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LETTER III. - 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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On the course taken for preventing, by means of Punishment, eo nomine, all effectual Indication of Imperfections in the existing political System, the proposed Penal Code included.
The efficient power of the matter of reward is great, but its applicability is limited: it is limited by the limits which the nature of things has set to the quantity of the matter of good to which this destination can be given, and by the number of the persons to whom it is possible to flatter themselves with the hope of a share in it. In the present instance, their number falls short—very short—of the whole number, of those on whose part, for the attainment of the end, acquiescence at least has been regarded as necessary. To produce acquiescence at the hands of the vast majority, no instrument of less force and applicability than punishment was looked upon as sufficient.
Follow a few samples of the use made of it.
Of the acts marked out for punishment, one is—that which consists in the endeavour to make an alteration of any kind in the political constitution of the Spanish Monarchy. For this offence, the punishment appointed is death. The article, by which the anxiety to secure obsequiousness is thus expressed, is the very first in the whole Code: and, as in this, as in any other work, the commencement is that part to which the attention of the workman will naturally have been most closely applied, it may, at least without intentional injustice, be taken for a sort of sample of the whole. Whatsoever may have been the design,—here already, so far as regards effect and tendency, two intimately connected objects may be stated as being in a certain way provided for: namely, the securing order in the legitimate style, and the keeping at a distance two troublesome sets of men—impartial critics, and impertinent and presumptuous competitors.
Indication of alleged imperfections, indication of arrangements calculated to effect the removal of those same imperfections, indications of other Codes in and by which the removal or exclusion of those same imperfections has been effected—of indications of any one of these three sorts separately, at any rate of any two or of all three conjunctly, if the design be not to produce alteration in the system of which they are the subject, I know not what design they can have.
In the midst of all the care thus taken of the liberty of the press, an apprehension appears to have presented itself: an apprehension, of a certain overweening scrupulosity, to say no worse, on the part of this or that judge, the effect of which might be—to exempt the “traitor” (for such is the name given to the offender) from the lot so justly merited. For the tranquillizing, as it should seem, any such apprehension, (for in whatever I say in regard to any of the designs that seem to be indicated in and by this Code, I speak with unfeigned diffidence,) for greater security at any rate,—by article 213, provision is made of a more lenient visitation: six years’ seclusion in a fortress. Nothing more than this, except that the situation of the fortress may be, and is to be, in one of the islands: the quantum of the suffering being accordingly susceptible of such undescribed and undescribable additions, as the case may be found to require, without any of those unsuitable alleviations, which the eye of so troublesome a public as the public of Madrid, might be disposed to look out for, if access were possible to it.
True it is that, to the sort of offence which seems to have been in view in both cases, the wording given in this latter case is (by article 213) not exactly the same as that given in the former case (by article 191.) In that former case, a characteristic word is alterar, to alter: in this latter case, guardarse, to be kept: but that, by this change in the language, any change is meant to be made in the idea conveyed, is more than I can see.
Not that, in this case any more than in the other, I can take upon me to say, but that, in the view taken of the matter by this or that person, in the situation of legislator, or in the situation of judge, a milder might eventually, in preference to the more efficient interpretation, be the proper one. But here comes in the misfortune, if not the policy: two periods are here in question: the period anterior, and the period posterior, to the sanctionment of the law. To the anterior period lest legislator, or constituents should be more or less alarmed, the milder interpretation is, without doubt or difficulty, the best suited. Comes the posterior period, and then, according as the decision falls to the lot of this or that judge, and according as the side, in support of which the obnoxious act has been done, is the wrong side or the right side, the interpretation put upon the words is the milder of the two, or the more efficient.
When confronted with some of the other articles, by which tongues and pens are endeavoured to be tied, this article 213, with the word guardarse in it, throws me into no small perplexity. By this article, every Spaniard, who, by word of mouth or in writing, shall endeavour to produce any such persuasion (tratore de persuadir) as that, in Spain or in any of her provinces, the political Constitution of the monarchy, in the whole or in part, ought not to be kept (guardarse,) is to be chastised (castigado) as a subversor of that same Constitution in the first degree, (whatever be meant by the first degree, for the explanation of which no reference do I see,) and suffer imprisonment for six years: which, if it be in the Peninsula that he has been condemned, is to be in some fortress in one of the adjacent islands, as above: not to speak of et cœteras. But, by article 191 as above, if a man do but conspire to subvert this same Constitution, (trastornar,) he is to suffer death: much more, surely, by parity of reason, must he, on the assumption made by that same article, (213,) namely, that he has actually been a subversor of it, which being admitted, he, whether the fact be so or not, is to be deemed and taken to have subverted it. Under the two articles taken together, what then is to be done with him? Under article 213, he is in the first place to be put to death,—put to death in the first degree, or put to death as if he had been (though he has not been) a subvertor of the Constitution in the first degree: whatever is meant by the first degree, which is more than I can take upon me to divine: and, when the breath is out of his body, then it is that he is to be shut up in the fortress, and so forth, as above.
