Front Page Titles (by Subject) LETTER I. - 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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LETTER I. - 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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Occasion.—Inadequate this Examination.—A pre-Established Standard wanting.—A Standard announced.—This Correspondence must be public—Why.
Queen’s Square Place,Westminster,Sept. 11, 1821.
On the 9th last, I received, in due course, through the House of our friend, the letter with which you have been pleased to honour me. On the 22d last, and not before, I received the work which it announced (“Proyecto de Codigo Penal,”) and to which it bears reference. So far as regards myself, that letter of yours will assuredly not be lost: nor yet to the world at large, so far as there is any truth in the supposition, that any beneficial effect in any shape will be produced by any thing that comes from my pen: for, among the testimonials which I may ere long have occasion to produce, it will shine with its due lustre.
When, in speaking of the effects producible by the treasures you have put in my hands, I have said thus much, I have, I fear, said little less than all which there is to be said; for, by any particular remarks which I could find occasion to make on the work in question, I see, I must confess, but very little probability of my being able to render any service worth your notice. No such remarks could present any chance of being of use, otherwise than by means of a reference made by them, expressly or tacitly, to some standard of right and wrong, considered as already established. Of no attempt towards the establishment of any such standard do I know, other than that which is contained in my own works: which standard I am about to endeavour at the completion of, and, should life last me a year or two longer, not altogether without hope of success. This standard I term the Rationale of the Code: and, in the Code which I am about to begin to draw up, the matter of it will be interwoven throughout with that of the several proposed arrangements, which it is employed to explain, justify, and show the grounds of. Here then, apt or unapt, will be a standard, by which, if it be thought worth while, the work in question may in any part be judged of: but, without it, were I to take the proposed Code in hand, with a view to the making remarks on particular parts of it, I should never know where or how either to begin or end.
By the whole tenor of your letter, as well as the declared and only possible object of it, I am not only authorized but compelled to believe, that the more extensive any communication made by me on the subject may be, the more acceptable it will be to you; for, the subject to which you are pleased to invite my attention is no less than the whole of the projected Penal Code, not merely this or that one of the particular arrangements contained in it. Now, then as to this matter, the case stands thus—Exactly what you express your wishes to see me do, it is not in my power to do, with any the least prospect of good effect: in process of time, however, I am not only willing and desirous, but actually endeavouring to do that and a great deal more. In the following positions, which form the heads or titles of so many sections, the sort of work I am alluding to is expressed more correctly as well as concisely than I could in any other way express it.
Positions, designed to accompany the offer of an all-comprehensive and rationalized Code. They form the titles of so many sections, the matter of which gives the proofs.
Section 1. In every political state, the greatest happiness of the greatest number requires, that it be provided with an all-comprehensive body of law.
2. The greatest happiness of the greatest number requires, that such body of law be throughout accompanied by its rationale: i. e. with an indication of the reasons on which the several arrangements contained in it are grounded, and by which they are elucidated and justified.
3. The greatest happiness of the greatest number requires, that these reasons be such throughout as shall show the conduciveness of those several arrangements to the all-comprehensive and only defensible end thus expressed.
4. The greatest happiness of the greatest number requires, that in this rationale, the several reasons or sets of reasons be contiguously attached, to the several arrangements to which they respectively apply.
* 5. The greatest happiness of the greatest number requires, that, of this all-comprehensive body of law, with its rationale, the whole ground-work or first draught be, if possible, the work of a single hand.
6. The greatest happiness of the greatest number requires, that, being the work of a single hand, the work in question be known to be so.
7. The greatest happiness of the greatest number requires, that the work in question being the work of a single hand, and known to be so, it be known whose that hand is.
8. The greatest happiness of the greatest number requires, that, aptitude in other respects not being inferior, the hand, of which the discourse in question is the work, be that of a foreigner, rather than that of a native.
9. The greatest happiness of the greatest number requires, that the work be, if possible, performed in the ordinary sense of the word gratuitously: in such sort, that no determinate factitious reward, in any shape, at the hand of any person, shall be either received or expected for it; but that, under that restriction, the number of rival works be the greatest obtainable.
10. On the part of any proposed draughtsman, willingness, or unwillingness to interweave in his draught a rationale, as above, is the most conclusive test, and that an indispensable one, of appropriate aptitude in relation to it.
11. On the part of a ruler, willingness, or unwillingness to see established an all-comprehensive Code with its rationale, as above, is among the most conclusive tests of appropriate aptitude, with reference to such his situation.
