Front Page Titles (by Subject) TRACT, No. III.: Letter to the Portuguese Nation, on antiquated Constitutions; on the Spanish Constitution considered as a whole, and on certain defects observable in it; in particular, the immutability-enacting, or infallibility-assuming, the non-re-elig - 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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TRACT, No. III.: Letter to the Portuguese Nation, on antiquated Constitutions; on the Spanish Constitution considered as a whole, and on certain defects observable in it; in particular, the immutability-enacting, or infallibility-assuming, the non-re-elig - 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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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.”
LETTERS TO COUNT TORENO, ON THE PROPOSED PENAL CODE, DELIVERED IN BY THE LEGISLATION COMMITTEE OF THE SPANISH CORTES, APRIL 25TH, 1821.
WRITTEN, AT THE COUNT’S REQUEST,
FIRST PUBLISHED IN 1822.
[* ] 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.