Now, Sir, suppose prosecution under these two articles, one or both of them. Figure to yourself advocates pleading, and think what a widow’s cruise of learned arguments! learned arguments upon the proper meaning of the two momentous words trastornar and subvertir, whence subversor: learned arguments, for the purpose of settling whether the two modes of action, thus differently designated, are different or the same.
But two articles after that, comes another, (Art. 215,) according to which every Spaniard, who, by word of mouth or by writing, propagates any other maxim or doctrine, which has a direct tendency to destroy or subvert (destruir ó trastornar) that same Constitution, is to suffer imprisonment: imprisonment, from two to six years, besides loss of employment, and so forth; but nothing is here said of fortresses or adjacent isles. As to other, it means (as it should seem, though this is not said) other than what is specified in the last preceding article (214.) More learning, poured forth upon the question; wherein consists the difference,—the difference between the endeavouring to persuade men that the Constitution oughtnot to be kept, and the propagating a maxim or doctrine tending to destroy or subvert that same Constitution? Supposing a difference, the latter of the two offences seems, to a plain understanding, to have in it the larger dose of ill-will, and, if there be any mischief in the case, of mischief. For my own part, I have had the misfortune to conceive, and the temerity to declare in print, an opinion that in this same Constitution there is this and that article, that had better not be kept than kept: but, notwithstanding all the imperfections I think I see in this same Constitution, I set much too high a value on it to use my endeavours, or so much as to harbour a wish, to see any such fate as can be aptly expressed by the words destruction or subversion, befall any part that to me seems good in it.
Not more than three articles after this, comes article 218, which says, “Whatever person,” (and this is not confined to Spaniards) “whatever person, by word of mouth or by writing, shall provoke any one to the non-observance of the Constitution, with satires or invectives,” shall suffer—what? death, and then imprisonment, as above? Oh, no! in the course of half a page, all such severity seems already to have been forgotten. What he is to do now, is to pay a fine of from ten to fifty dollars (duros,) or else suffer arrest (arresto) for from fifteen days to four months; and, if he be a public functionary, the punishment is in both cases to be doubled.
To so plain a man as myself, the endeavouring to provoke men to a purposed non-observance (inobservancia) of the Constitution—under which words I should suppose that any open and avowed disobedience to this or that one of its ordinances would be regarded as comprehended,—seems to have rather more of mischief in it than the using a discourse, the object of which were simply to produce an opinion, that it ought not to be kept; under which words, it would seem to me that any discourse might be comprehended, having for its object to show that it would be for the advantage of the nation, that by the competent authority, this or that article in it should be repealed or altered. If so, I do not see, how, in any view commonly taken of the matter,—how it is, that by the employing on this occasion satires or invectives, (whatever be meant by satires or invectives, words loose enough to call forth learning in abundance,) how it is, that by the employing of poisoned weapons in either of these shapes, the malignity or the mischievousness of the offence, if it has any should be diminished.
It seems to be by some principle, though from a principle which I am altogether unable to reach so much as by conjecture, that the comparative encouragement thus given to satires and invectives, was prescribed. In Article 327, compared with that which stands next after it, I find another proof of the influence of this same principle, whatever it be. By Article 327, the offence described is that of him, who “by word of mouth shall excite or provoke directly (directamente) to disobedience to the Government (Gobierno) or to any public authority.” This is one branch of the offence: then comes a second, “or to resist or impede the execution of any law, or other act, of those” (acto de los: quere, whether those acts or those persons?) “expressed (espresados) in Article 325.” So much for the description of the offence. Thereupon comes the description of the punishment: “reclusion or prison (prision,) for from six to eighteen months, if the excitation or provocation has not taken effect: in the opposite case, (so I understand pero en este caso,) from one year to four years.”
Thus much for Article 327, in which nothing is said of satires or invectives. Then comes Article 328. Here the description of the offence agrees, as to part of it, with the description given, in the last preceding article, of the first branch of the offence created by it. He who “by word of mouth or by writing” (as before) “shall provoke” (the word excite is now omitted) “with satires or invectives to disobedience to any law, or to the Gobierno, or other public authority.” So much for the offence. Now for the punishment. Instead of reclusion or prision for from six to eighteen months, arrest for from fifteen days to two months at the utmost, with an alternative of a mulct of 180 dollars, with loss of employment, &c., if the offender be a public functionary, &c.; the wording and pointing being so ambiguous, as to leave it at the option of the judge to let off the offender with the fine, in case of his not being a public functionary, &c.
Thus then you see, Sir, if, in the endeavours used by him to provoke men to the disobedience in question, a man abstains from all satires and invectives, he may suffer as much as eighteen months of reclusion or imprisonment, nor can he suffer less than six months; but if, on this same occasion, he indulges himself in satires and invectives, in this case his arrest cannot last longer than two months, and may be limited to fifteen days.
