignity:—endowments, derived all of them from the grace and pleasure of the ruling one.

Of this theory, an immediate practical consequence always more or less acted upon, and sometimes even avowed, is—that in the instance of every person to whom the protection is afforded, the punishment, employed in the affording it, ought to be high, in proportion to the height of the level, occupied by him, as above, in that same conjunct scale. Looking then, in the first place, to the heavenly monarch,—in his instance, taking for his opulence, that which it has pleased him to make over to his professional servants, they behold power and dignity infinite. Looking in the next place to his earthly representative, they behold power, opulence, and dignity next to his. In both cases, the practical consequence follows as of course. As for the protection of the mind, the reputation, and the peculiar property of the heavenly monarch,—so for the protection of the body, and condition in life, as well as of the mind, reputation, and property, of his earthly representative,—no punishment can be too afflictive.

Buonaparte and his draughtsmen saw in every Regicide a paricide. A more convenient vision has been seldom seen. In this same vision, the gentlemen in question (I see) have been partakers. And so—to beget and to kill, to feed and to exhaust, to clothe and to strip, to love and to despise, are one and the same thing. Buonaparte—O “most puissant Prince!”—Buonaparte, upon looking round him, found he had begotten all whom he had left unslaughtered. Thus it is that Rhetoric—Oever ready prostitute!—prostitutes herself to despotism.

By the purely logical consideration, if I remember right, was the order of consideration and expression here in question suggested to me:—by the clearness, which, not only in this but in all other cases, is the result of that course of consideration, in which things connected with one another are taken, as far as may be, one at a time. Ample at the same time was the confirmation, which, in the present case, the logical rule was found to receive, from those considerations, of a moral and political nature, which belong, in a peculiar if not exclusive manner, to this same case. Intimate accordingly, in this case, is the connexion between the logical and the political considerations.

By the logical rule it stood ordained, that, in the arrangements by which protection and security were in the way in question afforded, all men without exception should come in in the first place, before any place was assigned to any such arrangements, as those by which additional protection and security came to be afforded, to men standing in this or that particular situation.

But, thereupon comes the political consideration:—in so far as distinction and opposition between interest and interest has place, by whom is presented the best title to regard at the hands of the impartial legislator? by whom is presented the title to a preference? by the few as such? or by the many as such? The question once put, the answer could not be dubious: the question itself presented it. To me it was presented between 50 and 60 years ago, by I know not what little pamphlet of Dr Priestley’s: by your Cortes (ad 1812) it was adopted, and in articles 4 and 13 of your Constitutional Code, it stands established. And thus it is, that not only for order of consideration and discourse, but for title to regard and degree of regard, you have at once a standard and an example in the numeration table. A plainer, a more universally known, a more familiar, a more universally understood, a more indisputable, standard—can it be desired?

Judging of everything by this standard, I saw that, if, to any one more than another, power in any shape were given to be exercised over the rest, it could not, consistently with this standard principle, be given to him in any other character than that of Agent, and Trustee, and in that shape Servant, to the rest. Hence, for as much as, in respect of money, power, or factitious dignity, nothing could by any legislator be done for, or in relation to those same servants of the people, but at the expense of their principals,—hence, in my view of the matter, judging by that standard, for these same servants, so long as the interest of their principals was equally well provided for, too little could not be done. Not so in the view taken of the matter by the gentlemen in question:—not so in the view taken of the matter in any of those most “accredited Codes of civilized Europe,” from the virtue and wisdom of which, a portion more or less considerable of theirs had been imbibed. No, Sir: on that subject—as everybody knows and feels—on that subject, everywhere but in the Anglo-American United States, the universal and allruling notion, is—that for these same servants it is not possible to do too much: and accordingly, the first thing that is done—everywhere done—for them, is—to declare them masters. Masters? Yes, and in such sort masters, that the character in which their natural masters, thus converted into servants, ought to be considered, is—that of so many animals of an inferior nature, created by an all-benevolent and all-wise being, for the use of these same self-constituted masters: their masters; or, as the more polished language of English aristocracy sometimes phrases it, their betters.

Such then are the beings who, in the first place, together with whatever belongs to them, are to be taken into account, spoken of, and provided for.

In the first place are stationed their peculiar endowments—the power, the wealth, the factitious dignity, with which they are invested: the peculiar endowments, together with the peculiar protection employed in affording a peculiar degree of security to the possessors of these same endowments: the peculiar protection and security, and thence the peculiar punishments, by the terror of which, all hands that might otherwise be tempted to make any motion, by which the enjoyment derived from these endowments, might be lessened, are to be arrested.

Under the late non-constitutional monarchy, the object of the first care, not to say the only care, was the providing this security for the monarch and his particular connexions.

Under the existing constitutional monarchy, the objects of gentlemen’s first care, is—the power of that illustrious class of citizens, of whom they themselves constitute so distinguished a part: the care taken of this object is, in their language, the care taken for “the liberty of the nation.” Their next care is, for the power and person of the monarch, who, from the condition of absolute, has by a precedent care been removed into the situation of constitutional, king.

Correspondent, in the eyes of the bespeakers and framers of “the most accredited Codes of cultivated Europe,” and consequently in the eyes of the authors of this which is so soon to be numbered among those same accredited Codes,—correspondent to the excellence of the illustrious masters, is the depravity of those inferiors, who, in the character of servants, are placed under their rule: inbred is the refractoriness of those unworthy servants; wilful and perverse the blindness, by which that excellence is concealed from their perception: insolent, obstinate and incessant, the efforts they ever have been and ever will be in the habit of making, in the flagitious endeavour to withdraw their necks from under the too well deserved and altogether necessary yoke. For stopping a propensity thus perverse, what chance can be afforded, by any image less appalling than that of the dance of death, perpetually staring them in the face?

Full of these ideas, sword and axe in hand, gentlemen fall to work accordingly. They begin with killing all those, who, in any view, and in particular in the view of reinstating the king in the defalcated portion of his power, have the audacity to meditate any diminution of theirs, to make any “alteration,” in any of all those things that have been done in their favour.

When these are despatched, the next set to be disposed of, are—all those by whom anything has been done, to the prejudice of the sovereign partnership concern, against the person or authority of the original parties, whose names stand at present but second in the firm. Death, on the one hand, for all those, by whom, towards the restoration of the old authority, anything shall be attempted or conspired to be attempted, in diminution of the new: death, on the other hand, for all those, by whom, for the augmentation of the new authority, or any other purpose, anything shall be attempted or conspired to be attempted, in further diminution of the old.

When, under chapter first of this title, one half of the people whose greatest happiness is gentlemen’s object, are disposed of, and under chapter ii. the other half, what will be the number left alive?—For the solution of this question, no very deep skill in arithmetic seems necessary.

For all this riddance, though, if life be worth anything, nothing surely can afford a justification, the wisdom of the most accredited Codes of cultivated Europe, at any rate,—leaving out of the case the most celebrated of any of them—the Tuscan,—affords, it must be confessed, but too natural a cause; and, not only but too natural a cause, but, in so far as, on the part of those, in whose hands the care of the happiness of millions is intrusted, blind imitation affords an excuse, but too good an excuse.

True it is, that, for giving security in its several shapes to the whole number of those of whom the community is composed, appointment must be made, of some men in particular, to whom, in various capacities and ranks, this occupation shall, in a more especial manner, be assigned: not less true is it, that nothing could be more palpably absurd and mischievous than such a denial, if to those by whom security is thus afforded to others, that security which is necessary for themselves should, in any shape or in any degree, be denied. But even supposing, what is more easily supposed than proved, that, in the instance of these Trustees, any additional security, over and above what is given to them as principals, is necessary, still it will remain to be shown by any one who thinks he can show it, what use there can be in setting this ultra-security to stand first.

How naturally and frequently does the mischief aimed at by injustice recoil upon itself! how natural and frequent an effect of the too much is the too little!

When it is in no other character than that of a member of the community, that a public functionary applies for protection against injury,—all affections, all hearts, and all hands, are on his side: when it is in a distinct and privileged character, many hands, as well as many more hearts, will pretty certainly be against him. Well would it be for the country, whatever it be, if on this occasion instead of many one might say all. This, however, is unhappily not the case: since, be the distinction ever so absurd and mischievous, and in consequence of it the conduct of the functionary in question ever so unwarrantable, so it is that, in every country, by the laws of which, such distinctions are made, community of sinister interests will have secured to him partisans and supporters in vast multitudes, and interestbegotten prejudices—the prejudices begotten by that same sinister interest—perhaps still more.

So much for theory. Look now, Sir, to experience.

In the Anglo-American United States, no instrument of ultra security has place. None whatever. And what is the consequence? that the security enjoyed by the functionaries in question—that the security enjoyed by the community of which they are functionaries—is the less entire? No: but that it is much more so. Take for example the chief. For injury done or intended in any shape to the president of the United States, no greater or other is the punishment provided, than for the like injury, to the man, if there be a man, who blacks his shoes. What is the consequence? is he the less safe? Not to speak of Asia, exists there in all Europe, a monarch by whom anything like equal security is enjoyed? Oh, no: nor ever will or can there be. The monarch is a mark for every madman to shoot at: and not only for every madman, but for every man who, in his own eyes, has reason to regard himself as suffering injury at the hands of the uncontrolled arbiter of his fate. And to what place can the monarch betake himself, without being encompassed by multitudes, to whose minds, notions to that effect may, for aught he can tell, be incessantly present?

Vainly would any one say—Ours is a Monarchy, and in a Monarchy these distinctions, together with a thousand others in the same strain, are indispensably necessary. This necessity, so lightly assumed, how comes it to be known to you? What ground have you assigned, what ground can you assign, for it? Absolutely none:—what experience there is, is all against you: experience for you there is none.

Suppose it were even as you say, what would it prove? only that monarchy is no fit form of government: and that this part of your constitution stands in need of alteration: and certainly not the less for the slaughter which gentlemen have been employing in their endeavours to prevent it. Were they aware—were they not aware—of the importance of the limitation, when, to the field of that legislative wisdom to which theirs disdained not to have regard, they assigned the limits which Europe has for its bounds? Be this as it may, had America—free and liberalized America—been within their view, and taken for their model,—Sir, you see the consequence. Taking Europe for their model, they violated the Spanish Constitution in its most essential and fundamental articles: they took for their end in view, how erroneous soever may have been their conception of it, the greatest happiness of the ruling few:—of that class of which they themselves are such distinguished ornaments: had they taken for their guide those essential articles of their own Constitution, they would have taken for their end in view the greatest happiness of the greatest number, and no such articles as those with which these two chapters of their Code are filled, would have been found in it.

Sir, it was their own doing—it was their own spontaneous doing—the heaping up all this pile of so much worse than useless punishments. By no article in the Constitutional Code were they compelled to it. By the Code, the powers were indeed created and conferred: but as to the punishments, if any, which should be employed in the endeavour to give effect to those powers,—on this head nothing can I discover but a blank.

Nor, because accordant with and confirmed by a principle of a democratical character, is there anything in this plan of arrangement,—in this order of insertion—that should prevent it from being pursued in a monarchy: in a monarchy, limited or even absolute: in a word, under any other form of government. For some time to come, it is not by every nation, that so much as the desire of living under a democratical government will be entertained: and of those by which it is entertained, it is not by every one that the faculty, of giving to any such desire its gratification, will be possessed. But, to no government—democratical, limitedly monarchical, or unlimitedly monarchical—to no government, however extensively and constantly determined in its conduct by regard for the separate and sinister interest of the ruling few and the supremely ruling one, to no government can it naturally be a discordant and unacceptable spectacle, to see the rule of action—at any rate this part of it—not only intelligible to all, but satisfactory to all: in no government can it be otherwise than satisfactory to its rulers to see their own personal security standing on its steadiest and surest basis.

Order of insertion is one thing: classification and nomenclature—(for they are scarcely separable) classification and nomenclature, by natural philosophers commonly comprehended under one name method, with or without regard to order of precedence, another. Of a rationale, formed by the undiscontinued application of the so often mentioned fundamental principle of your constitution, a correspondent method of classification and nomenclature, is a natural, not to say an inseparable, accompaniment and instrument. But, to the gentlemen in question, even without, still more with, this accompaniment, a rationale would have been a bridle: and, as I have so often had occasion to say, gentlemen did not want a bridle: no man in their situation does. Natural and rational are attributes, by which, with incontestible, and even with exclusive propriety, a method thus deduced and accompanied, may assuredly stand designated. This natural and rational method—apply it to the penal code, you will in so doing have gone the greatest part of the way, towards the applying it to the two others. According to the above-mentioned fundamental principle, offences is the name given in common to all acts, which, being regarded as productive of a balance on the side of mischief, are taken for the subjects of prohibition and thence of punishment. Mischief is, by the amount of it, a defalcation made from the greatest happiness of the greatest number: and to be real, it must, as above-noticed, consist exclusively either of pain in some determinate shape, or of loss of pleasure in some determinate shape: and in both its forms, or else it will not be prevented in act, it must, as above, throughout the whole of the field be opposed while as yet but in tendency: opposed, and to a considerable extent by means of punishment.

According to this principle, offences there can be none, but what are offences against individuals:—acts which, in act or in tendency, are productive of mischief, in this or that determinate shape, to individuals: to individuals—meaning rational beings: to which, if it be agreeable to you to add to a certain extent irrational ones, I would with pleasure, so they be sensitive ones, join with you, (as we have begun to do in England,) were it only for the sake of rational ones. To these, I am perfectly ready to add the Almighty Being, the very instant you have shown me that he is susceptible of pain or loss of pleasure through human agency, and at the same time unable to afford sufficient protection and security to himself. So likewise, but always under the same condition, to fictitious entities: such as religion, order, good order, “political order,” “public order,” or as many other orders as gentlemen please: in short, (but always under the same condition,) to fictitious entities, of any other sort, and in any number, that they please.

In act, or, in a distinctly perceptible and assignable way in tendency, every act, if fit to be, by means of punishment, erected into an offence, and thus placed upon the list of punishable offences, must, according to the above principle, be an offence against an individual or individuals:—an act productive of mischief, as above, to an individual or individuals. But, at the time of committing the act, these individuals may either be assignable or unassignable: when unassignable, they may be either comprised or not within a class less extensive than the class composed of the whole community—for instance, a class constituted by professional occupation, or a class constituted by vicinity of residence. And thus you have the three first and all-comprehensive divisions of offences: namely, I. Private offences—offences, the mischief of which applies to assignable individuals: II. Semi-public offences—offences, the mischief of which is in its range confined to such unassignable individuals as are comprehended within a particular class. III. Public offences—offences, the mischief of which extends in tendency to all the individuals, to all without exception or limitation, of whom the whole community is composed. (Note, that in an offence of a semi-public or public character, a private offence will frequently be included.)

Looking now to offences against individuals, you will find them distinguishable into offences against person, offences against reputation, offences against property, and offences against condition in life: and if, to any individual, mischief be done in any shape, you will, I believe, Sir, find it comprehendible under one or other of those divisions. Offences against person, you will find a convenience in distinguishing into offences injurious to body, and offences injurious to mind: not that body and mind are ever seen walking—the one one way, the other the other;—nor that pain or loss of pleasure can affect the body without affecting the mind;—but that in some cases the mischief will have its seat in the body only, from thence affecting the mind; while in others it will have its seat only in the mind. Looking to offences against reputation, you will (I must confess) see in reputation nothing more than a fictitious entity. But the adoption of it was found necessary, for the giving an intelligible and familiar appellation to a class of mischievous acts, which could not otherwise have been distinctly designated: and as this reputation is the reputation of a man, and a man is a real entity, you are not by this denomination put in danger of being sent in chase of clouds or shadows, as in those other cases: and, though of the mischief done to a man’s reputation, the seat cannot be elsewhere than either in his body or his mind, nor commonly very distinctly perceptible elsewhere than in his mind,—yet, for the reason just mentioned, you will, I believe, find a convenience in distinguishing it from all other offences, the mischief of which has its seat in the mind.

Looking at offences against property,—in property, if all the shapes into which it has been commonly cast are to be comprised, you will see objects, for the declaration or conception of which, you will not find it possible to speak, or even think, without making use of the fictitious entities, which, on this occasion, in such abundant variety, the authors of language have been under the necessity of creating for the purposes of discourse: you will see—not only real entities—things styled immoveable, relatively immoveable portions of our ever-moving planet—and those other real entities styled things moveable,—but the fictitious entities styled services, and rights of way, and rents, and tolls, and annuities and so forth, without end. But still, by no such fictitious entities, Sir, will you be put in any danger of being led away, from the consideration of the real and only really existing mischief—pain or loss of pleasure, of body or mind, or both—the only really existing mischief, that can be occasioned, or be in a way to be occasioned, to one or more of the really existing and human beings, whose good fortune it is to have you for their representative; and who, in a shape so honourable to you, have a sort of property in your services, in the very best shape in which it is in your power to render them.

Looking to offences against condition, you will find the like necessity, and thence the like justification, for the nominal existence given to this fictitious entity: for, though to a man’s condition in life you will find that no mischief can be done, by any act, any otherwise than through the medium of his property, or in some shape or other of his reputation, or of both, (for of the shapes in which property has place, property in human service, dependent in many instances in no small degree on reputation, is one,)—nor then, without producing pain or loss of pleasure, to body or mind, or both,—yet here, as before, you will find, in but too great abundance, acts, the effects of which, may with truth be said to be mischievous to a man in respect of his condition in life, but which, at the same time, having or not having their seat in the mind, could not be said to be mischievous to him in respect of property in any particular shape, or in respect of reputation alone: though perhaps they are so at the same time in respect of reputation, and in respect of property in a variety of shapes: the case being, that, on account of some peculiarities in the nature of the mischief, or in the manner in which it is produced, it requires to be distinguished by a separate denomination from the aggregate stock of the offences comprehended in the before-mentioned denominations.

Take for examples, conditions genealogical, such as the pair of correlative conditions belonging to husband and wife, together with the several others which, springing out of them, constitute the genealogical tree. Add those other conditions, which, without being genealogical, may be styled domestic, such as those of master and servant: add again those other conditions, which, like the former, are not political, and are still of a private nature, but are not necessarily correlative: I mean those composed of occupations of all sorts, other than those of public functionaries considered as such: add lastly, conditions political, all of them corresponding to, and constituted by, so many modes of servantship, as towards the community at large, considered in the character of master: of these last, the whole aggregate may be divided into public and semi-public, as in the case of offences.

In all these several cases, the chief value of the condition, in respect of benefit, and in respect of burthen, will be composed of services: in so far as the rendering of the services is obligatory, the possession of the condition will involve a right to the services in question: a sort of property, of which those services are the subject-matter: in this case, for example, are the correlative conditions above-mentioned: in so far as the rendering of the services to which the occupation owes its value is not obligatory, the value of it consists mostly of a sort of chance for obtaining free services, in exchange for other free services: in this case are the various occupations exercised by workmen and traders of all classes.

In this process, Sir, if your patience has been persevering enough to carry you through with it, you have seen logic employed in classification, and thereby in theory: in payment for this labour, you will now, I hope, have the satisfaction of seeing some good effects producible from it in practice.

In so far as, in a system of penal law, the denominations thus employed, afford, as above, indication of the nature of the mischief, in consideration of which, the acts in question have been placed upon the list of punishable offences;—of the nature of the mischief, and consequently of the existence of mischief in that shape,—in so far as this indication is afforded, every denomination, by which no such indication is afforded, will mismatch with them, and, on the part of the acts which it denominates, present a sort of presumptive proof, of want of title to be admitted into the company of the rest. In such a method, every such instructive denomination stands therefore as a sort of security against the admission of any group of acts, in which no determinately mischievous character can be found.

Take away the security, give admittance to acts, by the denominations of which, no such indication is afforded,—put aside the only natural and rational method,—then comes in as above—then comes in, as of course—some unnatural, irrational, and arbitrary one. Then come in, at every turn,—as sinister interest, or interest-begotten prejudice dictates,—acts which, not being productive of mischief to any such amount, that the mischief of the least punishment, by which any diminution could be produced in it, would not be still greater,—or even not being productive of mischief to any amount at all,—afford no sufficient warrant for the application of punishment. For the designation of these same innoxious acts,—since, by the supposition, no apt word, expressive of mischief in any shape, as being produced by them is to be found,—the words employed are such as are designative of this or that vague generality to which every man feels himself at liberty to attach whatever interpretation best suits his views: every man, and in particular every man who has it in his power, to give to his own interpretation the desired effect. Of these convenient generalities, Sir, would you see an example? Examples more than one—examples sufficient for illustration—may be seen in the system of classification and designation employed by the Committee. Witness Title I. Offences against political order: Title III. Offences against public order: Title VII. Offences against buonas costumbres, which, I presume, is a translation given to the Latin phrase bonos mores; and which, I infer from the use thus made of it, is in Spain become familiar to unlearned ears. In English, good customs—the literal translation of the Spanish words taken in their separate sense, would not serve:—offences against good customs—would not pass: still less would good manners—another of the literal translations of the two Latin words: In a boarding school, yes: but, in a penal Code, offences against good manners would not pass. To an English ear, by neither of these phrases would a sufficiently plausible pretence be afforded for penal visitation:—to use a recently invented, religiously and hypocritically cruel, rhetorical phrase.

Accordingly, when, for the affording, by political power, a gratification to this or that personal or individual antipathy, a formulary is wanted, the Latin phrase—bonos mores, by which the obnoxious act is enveloped in a cloud of convenient mystery,—offers a formulary, the suitableness of which has been proved by experience.

As to the phrase offences against good customs, it carries upon the face of it an objection against itself. Because A and B chose to do a thing, why lay hold on C who does not chose to do it, and punish him for not doing it? And so in case of omission or forbearance. What ground can the mere exercise of liberty by one man, or any number of men, afford, for imposing obligation on any other?

Of this, and of every other objection, but that of meaning nothing, and thence anything,—anything which it may suit the purpose of tyranny to make it mean, the word order stands altogether clear. Allow to the legislator the unlimited use and application of but this one word, nothing more is wanted to fit him out in the completest manner in the character of a despot, and that despot a tyrannical one. The acts which draw down upon innocent men the vengeance of the most atrocious tyrants upon record, can there have been any one of them that was not an offence against order? against the order, established by the tyrant by whom the man was punished for them? Tiberius, Nero, Domitian, Commodus, Caracalla, Charles the Ninth of France, Lewis the Fourteenth of France, Philip the Second of your own country and Belgium—Philip the Second, not to come down any lower—in the word order, had not they, for punishing every one of those whom it was their pleasure to punish, as good a warrant, as gentlemen have given themselves by the use made of this word in their Code?

By the word good, when prefixed, as it sometimes is, to the word order, intimation of something like a reference to public opinion seems conveyed. But, not even this little softening would gentlemen vouchsafe to apply to the despotism it proclaims.

Let me not, Sir, be misconceived. What I do not mean to say is—that among the acts, to which a title is given by them with the word order in it, there are not any to which it is fit that the character of punishable offences should be given; on the contrary, there are perhaps not many, to which, if it depended upon me, I myself should not give that character. All I mean to say is—that if an act’s being an offence against order is admitted as a sufficient warrant for placing it on the list of punishable acts, the consequence will be—that, along with acts affording a fit demand for punishment, others that afford no such demand may in any number be slipt into the list with little difficulty.

By a natural and rational method as above described, not only is a bar opposed to acts that are not mischievous, but so likewise is a thread afforded for the investigation and finding out of such as are.

In a method, thus formed by the application which, on each occasion, is made, of one and the same simple principle,—in every such method, by the relation which every offence bears to every other and to the whole catalogue of offences, you are no less naturally led to the discovery of undue omissions, than to that of undue insertions. In a catalogue of offences, in the formation of which no such instrument of indication has been employed, there may be gaps to any amount unfilled: to any extent, modifications, of maleficence, to which no penal bar has been opposed: deficiences ever so numerous and so extensive, and yet no indication of them afforded.

And as it is in regard to offences themselves, so is it in regard to other extensive objects, for the application of which a demand is created by the catalogue of offences. Witness causes of satisfaction for injury, causes of justification, aggravation, extenuation: causes for pardon, total and partial, formal and virtual.

Thus, not only in a direct way, by the application made of it to each particular case, but in an additional way by means of the method to which it gives birth, does the principle of the greatest happiness of the greatest number, cover the whole field of legislation with its salutary influence. By a method deduced from this principle, a bar is in every part opposed to the introduction of arbitrary arrangements in any shape, a thread afforded for the investigation and introduction of suitable ones, and in every part information given of the design pursued throughout the whole, and of the relation which each part bears to every other. By no mode of arrangement, not deduced from that all-vivifying and all-directing principle, can any such satisfaction be afforded. In every part, you see groups of offences, for the insertion of which no reason is visible: in the whole, you see a receptacle, into which, for the purpose of giving to them this disastrous effect, acts of any description—acts the most purely innocent—may with equal propriety, for anything that appears, be inserted.

No, Sir: without a good method for your penal Code, no good penal Code can you have: without a rationale, deduced from the fundamental principle of your Constitutional Code—greatest happiness of greatest number,—no good method can you have.

Gentlemen saw before them a method, of which the principle of the greatest happiness of the greatest number—the polar star of your and their Constitutional Code—was the object of actual and perpetual observation. Why would not they employ it? The answer is obvious, and but too uncontrovertible: Because it would not suit their purposes.

4.Example fourth and last. All Spaniards put under martial law.

In the Preliminary Discourse, (p. xviii.) “the jurisdiction of the military courts continues,” they say, “on their plan, confined to military offences:” that is to say (so they add by way of explanation) “to infraction and transgression of military discipline and ordenanza,” in English, order or ordinances, I cannot absolutely take upon me to say which. For a promise, satisfactory enough this promise. But how is it performed? Answer. By placing the civil authorities in subordination to the military: and in particular, by making military men, in so far as it shall please them to come into conflict with non-military men, judges in their own cause.

There, Sir, you see the position. Now for proof.

Turning to Preliminary Title, Chapter xiii. Articles 187, 188, I find as follows—

“Reserved equally (igualmente) for the military authority and jurisdiction, in quality of military offences, are the following:—”

“Firstly: acts of disrespect (los desacatos) or violence, committed by any person whatsoever, against military men who are found” (que se hallen) (meaning it is hoped only at the time of their being oocupied) “in an armed state in military service.” Without this limitation in point of time—a limitation which, under this wording, a judge may apply or not apply as he feels disposed—any person whatsoever may be punished in a military manner by a military man for any act deemed by him an act of disrespect towards a military man.

“Secondly: those” (offences) “which are committed in like manner” (tambien) “by any person whatsoever, either within the quarters, riding-schools, magazines, and other military edifices, or to the damage of any effects which are therein kept.”

“Thirdly: acts committed by any person whatsoever in aid of a foreign enemy.”

By this third clause, compared with Title ii. Chapter i. articles from 252 to 261, a fair sparring match might seem to be set on foot, between judicatories military and civil, on this part of the field. But, as the hands of the civilians (it has been or will be seen) are tied behind them, no mutual bruises need be apprehended.

Now, then, Sir—on any account whatever,—by behaviour ever so bad, or by behaviour ever so meritorious,—suppose a non-military man to have rendered himself obnoxious, to a man, or to a certain body of men, in the military service. Under the second clause, if by any means they can contrive to get him, at any time, within their “quarters,” (whatever may be their “quarters,”) or when they are upon a march, or in short upon duty, anywhere,—what is the injury it will not be in their power, in virtue of this article, to inflict on him, and without possibility of redress?—But no: they need not be at any such trouble. Let him be where he will, they have but to pick a quarrel with him—to bestow on him any such treatment, as may have the effect of drawing from him words of a “disrespectful” nature, he is thereby placed at their disposal.

A judge upon the bench—suppose an occasion to present itself, in which it may appear to him matter of duty, to express, in relation to the conduct of any man of the military order, any such sentiment of disapprobation as a judicatory composed of men of that same order shall be pleased to regard as being expressive of disrespect: this judge, if he be a person (persona)—this judge—though he be of the highest order of judges, nay the minister of justice himself,—is he not, Sir, by this article, placed no less absolutely at their mercy than the meanest citizen?

In all these several cases, not only is the judicatory to be military; the punishment is to be so likewise. The association is formed by igualmente:—one of the instruments of entanglement, which the genius of confusion, under the guise of the genius of eloquence, has contrived to put into gentlemen’s hands.

By this instrument it is—by their igualmente—lodged as it is in article 188—by this it is that, ere we can obtain an adequate comprehension of what is done by this same article 188, we are made to go back to article 187: in which article the first word I see is a tambien, by which I am sent further back to the two first articles of the same 13th chapter, namely, articles 185 and 186; which same article 186 has nothing to do with the subject, being confined to ecclesiastical persons and ecclesiastical offences: for this same article 185, conceived as it is in general terms, seems to be inserted by way of ornament, the general terms not adding, as far as I can perceive, anything to the mass of the more particular arrangements which follow it.

Of the words which the also—Tambien (or in like manner) in article 187, serve to introduce,—the following, in so far as my interpretation of them is correct, is a translation as literal as possible. “Reserved to the military authority and jurisdiction is the cognizance and chastisement (castigo) of the offences (delitos, culpas y faltas)* which, “contrary to their discipline respectively, military persons commit.” In the word castigo, may be seen the demand created for the reference thus made from the 188th to this same 187th article: for, thus it appears, that, by this word as inserted in 187, and, by the word igualmente in article 188 applied to and ingrafted upon this same article 188,—not only is the judicatory, by which persons not military are in these cases to be tried, appointed to be a military judicatory, but, as I set out with saying, the punishments which they are to suffer, are appointed to be military punishments.

Note that, by being thus subjected to the military authority as exercised by courts martial, the civil Judges of all classes are subjected to the arbitrary power of the monarch. For, in the Constitutional Code, by article 171, number the 8th, to the monarch it belongs to command the army and navy, and to appoint the generals and admirals: under which provision must be understood to be comprehended, (though forgotten to be expressed,) the removal of them, or else I do not understand how the command given to him over them can be exercised:—if not removeable, a commander in chief, when once appointed, will be absolute.

For this subjection of the civil judicatories to the arbitrary power of the King—for this subjection, thus established in an indirect way, through the medium of his necessarily arbitrary authority over the military judicatories, the constitution and the people would not, it is true, be much the worse, if those same civil authorities were, in a direct way, in a state of equally effectual subjection to that same power. But this is not the case. For, by that same article 171, number 4th, it is not by the king alone that the magistrates (Magistrados including I suppose judges) of all the civil and criminal tribunals are to be nominated, but by the king at the presentation of the council of State, in the appointment of the members of which, by articles 233, 234, he has no other share than the choice of the number in question out of thrice the number presented to him by the Cortes. Thus as to appointment: and as to removal, “magistrates and judges” (says article 252, judges being now inserted—for thus are your immutable laws drawn up) “magistrates and judges cannot be deprived of their situations, without cause legally proved, and stated in their sentence: nor suspended, unless in consequence of accusation legally instituted.”

Whether, for words deemed wanting in respect applied to a soldier, a court martial shall be pleased to flog or beat the Judges of the supreme court of justice erected under Article 259 of the Constitutional Code, or content themselves with imprisoning them,—regard for the constitution will, I make no doubt, suffice for preventing the military Judge from signing, either a sentence of forfeiture, or so much as an order of suspension in their case. But, by any such regard for the constitution, it does not appear to me, how the mischief, if any, from the subjection of the civil judicial authorities to the arbitrary will of the monarch,—through the medium of his courts-martial, as above,—will be very materially diminished.

Was it by design, Sir, was it by inadvertence, that the sort of arrangement you have seen, was proposed by gentlemen for your adoption? In either case, what say you to it? In either case, at the elections before the next Cortes but one, what will their constituents say to it?

