Front Page Titles (by Subject) LETTER IV. - The Works of Jeremy Bentham, vol. 8 (Chrestomathia, Essays on Logic and Grammar, Tracts on Poor Laws, Tracts on Spanish Affairs)
Return to Title Page for The Works of Jeremy Bentham, vol. 8 (Chrestomathia, Essays on Logic and Grammar, Tracts on Poor Laws, Tracts on Spanish Affairs)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
LETTER IV. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
On the severity of the ulterior means, employed for securing against amendment, all imperfections in the political system, and for preventing the national will from manifesting itself.
In the title of this fourth letter, as it is announced in the first, the words severity of the were, I fear, omitted. They are requisite, however, for giving expression to the idea, which, in reviewing that part of the matter, and penning a title for it, was uppermost in my mind. On a second glance, along with what bears special reference to that circumstance, I find some matters, of which the same thing cannot, I must confess, be said with equal propriety.
On the other hand, the subject, on which it touches, is one of which special notice is taken in your letter: what is said in relation to it will help to prove the respect with which your commands have been attended to; and whatever may be the offence committed against the laws of method as above, it is on this circumstance I must rely for whatever atonement it may be in my power to make.
Pena de muerte! Pena de muerte! Pena de muerte! By these words, I see, with grief of heart, a war of mutual extermination organized; Code in hand, I see partisans of the king and partisans of the people, under the name of partisans of the Constitution, slaughtering each other, and thus maintaining order in the legitimate style. No man can serve two masters. So at least I have read somewhere: and I am inclined to think there may be some truth in it. Looking to the people of your peninsula, I see two masters made for them: one all head without body: the other all body without head. No man being able to serve both masters, I can see no man who is safe. In the Anglo-American Union, no man has any master; and there everybody is safe.
In that seat of universal security, there were, for a course of years, two parties, and between them war was waged with a fury not to be exceeded, even among you. The weapons, however, were words only, not swords or bullets: “satires and invectives” met in incessant clouds: but they met tax-free: no duros were ever paid for them: ink flowed in torrents: ink on both sides: but, of blood, not a drop on either side. Little by little, the less liberal party was silently absorbed into the more liberal: finally there is no party, and now, even in words, it is all peace.
Yes, Sir, between the death to preserve “liberty” (Tit. 1. Cap. 1.) and the death to preserve “Monarchy,” (Tit. 1. Cap. 2.) I see every man between two fires.
Remembering the use made, on a former occasion, of the word corporation, as mentioned in my tract on the liberty of the press, &c., I see in Article 191 a somewhat more efficient use found for it. A sympathy, I hope not unpardonable, places before me, on this occasion, my brethren of the Cross of Malta. If they are tired of life, the words “ò á que se radiquen en otras corporaciones ó individuos,” may upon occasion help them to get rid of it.
But, perhaps, the citizens who, all over the kingdom (if our newspapers do not deceive me) are still meeting for the purpose of considering what, under articles 4 and 13 of the Constitution, may be most conducive to the greatest happiness of the greatest number, if it were only that they may learn how to give their votes,—may not be quite so eager to see themselves killed, as the Committee seems to be to see them killed: and, if they are not altogether pleased at the thoughts of being killed under the name of citizens, I should not expect to find that the thoughts of being killed under the name of members of corporations would render them more so.
For how many things which they themselves have done, and which I cannot but applaud them for having done, do I not see gentlemen appointing this same punishment of death! the only punishment, the mischief of which is, in case of misapplication, altogether out of the reach of remedy! Right, that which at the moment suits us: wrong, that which does not suit us:—this, or something like it, is it not the principle?
As it is with vituperation and defamation, so, without much difference, is it with sedition, insurrection, and their et cæteras. In a government that has for its object the greatest happiness of the greatest number, little or no need is there for any such denominations with exclusively appropriated punishments. A public functionary is a man: gentlemen do not seem to me to be altogether aware of this: with my respectful compliments, do me the favour, Sir, to convey to them the information of it. A public functionary is a man. Not only is his reputation the reputation, but his person the person, his property the property, of a man. By sedition and so forth, if any real mischief is done by it, it is to the person or the property of some man that the mischief is done. Ill indeed must the public functionary, whoever he is—the Monarch if there be one, ill indeed must he have comported himself, if, on the part of the people at large, there is not, on every occasion, and in all manner of ways, more promptitude to afford protection against injury, in this or any other shape, to him, than to an individual not so distinguished.
In a country, the government of which has for its end in view the greatest happiness of the greatest number, let a man seditionize—let a man insurrect—see what he will get by it. He will be laughed at: laughed at, as an untoward lamb might be, if seen running and butting against its mother: he would be laughed at, and there would be an end of it. Colonel Burr insurrected: Colonel Burr tried to make himself Emperor of Mexico: Colonel Burr thought to make himself Emperor of the United States: many is the laugh I have had with him about all this—I, who write to you. In the United States, has he had his entrails torn out of his body? a man in his place would have been so dealt with in England: has he seen them burnt before his face? No: there he is in New York, subsisting quietly, as other lawyers do, upon the indiscriminate defence of right or wrong, now at the end of his career, just as he did at the commencement of it. Ask Miss Wright, Sir, if it be not so—see what her book, (Views of Society and Manners in America, by an Englishwoman,) translated ere this into French, says of him in one of the notes.