Note, that as to what is meant by the laws or other acts, said as above in Article 327, to be “expressed in Article 325,” you are sent for it of course to Art. 325: when you have got there, you are sent to Article 290; and when you are at 290, you find yourself in a labyrinth, the clue to which I should scarce hope to be able to find, if my life depended on it; but at the end of it what I do find is four years of reclusion. Next to this article, and for the declared purpose of an explanation of it, comes Article 291: for the meaning of which you are further sent to four articles more, all in the lump, namely, 326, 341, 353, and 356: when you are at 353, you are sent to 346, and to 344; when you are at 346, you are sent to the whole cluster of articles contained in Title iii. of Part ii.; and to another cluster, contained in Chapter iii. of Title vi. of that same Part ii.
In the entanglement, produced by the indirect mode of designation above exemplified, may be seen a sort of instrument, of which, considered as applied to the field of legislation, the gentlemen in question, so far as recollection serves me, are the inventors. In some instances, the reference is in the simple form: from one article you are simply sent on to another: and here you suffer nothing worse than useless labour. But, in other instances, and these most unhappily numerous, words significative of relation are employed,—equally (igualmente), in the same manner. Whatsoever may be the decoration added by this contrivance, not small is the price paid for it: paid for it by the subject citizen, in the shape of serious inconvenience suffered. By it, is thus imposed upon the reader, the task of comparing the article which is clearly to the purpose, with another which may be to the purpose, or not, as it may happen; and in either case the task of establishing the fact of the identity of signification, or, in case of difference, the nature and extent of the difference: neither in the memory nor in the conception, can an article be lodged, without being coupled with another, or others, which do not belong to it. Thus, a burthen, which, taken at its minimum, is but too heavy, receives from this artificial contrivance an indefinite increase: and, as the result may, in each instance, be a degree of perplexity and uncertainty, to which no limits can be assigned, as little can any limits short of death be assigned to the mischief, to which, in case of an interpretation deemed erroneous by the judge, the citizen may be subjected: for, such may be the mischief, in a case in which death is the appointed punishment; which case, as above, is that provided for by Art. 191—the very first of the offence-creating articles in the Code. The citizen, when thus perplexed, if rich enough to take the chance for saving himself, repairs to a lawyer: which lawyer perhaps finds himself equally perplexed. But, for the suffering of the perplexed lawyer, compensation to his own satisfaction, is made: while by his unhappy client, in addition to his perplexity, comes, instead of compensation, the burthen of affording the compensation to the professional man, by whom the perplexity has or has not been decreased, and by whom security against the mischief has or has not been afforded. (Asimismo) as well (tambien) and so forth: and here, to the simple labour are added, not unfrequently, perplexity and uncertainty to an indefinite degree.
Such is the entanglement that has place, when there are but two articles thus unnecessarily and incommodiously connected; when, with the article with which you have to do, no more than one other with which you have nothing to do, is linked. What then must be the embarrassment, when, from the only one with which you have anything to do, you are sent on pain of not knowing what it means, to a second, with which you have nothing to do; from the second to a third; from the third to a cluster of others; from each of them perhaps to another or others? But, such is the frequency with which this mode of designation occurs in this same Code, that scarcely have I opened a page without finding instances of the employment given to it. Quite sufficient (one should have thought) are the difficulties inseparable from the subject, without its being clogged by any such useless and factitious instruments of uncertainty and embarrassment.
Having no example in anything that was ever written on the subject, nor any particular use that I can discover, this mode of expression presents itself to me as having something of a colloquial cast: as such, it operates in confirmation of the suspicion before intimated, that in the course of gentlemen’s studies, the fascinating art of rhetoric has obtained rather too much of their attention, at the expense of the repulsive art of logic.
Thus much, by the by, for a specimen of the use made of references. But, of the proposed Code there are certain parts, which, it should seem, gentlemen make sure of finding lodged in the memory of every individual, who stands exposed to the temptation of committing an offence in any shape. Of these parts, one is—that in which an enumeration is made of the several modes of punishment. Being able to read, and having time sufficient to dip into some parts of this composition, though not to read so much as perhaps a twentieth part of it, my good fortune had conducted me to page 10, in which that enumeration is commenced. I was thus preserved from an error into which I might have fallen otherwise. Seeing how far this composition was from any steady observance of that indispensably useful instrument of certainty in a law, ideis eisdem verba eadem, to the same ideas the same words, the words reclusion, prision, arresto, might have passed upon me, as meant to be designative of the same punishment. Turning, however, to Art. 29, I found that reclusion is one sort of punishment, the scene of it being a house of hard labour; prision, another; the scene of it a fortress: both of them ranged under the head of corporal punishments. Looking for arresto, I found it, to my no small surprise, at a distance from the other two, and under the head of punishments not corporal: and in explanation of this word, it was that I found, but in words of the loosest texture, intimation given of some further punishments, which were to be considered as attached to all punishments ranged under the head of corporal punishments. For the conveying of this intimation, the words civil effects are the words employed; and for showing what is to be understood by these civil effects, no reference do I see.
In my Code, every word, the signification of which is not beyond all danger of dispute settled by universal usage, receives a definition: and all words so defined, stand distinguished by one and the same particular type: and thus, by means of an alphabetical index, all ambiguity and obscurity may be cleared up in the shortest space of time. In the Code is thus contained a Law Dictionary; that dictionary a complete one, and having the same authority as the text, with every word of which it has been confronted.