Of these positions the design is, to form the ground of an offer to compose the sort of work therein described; viz. the first draught of an all-comprehensive and rationalized Code for whatever nation or nations it may find able and willing to give acceptance to it. This paper is very nearly finished; and, when revised, endeavours will be used to get a copy or copies of it conveyed to Madrid. If in print, as I believe it must be, copies shall be endeavoured to be sent to you, in any number you may be pleased to command, and through any channel or channels you may be pleased to indicate. Copies will likewise be sent to Portugal: where, consistently with the disposition already manifested, acceptance can scarcely be refused. As to any other countries to which it may happen to them to be conveyed, the nature of the case renders any express mention of them unnecessary.
On this occasion, an idea I must beg of you to bear in mind is—that, in whatever I write with a view to Spanish law as above, the greatest happiness of the greatest number, as per articles 4 and 13 of the Constitution, is the object I have in view, and employ my labours, such as they are, in the endeavour to give increase to: and that accordingly, subordinate to that end must necessarily be, whatever I can do in compliance with the wishes of this or that individual, how exalted soever his situation and reputation may be.
Sometime ago, I received from Mr Antonio Arguelles the honour of an invitation similar to this of yours. It had, however a determinate and comparatively limited subject-matter,—the use proper to be made of the institution of a Jury. That gentleman had already received copies of all such of my works as I had been able to collect. He had even, without my knowledge, from the spontaneous and self-sacrificing generosity of a friend of mine, received duplicates of a considerable number of them. Not long after my receipt of his letter, a work of mine on a part of that subject, viz. Special Juries, a work, which, after having been printed, had for ten years been suppressed by the fears of a bookseller, was obtained of that bookseller by another, and published. The Spanish mission took charge of a copy for Mr Arguelles: no letter accompanied it. I have not heard whether it has been received. Taken up out of its proper order, anything that I could find to say on that or any other particular subject, without reference to the tout-ensemble, could not be anything like satisfactory to my own mind: it could not contain anything that I should choose to abide by. I have, however, at different times dictated to an amanuensis a few premature and undigested thoughts, which I may perhaps endeavour to forward to him: but whether in manuscript or print I cannot yet determine: at any rate, sooner or later, they are intended to appear in print.
On the occasion of an intercourse such as this, public virtue and the greatest happiness of the greatest number, stand exposed to a danger of which, Sir, you are perhaps not aware. The functionary consulting has points of his own to compass. For support, he looks out for this or that individual, whose reputation with reference to the subject is more or less established. He applies to him for his opinions—on the whole subject-matter, or on particular parts or points in it. The opinions come. What is the consequence? In so far as they suit his views, he makes use of them: in so far as the name of the author appears needful to give support to the opinions, mention is made of it: in so far as this is not the case, the matter is sunk or appears under another name.
A short supposition will serve to exemplify my conception of the effect. I say—Let the Code pass: but the duration given to it will be, I hope, but temporary. You say—Let the Code pass: even Bentham, after all he has said against it, says so. Supposing this your wish, what should hinder you? who could even blame you? All this you see is but supposition: but it will serve to convey to you my conception of the mischief in question, just as well as if it were fact; as in part indeed you will find it to be.
So much for the functionary consulting. Now as to the individual consulted. Flattered with the notice taken of him, he gives opinions, and to whatever extent suits his purposes. But whether for the sake of the public or no, at any rate for the sake of his own reputation, and the pleasure of seeing exercise given to his power, his wish is, to see effect given to the thoughts he communicates. In respect of these his wishes, he feels himself at the same time in a state of entire dependence on the individual by whom he has been consulted. To render his communications as acceptable as may be to this patron of his, is therefore an object he must not lose sight of. How is that to be done? By rendering his suggestions as favourable as may be to the patron’s supposed wishes, that is, to his supposed particular interests and prepossessions. If no opinion contrary to his own is delivered in this view, at any rate he forbears to give any opinion which in his expectation would give offence. To what good end indeed should he? Nothing that the functionary consulting finds unpleasant to him, can the individual thus consulted entertain any reasonable expectation of seeing employed by him.
Here then is an individual, native or foreigner no matter, whose thoughts on the subject in question, on the supposition of his competence, the statesman in office is desirous of seeing. Is it for his own sake? His desire will be to see no more of them than what may suit his particular purposes, and these he will keep to himself, or make use of in such proportion and manner as may be best adapted to that purpose. Is it for the sake of the public? His desire will be to see the whole without limitation, to see it displayed to the best advantage, and to see the whole public in possession of it.