Nothing of professional or other prejudice—nothing of exaggeration, Sir,—need you fear in me. Knowing something of your non-military judicatories in so far as they are upon the Roman models—knowing something of these and next to nothing of your military ones,—for the present, and until your judicial establishment, and system of judicial procedure, have been put upon a footing very different from that in which I understand them to stand at present,—supposing professional sympathies and antipathies out of the question, I have more confidence in the military than in the non-military ones. Why? Because the military ones have at any rate this distinguishing character in their favour, so at least I take for granted, namely, that by delay, vexation, and factitious expense, they have nothing to gain, while the non-military ones have everything to gain. To real justice,—not only among us, as far as little less than sixty years of pretty close attention has enabled me to judge, but among you, as far as depends either upon the system of procedure or the ordinary dispositions of the judge,—to real justice the citizen has, I should expect to find, a better chance in a military judicatory, than in the highest ordinary judicatory that is not military. If I have not been misinformed, in the case of offences of an insurrectionary nature, leaving or not leaving the cognizance of them to be shared by the non-military judicatories, you have, by a recent decree, given the cognizance of them to judicatories of a military cast:—to judicatories, in which, whether the judges be or be not of the military profession, (for I know not which is the case,) the mode of procedure is at any rate military. To me this information, taken according to such conception as I was in a way to form in relation to it, was I confess not unsatisfactory. Now, said I to myself, there seems a probability of a decision: till now there has been no chance. Of this conception, right or wrong, my observations on Judge Hermosa’s panegyric on judicial forms and delays, may help to show the grounds.

In the present state of civil judicature,—even to give to military men the cognizance of disputes, on whatever subject, between non-military men and military men, might for aught I can say be an improvement. But, so long as there are judicatures not military, to which the cognizance of causes of any kind continues to be intrusted,—to think of intrusting to military judicatures the cognizance of causes arising out of disputes between non-military men on the one side and military on the other, this is what I must leave to the gentlemen in question, and to the construction put by them upon the Articles relative to the greatest happiness of the greatest number, if the remembrance of it has not dropt altogether out of their minds.

Among the sources of “controverted points,” this topic relative to judicatories of exception, as you may remember, we have found reckoned: but no ground do I, on this occasion, find for any such supposition, as that the question whether the civil authority should be subject to the military, or the military to the civil, was of the number of these same controverted points. Unanimous, as far as appears, has been the opinion, by which the civil authority is placed, as above, in subjection to the military: the opinion unanimous, and the propriety of it too plainly manifest to stard in any need of support from reasons.

Sir, this is going even beyond us. Even in our government, military as, under our “best of kings,” it is become, non-military men have not yet been delivered up to military judicatories. A servant of the king gives orders for killing us, and we are killed: but should a military man, by whom, without provocation we have been killed, be called to account for it, it would be in some ordinary and non-military judicatory that the account would be rendered, and to some non-military functionary or functionaries that the giving him impunity would be consigned: to the king’s attorney-general, by means of an instrument called a noli prosequi or a nolle prosequi; to the chancellor with the king’s signature, by means of an express pardon, or (what is more commodious) to the judge, by whom the man is tried, by means of a virtual pardon, manufactured out of a quibble:—out of some recondite rule of evidence, or other rule of procedure, which, if it has not yet been made, can at any time be made for the purpose: just as penal law to any extent is, in the name of common law, made, every day, by this or that dependent creature of the king in the situation of judge, without putting the legislature to the trouble.

We have priests, to order unarmed and unoffending men, with women and children, to be killed, and ministers with kings at their backs to reward them for so doing: we have posts, by the receipt of which men are entitled to receive sinecures of thousands a-year for such services.

All this may be done, and is done. But what with us remains as yet to be done is—to subject men not military, for offences not military, to be tried, without any such formality as that of jury trial, by a court-martial composed of military officers. Yes, Sir: as yet,—though I cannot take upon me to promise how long it will continue so,—as yet for an offence not military, be it what it may,—and be the individual specially injured, if there be one, who he may,—a military man, be he who he may, may be tried, and is tried, by a judicatory not military: no non-military man is, for any offence, be it what it may, tried by a military judicatory.

Though you must have quitted Paris,—taking for granted that you have given directions for the transmission of my letters,—not having been forbidden, I give them and shall continue to give them the same direction as before.

One observation or two more, before I quit the subject of method altogether.

In different places of the proposed Code, I see a number of articles, encumbered, each of them, with a clause, by which, where the offender is a public functionary, an ultrà punishment is added. Witness Articles 202, 203, 204, 206, 207, 213, 214: and in short such seems to be the method pursued throughout: also a separate clause to the like effect applying to ecclesiastics; as if an ecclesiastic, as such, were not a public “functionary.” But perhaps that title was regarded as not belonging to Monks or Sinecurists: and, in the apprehensions in which the punishments originated, foreign ecclesiastics, not beneficed in Spain, would naturally be included.

Various are the inconveniences resulting from this practice:—by it, the conception and memory, of individuals at large, is burthened with matter with which they have no concern: the bulk of the whole receives a useless increase: and, by a want of uniformity and correctness in the mode of expression, imperfections, too various to be here brought to view, are liable to be produced.

In another part of this same Code, I see a compartment, by the consistent and comprehensive use of which the inconvenience might at any rate have been lessened. I mean—in Part 1, Title vi., containing, in 12 chapters, Articles 76, namely, from 493 to 528. It is headed—“Of Offences of Public Functionaries in the exercise of their duties.” Offences, namely, delitos y culpas: faltas being, on this occasion, as on the one above noticed, omitted. Here then is a place, into which the matter relative to public functionaries, as above, should naturally have had admission: at any rate, supposing the words “in the exercise of their duties,” omitted: as they might have been without inconvenience. Unhappily, there is no reference from either of these places to the other: the consequence is—that,—ere he can be assured of his having information of the whole of the burthen, for ignorance of which, or any part of it, he is exposed to be punished, in many perhaps most instances by loss of office,—a public functionary must have hunted through the whole Code.

By the title thus given to that division of the Code, is not a presumption, Sir, afforded, that, by the matter of it, information, in some shape or other, was meant to be given, to all the several individuals so denominated, of the whole mass of the obligations respectively imposed upon them? For, unless it be in proportion as such information is possessed, how is it that, by the community at large, the benefit, expected from the fulfilment of these same obligations, can be received? the afflictive punishments, appointed in proportion to non-fulfilment, be avoided?

But, if so, how happens it, that no reference is there made, to so many other articles, in which other obligations not less serious are imposed upon the same persons? Thus faint are the traces, which in that part the proposed penal Code affords, of any regard for the two characteristic and fundamental articles of the Constitutional Code.

To confront with the method thus exemplified,—allow me, Sir, to submit to you the two short rules, by which the disposition of the matter, in the whole body of the law, has been governed,—in a Code, in the penning of which, that all-illuminating principle has never been for a moment out of sight.

Rule 1. Make known to every man what belongs to him.

Rule 2. Burthen no man with anything that does not belong to him.

Would it be agreeable to you, Sir, to see them both in a nutshell? Behold them then in a Latin one. Rule 1, Suum cuique: Rule 2, non suum nulli.

1. Make known to every man what it belongs to him to know. Functionary or non-functionary, no more would I think of making a man suffer, for non-observance of an article of law, unless it had been put into his hands, having first been cleared of all matter in which he had no concern, than I would think of punishing a child, for the not having performed a lesson that had never been set him. “No more,” did I say? I should have said—much less. Think, Sir, of the difference as to the penal consequences!

A few observations,—showing, on the one hand, the all-embracing application capable of being made of these two short rules, on the other hand, the aspect borne towards them by this work of your illustrious colleagues,—I know not, Sir, how to forbear troubling you with.

Be the Code what it may, if, of the class to which the individual in question belongs mention is made, he is in point of interest either concerned or not concerned in it: if concerned, he is so either in quality of party burthened, or in quality of party favoured, or in both qualities.

Taking into mind the entire mass of the matter of law, including not only that portion which at the time in question happens to be actually in existence, but also whatsoever other matter there be, a demand for which may eventually come to be found to have place,—in a word, taking into mind the whole body of the law actual and desirable together,—let a man consider it with reference to the number and description of the persons affected in point of interest by the several distinguishable parts of it, he will find it, according to a principle of division, at once natural and all-comprehensive, divisible into the general Code, and the system or assemblage of particular Codes.

In the general Code,—saving a few exceptions, which on inspection will be obvious to every eye,—the two opposite and correlative situations of party benefited and party burthened will be seen to belong alike to every member of the community: in so far as protection is afforded him from mischief at large, and in particular from whatever mischief he stands exposed to suffer from the effects of mischievous acts on the part of other men, the situation a man occupies is that of party benefited: in so far as coercion, whether in the shape of restraint or constraint, is imposed upon him,—whether for the purpose of preventing him from being an instrument of mischief, or causing him to be an instrument of good, to other men,—or for any other purposes, all manner of bad purposes included,—the situation he occupies is that of party burthened. To the extent therefore of the whole field of the general Code, every man has this double interest in being acquainted with the matter of it: this double cause, for wishing to be acquainted with it. In any particular part of it, according to circumstances, it may be in the one or the other capacity, that the interest he thus has in being acquainted with it is greatest.

In the system of particular Codes, may be seen that one of the two great masses, which in this respect presents the greatest differences.

Persons taxed, &c., public functionaries, and parties to contracts—by these denominations are brought to view the three most extensive classes of persons, who, in the situation of parties specially burthened, have respectively an interest in the matter of this or that Code belonging to the system of particular Codes.

I.Persons taxed, &c. By this I mean the persons of various classes, that of public functionaries not excepted, on whom, for the benefit of the community at large, or of this or that portion of it, the obligation of rendering service, in the shape of payment of money, or any other shape, is imposed.

In the particular Codes, by which taxes are imposed, for the use of the community at large, the several persons on whom respectively the contribution in its several shapes is imposed—these, commonly with the addition of others, to whom, on each several occasion, it happens to be in some way or other respectively connected with them,—are the parties thus specially burthened: the party benefited being, as just mentioned, the community at large. Where, instead of the community at large, the party benefited is either a particular class, or a particular individual,—his description receives the changes thus indicated.

To impose a tax, &c., is to impose the obligation of rendering to a party of this or that description as above, service in this or that shape: and of service, the simplest and most comprehensive shape is that which consists in the transfer of money.

In this one group will be comprehended, it is evident, a numerous and ever variable multitude of particular Codes, in each of which, in the character of party burthened, a class more or less numerous of individuals will find itself interested: and, in the instance of each individual, there will be an assemblage of Codes, more or less numerous, and ever variable, in which he will find himself to have an interest.

II.Public Functionaries. In a particular Code, in which anything is ordained that bears upon the situation of a public functionary, or a class of public functionaries, as such,—the functionary, in respect of any obligations imposed upon him, is the party specially burthened: if, in return for the services expected at his hands, the matter of reward in any shape is placed within his reach, he is in so far a party specially favoured. If, to enable him to fulfil any obligation imposed upon him, or in a word any service expected at his hands, power in any shape is conferred on him,—he is, in that character also, a party specially favoured. In respect of the reward, he may be said to be not only specially favoured, but moreover specially benefited: not so in the case of the power, if considered as charged with the obligation, and not accompanied with the reward. But note, that in many shapes, in many eyes, the power, though not accompanied with any distinct reward, and notwithstanding every obligation it is charged with, has the effect of reward.

Unless it be in the case of a monarchy,—concomitant to power in every shape, is, or is supposed to be, obligation in the correspondent shape—obligation to direct the exercise of the power to the rendering of the services, by which the function is characterized.

III.Persons engaged in contracts. In the case of a contract, the same person has place in the two opposite and correspondent characters: namely, that of party benefited as well as favoured, and that of party burthened. In the benefit expected from it, each party sees the inducement, by which he was led to take upon himself the burthen: and, unless in his eyes the benefit from the transaction had at the time been greater than the burthen, he would not have engaged in it.

Of the several conditions in life, the two most important and most extensively entered into—namely, that of husband and wife, and that of master and servant, are respectively the result of a correspondent contract. In the case of father and child, the two opposite and correspondent conditions,—though not constituted by a contract, to which the persons so related were both of them parties,—derive their existence from contract, namely that to which the two parents were parties, and in which the child was eventually among the subject-matters of it.

That on the one hand the burthen upon the conception and the memory, on the other hand the burthen upon the purse, may be as endurable as possible, in the giving expression to this matter of the body of the law, repetition will of course be to be avoided as much as possible. If—in every particular Code headed by the name of the class it belongs to, not only the whole of the matter in respect of which a man belonging to that class is party benefited, but the whole of the matter in which he is party burthened, were inserted at length,—no small portion would thus be to be printed twice over: and the burthen, as well upon the purse as upon the conception and the memory, would, in a proportion more or less considerable, be increased. In the instance of every particular class of persons,—in the Code, the matter of which belongs to that class, and on that account will require to be denominated from it,—in respect of some part of that matter, the individuals belonging to that class will be parties specially benefited, or at any rate parties specially favoured; in respect of other parts, parties bound. In whichever of the two characters a person is concerned, it is alike requisite, that information of the concern he has in it should be in his hand. In the Code denominated from the class to which he belongs, all such information must accordingly in some shape or other be contained: but, in that same Code, what part shall be inserted at length, what part no otherwise than by reference to the Code or Codes, denominated from this or that other class concerned in that same matter in a manner which is correspondent and opposite,—will depend upon particular convenience, as indicated by particular circumstances. Note on this occasion, that by one and the same group of legislative arrangements by which the man of but one class is a party burthened, men of divers other classes may be parties benefited: and so vice versâ.

In the case of a member of the judicial establishment, may be seen that of a public functionary, who, together with the power, being charged with the obligation of contributing, according to the nature and extent of his jurisdiction, to the giving execution and effect to the whole body of the law, or to this or that part of it, is therefore,—not only in a general way in his quality of member of the community, at once party benefited and party bound with relation to the whole matter of the general Code,—but likewise, with relation to the whole of the matter of the system of particular Codes, specially favoured in respect of the above-mentioned power, and specially burthened: burthened with the obligation of eventually giving execution and effect to it, and to that end, of lodging and keeping in his mind the import of it.

Only in proportion as it is known, can the law or any part of it, be an instrument of good in any shape. But,—with every degree of compression that can be given to it,—the difficulty, of giving to the knowledge of it this necessary extent, cannot be inconsiderable. Any expedient, which promises to contribute in any degree to the lessening of this difficulty—ought it, Sir, to be left unemployed?—Of some of these expedients, I proceed to submit to you, Sir, a faint sketch.

I. Laws of constant concernment—laws of incidental and contingent concernment:—by the distinction thus expressed, one instrument for the diminution of the burthen upon the conception and the memory, may be brought to view. In the case of a law of incidental concernment,—if the case be such, that the demand for attention to it will not be presented, till after a certain state of things has taken place,—a state of things, notice of which cannot fail of being received by the parties, who, whether it be in the character of party burthened or party benefited, are parties concerned,—a consequence is—that of this part of the Code, be it the general, be it any particular one, the expression at length need not be given in every edition of this same Code: by indication, given in the way of reference, to a more enlarged edition in which the part in question is given at length, the purpose of conducting the mind to it will be answered: and, in the case of no individual, with reference to whom this state of things never does take place, will the Code, out of which the matter in question is omitted, be incomplete.

First instrument of reduction or compression as above—distinction between articles of constant concernment and articles of incidental and contingent concernment. This distinction applies alike to the general Codes and to the system of particular Codes.

II. Second instrument of reduction or compression—distinction between main text, expository matter, and rationale.* On my plan, the matter of each of the three Codes—penal, civil, and constitutional, is divided into general titles and particular titles:—or into particular titles and general titles: for it is not as yet altogether clear, which of the two orders will in each instance be most convenient. Take, for example, the penal Code. In the particular titles, the main text is composed principally of the denominations given to the several offences: denominations, followed each of them by a definition, and coupled with intimation given, of the punishments respectively attached to those offences. In some cases to the name of a genus of offence thus marked out, may be added—added in form,—other more particular denominations, declared to be indicative of so many species of acts contained under that genus. Be this as it may, by every distinguishable portion of the expository matter, designation will be made, of some particular species of act contained within that same genus: made by the very nature of the case, whether mentioned or not mentioned as being made.

Compared with the bulk of the whole, the bulk of the main text will lie in a very narrow compass. The particulars, contained in the expository matter, are employed in giving clearness and precision to the import of the name of the offence, and of the definition given of it. When, of this expository matter, a conception has once been obtained,—it will thenceforward, with more or less clearness, correctness, or completeness, be suggested by the name alone; still more effectually by the name with the definition added to it: and, the more completely this effect is produced, the more effectually will the main text answer the intended purpose, when the expository matter is detached from it.

So likewise as to the rationale. The use of the definition is—to distinguish the offence defined, from all objects with which it is likely to be confounded: in the first place, from all acts to which punishment is not meant to be attached in any shape—in the next place, from acts, in respect of which, for the purpose of punishment or any other purposes, arrangements in any way different are meant to be made. Take, for example the offence of theft. Neither in the Roman nor in the English law,—neither by any definition that has ever been given either in the way of statute law, or in the way of common law,—nor by any lights, afforded by reports of judicial decisions,—has any clear line been ever drawn, between a non-criminal taking, namely, on the supposition of right to do so, on the one hand,—and the taking by means of consent obtained by fraud, on the other. The expository matter will, in its own way, contribute to fix in the memory, when once let in by the conception, the idea of the true character of the offence: the rationale will, in another way, contribute to the same desirable end. But, moreover conversely, the effect of the association being mutual,—proportioned to the clearness, correctness, and completeness, of the view which these instruments of elucidation have given of the object, as designated by its denomination and its definition,—will be the facility, with which, upon every occasion, the import, of these same instruments respectively, will be recalled: recalled, by the denomination and definition together, or even by the denomination alone.

In this way, Sir, in my penal Code, you see three distinguishable parts, contained under the head of each genus of offence: the second and third,—each in its own way, throwing light upon the first, and thus forming a useful accompaniment to it,—but each of them capable of being detached from it. On this plan, in so far as there may be any use in separating them, nothing can be more easy: every printer will be competent to it. If there be any such use, it will be in the way of lessening the burthen: the burthen, whether it be on the conception, the memory, the pocket, or the shelf: not to speak of the pocket in the literal sense.

Of both expository matter and rationale, particular samples may be seen, in the first of those works of mine that have been edited in French by M. Dumont.* You will assuredly neither expect nor wish, Sir, to see anything of either of them here. What the relation may be, between what is said there on the subject and what I have said here, I know not. Neither eyes nor time will admit of my looking at it.

Other instruments of compression I employ: But, by any attempt to convey any conception of them here, I know not what further addition might be required, to a load which perhaps may already have been put aside as unsupportable.

You see already, that either the main text alone, or the main text with the expository matter, may be considered as an abridgment of the whole. Here then you see a sort of abridgment of the legislator’s work: an abridgment made by the legislator himself. On this occasion, permit me, Sir, to observe, that the legislator’s is the only hand, by which an abridgment can be made, on which any dependence can be placed with safety—can be placed without imprudence. Let the work at large be ever so replete with imperfections,—an abridgment, in which those imperfections were removed, would, to him who trusted to it, be no less mischievous, than one, in which the multitude of the imperfections had in the same proportion received increase. How can it be otherwise? In case of litigation,—not by the abridgment good or bad—not by the abridgment, but by the authentic work at large,—will the lot of the parties litigant be determined.

Thus in case of statute law. As to common law—in this case, an abridgment is an imagination of an imagination.

In either case, in what character is an abridgment capable of being of use? Only, Sir, in that of an index: an index, for giving information, of the places in which may be found those portions of discourse, by reference to which the fate of the cause, and thence of the parties, will be determined: an index—differing no otherwise, from the sort of implement more usually designated by this name, than by being more ample, and cast into a logical form instead of the alphabetical.

In the rules suum cuique and non suum nulli is included, you see, Sir, this instruction to the legislator.—So order matters, that, in addition to the general Code in which all have a concern, each one shall have—have actually in his hands—every particular Code in which he has any concern: and that in a state separate from every particular Code in which he has not any concern.

The all-comprehensive survey, thus and for this purpose taken of the field of legislation—the division thereupon made of the rule of action into general Code and system of particular Codes—was there no use in it, Sir? Was it mere theory? had it no bearing upon practice? no influence on the greatest happiness of the greatest number? To the gentlemen in question—was it unknown, Sir? No, Sir, it was not, it could not be, unknown to them: it stared them in the face: it stared so strongly that they shut their eyes against it. It came from the intrusive foreigner: it was not of their starting: it would have given them too much trouble:—in a word, it suited not their purpose. It was put aside accordingly. There, Sir, you see the cause.—No such thing was to be found in any of the most accredited Codes:—there, Sir, you see a pretence.

Such is the omission. Now for one little example of the consequences.

On my plan, under the head of Husband and Wife, in a particular Code so denominated, a document, in which all benefits and all burthens, attached by law to those two correlative conditions, are set forth, would be found. If it depended upon me,—on entrance into that contract, into the hand of every man and that of every woman, should a copy of it be placed, or no such contract should be entered into: if some time before the ceremony, so much the better. They would then enter into the engagement with their eyes open, and not as at present, blindfold. An instrument of this sort—would it be less instructive, less useful than a ring? But rings were made before Codes were made: before Codes were made, or the press for the printing of them invented. But moreover, from the relations between husband and wife come eventually those between father and child: of the particular Code intituled Law of father and child, notice would accordingly be given in the particular Code intituled Law of husband and wife: with or without intimation, more or less particular, of the details.

In the Committee’s proposed Code, arrangements relative to this pair of correlative conditions, have place. Under what head? Under that of “Offences against buenas costumbres:” Articles 559, 560, 561, 562: offences against good morals or good customs. But, on or before entrance into this engagement,—what man, what woman, should this same Code pass, would think of buying a copy of it, and reading it? Even if they did set about reading it, would not they, to save trouble, be apt to glance over the titles? Glancing over the titles, would they see any one of them, in which either the word husband or the word wife is mentioned? Not seeing any such title, but seeing the title offences against buenas costumbres, would they be led by it, to expect to find in it anything that they would have more concern in after their marriage than they had before?

One little example more.—Knowing that, in the Code in question, there is a compartment, in the title of which functionaries in general are mentioned,—every man, to whom that denomination belongs, will of course understand, that in some way or other he can scarcely fail to have a personal interest, in making himself acquainted with the contents.

But, from any such title as that of offences against the liberty of the nation, what is there that should lead him to make any such inference?

In the Committee’s proposed Code, I see a division thus intituled—“Of the offences,” (delitos y culpas,) “of public functionaries in the exercise of their offices:”—Chapters xii.; pages 23, from 132 to 155 inclusive; articles 76, from 453 to 528 inclusive. After so much said on the subject under its own name,—who, without notice given, would expect to see anything more about it under any other name? Yet, under other names, more there is in abundance,—and no warning given of it: and, in particular, under that of offences against the liberty of the nation, as above.

Whatsoever be the benefits, undertaken to be conferred on a man by any part of the law—whatsoever be the burthens imposed upon him by force of punishment,—do gentlemen know of any means a man has of making himself secure,—secure, either of enjoying the benefit or of escaping from the punishment,—without reference made to the law? Wherefore then did they decline taking the measure necessary for the putting this saving knowledge within every man’s power? Wherefore?—but that—either absolutely, or in comparison with some nearer object,—the greatest happiness of the greatest number was, in their eyes, an object of indifference.

Giving to a man this double security—giving to every human being that could read it, or hear it read, this double security—giving to the whole body of the law all this efficiency—a service such as this, would it, Sir, be a service without value? This service, the intrusive foreigner would have rendered, and would yet render, to your nation. This service, gentlemen would not themselves render, nor would they suffer him to render it.

They are Spaniards: to them it belongs to be apprized of all those circumstances, affecting in each case the demand for legislation, that are peculiar to Spaniards: to them, yes; to him, not.—Be it so, Sir. But, by him who, having complete knowledge, will not make application of it, or by him who, having but incomplete knowledge, would make application of it to the uttermost of his power—by which of the two, with reference to the purpose, whatever it be, is most service likely to be rendered? On the part of the foreigner, the knowledge of the circumstances peculiar to Spain was wanting: relation being had to Spain, imperfections in any work of his would thence have been inevitable. Admitted. But, whatever would have been these imperfections, could there have been, on the part of the gentlemen in question, any want either of the inclination, or of the power, necessary to the correction of them? Thus stood the matter at the first. But, at present, and in future, whatever wisdom it may be, that, in their instance, composes the fruit of this indispensable local knowledge, it is now visible: It is seen in their proposed Code, and all foreigners, as well as all Spaniards, have it before them.

Two rules you have already, Sir, in a nutshell: permit me to slip into it one other such little pair, and I have done.

Rule 3. Ideis iisdem, verba eadem.—or thus—Eadem natura, eadem nomenclatura. Of this the converse is—Rule 4. Ideis diversis, verba diversa: or thus—Alia natura, alia nomenclatura. Change the expression, can any one avoid suspecting at least, that the ideas you meant to convey are changed likewise? Supposing it your intention to convey different ideas, could you take any other means than that of using different words? If you could not, then is the use you have made of different words a certificate of diversity in the ideas; and this certificate is a false one. If these rules be conducive to the ends of language, and the opposite course repugnant to the ends of language, try them, Sir, upon the proposed Code: try them throughout upon that great work, and see what will become of it. Of this I have already submitted to you a few exemplifications.

Thus is it, as I have so often had occasion to observe—thus is it, Sir, that in every page the same unfortunate spectacle is but too visible:—knees bent, before the fascinating art of Rhetoric: backs turned, upon her formal, but honest, sister, Logic. Good this in poets: but is it so in legislators?

Ideis iisdem, verba eadem; ideis diversis, verba diversa—there, Sir, you see two rules of expression, two rules for the expression to be given to the matter of the law. Suum cuique; non suum nulli—there you have two rules of distribution: two rules, for the distribution to be given, to that same matter, on the possession of which, to so vast an extent, the difference between happiness and misery, in the instance of every human being, depends. Proceeding thus, what Linnæus did for natural history—what Sauvages did for the nosological branch of medicine,—that will this your troublesome correspondent do, Sir, for legislation, so far as life and faculties suffice. And already, though it were by nothing more than these four short rules, is not some little progress made?

Lawyers, employed by the ruling few, with or without cognizance taken by a supremely ruling one—lawyers, linked with these their employers by a community of sinister interests—such are the men, by whose particular wills, governed by their particular and thence sinister interests, on this as on every other occasion, as far as has depended upon the state of the law, the condition of the millions has been disposed of. But, with the exception of those violences, from which the danger to every man’s person and property is serious and manifest, their own included,—it is the interest of lawyers, that the multitude of offences in all shapes should be at its maximum,—in such sort as that the profit, from defending the injured against the injurer, and the injurer against the injured, shall be so likewise. Thus it is, that, with the above exception, mischief, in whatever shape produced by ignorance of the law, is by professional draughtsmen viewed with delight: and, it being to their high seated employers matter of indifference, hence it is, that we see it left, upon the footing at which it suits the interest of the lawyer class, that it should everlastingly be kept.

LETTER VI.

Sir,—

Such, with the exception of the words in brackets, was the title of this my sixth letter as announced in the first. Meantime, the matter itself has undergone no small change. Of the anxiety of the gentlemen in question to keep out of the sight of their colleagues, and thence of their constituents, rival productions in general, and in particular your humble servant’s actually existing works, and future contingent Codes, you have already heard more than enough. The anxiety on his part not to be so kept out of sight—this is the only anxiety which, in the course of this letter, will give you any further trouble.

Before I take my leave of theirs altogether, I must however, submit to you, in the way of contrast, a short recapitulatory sketch, of the principal objects, to the accomplishment of which, the opposite anxieties may have been observed directing themselves, and the different arrangements, of which the pursuit of the respective objects has been productive.

1. My object being the greatest happiness of the greatest number—the same which, in articles 4 and 13 of your Constitutional Code, stands proclaimed as the all-comprehensive object of that official work, I have on every occasion held it up to view and made application of it.

Gentlemen’s object being—what I will leave to themselves, or some one for them, to state,—they have not, on any occasion, as far as I can see, taken any the smallest notice of it.

2. As one means towards that same end, for the purpose of securing the aptitude of the work in relation to it—namely, in so far as depends upon appropriate moral aptitude on the part of the framers of the first draught, and for that purpose to shut the door against all particular and thence sinister local interest, backed with power sufficient to give effect to it,—I make offer of a foreign hand, secured by its position from all sinister interest.

Gentlemen’s object being still what I will leave to some one else to name,—and, by that organ of impeccability, to which as far as appears they trust, their minds being, to their own satisfaction, sufficiently secured against all seduction from sinister interest,—their anxiety has, for an ulterior object, the keeping all such troublesome intrusion as effectually excluded as possible.

3. In further pursuit of that same end,—to secure aptitude to the work,—in so far as depends upon the above and the two other branches of appropriate aptitude on the part of the workman or workmen, namely, intellectual aptitude and active talent,—another object of mine, is—so to order matters, that no distinguishable arrangement shall be proposed, that has not for its support a distinguishable and openly expressed reason or set of reasons: and this security, the hand I offer is accordingly prepared to afford.

Gentlemen’s object being still what I must leave to themselves or some one else to name,—their anxiety is—so to order matters, that no arrangement which in your nation is to have the force of law, shall have any one assigned reason for its support: in such sort, that whether there be any reason or reasons for it at all, and if yes what, shall remain for everlasting, a subject of unsatisfiable doubt and boundless conjecture.

4. In further pursuit of that same end,—regarding consistency of design, as highly conducive, not to say necessary, to the attainment of it,—lest, while in one part, the end, whatever it be, is pursued by one course, in another part it be pursued by an indeterminately different course,—my anxiety is—that, throughout the whole field the groundwork thus laid shall, if possible, be the work of one and the same hand.

Gentlemen’s object being still what I must leave to some one else to say in a positive manner,—but, as far as appears to me, from their own declarations, coupled with the nature of their situation, what may be called mutual accommodation—division of the whole stock of power and glory, upon the principle of a partition treaty,—their anxiety has been—to secure, and they have secured accordingly, to themselves and one another, this same means of mutual accommodation. And, of the result, and of the influence, which, if this work of theirs should become law, may be expected to be exercised by it on the greatest happiness of the greatest number, samples have already been brought to view, and in greater number than can naturally be welcome.

5. Still, in pursuit of that same end,—taking into consideration, with reference to works of the description in question, the immensity of the demand for appropriate intellectual aptitude and appropriate active talent on the part of the workman, and at the same time the deplorable scantiness of the supply everywhere in conjunction with appropriate moral aptitude in the same breast—yes—everywhere, Spain itself (forgive me, Sir, for saying so) not excepted,—my strongly manifested anxiety has from the first been, and continues to be, to secure to your country, as well as to every other, now and at all times, the greatest obtainable number of works of the above-mentioned description, by hands of the above description, for those to whom it belongs to choose out of: and, towards the fulfilment of this wish, I have laboured with as much energy as ever monopolist employed in his endeavours to secure his monopoly. Witness the second of my letters to Emperor Alexander as published in my “Papers on Codification.”

Gentlemen, in their anxiety to keep out of the way the competitor from whose intrusion most trouble seems to have been apprehended,—took the measures, explained in the second of these my letters to yourself, Sir,—being such measures, as promised at least equal success against all similar intruders.

Under these circumstances, despatch would naturally be, in their eyes, no inconsiderable object: and by the principle of the division of labour, applied as it appears to have been applied, not only was harmony promoted, but despatch likewise.

But enough now, Sir, of anxieties: prepare yourself, for gladness. Whether, in the honourable breasts in question any such sensation is likely to be produced by the sight of any Code of my drawing, you are in a condition to imagine. In mine, the sight of theirs has been and is a source of real satisfaction.

The case is—in my way of viewing the matter, the tendency of this production of theirs, with reference to me, is—to promote in a variety of ways that intrusive design which is giving you, Sir, so much trouble.

1. It will, to an extent more or less considerable, lay open to my view those local circumstances, in the exclusive knowledge of which, gentlemen’s modesty has found a support to their claim of exclusive privilege.

2. It thereby lays before me, as well as before the nation which it is my ambition to serve, a complete map of those parts of the field of law, to which, if to any, the objection derived from foreignership can have any application. Spreading out the map before me, it enables me, on each occasion, to make those references—those clear and exact references—of which you may have been seeing, Sir, so many more examples than it can have been agreeable to any eye in the situation of yours to see.