Sir, what you have seen hitherto, is no more than a part of what I was led to by Art. 191, being the very first of all the articles in which any description is given of particular offences. When I have done with this same proposed Code, scarcely perhaps shall I have read one-twentieth part of it. To what end should I? No use would there be in my reading it, any further than as I write about it: and if my determination was to go through with it, and say all that it occurred to me to say of it, my life would assuredly be at an end, before my comments were at an end. Sir, you have already had before you that one specimen: before I have done, you may perhaps have before you a few others. What if the whole work should be found to be of a piece with these specimens of it?
“Oh! but this is not what we meant: we meant so and so.” This is what I figure to myself gentlemen saying, should it happen to you, Sir, to present to their view this or that passage, in which it might happen to them to suspect that a change might be made, not altogether to its disadvantage. “Gentlemen, only from what the Code itself says, not from what, either in private or even in public, you may, any of you, be pleased to say, your meaning was while penning it,—only from what, in the eyes of everybody, the Code itself says, to the exclusion of whatever may have been said of it by this or that individual, can the meaning of it, in any part of it, be understood.”
Sir, there is a very dry, dry indeed, but at the same time not unuseful branch of art and science, denominated Logic: upon it, where government is the field of operation,—upon it, as well as upon politics and morals,—hangs life and everything else that man holds dear to him. Upon it, depends the choice of words: of those words by which, according to the interpretation put upon them, man is destroyed or saved. If, in the instance of the gentlemen in question, this wearisome and unamusing art has been among the objects of their studies, the success of those studies has not, I fear, been quite so great as their constituents may, perhaps, see reason to wish it had been. Of all the several articles by which either particular delinquency is described, or particular punishment appointed, the very first (you see Sir,) is among those in which this laxity on the one part, so incompatible with security on the other, has been manifested. To inquire how far onwards a habit so unfortunate has extended its influence, belongs not to the present occasion, nor on any occasion, to any design of mine: to speak of it in the gross, in my view of the matter, it is a radical indisposition, having its root in the method which has been pursued, and not curable, but by another and very different one. Of this imperfection, if it be one, I may perhaps, have occasion, Sir, to submit to you, here and there, a few other indications.
Opposite stands a very brilliant and fascinating art, called Rhetoric, in which the preliminary discourse I have had such occasion to advert to, evidences no ordinary proficiency: if the time bestowed upon this instrument of fascination had been bestowed upon the instrument of sound instruction, the character of the proposed rule of action would naturally have been somewhat different, and as far as regards national peace, security, and contentment, would not (so it seems to me) have been the worse. If by Rhetoric men are sometimes saved from destruction, as well as sometimes consigned to it, it must be by logic, and in proportion as it is well applied, if they are secured against it.
In their preface, (page xii.,) Gentlemen state the manner in which the whole of their work was parcelled out amongst the five. If so it be that of that same work, the method is not altogether what might have been wished, of whatever imperfection there may be in it, one cause I am inclined to think might be found in this partition treaty. In the observations made in support of my Codification Offer, Section 7, (Draughtsman why single, &c.)* the disadvantages thought to be attached to every such plan of operation are brought to view.
Apropos of “doctrines or maxims.”
What if the doctrines or maxims, call them which you please, “the direct tendency of which is to destroy or subvert the political constitution of the monarchy”—what, if these doctrines or maxims, for the propagation of which every Spanish propagator is by article 215, to suffer imprisonment from two to six years, with et cæteras, should be found in the Constitution itself? In such a case is the punishment to receive an inexorable application? By its doctrines being to be found in that place, does it the less come under the description here given of the offence? For an example of a thus destructive or subversive doctrine or maxim, take the doctrines or maxims by which, in articles 4 and 13, the greatest happiness of the greatest number is stated as being the only proper end of government. For an example of the tendency of such a doctrine to destroy or subvert the political constitution of the monarchy, namely, by putting the office of monarch out of it, take the following consideration. By a statement which I have before me, taken in the years 1787, 1788, from Spanish sources, the expense of maintaining that one functionary was about one-fourth part of that of the whole expenditure of government: that is to say, the ordinary, avowed, settled, and officially stated expense, over and above whatever was extraordinary and unavowed, though not the less constantly repeated. At present I should not expect to find it quite so much: but, be it what it may, an inference presents itself, as one, the conclusiveness of which would not be materially varied by any denomination, which that portion of the public expenditure has experienced, or seems to be in any likelihood of experiencing. The giving any such application to any part of the public expense, how (may it not be asked?) is it conducive to the greatest happiness of the greatest number? Especially when the whole income is not sufficient for the effective protection of the people against the neighbouring pirates, not to speak of the insurgent privateers; or, of the expense of defending almost all Ultramaria against its inhabitants.
