Front Page Titles (by Subject) THREE TRACTS RELATIVE TO SPANISH AND PORTUGUESE AFFAIRS; WITH A CONTINUAL EYE TO ENGLISH ONES. - The Works of Jeremy Bentham, vol. 8 (Chrestomathia, Essays on Logic and Grammar, Tracts on Poor Laws, Tracts on Spanish Affairs)
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THREE TRACTS RELATIVE TO SPANISH AND PORTUGUESE AFFAIRS; WITH A CONTINUAL EYE TO ENGLISH ONES. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 8 (Chrestomathia, Essays on Logic and Grammar, Tracts on Poor Laws, Tracts on Spanish Affairs) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). In 11 vols. Volume 8.
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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.
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.
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.
*∗* 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.”
[* ]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.
“Madrid, 18th Sept. 1820. “El Ciudadano Presidente Patricio Moore.Andres Rogo del Gamya, Secretario. Manuel Barcelo, Secretario. Ciudadano Jeremias Bentham.”
[* ] 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.