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LETTER V. - 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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Further grounds for the apprehension that, by the proposed Code, the interest of the subject many is, designedly or undesignedly, sacrificed to that of the ruling few.
Strange indeed, unexampled indeed, would the case be, if it were otherwise: but, so far from being a reason for the omitting the mention of any instances in which it is exemplified, the strength of the propensity in human nature to produce such sacrifices, is a reason why the search after them should be the more rigid, and the display of them the more complete.
To attempt to bring to view the several particulars, by the observation of which a supicion to this effect was produced, would be to attempt to bring to view little less than the whole contents of that same official and pre-eminently important work. I must content myself with a few samples. But they shall be such as are either all-comprehensive in their extent, or do not want much of being so.
Example 1. Fundamental principle neglected. What I have here in view is—the profound silence as to the fundamental principle of the Constitutional Code: as to the two leading articles 4 and 13, into which by far the greatest part of its merit and beneficial influence is condensed: namely, the so often mentioned principle, by which the greatest happiness of the greatest number is laid down in form in the character of the proper end of government, and as the object to the attainment of which the several arrangements of detail included in that same Code, were meant to be understood as having accordingly been directed. The application, which this your troublesome humble servant makes, of this instrument of Spanish construction—you see, Sir, how continual and indefatigable it is: it is a light, by which every step in his career is lighted. Such is the use made of it by an Englishman. The gentlemen in question being Spaniards, how comes it that, all the time that they have been at their work, this matchless Spanish instrument has been lying in its case? how comes it, that these articles, to which, from first to last, reference express or tacit could not consistently with consistency have been omitted, remains from first to last a dead letter in their hands?
These same articles of this Code,—for what purpose were they put there? Was it only for show? The authors of that same Code—was it not their intention the principle should be made use of? The articles—were they placed there in no other character than that of so many flowers of rhetoric?
But, the authors of this proposed penal Code, it is with them that our concern is at present. Of the neglect in which they have left this light of lights, what can have been the cause? Sir, can it have been any other than this; namely, that it did not suit their purposes? From what follows, your judgment on this point may perhaps acquire some assistance.
Example 2. Rationale rejected. What is above leads me immediately to the matter of the rationale.
Of my plan, the rationale is an essential, I should rather say the characteristic, feature. But what does it consist in? In neither more nor less than the undiscontinued application of the above-mentioned fundamental principle: an application of this basis of your constitution to every the minutest line in the several arrangements, by the making of which, the operations of the legislator are carried on. In the very act of proposing this accompaniment, a sort of challenge to all legislative draughtsmen was contained. From the challenge thus given, the gentlemen in question shrunk. Why, Sir, did they shrink from it? To their constituents, as I have shown, to the subject-citizen as such, it would have been at once a source of interpretation—a fund of instruction, moral as well as political—a source of security, satisfaction and comfort: a source of security against arbitrary rule in the hands of the legislator, and against arbitrary interpretation in the mouth of the judge: to the judge, a continual guide, but at the same time as continual a bridle: to the body of the law, in the whole and every part of it, an anchor, giving stability, just so far, and no further, as reason, assisted by experience, shall have shown that stability will be conducive to the all-comprehensive and all-commanding end so often mentioned. This being among the undeniable properties of the instrument in question, why, Sir, I ask once more, did gentlemen shrink from it when offered to their hands? Sir, I will tell you plainly. They had two reasons, for turning their backs upon an instrument, the matter of which is composed of reasons in another sense. In it they saw a guide, but a guide whose course it did not on every occasion suit them to pursue. In it they saw a guide, but in it they at the same time felt a bridle: and all this in both their capacities, that of legislative draughtsmen, and that of sanctionative legislators. To which may perhaps be added, that, not impossibly in their view of the matter, to construct, and make undiscontinued application of, an instrument of this nature, was not quite so easy as to propose it.
In that paper of mine, the heads of which I have had occasion to submit to you in the first of these my letters, the two last heads are Section 10. “On the part of an individual proposing himself as draughtsman, &c., willingness or unwillingness to interweave in his draught, a rationale as above, is the most conclusive preliminary test, and that an indispensable one, of appropriate aptitude in relation to it; Section 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 optitude with reference to such his situation.”*Among the most conclusive, I said: speaking of a ruler, in whatever rank and in whatever department: and, when speaking of a ruler in the rank of supreme legislator, or in that of possessor of a share in that all-commanding power, might I not have said absolutely the most conclusive?
Sir, the time, at which these propositions with the demonstration of them were penned, was by a long time anterior to that in which, by your favour, the proposed Code with the preliminary discourse prefixed to it came into my hands. To my mind, no otherwise were the authors of that work present, than all other men, by whom that same or the like pre-eminent situation shall have been filled, were, are, and will be present. But, if and so far as that which of all men without exception in their situation is there said, is true,—of them in particular it is true: nor can it, consistently either with sincerity, or consistency, be retracted.
In that work of mine, in which, of the sort of instrument in question, with its use, a description more or less particular is given,—in that work, the existence of which was assuredly no secret to any member of the Spanish Cortes, nor to any of the gentlemen in question in particular—in that work is even contained a sample of the application made of this same instrument:—a sample of the mode of applying it, and of the sort of work produced by it. To judge from a paragraph in their preliminary discourse, it looks as if somebody or other had even been troublesome enough to endeavour to draw their attention to this same part of that same work:—and “What say you to this? will not you give us something of this sort in your Code?”—one would think these or some such questions had been put to them: put to them, and in so troublesome a way, that, to this matter, in that same preliminary discourse, something, by way of excuse for their silence on the subject, was thought necessary: at any rate, that on this subject something should be said. Be this as it may, in that same page of theirs, on this same subject, something actually is said.
What is it? Sir, it is what I am truly glad to see. For, (as you have seen already, in the way of allusion at least, statement being referred to in another paper,) as in this way, in my dull logic, you have seen reasons for the use of reasons,—so here, in their brilliant rhetoric, we have gentlemen’s reasons against the use of reasons.
First comes their all-comprehensive determination—their determination, respecting all such parts taken together as come within the field of their labours: then come exceptions, six in number: exceptions, speaking of six points in particular, in relation to which, thus as it were in a parenthesis, such reasons, as it has seemed good to them to submit to your consideration, follow.
With regard to the tout ensemble, their determination being—not to give any reasons bearing separately upon the several arrangements, or any of them, with the exception of the six just mentioned,—in the place of the excluded reasons, they give you one reason—one reason, which in their view is a conclusive one—for not giving them. This reason, what is it? Ah! Sir, disallow it if you can,—disallow it, if you can find it in your heart to be so ungenerous. Sir, in the all-sufficiency of that unerring test of right and wrong, which you all, Sir, have the self-satisfaction of bearing in your own breast—it is in that security that they find a succedaneum, to everything, which, on any occasion, it would be in their power to find in the shape of a reason: a succedaneum so fully adequate—a substitute so much better than merely adequate, that anything in that way on their part would be worse than useless. To the conclusiveness of this antirational reason, what objection can you oppose? Sincerity will suffice to prevent your disputing it in your own instance; politeness, in that of any of your colleagues.
After an observation, respecting the matter of the Title termed by them the Preliminary Title,—namely, that, giving as they do the whole of it, they do not give any part of it over again, regarding as they do any such repetition as useless,—“because,” say they, “we regard every such addition as useless” (a conception, in which no man can, I think, refuse concurring with them) after so saying, they go on in page xiii. and say, “As little will the Committee—as little will it give any exposition of the reasons (raziones) on which it has grounded the several articles respectively, for that they (meaning doubtless the reasons in question) cannot have kept themselves hidden from the superior perspicacity (illustration) of the Congress:” meaning the Cortes, into the ears of which, in full assembly, the stream of this eloquence, I take for granted, was pouring itself forth.
By this illustracion, a term for which, in the sense in which it seems here to be employed, I find not, in my own language, any exact equivalent—for illustration will not serve—by this one endowment, that which gentlemen appear evidently enough to have in view, is—the pair of contiguous organs, to which I had occasion to make allusion in the second of these letters: namely, the same to which Dr Spurzheim would, after a sufficient inspection, give the denomination of the organs of impeccability and infallibility: organs, which, without need of any such assistance as that of the ingenious anatomist, all rulers in chief, except of late years those of the Anglo-American United States, have so universally felt upon their own foreheads; and of the extraordinary prominence of which, in their own instance, the authors of your Constitutional Code, so well followed up by these successors of theirs, have given such extraordinarily prominent demonstrations.
Now, Sir, as to these same colleagues of yours, the matter must be left to themselves. But as to yourself, Sir, pardon me,—if so it really be that you are a sharer with them in the good fortune of being in possession of these same organs, or either of them, it is plainly more than you yourself know of: you might as well not have had any such things. Of the possession of any such useful implements had it happened to you to be conscious, never could I have received any such letter, as that, by the receipt of which, your humble servant received that honour, of his gratitude for which you see the fruits. In the course of the contest for your favour, here, Sir, you have two compliments to choose out of: which of them is most in accordance with truth? which of them is most in accordance with your taste?