3. In a word, it lays before me—it lays before the members of the existing Cortes—it lays before their constituents,—it lays before the succeeding Cortes—it lays before the so deeply interested and observant nation, the only existing production, with which any one of those that I have in preparation has as yet to contend. It is not necessary for me, to attempt to affix any precise value to the use which this circumstance may be found to give to it with reference to my intrusive purpose. Suffice it to observe, that the less the value of the production in the eyes of the nation to which it looks for support, the greater will be its value with reference to the purpose of every intrusive rival.

Actual satisfaction at seeing the Code in its candidate state is one thing: eventual satisfaction at seeing it in an elected state is another. By the title of this Letter, as announced in my first, you may have been prepared, Sir, for a certain eventual satisfaction on my part, even in the event of my seeing the sanction of law given to the proposed Code in the exact state, in which it has been the subject of all the freedom you have seen taken with it. Of this same satisfaction you may at the same time have observed, that it is not altogether absolute and unconditional, but limited by conditions more than one. At that time, conditions more than one I had accordingly in view. But, on a nearer inspection, that my chance for satisfaction may be as favourable as possible, I have settled with myself to put aside these same conditions, all but one. Sanction then I say this proposed Code—Yes, and as soon as may be: if, within the time, the imperfections, which you yourself, Sir, have had the frankness to lay your finger upon, can, any or all of them, be removed, so much the better; not to speak of any of those supposed ones, which my own presumption represents itself as having given indication of. But, if nothing of this can be done, sanction it even as it stands at present.

Now then for the condition: it is neither more nor less than this—instead of the more commonly looked for everlasting duration, give it but a temporary, and that a short one. When experience,—and a long one need not be insisted upon,—has demonstrated its usefulness, then will be the time for giving to it that eternity, which will be so much more to the taste of its honourable authors.

Considering the terms, in which your letter speaks of this proposed Code,—were I even to indulge a serious expectation of seeing this condition annexed to the passing of it, I hope, Sir, you would not find it altogether an immoderate one. Such is the presumptiveness of my hope, it extends even to this—namely, that, in the endeavour to cause this condition to be annexed, your influence, which fame represents to me as so powerful, will not be withholden.

That, on the part of the gentlemen in question, any willing consent to this effect will be given, is, I must confess, rather too much for my hope. Feeling, each of them, on his own forehead, seeing in virtue of the partition treaty, each of them on that of every other, those two most instructive organs, which there has been such frequent occasion to touch upon—the organs of impeccability and infallibility,—they will feel themselves under an incapacity of conceiving, how, in any such troublesome limitation, there can be any use. Alas! The closer I look into this matter, the less sanguine is my hope. Turning to their “most accredited Codes,” whose wisdom they have made theirs, I have found no precedent on which my hope can anchor itself. To the best of my recollection, on the foreheads of all persons concerned in the manufacturing of all these several Codes, servants as well as masters, the two organs have been alike prominent.

Whither then shall this same hope of mine betake itself! The answer is not difficult: to United Anglo-America, resting-place as well as cradle of all honest political hope. An example then I have already, in that rashly begotten, and happily expired, act of Congress, to which I have already had occasion, Sir, to solicit your attention, and to which, without fear of contradiction from that Ultramaria, I gave, or might have given, the denomination of the liberticide law. Here sits my hope quietly for the first moment. Oh but, (cries a voice,) that state is a democracy: ours is a monarchy: it is only in a monarchy that any such organs are seen. The illustrious Gall, by whom the organs of this class were first discovered,—did not the empire of Austria give him birth? Under the notion of promoting the greatest happiness of the greatest number, do not the rulers in that American seat of anarchy, make the condition of that same greatest number, depend upon the will of that greatest number? Can anything be more absurd? As for us, we make the condition of the greatest number—Oh, yes—and of all the rest—depend upon the will of one individual—one single individual, without whom nothing can be done, and by whom everything can be done: everything, so it be with that proper and necessary assistance, for the purchase of which it is that we have placed at his disposal the good things of this wicked world in all requisite abundance. In some countries there might be danger in such an arrangement: but in ours there is none. In some countries, all men’s first care is for themselves, and their own particular connexions. But, in our country, when a man gets into an office,—if it be of a certain height, he forgets he has a self belonging to him: King and country are the sole objects of his care.

Well, Sir, be this as it may, I will not deliver myself up absolutely to despair. One other precedent I have in store. I should have said a mine of precedents: for such it is and a most abundant one. It is the practice of the government under which I write. Rotten as it is,—and hastening as it appears to me to be, to a change which cannot be for the worse,—sacrificing as it does on all points of contrariety the greatest happiness of the greatest number to the supposed happiness of the ruling few and the supremely ruling one,—still, on points on which no such contrariety has place, examples of prudence, the fruit of long experience, are here and there to be found: and this is not the least conspicuous nor the least incontestable. Codes, it is true, we have none: the very word is horrible to us. Statutes, however, we have every year, and every year in a heap such as would outweigh a hundred of your Codes. No, Sir: not a year passes, but amongst these statutes there are—I fear to say how many—for I have neither time nor eyes to count them—but I can venture to say multitudes, of each of which the duration is limited to a time certain, and that a short one. Witness even the Six Acts, which, for your information, I must call by the aggregate name of the liberticide acts, but which among us, are sufficiently known by the more concise and merely numerical name: Acts, which had the same object as that American Act, which by its death has been rendered the pride of that happy people, of which, during its life, it was the shame.

Even the statute, on which the standing army depends for its continuance—that standing army, by the dissolution of which the government would, if its own fears are just, be dissolved—even this statute (it is called the Mutiny Act,) lives but from one year to another. Trust not to me, Sir, for this: ask anybody—ask our Minister at your Court, whoever he may happen to be. Not that, in the possession of any such expatriated court favourite, you will be likely to find any such dry and bulky matter as the matter of our Statutes at large. But, that which everybody knows, you will find him knowing: and for this purpose it will suffice.

Here, then, Sir,—under a government, of the determination of which, on every point of conflict, to sacrifice the greatest happiness of the greatest number to that of the ruling few, you cannot entertain a doubt—under this government, the life of which is in its own persuasion, no less inseparably attached to that of a particular law, than that of Meleager was to the log which somebody threw into the fire—under this government you see no such fear has place, as that of mischief to itself, from thus rendering the law capable of going out at the end of a twelvemonth. What say they then? Were it only for appearance sake, cannot gentlemen be prevailed upon to assign to this Code some experimental duration? If yes, say then one year, say two years: and, in either case, from thence, as is the custom with us, to the end of the then next Cortes.

You see, Sir, how mistaken the notion would be—that, between this exertion of self-diffidence and prudence, and the practice of depredation, to an amount so far above anything that in your country men can have any conception of, there could be anything of practical inconsistency. Those who require such comfort, let this comfort them.

But, (methinks, Sir, I hear you saying to me,) this contentment on your part, is it in any degree consistent, with the opinion, of which such copious intimation is given in your preceding Letters?

Sir, I will tell you simply how that matter stands. Good and evil may be considered in an absolute point of view, or in a comparative: compared with a greater, a lesser evil is good. No mass of law so bad, that I would not vote for it, on condition of its taking the place of a worse.

Of the state, in which the penal branch of law exists at present in your country, gentlemen have, in their preface,—though but in the way of allusion, as to a state of things out of dispute,—given that account, to which, in the second of these Letters, I had occasion to allude. All circumstances considered, I can scarcely entertain a doubt, but that, in comparison with such a Code, even that, which I have been so tediously commenting upon, would be a blessing.

From yourself, moreover, I learn, Sir, that—to an extent, the precise limits of which are not known to me, but which appears not to be a narrow one—the existing atrocities alluded to fail of receiving execution and effect. Here then is my hope and my consolation. Of the existing Code, the articles which in their view are unfit to receive execution, have, to a considerable degree, actually failed of receiving it. An inference I indulge in is this: of the projected Code, the articles which, in my view, are unfit to receive execution, would, to an amount more or less considerable, in the event of its becoming law, be in that same case.

In a certain state of the law, the existence of the human species depends upon the degree of execution given to the law: or, at any rate, the more exact the execution, the greater is the happiness of the greatest number in the community in question. In this state is the law, for example, in the Anglo-American United States: notwithstanding the remnant of that poisonous matter, which was originally imported from the Augean stable on the other side of the water; and which the lawyers, who fatten upon it, still keep, on the penal and civil part of the field, unexpelled.

In another state of the law, the existence of the species depends upon the non-execution of the law, and the consequent impotence of the ruling tribe: of the ruling few, under the supremely ruling one. In this state, for example, is the law, in a country which it would be superfluous to name. Carried into full execution and effect, libel law would of itself suffice for the extirpation of the inhabitants: for the conversion of all dwellings into jails, of all the inhabitants into jailors or prisoners; and,—by giving this destination, to all those on whose productive labour, themselves and their fellow-countrymen depend for subsistence,—substituting starvation to existence.

In your country, though utterers and readers of libels, all newspapers without exception included, are not so numerous as in the one just alluded to, laws, I cannot doubt, might be found, by the aggregate virtue of which, if fully executed, an equally complete clearance would be effected.

Wherever Roman law has reigned,—in addition to a functionary, by whom, under his own name, power of pardoning, applicable to offences in general, has been avowedly possessed and exercised,—other functionaries there are, by whom, without the name, that same power has been possessed and exercised. Where the judicatories have not possessed the power of giving execution to penal laws of their own motion,—nor without being called upon by a servant of the Monarch in the situation of prosecutor-general,—the whole of this covertly pardoning power has had his single breast for the seat of it. In so far as this has been exercisable by them at their own motion, this mode of proceeding has been styled the inquisitorial; and, within their several ranges, the power of the prosecutor-general has had the judges of the several judicatories for sharers in it. According to Banniza, thus, for example, if my recollection does not deceive me, stood the matter in the Austrian dominions; according to Boehmer, in the Prussian. I should expect to find the case standing on much the same footing among you: not to speak of the rest of Europe.

With us, the matter stands as yet upon not quite so bad a footing: the power of giving effect to the laws on which personal security depends is not made an object of monopoly: our Monarch being God upon earth, as we are all of us taught from Blackstone, our lawyers, as far as depends upon them, have, it is true, given to him the power of putting to death every man it would be agreeable to him to put to death, on condition of finding one hand to do the job, and another, by the counter-signature of a pardon, to concur in giving impunity to it. But, commodious as upon this statement it may seem, this mode of proceeding,—signatures and counter-signatures being visible things,—has not yet become a customary one: modes not less effective but less conspicuous have hitherto obtained the preference: discriminating slaughter has not yet been visibly added to indiscriminate. Matters, however, are in preparation for it. Recent progress has been made. The last session but one or two produced a statute, by which the right of certain relatives to prosecute for the murder of the correlative without permission from the Monarch,—in which case, on conviction, a pardon from him was without effect,—was abrogated. Since then, the life of every man in the kingdom hangs by a thread, which a word from the king may cut at any time. Mine, Sir, remaining as you see still uncut, what gratitude do I not owe?

I beg your pardon, Sir—I have been digressing. What belongs to your case is this. Under a government, which has for its real object the supposed happiness of the ruling few through the sacrifice of the real happiness of the subject many,—the system of law being to such a degree bad, that the execution of it if complete would suffice for the extirpation of the species,—in such a state of things, if the species remains in part unextirpated, it must be indebted for its existence to some arbitrary power, by which the purposes proposed by the makers of the law are prevented from being carried into effect. While your judicial establishment, and your system of judicial procedure, remain upon their present footing, or upon any footing standing on a ground of Rome-bred law,—the otherwise natural effects, of codes drawn from that source—of codes such as the one I have before me—will, in arbitrary powers such as those I have been speaking of, find a palliative. And on this palliative rests the confidence I entertain, of seeing your country still inhabited, even supposing the code in question to pass in its own words unchanged.

You are now, Sir, in a condition to judge, whether, on the satisfaction above declared, in what degree soever well or ill grounded, inconsistency can be charged.

Though, beyond the above-mentioned temporariness, lest you should be asking too much, I should be sorry to see you asking for anything in the character of a condition,—a few other things there are, which I will venture to mention in the character of simple propositions.

1. One is—that of an Article, declaring, that for giving increase to the quantity of punishment appointed in any case by the new Code, no recourse shall be had to any at present existing portion of statute law: any more than for applying punishment, in any shape or degree, to any act to which this same new Code has not applied punishment. Something in this view I should expect to find actually done, but time and eyes forbid the search.

In Title I. chapter xiii. as above-mentioned, I see a chapter, entitled “On delinquencies (delitos) and delinquents not comprehended in this Code:” and therein, besides laws relative to matters ecclesiastical and ordinances relative to matters military, I find—namely in Article 185, over and above delitos, mention made of culpas as being commissible against the regulations or ordinances which govern (rijan en) any matters or branches of the public administration. But, of these non-comprehended portions of law, I see no more particular designation given.

For the purpose here in question, the more obvious, as well as the shorter and at the same time the more complete course would be—a general clause, killing at one stroke, with the exception of such as were kept alive by a list made out for that purpose, the whole body of the penal laws found in existence. This would be the only endurable course, supposing the survey, taken on this occasion of the field of penal law, an all-comprehensive one. But, to the gentlemen in question,—if the truth may be confessed, this same idea of all-comprehensiveness, considering how natural it is for a man to measure all other men’s faculties by his own, scarcely should I expect to find it an endurable one: and, at the hands of him by whom accomplishment is regarded as impossible, accomplishment cannot reasonably be looked for.

Even among us, among whom, how ill soever applied, experience in the field of legislation is so much more abundant than with you,—men, in other respects not destitute of intelligence, are not wanting, to whom the idea of setting, in any such way, any precise bounds to the demand for punishment and coercion, is an intolerable one.

“Not being myself (without more trouble than I choose to bestow) able to descry any such limits, the thought that, by any labour he can bestow, it should be in the power of any other man to trace them out, is intolerable to me.” Such is the confession, involved in every declaration, of the impossibility of substituting on the field in question light to everlasting darkness. What is above said with relation to your Statute Law, or, as it is called, Written,—may, with little or no difference, be found applicable to your Common Law, or, as lawyers love to call it, (because there is so much writing in it,) Unwritten Law. I mean the Rome-bred, commonly called the Roman Law. In it I behold a still more vivacious, as well as venomous hydra, than in your statute law. A hydra, yes:—but, unfortunately, not in your Legislation Committee—no, not even in its President, whatever he may behold in a looking-glass, can I behold a Hercules.

What if, by their Code,—after the storm of horror and contempt poured forth upon the system of penal law which they found in existence,—Gentlemen should be found to have left it in a state of undisturbed existence; adding thus, instead of substituting, the new load of their own framing, to a burthen declared by themselves to be an intolerable one? Should such an omission be found actually to have place, your exertions, Sir, will, I hope, not be wanting for the repair of it.

Do what you can, Sir, I cannot very well see how, in the situation of Advocates, a set of men, nurtured in Rome-bred law, can effectually be prevented, from pointing, if not in a direct, in a little less effectual though indirect way, to the old hag for an interpretation of it: nor,—without which the call would be hopeless,—men, in the situation of Judges, impregnated with the same poisonous milk, be prevented from giving ear to it. Thence it is, that, for substituting certainty to uncertainty, cognoscibility to uncognoscibility, there exists not any possible instrument, other than a complete mass of expository matter, subjoined all along to the main text, and intervening between the main text and the Rationale, interwoven, as in my above-mentioned French works, stands not only proposed, but, if I do not misrecollect, exemplified.

Yes, Sir, when completed, the collection of Codes should, either in the way of insertion or in the way of reference, contain everything, to which the force of law is given by government: and, while it embraces everything in existence by its power, it should embrace the whole contingent future by its providence.

One little proposed arrangement I would not venture, Sir, to trouble you with, were it not for the facility with which—and, I hope, without any very sensible wound to national honour and glory, or soreness in the organ of infallibility—effect might be given to it. In this Code, the numbering of the Articles goes on, I observe, in one and the same series, from first to last: number of the last Article, 829. In this arrangement no method has place but that of the numeration table, nothing of what is meant by classification. But, along with this arrangement, comes a system of classification in the customary form; or, at any rate, a form resembling what is customary. First comes a Part styled The Preliminary Part; then come Part the first and Part the second. Under Part the first, I find eight Titles; under Part the second, three: under every Title, except Title eighth and Title ninth, I find Chapters more than one: and, under every Chapter I suppose there may be, under little less than every chapter I am sure there are, Articles more than one.

This being the case, the little arrangement I would venture to propose is—that, to the number of the Article, reckoning from the first in the whole work,—be added, or substituted, the number of the Article, reckoning from the first in the Chapter of which it forms a part.

Suppose this not done, note, Sir, the inconvenience. In process of time, comes an Article to be inserted, or an Article to be repealed. Take in the first place the case of insertion. Suppose the insertion made at the end of the series, the system of designation receives no disturbance. But, suppose it made at the commencement of the series, the consequence is—that, if the numerical order is still preserved throughout the whole of the series thus constructed, the numerical names by which the Articles were originally designated are now all erroneous: and, to the number of each, the number of that which was next in the series must be substituted, or confusion will be the result: and, in whatever part of the series the new Article is inserted, the numerical names of all above it remain indeed unaffected, but those of all below it require to be subjected to the change: so, in case of a repeal, the consequence is—a state of things which is the converse of the above. In practice what will be the result? That no such insertion or expunction will have place. Whatever is therefore done, must be done by an independent law, leaving the numerical arrangement undisturbed. But, in this way, the logical arrangement, which has been given to the existing series of Articles, cannot be extended to any supplemental ones. Now,—instead of the arithmetical arrangement throughout, with the logical arrangement here and there jostling it,—suppose the usual logical arrangement had been employed, with the arithmetical, as usual, in subordination to it. In any Title, and in any Chapter of that Title, suppose a new Article added: at the end of the series of Articles contained in that Chapter let the addition be made,—the classification will be still preserved, and everything left unchanged and undisturbed.—Conversely, suppose repeal made of an Article in that same Chapter,—at the end of the series of Articles belonging to that Chapter insert an Article, giving notice that the Article in question is repealed. In case of substitution, the notification will be—“to such an Article (designating it by its number) substitute the following.”

With that same method of theirs, it being theirs, the Honourable authors of the logical method in question were, it must be presumed, not ill satisfied. The little alteration here submitted has no other object than the giving to that same method of theirs a degree of undisturbed continuance such as it could not possess otherwise. If not adoption, this little intrusion may at any rate, I hope, obtain forgiveness.

As to the origin of this change-excluding method,—in the organ of infallibility I cannot but suspect it might be to be found.—Question to the Genius of the organ: To a work thus perfect, the Demon of presumption himself, could he ever have the effrontery to propose, in any part, a change?—Answer: Impossible.

Under the inspiration of this same Genius it was, that the authors of the Constitutional Code ordained in positive terms that no change should have place for eight years: tacking, at the same time, by a stroke of refined policy, to the end of that period, an indefinite one. And, with the inspirations of this same Genius, the honourable authors of this same projected Penal Code appear to be no less sufficiently impregnated.

Quitting the allegro, I must return to the penseroso.

Proportioned to the severity, if there be any, in the above remarks,—especially if in any degree it should be felt to be warranted by justice,—will naturally be—the sensation of chagrin, produced in the breasts, of whatever persons are, in virtue of the parts respectively taken by them in the work, the subjects of them. Believe me, Sir, or believe me not, it is not without a correspondent chagrin on my part, that any such unpleasant sensation can ever present itself to my mind. Imagination finds no difficulty in placing me in their situation. Triumph, were I assured of it,—triumph on any occasion, and in any shape, if the persons triumphed over were present, would to me have more of concern than joy in it.

In no sensitive being could I ever yet witness pain,—whether body and mind, or mind alone, were the seat of it,—without catching, as if by contagion, a portion more or less considerable of it. It is thus that I am constituted: that I am so, is it not known to all that have ever lived with me?

The consequence is,—that in the present instance, lest I should fail in the fulfilment of what appears to me my duty towards your nation and mankind at large, it is all along necessary for me, to keep my mind abstracted from any effect it may have upon them in any such unpleasant way, as completely as possible. All this while, in supposing the production of chagrin by such a cause, I look—not to the honourable gentlemen in question, of none of whom have I the honour to know anything but what I see in public documents,—but to the universal and unchangeable nature of man, in the situation in which I see them placed. It is to this cause, as much perhaps as to any other, that we are indebted for libel law: it is for this cause, that men in such abundance—(and the gentlemen in question could direct your regard to some examples)—are so eager in their endeavours, to consign to ignominious death, those whose misfortune it is to differ from them. In speaking of chagrin from such a cause, I speak of that which, it seems to me, can scarcely fail to exist: not of anything which I should expect to see declared. How it is with man in such a situation, often have I had occasion to observe. Ask him, while the animadversion is applying itself—speak of the effect naturally produced by it, and express your own regret at the thoughts of it—you will be taken up short, your sympathy will be taken for insult: and the more acute the feeling is, the more decided will be the protestations of indifference.

Among the effects of these operations of mine, if any effects they have, I cannot therefore but number these unpleasant ones. As to their original cause, operations and effects together, it is no other than that which, on every occasion, has place in the case of the medical operator. Exactly as much unkind feeling, and no more, have I towards the gentlemen in question, collectively and individually, as the surgeon has towards his patient. When the surgeon operates, it is for the good of the individual operated upon, and, with the exception of his particular connexions, no others. In my case, it has been for the good of all Spaniards of both hemispheres, that, in wish and endeavour at least, I have been operating, and through Spain, sooner or later, for the good of the whole human race. Considering that, in all this, I make no personal sacrifice in any shape worth mentioning, judge, Sir, whether, without much danger from the imputation of credulity, you may not venture to believe me.

Be that as it may, judge then, Sir, whether, by the contemplation of any such universally encountered uneasiness, as above, I should have been justified in turning my back upon the unmeasureable mass of misery, which these remarks of mine, such as they are, have been labouring to alleviate, and in the production of which I should have been a participator, if, by any such narrow sympathy, my pen, such as it is, had been stopped. Think, Sir, whether, by a single instance of execution given to a single one of the one-and-twenty homicidal articles above spoken of,—every one of them, in the view of so many other attentive observers of human nature as well as myself, so much worse than useless,—suffering could fail of being produced, to a greater amount, than in all five of these same illustrious breasts put together, could be produced, by anything that has been said, or ever could be said, by the unknown stranger,—placed as he is forever out of their sight as effectually as if by the hand of death.

Ere this, your inward sanction cannot, I think, Sir, but, to an extent more or less considerable, have been given, to the persuasion, in which, on my part, this correspondence commenced: I mean, the persuasion of the inevitable disadvantage, with which, with reference to the greatest happiness of the greatest number, it could not but have been carried on, had my part in it been to be strained through a censor’s sieve, though a Conde de Toreno’s had been the hand that held it. Thus much I can venture to affirm, and without fear of contradiction,—that, in the multitude of remarks, the freedom of which, be the justice of them what it may, has been so undeniable,—there exist, in no small proportion, such as, even in the persuasion of their justice, a prudent man, in your situation, could not have brought himself to give utterance to. Whatever were the demand for animadversion, could any such man have poured forth any such body of animadversion, on this same work of your selected colleagues, either in their presence or out of it? In your situation, could a man have spoken in any such strain, of the object of such extensive idolatry—(oh, that there were none worse grounded!) your Constitutional Code? In your situation could a man have spoken in any such strain of aristocracy at large? In your situation, could a man have spoken of the order of lawyers in particular, as I have found it so continually and indispensably necessary to speak of them? In your situation, could a man have spoken of the order of churchmen, as I have already begun to speak, and shall have to speak again, in my next and as it were postscript letter? In your situation, could a man have spoken of the situation in which your Cortes is doomed to sit, breathing an atmosphere, loaded, as I have shown it to be, with the fumes of sinister and corruptive interest? exposed to a miasma, against which scarce could a Fontana d’ oro, in the metropolis of every province, afford a sufficiently powerful antidote? In your situation, could a man have anything near so strongly invited attention, as at every turn I have seen reason to do, to the union of the most perfectly unrestrained discussion, with the perfection of security, harmony, public economy and good government in every imaginable shape, in the instance of the Anglo-American United States? In a word, in your situation, could a man have spoken, as I have found but too much occasion to speak, of monarchy?—of monarchy, in any the least absurd and mischievous form in which that disastrous result, of primæval necessity in the infancy of society, can possibly present itself?

[In* your situation, could a man, Sir, have spoken, as I have found but too much occasion to speak, of monarchy? Fancy not, however, from anything I have said—fancy not, Sir, that you have been hearing me say—Rid yourselves of your monarchy. True it is, that no government, to which the name of monarch ever has been or ever can be applicable, ever has been or ever can be anything better than a system of established plunderage: plunderage—regulated indeed, but only because,—unless it be in this as in every case regulated,—the matter of plunderage, and with it the profit, must soon cease. In Spain, monarch’s established share,—according to official accounts, taken and made public here about the year 1787,—one-fourth of the whole expenditure of the government: besides ulterior expenditure, to an amount unascertainable and unlimited.

True it is, that by no man has any attempt been ever made—by no man will any attempt be ever made—to show in what way it is that, from the subjecting all to the will of one or of a few, the happiness of the greatest number can receive increase.

True it is, that by no man has any attempt been ever made—by no man will any attempt be ever made—to show how, by giving everything to one or to a few, or by placing everything within the grasp of one or of a few,—subsistence, abundance, or security in any shape, can, any more than equality, be afforded to all, or to so much as the greatest number.

True it is, that by no man has any attempt been ever made to show—by no man will any attempt be ever made to show—that, in any instance, in which the ruling few were not dependent on the will of the subject many for their continuance in rule, they ever failed to give to their own interest the preference over that of the subject many; or how,—in case of every such constant preference of every one else to self as they pretend to give,—the human species could so much as continue in existence.

Is it in human nature,—that a monarch, full of resentment for restraint endured—restraint, which in every shape is in his eyes an injury—is it in human nature,—that a man so situated should, by anything but terror or impotence, be induced to part with any the least particle of power, which he has been in use to exercise, or so much as to wish for?

Is it in human nature,—that, in a state of indigence, (and so long as he has anything that is not his own, every monarch is in a state of indigence,) any such man, in any such indigence, should ever, with patience, behold himself reduced to a state of still more pinching indigence?

All this, Sir, without much strain upon the fancy, you may actually hear me saying: but still what you do not hear me saying is—Rid yourselves of your Monarchy.

Regulated plunderage, to whatever extent carried on, is still a less evil than unregulated plunderage to the same extent is.

Conducive to the greatest happiness of the greatest number no government can be—if, and so long as, the greatest number think the contrary: for, can any man be happy, any further than in his own opinion he is so? And, on this subject, or any other subject, sitting where I do, how can I tell what they think? Whatsoever care has even as yet been employed upon their minds, has it not been employed to make them think wrong, or, rather than that they should not think wrong, to prevent them from thinking at all?—No, Sir,—in a few years, in no eyes in which the greatest happiness of the greatest number is the only legitimate end of government,—will any government, other than that of a representative democracy as in the Anglo-American United States, be legitimate. But, either in one body, or in a cluster of confederated bodies, have you,—in any such proportion as they had it, or in any other sufficient proportion,—the stuff of which representative democracies are made? A representative democracy, not less necessarily perhaps than a monarchy, must have a chief. The Americans had their Washington: and, in default of him, with the exception of his next successor, every President they have ever had, would have made a Washington. But, among you? is there anything out of which a Washington could be made?—There may be, for aught I know: but how can I know?

Desirable or undesirable, in a constitution—made, of materials such as yours is made of—materials so irreconcileably discordant,—change, in one direction or in the other, is in my eyes altogether unavoidable. Saying this, what I do not say, is—Rid yourselves of Monarchy. But what I do say, is—Whatever change you make, be it in favour of the greatest happiness of the greatest number,—not of the ruling few, or of the supremely ruling one: be it, towards a form by which all causes of insecurity and discontent are excluded, rather than towards that form, under which among you, they were so recently operating; operating, all together, and with a so disastrously effective force.]

Now, Sir, permit me for a moment to indulge in a supposition, which, in its matter, whatever in your eyes may be the probability of it, will, I am confident, not be, in every part, displeasing to you: it is this. After sight of the objections brought to view,—Gentlemen, being in their own minds satisfied of the reasonableness of them to an extent more or less considerable, come forward,—and, on such considerations as, in their judgment, shall be best suited to the occasion, declare themselves content, or desirous, as they think best, that this work of theirs shall sleep a while on the shelf: or, (to take another supposition, and which, for the reason above given, may be perhaps a preferable one,) to an extent more or less considerable,—amendments, of the nature of those which I have ventured to submit, together with others that may perhaps be suggested, having been made,—the proposed Code, at their presentation, passes: but with a clause confining the duration of it to a certain limited time, and that, as above, not a long one. To these two suppositions, have patience with me, Sir, while I add one more. At the suggestion of these same most competent hands, not only is the door thrown open, but invitation given—given to every man whom it shall find disposed to accept it—to deliver in, with or without further remarks on the only as yet proposed Code, a Code of his own penning, with or without an interwoven rationale, as he shall be advised.

Whatever may have been the sins found to have been hitherto manifested, (always supposing that into a political situation so elevated it is possible for political sin to have found entrance,) whatever may have been the sins manifested,—a confession, such as the above, would it not be an ample—would it not, Sir, be a glorious atonement? By such sin, followed by such atonement, would not more merit be made manifest, more magnanimity displayed, more admiration deserved and called forth, than if in no shape sin had manifested itself?

Condemned, on the occasion of I forget what controversy,* with Bossuet—condemned by the constituted authorities of the country and the time,—Fenelon, Archbishop as he was, of his own motion, ascended his own pulpit, and, in the face of the assembled multitude, read his own condemnation, together with the retractation he disdained not to make in consequence. It is for the multitude at large I bring this anecdote to mind: for to yourself, Sir, it can scarcely, I think, be new. On a field of controversy such as that was—on the part of a mind such as that of the author of Telemachus was—sincerity may, to some eyes, appear not altogether exempt from dispute. Not so either self-command or enlightened policy. Matchless is as yet the splendour, with which the heroism of the man, displayed in a shape so unexampled, stands illuminated. Of victory over others, you may see almost as many examples as you see contests. Examples of victory over self, you may look for till you are tired. The retractation made by Fenelon, was made under the eye, and in conformity to the known pleasure of a man, from whom, on his part as on the part of everybody he ever saw, everything imaginable was to be hoped and feared. If, in consequence of any of the arguments submitted to yourself, Sir, in the first place, to the gentlemen themselves in the next place, any such self-sacrifice as above suggested should come to be made,—it will, by an admiring public, be seen to have had anything rather than hope or fear, looking to the individual, at whose suggestion it will have been made.

Well, Sir, if, in the honourable eyes in question, all this inducement is not yet enough, here is something more. Over the world of ideas, with this their instrument of conquest in hand, their aim has been (in their preface does it not stand sufficiently avowed?) universal empire. If, without any to share in it, it be in their eyes sufficiently within their reach, they will continue still to strive for it. In the other case, putting off Don Quixote, and putting on Sancho Pança, permit me to say, Half a loaf is better than no bread. So says our English proverb, for which there can, I think, scarce fail to be a Spanish one. If, leaving to some other, as it may happen, that lower part of the honour which belongs to the fundator incipiens, gentlemen’s magnanimity can content itself with that upper part which belongs to the fundator perficiens,—that highest part may be still their own. Let experience, Sir, declare whether this sort of peaceful conquest be quite so remote from the region of probabilities as some would be glad to see it. By a rare union of merit with fortune, circumstances favouring, the Spanish Constitutional Code—has it not already found numerous adopters? adopters in all nations by whom the attempt has been made to render Monarchy (Oh, Herculean, or rather Sisyphian labour!) consistent with the greatest happiness of the greatest number? Let them have received a plan, in which the dictates of that principle are pursued with undeviating consistency—pursued over the two remaining parts of the field of law—the Penal and the Civil,—think, Sir, to what extent, sooner or later, Spain may not, by their hands, have spread over the willing nations, the blessing of her laws!

Whatever may be their determination on that question, in mine their can be no difficulty. If life and faculties continue, my Codes will successively be drawn up. The encouragement, which, from so many quarters, I have received, would, of itself, have been a sufficient stimulus. The discouragement, received at the hands of the Legislative Committee of the existing Cortes,—not to speak of the Cortes itself, which on this ground knows nothing of what it has seen, heard, or received,—has been an additional stimulus. As the work proceeds, it will find its way into various languages: the Spanish will not be the last.