Of the office thus endowed, what is the specific beneficial effect produced in any shape? What effect more obvious or more indubitable, than the giving establishment to a set of men, who, partly by legal power, partly by force, partly by corruption, have it so completely in their power to weaken, and in time to destroy, the constitutive power given to the people?—to destroy it? Yes: and through the medium of the share possessed in the operative power by their representatives. Two authorities does this projected Code exhibit—two conflicting authorities, who the one of them with one portion of it in hand, the other with that which is next to it, will, if it be but sanctioned and carried into execution, be waging a war of extermination, till the one or the other of them is exterminated.
In the political constitution of the Anglo-American United States there is no such office: and, for this omission, in what respect is anybody the worse?
Of the arrangements thus proposed, for putting to death all persons, by whom any conjunct endeavours shall have been employed for remedying any imperfections in the Constitution, what was the object? To preserve the liberty of the nation, if the gentlemen in question are to be believed. Contrary to the liberty of the nation, according to them, is any such endeavour: for, at the very head of the offences against the liberty of the nation, do I see it placed—Tit. 1. Cap. 1. “Capitulo Primero. De los delitos contra la libertad de la nacion.”
As to this word liberty, it is a word, the import of which is of so loose a texture, that, in studied discourses on political subjects, I am not (I must confess) very fond of employing it, or of seeing it employed: security is a word, in which, in most cases, I find an advantageous substitute for it: security against misdeeds by individuals at large: security against misdeeds by public functionaries: security against misdeeds by foreign adversaries—as the case may be. In the present instance, if, by the word liberty, as thus employed, security in any shape—security against persons of any description, considered in the character of public functionaries, or persons acting under the orders, or in support, of public functionaries—was intended and meant to be afforded,—it must have been security not only for individuals, but for a certain class of public functionaries, against enterprises on the part of another class of public functionaries. Be it security, be it liberty, that was the blessing here in view, I should not, I must confess, have supposed, that anything in favour of it had been intended to be done, by any such arrangement, as that to which I have had occasion, Sir, to request your attention, had it not been for the assurance given in this same title.
Seeing the course taken by Gentlemen in their endeavours to preserve the “liberty of the nation,” I could not but be alarmed, when I found, that—not content with preserving in their way the liberty of the nation, they had taken up the determination to preserve in the same way the liberty of the press. I should have said, indeed, the preservation of that liberty against abuse. Still, however, it is the liberty of the press that, in a section of the Code exclusively allotted to the purpose, I see taken in hand. “Titulo noveno. De los delitos y culpas de los impresores, libreros y otras personas en el abuso de la libertad de imprenta. Cap. único: Art. 172.” Such being the hands into which I saw this instrument of liberty taken—taken by means of a body of arrangements separated and distinguished from all others by a title of its own, I could not but tremble for the fate of it.
Nor, after a glance at the contents, has my anxiety been removed. Sir, I know of one individual, of whose desire to see the press in possession of all that liberty which is conducive to the greatest happiness of the greatest number, and of no more than all that liberty, I cannot entertain a doubt: it is your humble servant. In no Code drawn by him will there be any such title. I know even of a government, of whose desire to see the press in possession of all that liberty which is conducive to the greatest happiness of the greatest number, and of no more than all that liberty, I cannot entertain a doubt. It is the government of the Anglo-American United States: Sir, in their Code, there is no such title.
For the state of the law in that seat of ever undisturbed internal peace, concord, tranquillity and amity, I must e’en beg leave once more to refer you to that one of my pamphlets, which has for its subject the Liberty of the Press and Public Discussion. Under that government, from the 14th of July, 1798, to the 3d of March, 1801, there existed a law having much the same objects as Titles i. and iii. and ix. of the proposed Code. Viewing the whole of it together, and comparing it with the matter of those titles taken together—viewing both in the lump (for of any such task as that of analyzing either of them there would be no end) its utmost rigour (you will see) was tender mercy. Being, however, the whole of it, plainly useless, and much worse than useless,—creative of a disease, which otherwise would not have had existence,—having but one good thing belonging to it, which was its temporariness as above,—it was suffered to expire: the authors of it, at that time the leaders of one of the two then contending parties, lost thereby the public confidence, and with it their political influence. That party (the aristocratical) having expired,—ask there for parties, no such thing will you find.