For the reason above-mentioned, to their colleagues, say the gentlemen in question—to all these representatives of the Spanish nation without exception—any such implement as that same rationale would have been useless. Well, for the moment, and for the purpose of the argument, be it so. But these same distinguished citizens, whom, to the number of from 150 to 200, they are thus addressing—in the whole Spanish nation, were they the only individuals, by whom either the faculty called reason, or the faculty called sensibility, was possessed? The privileged organs in question, by which governors have hitherto regarded themselves as distinguished, are they in your country in the possession of the governed likewise? If so, what need can there be of governors? And here, alas! comes one of the proofs of the position which gives title to this letter:—namely, that, in and by the official work in question, the interest of the subject many is, designedly or undesignedly, sacrificed throughout to the interest of the ruling few. Look, Sir, to the excluded foreigner: look to these your select, your native legislators:—the whole body of their fellow-countrymen, their security, their satisfaction, their instruction—which of all these objects has ever been forgotten by the foreigner? which of all of them was remembered by these their representatives in this effusion of their eloquence? But their colleagues, for whose ears the compliment had been composed—these colleagues were present objects; constituents, all of them distant ones—all of them distant from their thoughts:—by the interest of the select and present and associated few, the whole field of their vision was pre-occupied; the interest of all was, in their eyes, too minute an object to be a perceptible one.
Six, however, though no greater than six, is the number of those points, to which, in the opinions of these your selected colleagues, your all-sufficiency, Sir, (yours is of course here plural,) did not, at that time, extend. Accordingly, in relation to these several points, they proceed, or at least profess, to lay before you their reasons. Why? because these were the points, in relation to which, amongst certain persons not named or indicated, the most considerable controversy had had place. In this controversy it is that they find the source of an obligation, by which they feel themselves called upon to be thus particular: “solo se cree obligada á indicarlos motivos que en algunos puntos muy controvertidos la inclináron á la opinion que ha abrazado.” p. xiii. The points are in brief as follow:
Now then comes a question. All-sufficient with regard to all other points in the legislative compass, how comes it that gentlemen’s organs fail them when applied to this half-dozen? Compared to what is left untouched, these are but as so many drops, in that ocean, to which, as above, they have given the character of the Pacific. And so, in the conception of these gentlemen, only in so far as controversy has had place, can there be any demand for reason! Sir, among the points touched upon in my Code, whatever may be the number of those to which it has happened to have produced controversy, the number of those to which no such accident has happened, I should expect to find still greater. Is it only as an instrument of victory, Sir, that reason is of any use?
On the above points of exception, to say anything more would be wandering from the announced purpose of this letter. One alone, namely, Judicatories of exception, upon looking into the article on this subject in the proposed Code, presented matter which seemed not inapplicable here; and with this the present letter will close.
Example 3. Method anti-popular employed:—method, indicative of disregard to the interests of the subject many. In my own Code, the method pursued was suggested, partly by considerations of a purely logical nature, partly by considerations of a moral and political nature. Those of a purely logical nature belong not to the present occasion: those of a mixed nature, partly logical, partly moral and political, apply to it: and by a principle of connexion, of which it has not happened to me to see any notice taken elsewhere.
In regard to the order to be given to the several groups of acts, converted by prohibition and punishment into offences, considerations of a moral and political, concurred with those of a logical nature, in producing the determination that was pursued.
Where, of one of two objects, a perfect conception may be conveyed, without any conception conveyed or entertained of the other, while the converse of this does not hold good,—give the first place to that one, the conception of which is thus independent of that of the other. On the opposite plan, two objects will unavoidably be spoken of at the same time: the one directly and explicitly, the other indirectly, and in the way of allusion: and confusion will thus throw its clouds on the whole texture of the discourse.
To the domain of logic belongs this rule. By it has arithmetic been guided in the order given to the numbers in the numeration table.
Apply this to the matter of a Penal Code. Of offences against individuals—against individuals determinate and assignable—the mischief is intelligible to all: intelligible in all its shapes, upon the bare mention of it; intelligible, without any the least need of reference to offences against this or that particular class of not assignable individuals, or to any of those against the government, or the nation at large: the offences of which two last divisions have for their common character, that the mischief produced by them affects not any one individual or class exclusively, but, if it affects any one, affects the whole. Of offences of the first description, the mischief may be said to be actual: in the case of those of the two last descriptions considered as such, it is only in tendency that the act is mischievous. In this or that instance, the mischief which is but in tendency may indeed have actual mischief to any amount for its accompaniment: in which case, the author may be dealt with accordingly: but, when it stands clear of any such accompaniment, the demand, whatever it be, for prohibition and punishment, may still remain: of that mischief which is in tendency only, the correspondent actual mischief forms the sole and indispensable basis. From those of which the mischief is but in tendency, suppose it ascertained that no actual mischief can in any shape result, the ground for placing them in the catalogue of punishable offences vanishes.
Note that, to be actual, mischief must consist either of pain or loss of pleasure: pain in some determinate and assignable shape, or loss of pleasure in some determinate and assignable shape.
Such being the order prescribed in the first instance by logic, observe now the consequence of it with regard to morals and politics.
At and from the very commencement, of a Code commencing in this way,—every man perceives, at first view, the benefit it has conferred on him, the care which the legislator has taken of his interest—of his happiness. Let a man but open the Code, by the very first glance he casts upon it, a conception thus satisfactory, how can it fail to be conveyed to him? What man is there, that has not, in some shape or other, a body, a mind, a reputation, property, a condition in life? In the prohibition and punishment, attached to acts, by which, through injury done to those several possessions of his, his happiness is liable to be diminished, he sees the protection which, in these several shapes, has been provided for him by the law. In the legislator he beholds a kind guardian, to whom his welfare, in all its shapes, has been an object of all-comprehensive and laborious solicitude.
Instead of offences against individuals, let offences against the government now occupy the first place. Everywhere but in the Anglo-American United States, religion being seized on and converted into a state-engine, employed in giving support to the power of the rulers,—the care for the support of religion in this character, will, in some way or other, be combined with the care for the support of government.
The protection he now sees afforded, to whom does he see it afforded? To himself? No. But either to an Almighty Being, to whom it cannot be of any use, or to another man or set of men among whom he is not included. Here then you see, Sir, the advantages that have just been brought to view vanish.
Returning now to the former case,—suppose the legislator, by what considerations soever induced, whether by the above logical rule, or by the political consideration—regard for the greatest happiness of the greatest number—suppose him to have, in his Penal Code, begun with giving the first place to the class of offences against individuals. This point settled, suppose him to have taken up the subject of offences against government. The government in question is (suppose) a monarchy: chief functionary, the monarch. What follows? Seeing in this man neither more nor less than a man, he would, perhaps, as in the Anglo-American United States, have regarded the security of this man as being sufficiently provided for, when provided for in exactly the same way as that of all other men: if not, he would at any rate have inquired, whether in this case any difference should be made: and if yes, what, and on which side, and on what account: and so on, in regard to all classes of persons, functionaries or not, by whom, or in whose behalf, he found privilege in any shape enjoyed.
Unfortunately, in those same Codes of greatest credit and “reputation in Europe,” (p. xii.) drawn as they have all been by men, employed by a supremely ruling one, and themselves belonging to the class of the ruling few;—and of course careless to what degree they made sacrifice of the interests of the subject many, to the interests, real or supposed, of the said ruling few and supremely ruling one;—in these exclusively consulted Codes no such simple and natural order of insertion has been observed. How should it have been? No such order would have suited the purposes the ordainers of them had in view.
In my view of the matter, title to regard is determined, and degree of regard measured, by the numeration table: two have title to twice as much regard as one: three, to thrice as much; and so on. Accordingly in my Penal Code, my first care being to make provision in the most immediate way for the security of all,—thus it is that, no objection to this plan of arrangement presenting itself, nor any special use as derivable from any different one, it is by the cluster of arrangements employed in the establishment of this security, that the first place in that same Code is occupied. And thus, by this political consideration, has the order originally suggested by the logical consideration, in my view of the matter, been confirmed.
Not so, in the view taken of the matter by the bespeakers, nor consequently by the makers, of those same supremely accredited Codes. In their view of the matter, title to regard is determined and measured by dignity: a sort of phantasm created by Power, in the imagination of Imbecility, for its own use.