Into your Ultramaria—including all that was your Ultramaria—it will, in that as well as other dresses, find its way without difficulty.

Thus far my determination reaches. But now commence my uncertainty, and my desire of information, in so far as, in a case such as that in question, information is possible. Is it through the regular channels—or is it in the way of contraband, with other piece-goods, that the fruit of my endeavours to serve your constituents will have to make its way, to them, and to their paulo-post-future representatives? I am prepared for both sides of the alternative: but it would be a convenience to me to know, in which of the two the greatest probability is to be found.

Sir, when in dernier resort, for giving effect to whatever endeavours can be used to serve your country, I put on the garb of a malefactor and assume an attitude of defiance, it is not—indeed it is not—with a light heart. But, in the state in which your legislation still is: still is, and for I know not what further length of time seems doomed to be,—what else, by a man whose first regard is neither for laws nor makers of law, but for those for whom such laws, in as far as they are anything better than nuisances, must be made,—what else, what better, Sir, can be done? If you are fed, must it not be against law? if you are clothed, must it not be against law? as if in one word prohibition were contained the united powers of capital, skill, and access to market! If you are instructed, no wonder, then, if this too must be against law.

Believe me, Sir, neither is the uncertainty I speak of in any degree a feigned one. I see what the present is: but, until the millstone, which the Committee, with but too much countenance from their colleagues, have suspended over your press, has either been set aside, or been let down upon it and crushed it,—I am unable to see, in anything that is either past or present, any security for the future. Of the most comprehensive of those works of mine that are in French, the first volume, thanks to the zeal and talent of Dr Toribio Nunez, has been some time in Spanish: the others may, by this time, for aught I know have followed it. True it is, that, to the functionaries, whoever they may be, whom the Legislation Committee looks to for giving execution and effect to its Code, I should not expect to find, that in my Penal Code, even with the rationale standing part of it, there is anything that will give any heavier offence, than may have been given to them already by those works, or even than that which may come to be given to them by these present Letters. But, in this respect, the lot of this little work remains as yet in total darkness: and, supposing this darkness cleared away, and cleared away in my favour, still the like darkness would cover those so much more extensive and important future works. If I have not, in either instance, any assurance of proscription,—still, in that quarter, in neither instance, have I anything like an assurance of toleration.

How is it possible, Sir, that I should? If, with the functionaries in question, matters for that purpose, are already, or shall have come to have been, arranged,—what man, whose misfortune it is to give publicity to anything by which their displeasure shall have been called forth, can have any sufficiently grounded expectation of being suffered to live? not to speak of incarceration in its most hideous forms, and for never ending terms. Subvertir, trastornar, alterar, embarazar, guardárse—any one of those words, not to look for others, would it not be sufficient, Sir, for the fatal purpose?

True it is, that the Gobierno of the day, the septemvirate of Ministers,—if I may believe the official assurance of one of them, entertained, not many months ago a desire to see these projected works of mine: a desire which they were accordingly pleased to make communication of to the King. But, besides that the offence, which I cannot but be too well assured cannot fail to be given by these letters of mine, had not then any existence,—the gentlemen, of whom the government of that day was composed, have for some time been—what, in a few months, the Gentlemen of the Legislation Committee in question will be: and, under the proposed Articles in question, I see nothing that should prevent these my quondam honourable and official supporters, from being involved in that same fate, which, but for the circumstance of distance, might so naturally be mine.

True it is again, that for any such work there could not, I should suppose, be much to fear, supposing the circulation of these letters to remain unrepressed. But, unless it be from yourself, Sir,—for this, even in the present state of things, I cannot see any tolerably well-grounded assurance. How much less can I, under the proposed Code in question, if, in anything like its present state, it shall have become law?

Now then, Sir, comes a fresh vexation, which I know not how to avoid exposing you to: a request for answers, to a few unavoidably troublesome, and therefore sincerely reluctant questions. The uncertainty above spoken of, it being the cause and reason of them, will, I hope, be received as an excuse, or I have none.

Not to take, for the subject of the desired information, a work that as yet has no existence, I will take for a representative of it those Letters which have already given you so much trouble: and hereupon it is that I take the liberty of submitting to you the questions that here follow. To this work I might add those other tracts of mine on Spanish and Portuguese affairs, which in the original English have for sometime been (as you inform me) in your hands,—were it not that, if this little work is tolerated, there can be no fear for either of those lesser ones.

1. Without special interference, on the part of yourself, Sir, or any other person in particular, is it your opinion that they will, or that they will not, be suffered to circulate unrestricted? to be bought and sold freely, and all over the country, as books in general are? and this without danger in any shape to any persons by whom, in any part of Spain, any part shall have been borne in the publication of them?

2. If there be any such impediment to their diffusion, may I be warranted in any such hope, as that the influence of your declared opinion and wishes will be employed in the endeavour to remove it?

One word more, Sir, and the experiment, so unexpectedly made upon your patience and power of forgiveness, is at an end.

Prepare yourself now, Sir, for what I am sure you cannot be accustomed to receive—and what I myself am as little accustomed to give as to receive—a menace. Menace as it is, it is however of that sort, a man’s sensitiveness to which is—not in the inverse but in the direct ratio, of the elevation of the place he possesses in the scale of public estimation, and of the goodness of his title to possess it. It is of that sort, or you would not have it to encounter, I believe, from anybody, and I am sure not from me. Nor yet from me, but for the weakness of my position, would you be troubled with it.

That which, in my character of unretained but not the less zealous advocate of your nation, I have need of, so far as you are concerned, is—to see you at liberty: at real, and not merely apparent liberty. But, to a man in a situation such as yours, exposed to so much pressure in so many sinister directions, it is impossible to receive liberty but from some opposing pressure.

In the assembly of the deputies of the people you cannot take your seat, but encompassed by colleagues, from whom, in all varieties of form, you will hear this in substance—“Leave the intruding foreigner unnoticed. Let him write on at his peril. The constituted authorities will take charge of him: What is he to us? What need Spaniards care for foreigners? Let him remain unanswered. Least said is soonest mended. What a pity you thus noticed him! But this will be a lesson to you, and to all of us in future.”

In the midst of all this (for how guarded soever the expression, you see the meaning that is at the bottom of it)—after such a warning from the highest but narrowest section of the tribunal of public opinion,—is it in the nature of the case, that a man in your situation should feel himself in possession of real and effective liberty?

Oh no! it is impossible. I see virtue struggling, but tottering. Now then for a support.

Where the desire exists to maintain a line of conduct, which, in the nature of the case, cannot but be in contrariety to the wills and opinions, to which a man is under the necessity of showing a certain deference,—a sense of superior duty presents not only a justifiable cause, but may frequently be found a convenient and allowed plea, for yielding to it; and thus, out of obligation, real or though but apparent, springs real liberty.

In the tribunal of public opinion—the only efficient guardian of political virtue—there are (I believe I have already made my bow to the superior of them) two grand sections. In your situation, on a thousand occasions, the suffrages of that one section are irresistibly forced from the line of rectitude by the pressure of a swarm of particular interests. In the inferior and more numerous section, is the only steady seat of that virtue, which has for its object the greatest happiness of the greatest number.

At Paris, sits one of the most respectable committees of this multitudinous body. Paris, Sir, is not unknown to you: in Paris you behold, Sir, or report has been misled, a not altogether unattractive residence. . . “If I decline doing what is thus asked of me, what will Paris say to me?” This, Sir, is a question you need not be ashamed to put to any of your colleagues. Now then, Sir, for my menace—Return to Paris when you will,—these letters, in a French dress, will meet you there.

Now then, Sir, you are free: free to prefer public good to private considerations. Now, Sir, you stand at your ease, and armed. Receive at length in form, the assurance of that respect, tokens of which, so much more demonstrative than any express declarations can be, have in no part of this long address (I stand persuaded) been found wanting, from

JEREMY BENTHAM.

To the Comte de Toreno, &c. &c. &c.

LETTER VII.

Religion—Catholic Religion—Pena de muerts—Death (so says Article 230) death, the portion of every one, who, directly and by deed shall conspire to establish (establecer) in any part of Spain (en las Españas) any religion other than the Catholic (Spanish Ultramaria included or not included:—I should expect to find it included.) Establish? What is to establish? A set of men who, in a house, appropriated or not appropriated to the purpose of religious worship, or let it be in open air, perform religious worship in a way of their own,—may not they, under this Article, by a willing Judge, without much difficulty, be killed for doing so?

On this subject, Sir, I should hardly have thought it worth while to trouble you with any observations on my part,—but for the words, by which, speaking of “les Articles qui parlent sur la Religion,” you encourage me with the assurance—“cela ne passera pas.” As to its being meant to apply to all these Articles without exception, this could scarcely, I think, have been your meaning: but, at any rate, I hope the prophecy will prove a true one, if applied, as I hope it was meant to be, to this same 230th Article. It being no more my intention to say anything, either in this letter, or in any code of my drawing, against the Catholic Religion, than to run my head against a wall,—I find no difficulty, Sir, in submitting to you, in relation to this subject, a few scattered observations.

To every sincere and at the same time firm believer in the Christian Religion in general, and in the Catholic edition of it in particular,—it cannot, I think, but be matter of sad concern, to see the testimony of so many illustrious names, attached,—as in the Articles 230, 231, 232, 233, 234, 235, 236, and I know not how many besides, in the Chapter declared to be appropriated to that subject,—to any such declaration, as that, in their opinion, without support from temporal punishment inflicted on gainsayers, the belief in it would not be able to stand its ground.—Not stand its ground? Not in Spain? What should hinder it? In Ireland, as so many Irishmen settled in Spain can testify to you, it not only stands its ground, but gains ground: and that not only without support from oppression, but in spite of it.

“What?” (says somebody) “and, among all the sorts of acts, to which the Chapter on Religion seeks to apply prevention, and for the purpose of prevention, punishment,—is there absolutely not any one to which, if it depended upon you, you would apply prevention, and even in some shape or other, punishment?” O yes, some there are unquestionably: namely, all those acts by which, to human beings to an indefinite or other adequately large extent, I see any real evil,—in a word, any sensation of an uneasy nature, to a certain degree of intensity,—produced. Here, then, is a line drawn, which, if drawn, on the proper plan, would be at any rate a tolerably plain and clear one. All exhibitions, which, being to the minds of individuals taken in any considerable number, productive of uneasiness on a religious account, are offered to their senses in such manner as that the unpleasant sensation produced by them, whatever it be, is unavoidable—all such acts are, in my view of the matter, objects calling for prevention by means of punishment; and, in this consideration, I cannot but approve of the principle acted on in Articles 237, 238, and 239 of the proposed Code.

Why? Because man is a being but too susceptible of uneasiness, and the more of it he can be saved from the better. But—the Almighty—is he a being susceptible of uneasiness in any shape? For my part, I cannot find any sufficient reason for believing him so to be: however, if on this point, the Cortes, by means of information received from those to whom it belongs to give it, have been more fortunate,—this point must be considered as settled. But, this point being supposed to be thus settled, then come two or three others. The Almighty being susceptible of uneasiness, and in particular of uneasiness produced by words employed by men, in speaking to or of him,—is it his Almighty will to be saved from such uneasiness or not? if yes, does he stand in need of any human power, and in particular of that of the Cortes, to give effect to such his will? if, on the contrary, it is his Almighty will not to be saved from such uneasiness, but to continue suffering under it, does it become the Cortes to endeavour to oppose their power to such his Almighty will? and if yes, does such opposition afford any considerable promise of proving effectual? Corresponding questions, in regard to the Saints; to whom also, meaning doubtless the departed Saints, the protection provided for the Almighty is, in Article 237, (I perceive,) extended. Having ventured so far as to submit to your view these questions, the answers I must be content to leave, which I do without reluctance, to the competent authorities.

These things considered—“blasphemies,” or “imprecations,” (Article 237,) or whatever else be the denomination given, to portions of discourse, by which, with or without production of uneasiness, offence has been supposed to be given to God, or to the Saints, or to both,—so long as they are confined to writing or printed books,—or to private conferences, not open to the public at large, into which he, to whom what is said is productive of uneasiness, entered of his own free choice, without being obliged to repair thither in prosecution of any matter of business;—to no such discourses, how revolting soever to myself, could I, if it depended on me, think of applying punishment in any shape. But, in a promiscuous multitude,—in a church suppose, a judicatory, or any other public building, or in a road or market-place, or a ship,—suppose such language uttered, uneasiness to men may be produced, and with it demand for punishment.

Whatsoever may be the justice—with which the above observations may be found to apply to offensive audible exhibitions,—with correspondent justice they will, I think, be found to apply to visible exhibitions: it matters not through what sense the wound passes to the mind, if the mind is wounded.

Whatever difficulty may have been produced in Gentlemen’s minds, by offences styled offences against Religion, considered as commissible by individuals at large,—it is but a small matter (I should suppose) in comparison with that produced by offences through Religion: offences apprehended at the hands of that particular order of men, in whom, among you, the votaries of religion are wont to behold its special and little less than exclusively authorized guardians.

As to myself,—reference always made to the greatest happiness of the greatest number,—I beheld as issuing from this source two widely different mischiefs: the one temporary in its nature, the other permanent. 1. By the temporary mischief, I mean, that which consists in opposition made by this particular class of functionaries, to the government composed of all the other classes of functionaries: a mischief which, to the greatest number of the people, is great, in proportion as the conduct of the present government is, in a higher degree than that of the late, conducive to that same greatest happiness. 2. The permanent mischief is—that which I apprehend, from the junction of the body of the sacred functionaries with the profane ones: the junction, of the two particular interests of these two sections of the ruling few, into a body of particular and thence sinister interest, which will thereby be so much the more effectually enabled,—as, if the body be composed of men, it cannot but be as surely disposed,—to sacrifice to its own supposed greater happiness, the greatest happiness of the greatest number:—or, if interest be the word, the universal interest.

Supposing the old government to continue unrestored,—the temporary mischief, as above described, will be growing less and less every day, as the functionaries established under the old government drop off, and as the public mind grows more and more enlightened. In corresponding proportion will the permanent mischief take its place; and, when it has once swallowed up its present opponent the temporary mischief,—will remain in possession of the field, without anything, unless it be the spirit of the people, to oppose it. In a word, the temporary mischief is—superstitious influence: the permanent mischief, corruptive influence.

In the temporary mischief I see nothing very formidable: nothing but what, under the constitution as it stands, may admit of a remedy: an easy, a gentle, and an effectual remedy. This remedy, Sir, I shall proceed to submit to you: and with the less diffidence, considering how near on some points it comes to that which I see employed by the Committee.

For conciseness I shall put it into a form in some respects similar to what I should pursue in the penning of the correspondent part of a Code. But, I must beg of you not to consider it, as anything like an adequate sample of such a Code. To give to it anything like the precision and conciseness, that would be given to it in a regular work of that kind of which it would form a part, is altogether impossible. In any such fabric of my construction, the form of each part would be dependent on that of every other.

General description of the proposed remedy.

1. With the exception of ecclesiastical functionaries in general, and bishops in particular, addressing themselves in print or writing to the people within the range of their authority, in the exercise of their official functions,—leave to persons of all descriptions—ecclesiastics of all classes as well as others—the complete liberty of publishing whatsoever they please on the subject of religion, without exposure to punishment in any shape, or impediment to the circulation of such their discourses. N. B. Such,—only without the exception,—is the state of the law in the Anglo-American United States: and no mischief in any shape,—no such mischief as that of oppression by government, or disaffection towards rulers, or discord as between citizen and citizen through the instrumentality of religion,—is produced by it, or has place there.

2. On the part of an ecclesiastical functionary of whatever class, let the publication of any instrument,—on the face, or on the occasion, of which, either by his proper name, or the name of his function, he stands designated, either as sole author, or partaker in the authorship or publication, of such instrument,—designated whether in the direct way, or in any way howsoever indirect,—stand interdicted: unless and until it shall have received a license in writing, under the hand of a functionary of the temporal class:—say the political chief of the province.

In this case,—though the composition of the instrument is, as consistently with the religion in question it cannot but be, the sole act of the ecclesiastical functionary,—yet the publication of it may be considered as the joint act of the ecclesiastical functionary and the temporal: or a relative censorship may be considered as established, with the temporal functionary for censor. The operation is the same, in whichever light considered.

N. B. To this purpose must be considered—not beneficed ecclesiastics only, but all ecclesiastics whatsoever, regular as well as secular. For, it is—not only from special power or dignity, but from the sacred character common to them all, that their influence is, in the instance of each, wont to be derived. Co-extensive is the designation employed in the proposed Code, Article 213.

I. Reasons for the general liberty.

1. Against vexation to the feelings of individuals, security will be sufficiently afforded, by the above proposed interdiction, of discourse, visible as well as audible, and of all other objects of an anti-religious nature, if exhibited in any such manner as to be open, to eyes to which they are disagreeable.

2. Against mischief by the propagation of mischievous errors, security will be afforded, by the unbounded faculty of refutation, left to all persons in whose eyes they possess that quality: and, of inducement adequate to the production of such refutation, in so far as the nature of the case admits of refutation, no deficiency can reasonably be apprehended: if there were any, nothing could be easier to government, than the providing an adequate supply to it. See the Tract on the Liberty of the Press, and Public Discussion.

3. Any fear, real or pretended, of seeing the will of the Almighty, in this or any other particular, overpowered and frustrated by human agency, is too palpably self-contradictory and absurd, to be defendible:—or to be accounted for, otherwise than by long-continued custom produced in its origin by the union of force and fraud, with or without superstitious terror.

4. Of the fear of seeing the will of the Almighty frustrated, in the particular instance of the existence and extent of the religion of Jesus,—the groundlessness is moreover demonstrated by experience, in the case of the Anglo-American United States.

5. Of the fear of seeing the will of the Almighty frustrated, in the still more particular instance of the existence and extent of the Catholic edition of the religion of Jesus,—the groundlessness is moreover further demonstrated by experience, in the case of Ireland, as noticed above.

II. Reasons, against every such attempt, as that of designating, for the purpose of punishment, the sort of supposed mischievous discourse, meant to be interdicted on the score of opposition to the existing government, on the part of ecclesiastical functionaries, speaking as such.

1. Such designation is, as to a part of the extent, needless. In so far as such discourse has for its immediate tendency to engage men in the commission of acts injurious to person or property,—the offence is met by the laws applying to such offences, taken in their utmost latitude.

2. As to the rest of the extent, it is impossible. The above case excepted,—it is not possible to reach by any description, the sort of discourses in question, when emaning or appearing to emane, from any person invested with the consecrated character. Out of phrases, extracted either from the Fathers, or even from the Bible,—in a word, from any writings, whatever they may be, which in the religion in question are held as sacred,—out of phrases thus extracted, may be composed, by any one who shall think it worth his while, a cento, abundantly sufficient for any such mischievous purposes. Of the portions of discourse thus extracted and employed, the application thus made will be a misapplication. True: but the source from whence they were extracted will not have been the less sacred. Too great to be contended against, will be the difficulty of passing condemnation, on matter extracted from such sacred sources,—when seen, or believed to be, extracted by such consecrated hands.

3. Uniform conviction will be hopeless. Howsoever, in such a case, a judge, zealous to a certain degree on the side of the existing rulers, may be disposed to pronounce conviction,—a judge, inwardly hostile or less zealous, can scarcely be punished for not doing so. Such (says the obnoxious ecclesiastical functionary to the judge) is the interpretation put by me: if my interpretation is erroneous, does it belong to you—not only to put an opposite interpretation upon the sacred text, but to punish me, only because mine is different from yours? Then comes the judge and says to his superiors, Can you punish me, layman as I am, for not punishing, on the ground of its being a misinterpretation, an interpretation put by a consecrated person on these sacred texts?

As to the particular restraint,—note, in the first place, the assumption on which the demand for it is grounded: it is—that, from the class of persons in question, under existing circumstances, hostility to the new order of things is naturally to be apprehended.

Grounds for the assumption are these: viz.

1. Hostility, from this quarter, has actually been manifested to a very considerable extent.

2. It is but natural, and even, morally speaking, excusable,—that, having been admitted into their respective functions when the former order of things was in force,—they should, by sense of duty, and thence by reflection, as well as by particular self-regarding interest, be attached to it, and led to give support to it.

III. Reasons for the restraint.

1. Addition of what is wanting, to the perfect freedom of discussion, which, by the supposition, was meant to be established by the general provision relative to this subject. The power,—exercised over the judgment of the people at large, by means of the fears, derived from the source in question, and infused into their breasts,—is a power by which inward freedom of consideration is liable to stand excluded, and the mind to be rendered insensible to the force of argument on the other side.

2. From the freedom of discussion, no defalcation is thus made. Not even on the part of these functionaries themselves: since, for the giving support to their opinion, it leaves to them whatever liberty is possessed by any other citizen. They may give currency to whatever arguments they please, so as they do not make it known from what privileged source they come: the arguments will then operate with whatever rational force properly belongs to them, and no more.

3.Exclusion of useless punishment. If punishment were ordained to be applied to all such discourse, as, emanating from the quarter in question, shall, according to a description given of it, be deemed mischievous, it might, under the uncertainties above-mentioned, come to be now and then inflicted. This punishment, being upon the whole inefficacious, would be useless, and expended in waste: evil, produced without preponderant good.

Look, on the other hand, to the case, where the offence to which the punishment is applied, is the offence of publishing without the required license. In this case, the fact is so easily ascertainable, and so completely unexposed to dispute, that, by a presumption by no means unreasonable, it may be assumed that the offence will scarce ever be committed. If the instrument is not regarded as coming from the ecclesiastical functionary in question, it is not productive of the mischievous effect apprehended: as little is it, if, on being interrogated whether it has his sanction, he denies it:—if, on the other hand, he avers that it has his sanction, in this case, having by the supposition no license to produce, he plainly incurs the punishment. Under these circumstances, how small the probability is that a man should thus expose himself, is manifest.

True it is,—that, by this restriction, confined as it necessarily is to discourse in a written state, mischievous discourse from the quarter in question, not uttered otherwise than by word of mouth, is not reached. But,

1. For the repression of all actual mischief—all mischief in a tangible shape—all mischief, which is anything more than mischief in tendency—all mischief, in a word, which has for its subject-matter either person or property,—provision is made, by the general and standing laws, by which, acts mischievous to person or property are erected into offences, and, as such, made punishable.

2. The mischievous discourse in question being, by the supposition, not committed to writing,—the effect of it will be proportionately uncertain and transient.

3. In so far as any reports made of the purport of it find their way into print,—they will have to encounter the arguments, which,—on the side, that, by the supposition, is not only the right side, but the side which has the remuneratory power of government for its support,—cannot, as above shown, be reasonably expected to be deficient: and as, by the supposition, the mischievous matter will not be avowed by the functionary from whom it is reported to have come, they will not operate with more than their proper and reasonable force.

IV.Punishment, proposed for promulgation without such license.

1. Banishment, for a term to be limited, from every part of the Spanish territory.

2. Forfeiture of all ecclesiastical benefices situated within the Spanish territory, i. e. of the temporalities thereto belonging. N.B. If, by the ecclesiastical law recognised in Spain, any difficulty be opposed to such forfeiture,—for example, a difficulty as to the separation of the temporalities from the spiritualities,—this point will require to be settled.

3. In case of damage, produced to person or property, by means of any incitement, regarded as having been given by the unlicensed instrument,—obligation to make compensation for the injury.

• Reason for article 1 of the Punishment.
• Power of reoffending cut off in part.
• Reason for article 2 of the Punishment.
• Power of reoffending cut off in other part.
• Reasons for article 3 of the Punishment.

1. The justice of the arrangement manifest to all eyes. N.B. But this supposes, that the connexion,—between the publication of the unlicensed instrument and the physical damage in question,—in the character of cause and effect, has been sufficiently ascertained.

2. Assistance necessary to the law more effectually secured: secured, on the part of the persons, whose subserviency is necessary to the execution of it: necessary—in the several characters of witnesses, and informers or prosecutors.

N.B. Capital punishment makes martyrs: a martyr may be more mischievous after death than during life. Neither by banishment,—nor by forfeiture of the ill bestowed invitations to idleness and anti-christian luxury,—nor by obligation of making amends for injury,—nor by all together,—is any such instrument of good or evil as a martyr manufactured.

V.Punishment for the Political Chief, in case of his giving a license to an instrument of the sort in question, which, in respect of the mischievous tendency imputed to it, shall have been deemed unfit to receive a license.

In case of actual damage produced to person or property,—obligation to make compensation:—as in the case of the ecclesiastical functionary, as above.

N.B. If, in the case in which no such damage has been produced, it be thought fit to apply punishment to the case of the temporal licensing functionary,—a description of the nature of the offence, committed by the improperly licensed spiritual functionary, will require to be given: a description, the difficulty of which has been above brought to view. But, in comparison with the peril that has place in the case of the improperly licensed spiritual functionary,—the utmost peril, that can have place in the case of the licensing temporal functionary, is very inconsiderable. The inducement, by which a person in the situation of the ecclesiastical creature of the former government is naturally stimulated to the commission of the offence,—has no place in the situation of the temporal creature of the new government by which the former government has been supplanted. Whatever therefore be the description given of the offence,—very inconsiderable is the probability, of its being, in any such situation as that of the temporal functionary in question, ever committed.

Suppose even that, in the text of the law, no penalty is attached to the supposed mischievous conduct in question, on the part of the temporal functionary,—even in this case, the requisite means of repression will scarcely fail of being applied. For this purpose, the power of removal, belonging to the superiors in the executive department, might, it should seem, suffice.

VI.Punishment for the Political Chief, in the case of his refusing a license to an instrument of the sort in question, to which it is thought a license ought not to have been refused by him.

In this case, there seems not to be any adequate demand for punishment. The situation in question would be too perilous,—if, for two offences of an opposite nature,—one of them so difficultly susceptible of precise description—punishment were thus menacing a man on both sides.

To put an extreme case. Suppose the result to be—that, from the quarter in question, no written instrument of the sort in question ever emanes. The greatest possible evil that could result from such deficiency does not present itself as very serious. From the same quarter there would remain, in unlimited quantity, in the oral form, instructions to any effect wished to be communicated, and in the written form, instructions equally unlimited, so it be in an anonymous state:—in that state, in which it will carry with it, no more indeed than the weight, but yet all the weight, that properly belongs to it.

VII.Reason for the proposed temporariness of the restriction.

1. Restriction, howsoever applied, being so much evil,—ought not to stand applied, but in so far as it has the effect of excluding evil to a greater amount. For the exclusion of the evil in question, the most perfectly effectual course would be—to continue the restriction so long as any one functionary, admitted into the order in question under the former state of things, continued alive. But, were the duration given to it thus protracted, the restriction would continue long after the need of it had ceased to exist. Threescore, or as far as fourscore years, might be the duration of it. Even supposing unabated hostility sure in the instance of every one of them,—it is not by one, nor by a small number, that in this way any considerable mischief would be produced. In a torch, though lighted, there is nothing dangerous,—except in so far as combustible matter, in a quantity sufficient for mischievous effect, is within reach of it, Say then in ten, say in twenty—say at the utmost in thirty years,—with the hope, even the desire, of producing mischief in this shape, it seems reasonable to believe, would be effectually extinguished: if not in all, at any rate in so large a proportion of the whole number, as to leave the rest in a state of sufficient impotence.

I was about to speak, somewhat at large, upon the permanent mischief, in regard to which gentlemen of the Committee are so much at their ease, and your humble servant so full of apprehension: I had even written more than as much again as, on the conclusion of this Letter, you will now have been troubled with. What has saved you is—the recollection, that in the composition of the mischief in question, the mass of the matter of corruptive influence in the hands of the clergy is but one element out of a number: and that therefore, under the head of Religion, discussions on this subject would not have their proper place.

I will not attempt, Sir, to take up any more of your time, by offering to your view the points of difference and the points of agreement—for points of agreement on this subject there are—between your Honourable Colleagues, and your troublesome correspondent. There would be no use in it: and, when confronted, the passages will, I hope, speak sufficiently for themselves.

By one thing or other, I have thus been insensibly led, to the obtruding upon you, as it were by a side wind, something like a sample, of the manner, in which,—in a Code furnished with a rationale,—the principle of the greatest happiness of the greatest number, would be applied to the several particular cases: the several elementary ingredients of the great compound—I mean the probable feelings of all individuals concerned—being, to the best of the operator’s ability, looked out for, set down, numbered up, weighed and measured. Inadequate in a lamentable degree must unavoidably be any such sample. In an entire work of this kind, constructed in pursuance of an uniform design, that degree of condensation is practicable, which in any part taken by itself is impossible: condensation—a quality in this case so indispensable—to precision, comprehensiveness, and consistency, as well as notification. On the same subject,—you and your honourable colleagues, Sir, have before you a work, of which, in this place, I need say no more, than that, compared with their proposed Code, it is a different one. The eyes of “cultivated Europe”—Yes, and of the so much better cultivated America—not to speak of that which is beginning to be cultivated—are fixed upon you. You will make your choice. And now at length, Sir, a period is put, to the course of continually increasing vexation,—which, by the philanthropic and spontaneous zeal of a common friend, has,—such have all along been my apprehensions,—been unawares imposed upon you, at the hands of your not the less sincerely respectful correspondent,

JEREMY BENTHAM.

SUPPLEMENTAL ADVERTISEMENT.

In the preceding Advertisement, some account was undertaken to be given of the effect of these Letters, so far as regards the honourable gentlemen at whose instance they were written, and the other honourable gentlemen who has been seen bearing a principal part in the drawing up and ushering in the important work which has been the subject of them.

Letter after letter went, and no acknowledgment came of the receipt of them. The Count’s residence at Paris being but temporary, and no address having been given to me, the course I had taken was—after directing the letters To Count Toreno at Paris, to add in French, To the care ofthe Spanish Mission. At this time, fortune favoured me so far, as to station at Paris, a correspondent on whose punctuality I could depend:—Miss Frances Wright, author of that so justly admired and pre-eminently interesting work—View of Society and Manners in the American United States, a second edition of which has, at the end of a few months, just succeeded the first. At my request, that lady did me the favour to see the Count, and deliver into his hands, a letter of which the following is a copy:—

Mr Bentham to the Comte de Toreno.

Queen’s Square Place, Westminster,Sept. 18th, 1821.

Sir,—

This goes to you, I hope, by a private hand. In obedience to your commands, as signified by your letter of last month, and in consequence of your obliging present received on the 22d, I addressed to you by the post on the 11th of this month, the first of six intended letters, and on the 14th, the greater part of the second: the conclusion of the second I shall send this night by the post, not being able to finish the revision of it time enough to send it by the present private conveyance. The third and fourth will follow it in a very few days more. In the first or second of these letters, reference is made to two pamphlets, which Miss Wright, a young lady who was going from hence on a visit to General La Fayette, was kind enough to take charge of. It would be a great satisfaction to me to hear that anything of all this has been received by you, as likewise to receive your directions respecting the course to be taken for the conveyance of the remaining letters.* Your letter to me not containing any directions on this subject, nor being dated from any street or other place at Paris, I could think of no course so proper, or so likely to succeed, as that which is expressed in the direction given to this letter, and which direction I have accordingly pursued in every instance. To Miss Wright, I gave in charge nothing more than the pamphlets in question, not having at that time been able to decide what course my letter to you should take. Understanding that the Cortes were to meet to do business so soon as the 24th of this month, I should not have sent a letter to you at Paris thus late in the month, but for those words in which you say in your letter “d’ici aux derniers jours de Septembre, que je dois retourner en Espagne.” With the truest respect, I am, Sir, Yours,

Jeremy Bentham.

Under these circumstances I could not help considering myself as being in no inconsiderable degree indebted to Miss Wright for the Spanish letter underneath, of which the following is a translation:—

Paris,September 26th, 1821.