Proceeding upon the supposition, that my notions on the subject of Legislation have been fortunate enough to obtain a place in your re-regard, all, therefore that I can do consistently with the principles above submitted to you, all that I can do (I mean except the trifle which I shall mention presently, and which I cannot do but in the particular way which I shall also mention, and I have accordingly taken measures for it) is to beg your acceptance of a copy of three pamphlets, in which I have at different times used my endeavours, but as yet for the most part with very little success, to submit to the Spanish nation my ideas on several points of cardinal importance.
They are as follows:
1. The tract on the once proposed chamber of the privileged orders in the Cortes. (This stands first in one of those three pamphlets.) A translation, for which I was indebted to the pen of Mr Mora, was read, if I may believe the newspapers, in the Cortes: it was even fortunate enough to be followed by unequivocal tokens of approbation on the part of that august assembly, if I may believe the information received through various channels, public and private, unconfirmed as it is by any communication from the assembly itself.
2. Observations on Judge Advocate Hermosa’s panegyric on Judicial delays, &c. (It stands second in the above-mentioned pamphlet.) A copy was, with a view to publication, sent to Mr Mora, and in process of time, on presumption of its failure, another copy was sent by our friend to a friend of his at Cadiz. I am not certain whether the receipt of the first copy has ever been acknowledged, and I am certain that no acknowledgment of the receipt of the second copy has been received here.
3. The letter to the Portuguese Nation, chiefly turning on some supposed imperfections in the Spanish Constitutional Code. (It stands 3rd and last in the above-mentioned pamphlet.) This found I know not what translator and publisher at Oporto: it would therefore be rather extraordinary, if some copies of the translation have not long before this found their way to Madrid.
4. The pamphlet on the Liberty of the Press and Public Discussion.* Of this, two copies, the second on the presumption of the failure of the first, were sent to Madrid, addressed also to Mr Mora, and in a letter written by that gentleman, (I believe it was during the time of his being in confinement,) he mentions his having gone about half way in a translation of it.
5. The remaining pamphlet of the three, intituled Observations on the restrictive and prohibitory commercial system, especially with reference to the Decree of the Spanish Cortes of July 1820,† was not, like the above-mentioned ones, sent to Spain, or anywhere else, in manuscript. At a time considerably posterior to the transmission of the latest of the above-mentioned tracts, by the spontaneous care of my friend Mr Bowring, whose name stands on the title page, it was committed in the first instance with additions from him, to the English press: and, if I am not much disappointed, a copy must ere now have reached your hands. (So likewise of the two others.) Of this, you will, ere long, I have reason to think, see a Spanish translation in print, if the Spanish press be open to it.
In addition to the above-mentioned little assemblages of my ideas, covering as they do but a small, howsoever important, portion of the field of penal legislation,—you have all along, through that language of which you are so perfect a master, had, in common with that part of the Spanish public which is acquainted with that language, access to those assemblages of my ideas, by which in a certain way the whole of that field is covered. In detail, it is true, not much: but in principle, in a manner more or less particular, indication of not much less than everything that comes within the field of the officially proposed Penal Code, is there given. If the opinion, expressed in terms so flattering to me, continues to be entertained, what I have just indicated will afford an ample stock of matter, by means of which that opinion may manifest itself in practice.
All this while, my wish is—to pay what obedience is in my power, to commands so honourable to me, and at the same time without exposing either of us to any such imputations as those above-described. For this purpose, should I on the present occasion find any use in submitting to you (principally, I must confess, with a view to my above-mentioned offer) a few scattered thoughts,—an effectual, and the only effectual course that the nature of the case admits of, and which I shall accordingly take, is—the giving to our correspondence whatever publicity it is susceptible of. In the liberty I thus venture to take, you will not, I am confident, see any cause of complaint on your part. On no anterior occasion, either in person or in writing, has any intercourse had place between us. In this letter of yours, no desire of secrecy is expressed: no reason for ascribing to you any such desire on my part do I see in it. On any future occasion, should it happen to me to receive the honour of any further communication from you, accompanied with an intimation, that in the whole or any part of it secrecy is desired, your commands to any such effect shall most punctually be observed.
On running over the remarks, which a few irregular dips into the document in question, made in the double view already mentioned, have already suggested, I find the aggregate quantity too bulky by a great deal to be forced into the compass of the present letter. With as much despatch as weak eyes, the labour of which, in the revision of the work of a copyist, is indispensable, will admit,—I propose, however, to transmit the substance of them in a series of future letters, of the respective contents of which some idea may, in how imperfect soever a manner, be conveyed by the following titles.—[Here follow the titles of the succeeding Letters.]
[* ] See above, p. 490, where in the advertisement of the first edition other positions are declared to be substituted for all after the 4th.—Ed.
[* ] See vol. ii. p. 275.
[† ] See vol. iii. p. 85.