Shaping their practice to this theory,—in the ruling one—in the monarch, who is upon earth—they have seen the vicegerent and express image of the person of him who is in heaven: in him they have seen the one for whose use all others were created; in the subject many, those who were created for his use. In him they have seen all excellence; in them all depravity: between the one and the other they have seen an intermediate class, composed of individuals, whose respective places, in the scale of excellence, moral and political, are in correspondence with their places in the conjunct scales of power, opulence, and factitious dignity:—endowments, derived all of them from the grace and pleasure of the ruling one.
Of this theory, an immediate practical consequence always more or less acted upon, and sometimes even avowed, is—that in the instance of every person to whom the protection is afforded, the punishment, employed in the affording it, ought to be high, in proportion to the height of the level, occupied by him, as above, in that same conjunct scale. Looking then, in the first place, to the heavenly monarch,—in his instance, taking for his opulence, that which it has pleased him to make over to his professional servants, they behold power and dignity infinite. Looking in the next place to his earthly representative, they behold power, opulence, and dignity next to his. In both cases, the practical consequence follows as of course. As for the protection of the mind, the reputation, and the peculiar property of the heavenly monarch,—so for the protection of the body, and condition in life, as well as of the mind, reputation, and property, of his earthly representative,—no punishment can be too afflictive.
Buonaparte and his draughtsmen saw in every Regicide a paricide. A more convenient vision has been seldom seen. In this same vision, the gentlemen in question (I see) have been partakers. And so—to beget and to kill, to feed and to exhaust, to clothe and to strip, to love and to despise, are one and the same thing. Buonaparte—O “most puissant Prince!”—Buonaparte, upon looking round him, found he had begotten all whom he had left unslaughtered. Thus it is that Rhetoric—Oever ready prostitute!—prostitutes herself to despotism.
By the purely logical consideration, if I remember right, was the order of consideration and expression here in question suggested to me:—by the clearness, which, not only in this but in all other cases, is the result of that course of consideration, in which things connected with one another are taken, as far as may be, one at a time. Ample at the same time was the confirmation, which, in the present case, the logical rule was found to receive, from those considerations, of a moral and political nature, which belong, in a peculiar if not exclusive manner, to this same case. Intimate accordingly, in this case, is the connexion between the logical and the political considerations.
By the logical rule it stood ordained, that, in the arrangements by which protection and security were in the way in question afforded, all men without exception should come in in the first place, before any place was assigned to any such arrangements, as those by which additional protection and security came to be afforded, to men standing in this or that particular situation.
But, thereupon comes the political consideration:—in so far as distinction and opposition between interest and interest has place, by whom is presented the best title to regard at the hands of the impartial legislator? by whom is presented the title to a preference? by the few as such? or by the many as such? The question once put, the answer could not be dubious: the question itself presented it. To me it was presented between 50 and 60 years ago, by I know not what little pamphlet of Dr Priestley’s: by your Cortes (ad 1812) it was adopted, and in articles 4 and 13 of your Constitutional Code, it stands established. And thus it is, that not only for order of consideration and discourse, but for title to regard and degree of regard, you have at once a standard and an example in the numeration table. A plainer, a more universally known, a more familiar, a more universally understood, a more indisputable, standard—can it be desired?
Judging of everything by this standard, I saw that, if, to any one more than another, power in any shape were given to be exercised over the rest, it could not, consistently with this standard principle, be given to him in any other character than that of Agent, and Trustee, and in that shape Servant, to the rest. Hence, for as much as, in respect of money, power, or factitious dignity, nothing could by any legislator be done for, or in relation to those same servants of the people, but at the expense of their principals,—hence, in my view of the matter, judging by that standard, for these same servants, so long as the interest of their principals was equally well provided for, too little could not be done. Not so in the view taken of the matter by the gentlemen in question:—not so in the view taken of the matter in any of those most “accredited Codes of civilized Europe,” from the virtue and wisdom of which, a portion more or less considerable of theirs had been imbibed. No, Sir: on that subject—as everybody knows and feels—on that subject, everywhere but in the Anglo-American United States, the universal and allruling notion, is—that for these same servants it is not possible to do too much: and accordingly, the first thing that is done—everywhere done—for them, is—to declare them masters. Masters? Yes, and in such sort masters, that the character in which their natural masters, thus converted into servants, ought to be considered, is—that of so many animals of an inferior nature, created by an all-benevolent and all-wise being, for the use of these same self-constituted masters: their masters; or, as the more polished language of English aristocracy sometimes phrases it, their betters.
Such then are the beings who, in the first place, together with whatever belongs to them, are to be taken into account, spoken of, and provided for.
In the first place are stationed their peculiar endowments—the power, the wealth, the factitious dignity, with which they are invested: the peculiar endowments, together with the peculiar protection employed in affording a peculiar degree of security to the possessors of these same endowments: the peculiar protection and security, and thence the peculiar punishments, by the terror of which, all hands that might otherwise be tempted to make any motion, by which the enjoyment derived from these endowments, might be lessened, are to be arrested.
Under the late non-constitutional monarchy, the object of the first care, not to say the only care, was the providing this security for the monarch and his particular connexions.
Under the existing constitutional monarchy, the objects of gentlemen’s first care, is—the power of that illustrious class of citizens, of whom they themselves constitute so distinguished a part: the care taken of this object is, in their language, the care taken for “the liberty of the nation.” Their next care is, for the power and person of the monarch, who, from the condition of absolute, has by a precedent care been removed into the situation of constitutional, king.
Correspondent, in the eyes of the bespeakers and framers of “the most accredited Codes of cultivated Europe,” and consequently in the eyes of the authors of this which is so soon to be numbered among those same accredited Codes,—correspondent to the excellence of the illustrious masters, is the depravity of those inferiors, who, in the character of servants, are placed under their rule: inbred is the refractoriness of those unworthy servants; wilful and perverse the blindness, by which that excellence is concealed from their perception: insolent, obstinate and incessant, the efforts they ever have been and ever will be in the habit of making, in the flagitious endeavour to withdraw their necks from under the too well deserved and altogether necessary yoke. For stopping a propensity thus perverse, what chance can be afforded, by any image less appalling than that of the dance of death, perpetually staring them in the face?
Full of these ideas, sword and axe in hand, gentlemen fall to work accordingly. They begin with killing all those, who, in any view, and in particular in the view of reinstating the king in the defalcated portion of his power, have the audacity to meditate any diminution of theirs, to make any “alteration,” in any of all those things that have been done in their favour.
When these are despatched, the next set to be disposed of, are—all those by whom anything has been done, to the prejudice of the sovereign partnership concern, against the person or authority of the original parties, whose names stand at present but second in the firm. Death, on the one hand, for all those, by whom, towards the restoration of the old authority, anything shall be attempted or conspired to be attempted, in diminution of the new: death, on the other hand, for all those, by whom, for the augmentation of the new authority, or any other purpose, anything shall be attempted or conspired to be attempted, in further diminution of the old.
When, under chapter first of this title, one half of the people whose greatest happiness is gentlemen’s object, are disposed of, and under chapter ii. the other half, what will be the number left alive?—For the solution of this question, no very deep skill in arithmetic seems necessary.
For all this riddance, though, if life be worth anything, nothing surely can afford a justification, the wisdom of the most accredited Codes of cultivated Europe, at any rate,—leaving out of the case the most celebrated of any of them—the Tuscan,—affords, it must be confessed, but too natural a cause; and, not only but too natural a cause, but, in so far as, on the part of those, in whose hands the care of the happiness of millions is intrusted, blind imitation affords an excuse, but too good an excuse.
True it is, that, for giving security in its several shapes to the whole number of those of whom the community is composed, appointment must be made, of some men in particular, to whom, in various capacities and ranks, this occupation shall, in a more especial manner, be assigned: not less true is it, that nothing could be more palpably absurd and mischievous than such a denial, if to those by whom security is thus afforded to others, that security which is necessary for themselves should, in any shape or in any degree, be denied. But even supposing, what is more easily supposed than proved, that, in the instance of these Trustees, any additional security, over and above what is given to them as principals, is necessary, still it will remain to be shown by any one who thinks he can show it, what use there can be in setting this ultra-security to stand first.
How naturally and frequently does the mischief aimed at by injustice recoil upon itself! how natural and frequent an effect of the too much is the too little!
When it is in no other character than that of a member of the community, that a public functionary applies for protection against injury,—all affections, all hearts, and all hands, are on his side: when it is in a distinct and privileged character, many hands, as well as many more hearts, will pretty certainly be against him. Well would it be for the country, whatever it be, if on this occasion instead of many one might say all. This, however, is unhappily not the case: since, be the distinction ever so absurd and mischievous, and in consequence of it the conduct of the functionary in question ever so unwarrantable, so it is that, in every country, by the laws of which, such distinctions are made, community of sinister interests will have secured to him partisans and supporters in vast multitudes, and interestbegotten prejudices—the prejudices begotten by that same sinister interest—perhaps still more.
So much for theory. Look now, Sir, to experience.