In every Code, in which I see any such title as the liberty of the press, I look of course for the destruction of it. I look to the committee’s Code, and I have not been disappointed. In no one of all the Anglo-American United States is any desire more universal, or more intense, than that of seeing this liberty preserved. Accordingly in no one of the Codes is there any such title. What I shall have to say on the subject comes in of course, and no otherwise than in an incidental way, under the head of offences against reputation. To offences of this class, where the individuals injured are public functionaries considered as such, my Code, so far from regarding the circumstance as a cause of aggravation, gives some indulgence. The indulgence has for its ground the great importance it is of, that no misdeeds of men in that situation should remain unknown, and the more than ordinary facility, which, in case of the groundlessness of the imputation, they have for defending themselves: for defending themselves, or rather of being defended by others, without having the trouble to defend themselves. See my accompanying tract on the liberty of the press. But this indulgence I confine to the case of temerity: for, in the case where the falsehood disseminated by the disseminator himself is known to be a falsehood, though in this case disproof and refutation are so much more easy to men in power than to men not in power, still I see no need, nor therefore any warrant, for manifesting indulgence to immorality in a shape so mischievous. A distinction which on this occasion I am careful to make, is that between defamation and vituperation: defamation, the imputing to the person in question, the having done this or that specific act of a punishable or disreputable nature; vituperation, the mere expression of dislike to the individual, in terms of a reproachful and offensive nature. Of these, in proportion as they are understood to be unmerited, the punishment naturally attached, falls of itself on the head of the offender, and with small, if any, assistance from factitious punishment, suffices for the purpose. In case of defamation, the law of England (it is that part of the law which is made by judges and reporters of their decisions) disallows the proof of the truth of the imputation in the character of a cause of exemption from punishment: for the law made by these creatures and dependants of the Monarch, has for one of its effects (it is needless to add its objects) the providing a screen for delinquency in every shape, on the part of themselves, and of their associates in the system of misrule. Bad as it was in principle, even the exploded Anglo-American law just mentioned gives express allowance to this proof.
[* A rule which has been established by lawyers in England, and which I should expect to find adopted by the fraternity in the United States, prohibits indeed, in case of defamation, the interrogation of the party defamed, for the purpose of proving the truth of the fact imputed to him: and prohibits it,—not only in a civil suit in which he is the avowed plaintiff, but also in a criminal suit, which, while it has the king for the nominal, has the individual for the real, plaintiff. My Code allows it in most cases, and in particular where the party defamed is a public functionary, defamed as such. In one of the two above-mentioned cases, the prohibition has its foundation in an ill-expressed Latin rule, made nobody knows when, by nobody knows who, namely, Nemo tenetur se-ipsum accusare: as if confession were accusation. In proportion as laws are tyrannical, this contrivance for giving impunity to delinquents is beneficial: nor could I think of expunging it out of any such system of law as in England we have, or from any such as if the force of law is given to this proposed Code, Spain will have: suppose the laws not tyrannical, the rule, and the imaginary law made out of it, is purely mischievous: on better ground, in tenderness to the accused defendant, would all other testimony be excluded: for who is so little likely to give false testimony to a man’s disadvantage as the man himself is? But, in such a government as we have, and Spain seems in danger of having, in a word in a government which has for its object the sacrifice of the many to the few, the best thing that can happen is—that all offences that are such merely against government, should go unpunished, and be followed by their designed effect. Of this portentously absurd rule, those, according to whom the greatest happiness of the greatest number is the only proper end of government, lay fast hold, for the sake of the application made of it to offences against government:—to offences against those laws which, having for their end in view the sacrifice of the happiness of the greatest number to the separate interest of the ruling few by whom they were made, would of course, if carried into anything like full effect, render the greatest number miserable. Lovers of the people cherish the absurd rule, for the sake of this particular application which cannot be refused to it. Lawyers cherish it, for the sake of the protection and encouragement it gives to delinquency in all shapes, giving proportionable increase to the number of their customers. For this reason, in every country, it is the interest of lawyers to see depravity consummate: accordingly in every country, it is, to the utmost of their power, their endeavour to keep or render it so.]
This collection of arrangements, in which such special care is taken of the press—such anxiety manifested for preserving its liberty from abuse,—this collection of arrangements—stands exhibited in 12 articles, namely, those from 592 to 604 inclusive; and occupies 4 out of the 240 pages of the Code. I have glanced over it. The result is—a confirmation of the conception above brought to view: namely, that, at any rate on the 21st of April, 1821, that being the declared day of signature, the wish and endeavour of the gentlemen in question was, at the prices there expressed in the shape of capital and other punishments, to prevent as far as possible the diffusion of all ideas whatsoever, that should, in any degree, be productive of sensations of an unpleasant nature in their own minds, or in the minds of any person in connexion with them: trusting, as they would naturally do, that by the same interests, prepossessions and affections,—their successors, whosoever they were, would, by so universally convenient an arrangement as this of theirs, be fixed in those same wishes and endeavours: that, in this view, their endeavour was—to keep the eyes of their fellow-citizens for ever hermetically sealed, against all written or printed discourses, the tendency of which should be to produce any such unpleasant effect: and that it is in this same view that, by article 602, they have extended the exclusion to discourses, in the Spanish language, printed elsewhere than in Spain, and by articles 598 and 601, to discourses of the like tendency in any language other than the Spanish, wheresoever printed.
If there be any one foreigner who, more than any other, not to say more than all others put together, has been the object of their jealousy, who can it be, Sir, but your unfortunate humble servant? And if such were their wishes in relation to him even from the first, what will they be, should ever any such provocation meet their eyes, as cannot but be afforded by so unwelcome a proof as this is which is now given in obedience to your commands?