Sir,—

Perceiving from the quotations in your three valuable letters, the acquaintance you have with the language of the nation I belong to, I employ it on this occasion, in preference to any foreign one; following in this particular the example you have set me. Never should I have thought of making any such attempt upon your time, had it not been for my friend Mr Bowring, and the assurances he gave me, that you would with pleasure do whatever it might lie in your power to do, in compliance with any request, which, for a purpose such as that in question, I might be disposed to make to you. Under this assurance, it seemed to me that I could not have a more favourable occasion, for addressing myself to the illustrious writer, the celebrated Mr Bentham, whose works have spread so much light over the field of legislation, and thereby made such large contribution to the welfare of mankind.

I see, however, that the extent of the subject, and, above all, a sort of distrust on your part as towards the functionaries who consult you, have given their colour to your mode of complying with my request; although it does not appear to me that “the individual thus consulted” should have seen grounds for distrusting “the functionary consulting.”

The latter of these will, with pleasure, quote with due respect the person by whom he is thus honoured: it accords not with his principles or his habits to attempt to gain reputation by hiding, diminishing, or appropriating to himself the merits of other men. With that urbanity which from such a quarter could not but be expected, it has been your care to avoid including me in any such imputation: I mean, by the testimony you give to the fact, that I have not the honour of knowing or being known to you, or of ever having written to you: by this testimony, coupled with the intimation of your opinion, that there was nothing about me that could have given room for any such particular distrust on your part towards myself. Be assured, Sir, that I am duly sensible to the value of the expectations you hold out to me, of your having in hand a work on this same subject. Not less so am I to the justice of those already published observations of yours, of which certain articles in our constitution are the subjects, confirmed as it is to me, by those which a pretty extensive course of experience has led me to make on the practice of legislative bodies. The non-re-eligibility of deputies is a most serious evil; detrimental, as it so manifestly is, to that stability and consistency which are so essential in men’s proceedings in general, and more particularly in such in which the public interest is concerned. Although my first letter was not written under any such expectation as that of its meeting the public eye, you have not the less my free consent, Sir, to send it to the press, so as the present letter be an accompaniment to it.

It is with great pleasure that I shall always receive any such communications as you may be pleased to make to me: persuaded as I am, that whatsoever labour may have been employed upon them will not be labour lost.

I am, Sir, &c.

(Signed) El Conde de Toreno.

P.S. Miss Wright has the goodness to take charge of this letter for you.

Mr J. Bentham.

Paris,Septembre 26, de 1821.

Mui Senor Mio,

Viendo por las citas que VMd hace en sus tres apreciables, lo bien que entiende el espanôl; prefiero escribirle en mi lengua á valerme de otra extraña, siguiendo en esto el exemplo de VMd. Nunca hubiera yo molestado su atencion, ni atrevidome á distraerle de sus importantes tareas, si nuestro amigo Mr Bowring no me hubiera animado á ello, manifestandome el gusto conque VMd satisfaria mis deseos—En virtud de esto nada crei mas oportuno en el asunto de que se trataba que dirigirme al escritor ilustre, al célebre Mr Bentham, que por medio de sus obras habia procurado en materias de legislacion, difundir ideas luminosas y contribuir de este modo al bien de la humanidad—Veo sinembargo que lo extenso del asunto, y sobre todo un cierto género de desconfianza que tiene VMd en los funcionarios que consulta, le han impedido contestar à lo que le preguntaba, si bien nada hubiera tenido que recelar del functionary consulting el individual thus consulted. El primero citarà con gusto la persona que le ilustre, no fundando su gloria en ocultar, disminuir, ó quitar, el mérito de las demas—VMd con la urbanidad propia de hombre tan distinguido, no me comprehende en su asercion; y en verdad no habiendo tenido la honra de conocer antes à VMd, ni de escribirle directamente, como VMd mismo nota, no habia antecedente alguno que diese lugar a esta desconfianza.

Aprecio de todos modos la promesa que VMd me hace de una obra que acerca de esta materia escribe.—Asimismo estimo las observaciones generales sobre algunos articulos de la constitucion; entre ellas hallo algunas bastante justas, segun lo que me ha enseñado una larga experiencia de lo que son los cuerpos legislativos—La no-re-eleccion de diputados es un grave mal, pues falta aquel principio de estabilidad y consequencia tan necesario en todos los asuntos, y sobre todo en los de publico interes.

Aunque mi primera carta no fué escrita con el obgeto de que viese la luz publica, es VMd mui dueño de imprimirla con tal que imprima igualmente esta que ahora le escribo.

Tendré siempre mucho gusto en recibir las observaciones que tenga VMd à bien comunicarme; y estando seguro de que no serán sin fruto me ofrezco de VMd at° seg° serv^r L. B. S. M.

El Conde de Toreno.

Miss Wright tiene la bondad de dirigir à VMd esta carta.

No other acknowledgment, nor any further instruction arriving,—on the 11th of October, I sent for Madrid by the post the following Letter, directed “A Monsieur M. le Comte de Toreno, &c. &c. &c. Madrid.”

Oct. 11, 1821.

A Monsieur M. Le Comte de Toreno, &c. &c. &c.

Sir,

Circumstances considered, it seems to me that there may be a use, in my making this second acknowledgment of the honour done me by your second letter bearing date, Paris, Sep. 26. The first acknowledgment was made in a postcript to letter the 4th, being the 3rd of the series of letters announced in letter 1st. Whether, besides that 1st letter, you had, before your leaving Paris, received any others, I cannot be sure: though, from a passage in your above-mentioned 2d letter, I am inclined to think you had received one at least:* of the 6 sent or announced as above, 4 have already gone to Paris at different times, all of them directed in the same words as the one of which you mentioned the receipt: so likewise a part of letter the 5th. The whole, or near the whole, of the remainder, will go to-morrow (Friday); letter 6th, which at present at least is but a short one, will follow it the next Paris post-day, which is Tuesday Oct. 16: and, the same day or the next, the supplemental letter on Religion (letter 7th) announced in one of the preceding ones. I am, Sir, with all respect, your obedient servant,

Jeremy Bentham.

P.S. The following are the days on which the several letters were sent to our London Post Office.

1821. Sept. 11th, Letter 1.

Sept. 14th, Letter 2 (first part.)

Sept. 18th, Letter 2 (last part.)

Sept. 27th, Letter 3.

Oct. 2d, Letter 4.

Oct. 15th, Letter 5 (first part.)

Oct. 10th, Letter 5 (last part.)

The honourable gentleman speaks of distrust: of distrust on my part: and, as in his situation would very naturally be the case, seems to be not altogether pleased with it. Distrust on my part? O yes: that there was: distrust not entertained only but declared: the reader may have observed how explicitly declared. It is for this distrust that I see a sort of action brought against me in the Court of Public Opinion: though, such is the honourable plaintiff’s candour, I cannot complain of the rate at which the damages appear to be laid. To this action, such as it is, my pleas are—in the language of English law—Not guilty, and a justification. 1. Not guilty. For,—the object of this distrust of mine—what is it? Not the individual, but the genus and the species:—man, the genus; statesman, the species: and, such as the imputation is, we are—both of us—not he the plaintiff alone, but I the defendant also—declaredly included in it. I will even go further—I aver even ultrà-innocence. If, on my part, in a case like this, the eye of suspicion could have been closed, in few instances could it have been so nearly so, as in the present. I turned in the first place to the Cortes at large. In the instance of these real representatives of the Spanish people, when compared with the sham representatives of this and that other nation, I could not but see a ground for comparative confidence—appropriate confidence—a ground alike obvious and incontestable. In the instance of Count Toreno in particular, this ground presented an aspect of peculiar strength. Him alone I saw breaking through the trammels of national vanity, and national prejudice. Him alone I saw looking round for useful information: looking to whatsoever quarter presented a chance of furnishing it. To whatever presumed source of information the call for it had been directed, the magnanimity manifested by such a call would have produced, in my mind, that degree of appropriate confidence which was so natural: and whether, by the consideration of the individual source applied to, that confidence could have been lessened, any one may judge.

So much for not guilty. Now for justification.—Suppression—suppression, to an amount more or less considerable—is charged, as having, in the passages complained of, been stated, as an undesirable, but at the same time a too certain result,—supposing the correspondence not submitted to the public eye. Such then being the alleged probable, what has been the actual, result? This security against suppression—such security as is afforded by the assurance of future publication—this security, as far as it goes, has been obtained; and still, so far as has depended on the honourable complainant, suppression has actually been the result: suppression, not partial only, but total, in the only place in which publicity could have been productive of any immediate effect on practice. Of the seven letters which the reader has before him, three (he has seen) have been acknowledged. But he has moreover seen—how and by what means they were caused to be acknowledged: fortune having, in the manner that has been seen, favoured me, and conveyed through the Count’s key-hole, a sylph, to whose questions a yes or a no could not be refused. It is moreover to her account that my suspicion cannot forbear placing that same license, whereby publication stands authorized. Since that day, (Sept. 26th, 1821,) neither in black and white, nor by word of mouth, has a syllable from him on the subject been extractible. The letter, with which he was presented, or at least endeavoured to be presented, upon his return to Madrid, the reader has seen likewise. Mr Bowring, by another such favour of fortune, was sent to meet him there. Have you seen the Count? What has he received? What says he to it? To questions to this effect, put by me to my friend, an answer could not be refused. One alone could be given—Invisible. Invisible? How so? unless that, by the Count, my good genius, though so lately his own likewise, was now taken for his evil genius?

Thus it is, that in the case in question, while all use to the Spanish nation was dependent upon and proportioned to publicity,—on the one part has been seen exertion for the securing of it, on the other part silence and secrecy, continuing from beginning to end.

In letter sixth, may have been observed two concluding questions put to the Count. 1. Think you, Sir, that, without any interposition on your part, circulation will be permitted to these letters? 2. If not, will your influence be employed in the endeavour to procure a permit, or at least a connivance, for the article you have been pleased to bespeak of me? Still, for answer, silence: and in such a case, silence (it need scarce be said) is a negative. Now as to the effect of this same negative. Nor yet, if report be to be credited, is silence on his own part the only instrument of suppression my honourable correspondent has at his command. In Madrid, as elsewhere, sits a Board, for the securing of whatsoever requires to be secured, in relation to the press: on the part of all constituted authorities, good conduct, at all times, and in every shape: and for this purpose—for there, as elsewhere, such are the means employed—concealment of every such instance of bad conduct, as may at any time have had place. For a gilding to the pill, here as elsewhere, Jury, if I mistake not, is the title conferred upon this Board. At Madrid, report gives to Count Toreno the direction of this instrument: and such is the hold taken upon men’s minds by this apprehension, I am assured that, should it happen to any of these letters to make their appearance at that chief seat of Spanish liberty, amendments adapted to existing circumstances must and will, in the first place, have been made in them: so that, to an extent more or less considerable, what I am thus seen to have said will be—not what I have said, but what I ought to have said.

All this while, let not injustice be done, in any shape, to my honourable correspondent. On nothing which he has done or left undone, is any breach of promise chargeable. What he promised, was—that he would himself pay attention to what he received from me: what he did not promise, was—that any one else should have it in his power to do so.

Curious enough, unless my information is substantially incorrect, is the contrast exhibited by the effect of these Letters on the two most conspicuous characters in the Cortes,—Count Toreno, and M. Calatrava: that Mr Calatrava, who, on the occasions of greatest importance, has been seen taking the lead. “Yesterday,” (says a private Madrid letter of Dec. 17,) “Yesterday, Calatrava made, I am told, a most eloquent eulogium on ‘the illustrious, the learned, the humane Bentham.’ ” How different this result from anything that could naturally have been expected! In the case of my honourable correspondent, gratitude for the distinction conferred on me, added to esteem for the liberality manifested by an application such as hath been seen, could not but concur in giving a certain smoothness to every passage, by which, in the course of the discussion, his individuality was brought to view. In the case of the chief penman of the Projected Code,—after every smoothing-iron that presented itself had been employed, necessity still gave to everything an irremediable asperity. Far indeed from pleasant to the author of the Letters was the invidious office, which, as the work advanced, after the promise of it had been made, the nature of the case was seen to have forced upon him: the office of mischief-maker between two colleagues. Never accordingly was sympathy more sincere than was mine, as often as the predicament, in which the two great statesmen had been placed by me, offered itself to my view. But, on the one hand, on a point of the most extensive influence, stood the interest of the whole Spanish nation: not to speak of so many other nations in the background: on the other hand, the transient feelings, of two individuals, whose situations could not but be frequently exposing them to similar ones.

As to Mr Calatrava’s knowledge of the treatment he had been receiving at my hands,—it is scarce necessary to observe, that, while Count Toreno was sitting at his elbow, and it was known to other members of the Cortes that a Spanish translation was in hand, few things could be less improbable, than that anything which the honourable gentlemen was disposed to know of the matter, should be unknown to him. The more than friendly language, in which, as above, the author of the provocation was spoken of—spoken of by him who was the object of it—should be present to the reader’s mind, as often as any of the particulars, by which the provocation was given, present themselves to his eye or to his memory. Yet have I seen a letter (it was indeed from a fellow-countryman of his, and a declared adversary) in which this forgiving statesman is charged with being of the number of those, who do not bear their faculties altogether so meekly as could be wished. Magnanimity—prudence in this or that shape—to which of these two virtues, or to a happy mixture of both, shall so rare and exemplary a return of good for evil be ascribed? To the Hermit at London in his hermitage, all this matter is perfectly opaque: at Madrid it is perhaps transparent.

SECURITIES AGAINST MISRULE, ADAPTED TO A MAHOMMEDAN STATE, AND PREPARED WITH PARTICULAR REFERENCE TO TRIPOLI IN BARBARY.

now first published from the mss. of

JEREMY BENTHAM.

NOTE BY THE EDITOR.

The papers from which the following pages are extracted bear different dates, ranging from August 1822 to February 1823. With the exception of the matter of Chapter IV., the originals are in detached masses, to which the Author does not seem to have applied any system of arrangement: probably owing to the circumstance that the work was abruptly interrupted, either because he found it could not be immediately applied to practical use, or for some other cause. The value of this fourth chapter, which contains the securities in terminis, is in the skill with which it is adapted to the uses of any reforming and enlightened monarch of a Mahommedan and semi-barbarous country, who may wish to give his subjects the utmost advantages of a civilized and constitutional government, which he can convey to them without resigning his own authority or infringing on the religious observances and national habits of the people. The other chapters will be found to contain,—a short analysis of the forms which misrule adopts under arbitrary governments; a demonstration that any remedies that may be adopted must depend for their efficacy and existence on the force of public opinion; an account of the manner in which that force may be brought to bear most efficaciously in such a direction; and a calculation of the chances which any such project as that propounded has of being sincerely adopted. Besides the papers here printed, there are in the same collection many others having particular reference to the state of the Pachalic of Tripoli, and to individuals connected with its government at the time when the author wrote. Finding these to possess only a local interest, which the lapse of time has materially diminished, the Editor considered that the better course would be to omit them. The information contained in them was furnished by Hassuna D’Ghies, Ambassador from Tripoli to London, at whose request, indeed, the Author had entered on the subject. This man had, by his amiable disposition, extensive accomplishments, and singularly enlightened political views, endeared himself to many Europeans, who have lately had to lament his sudden death, under circumstances which caused a suspicion that he was poisoned. He was about thirty years old when he became acquainted with Bentham, and had been eight years resident in Europe. On his return to the East, he became Editor of the Newspaper published at Smyrna by the Turkish Government.

CHAPTER I.

PRELIMINARY EXPLANATIONS.

Section I.

The word Securities: its superiority to others used for the like purpose.

Generally speaking, legislative arrangements that have been established, or endeavoured to be established, for the security of the governed against the governors, have, for their success, trusted to force actually in hand: if not to force in a state of independence, as in the Anglo-American United States, at any rate, to force in a state of resistance, as in England, in the Petition of Rights under Charles I., and the Bill of Rights, passed on the transference of the Crown from James II. to William III.: and in France, in the Déclaration des Droits de l’Homme, passed by the earliest of the successive national assemblies.

This sort of title has in itself one radical defect: it presents no conception of the object which it has in view. The object which it really has in view is, as here expressed, the affording to the governed security against misrule—that is bad government—on the part of the governors. Nothing can be clearer than the meaning given of the word security: nothing for the present purpose can be clearer than the meaning given to the words bad government: or, as their signification is expressed by a single word, misrule.

When, instead of the word securities and misrule, you employ such a word as right, a cloud, and that of a black hue, overshadows the whole field. The attitude you take is restless, hostile, and uneasy. You show that you are in discontent, but you show no clear grounds for your discontent. What you give intimation of—though even to this no explicit expression is given, is—that some rights of yours have been violated, and that a determination has been formed by you not to sit still and see them violated any longer. But these rights, the violation of which is thus declared—from what source is it that they are derived? To any such word as right, no other conception can ever be attached but through the medium of a law, or something to which the force of law is given: from a real law comes a real right; from an imagined law nothing more substantial can come than a correspondently imagined right. Lay out of the question the idea of law, and all that you get by the use of the word right, is a sound to dispute about. I say I have a right: I say you have no such right: men may keep talking on at that rate till they are exhausted with vociferation and rage; and, when they have done, be no nearer to the coming to a mutual conception and agreement than they were before.

On the other hand, if no demand for security againt misrule can have place, until and except in so far as some law is violated, no such security can possibly be obtained in the case in which it is most needed: for the case in which it is most needed is that, in which, the laws being altogether at the command of the rulers, the very work of their hands, no violation of law can be needed for the accomplishment of the misrule: on the contrary, the more frequent and extensive the violations of the law are, the more extensive is the mitigation thus given to the evil, for the production of which they were established.

By the phrase—securities against misrule, all this perplexity is avoided.

But the great advantage of it with reference to practice is—that it is employable, and with equally indisputable aptitude, in every state of the society: whatsoever is the condition of the governed under or in relation to the governors. It may be employed by a sovereign representative body, on the occasion of the establishment of the constitution of the state. It may be employed, not only under a monarchy, but by a monarch altogether absolute, unless in so far as by the arrangements in question a limit, or at least a sort of bridle, to his authority is regarded as being applied.

For the subjects to say to the sovereign,—This or that is our right—say or do what you will—is as much as to say, you are no longer sovereign. For the sovereign to be made to say—You have such and such a right as against me, or I have not such and such a right as against you, is as much as to say, I am no longer your sovereign.

On the occasion of the here proposed arrangements, the course taken is—to put them in such a form that, with the government still in the state of an abstract monarchy, they may possess whatever chance of acceptance can, in the nature of the case, be possessed by any arrangements of the same or equally effectual import, aiming at the same object: but if, even in so unfavourable a state of things, a paper in this form may possess a chance of acceptance answering its wished for purpose,—in proportion as the state of things is more and more favourable, its aptitude will be still less and less exposed to doubt.

That, otherwise than by fear of evil, a sovereign can be brought in any way knowingly to tie up his own hands is, generally speaking, too much to expect. But what without such fear he may perhaps be brought to consent to—with less reluctance at least, is, to tie up in the way in question the hands of his agents: in which case matters may be so managed, as that without knowing it he may thus be made to throw obstacles in the way of his own steps, in so far as they proceed in a sinister direction.

Section II.

Misrule defined and explained.

Misrule is bad government: it comprehends whatsoever is opposite to good government. A government is good in proportion as it contributes to the greatest happiness of the greatest number; namely, of the members of the community in which it has place. Rule may therefore come under the denomination of misrule in either of two ways: either by taking for its object the happiness of any other number than the greatest, or by being more or less unsuccessful in its endeavours to contribute to the greatest happiness of the greatest number.

No government having anywhere had place that had for its main object any other than the greatest happiness of those among whom the powers of government have from time to time been shared, all governments that have hitherto had existence have had more or less of bad in them. Of all governments, the worst have uniformly been those in which the powers of government have—all of them—been in the hands of one; because in that case such government has had for its object the greatest happiness of that one member: and to that object the happiness of all the other members has of course been made a continual sacrifice.

Take any government whatever: by rendering it less bad than it is, whatsoever means are capable of being proposed or so much as thought of, are reducible to one or other of two heads:—1st, arrangements by which a change will be effected on the form of the government; 2d, arrangements by which a check will be applied to the power of the ruling functionary or functionaries without any such change. Arrangements which belong to the first of these heads constitute a seperate subject of consideration. The set of arrangements herein proposed under the notion of their serving more or less in the character of securities against misgovernment otherwise called misrule, require not any such changes. The supposition on which they are grounded is that by one means or other, without any such change, the ruler or rulers may, by one consideration or other be induced to lend their power, to the purpose of giving them the sanction of law. Not therefore to misrule in every shape is it in the nature of the here proposed arrangements to apply a remedy; at least in a direct and immediate way. Not to misrule in any of those shapes in which it bears upon the members of the community in an undistinguishable mass: not, for example, to lavish expenditure, and to unnecessary and therefore unjust war; evils, towards obviating which, nothing can be done by any means other than a change in the very form of government. To those cases alone has it any direct and immediate application, in which the evil comes home to the feelings of particular, and those determinate, and in each case assignable individuals.

Considered in its application to assignable individuals, misrule may be termed vexation: the persons considered as the authors of it being persons clothed with power, the vexation may be termed oppression. In so far as from the burden thus imposed, benefit in any shape is received by the authors, or by any whom they are in this way disposed to favour, the oppression is depredation.

As to the authors, though to a boundless degree, and in a conspicuous and avowed manner, the only persons in whom oppression and thence depredation can have for its authors are those by whom in the state in question the supreme power is possessed, yet to a great and indeterminate amount, not only their several subordinates—instruments of, and sharers in, that same power—but the rich in general possess as such, and to an amount rising in proportion to their riches, in addition to that desire which is in all men, the faculty of giving birth to those same evils.

The shapes in which vexation is here attempted to be combated, are not all the shapes in which the evil is capable of showing itself; for against these thus taken in the aggregate, security more or less effectual is already in every country taken, and must therefore, in the country in question, be on the present occasion supposed provided by the existing laws. Calumnies, for example, or personal injuries, or injuries to mental or personal rights, are among the subjects not here taken on hand, as being of such a nature that the particular remedies here provided are either needless or inapplicable, with relation to them. The only vexations belonging to the present purpose, are those which, on those over whom power is exercised, are in a particular manner liable to be inflicted by those by whom the same power is possessed. Meantime these being the same persons, at whose disposal everything is that bears the name of law, to seek to afford, by means of new laws, security against those persons: to seek to afford, by means of new laws, security against those at whose disposal those laws will be when made, is an enterprise which, to a first view, can scarcely fail to wear the face of absurdity. As well, may it be said, seek to obtain security against the attacks of an armed man, by means of other arms placed in that same man’s hands. Such (it must be confessed) would be the absurdity, if it were necessary that the armour, in the manufacturing of which he will be requested to concur, should be armour of the offensive kind, or even of the effectually defensive kind, and that intended to be in any manner employed against himself. But on his part this conception is not a necessary, nor altogether certain one. Against depredation and oppression, from which he derives not, in any shape, any benefit—against depredation and oppression, exercised by, and for the benefit of, the rich in general, or by even his own instruments, and other subordinates in particular, it may happen to him not to have any strong or determinate reluctance to see a tolerably essential security provided: and as against any oppression which it is, or may have come to be, his pleasure to exercise, what may happen is—that it will not be very plainly visible to him, how it is possible that any supposed security can in reality be efficacious. But more of this when the proposed remedy, together with the evil in all its shapes, have been distinctly brought to view. Whatsoever may be the chance which the here proposed remedy affords of being productive of the wished effects, the smallness of it affords not any ground of objection to it: for, under a monarchy, such being the nature of the case, as not to admit of any other, the option is—this or none. The great difficulty is in obtaining the concession. Should that point be accomplished, its efficacy to no inconsiderable degree need not be despaired of. Abundant are the instances, which history affords, of concessions having the same object: some in which the engagements taken by these concessions have been grossly and continually violated. Still, however, there is sufficient reason to think, that without this safeguard, such as it was, the instances of oppression would have been still more numerous and afflictive. The charters by which the concessions were expressed, afforded a determinate standard of reference—a rallying point. If, even in this case, paper, when employed in the character of a breastplate of defence against the sword, was not altogether destitute of efficacy, still less need its efficacy be despaired of in the present case: for in none of these instances was any such attention applied to the making the most of the only possible remedy, as will be seen employed in the system of arrangements here proposed.

Section III.

Misrule—its Shapes.

The here proposed system of arrangements has for its object, as above set forth, the applying, to such of the evils as are most apt to be produced by the immediate agency of the Monarch, or those in authority under him, such remedies as present the least unpromising chance of obtaining the application of them at his hands.

One word—misrule—will serve for conveying a general conception of the disease: another word—publicity, for conveying the like conception of the remedy: the only remedy which, (it will be seen,) without a change in the form of the government, the nature of the disease admits of.

Thus much for a general conception. But, under both heads, some explanations present themselves as necessary: necessary, in the first place, for rendering the ideas clear and determinate: in the next place, for showing that it is to this one recipe, publicity, that relief, in every shape in which the nature of the disease admits of it, is referable. Some observations will follow, in the view of showing in what way application may be made of it to most advantage; having for their object the showing what the chance is, that the remedy will be found obtainable.

First, as to the shapes in which the evil is capable of presenting itself.

Shape 1. Sufferers all determinate: the individuals all determinate and assignable. Examples—Homicide, confinement, banishment. In the aggregate of this suffering, consists the evil of the first order: for distinction’s sake, it may be called purely private.

Shape 2. Sufferers, altogether indeterminate. Examples—Waste of public money: act of engaging in an unnecessary war. In this case, the evil may be called purely public.

Shape 3. Immediate sufferers determinate, but the greater part of the evil composed of the sufferings of individuals altogether indeterminate. Examples—1. Political Gagging: i. e. obstructing in any way the communication between mind and mind, for the melioration of the common lot, on any subject of discourse; more especially on a political subject. 2. National debilitation—weakening the means of defence and security, in the hands of the people, against injury at whatsoever other hands, those of the rulers themselves not excepted. In this case, the evil may be said to be mixed; or public through the medium of private. Through the sides of one individual the public is wounded: that is to say, all other individuals are: as well those who do not feel the wound, as those who do.

Under the general name vexation, may be included every political evil, in so far as the consideration of it is confined to the sufferings of determinate and assignable individuals: namely, the individual persons who are the immediate sufferers by the individual mischievous act in question.

Oppression is vexation, considered in so far as the hand of power is considered as occupied in the production of it. Thus, if inflicted without sufficient warrant, i. e. without being necessary to the preserving the community from evil of still superior magnitude,—homicide, confinement, and banishment, are,—if produced by a hand not armed with legal power, acts of vexation simply, if by a hand armed with legal power,—if for example by the hand of the sovereign, acts of oppressive vexation, or in one word, oppression.

In oppression by the hands of rulers, two stages are discernible, and require to be distinguished. By oppression in its first stage, the disease is produced as above. By oppression in the second and last stage, the remedy is excluded, or endeavoured to be excluded.

By the same act, whereby oppression in this its last stage is exercised, oppression in the first stage may also be exercised: it is so in most instances, in those several cases, in which the evil has been spoken of as being of a mixed or public and private nature: the afflicting hand wounding the public through the sides of individuals. Examples—1. Political gagging; 2. National debilitation, as above.

In so far as the suffering, by loss or otherwise, to the party vexed and oppressed, is attended with profit to the oppressor or other vexer, or any one whom it is his design thereby to favour, oppression has the effect of depredation.*

Thus it is, that, in the case where a community is plundered by its rulers, by the support given to an unnecessary war, suppose two such wars, and the sums extorted for the purpose of the war the same in both, the one in which depredation to the greatest amount has had place, is thus far the least mischievous.

If, during the course of the war, a million of money is paid for gunpowder to the makers, better it is for the community that the half of it be put in the shape of profit into the pocket of the makers, than that the whole be converted into gas, producing or not producing the destruction which it was intended to produce.

Only to aid conception are the above suppositions put: for, how far they are from being ever exemplified, is sufficiently manifest.

The modes of oppression against which security is here endeavoured to be provided, may be more particularly enumerated as follows:†

1.Vexation on the account of religion: or say, Religious persecution.

N.B. In this particular case, what may happen, is—that the sovereign, if from oppression on this account, he does not derive any particular gratification, may be content to deprive his successors of it: while by his own act he stands deprived of the power, only because he has no desire to make use of it, they will by the same act stand deprived of it, even though they should have the desire to make use of it. In this case, therefore, a direct promise of non-exercise, or even a direct appropriate abdication may not without hope be sued for at his hands.

2.Secret confinement, viz. of the person of an individual: confinement, namely within the walls of a prison, or within any other less narrow place.

3.Secret banishment: i. e. by forcible exportation, or in any other way exclusion of an individual, from the whole of the dominion of the state in question, or from this or that part of it.

4.Secret homicide.‡

5.Mysterious disappearance: namely, disappearance of an individual from a cause as yet unknown: it must be any of the above three—confinement, banishment, or death.

6.Official depredation.§

7.Extortion of personal service.∥

8.Obstruction of intellectual communication.¶

9.National debilitation.*

10.Violation of private documents.†

CHAPTER II.

PUBLIC OPINION THE SOLE REMEDY—PARALLEL BETWEEN THE PUBLIC-OPINION TRIBUNAL AND THE OFFICIAL JUDICATORIES.

Section I.

General view of the Public-Opinion Tribunal.

Thus much as to the disease; now as to the remedy: of the two only accessible remedies that the nature of the case admits of, the only one that belongs to the present purpose. For conveying a general idea of the remedy, a single word—publicity—may for the moment serve: but before the nature and operation of it can be conceived with any tolerable degree of distinctness and clearness, considerable explanations will unavoidably be necessary.

Publicity! but to what acts applied? Answer. In the first place to the acts of rulers: in the next place to the opinions formed in relation to them by subjects: publicity to the acts,—knowledge of the acts being necessary to the existence of the opinions.

The existence of such publicity being supposed, and the degree of it perfect, in what way does it contribute to the object in question,—namely the affording security against misrule? Answer. Be the acts of the Government ever so arbitrary, the subject many, in proportion as they form and make public their respective opinions, in relation to them, act in so far, in the character of judges: judges sitting in judgment over the conduct of, and in this way exercising rule over, the rulers themselves.

Exercising in any way rule over their rulers: how then is it that they can remain subjects? Answer. In the way of direct mandate and coercive powers;—no: in no such way can they give direction to the conduct of these same rulers. Yes: in the way of indirect and gentle power, or in one word, influence: for in this way do our children, at an age in which nature places them under the absolute dominion of their parents, operate on the conduct of those same parents. But the particular way in which the effect is brought about, may call for further explanation.

Operating thus as judges, the members of this same community may, in their aggregate capacity, be considered as constituting a sort of judicatory or tribunal: call it for example The Public-Opinion Tribunal.

Taken in its utmost latitude, this tribunal would include all of them without exception. But, of no question, on any occasion, can any such multitude, in such their capacity, by physical possibility, actually take cognizance. Those less than a certain age, and the infirm, for example, not to mention any other classes, cannot but be excepted. Only to a certain part of the whole number, and that perhaps generally speaking the smallest, will the physical faculty of taking cognizance of any such political question be confined. If then, all the members of the community without exception were to be considered as members of this same half and half imaginary tribunal, those who are not physically incapable of taking part in its deliberations, must be considered as constituting a committee of that same aggregate and multitudinous body—a committee invested with the powers of the whole: a committee in which, as in a sort of committee every now and then exemplified in the proceedings of the English House of Commons, as many of the members of the house as enter have voices.

Again, take this or that particular operation. Of those who, all of them, possess the physical capacity of entering on it, a certain portion only, and that most commonly the smallest portion, will actually take cognizance of it: if then, those who might take such cognizance are considered as constituting a committee of that same body, then those who thus actually do take part in the business may be considered as constituting a sub-committee.

The greater the suffering produced by any act of oppression, the greater, provided it has been made known to them, is the number of the individuals who, in the character of members of this committee, are likely to take cognizance of the affair in the first instance. The greater the number of these members of this committee, who having joined in the cognizance thus taken, pass condemnation on the deed, the greater the number of those other persons who on the authority of this report take cognizance, not of the affair at large, but of the conduct of the actors, whoever they may be, in the act of oppression, so far as to concur in the opinion—the judgment, the sentence of condemnation,—passed upon those oppressive agents in consideration of their oppressive act.