In the Anglo-American United States, no instrument of ultra security has place. None whatever. And what is the consequence? that the security enjoyed by the functionaries in question—that the security enjoyed by the community of which they are functionaries—is the less entire? No: but that it is much more so. Take for example the chief. For injury done or intended in any shape to the president of the United States, no greater or other is the punishment provided, than for the like injury, to the man, if there be a man, who blacks his shoes. What is the consequence? is he the less safe? Not to speak of Asia, exists there in all Europe, a monarch by whom anything like equal security is enjoyed? Oh, no: nor ever will or can there be. The monarch is a mark for every madman to shoot at: and not only for every madman, but for every man who, in his own eyes, has reason to regard himself as suffering injury at the hands of the uncontrolled arbiter of his fate. And to what place can the monarch betake himself, without being encompassed by multitudes, to whose minds, notions to that effect may, for aught he can tell, be incessantly present?
Vainly would any one say—Ours is a Monarchy, and in a Monarchy these distinctions, together with a thousand others in the same strain, are indispensably necessary. This necessity, so lightly assumed, how comes it to be known to you? What ground have you assigned, what ground can you assign, for it? Absolutely none:—what experience there is, is all against you: experience for you there is none.
Suppose it were even as you say, what would it prove? only that monarchy is no fit form of government: and that this part of your constitution stands in need of alteration: and certainly not the less for the slaughter which gentlemen have been employing in their endeavours to prevent it. Were they aware—were they not aware—of the importance of the limitation, when, to the field of that legislative wisdom to which theirs disdained not to have regard, they assigned the limits which Europe has for its bounds? Be this as it may, had America—free and liberalized America—been within their view, and taken for their model,—Sir, you see the consequence. Taking Europe for their model, they violated the Spanish Constitution in its most essential and fundamental articles: they took for their end in view, how erroneous soever may have been their conception of it, the greatest happiness of the ruling few:—of that class of which they themselves are such distinguished ornaments: had they taken for their guide those essential articles of their own Constitution, they would have taken for their end in view the greatest happiness of the greatest number, and no such articles as those with which these two chapters of their Code are filled, would have been found in it.
Sir, it was their own doing—it was their own spontaneous doing—the heaping up all this pile of so much worse than useless punishments. By no article in the Constitutional Code were they compelled to it. By the Code, the powers were indeed created and conferred: but as to the punishments, if any, which should be employed in the endeavour to give effect to those powers,—on this head nothing can I discover but a blank.
Nor, because accordant with and confirmed by a principle of a democratical character, is there anything in this plan of arrangement,—in this order of insertion—that should prevent it from being pursued in a monarchy: in a monarchy, limited or even absolute: in a word, under any other form of government. For some time to come, it is not by every nation, that so much as the desire of living under a democratical government will be entertained: and of those by which it is entertained, it is not by every one that the faculty, of giving to any such desire its gratification, will be possessed. But, to no government—democratical, limitedly monarchical, or unlimitedly monarchical—to no government, however extensively and constantly determined in its conduct by regard for the separate and sinister interest of the ruling few and the supremely ruling one, to no government can it naturally be a discordant and unacceptable spectacle, to see the rule of action—at any rate this part of it—not only intelligible to all, but satisfactory to all: in no government can it be otherwise than satisfactory to its rulers to see their own personal security standing on its steadiest and surest basis.
Order of insertion is one thing: classification and nomenclature—(for they are scarcely separable) classification and nomenclature, by natural philosophers commonly comprehended under one name method, with or without regard to order of precedence, another. Of a rationale, formed by the undiscontinued application of the so often mentioned fundamental principle of your constitution, a correspondent method of classification and nomenclature, is a natural, not to say an inseparable, accompaniment and instrument. But, to the gentlemen in question, even without, still more with, this accompaniment, a rationale would have been a bridle: and, as I have so often had occasion to say, gentlemen did not want a bridle: no man in their situation does. Natural and rational are attributes, by which, with incontestible, and even with exclusive propriety, a method thus deduced and accompanied, may assuredly stand designated. This natural and rational method—apply it to the penal code, you will in so doing have gone the greatest part of the way, towards the applying it to the two others. According to the above-mentioned fundamental principle, offences is the name given in common to all acts, which, being regarded as productive of a balance on the side of mischief, are taken for the subjects of prohibition and thence of punishment. Mischief is, by the amount of it, a defalcation made from the greatest happiness of the greatest number: and to be real, it must, as above-noticed, consist exclusively either of pain in some determinate shape, or of loss of pleasure in some determinate shape: and in both its forms, or else it will not be prevented in act, it must, as above, throughout the whole of the field be opposed while as yet but in tendency: opposed, and to a considerable extent by means of punishment.
According to this principle, offences there can be none, but what are offences against individuals:—acts which, in act or in tendency, are productive of mischief, in this or that determinate shape, to individuals: to individuals—meaning rational beings: to which, if it be agreeable to you to add to a certain extent irrational ones, I would with pleasure, so they be sensitive ones, join with you, (as we have begun to do in England,) were it only for the sake of rational ones. To these, I am perfectly ready to add the Almighty Being, the very instant you have shown me that he is susceptible of pain or loss of pleasure through human agency, and at the same time unable to afford sufficient protection and security to himself. So likewise, but always under the same condition, to fictitious entities: such as religion, order, good order, “political order,” “public order,” or as many other orders as gentlemen please: in short, (but always under the same condition,) to fictitious entities, of any other sort, and in any number, that they please.
In act, or, in a distinctly perceptible and assignable way in tendency, every act, if fit to be, by means of punishment, erected into an offence, and thus placed upon the list of punishable offences, must, according to the above principle, be an offence against an individual or individuals:—an act productive of mischief, as above, to an individual or individuals. But, at the time of committing the act, these individuals may either be assignable or unassignable: when unassignable, they may be either comprised or not within a class less extensive than the class composed of the whole community—for instance, a class constituted by professional occupation, or a class constituted by vicinity of residence. And thus you have the three first and all-comprehensive divisions of offences: namely, I. Private offences—offences, the mischief of which applies to assignable individuals: II. Semi-public offences—offences, the mischief of which is in its range confined to such unassignable individuals as are comprehended within a particular class. III. Public offences—offences, the mischief of which extends in tendency to all the individuals, to all without exception or limitation, of whom the whole community is composed. (Note, that in an offence of a semi-public or public character, a private offence will frequently be included.)
Looking now to offences against individuals, you will find them distinguishable into offences against person, offences against reputation, offences against property, and offences against condition in life: and if, to any individual, mischief be done in any shape, you will, I believe, Sir, find it comprehendible under one or other of those divisions. Offences against person, you will find a convenience in distinguishing into offences injurious to body, and offences injurious to mind: not that body and mind are ever seen walking—the one one way, the other the other;—nor that pain or loss of pleasure can affect the body without affecting the mind;—but that in some cases the mischief will have its seat in the body only, from thence affecting the mind; while in others it will have its seat only in the mind. Looking to offences against reputation, you will (I must confess) see in reputation nothing more than a fictitious entity. But the adoption of it was found necessary, for the giving an intelligible and familiar appellation to a class of mischievous acts, which could not otherwise have been distinctly designated: and as this reputation is the reputation of a man, and a man is a real entity, you are not by this denomination put in danger of being sent in chase of clouds or shadows, as in those other cases: and, though of the mischief done to a man’s reputation, the seat cannot be elsewhere than either in his body or his mind, nor commonly very distinctly perceptible elsewhere than in his mind,—yet, for the reason just mentioned, you will, I believe, find a convenience in distinguishing it from all other offences, the mischief of which has its seat in the mind.
Looking at offences against property,—in property, if all the shapes into which it has been commonly cast are to be comprised, you will see objects, for the declaration or conception of which, you will not find it possible to speak, or even think, without making use of the fictitious entities, which, on this occasion, in such abundant variety, the authors of language have been under the necessity of creating for the purposes of discourse: you will see—not only real entities—things styled immoveable, relatively immoveable portions of our ever-moving planet—and those other real entities styled things moveable,—but the fictitious entities styled services, and rights of way, and rents, and tolls, and annuities and so forth, without end. But still, by no such fictitious entities, Sir, will you be put in any danger of being led away, from the consideration of the real and only really existing mischief—pain or loss of pleasure, of body or mind, or both—the only really existing mischief, that can be occasioned, or be in a way to be occasioned, to one or more of the really existing and human beings, whose good fortune it is to have you for their representative; and who, in a shape so honourable to you, have a sort of property in your services, in the very best shape in which it is in your power to render them.