Out of the 639,—that being the whole number of the articles in the Code, deduction made of those general ones, 190 in number, which are not occupied in the creation of particular offences, or the appointment of particular punishments,—out of this number of 639, not more than 89 had I run over before I had counted 21 as the number of times in which this same punishment of death had been attached to so many different offences. True it is that, in speaking of penal laws, to speak of the multitude of the laws as a conclusive proof of severity on the part of the whole system,—to speak of multitude in this case without notice taken of extent,—is, I am fully aware, a mode of speaking no less pregnant with misconception than it is frequent. In the English chaos, for example, where stealing or destruction is the mischief to be obviated, you have one law for one sort of vegetable, another for another: and so throughout: a plan, according to which, the vegetable kingdom would of itself, if all other penal laws were abrogated, furnish matter for between 50,000 and 100,000 of them, and still leave all but a small part of the field of mischievous delinquency uncovered. But in the present instance, the rigour of the punishment will be found not mismatched by the amplitude of its extent.
But the striking and deplorable circumstance, is—to find the highest lot in the scale of punishment attached to so great an extent, to acts, in regard to which, in that system of law which is productive of the happiest effects, it is after such a length of experience universally understood and acknowledged, that there exists not any demand for punishment in any shape.
As to the taking of these cases, or any of them, one by one, and, by a regular application made of pre-established principles, considering, in the first place, whether the act ought to be placed upon the list of offences, in the next place, whether death would be an apt punishment for it, and if not what other would be,—no such discussion, Sir, can I, upon the present occasion, think of attempting to trouble you with. In any Code of my drawing, this would be done, and in a manner which in my eyes would be complete, at a much less expense of words than the least that could be bestowed upon it in any work having for its subject a Code by another hand, even supposing the particular arrangements determined by a set of pre-established and declared principles: and not, like the one in question, so completely and even avowedly unprincipled, that a volume might be occupied in the endeavour to reach by conjectures, antecedently to examination, the considerations that, in the character of reasons, may have given birth to this or that one article.
On the subject of religion indeed, it being the only one which has received any special mention in your letter, I had, at the time when the first of these of mine were sent off, written a few pages, to which I thought of giving insertion in this. But, by a second glance on this part of the proposed Code, observation was insensibly and perhaps unfortunately elicited, in a quantity much too great to be consigned to a letter, in which any other subject were brought to view. Should it ever reach your hands, Sir, it will accordingly be in the form of a 7th letter, written in addition to those announced in the first.
One word more about death: about the grim tyrant, and the once established and, established or not, everywhere honoured Code, by which the door was shut against him. Seeing the use made by the gentlemen in question of this instrument, hardly should I have expected to find that of these “most esteemed European Codes,” the wisdom of which (as p. xii. of their Preliminary Discourse informs us) they had made theirs, this same Tuscan Code had been one: this same Tuscan Code, in which, of this same instrument, no use at all was made. Either my memory deceives me greatly, or, in some authentic statements made at the time, I read, that after the innovation thus introduced,—though anything like the whole of the benefit which by its leniency the Code was calculated to produce, had not yet had time to manifest itself,—the number of those crimes, to which the punishment of death had been used to be attached, had not received increase. Yet so it is, that not only the Code of the French Constitutional Assembly of 1791, but this same celebrated Tuscan Code, had passed under their review. So in page xv. of their Preliminary Discourse they expressly tell—us I was going to say—I beg their pardon, Sir, I should have said tell—their colleagues.
P. S. Before this letter goes to the post, I have just time to acknowledge the receipt of a 2d letter from you, dated Paris, 26 Sep. 1821.
Though what was said of me by our friend was the pure result of his own generous zeal, and altogether without warrant from me,—the consequence which has resulted from it is—not in the less, but in the greater degree, a source of gratitude in my mind as towards him, as well as satisfaction and pride on my own account: for, never was declaration more sincere than mine was, when I spoke of myself as receiving honour as well as pleasure from such a correspondence. Few things could have contributed more strongly to confirm me in that sentiment, than the frankness of your consent, to that publicity, by which, whatsoever service such a correspondence may be capable of rendering to that country which is the object of our common affection, will be so effectually cleared, of the inconveniences with which it would otherwise have been clogged.
At the same time, believe me, Sir, it is not without the sincerest sympathy and unfeigned uneasiness that I can reflect, as I have but too much and too frequent occasion to do, on the invidious and unpleasant situation in which it has been impossible for me to avoid placing you, by the necessarily unwelcome freedom, which I have all along found myself compelled to use in speaking of this production of your illustrious colleagues. For, how can they do otherwise than behold in you the cause of so many strictures, of which, should they be thought to amount to anything, sensations, of a nature very far from pleasant, cannot but be the result? But, in the opposite case, and in proportion to the importance of any of the suggestions which it has fallen in my way to submit to you, the warmer your love for that country of which you are one of the most conspicuous and brightest ornaments, the more valuable in your account will be the indemnification, which, in the character of a Spanish citizen and a representative of the Spanish nation, you will receive.