The greater the number of those who concur and join in the provisional sentence, the greater the number of those who are likely to concur and join in the definitive sentence. As to the sentence, whatsoever may be the individual gradation of punishment, the ultimate punishment which it is in the power of this tribunal to inflict on the oppressors, whosoever they may be, consists in the withdrawing from them altogether that obedience to the extent of which that of their power is correspondent and commensurate. The subtraction of obedience, suppose it universal,—the corresponding power is by the very supposition at an end. This same subtraction is according to the description thus given of it, a mere negative act. But in the production of the effect arrived at by it, positive acts directed to the same end have place or come to be exercised. The extinction of the life of the oppressor-in-chief, for example, may be the punishment indicated by the sentence; executioners, any number of the members appointed for the purpose, or even this or that single one of them. By the adherents of the oppressor, the corresponding sentence with the execution of it, will, of course, be objected to on the ground of irregularity. But to act against this word irregularity, some other will be found by the concurrers in and approvers of the sentence.

In England, for example, if the king were among the individuals upon whom the supposed sentence had been passed, and execution given to it accordingly, a natural and constitutional objection would be, that to render it regular and constitutional, an act, called an act of attainder, was necessary,—an act of attainder passed like every other act of parliament by the joint consent and concurrence of the King’s Most Excellent Majesty, as well as that of the Lords and Commons of Great Britain and Ireland, almost all of them in one way or other in a state of dependence on his good pleasure; and that, His Majesty not having been pleased to give his consent to any such act, the sentences so passed and executed are thereby null and void. By any regular Tribunal composed of Judges placed by his said Most Excellent Majesty, this objection would be held valid: and on the individual by whom the sentence in question had so been executed on the body of his said Majesty, a sentence, including amongst other things the extinction of the life of this irregularly commissioned executioner, would accordingly be executed. On the other hand, by the member or members of the irregularly constituted Tribunal of Public Opinion, under whose authority the sentence of extinction against the Monarch had so been executed, the objection would as surely be overruled. On the part of this, or any other malefactor, it would have been perfectly regular for him to have given his assent to the sentence passed upon himself. But though perfectly regular, it is by no means usual. It is so far from being so, that if any such assent were waited for, it may be stated as a matter of certainty that neither to this purpose of extinction of life, nor to the purpose of any the slightest restriction, would any bar be opposed in any case to the utmost quantity of suffering which it would be, physically speaking, in the power of the supreme ruler to inflict on the individuals subject to his power, in the legal sense of that same imposing appellation.

In the above strain, for example, thought and acted the Members of that section of the Public-Opinion Tribunal, by whose warrant, by the denomination of a warrant by the Members of the High Court of Justice, the life of Charles the First of England was extinguished at Westminster in the year 1649.

Of this sort, among the punishments which it belongs to the power of the Tribunal of Public Opinion to inflict, is that which stands highest in the scale. But beneath it stand others in number and variety indefinite. Among them are—1. All obstructions to the exaction of contributions, the produce of which is placed at the disposal of the Sovereign: 2. All obstructions capable of being opposed to the execution of the judgments of the several regularly constituted Tribunals: 3. All modes of annoyance, by which, in retribution for the demonstrations of hatred and contempt received, demonstrations of correspondent hatred and contempt are rendered: 4. Invectives said and sung: 5. Invectives written and posted up: 6. Of whatever liberty is left to the subjects, to the members of the community at large, by the laws and practices of the government,—use made to the purpose of opposing, and, so far as may be, frustrating these same laws and that same practice. All this while, be the quantity of suffering ever so enormous, so long as regularity, and nothing else is looked to,—all this while to the Acts of Government, by which all this misery is produced, on the score of regularity at least, nothing can be excepted. Of whatsoever is done by the superior authority of the State, or by any subordinate authority by its order, or with its allowance, in how great a degree soever productive of human suffering, and destructive of human happiness, regularity is an inseparable quality and accompaniment: irregularity of whatsoever is done by the Tribunal of Public Opinion, in opposition to anything which is done by the constituted authorities. Irregular it is in whatsoever degree it has the effect of diminishing the quantity of suffering produced by the regular Tribunals, and is in this, or any other way, productive of addition to the net amount of human happiness. In so far, then, as, by the ruling Members of this irregular Tribunal, their own interest is rightly understood, the option is throughout between regularity and happiness. By those by whom regularity is preferred to happiness, this same irregular Tribunal will be hated, even in so far as fear permits—despised, and everything done that can be done to diminish, and, if possible, annihilate its power.

Those who desire to see any check whatsoever to the power of the government under which they live, or any limit to their sufferings under it, must look for such check and limit to the source of the Public-Opinion Tribunal, irregular though it be, and, to the degree in which it has been seen, fictitious: to this place of refuge, or to none; for no other has the nature of things afforded. To this Tribunal they must, on every occasion, make appeal. To this Tribunal they must, on every occasion, give what contribution it is in their power to give: for do what they can, never can they give to it too much praise: never can they ever give to it enough: never can they give to it so much as, for the greatest happiness of the greatest number, it would be desirable that it should have.

In the assertion implied in the giving, as above, to a certain portion of the members of the community, the several denominations—Public-Opinion Tribunal—Committee of the Public-Opinion Tribunal—and Sub-committee of the Public-Opinion Tribunal—there is a mixture of the real and the fictitious. In this statement, what, it may be asked, then, are the points that are real, what those which are fictitious? Why with that which is real mix up anything fictitious? Of these two questions, the latter may with more convenience be answered first; say, then, from the necessity of the case: for of that which is real, it is not possible to give any clear explanation, but by the help of something which is fictitious. The imperfection is one that is inherent in the very nature of language. Too often is the language of fiction employed for no other purpose than deceit: but this case is not of the number. Not so much for avoidance of imputation, as for clearness of explanation, an endeavour will now be made to draw the line of separation throughout: to point out, in these appellatives, what there is that agrees with abstract truth,—what there is that is metaphysical and fictitious.

For this purpose, the plainest course that can be taken is to confront the scattered body thus newly placed upon the list of judicatories, with those to which the title will not, by any one, be refused: to bring them to view in conjunction, giving indication, all along, of their several points of agreement and difference under so many determinate heads: placing, of course, in front the ordinary sort of judicatory, and making it the standard of reference.

Section II.

Attributes of a Judicatory.

The more closely the nature of the Public-Opinion Tribunal is looked into, the more clear and strong will be the conception of its efficiency, and consequently its existence.

When announced, it will be apt to present itself as nothing more than the offspring of imagination and language. The cause and reason of this is, that on no occasion are the several members of it seen sitting altogether; nor in their official and judicial capacity are they so much as capable of sitting and taking part in the business at the same time, or in the same edifice or enclosure; or, when at a distance, of maintaining anything like a regular course of correspondence. It wears, therefore, the colour of fictitiousness, but it possesses the substance of reality. This will be rendered manifest in proportion as observation is taken of the operations, by the performance of which the ordinary judicatories, commonly so called,—those in the instance of which no one could think of contesting the denomination,—are characterized.

To a judicatory, as such, belong certain functions; these functions are exercised by the performance of correspondent operations. To a judicatory, as such, belongs a certain mass of power: namely, the power necessary to the performance of these same operations. To the will of the several members of every judicatory applies, moreover, a certain mass of ruling interest: and in the exercise of their power they will, of course, be guided by the direction in which their will is acted on by this same ruling interest.

To the head of ruling interest belongs that of pay, since the ruling interest by which they are respectively actuated, depends in a great degree on their pay, if pay they have: on the manner in which it is connected with their continuance in their situations, and the line of conduct therein maintained by them.

As to the operations or functions, they may be thus enumerated.

1. Receiving claims and accusations: claims referring to what is called the civil branch, i. e. the non-penal branch of judicature—accusations to the penal.

2. Receiving oppositions and defences,—oppositions to claims, defences against accusations.

3. Receiving, compiling, collecting, and storing, evidence, viz. in support of oppositions as well as claims, of defences as well as accusations.

4. Hearing or reading arguments, or say reasons, of parties, or advocates, or both.

5. Forming on each occasion an opinion, or say a judgment, with a correspondent will.

6. Giving expression to such judgment and will.

7. Giving execution and effect to such judgment and will.

Among different judicatories, it is evident, may these functions in various ways be distributed. But, to the attainment of the ends of justice, it is necessary that in some way or other they should be all performed.

Attached to these essential operations may be other incidental ones, such as entertaining applications for delay, and so forth; but to the catalogue of essential ones it will be found that the above belong, and that there are no others that do belong to it.

As to the word power, before it can serve to bring to view, in any distinct form, the attributes comprehended under it, certain particulars, serving as sources of division, will require to be brought to view: namely, 1, The several fields over which it exercises itself: 2, The means of efficiency—means by the use of which it gives to itself execution and effect.

1. As to fields of exercise. To the power of every efficient official judicatory, belong two distinguishable fields; 1, the local, which may also be termed the territorial, topographical, or geographical field: 2, the logical, termed also the metaphysical. In the logical may, moreover, be distinguished, 1, the corporeal subjects included in it, namely, the persons and things: 2, the incorporeal subjects, namely, the suits or demands of which cognizance is taken, i. e. the claims and accusations.

2. As to means of efficiency, they are the means of operating with effect on the above-mentioned subjects: namely,—on immoveable portions of territory, moveable things, and persons: on things by means operating on body alone, namely, physical force; on persons by these same means, with the addition of forces operating on mind, namely, prospect of punishment, (i. e. of eventual evil in any shape,) and prospect of reward. On the aggregate amplitude of these several fields and means of efficiency depends the aggregate amplitude, or say the magnitude, of the mass of power belonging to any official judicatory; in the same elements will be found the measure of the power of this unofficial judicatory—the Public-Opinion Tribunal.

As to ruling interest, it is a topic that will be apt to present itself as more new than agreeable when applied to an official judicatory; it does not, however, the less indisputably belong to it, as well as to this all-comprehensive, though unofficial judicatory, the Public-Opinion Tribunal; and in this one of its attributes will this all-comprehensive though unofficial judicatory be seen to possess its strongest title to regard. The interest of the Public-Opinion Tribunal—that is to say, of the aggregate number of its members—the ruling interest, can never be in discordance with the interest of the aggregate number of the members of the particular state or community in question: whereas, the interest,—whether we take the aggregate interest of the whole number of official tribunals, or their several particular and distinct interests; that is to say, the aggregate of the interests of the several members,—can never be in complete accordance with that same universal interest.

Such is the identity on the part of the real net interest: and in so far as correctly understood, and capable of being pursued, it is the net interest that, in every individual and in every aggregate of individuals, will, on each occasion, be the actual ruling interest.

As to the attribute of power, the existence of it will be more readily recognised in the gross, namely, by the contemplation of its effects, than comprehended in detail, by reference made to the corresponding elements in the power of a judicatory of the official kind. But to its being clearly apprehended and conceived, a glance at these details is indispensable. In the first instance, however, thus much may be remarked of it in the gross, namely, that by its effects the reality of the power itself is demonstrated, and by the reality of the power, the reality of the judicatory to which the power is ascribed and attributed; for of that which has no existence there can be no attributes.

Section III.

Constitution of this unofficial Judicatory.

To every official judicatory, the above several attributes will be allowed to belong without dispute. No less truly will they be seen to belong to the unofficial judicatory.

First as to the members. In this first point will be seen to lie the greatest, or rather the only difficulty. In this part of the picture, reality wears somewhat the air of fiction. Of the object designated by the appellation of Public-Opinion Tribunal, familiar as the expression is, the existence will be apt to be suspected of being no other than figurative, and merely nominal: on the other hand the name of it is not more perfectly familiar, than the existence of its power is universally recognised; and of an object, the power of which is admitted, to deny the existence, would be self-contradiction. Even in regard to members, the only difficulty lies in the determination of the individuals to whom, on each occasion, the appellation can without impropriety be ascribed; and even on this point, the uncertainty may not unfrequently be seen shared in by the official judicatories.

Be this as it may, a function supposes a functionary—one functionary at the least; an operation an operator. Ere any account can be rendered of the operation of the unofficial judicatory, some individual or individuals must be brought to view, as and for so many members of this judicatory—members by whom the several operations are performed. At the head of these, as exercising the function in question in a manner the most conspicuous, sits the editor of a newspaper, in which the press, however legally handcuffed otherwise, is to the purpose of being capable of affording an example of this sort of judicature, practically free. Say, for example, an English newspaper. An Anglo-American United States newspaper is to this purpose legally as well as practically free; but it being in Europe less known, the English newspaper will be the more convenient standard of reference.

But of the unofficial judicatory, an English newspaper editor is but one member amongst millions. To show in what way he is the head, it will be necessary to show in what relation this one individual stands to the millions: in a word, of what different classes in relation to so many different purposes, this judicatory, taken in its totality, is composed; to show, in short, the composition of the whole judicatory.

Take any political community—the British Empire for example: of the aggregate of all the persons belonging to it, ruler and subjects taken together, will the Public-Opinion Tribunal be composed; and not only the inhabitants of the two islands, but the inhabitants of the several distant dependencies in the once four quarters—now five great portions—of the globe, must to this, as to other purposes, be considered as included. But not to speak of those who do not take a part in the consideration of subject-matters of the sort in question, a large proportion of the number—to wit children below a certain age, is composed of those who by physical incapacity are rendered physically incapable of taking such part. Distinction 1. Those members who belong to the Tribunal in respect of interest and future practice only, and those who belong to it in respect of personal practice.* Among those who belong to it, in respect of personal practice, may again be distinguished these classes—viz. 1. The merely speaking members; 2. Those who are not only speaking but also reading members; 3. Those who are not only speaking and reading, but also writing members; 4. Those who are not only speaking, reading, and writing, but also printing and publishing members.

The class of merely speaking members forms the basis of the several others: it cannot anywhere at any time be extinguished: if it could be extinguished, European governments are not wanting in which it would most assuredly be extinguished—at least endeavoured to be so. For instance, by cutting tongues out, it might be, and would most effectually be, extinguished. But tongues and the use of them are indispensable to the performance of the labour, without which the stock of the several instruments of felicity, by means of which the felicity of the ruling one and of the subruling few is reaped, could not be brought into existence. By any such extinction as this, the interest of these same rulers would, according to their conception of it, be not served but disserved. Accordingly no such extinction has ever yet been endeavoured at, or seems at all likely ever to be endeavoured at. Not so by the general extinction of those other classes, saving and excepting such a portion of them respectively, as under the direction of the supreme ruler may be necessary to be employed in the production and preparation of these same useful and necessary instruments, and securing him in the undisturbed possession of them, and in the application of them by him and for him to their respectively appropriate purposes.

So long as human beings come in presence of each other, it is impossible, generally speaking, to prevent their conversing with each other, and so long as they converse with each other on any subject, it is not possible to prevent them from conversing occasionally upon political subjects. In the interior of a palace, even without the trouble of cutting their tongues out, men may be converted into mutes. Accordingly in palaces, in which the art and science of legitimate rule has been carried to perfection, a transformation of this sort is known to have been accomplished. But in places other than palaces, for preventing conversation from taking any such dangerous direction, no means does the nature of the case afford, but the employment of spies. But here occur divers difficulties. Spies adequate to the purpose would require to be no less numerous than soldiers, and to be even more highly paid. And how well soever paid, among them—no one can say in how large a proportion—might be those who, seeing it necessary to deceive somebody, would prefer deceiving the universal enemy to deceiving their respective friends. Moreover, the more strict and effective the system of discipline employed in the extinction of the several classes of publishers, writers, and readers, the more apt would this policy be to become the subject of frequent, not to say constant conversation, among the classes of speakers, whose existence it would never be possible to extinguish.

If all the members of the political community in question be considered as being every one of them so many members of the Public-Opinion Tribunal, those who are, physically speaking, not incapable of acting as such, may be considered as constituting a standing committee of the whole body invested with the powers of the whole. What would, however, be more simple in conception, and would be more exactly conformable to direct truth, would be to consider the whole aggregate of those who are, physically speaking, not incapable of taking a part in the consideration of public affairs, as composing and constituting the entire judicatory: invested with the power in trust for themselves and the several other members of the community at large.

These, then, constituting the entire body, a committee of that same body will be the aggregate, composed of all those who, at any given point of time, do actually concur in taking cognizance of the affairs in question, or any part of them; and that, whether in the way of publication, writing, reading, or oral converse: and, of the general committee, so many sub-committees may be conceived as constituted—so many sub-committees as there are aggregates of individuals who, on any occasion, in any place, take actual cognizance of this or that political operation, to whatever part of the field of government it appertains.

Of these several subcommittees, the several individuals by whom, respectively, a literary work of any kind, bearing in any way upon any part of the field of government, is published, may be considered as so many presiding, or say leading members, or, in one word, presidents. But, among these presidents, a political newspaper editor, being the only one in constant authority, is, as it were, president of all these presidents; king of these kings; lord of these lords of the dominion of liberty and independence; real and not sham representatives of all who buy, and of all who read with sympathy, their respective publications, the product of their respective labours.

Among the infinity of subcommittees of the Public-Opinion Tribunal, as above indicated, three, as being the most efficient ones, require to be distinguished: these are—

1. The Subcommittee of General Superintendance. President, a newspaper editor. Other members, his customers and readers, and in particular his correspondents. These last belong to the catalogue of leading members.

2. Subcommittees of Justice, or say Judicature. Members, the several individuals who, being present in the several judicatories during the carrying on of the several businesses, take interest in what is going forward, in such sort as to form an opinion of approbation or disapprobation, in relation to any part of it.

3. Subcommittees of Religion. Members, the persons present at the several sermons or other discourses held on the subject of religion by the several officiating priests: also those by whom the several works on that subject are read or heard in places other than those which are appropriated to this sort of occupation.

In one and the same number of an English newspaper may commonly be seen the united product of the labours of a number of these subcommittees.

Thus much may, it is hoped, suffice for the purpose of illustration, and for the giving to our conception of the subject such degree of clearness, as the nature of the case admits.

Section IV.

Functions or Operations of the Supreme Unofficial, compared with those of the Official Judicatories.

The several operations included in this part of the business of an English newspaper, being thus taken, as and for a specimen and sample of the functions of a sub-committee of the Public-Opinion Tribunal, let us see in what way the mode in which these several functions, as thus performed by it, agrees with, and in what way it differs from, the mode in which these same functions are most commonly performed, in and by an official judicatory.

To the present purpose they may be enumerated as follows:—

1. Receiving claims and accusations.

2. Receiving oppositions and defences.

3. Receiving, compelling, collecting, and storing, evidence.

4. Receiving, and hearing or reading, arguments of parties litigant, or advocates.

5. Forming opinions or judgments on these, with correspondent will.

6. Giving expression to such judgments and will.

7. Giving impression to such expression.

8. Giving diffusion to such impression.

9. Giving execution and effect to such judgments and will.

Distinct in themselves are all these several operations, and, by the ordinary Judicatories, who have the time of other men as well as their own at their disposal, as well as the channels of communication at command, they are performed at different times, and in regular succession, as above displayed.

In and by the Public-Opinion Tribunal, a member of it not having, generally speaking, any channel of communication, or the time of any other person at his command, these several operations cannot respectively be performed but as occasion offers; and when occasion does offer, it must be made the most of, and the several operations, all of them, or as many as can with advantage, be performed at once.

Follow, under the above several heads, a few observations, having for their object the bringing to view the principal points of agreement and difference between the one sort of Judicature and the other.

1. Receiving accusations.*

In the newspaper in question, an allegation is made of misconduct in a certain shape, as having had place on the part of a certain functionary or set of functionaries: the accuser, whether the editor himself or a correspondent, makes to newspapers no difference. Here the function of receiving accusations stands exemplified.

2. Receiving Defences. Of the exemplification made of the exercise of this function, indication will be made presently.

3. On this same occasion, a correspondent perhaps makes mention of this or that particular, as having fallen within his own knowledge: the name though not signed,—having for the security of editor and printer, or not having, been privately communicated. Here the function of reception of evidence, and at the same time that of the impression of it, and that of the diffusion of it, stand exemplified.

At the same time, whether directly by means of appropriate and direct questions, or at any rate, indirectly and virtually by means of apposite affirmations as above, the party accused is called on either to confess the act thus indicated, with the inculpative circumstances, and at the same time directly or virtually to confess the culpability of it, or to deny the act, or some inculpative circumstance or circumstances belonging to it, or admitting what is above, to argue in justification of the act.

The next day, or next but one, suppose, the party thus called on argues in justification of the act; and at the same time either directly avers the having done it, or by his silence, or the turn given to his argument, virtually admits it: here the function of compelling evidence stands exemplified.

On the former day, intimation was moreover given of certain other persons, as having been percipient witnesses of the act, or this or that inculpative circumstance belonging to it, and as being thereby rendered capable, if so disposed, of becoming in relation thereto reporting, narrating, or say, deposing witnesses. Here a commencement of the function of collecting evidence stands exemplified.

Purchasers, in number more or less considerable, being in the habit of filing and preserving the numbers of the newspaper in question as they come out, here the function of keeping in store—in a word, of storing the stock of evidence in question stands exemplified.

4. With the evidence thus received, compelled, collected, and kept in store, is commonly at the same time mixed up, and thus received and kept in store in some proportion or other, matter on both sides bearing the character of argument: argument having for its object the bringing to view either the probability or improbability of the alleged act, or of the alleged inculpatory circumstances, or the impropriety or propriety of it or both together: each party, by the argument he delivers, directly or virtually calling for counter-argument on the other side. Here then the function of receiving arguments at the hands of parties litigant or their advocates, or both, stands exemplified. The function of reading or hearing these arguments—this mass of argument, together with the correspondent mass of evidence is, in this case, left to the purchasers and other readers or hearers of the newspaper, each one exercising it for himself, or this or that of his associates.

5 and 6. Having received from his correspondent the above-mentioned letter and thereupon the several other masses of evidence and argument above-mentioned, the editor in the course of the controversy forms and declares some opinion, or say judgment, of his own, provisional or definitive, in favour of the accusing or the defending side. Here the function of forming, and that of giving expression to, such opinion and judgment, stand exemplified.

The judgment, suppose, is a judgment declaring conviction, and passing sentence of condemnation on the party so accused. But in such judgment and sentence of condemnation, is included an opinion, that by the party thus condemned, a disreputable act has been committed: an act whereby he will be lowered in the estimation of other members of this same unofficial judicatory in an indeterminable and incalculable number, in consequence of which depression, he will in the natural course of things, be deprived in some sort and purpose or other of their good offices, and upon occasion even be exposed, in some sort or purpose, to positive ill offices at their hands: and in such judgment is naturally at least, if not necessarily and virtually included, the declaration of a will, or say, a desire that such shall be the result.

By this president and leading member of this subcommittee of the Public-Opinion Tribunal, by which cognizance is taken of this affair—by him, not to speak of others who agree with him—expression is given to the judgment so formed. But by others in uncalculable number, by whom no judgment is expressed,—a judgment on the subject—the like judgment suppose—is formed. But, in such instances the judgment being formed, though no expression is ever given to it, a correspondent will as above is naturally formed,—a correspondent will—whence result subtraction of good offices and performance of ill offices, as above.

7 and 8. From the newspaper editor the aggregate of this mixed mass of evidence and argument, together with the accompanying preliminary matter as above, and the expression given to the judgment and will as above, receive of course impression and diffusion in the way of his business. Here then the several functions of giving impression and diffusion to the judgment and will, and to the expression given to them, stand exemplified.

9. In ways and by members of this same unofficial judicatory, in a number altogether out of the reach, not only of general perceptive enumeration, but of calculation, execution and effect will continually, and as it were of course, be given to the judgment in question, namely, by the consequent will and ill offices, positive and negative, as above. Here, then, the function of giving effect and execution to the opinion, or say the judgment in question, stands exemplified.

From a review of the above several functions or operations, may be formed a deduction of no small practical moment. This is, the prodigious importance, absolute and comparative, of the situation and functions of this president and leading member of so many subcommittees of this not the less supreme and all-comprehensive because unofficial judicatory: the importance absolute, and more particularly in a comparative point of view: comparison had with all other members of all other and whatsoever classes, as above-mentioned.

Next to him in the order of importance comes the author of this or that work belonging to some department of the field of politics—of that vast field, the whole of which lies within the dominion and is every day coming under the survey, of the unofficial functionary.

Section V.

Power of the Unofficial compared with that of the Official Judicatory.

I. Means of execution and effect. Among the elements constitutive of political power, this, though in the list of them it occupies the last place, is the first to be looked to, this being the effectual one, without a clear conception of which no clear conception of the others can be formed.

Of the means of execution and effect, the aggregate efficiency will depend, 1. upon the number of persons disposed to concur in contributing to the effect; 2. partly upon the internal force, physical and mental, of each; 3. partly upon the quantity of external physical force at the command of each, i. e. of the sorts of things capable of giving increase to human physical force, such as arms, ammunition, &c.; 4. partly upon the facility of acting in concert; 5. partly upon the smallness of all opposing force; 6. partly upon the magnitude of the evil, to which the possessor of the power has the physical faculty of subjecting the individuals subject to it in case of non-compliance and obedience; 7. partly upon the comparative magnitude of such evil, viz. as compared with the magnitude of the evil to which, in the case of a rival possessor of power, such rival is able to subject the common subject or subordinate.

Compare now, under these several heads, the condition of the unofficial judicatory with that of the official ones considered separately or in the aggregate.

1. In respect of the number of persons disposed, in the character of agents, to concur in giving execution and effect to the opinions, judgments, and wills in question. In this particular the advantage which the unofficial judicatory possesses, when compared with the official judicatories, all of them put together, is at first mention manifest. Of those by whom on any occasion the judgment and will of the former have been formed, and those whom it finds disposed to concur in giving sanction and effect to them, some with more energy, others with less, the number is exactly the same; it is the aggregate number of the whole community.

2. The same may be said of the aggregate amount of internal force, physical and mental.

3. The same may be said of that portion of the aggregate means of execution which is composed of objects belonging to the class of things: for to the aggregate of the individuals above-mentioned, as belonging on this occasion to the class of persons, belongs the aggregate of the individual objects belonging to the class of things.

6.* So likewise as to the magnitude of the evil to which in quality of possessors of the power, that is to say, of the above-mentioned elementary ingredients of it, the members of the judicatory in question have the physical faculty of subjecting those at whose charge the execution and effect in question are to be given in case of non-compliance or disobedience. For in this magnitude is comprehended, without any exception or limitation, the aggregate amount of all the evil to which, in what shape soever, it is in the power of man to subject man.

7. So likewise in the case of competition, as to the magnitude of the evil to which the members of this unofficial judicatory, and the members of the several official judicatories, its rivals, are capable separately and collectively to produce at the charge of any individual or individuals considered in the character of their common subjects.

II. Personal branch of the corporeal field of the power of a judicatory.

Under the head which applies to members, has been brought to view the all-comprehensiveness of this branch of the unofficial judicatory, as compared with any official judicatory or judicatories; not only sharers of this power, but contributors to its magnitude, because so many ready executors of its will, are the members of this unofficial judicatory every one of them. Under that same head has also been brought to view the faculty which in each political community this unofficial judicatory has of receiving reinforcements to an unlimited amount from the members of the like judicatories in the several other political communities having place on the surface of the globe.

Compare this element of its power with the correspondent element of the most powerful official judicatory in the same political state. The power of the official judicatory will be still the inferior: no such faculty of receiving reinforcements to an unlimited amount from other states belongs to it.

Correspondent to the extent in respect of the number of the individuals of whose force the force of this aggregate is composed, is the extent of the number of those on whom the force is capable of being exercised. On the one hand, all enter into the composition of the public force: so, on the other hand, all behold all in a state of subjection to this same public force.

III. Incorporeal field of jurisdiction of a judicatory—extent of the classes of suits or causes appertaining to it, i. e. of the rights on which claims may be grounded, and the wrongs on which accusations may be grounded.

In the case of the official judicatories, the rights which their field of jurisdiction embraces are those only in which, proceeding according to the system of procedure pursued by them, more good than evil, with reference to the interests they are employed to support, may, it is supposed, be produced by their interference; and so in the case of accusations. By the unofficial judicatory cognizance is taken, not only of all these same rights and wrongs, claims and accusations, but also of all others in which the interests of the community, in respect of the several individuals included in it, are, in the opinion of the several members of the standing committee of the judicatory, and of its several subcommittees, as above, concerned.

Thus much as to the points in which this unofficial judicatory is superior to the official judicatories. Now as to those in which it lies under a disadvantage.

1. In the first place, taken in its totality, it labours under a division—a constant and invariably established division, in respect of interests. Two parties constituting so many sections—the democratical and the aristocratical, are destined, in all communities and at all times, to have place in it. The interests of the few—the extra-opulent, and therefore, if by no other means, the powerful few, being in a state of opposition to that of the many, that of the consuming class which produces nothing to that of the producing class, which produces more than it consumes,—hence it is that, whatever power is in the hands of the aristocratical class, over and above that which is in the hands of the same number of those of the democratical class, constitutes a sort of disease with which the body politic, taken in its totality, is afflicted.

By the original structure of its constitution, this body is destined to labour under two distinguishable diseases, having for their cause or causes the inward resistance of two intestine sets of enemies; one set composed of the ultra-indigent class of malefactors, who, being as such weak and powerless, and objects of general disgust, are thereby exposed to punishment: the other, composed of the ultra-opulent, who being as such powerful and objects of general respect, are thereby exempted and preserved from punishment. Of both of these, depredation is the characteristic occupation: by the ultra-indigent it is ever acted on upon a small scale, by the ultra-opulent upon the largest scale.

Intestine depredators of this class being innate accompaniments of the constitution of every political community, they exist, nor can they ever cease to exist, in a representative democracy, even though constituted in the purest form possible. In that form they may be kept under in such sort as not to be productive of any considerable mischief; but they cannot, consistently with the security of the whole, ever be altogether extirpated. Thus stands the matter in the only sort of government which has for its object the greatest happiness of the greatest number: for as to all others they have for their object the greatest happiness of the smaller number, at the expense of that of the greater.

In a monarchy, at the head of the highest predatory class is stationed the arch-depredator the Monarch: a creature in whose devouring and consuming maw, for the small chance of giving increase to the felicity of that one being, the substances of thousands and tens of thousands of others whose claims are as good as his are consumed.

The analogy between the innate disease of the body politic, and one of the diseases which, in the body natural, though frequent, is but casual, cannot have escaped the observing eye: in the class of malefactors so called and treated as such, may be seen the ascarides by which the several parts of the intestinal canal are occupied and infested: in the higher parts—in the aristocrats—may be seen the teretes, the smooth and polished sort, as the name imports: in the monarch the solitary worm or grub, in French ver solitaire, no constitution being equal to the endurance of more than one, the extraction of which is at once so difficult, so perilous, and yet so necessary. An emblem is not a proof, nor is it here meant as such; but if furnished by the nature of the case, and happily chosen, it will contribute clearness and strength to the conception, and for this purpose alone is it here brought to view.

Happily, the disease, such as it is, is in a particular degree that of infancy: sooner or later the body politic, if not killed by it, outgrows it. Every addition made to the number of readers is an addition to the number of persons capable of reading books on political subjects, and of so becoming members of sub-committees of the unofficial Judicatory: while by the same means an addition is made to the number of persons by whom discourse is held on that subject in public, or at any rate, in private, and consequently to the number of sub-committee-men, as above. Every addition made to the number of persons becoming inhabitants of towns, in contradistinction to the being inhabitants of the country, separated from one another by distances more or less considerable, becomes an addition to the number of readers of politics, as above, or at least, to the number of hearers of political discussion.

Every addition thus made to the number of the persons habituated or disposed to the constituting themselves members of these unofficial committees, is an addition made to the number of those capable of taking cognizance, and likely to take cognizance of any appeal made to this tribunal by any members of the Government,—by any official functionaries when disagreeing with one another. By every such disagreement an addition is, therefore, naturally made to the power of this Judicatory—of the only body, the interest of which is not in discordance, but in accordance with, as being the same thing with, the interest of the greatest number of the members of the political community in question, whatever it be: even by every verbal discussion held between man and man, among the people at large, on that same subject, an appeal of this sort is made. Accordingly, by every such disagreement, so as the subject-matter and the particulars of it do but transpire, a service is rendered to the public interest—to the greatest happiness of the greatest number. No such service is commonly intended, but how far soever from being intended, it is not the less rendered.