Looking to offences against condition, you will find the like necessity, and thence the like justification, for the nominal existence given to this fictitious entity: for, though to a man’s condition in life you will find that no mischief can be done, by any act, any otherwise than through the medium of his property, or in some shape or other of his reputation, or of both, (for of the shapes in which property has place, property in human service, dependent in many instances in no small degree on reputation, is one,)—nor then, without producing pain or loss of pleasure, to body or mind, or both,—yet here, as before, you will find, in but too great abundance, acts, the effects of which, may with truth be said to be mischievous to a man in respect of his condition in life, but which, at the same time, having or not having their seat in the mind, could not be said to be mischievous to him in respect of property in any particular shape, or in respect of reputation alone: though perhaps they are so at the same time in respect of reputation, and in respect of property in a variety of shapes: the case being, that, on account of some peculiarities in the nature of the mischief, or in the manner in which it is produced, it requires to be distinguished by a separate denomination from the aggregate stock of the offences comprehended in the before-mentioned denominations.
Take for examples, conditions genealogical, such as the pair of correlative conditions belonging to husband and wife, together with the several others which, springing out of them, constitute the genealogical tree. Add those other conditions, which, without being genealogical, may be styled domestic, such as those of master and servant: add again those other conditions, which, like the former, are not political, and are still of a private nature, but are not necessarily correlative: I mean those composed of occupations of all sorts, other than those of public functionaries considered as such: add lastly, conditions political, all of them corresponding to, and constituted by, so many modes of servantship, as towards the community at large, considered in the character of master: of these last, the whole aggregate may be divided into public and semi-public, as in the case of offences.
In all these several cases, the chief value of the condition, in respect of benefit, and in respect of burthen, will be composed of services: in so far as the rendering of the services is obligatory, the possession of the condition will involve a right to the services in question: a sort of property, of which those services are the subject-matter: in this case, for example, are the correlative conditions above-mentioned: in so far as the rendering of the services to which the occupation owes its value is not obligatory, the value of it consists mostly of a sort of chance for obtaining free services, in exchange for other free services: in this case are the various occupations exercised by workmen and traders of all classes.
In this process, Sir, if your patience has been persevering enough to carry you through with it, you have seen logic employed in classification, and thereby in theory: in payment for this labour, you will now, I hope, have the satisfaction of seeing some good effects producible from it in practice.
In so far as, in a system of penal law, the denominations thus employed, afford, as above, indication of the nature of the mischief, in consideration of which, the acts in question have been placed upon the list of punishable offences;—of the nature of the mischief, and consequently of the existence of mischief in that shape,—in so far as this indication is afforded, every denomination, by which no such indication is afforded, will mismatch with them, and, on the part of the acts which it denominates, present a sort of presumptive proof, of want of title to be admitted into the company of the rest. In such a method, every such instructive denomination stands therefore as a sort of security against the admission of any group of acts, in which no determinately mischievous character can be found.
Take away the security, give admittance to acts, by the denominations of which, no such indication is afforded,—put aside the only natural and rational method,—then comes in as above—then comes in, as of course—some unnatural, irrational, and arbitrary one. Then come in, at every turn,—as sinister interest, or interest-begotten prejudice dictates,—acts which, not being productive of mischief to any such amount, that the mischief of the least punishment, by which any diminution could be produced in it, would not be still greater,—or even not being productive of mischief to any amount at all,—afford no sufficient warrant for the application of punishment. For the designation of these same innoxious acts,—since, by the supposition, no apt word, expressive of mischief in any shape, as being produced by them is to be found,—the words employed are such as are designative of this or that vague generality to which every man feels himself at liberty to attach whatever interpretation best suits his views: every man, and in particular every man who has it in his power, to give to his own interpretation the desired effect. Of these convenient generalities, Sir, would you see an example? Examples more than one—examples sufficient for illustration—may be seen in the system of classification and designation employed by the Committee. Witness Title I. Offences against political order: Title III. Offences against public order: Title VII. Offences against buonas costumbres, which, I presume, is a translation given to the Latin phrase bonos mores; and which, I infer from the use thus made of it, is in Spain become familiar to unlearned ears. In English, good customs—the literal translation of the Spanish words taken in their separate sense, would not serve:—offences against good customs—would not pass: still less would good manners—another of the literal translations of the two Latin words: In a boarding school, yes: but, in a penal Code, offences against good manners would not pass. To an English ear, by neither of these phrases would a sufficiently plausible pretence be afforded for penal visitation:—to use a recently invented, religiously and hypocritically cruel, rhetorical phrase.
Accordingly, when, for the affording, by political power, a gratification to this or that personal or individual antipathy, a formulary is wanted, the Latin phrase—bonos mores, by which the obnoxious act is enveloped in a cloud of convenient mystery,—offers a formulary, the suitableness of which has been proved by experience.
As to the phrase offences against good customs, it carries upon the face of it an objection against itself. Because A and B chose to do a thing, why lay hold on C who does not chose to do it, and punish him for not doing it? And so in case of omission or forbearance. What ground can the mere exercise of liberty by one man, or any number of men, afford, for imposing obligation on any other?
Of this, and of every other objection, but that of meaning nothing, and thence anything,—anything which it may suit the purpose of tyranny to make it mean, the word order stands altogether clear. Allow to the legislator the unlimited use and application of but this one word, nothing more is wanted to fit him out in the completest manner in the character of a despot, and that despot a tyrannical one. The acts which draw down upon innocent men the vengeance of the most atrocious tyrants upon record, can there have been any one of them that was not an offence against order? against the order, established by the tyrant by whom the man was punished for them? Tiberius, Nero, Domitian, Commodus, Caracalla, Charles the Ninth of France, Lewis the Fourteenth of France, Philip the Second of your own country and Belgium—Philip the Second, not to come down any lower—in the word order, had not they, for punishing every one of those whom it was their pleasure to punish, as good a warrant, as gentlemen have given themselves by the use made of this word in their Code?
By the word good, when prefixed, as it sometimes is, to the word order, intimation of something like a reference to public opinion seems conveyed. But, not even this little softening would gentlemen vouchsafe to apply to the despotism it proclaims.
Let me not, Sir, be misconceived. What I do not mean to say is—that among the acts, to which a title is given by them with the word order in it, there are not any to which it is fit that the character of punishable offences should be given; on the contrary, there are perhaps not many, to which, if it depended upon me, I myself should not give that character. All I mean to say is—that if an act’s being an offence against order is admitted as a sufficient warrant for placing it on the list of punishable acts, the consequence will be—that, along with acts affording a fit demand for punishment, others that afford no such demand may in any number be slipt into the list with little difficulty.
By a natural and rational method as above described, not only is a bar opposed to acts that are not mischievous, but so likewise is a thread afforded for the investigation and finding out of such as are.
In a method, thus formed by the application which, on each occasion, is made, of one and the same simple principle,—in every such method, by the relation which every offence bears to every other and to the whole catalogue of offences, you are no less naturally led to the discovery of undue omissions, than to that of undue insertions. In a catalogue of offences, in the formation of which no such instrument of indication has been employed, there may be gaps to any amount unfilled: to any extent, modifications, of maleficence, to which no penal bar has been opposed: deficiences ever so numerous and so extensive, and yet no indication of them afforded.
And as it is in regard to offences themselves, so is it in regard to other extensive objects, for the application of which a demand is created by the catalogue of offences. Witness causes of satisfaction for injury, causes of justification, aggravation, extenuation: causes for pardon, total and partial, formal and virtual.
Thus, not only in a direct way, by the application made of it to each particular case, but in an additional way by means of the method to which it gives birth, does the principle of the greatest happiness of the greatest number, cover the whole field of legislation with its salutary influence. By a method deduced from this principle, a bar is in every part opposed to the introduction of arbitrary arrangements in any shape, a thread afforded for the investigation and introduction of suitable ones, and in every part information given of the design pursued throughout the whole, and of the relation which each part bears to every other. By no mode of arrangement, not deduced from that all-vivifying and all-directing principle, can any such satisfaction be afforded. In every part, you see groups of offences, for the insertion of which no reason is visible: in the whole, you see a receptacle, into which, for the purpose of giving to them this disastrous effect, acts of any description—acts the most purely innocent—may with equal propriety, for anything that appears, be inserted.
No, Sir: without a good method for your penal Code, no good penal Code can you have: without a rationale, deduced from the fundamental principle of your Constitutional Code—greatest happiness of greatest number,—no good method can you have.
Gentlemen saw before them a method, of which the principle of the greatest happiness of the greatest number—the polar star of your and their Constitutional Code—was the object of actual and perpetual observation. Why would not they employ it? The answer is obvious, and but too uncontrovertible: Because it would not suit their purposes.
4.Example fourth and last. All Spaniards put under martial law.
In the Preliminary Discourse, (p. xviii.) “the jurisdiction of the military courts continues,” they say, “on their plan, confined to military offences:” that is to say (so they add by way of explanation) “to infraction and transgression of military discipline and ordenanza,” in English, order or ordinances, I cannot absolutely take upon me to say which. For a promise, satisfactory enough this promise. But how is it performed? Answer. By placing the civil authorities in subordination to the military: and in particular, by making military men, in so far as it shall please them to come into conflict with non-military men, judges in their own cause.