For the purpose of keeping matter such as the above from the eyes of constituents, what then is the punishment which the proposed Code provides? Sir, you have seen already—the punishment of death. From this punishment, fortunately for him, true it is that, by remoteness from your country, the person of your above-mentioned humble servant is kept safe. But, by the terror of that same punishment, any the most useful of communications which in his eyes it would be worth his while to make, are not the less effectually excluded.
On this occasion permit me, Sir, to recall to your view that same leading article (article 191) in which death is the punishment, appointed for every person by whom endeavours shall have been used to bring about any alteration in the political constitution of the Spanish Monarchy. In speaking of that article, one word, nor that an altogether immaterial one, I must acknowledge the having omitted the mention of. This is the word conspirare—to conspire. The omission had not for its cause either oversight or any deceptious design: or in short any other cause than the convenience there is in speaking of no more than one thing at a time. No such effect had it (no such effect had the omission I mean) as that of narrowing or otherwise varying the description of the offence, unless, in the breast of a man who is not insane, any such endeavour or design can be supposed to have place, as that of effecting an alteration of the kind in question by his own single power, without aid from any one else.
The truth is—that, on this occasion, it was my own unfortunate case that occupied the first place in my view: for, saving all proper exceptions, such is the nature of man, self will on every occasion be intruding itself. Among my own endeavours as well as designs, has been that of causing to be printed in the Spanish language and circulated in Spain, written discourses more than one, in relation to which I cannot flatter myself with any the faintest hope, that, in the minds of gentlemen, the sight of them could fail of producing, though to my own most sincere regret, sensations of a cast more or less unpleasant: nor, in regard to some of those same writings, can I help being sincerely apprehensive, that, in the eyes of the gentlemen in question, the endeavouring to give publicity to them, would be the endeavouring to produce an “alteration” in that same political constitution.
True it is, that on this occasion, so far as regards my own personal safety, I do not, from any such conception in those or any other Spanish breasts, see any cause for apprehension. But an endeavour of this sort could not be used without assistants: without assistants, who, in the language of the proposed Code, would be accomplices: nor, by and between the principal and such his accomplices, could any correspondence be carried on without that which in the same language would be a conspiracy. Among these accomplices would in this case be a translator, a printer and a bookseller. Of these the translator might possibly be one, who would not be in any greater danger of death, or whatever were the other punishment, than myself: and to the case of the printer, the same consoling possibility may be found applicable. Still there remains the bookseller, without whose assistance my plot for the contributing, in conformity to articles 4 and 13 of your Constitution, to the greatest happiness of the greatest number of your fellow-citizens, whatsoever in this shape or in any other may be in my power, could scarcely by any means set itself to work. And thus it is, that if the wish that seems to be entertained as to this matter, by the gentlemen in question, as evidenced by this part of their proposed Code, is carried into effect,—mine stands on the verge of hopelessness.
Even if the net, spread by the word alterar in article 191, were not sufficient to catch us, (I mean myself and my accomplices,) another net of not much less amplitude, I see spread for us, in the next article, by the words embarazar sus sesiones y deliberaciones: penalty, death as before. For, of the arrangements that my temerity might find to propose, what embarrassment it might happen to this or that one to produce in the deliberations of the august body, should they ever come under its view, if it were during the time of its having the happiness of numbering the gentlemen in question among its number, I tremble but to think of.
On this occasion, one little difficulty in particular there is, the effect of which could scarcely fail to produce, more or less of embarrassment in the deliberations in question, should any endeavour be thought fit to be used for the solution of it. In pursuance of any such mortally wicked design as those above described, should a man content himself with doing what at present I am doing—that is, with the employing a non-Spanish language in the composition of such his political poisons,—in this case, such is the lenity manifested, by article 598, his portion of punishment is to be no more than the half of that which he would suffer were it in the Spanish language. Duros, yes: anos, yes. . . but I hope I am not using satire, and I am sure I am not using invective, when I observe, that neither in Euclid, nor in any other book, would gentlemen be able to find any process, for the bissection of a punishment, of which death is to be the result.
One manifestation more, and that a finishing one, of the care taken by gentlemen for the preservation of the press from abuse, remains yet to be brought to view. It is the establishing—Yes, the establishing in regenerated Spain—an Index Expurgatorius. An Index Expurgatorius? and by whom composed? composed by no less an authority than a new species of supreme legislature, proposed to be established for this single purpose: a legislature, in which the initiative function is to be exclusively in the Gobierno, (the septemvirate of ministers, every one of them appointed and at pleasure removeable by the king:) the initiative function in this Gobierno, and the consummative in the Cortes. Of this proposed new legislature, I find mention made—not only in the cluster of articles, which form part of those especially destined to the preservation of the liberty of the press from abuse, namely, in articles 599, 600: but in that preceding cluster, which has for its special destination the preservation of the Spanish mind from error on the field of religion: and, on both occasions, the existence of an instrument of this sort, framed by the new authority just mentioned, is supposed, and in a manner taken for granted.