Of such disagreement the causes are happily not a few.

1. In a monarchy a disputed succession is liable to have place.

2. A minority—the nonage of the monarch.

3. The manifest mental debility of the monarch, whether from old age, permanent bodily ill health or mental derangement. Manifest it must be, and undisguiseably so, to constitute anything that can be regarded as a particular, and incidental, and extraordinary case: for as to intellectual inferiority, comparison had with the ordinary herd, it is among the necessary results of the situation itself.

4. Between any two branches of the monarch’s family, any disagreement in which the monarch takes, or is thought to take a part.

5. A disagreement between the sovereign in possession and the monarch in expectancy,—between the monarch on the throne and the next heir-apparent or presumptive.

6. Disagreement among the members of an administration, or as between the members of the existing administration, and the other men of rank and opulence, who are habitually collected within the field of the sovereign’s observation.

In a mixed monarchy, the existence of disagreement between the constituent parts of it is of the very essence of the species. True it is that another property belonging to the essence of the species is the having a bond of union, a sinister interest in which they share—a sinister interest acting in evident opposition to the interest of the greatest happiness of the greatest number: and by this unity of interest, the government may, for a length of time more or less considerable, be kept from dissolution. Not less true is it, however, that in a government of this species, not less considerable are the causes of disagreement that have place.

If, between the power of the monarch and whatsoever power there is by which his is kept in check, the limits are not sufficiently defined, thereupon come contentions between the one power and the other.

So, if between two powers subordinate to that of the monarch, if so it be that the monarch takes a part on the one side or the other, which is what can scarcely fail to have place.

By a certain degree of prudence, disagreement from any one of the above three causes may be kept from breaking out: one cause, however, there remains, which is of the essence of the species, and which cannot by any human prudence be at any time altogether excluded. This is the competition for power as between party and party in the class of statesmen.

The matter of good in the shape of matter of corruption is, suppose, even the whole of it in the hands of the monarch, or at his disposal. Still, be it ever so vast, and be his desire of satisfying everybody ever so ardent, to give satisfaction to that desire, is at all times plainly impossible. So far from decreasing, as the quantity at his disposal, and accordingly, disposed of, increases, the aggregate amount of the appetite increases in that same ratio: the more there is to be had of it, the greater is the number of those, each of whom beholds for himself a probability of obtaining a share of it.

Thus then, between the party by whom this mass is shared (including those who, by their means, are in certain expectation of succeeding to a share in it) on the one hand, and the party to whom, neither in possession nor in immediate expectancy, is any share in view, strife, constant and interminable, has place,—constantly is the excluded party occupied in forcing itself in. For doing so it has no means but that of preferring against the party in possession, accusations, matter for which never has been, nor in such a form of government ever can by any possibility be wanting. But for the bringing and prosecuting these accusations, there exists but one possible tribunal, and this is—the Public-Opinion Tribunal.

Difficult, however, is the game which has at all times to be played by the corruptionist in expectancy. Otherwise than by appeal to the power of the unofficial Judicatory, in no way can he do anything towards the forwarding of his wishes. But to carry on any such appeal is to act as accuser, either of the functionaries who act under the form of government, or of the form of government itself, or both. As to the pointing of the accusation against the individuals their rivals, if that were all, in this it is not in the nature of the case that there should be anything that is not perfectly agreeable to them: what is thus aimed at is all profit, no loss. But under such a government the utmost mischief that is ever done beyond that which the government itself affords a warrant for, is in comparison with that which is done with a sufficient warrant from the form of government very inconsiderable. Depredation, and with it oppression in every other imaginable shape, may be carried on to any extent, and yet nothing be done in which condemnation in any shape is passed by either the letter or the spirit of the law, or the usage of government in or under it. Meantime that same load will be at all times pressing, and with ever-increasing weight; and those men being, by their hapless condition, condemned to keep up the continued profession of being friends to the people, no sooner does any particular instance of misrule in either of these shapes come to light, than all eyes are turned to them in expectation of their taking up the accusing part. In truth, the depredation and oppression exercised, having all of it the form of the government for its cause, it is never possible that the connexion between the effect and the cause can escape all eyes.

2. Second point of disadvantage—comparative incapacity of acting in concert.

Of this disadvantage there are two sorts of causes, the one natural, the other factitious.

Of the natural causes, the radical and principal one is local distance. It presses, of course, with particular weight on the condition of the inhabitants of the country, as compared and contrasted with that of the inhabitants of towns. In both cases its pressure is in the inverse ratio of the density of the population, and, as between town and town, in the inverse ratio of the number of inhabitants in each.

Of this cause the efficiency is capable of being counteracted and disturbed, by every circumstance by which either facility is given to the means of communication, or a counter-advantage afforded by means of profit in a pecuniary or any other shape, from frequent intercourse. By water carriage, for example, whether it be by sea or inland navigation that the facility is afforded,—by mutual advantage in the way of trade, the counter-advantage is afforded.

Of this same disadvantage the factitious causes are those which are produced by prohibitions and restrictions imposed by governments.

In every government but a democracy, the interest of the ruling few being in a state of opposition to the general interest, the consequence is, that in every species of government but that one, the class of functionaries beholds in the Public-Opinion Tribunal not a support, but an adverse power: a power capable of becoming superior to its own, capable not only of opposing limits to it, but of extinguishing it, and commonly the only one that is so: the only one without exception in the supposition that the political state in question has nothing of the sort to fear from any foreign State or States.

Hence, consequently, with the governing body of every State but that one, it is a constant object to throw in the way of such communication, so far as applied to political purposes, i. e. so far as applied to the formation of subcommittees of the unofficial Judicatory in question, every difficulty possible.

In the course of these endeavours it finds two natural interferences and difficulties: the odium attendant on it, and the obstacles thrown in the way of communication for such transactions as are regarded as being serviceable to its interests, and as such approved of.

As to the odium, it will be in intensity and extent exactly in the ratio of the degree in which the qualities of probity and intelligence have place in the community. By no government which is not an enemy, an uncontrollable enemy, to the rest of the community, can any such endeavour be ever employed: by every such endeavour an avowal is made of such enmity, consequently of such inaptitude, and of its being the interest of all men subject to it to put it down with all possible speed, and by whatsoever means appear to be at the same time the most efficacious, and in the shape of evil in all shapes least expensive: an avowal not in words, it is true, but in deeds; in deeds by which of the state of the agent’s mind on every occasion evidence is afforded to such a degree conclusive, that the most probative that in the nature of the case can be afforded by words alone, shrinks into insignificance; and, in truth, sinks into nothing at all when opposed to the above-mentioned practical evidence.

The other impediment consists in the difficulty of preventing or obstructing communication for this unacceptable purpose, without preventing or obstructing it in its application to others that are regarded by the government as serviceable to its interests, or even necessary to its existence.

Take, for instance, the English Government, with its Tax upon Newspapers, An. 1801, £200,000; do. An. 1821, £400,000.* In any coolly reflecting mind, no doubt can have place that were it not for this counter-consideration, every newspaper, the editor of which acts in the character of leading member of a subcommittee of that Public-Opinion Tribunal, would long ago have been extinguished. The odium—had that been all—the government would have been content to subject itself to; but the odium with the loss of so large a sum added to it, and at a period of so much financial pressure and difficulty, would have been decidedly more than could be afforded to be paid even for so mighty and decisive an advantage.

CHAPTER III.

NOTIFICATION AND PUBLICATION IN REFERENCE TO SECURITIES.

Section I.

Subjects of notification, and thence publicity.

1. Ordinances. 2. Transgressions, or any violations of those same ordinances. 3. Suffrages, or opinions formed by the several members of the Public-Opinion Tribunal, on the subject of or in relation to some transgression, as compared with those same ordinances.

Transgression supposes something transgressed; in the instance here in question that something is something having or designed to have the authority of law.

1. In the first place come the several ordinances, of which misrule in each of the several shapes against which a security is by this system endeavoured to be provided will have been a transgression: ordinances, or supposed rules having the effect of ordinances—of ordinances interdictive of vexation and oppression in all its several shapes. If at the time of giving establishment to security in those several shapes, ordinances adapted to the purpose are already in existence, it is well; if not, fresh ordinances for the purpose must in this case be provided.

2. In the next place come whatsoever instances of transgression happen to take place. If none, so much the better; the ordinances have in the completest manner possible fulfilled their purpose. If any transgressions within the law in question have had place, the number of them being given, the greater the number to which notification and publicity have been secured as compared with the total number that have had place, the better.

3.Suffrages. Understand by suffrages, the opinions produced in the minds of the several members of this same tribunal by the cognizance of the several transgressions. As applied to persons taking cognizance of the several transgressions, the degree of publicity will be as the number of their suffrages.

Note, that in the number of the members of this same tribunal, is included the number of all those on whose obedience or will depends the effect, of the several general salutary tutelary ordinances by which vexation is prohibited, as also of any particular acts or particular ordinances, in consequence of which any acts of vexation and oppression are exercised in violation and transgression of these same general and salutary ordinances. Power on the one part is constituted by and is in greater or less proportion to obedience on the other. It is in the direct ratio of the obedience, and in the inverse ratio of resistance. But the greater the number of the members of the whole community to whom the existence of an act of oppression has been made known, the greater is the number of those by whom, on the occasion of an endeavour to exercise other acts of a similar nature, supposing the first act notified to them, not only may obedience be withholden but resistance opposed.

Rule: abstraction made of the several degrees of influence possessed—influence of understanding on understanding, and influence of will on will included, the actual power of the Public-Opinion Tribunal will be as the number of the suffrages, actually declared in the minds of the several members: its power, as supposed by other persons, and, in particular, the several functionaries to whose transgressions it is the object of the securities to oppose a check, will be as the number of the suffrages which they expect to find formed and delivered.

This influence with its several possible degrees it may be said may be laid out of the account altogether. For of the persons on whom by possibility it is capable of being exercised, the only persons here in question are the members of the political community in question, considered in the character of members of the Public-Opinion Tribunal belonging to it. Thus, accordingly when considered in a general point of view for the most part does the matter stand. One point however there remains in relation to which the sort of influence in question is capable of having a distinct operation. The suffrages, suppose, of all the members of this tribunal take the same direction, they being all of them pronounced in condemnation of the oppressive act in question. Therefore, as between suffrage and suffrage, it makes no difference which of them was the result of a self-formed opinion—which of them the result of an opinion derived from the influence exercised on the mind in question by that of some other member: exercised whether on will, or on understanding, or on both together. But, though, by the supposition, the direction taken by the suffrages is the same, and the ultimate number of them, by what cause soever produced is the number in question, yet the degree of energy with which upon occasion they may respectively be disposed to act in conformity to these same suffrages may be to any amount different: and in each case this degree of energy may be greater or less according to the nature and force of the influence received.

Note, that to simplify the conception, the direction taken by the suffrages in question is, on this occasion, supposed to be the same in the instance of every one of them. But as by this supposition the subject of these suffrages is in every instance some act of oppression exercised by the sovereign or individuals, there is nothing in this supposition that seems to be in any very considerable degree wide of the truth.

So much for the several subject-matters to which the act of notification may have need to apply itself. Now, as to the several successive operations, the performance of which may be necessary to the production of the effect—of the effect, by whatsoever name designated, whether notification or publicity.

These preparatory operations will be in a considerable degree different, according to the nature of the subject-matter, according as it comes under one or other of the three above-named denominations, namely, ordinances, transgressions, or suffrages.

Section II.

Notification, with respect to ordinances.

First, let them be supposed already in existence, and possessed of binding force.

If, so far as regards the purpose here in question, they are already present to every mind capable of taking cognizance of the matter, it is well. Unfortunately, there is not anywhere, on the surface of the globe, any country in which this sort of omnipresence, or anything like it, has place; not even in that country, the Anglo-American United States, in which the productions of the printing-press are most extensively dispersed: much less in Northern Africa, where even the instrument itself has never yet been in use.

Necessary to the existence of an ordinance in a binding state are three distinguishable operations: namely, scription, sanctionment, and registration.

1.Scription. By this understand the act of composing and committing to writing the matter in question.

2.Sanctionment. By this understand the investing it, with binding force, by some person or persons generally recognised as being possessed of a correspondent power.

3.Registration, or say recordation. By this understand the depositing and keeping, in some appropriate receptacle, the individual instrument to which the Act of Sanctionment has been applied. But for this the correctness and even genuineness of all copies, written or printed, might stand exposed to doubt and dispute.

Minute and useless will the distinction thus brought to view be apt at first sight to appear. Upon a second view nothing, it will be seen, can be farther from being so. Scarcely will that country be seen in which, throughout a vast and indeterminate portion of the field of action and legislation, an operation so essential as sanctionment will not be seen wanting to that matter to which is given nevertheless the name and binding form of law.

Thus far ordinances, appropriate and adequate to the nature of the exigency, have been supposed to be already in existence. If so, it is well. But, suppose the state of things to be a contrary case, what then is to be done?

Case 1. In relation to the matter in question, yet no ordinance of the above description in existence; but in the case of judicial decisions, the standard of reference, composed of anterior decisions, or inferences deduced from them. In the European governments, with the exception of the few instances, if any, in which codification has had place, such is the state of the rule of action, when it is in the state of what is called common law, or unwritten law. On most parts of the field of law, a quantity of matter has been written—written by men not invested, or so much as pretending to be invested with the legislative authority; and out of this huge and shapeless mass of writing, the judge on each occasion makes choice of such portions as appear to him best adapted to his purpose; to the purpose which is most agreeable to him, whatever it may happen to be. In this state of things, singularly unfortunate, if not unskilful, must that judge be who, out of so rich a granary, fails, on any occasion, to find that which is most agreeable to his wishes, whatsoever they may happen to be—to his wishes, guided, as they cannot but be, by what at the moment he looks upon as being his interest.

In the countries in question, if I understand the matter right, some of those memorials have been collected, which in England, over so large a portion of the field of thought and action, occupy the place of law. I mean that sort of matter which consists,—of statements of cases by which judicial decision has been called for, the particular decision pronounced in each case, and the general positions which have been brought forward by the judge in support and justification of his particular decision,—or of such general positions as, in the way of inference, have been deduced from it by men volenter dissertantes—rulers not invested with any such authority as that of a judge.

Case 2. The standard of reference referred to in judicial decisions, composed of inferences drawn, not from former decisions, but from an original standard, composed in a time of remote antiquity.

In the country in question, the standard of reference is, it seems, of this sort, and consists of the matter following:—There stands the Koran, the work of Mahomet, the universally acknowledged standard of opinion and practice in all matters of religion, as well as law. But, for a great portion of these particular cases, to which the occurrences of life are continually giving birth,—in this book, the matter being for the most part of a nature extremely general, is not capable of an application particular enough to serve as an adequately determinate guide. Influenced by this view, different persons, without concert with each other, have at various times set themselves to work to fill up the vacuities, all of them agreeing in the homage paid to the general positions discoverable in the sacred text, but differing from one another in no inconsiderable degree, in respect of the inferences drawn from these important positions, of which, as being included within them, application has been made. With reference to the sacred text, these works of inferior authority stand in the relation of commentaries. Throughout the dominion of the Koran, four of these commentaries have obtained the pre-eminence over all the others. Such is the degree of that pre-eminence as to have given rise, as it were, to two classes of commentaries; commentaries of the first order, and commentaries of the second order. Those of the second order being not exclusively, at least, commentaries on the sacred text, but commentaries upon those of the first order. Commentators of the first order, four as above. Commentators of the second order, not as few as seven hundred.

Though clear of confusion from that source of which indication has been given, as above, in the case of the European, and especially the English Books of Reports, and Treatises deduced from them, the eastern system fails not, however, to labour under very obvious, and such as cannot but be very grievous inconveniences.

In the first place, no one of them having taken for its object of pursuit the greatest happiness of the greatest number, none can, except by accident, have made any clearly defined provision for it in the course of such arrangements of detail as are to be found deducible from it.

In the next place, in opening out the thread of inferences, they have all of them taken, on various occasions, courses more or less different.

From all these diversities, two evil consequences, to an extent more or less considerable, cannot but have taken place. So indeterminate, in this or that case, is the bearing of some or all of these previous commentaries upon the case, that the judge, be his probity ever so great, finds more or less difficulty in determining in what manner he shall make application of them to the case.

The other consequence is, that amidst such diversity the judge, in so far as the union of disposition and opportunity produces, on his part, an inclination for corruption, seldom finds any difficulty in gratifying it.

With regard to aptitude of phraseology—aptitude of phraseology on the part of the rule of action, the source of security on the part of the members of the community,—thus much may with confidence be asserted, with reference to the most aptly penned codes of European law; namely, that, in respect of determinateness of designation, as well as aptitude, with relation to the only proper end of legislation, the greatest happiness of the greatest number, they are in a deplorable degree deficient. Continuing to apply the words which custom has applied to the several occasions, on each occasion the assumption they proceed upon is, that of the word in question the import is adequately determinate,—and scarcely, perhaps, in a single instance is that assumption true.

If such is the case in the instance of those bodies of law, the authors of which, during the penning of them, set and kept before them, all along, a determinate object of pursuit, namely, the greatest happiness of somebody—the greatest happiness of the Monarch whose power was employed in giving birth to them and binding force; still more assuredly must it be the case in the instances in which the rule of action has, from time to time, been spun out, in the way of inference, from a rule which, whatever may have been the talent employed in the making of it, was yet of a mixed character; having something of religion in it, and something of law in it, with here and there a passage of history; springing the whole texture of it out of the occurrences of the day, and that day a very remote one with reference to present days, the state of society being, at the same time, in a great variety of particulars, widely different from what it is at present: widely different, and, amongst other points of difference, far less diversified.

Be the inquiry, however, ever so pressing, be the demand for new and precise definition of binding terms ever so urgent, everything cannot be done at once. With the stock of those terms, whatsoever may be the extent of it, with this stock of instruments, in the penning of the proposed securities must the scribe content himself, putting them to use in the best manner he is able.

In the character of a guide to Judges, the necessity of a collection of ordinances has just been brought to view,—of ordinances in the form of ordonnances,—of an all-comprehensive collection, covering the whole field of Legislation, and putting an exclusion upon every standard of reference that is not in that exclusively adequate guide.

But if necessary even to the Judge,—to the functionary to whose function it belongs to decide upon the conduct of the members of the community at large, pronouncing that decision which never can be pronounced without producing suffering in some shape or other from the lowest to the highest degree,—to a party or parties on one side or the other,—how much more necessary must it not be to an individual in the situation of one who every day of his life is exposed to the danger of being party to a suit for the want of being able to have access to a document which would enable him by anticipation to preserve himself from the sufferings which otherwise cannot but await him at the hand of the Judge.

If necessary to the right termination of these afflictive processes called causes or suits at law, how much more strictly necessary are they not to the prevention of them. Without any such forewarning and trusty instructive guides, a termination in some way or other, these courses of suffering cannot but receive; but by no other means than these means of timely information can they be anticipated and prevented.

It may be matter for consideration whether to this fundamental and all-important institution of rational government, the form of a charter—the form of a declaration of rights, or the form of a contract should be given.

If obtainable, the form of a contract will unquestionably be the more beneficial: whatsoever securities are afforded will thus be fixt upon the firmer basis. The case of a charter remains always more or less exposed to one cause of failure: being the free and sole act of the Sovereign, whatsoever is granted by him on any one day may be taken back by him on any other: when he granted it, it was on the supposition that no bad consequences would result from it: but that supposition being disproved, necessity compels him to revoke it. To this effect are the words which at any time may just as easily be uttered as any others of the same length and number: and wheresoever and by whomsoever in the situation in question uttered, no want of voices to echo them need ever be feared.

So much for charters. Charters the people in question cannot have been much used to. Contracts—compacts—all people are more or less used to: more or less in the use and expectation of seeing them kept: and, at any rate, of regarding the infraction of them as an act of injustice, and a reasonable cause of displeasure and discontent: a reasonable cause for endeavour to obtain remedy.

In the case of a charter, if it be regarded as really obligatory, there is but one party on whom any obligation attaches: in the case of a contract, there are two parties: the people forming one of them. If then the contract form be the form employed, consistency would seem to require that, on the occasion of the solemnity from which it appears to derive its sanction, there should be given by and on the part of the people, thanks to the Sovereign for his entering into his part in it:—thanks with acclamations. Thanks to the Sovereign—to God—to the prophet—to everybody—nothing of this sort need be grudged. But on their part, if anything, what more can be done with safety and advantage? Promise to obey him and all his descendants to the end of time? this would be too much: too much even although, on the part of those potentates, the condition of their performing their part of the contract were attached to the promise on the part of the people. For—what if another form of government should come to be regarded as in a greater degree contributory to the greatest happiness of the greatest number? Promise to obey his descendants so long as the contract were on their part kept inviolate, and so long as Monarchy continued to be the form of Government? This is exactly what seems desirable: but unfortunately, the more desirable on the one part, the less likely to be acceded to on the other.

In the case of England, the Whig Monarchists who brought about the Revolution in the time of James II. saw the advantage attached, as above, to the contract form; and in their arguments employed it accordingly. Their contract, however,—the original contract they called it—was a mere fiction: and of its being a mere fiction an evil consequence was—that, on each occasion, the terms of it remaining to be feigned,—they made them whatsoever seemed to them most advantageous to their own particular interests. But, in the case here in question, there would be no fiction, and there being two contracting parties to this contract, the terms of it might, by mutual consent of both parties, be changed at any time. So long as the terms were kept by the Monarch, the people would not be likely to feel much inclination to change: but, supposing them at any time infringed by him, it would be for them to make themselves amends, and provide for that purpose whatsoever security seemed to them most efficient: for example, the change from the mixed Monarchy to a Representative Democracy: and for the bringing about such change, the securities here in question would prepare them, by giving them power in every shape.

Section III.

Means of Multiplication of Ordinances.

In the country in question, written discourse, though not printed discourse, being in use, of whatsoever ordinances are in force as such, copies, one or more, cannot but be in existence somewhere. In the metropolis of the country of course. In the seat of the principal judicatory of the country of course. In the case here in question, the first operation therefore that requires to be performed is multiplication. For this purpose the newly invented instrument, called the lithographic press, seems for a beginning preferable to the ordinary printing press, not that there should be any reason why either should put an exclusion upon the other.

The advantages which at the outset it presents itself as in possession of are the following:

1. It is by much the cheaper.

2. It requires for the production of the effect a much less numerous association of Arts, and thence of different artists.

3. Being with difficulty distinguishable from ordinary manuscript, the use of it will be less alarming than the use of the printing press, to artists who at present are employed in the transcription of manuscript writing.

On the occasion of this as of every other mode employable for the abridgement of human labour, an effect which can never be too scrupulously attended to, and which at the same time has been almost universally turned aside from, is its effect on the interest—on the very means of subsistence of the working hands, the whole of whose subsistence is derived from the practice of the art in its present state. In various countries of Europe, in England more perhaps than in any other, prodigious is the mass of misery that has been produced by this means.

First branch of the evil, the distress of the labouring hands whom the introduction of the new art causes to be dismissed, and thus deprives of the means of subsistence. Second branch of that same evil, suffering in the shape of pecuniary loss and other shapes, sustained by those who, trusting to profit by the new art, dismiss in a proportion more or less considerable those hands whom they were wont to occupy in the course of the old established one: suffering, namely produced by the hostility of those who are thus deprived of the means of subsistence,—hostility exercised under the notion of its being in exercise of retributive justice.

To the great capitalist, the sufferings of these his discarded servants, to how many hundreds soever they may amount, has, generally speaking, been of little or no importance. But to no one of all these human beings, strange as it may be in his eyes, is it a matter of no importance. To each of these discarded servants, the difference between comfortable subsistence, and death, or scanty subsistence from the parish funds, is, in reality, of much greater importance than is to the capitalist the difference between the old established rule of profit to which he has been accustomed, and the new rule of profit to which he aspires. The law relative to the subject being uniformly the expression of the will, either of himself or of one belonging to a class still more insensible than he is to the miseries of men less fortunate than themselves, the act by which he deprives them of the whole of their subsistence, is never treated on the footing of a crime, or even of an offence. On the other hand, any act whereby the men, who by him have been deprived of the whole of their subsistence, shall endeavour to retaliate, by depriving him of ever so small a part of his vast opulence, is treated on the footing of a crime, and deep is the turpitude imputed to those who have defiled themselves with it.

As to the depravity, whatsoever may be the amount of it, one thing is undeniable, namely, that he in whose loss it is manifested under the circumstance of neglect in question, is the author of it, and has himself to thank for it.

In his own eyes, as also in those of his superiors, on whom the state of the laws depends, the heart of the man of opulence is no less full of virtue than his purse of money. To himself the difference in respect of profit is no object; but the public, the sole object of his regard,—the public is enriched by it. The discarded labourers, a mean and grovelling race, who care nothing about the public, experience nothing but what they deserve.

In the instance here in question, happily the evil here in question, if so it be that it requires any cure for the existence of it, requires no such cure as in the cases just mentioned. Supposing the securities in question granted, the copies the production of which will be completed, will furnish of themselves a fresh demand, for which no adequate means of supply can at the time, when the demand commences, be in existence.

But, whatsoever be the improved mode of multiplication employed, lithographic press or ordinary press, care should be taken that the employment given to it should not be such as to throw out of employment any of the existing scribes, except in so far as other employment, not less advantageous, is found for them.—Measures should at the same time be taken to prevent the influx of fresh hands into their business. If certificate of the stoppage of the demand for this art be not sufficient, even prohibition might be employed: prohibition absolute, or unless by license.

Next to the operation of multiplying the copies of these literary instruments of national security against misrule, comes the method of their distribution. Distribution is either gratuitous, or for a price,—for example, in the way of public sale.

Of copies to a limited amount, the distribution, it is true, might be gratuitous. But in such a case the demand might be indefinite; for to no man, able or not to read the characters on it, could a quantity of paper be without its uses. Exposure to sale, therefore, presents itself as an indispensable mode. But the price demanded should not at any rate be to any the least amount greater than what will suffice to cover the expense. If it were insufficient, it might be so much the better. On the side of convenience, all that is essential, is that it be not so small as that for purposes other than that of reading, it should be worth a man’s while to purchase it.

Obvious and unanswerable is the reason why, so it does but prevent undue application to purposes other than those designed, the price cannot be too small. The usefulness and the efficiency—the usefulness of these securities will be as the number of the minds by which cognizance of them is taken. On this ultimate security depends the efficiency of whatsoever else can be designated by that name. For the benefit of this security, no expense that can be incurred by a number of copies, equal to those of the individuals able to read them, can be too great.

Section IV.

Application of Public Recitation to Ordinances.

As far as it goes, this operation, compared with swift exposure to sale, presents several advantages.

1. By this means, a conception of the master document in question may be conveyed to minds in vast multitudes, to which, by any other means, it would not be possible to convey it.

2. It is not necessarily attended with any expense.

3. It is susceptible of any additaments applied to it in the view of rendering it the more impressive: of these presently.

On the other hand, the signs by means of which the conception is conveyed, or endeavoured to be conveyed, to the minds in question, being of the supremely fugitive and transient kind, their existence ceasing as soon as it has commenced, deplorably inadequate will this mode of communication uniformly be, in comparison with that which operates by signs, susceptible of indefinite permanency. Nor even for the single instant in which the communication takes place, can the conception derived be generally expected to equal that which has place in the other case, in any of the qualities requisite; namely, in clearness, correctness, or comprehensiveness: much less at any instant separated from that first instant by any considerable interval of time.

Now as to impressiveness. This quality is capable of being raised above the ordinary standard by any one of the following circumstances:

1. The rank of the person by whom the recitation is performed.

2. An extraordinary degree of aptitude on his part, in respect of the properties desirable on the part of a public reader or speaker: for example, clearness of pronunciation, strength and agreeableness of voice, propriety of intonation with reference to the occasion.

3. The place at which the recitation is made.

4. Any circumstance of ceremony with which it may be thought advisable to accompany the operation.

The discourse in question being drawn up and agreed on, the sovereign, for example, in the principal mosque, stationed in an elevated station, in which he may be seen by the whole assembly, takes the paper in hand, and reads it in a voice suited to his convenience. When read, he touches it with his seal—with the seal by which his acts as sovereign are in use to be authenticated; he touches it with his seal, and that instant a signal being given, notification is conveyed to the greatest distance by the firing of artillery, and musketry, and the sounding of drums and trumpets, or whatever wind instruments of music are in use.

After this, for the more effectual information of the surrounding audience, the best reader in all points taken together as above, that can be found, reads the paper over again, and the notifying sounds, as above, are repeated. The ceremony might be preceded and followed by a procession from the palace of the sovereign to the mosque, and back again.

After the reading has been performed, any such declarations of censure on all infractors may be added as the forms of the religion and the usages of the country will admit of.*

In those Monarchies of Europe which are called Constitutional, in them, and in those which have elsewhere sprung from them, it has been customary for the Monarch to open and close the legislative assemblies by a speech from the throne—a speech of which, though not so much as supposed to have been the framer, he is himself the recitator. But of all these general speeches one general character may be given. For the most part they contain nothing but vague generalities. They contain no enactments. They are not intended to give expression to any specific engagements. Indeed the manifest and scarcely dissembled object is to avoid binding the Royal speaker to anything—to keep his hands as free as possible. If on any occasion they amount to anything, it is when the object of them is to notify, though in the most general terms, the assent of the Monarch to a new Constitutional Code, or to any particular law to which a preeminent degree of importance is attached; or to propose, in the most general terms possible, a subject for deliberation and eventual enactment.

In the case of Tripoli, should the consent of the Sovereign to the proposed system of securities be obtained, the design, if I understand aright, is to endeavour to prevail upon him to re-echo from his own lips, not merely a form of words expressive of his assent, but the whole contents of the discourse, unless the length of it should be such as to present an insurmountable obstacle to the physical exertion necessary.

For this purpose, the example, as above, of the Sovereigns of Europe might perhaps contribute more or less to the surmounting of any reluctance of which the novelty of the proposal may have been productive in his mind.

Section V.

Notification and Publicity as to Transgressions.

By transgression, understand, as above, instances in which the tutelary ordinances, having been established, as above, acts of oppression, as above characterized, happen, notwithstanding, to have place.

Unfortunately in this second instance, the placing the matter in question in broad daylight, is not altogether so safe, nor yet so easy, as in the former instance.

To an operation of this description, the nature of the case will be seen opposing these obvious opponents; namely, fear, indolence, and poverty. It remains for inquiry what can be done towards the surmounting of these several obstacles.

1st. Obstacle—fear. To observe where the fear attaches, we have but to observe the parties whose conjunct labours are necessary to the production of this result.

These are, 1st. The person or persons from whom in each instance the information should come; 2d. The person or persons by whom it should be received. Furnisher of the information any person may be: a receiver of it is as such a sort of public functionary; at any rate, if so it be that he does what is required to the giving publicity to it, as he must do sooner or later, or he might as well not receive it.

In comparison with that which is offered by fear, the force of all other obstacles put together is inconsiderable.

Fear is the expectation of eventual evil, evil at the hand of all those to whom publicity, in relation to the event in question, may come to be disagreeable. Against all such fear, the most effectual of all securities is concealment: concealment of every person by whom anything has been contributed to the publicity of the obnoxious state of things.

Known it is necessary they should be—known to the functionary by whom the information is received or extracted, were it only for the sake of eventual responsibility, in case of disturbance given to the peace of the community and of individuals, by false accounts. To one functionary, or perhaps one set of functionaries, it is necessary that for this purpose every person contributing to the furnishing of the information, should be adequately known: known to the purpose of being eventually forthcoming to the purpose of being subjected to punishment, in case of mendacity or injurious temerity. But to no other person is it necessary that he should be known.

Next come the several persons by whom any part is borne towards the giving permanent and appropriate publicity to the information when received. At one stage or other, some one person at least there must be—naturally persons more than one—whose agency in the business cannot be kept concealed: concealed, that is to say from those from whose power vengeance will naturally be to be apprehended. But when any one person is known, as having borne a part in it, the greater the number of the persons thus known to have done so the better: the greater the number, the higher their situation (meaning their official situation) and the more dispersed their several situations—meaning their topographical situations. For the higher their official situation and the greater the number of the persons occupying those several situations, the more dangerous will it be for the oppressor to endeavour to extend to them his oppressing hand: the higher and more numerous the more dangerous, and the more dispersed the more difficult.