There, Sir, you see the position. Now for proof.
Turning to Preliminary Title, Chapter xiii. Articles 187, 188, I find as follows—
“Reserved equally (igualmente) for the military authority and jurisdiction, in quality of military offences, are the following:—”
“Firstly: acts of disrespect (los desacatos) or violence, committed by any person whatsoever, against military men who are found” (que se hallen) (meaning it is hoped only at the time of their being oocupied) “in an armed state in military service.” Without this limitation in point of time—a limitation which, under this wording, a judge may apply or not apply as he feels disposed—any person whatsoever may be punished in a military manner by a military man for any act deemed by him an act of disrespect towards a military man.
“Secondly: those” (offences) “which are committed in like manner” (tambien) “by any person whatsoever, either within the quarters, riding-schools, magazines, and other military edifices, or to the damage of any effects which are therein kept.”
“Thirdly: acts committed by any person whatsoever in aid of a foreign enemy.”
By this third clause, compared with Title ii. Chapter i. articles from 252 to 261, a fair sparring match might seem to be set on foot, between judicatories military and civil, on this part of the field. But, as the hands of the civilians (it has been or will be seen) are tied behind them, no mutual bruises need be apprehended.
Now, then, Sir—on any account whatever,—by behaviour ever so bad, or by behaviour ever so meritorious,—suppose a non-military man to have rendered himself obnoxious, to a man, or to a certain body of men, in the military service. Under the second clause, if by any means they can contrive to get him, at any time, within their “quarters,” (whatever may be their “quarters,”) or when they are upon a march, or in short upon duty, anywhere,—what is the injury it will not be in their power, in virtue of this article, to inflict on him, and without possibility of redress?—But no: they need not be at any such trouble. Let him be where he will, they have but to pick a quarrel with him—to bestow on him any such treatment, as may have the effect of drawing from him words of a “disrespectful” nature, he is thereby placed at their disposal.
A judge upon the bench—suppose an occasion to present itself, in which it may appear to him matter of duty, to express, in relation to the conduct of any man of the military order, any such sentiment of disapprobation as a judicatory composed of men of that same order shall be pleased to regard as being expressive of disrespect: this judge, if he be a person (persona)—this judge—though he be of the highest order of judges, nay the minister of justice himself,—is he not, Sir, by this article, placed no less absolutely at their mercy than the meanest citizen?
In all these several cases, not only is the judicatory to be military; the punishment is to be so likewise. The association is formed by igualmente:—one of the instruments of entanglement, which the genius of confusion, under the guise of the genius of eloquence, has contrived to put into gentlemen’s hands.
By this instrument it is—by their igualmente—lodged as it is in article 188—by this it is that, ere we can obtain an adequate comprehension of what is done by this same article 188, we are made to go back to article 187: in which article the first word I see is a tambien, by which I am sent further back to the two first articles of the same 13th chapter, namely, articles 185 and 186; which same article 186 has nothing to do with the subject, being confined to ecclesiastical persons and ecclesiastical offences: for this same article 185, conceived as it is in general terms, seems to be inserted by way of ornament, the general terms not adding, as far as I can perceive, anything to the mass of the more particular arrangements which follow it.
Of the words which the also—Tambien (or in like manner) in article 187, serve to introduce,—the following, in so far as my interpretation of them is correct, is a translation as literal as possible. “Reserved to the military authority and jurisdiction is the cognizance and chastisement (castigo) of the offences (delitos, culpas y faltas)* which, “contrary to their discipline respectively, military persons commit.” In the word castigo, may be seen the demand created for the reference thus made from the 188th to this same 187th article: for, thus it appears, that, by this word as inserted in 187, and, by the word igualmente in article 188 applied to and ingrafted upon this same article 188,—not only is the judicatory, by which persons not military are in these cases to be tried, appointed to be a military judicatory, but, as I set out with saying, the punishments which they are to suffer, are appointed to be military punishments.
Note that, by being thus subjected to the military authority as exercised by courts martial, the civil Judges of all classes are subjected to the arbitrary power of the monarch. For, in the Constitutional Code, by article 171, number the 8th, to the monarch it belongs to command the army and navy, and to appoint the generals and admirals: under which provision must be understood to be comprehended, (though forgotten to be expressed,) the removal of them, or else I do not understand how the command given to him over them can be exercised:—if not removeable, a commander in chief, when once appointed, will be absolute.
For this subjection of the civil judicatories to the arbitrary power of the King—for this subjection, thus established in an indirect way, through the medium of his necessarily arbitrary authority over the military judicatories, the constitution and the people would not, it is true, be much the worse, if those same civil authorities were, in a direct way, in a state of equally effectual subjection to that same power. But this is not the case. For, by that same article 171, number 4th, it is not by the king alone that the magistrates (Magistrados including I suppose judges) of all the civil and criminal tribunals are to be nominated, but by the king at the presentation of the council of State, in the appointment of the members of which, by articles 233, 234, he has no other share than the choice of the number in question out of thrice the number presented to him by the Cortes. Thus as to appointment: and as to removal, “magistrates and judges” (says article 252, judges being now inserted—for thus are your immutable laws drawn up) “magistrates and judges cannot be deprived of their situations, without cause legally proved, and stated in their sentence: nor suspended, unless in consequence of accusation legally instituted.”
Whether, for words deemed wanting in respect applied to a soldier, a court martial shall be pleased to flog or beat the Judges of the supreme court of justice erected under Article 259 of the Constitutional Code, or content themselves with imprisoning them,—regard for the constitution will, I make no doubt, suffice for preventing the military Judge from signing, either a sentence of forfeiture, or so much as an order of suspension in their case. But, by any such regard for the constitution, it does not appear to me, how the mischief, if any, from the subjection of the civil judicial authorities to the arbitrary will of the monarch,—through the medium of his courts-martial, as above,—will be very materially diminished.
Was it by design, Sir, was it by inadvertence, that the sort of arrangement you have seen, was proposed by gentlemen for your adoption? In either case, what say you to it? In either case, at the elections before the next Cortes but one, what will their constituents say to it?
Nothing of professional or other prejudice—nothing of exaggeration, Sir,—need you fear in me. Knowing something of your non-military judicatories in so far as they are upon the Roman models—knowing something of these and next to nothing of your military ones,—for the present, and until your judicial establishment, and system of judicial procedure, have been put upon a footing very different from that in which I understand them to stand at present,—supposing professional sympathies and antipathies out of the question, I have more confidence in the military than in the non-military ones. Why? Because the military ones have at any rate this distinguishing character in their favour, so at least I take for granted, namely, that by delay, vexation, and factitious expense, they have nothing to gain, while the non-military ones have everything to gain. To real justice,—not only among us, as far as little less than sixty years of pretty close attention has enabled me to judge, but among you, as far as depends either upon the system of procedure or the ordinary dispositions of the judge,—to real justice the citizen has, I should expect to find, a better chance in a military judicatory, than in the highest ordinary judicatory that is not military. If I have not been misinformed, in the case of offences of an insurrectionary nature, leaving or not leaving the cognizance of them to be shared by the non-military judicatories, you have, by a recent decree, given the cognizance of them to judicatories of a military cast:—to judicatories, in which, whether the judges be or be not of the military profession, (for I know not which is the case,) the mode of procedure is at any rate military. To me this information, taken according to such conception as I was in a way to form in relation to it, was I confess not unsatisfactory. Now, said I to myself, there seems a probability of a decision: till now there has been no chance. Of this conception, right or wrong, my observations on Judge Hermosa’s panegyric on judicial forms and delays, may help to show the grounds.
In the present state of civil judicature,—even to give to military men the cognizance of disputes, on whatever subject, between non-military men and military men, might for aught I can say be an improvement. But, so long as there are judicatures not military, to which the cognizance of causes of any kind continues to be intrusted,—to think of intrusting to military judicatures the cognizance of causes arising out of disputes between non-military men on the one side and military on the other, this is what I must leave to the gentlemen in question, and to the construction put by them upon the Articles relative to the greatest happiness of the greatest number, if the remembrance of it has not dropt altogether out of their minds.
Among the sources of “controverted points,” this topic relative to judicatories of exception, as you may remember, we have found reckoned: but no ground do I, on this occasion, find for any such supposition, as that the question whether the civil authority should be subject to the military, or the military to the civil, was of the number of these same controverted points. Unanimous, as far as appears, has been the opinion, by which the civil authority is placed, as above, in subjection to the military: the opinion unanimous, and the propriety of it too plainly manifest to stard in any need of support from reasons.