It is therefore in their zeal in support of religious truth, that, in the exercise of the conjunct attributes of impeccability and infallibility above spoken of, this manifestation of zeal for truth in general, in the breasts of the gentlemen in question, appears to have taken its rise: and what cannot be denied, is—that by him, whoever he may be, by whom, for the happiness of mankind, those same divine attributes happen to be possessed, exercise too extensive cannot be given to them. But in proof of a man’s being so gifted, evidence, something more conclusive than his own insinuation, nay even than his own assertion, however positive, may, it should seem, not altogether unreasonably be required.
Before this finishing measure for the consummation of political security receive the sanction of law, there is one other thing, Sir, which I could not but be glad to see recommended to the consideration of the august assembly, not to speak of the supremely influential body—the Gobierno, of whatever individuals it may at this moment be composed. This is—supposing this extraordinary duty on their shoulders, and anything like adequate time for discussion allotted to the business,—whether from year’s end to year’s end, for the fulfilment of their ordinary duties, there would be so much as a single moment of time left.
I have spoken of logic, as an art, which, though not quite so agreeable, has, with reference to the greatest happiness of the greatest number, rather more of the useful in it than the brilliant art of rhetoric. There is moreover another dull and plodding kind of art, which, if a recommendation from me could promise to itself any weight, I would take occasion, from the incident here in question, to recommend to the attention of gentlemen in your exalted station. It is the art of mensuration: I do not mean as applied to land or timber, but as applied to time: to time on the one hand, compared with the quantity of business to be done in it on the other. From a want of proficiency in this art, such as it is, two effects both of them of rather an unpleasant nature, are liable to be produced: the exclusion of good measures, and the adoption of bad ones: the exclusion of good ones, for want of their being so much as proposed for consideration; the adoption of bad ones, for want of their being in a sufficient manner made the subjects of consideration. If, of this last-mentioned effect, an example should be desired, a not uninstructive one may, I am inclined to think, be found without much difficulty, in the recently established prohibitive and restrictive commercial, or, as I should rather say, anti-commercial system, under which, trade was to have been increased by the exclusion of customers.
Gentlemen having, in the manner you have been seeing, Sir, shown their sense of the necessity as well as importance of the office of Censor,—having moreover assigned, as and for the whole or a part of its business, the composition and continual completion of this same instrument of legitimate order, I mean the purifying Index,—it being also considered how natural, on the part of the inventor of any instrument, the wish is—to see the application of it placed in his own hands,—what if the powers—the whole powers of it were to be conferred on the gentlemen in question, I mean on all five of them, and in a state of exemption from all other cares, during their respective lives? In this power, for further security, might be included not only all actually existing works in their entire state, but all such doctrines or “maxims,” as, if they were in existence, would be possessed of the “destructive” or subversive tendency so often mentioned. In this case, however if it were in my power to make conditions, one little condition I would venture to propose to them, and that is,—that they would not insist upon attaching to the publication of the books in question, or of the maxims or doctrines in question, any of those severities, by the proposal of which their religious and patriotic zeal has on the present occasion manifested itself. No, Sir: if in the eyes of the public at large, their intellectual worth be but half as great, as, from the above quoted passage in their preface, it should seem to be in their own, the authority of their names, when employed in marking out for exclusion from all eyes and ears the obnoxious works, will be quite sufficient, without the aid of penal visitation or physical repression, performed in the proposed or any other shapes.
After all, thus much must be confessed:—be the instrument what it may, destroy the instrument you prevent the abuse of it: destroy eyes, you prevent the abuse of eyes: destroy ears, you prevent the abuse of ears: destroy hands, you prevent the abuse of hands: destroy liberty, you prevent the abuse of liberty. Such would be the effect, supposing the destruction total, and thence impartial. But, so far as either the liberty of the press, or the liberty of discourse through the medium of any other instrument, is the subject, the destruction which the gentlemen in question aim at effecting—the destruction, which they even profess to aim at effecting—is not total and thence impartial, but decidedly partial: and being so, the effect of it, in so far as it has any, will be—not to prevent, but to establish and secure, the abuse of the liberty of the press; in a word, of the liberty of discourse: of the whole of that branch of liberty which they thus take in hand. For wheresoever, by any person, on any controverted point, a judgment is to be pronounced,—what can be a greater abuse of the faculty of discourse, than the keeping all the arguments on one side in a state of suppression, or though it be but restriction, while those on the other are left in a state of liberty? of absolute, or even though it were but comparative, liberty?
In regard to this matter, one very simply expressible mistake seems, from first to last, to have taken possession of gentlemen’s minds, and guided their operations: I mean, the mistaking a cause for a remedy: the taking, for a remedy to the disease they have had in view—for a remedy and that an indispensable one that very morbific cause, but for which the disease would not have had existence. Supposing that to be the case, apply the supposed remedy, you produce the disease: burn the remedy, you kill the disease. Such, after a three years’ experience of the imagined remedy was the practice of the Anglo-American United States: and, after twenty years of uninterrupted experience, the salutary efficacy of that same practice has received in the face of all mankind as complete perhaps a confirmation, as any practice, political or even physical, ever yet exhibited.
[* ] See vol. iv. p. 554.
[* ] In the original letter, this passage which is in brackets, was omitted.