Suppose, for example, by one such functionary, or set of functionaries, information of an act of oppression received and committed to writing. If their situation is that of a set of functionaries constituting a Judicatory of the higher order, then suppose a copy sent to every Judicatory in the Dominion, and by the joint authority of them all made public at one and the same time: made public by whatsoever means of publicity happen to be at their command. Here the security against vengeance from the oppressor is at its maximum: unless it should be deemed advisable, that from this branch of the authority of the State, communication be also made to the Military.

2d. A Case may be supposed in which whether fear have place or no, indolence may oppose a bar, more or less powerful, to communication. Suppose the oppressed party alive and in condition to act, indolence is not in his instance very likely to take place. For affording the requisite excitement, the desire of compensation and vengeance will, generally speaking, be sufficient. But to him, even though living, it may happen that the injury is not for some time known; and the case in which the oppression—the injury—is at its maximum, is that in which adequate excitement is most apt to be wanting. This is the case in which, by the oppressive act, the life of the victim has been made a sacrifice. In this case, whether any connexion of his disposed to come forward and seek redress, be in existence, will be matter of accident. In one case, and that not a very uncommon one, the non-existence of any such person will be an occurrence altogether natural. A dead body, say at the dawn of day,—the dead body of a man is found lying on a high road or some such public place, and for some time nobody knowing whose it is, by no connexion of his is the catastrophe known or suspected.

In a case of this sort, the object is to obtain information from the first person to whose senses the spectacle has happened to present itself in the first instance. Here, for surmounting the resisting force of indolence, three active forces present themselves: appeal to the social affections by a standing authoritative and appropriate discourse, punishment in the case of non-performance, and reward in the case of performance, of this public service. Of these instruments, whether one or more, or all, may with most propriety be applied, will depend upon circumstances; circumstances too particular to lay claim to a place here.

3d. Obstacle—poverty. Understand relative poverty—inability to defray the expense, whatever it may be. Of the operations necessarily preparatory to the ultimate publication above brought to view, an indefinite number may, any or all of them, be unavoidably attended with an indefinite amount of expense. 1. Collecting from places in indefinite number, each of them indefinitely distant, persons capable of serving in the character of reporting, or say, deposing witnesses. 2. Committing to writing the result of their respective depositions. 3. Transmitting from Judicatory to Judicatory, from office to office, copies of the written instrument to which the statement of the case was first consigned.

Though provision might, in some way or other, be made for them, the case required that these several sources of expense should be brought to view. In what particular way any such provision may most conveniently be made will depend upon local circumstances, such as are not within the cognizance of him by whom these particulars are offered to view.

Note here, that as well upon those who are likely to be most willing, as upon those who are likely to be most unwilling, should the tone of whatever ordinances are issued for providing publication be as forcibly imperative as possible. The more irrisistible in appearance the coercive process, the greater will be the security given to him in whose breast any desire to co-operate towards the beneficial effect in question has place: against the wrath of the offended and denounced oppressor he has coercion to plead as his excuse.

Section VI.

Natification and Publicity as to Suffrages—Newspapers: Letter Post.

To the subject-matter thus denominated, the operations which apply to the purpose in hand will be seen to be the following, viz. 1. Extraction. 2. Registration. 3. Multiplication. 4. Transmission or say diffusion.

For all these several operations one and the same instrument presents itself as the efficient and the only efficient instrument. This instrument is no other than a Newspaper: multitude of instruments of this same sort employed by so many different sorts of hands, and multitude of copies of each, as great as possible.

In this instrument may be seen not only an appropriate organ of the Public-Opinion Tribunal, but the only regularly and constantly acting visible one.

In this same tribunal it is by the Newspaper Editor that in each case the motion in which the decision originates is made: and thus much of the matter is no fiction, but the exact truth. Thereupon come the suffrages;—suffrages given by those members of the community being at the same time readers of the Newspaper, or in converse with those that are,—so when it happens to take cognizance of the matter. These suffrages being, from the nature of the case, incapable of being collected, the number of them must in each case be left to inference and conjecture. Meantime thus much may be remarked, namely, that in the instance of each person it is by the real and true opinion, the real and inward affection, not the opinion and affection declared and avowed, that the salutary effector the check applied to misrule is produced: for it is by opinion and affection really entertained, and not by the opinion and affection professed to be entertained by a man that an action in the shape in question is produced.

Newspapers, suppose, two taking different sides of the question in each case: one suppose the side of the suffering people; the other the side of the oppressing Sovereign and his misrule. Here the case is rendered more complicated; motions the tenor of them in every instance visible and permanent. Suffrages expressed or not expressed, i. e. with or without tenor, but in both cases, invisible and evanescent. Of these suffrages some are on the side of one of the writers, others on that of the other.

Greater is the efficiency of this one sort of written instrument than that of all other written instruments put together. On this and that question pamphlets and books, works, small and great, may be written. But by no one of them is any regular cognizance taken of the several occurrences as they take place: for by any publication, suppose any such regularity and constancy of attention kept up, it becomes the very thing here in question, i. e. a Newspaper.

In a Representative Government, at any rate in a Representative Democracy, with the exception of the function of the principal Minister, more important is the function of this unofficial functionary than that of any official one. More important, that is to say, in particular to the great purpose here in question—that of making application of the power of the Public-Opinion Tribunal in its highest character and by far the most beneficial one, of a check upon misrule. Of this superiority the causes are—1. In each individual instance the greater number of the suffrages on which the motions made by these Representatives of the people are taken for their ground, the motions made by these unofficial compared with those made by any official representative. By the Prime Minister impulse is given to the machinery of the political sanction: by the Editor of the prime popular Newspaper to that of the Social Sanction.—But, 2. more particularly the constancy and continuity of action which has place in this case—sources of influence in respect of which no official Representative limited as his motions and discourses are, to particular and scattered reasons and scattered points of form can hold comparison with him.

The aptitude of the Newspaper in question, with reference to the greatest happiness of the greatest number being given, its usefulness will be as the extent to which the diffusion of it has place: in other words, as the number of the persons to whose minds it finds its way.

The circumstances on which the degree of that extent depends, in particular at the outset of the sort of institution in question are, 1st, the constancy; 2, the frequency, of its publication; 3, its mixture with matters of a nature universally interesting; 4, its cheapness—the smallness of the price; 5, the impartiality of its procedure in respect of the admission or rejection of articles; 6, the moderation of its language, i. e. its purity from expressions of vague and ungrounded vituperation and laudation of men and measures.

Of the several qualities the three first are at the same time the most essential, and the most easily secured to it, as being those that are the most completely independent of the mental qualities, moral and intellectual, of individuals.

1. As to constancy. This quality is of all others the easiest to secure. It is moreover a matter of prime necessity that the institution be so conducted. The interest created and kept up by it cannot but be in the closest degree dependent upon the assurance with which, on the occasion of each paper, a reader looks forward to a regular succession of the like entertainment provided by the same hands. So invariably is this property possessed by this species of discourse wherever it has place, that the absence of it not being presented by experience, is not easily presented to view by imagination.

2. Next, in the order of importance, comes the quality of frequency. The number of readers being given, the greater the frequency of its appearance, the greater the degree of diffusion. Nor, in the instance of the aliment thus administered to the mind, is the appetite slackened by the frequency of its application, as in the case of the aliment administered to the bodily frame. On the contrary, it is rather kept alive and invigorated,—the meal of each day operating as an excitement to look out for that of the next day following.

3. Variety, admixture of the political matter with matters of other sorts, in the greatest variety possible. What gives this property an essential claim to notice, is—besides the degree in which the amount of diffusion depends upon it—that it is so little dependent upon the talent employed in the conducting of it.

Suppose, for example, six sorts of matter, each of them interesting to one class of readers, no one sort interesting to classes more than one. By this means, you have six times as many readers, and regular purchasers, as if there were no more sorts of matter in it than one. Each class stands assured of having something in which he takes an interest. As it is on no other terms that he can get anything, no one of them is debarred from the purchase of his one-sixth by the consideration that without more than that sixth it is not obtainable.

When this variety of entertainment is kept up, no imaginable literary composition can, in respect of attractiveness, by possibility enter into competition with this, nor, in particular, with reference to the uses here in question. From the physical association—the contiguity of the natural and visible signs—an association is instantly formed between the ideas of which they are respectively the representatives. Taking up the newspaper, each one is upon the look-out for the master of that sort in which he takes a more particular interest; but while he is upon the look-out for that, matter of all other sorts is continually offering itself to his eyes. Little by little the dryness and repulsiveness of each wear away; each, in some degree or other, becomes more and more familiar to him. And even supposing that matters in which he takes no interest at all, are regularly passed over without a glance, still of those in which he takes some interest, the interest is, little by little, increased.

In what abundance, by the mere circumstance of the being among the contents of his newspaper, a man is led to the reading of articles for which he would not ever have looked in any publication exclusively appropriated to the reception of them, is a circumstance which can scarcely have escaped any person’s experience.

5. Impartiality,—its uses. Wheresoever there are newspapers, there will be, or rather are already, parties; and wherever there are parties, all minor divisions naturally fall under one all-comprehensive division,—the assailants and the supporters of the party which has the power of the country in its hands. If there be any tolerable degree of freedom, a newspaper can hardly have place for any length of time, but rival newspapers, one or more, will start up likewise. Be the number of newspapers ever so great or ever so small, great would be the advantage, in respect of extent of currency, if the editor could prevail upon himself to keep up an impartial course between the two parties,—to give equal admission to attacks and to defences. Obvious altogether is the advantage which the course thus prescribed by justice would secure to him. Readers of all parties would be invited. No readers of any party would be repelled. Number of readers of each party suppose equal; on this impartial plan, the number would be the double of that which it is on the ordinary partial plan.

But, for securing to the instrument of instruction this at once most respectable and most difficult endowment—and this without prejudice to the diffusion of it—what would be the most eligible course? not to make controversial matter on either side, but to admit it on both sides. By the sacrifice of this stimulating matter, the publication would be rendered, by the double and reciprocal insertion, doubly excitative and attractive.

On the part of a newspaper editor, nothing is more easy than to profess impartiality; few things more difficult than to maintain it. But if, in the highest degree, utility depends upon impartiality—upon actual impartiality—in a not much inferior degree does it depend upon the reputation of impartiality,—upon the proportion between those of his readers, in whose eyes he is impartial, and the number of those in whose eyes he fails in respect of a quality so highly desirable: and unhappily he may be in ever so high a degree actually impartial, and yet, and even from that very cause, be partial in the eyes of both.

For keeping up impartiality without diminution of frequency, the most effectual course, supposing extent of sale to permit, would be for the proprietor of the newspaper to employ two editors, one whose assertions were on the one side, the other whose assertions were on the opposite side: the number of days in the year allotted to each being the same. Why not? The answer is, lest in that case there should be a correspondent alteration and division among the customers: one set buying the paper on the government day and not on the opposition day: the other on the opposition day and not on the government day. Not that the greater part of the readers would thus content themselves with no more than half the aggregate stock of facts. But still some there would be, and antecedently to experience it would not be possible to say how many. As to any endeavour to conceal this part of the arrangement it would neither be practicable nor desirable. To exclude fraud and injustice, and to secure harmony, some arrangements of detail would be necessary; nor does the securing such as would be adequate present to view a task of any considerable difficulty.

6. Moderation, or say good temper. Unhappily for securing this quality, important as it is, there is no such simple and effectual recipe as hath been shown to have place in the case of impartiality.

Of moderation, the simplest and clearest description, as far as it goes, that can be given is—the avoiding to employ for the giving expression of disapprobation, whether of men, or measures, or modes of action, any words or phrases of vague and violent vituperation, that express aversion or displeasure, without any precise designation of the cause of it.

Of every violation of the laws of moderation, various and serious are apt to be the evil consequences.

1. By the disgust which it cannot but produce it tends to exclude readers to a number altogether unascertainable and unlimited: and among them not only those who are decidedly attached to the party whose sensibility is thus wounded, but others who are neutral, indifferent, or undecided.

2. By the hostility thus manifested correspondent hostility on the opposite side cannot but be provoked.

3. Among the consequences of such hostility prosecutions—attacks in the field of Judicature will, with more or less frequency, have place.

Hints respecting the best plan for the conducting of a Newspaper.

1. One sort of article by which an interest, more or less exclusive, cannot fail to be excited, is—an indication of sights to be seen: things offered for purchase or hire: prices of goods of various sorts at various places: probabilities in respect of future increase and diminution of price.

2.Accidents. At all times, by occurrences of this sort, more or less of interest can scarcely fail to be excited in most breasts. The greater the interest taken, the greater the assistance and encouragement afforded to the sympathetic affection: that affection, upon the strength of which morality and felicity so essentially depend.

3.Offences. Of matter under this head, the usefulness is of prime importance with reference to the particular design here in question. Of the misdeeds of various sorts from time to time committed, few in comparison, at the utmost will be those committed by the order of the sovereign, or which it is matter of pleasure or advantage to him to see committed. For the greater part they will be of that class by which, while no profit in any shape is produced to men in power, as such, suffering is produced to individuals, and through individuals, danger and alarm to the community at large, and thereby to the Members of Government in the quality of members of the community at large. This being the case, to the publication of misdeeds in general no aversion will be excited in their minds, no objection will have place in their eyes. But the habit of writing and reading accounts of misdeeds of all sorts being once established, mention of the misdeeds committed by or agreeable to men in power, will find their way in along with the rest—will slide in unobserved by the editor, or at least, as if unobserved. And thus the way will be paved for the general admission of misdeeds, in the commission of which the man in power has an interest, or imagines he has an interest.

4.Proceedings of Courts of Justice: especially that of the Cadi in the metropolis: being that by the proceedings of which the greatest interest will naturally be excited.

5.Deaths. Number of in the metropolis, and other principal towns: according to a periodical enumeration, if obtainable. In the case of those of remarkable persons, their names given with any particulars that can be collected of their characters.

6.Births. Those of persons of the male sex may be ascertained by the acts of circumcision: of which a register, if not actually kept, might, it is supposed, without much difficulty, be caused to be kept, by the Imans and Notaries of the several mosques.

7. The like occurrences in the domains of the neighbouring states.

8. Parallels between the particulars indicative of the state of society and manners, as between the state in question and other Mahometan States on the one part, and Christian States in general, or in particular, on the other.

1. Points on which the advantage appears to be on the side of the Mahometan States.

2. Points on which the advantage appears to be on the side of the Christian States.

In all these cases, constant standard of reference the greatest happiness of the greatest number.

9. Indications of physical inconveniency; with or without hints respecting the most eligible means of remedy.

To each class of articles, as above, there might be a use in prefixing the denomination of it on a separate line and larger type; as thus:—Accidents; Offences; Deaths. By this means, 1. Readers would be directed instantaneously to the class, whatever it were, in which he happened to have an interest. 2. The attention would, by this perpetually recurring excitement, be kept awake. 3. By these exemplifications the minds of the readers would be familiarized with the practice and general conception of commanding arrangements.

A degree of diffusion sufficient for continuance being supposed to be already established, now then comes the question,—concerning the general usefulness of it, by what means it may be raised to the highest pitch.

In the first place, as to the only right and proper end of sound action, the greatest happiness of the greatest number. This all-ruling, all-comprehensive, and all-important principle, though not on every occasion brought forward and held up to view in its own name, should, on every occasion, be inwardly kept in view: and even by name, the greater the number of the occasions on which, without exciting abuse and disgust, it can be brought to view the better. For by it a standard is held up, the only legitimate standard by which the mischievousness of misdeeds can be proved, and the degree of it measured and indicated.

Every occasion should be embraced of making application of the greatest happiness principle to the individual occurrences of the day, showing, 1. How morality and happiness depend upon the notoriety of the rule of action referred to by the Judicatories. 2. The advantage of the greatest degree of equality consistent with security in the distribution of the external instruments of felicity in all their shapes: in particular, power and the matter of wealth in all its shapes. 3. Showing how compensation to all sufferers by a misdeed in any shape ought to take place of punishment, because the burden of affording compensation operates as punishment so far as it goes; how punishment should be adapted to misdoing, that by allotting to the more mischievous misdeeds, the more severe punishment, those who cannot reform from misdoing altogether, may be induced to commit the less mischievous in preference to the more mischievous, &c. &c.

Particulars of the mass of literary capital to be provided antecedently to the commencement of the publication of a work of this sort.

Antecedently to the setting up any such newspaper, it would be highly advisable to have a stock more or less extensive of foreign newspapers, to serve as sources out of which heads of information would be brought to view, and might be selected. Of all newspapers the English are by far the most instructive. Next to them, those of the Anglo-American United States. In comparison with these the French are worth but little; the newspapers of all other nations put together nothing at all. The public demand which it is hoped will accompany the paper, will serve to show the prodigious number of articles of this sort that are every year published in England;—also the enormous revenue derived from them: always remembered, that this is among the worst of all sources of revenue, and more especially so would it be in any country in which newspapers are set up for the first time. The reason is, that to an extent more or less considerable, every tax operates as a prohibition, a prohibition applied to the sort of articles taxed: as in the instance in question, though a bounty would not be necessary, a bounty would be less monstrous than a prohibition.*

Suppose a dozen boys receiving at the school in question† their education, the most useful and thence the highest occupation which the best head among them could be put to, would be that of editing a newspaper on his return to his own country. The master might choose for this purpose the most promising, and he might be trained to it even at the school itself before his return.

Antecedently to the setting up as above, a stock of matter should be prepared and kept in readiness: various kinds of matter being tried for the purpose of observing and knowing which of them excited the most interest. As the publication went on, various articles of every sort, advertisements in particular, would of course be sent in by those whose taste were pleased, or their interest, as it seemed to them served. As thus miscellaneous and ever highly interesting matter by degrees came in, the less interesting matter belonging to the original stock would give way to it. It is of the utmost consequence that on no appointed day whatsoever any failure of the appearance of the paper should take place: and by the preparatory stock in question, all such failure might effectually be prevented.

Production and multiplication are effected by newspapers: conveyance by the letter post.* These and whatever other documents require, for the production of their intended effect, to be sent to a distance, are of no use, but in proportion as they are conveyed to their respective destinations. Between any two places in the dominion in question, is there any such establishment as a post for letters? A messenger or chain of messengers travelling at stated intervals between the one and the other? Between the capital, for instance, and the two Universities, or one and which of them? The first thing to be done in this way would be to establish a system of communication of this kind between the office of the Cadi at the capital, and the several judicatories. Next to that would be the establishing the like between each judicatory and the several mosques within its territorial field of jurisdiction, messengers one or more going the circuit among the mosques.

In time, pay received for letters sent from individuals to individuals, might lessen the expense to government. As the number of persons who read and write receives increase, so will the receipts of every such establishment. But at no time should any of these receipts be made a source of revenue. A tax on the intercourse between man and man being a prohibition on all who cannot afford to pay the tax, cripples social intercourse: cripples it for all sorts of purposes, and nips all improvement in the bud.

Of the proposed system of communication, the direct as being the most important object is—personal security; and in particular security against oppression by the hands of rulers. But a system of communication, if once established for the major purpose, will apply itself of itself to all minor purposes. It will contribute to the efficiency of the judicial power as applied to its more obvious and more ordinary purposes. It will contribute to the security of individuals as against injury by individuals.

It will contribute to the increase of commerce: in regard to each article, making known to each possessor of a surplus beyond his occasion, where those individuals are to be found, who, to the desire of possessing the article, add the means of paying for it. Whether for the mere chance of finding individuals in sufficient number able and willing to make use of it for merely commercial purposes, it would be worth while to establish a system of communication in the first instance, would be matter of uncertainty calling for calculation; but, on the supposition that it would be worth while to establish it for the sake of security alone, any the least chance of its being contributory to the increase of commerce, that is to say to the increase of opulence, cannot but operate as an additional probable benefit, and as an additional inducement.

Meantime, in the early state of the establishment, by whom shall the expense, whatever may be the amount of it, be defrayed? A question this which, where any advance is proposed to be made in the track of civilisation, is unhappily obtruding itself at every step. As to the sovereign, the funds of the state, which are all of them his funds, are never sufficient for so much as his own personal expenses; never sufficient, as yet, nor in the nature of the case, under such a form of government, ever likely to be so.

Soldiers in a certain number—say 8000, are at present kept up. If of these a certain number were regularly employed as letter-carriers, they would not be the less fit for service in the character of soldiers: they would be the more fit. By thus changing their situation, these messengers would thus become every day better and better acquainted with the country; and in that way as well as others, be by so much the fitter for service in their character of soldiers.

A slow conveyance, so it were but regular and constant; a slow conveyance extending over a large portion of the territory, might be preferable to a more expeditious one extending over a less portion of territory. For quick conveyance, horses, mules, or dromedaries, would be necessary; but by this means the expense would perhaps be doubled. In certain districts, camels would be necessary for the carriage of the water necessary for subsistence; but this would be only in certain districts.

CHAP. IV.

THE SECURITIES IN DETAIL.

[* ]Second, viz. in allusion to the Tract on the Liberty of the Press, see vol. ii. p. 273.

[* ] “The Patriotic Society of the Friends of the Constitution, established at the Malta Coffee-house, has heard publicly read, from its tribune, the work which you have consecrated to the service of Spanish freedom: and, in proof of the gratitude with which the people in general, and this Society in particular, have received, and the estimation in which they hold this fruit of your illustrious labours, do themselves the honour of transmitting to you the title of honorary associate, saluting you with the feelings of the most cordial fraternity.

[* ] See The Book of Fallacies, in vol. ii. of this collection.

[* ] See farther, with reference to Ireland and the Volunteers, “Radicalism not dangerous,” vol. v. p. 599, et seq.

[† ] See the Whig Biography of Mr Hardy, the Tory Observations on Irish affairs by Lord Sheffield, and even the Tory History of Mr Adolphus. “Let those who sneer at the Volunteer Institution, point out the days,” (says Mr Hardy, Life of Lord Charlemont, p. 197,) “not merely in the Irish, but any history, when decorous measures kept more even pace with the best charities of life, when crime found less countenance, and law more reverence.”—“Private property,” (p. 198,) “private peace, were everywhere watched over by the volunteers with a filial and pious care.”

[* ] It being the author’s intimate conviction, deduced from the consideration, as well of the universal nature of man, as of the whole compages of particular facts, that on the one hand in Radicalism there is nothing dangerous to property or general security in any shape, on the other hand, in Despotism there is that which is everlastingly and most seriously dangerous to itself, he had made considerable advance in both researches, when stopt for the present at least, by other calls of a still more urgent nature. To see both topics in other and abler hands would afford him the sincerest pleasure.

[* ] In so far as regards severity of excess, its power in striking the law with impotence, stands in the eyes of all, and by the acknowledgment of all, exemplified in England, and more particularly at this time. Applied to forgery, the mere name of punishment,—the punishment of death,—has given increase to the number of forgeries.

[* ] On the subject of non-re-eligibility, the author will be found to have modified his views when he came to express them more definitively in the Constitutional Code.—See Book ii. Ch. vi. Sect. 25, (vol. ix. p. 172.). The grounds on which he chiefly founded his plan of exceptions to re-eligibility are, that a supply of competent and experienced persons may by means of it be kept in existence to afford the electors a free choice: and the arguments employed are not contradictory to those given above.—Ed.

[* ]Translation.

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.

[* ] See above, p. 490, where in the advertisement of the first edition other positions are declared to be substituted for all after the 4th.—Ed.

[* ] See vol. ii. p. 275.

[† ] See vol. iii. p. 85.

[* ] See the Constitutional Code, in this collection.—Ed.

[* ] See vol. iv. p. 554.

[* ] In the original letter, this passage which is in brackets, was omitted.

[* ] See vol. iv., p. 563-4.

[* ] To these words, meant all of them to designate so many species of the genus offence,—to these words, to give the equivalent in English words, is not possible. The intention of them seems to be, to designate three degrees of criminality: in general, the highest standing first. But this distinction has nothing to do with the nature of the offence: it takes that offence for the greatest, to which it has been the pleasure of the despot to attach the greatest punishment. This was the distinction established by Napoleon. In the climax established in his penal Code, you have contravention, delit, crime. Of this order, that which is here in view in your proposed Spanish Code seems to be the reverse. By the word culpas, I was led to suspect the distinction to have been borrowed from the Roman law. But, though the ideas seem so to be in both instances, in one of them the word is not. The word culpas corresponds indeed to the Roman culpa: but the word delitos does not correspond to the Roman dolus: which word—(a word that, considering its meaning in the ordinary language, namely deceit, was miserably ill-chosen by the lawyer tribe) so far as in their language it means anything, means criminal consciousness, their culpa meaning temerity pure from criminal consciousness: a distinction piteously ill-adapted to the denoting of different classes of misdeeds, it being applicable alike to all classes. In gentlemen’s proposed Code, the first chapter, consisting of one article, has for its title, De los delitos y culpas: neither in the title, nor in the body of the article, is there any such word as faltas: Of delito a definition is given, whereby the conception, so far as discernible, appears to correspond with that of criminal consciousness: and in like manner culpa with temerity. To these definitions, such as they are, no reference is made either in the articles here in question, namely, 185, 186, 187, 188, or in any other of the articles in which the words are employed:—words to which meanings are attributed, so different from any that any man can have found attached to them in ordinary discourse. In relation to the first article, the supposition thus proceeded upon, is—that every man carries it at all times in his head. In the instance of the five honourable draughtsmen themselves, or any one of them, can it, Sir, have been a true one?

In articles 189, 190, being the remaining ones of this chapter, I find not only the word faltas dropt, but also the word culpas. Was this by design, or by inadvertence?

[* ] See the Constitutional Code, in vol. ix. of this collection.—Ed.

[* ] See in this collection, vol. i. p. 164.

[* ] Though written at the time, the paragraphs between this and the bracket in p. 543 were not inserted in the Letters as sent to the Conde de Toreno.

[* ] The celebrated dispute as to Quietism.—Ed.

[* ] This satisfaction I was not destined to receive.

[* ] This doubt was a misconception of mine: the Count’s Spanish Letter acknowledges three.

[* ] Note, that in so far as all future evil is out of the question, the loss to sufferers being supposed the same, the evil produced by depredation is less than that produced by barren vexation, by destruction and otherwise; for in the case of depredation, though the enjoyment produced is less than the suffering, still to set against the suffering, there is the enjoyment.

But, when the future is taken into the account, the future, pregnant with the danger and the alarm—then it is that the evil from depredation may be seen to be greater than that from barren vexation: the inducement that excites men to the productive injury, being so much more extensive and constant, as well as commonly stronger in its operation, than that which excites them to the barren one.

[† ] The analysis which immediately follows, bears, in the original MSS., a date two months apart from the more general analysis given above; and perhaps the author would not himself have promulgated them in juxtaposition, without some explanatory remarks as to the different arrangement adopted in the two cases. It will be remarked that neither of them follows the exact order adopted in giving the securities in detail, but they both go over the same ground.—Ed.

[‡ ] Against vexation in these three shapes provision is of course already made in the existing system of law, whatever it may be—and the vexatious act being made punishable, secrecy is of course an accompaniment endeavoured to be given to it. But when hands by which the injury is inflicted are of the number of those which are armed with power, that power extends to the giving to the whole operation a degree of secrecy beyond any which could be given to it by ordinary and powerless hands: and for the maintenance of secrecy, even where power is irresistible, the avoidance of odium affords commonly an adequate inducement. By the arrangements proposed under these heads, secrecy will be found combated by instruments of elucidation of which none are everywhere in use, and of which some are not anywhere as yet in use.

[§ ] If exercised by the sovereign himself, the nature of the case admits not of a remedy. But, if exercised by this or that functionary subordinate to him, a not impossible event is that this or that other functionary equally subordinate to him,—for example, a judicial functionary or set of functionaries, shall hold themselves warranted—on the supposition, that being unjust, the sovereign has no participation in it,—in declaring this supposition, and proceeding upon it accordingly: that is to say, unless and until compelled by irresistable means to know, that the sovereign himself is the person, or of the number of the persons, from whose will the vexation has emanated.

[∥ ] This article is necessary to complete the description of depredations; the subject-matter of wealth is composed either of things or of the services performed by persons.

[¶ ] To this head belong all measures of suppression or restraint, applied to public discussion, or to the use of the pen or the press, on the subject of political measures and men, or to communication on those subjects in the way of epistolary correspondence or personal intercourse by persons in any numbers.

[* ] To this head belong all measures of suppression or restraint applied to the practice of openly carrying arms offensive and defensive: or that of being trained in the use of them in conjunction with other men in any numbers.

Say openly: for of arms secretly worn, the only purpose is individual assassination. It is not by daggers that the defensive force of a people against misrule can be augmented. For defence against malefactors no use can there be in any such concealment. As to the case of a whole people, kept in an oppressed state by an irresistible military force foreign or domestic, it is here noticed, but this is not a place for the consideration of it.

[† ] To this head belongs what is sometimes designated by the inadequate expression of seizure of papers. This mode of oppression has for its subject such letters, memorandums, and other visible and tangible instruments of discourse, by the communication of which, to persons other than those for whose eyes they were intended, vexation in almost any shape and to any amount, in any one of an infinitely diversifiable variety of ways, is liable to be produced. So far as the only effect as well as object of the invasion is the furnishing evidence of a misdeed committed or meditated, the vexation, whatsoever might be the shape or the amount of it, could not with propriety be spoken of, by the appellation of oppression: nor yet where, as between individual and individual, of the portion of visibly expressed discourse thus dealt with, no other use is made, other than the causing it to be subjected to inspection for a judicial purpose, in the character or for the discovery of evidence: of evidence tending to give validity or invalidity to this or that claim of right.

But by vexation, committed in this shape by public functionaries without control, oppression to an indefinite amount is capable of being produced. On the occasion or on pretence of a search for evidence of a misdeed in this or that shape committed or not committed, writings of all sorts and in any numbers might be destroyed, damaged, carried off, or inspected: inspected and the contents divulgated. Commercial credit might be ruined, enmities excited, peace and reputation of families destroyed, and so forth. On pretence of search for evidence, alleged to be in the possession of the person in question, papers or other objects not found in his possession might by the authors of a pretended search be inserted among such as were found in it: the friendly deceit practised by Joseph upon his brethren might in this way be practised for a hostile and homicidal purpose.

[* ] Not excluded from this judicatory are persons of the female sex as such. From the exercise of a share in the constitutive power, by means of votes in the election of the possessors of the supreme operative power, they, the greater half of the species, stand as yet excluded by tyranny and prejudice. But from a share in the power of the judicatory of judicatories, not even the united force of tyranny and prejudice, ever have altogether excluded them anywhere, much less will henceforward ever exclude them.

[* ] In the case of a claim, conception not being quite so simple, it may for the purpose of the present exemplification be put aside.

[* ] For No. 4 and 5 see below, as to the points in which the unofficial is inferior to the official judicatory.

[* ] The sum realized by the stamp-duty on newspapers, for the financial year 1840, was £238,394, the duty having been reduced in 1836, from 4d. (with a discount of 25 per cent.) to Id.—Ed.

[* ] In England, when concession was made by King John, and afterwards by his son Henry the Third, copies were ordered to be deposited in certain monasteries: also public maledictions to be pronounced at certain times against all infractors. These means of publicity and impressiveness proved lamentably insufficient, as the numerous recorded infractions and renewals of these charters (such was the name given to the written instruments) abundantly demonstrate. But the means of publicity and permanence which then had place in England, were as nothing compared with those which at present have place at Tripoli: not to speak of the ulterior ones which it might be made to have. Besides that there was no printing press, the arts of reading and writing were not to the amount of a tenth or twentieth part, or more, so extensively in use.

[* ] See farther on this subject p. 571, supra.

[† ] From the memoranda and correspondence of the author in connexion with this subject, it would appear that part of his project was the education of young natives of Tripoli, in Britain; but he does not appear to have put this part of his recommendation definitively into form.—Ed.

[* ] What follows was written, as appears from the dates on the MSS., some months previously to the above considerations as to newspapers: and the circumstance that the subjects though intimately connected with each other were separately treated at different periods, will account for any want of connexion that may appear in the arrangement.—Ed.