Sir, this is going even beyond us. Even in our government, military as, under our “best of kings,” it is become, non-military men have not yet been delivered up to military judicatories. A servant of the king gives orders for killing us, and we are killed: but should a military man, by whom, without provocation we have been killed, be called to account for it, it would be in some ordinary and non-military judicatory that the account would be rendered, and to some non-military functionary or functionaries that the giving him impunity would be consigned: to the king’s attorney-general, by means of an instrument called a noli prosequi or a nolle prosequi; to the chancellor with the king’s signature, by means of an express pardon, or (what is more commodious) to the judge, by whom the man is tried, by means of a virtual pardon, manufactured out of a quibble:—out of some recondite rule of evidence, or other rule of procedure, which, if it has not yet been made, can at any time be made for the purpose: just as penal law to any extent is, in the name of common law, made, every day, by this or that dependent creature of the king in the situation of judge, without putting the legislature to the trouble.
We have priests, to order unarmed and unoffending men, with women and children, to be killed, and ministers with kings at their backs to reward them for so doing: we have posts, by the receipt of which men are entitled to receive sinecures of thousands a-year for such services.
All this may be done, and is done. But what with us remains as yet to be done is—to subject men not military, for offences not military, to be tried, without any such formality as that of jury trial, by a court-martial composed of military officers. Yes, Sir: as yet,—though I cannot take upon me to promise how long it will continue so,—as yet for an offence not military, be it what it may,—and be the individual specially injured, if there be one, who he may,—a military man, be he who he may, may be tried, and is tried, by a judicatory not military: no non-military man is, for any offence, be it what it may, tried by a military judicatory.
Though you must have quitted Paris,—taking for granted that you have given directions for the transmission of my letters,—not having been forbidden, I give them and shall continue to give them the same direction as before.
One observation or two more, before I quit the subject of method altogether.
In different places of the proposed Code, I see a number of articles, encumbered, each of them, with a clause, by which, where the offender is a public functionary, an ultrà punishment is added. Witness Articles 202, 203, 204, 206, 207, 213, 214: and in short such seems to be the method pursued throughout: also a separate clause to the like effect applying to ecclesiastics; as if an ecclesiastic, as such, were not a public “functionary.” But perhaps that title was regarded as not belonging to Monks or Sinecurists: and, in the apprehensions in which the punishments originated, foreign ecclesiastics, not beneficed in Spain, would naturally be included.
Various are the inconveniences resulting from this practice:—by it, the conception and memory, of individuals at large, is burthened with matter with which they have no concern: the bulk of the whole receives a useless increase: and, by a want of uniformity and correctness in the mode of expression, imperfections, too various to be here brought to view, are liable to be produced.
In another part of this same Code, I see a compartment, by the consistent and comprehensive use of which the inconvenience might at any rate have been lessened. I mean—in Part 1, Title vi., containing, in 12 chapters, Articles 76, namely, from 493 to 528. It is headed—“Of Offences of Public Functionaries in the exercise of their duties.” Offences, namely, delitos y culpas: faltas being, on this occasion, as on the one above noticed, omitted. Here then is a place, into which the matter relative to public functionaries, as above, should naturally have had admission: at any rate, supposing the words “in the exercise of their duties,” omitted: as they might have been without inconvenience. Unhappily, there is no reference from either of these places to the other: the consequence is—that,—ere he can be assured of his having information of the whole of the burthen, for ignorance of which, or any part of it, he is exposed to be punished, in many perhaps most instances by loss of office,—a public functionary must have hunted through the whole Code.
By the title thus given to that division of the Code, is not a presumption, Sir, afforded, that, by the matter of it, information, in some shape or other, was meant to be given, to all the several individuals so denominated, of the whole mass of the obligations respectively imposed upon them? For, unless it be in proportion as such information is possessed, how is it that, by the community at large, the benefit, expected from the fulfilment of these same obligations, can be received? the afflictive punishments, appointed in proportion to non-fulfilment, be avoided?
But, if so, how happens it, that no reference is there made, to so many other articles, in which other obligations not less serious are imposed upon the same persons? Thus faint are the traces, which in that part the proposed penal Code affords, of any regard for the two characteristic and fundamental articles of the Constitutional Code.
To confront with the method thus exemplified,—allow me, Sir, to submit to you the two short rules, by which the disposition of the matter, in the whole body of the law, has been governed,—in a Code, in the penning of which, that all-illuminating principle has never been for a moment out of sight.
Rule 1. Make known to every man what belongs to him.
Rule 2. Burthen no man with anything that does not belong to him.
Would it be agreeable to you, Sir, to see them both in a nutshell? Behold them then in a Latin one. Rule 1, Suum cuique: Rule 2, non suum nulli.
1. Make known to every man what it belongs to him to know. Functionary or non-functionary, no more would I think of making a man suffer, for non-observance of an article of law, unless it had been put into his hands, having first been cleared of all matter in which he had no concern, than I would think of punishing a child, for the not having performed a lesson that had never been set him. “No more,” did I say? I should have said—much less. Think, Sir, of the difference as to the penal consequences!
A few observations,—showing, on the one hand, the all-embracing application capable of being made of these two short rules, on the other hand, the aspect borne towards them by this work of your illustrious colleagues,—I know not, Sir, how to forbear troubling you with.
Be the Code what it may, if, of the class to which the individual in question belongs mention is made, he is in point of interest either concerned or not concerned in it: if concerned, he is so either in quality of party burthened, or in quality of party favoured, or in both qualities.
Taking into mind the entire mass of the matter of law, including not only that portion which at the time in question happens to be actually in existence, but also whatsoever other matter there be, a demand for which may eventually come to be found to have place,—in a word, taking into mind the whole body of the law actual and desirable together,—let a man consider it with reference to the number and description of the persons affected in point of interest by the several distinguishable parts of it, he will find it, according to a principle of division, at once natural and all-comprehensive, divisible into the general Code, and the system or assemblage of particular Codes.
In the general Code,—saving a few exceptions, which on inspection will be obvious to every eye,—the two opposite and correlative situations of party benefited and party burthened will be seen to belong alike to every member of the community: in so far as protection is afforded him from mischief at large, and in particular from whatever mischief he stands exposed to suffer from the effects of mischievous acts on the part of other men, the situation a man occupies is that of party benefited: in so far as coercion, whether in the shape of restraint or constraint, is imposed upon him,—whether for the purpose of preventing him from being an instrument of mischief, or causing him to be an instrument of good, to other men,—or for any other purposes, all manner of bad purposes included,—the situation he occupies is that of party burthened. To the extent therefore of the whole field of the general Code, every man has this double interest in being acquainted with the matter of it: this double cause, for wishing to be acquainted with it. In any particular part of it, according to circumstances, it may be in the one or the other capacity, that the interest he thus has in being acquainted with it is greatest.
In the system of particular Codes, may be seen that one of the two great masses, which in this respect presents the greatest differences.
Persons taxed, &c., public functionaries, and parties to contracts—by these denominations are brought to view the three most extensive classes of persons, who, in the situation of parties specially burthened, have respectively an interest in the matter of this or that Code belonging to the system of particular Codes.
I.Persons taxed, &c. By this I mean the persons of various classes, that of public functionaries not excepted, on whom, for the benefit of the community at large, or of this or that portion of it, the obligation of rendering service, in the shape of payment of money, or any other shape, is imposed.
In the particular Codes, by which taxes are imposed, for the use of the community at large, the several persons on whom respectively the contribution in its several shapes is imposed—these, commonly with the addition of others, to whom, on each several occasion, it happens to be in some way or other respectively connected with them,—are the parties thus specially burthened: the party benefited being, as just mentioned, the community at large. Where, instead of the community at large, the party benefited is either a particular class, or a particular individual,—his description receives the changes thus indicated.
To impose a tax, &c., is to impose the obligation of rendering to a party of this or that description as above, service in this or that shape: and of service, the simplest and most comprehensive shape is that which consists in the transfer of money.
In this one group will be comprehended, it is evident, a numerous and ever variable multitude of particular Codes, in each of which, in the character of party burthened, a class more or less numerous of individuals will find itself interested: and, in the instance of each individual, there will be an assemblage of Codes, more or less numerous, and ever variable, in which he will find himself to have an interest.
II.Public Functionaries. In a particular Code, in which anything is ordained that bears upon the situation of a public functionary, or a class of public functionaries, as such,—the functionary, in respect of any obligations imposed upon him, is the party specially burthened: if, in return for the services expected at his hands, the matter of reward in any shape is placed within his reach, he is in so far a party specially favoured. If, to enable him to fulfil any obligation imposed upon him, or in a word any service expected at his hands, power in any shape is conferred on him,—he is, in that character also, a party specially favoured. In respect of the reward, he may be said to be not only specially favoured, but moreover specially benefited: not so in the case of the power, if considered as charged with the obligation, and not accompanied with the reward. But note, that in many shapes, in many eyes, the power, though not accompanied with any distinct reward, and notwithstanding every obligation it is charged with, has the effect of reward.
Unless it be in the case of a monarchy,—concomitant to power in every shape, is, or is supposed to be, obligation in the correspondent shape—obligation to direct the exercise of the power to the rendering of the services, by which the function is characterized.
III.Persons engaged in contracts. In the case of a contract, the same person has place in the two opposite and correspondent characters: namely, that of party benefited as well as favoured, and that of party burthened. In the benefit expected from it, each party sees the inducement, by which he was led to take upon himself the burthen: and, unless in his eyes the benefit from the transaction had at the time been greater than the burthen, he would not have engaged in it.
Of the several conditions in life, the two most important and most extensively entered into—namely, that of husband and wife, and that of master and servant, are respectively the result of a correspondent contract. In the case of father and child, the two opposite and correspondent conditions,—though not constituted by a contract, to which the persons so related were both of them parties,—derive their existence from contract, namely that to which the two parents were parties, and in which the child was eventually among the subject-matters of it.
That on the one hand the burthen upon the conception and the memory, on the other hand the burthen upon the purse, may be as endurable as possible, in the giving expression to this matter of the body of the law, repetition will of course be to be avoided as much as possible. If—in every particular Code headed by the name of the class it belongs to, not only the whole of the matter in respect of which a man belonging to that class is party benefited, but the whole of the matter in which he is party burthened, were inserted at length,—no small portion would thus be to be printed twice over: and the burthen, as well upon the purse as upon the conception and the memory, would, in a proportion more or less considerable, be increased. In the instance of every particular class of persons,—in the Code, the matter of which belongs to that class, and on that account will require to be denominated from it,—in respect of some part of that matter, the individuals belonging to that class will be parties specially benefited, or at any rate parties specially favoured; in respect of other parts, parties bound. In whichever of the two characters a person is concerned, it is alike requisite, that information of the concern he has in it should be in his hand. In the Code denominated from the class to which he belongs, all such information must accordingly in some shape or other be contained: but, in that same Code, what part shall be inserted at length, what part no otherwise than by reference to the Code or Codes, denominated from this or that other class concerned in that same matter in a manner which is correspondent and opposite,—will depend upon particular convenience, as indicated by particular circumstances. Note on this occasion, that by one and the same group of legislative arrangements by which the man of but one class is a party burthened, men of divers other classes may be parties benefited: and so vice versâ.
In the case of a member of the judicial establishment, may be seen that of a public functionary, who, together with the power, being charged with the obligation of contributing, according to the nature and extent of his jurisdiction, to the giving execution and effect to the whole body of the law, or to this or that part of it, is therefore,—not only in a general way in his quality of member of the community, at once party benefited and party bound with relation to the whole matter of the general Code,—but likewise, with relation to the whole of the matter of the system of particular Codes, specially favoured in respect of the above-mentioned power, and specially burthened: burthened with the obligation of eventually giving execution and effect to it, and to that end, of lodging and keeping in his mind the import of it.
Only in proportion as it is known, can the law or any part of it, be an instrument of good in any shape. But,—with every degree of compression that can be given to it,—the difficulty, of giving to the knowledge of it this necessary extent, cannot be inconsiderable. Any expedient, which promises to contribute in any degree to the lessening of this difficulty—ought it, Sir, to be left unemployed?—Of some of these expedients, I proceed to submit to you, Sir, a faint sketch.
I. Laws of constant concernment—laws of incidental and contingent concernment:—by the distinction thus expressed, one instrument for the diminution of the burthen upon the conception and the memory, may be brought to view. In the case of a law of incidental concernment,—if the case be such, that the demand for attention to it will not be presented, till after a certain state of things has taken place,—a state of things, notice of which cannot fail of being received by the parties, who, whether it be in the character of party burthened or party benefited, are parties concerned,—a consequence is—that of this part of the Code, be it the general, be it any particular one, the expression at length need not be given in every edition of this same Code: by indication, given in the way of reference, to a more enlarged edition in which the part in question is given at length, the purpose of conducting the mind to it will be answered: and, in the case of no individual, with reference to whom this state of things never does take place, will the Code, out of which the matter in question is omitted, be incomplete.
First instrument of reduction or compression as above—distinction between articles of constant concernment and articles of incidental and contingent concernment. This distinction applies alike to the general Codes and to the system of particular Codes.
II. Second instrument of reduction or compression—distinction between main text, expository matter, and rationale.* On my plan, the matter of each of the three Codes—penal, civil, and constitutional, is divided into general titles and particular titles:—or into particular titles and general titles: for it is not as yet altogether clear, which of the two orders will in each instance be most convenient. Take, for example, the penal Code. In the particular titles, the main text is composed principally of the denominations given to the several offences: denominations, followed each of them by a definition, and coupled with intimation given, of the punishments respectively attached to those offences. In some cases to the name of a genus of offence thus marked out, may be added—added in form,—other more particular denominations, declared to be indicative of so many species of acts contained under that genus. Be this as it may, by every distinguishable portion of the expository matter, designation will be made, of some particular species of act contained within that same genus: made by the very nature of the case, whether mentioned or not mentioned as being made.
Compared with the bulk of the whole, the bulk of the main text will lie in a very narrow compass. The particulars, contained in the expository matter, are employed in giving clearness and precision to the import of the name of the offence, and of the definition given of it. When, of this expository matter, a conception has once been obtained,—it will thenceforward, with more or less clearness, correctness, or completeness, be suggested by the name alone; still more effectually by the name with the definition added to it: and, the more completely this effect is produced, the more effectually will the main text answer the intended purpose, when the expository matter is detached from it.
So likewise as to the rationale. The use of the definition is—to distinguish the offence defined, from all objects with which it is likely to be confounded: in the first place, from all acts to which punishment is not meant to be attached in any shape—in the next place, from acts, in respect of which, for the purpose of punishment or any other purposes, arrangements in any way different are meant to be made. Take, for example the offence of theft. Neither in the Roman nor in the English law,—neither by any definition that has ever been given either in the way of statute law, or in the way of common law,—nor by any lights, afforded by reports of judicial decisions,—has any clear line been ever drawn, between a non-criminal taking, namely, on the supposition of right to do so, on the one hand,—and the taking by means of consent obtained by fraud, on the other. The expository matter will, in its own way, contribute to fix in the memory, when once let in by the conception, the idea of the true character of the offence: the rationale will, in another way, contribute to the same desirable end. But, moreover conversely, the effect of the association being mutual,—proportioned to the clearness, correctness, and completeness, of the view which these instruments of elucidation have given of the object, as designated by its denomination and its definition,—will be the facility, with which, upon every occasion, the import, of these same instruments respectively, will be recalled: recalled, by the denomination and definition together, or even by the denomination alone.
In this way, Sir, in my penal Code, you see three distinguishable parts, contained under the head of each genus of offence: the second and third,—each in its own way, throwing light upon the first, and thus forming a useful accompaniment to it,—but each of them capable of being detached from it. On this plan, in so far as there may be any use in separating them, nothing can be more easy: every printer will be competent to it. If there be any such use, it will be in the way of lessening the burthen: the burthen, whether it be on the conception, the memory, the pocket, or the shelf: not to speak of the pocket in the literal sense.
Of both expository matter and rationale, particular samples may be seen, in the first of those works of mine that have been edited in French by M. Dumont.* You will assuredly neither expect nor wish, Sir, to see anything of either of them here. What the relation may be, between what is said there on the subject and what I have said here, I know not. Neither eyes nor time will admit of my looking at it.
Other instruments of compression I employ: But, by any attempt to convey any conception of them here, I know not what further addition might be required, to a load which perhaps may already have been put aside as unsupportable.
You see already, that either the main text alone, or the main text with the expository matter, may be considered as an abridgment of the whole. Here then you see a sort of abridgment of the legislator’s work: an abridgment made by the legislator himself. On this occasion, permit me, Sir, to observe, that the legislator’s is the only hand, by which an abridgment can be made, on which any dependence can be placed with safety—can be placed without imprudence. Let the work at large be ever so replete with imperfections,—an abridgment, in which those imperfections were removed, would, to him who trusted to it, be no less mischievous, than one, in which the multitude of the imperfections had in the same proportion received increase. How can it be otherwise? In case of litigation,—not by the abridgment good or bad—not by the abridgment, but by the authentic work at large,—will the lot of the parties litigant be determined.
Thus in case of statute law. As to common law—in this case, an abridgment is an imagination of an imagination.
In either case, in what character is an abridgment capable of being of use? Only, Sir, in that of an index: an index, for giving information, of the places in which may be found those portions of discourse, by reference to which the fate of the cause, and thence of the parties, will be determined: an index—differing no otherwise, from the sort of implement more usually designated by this name, than by being more ample, and cast into a logical form instead of the alphabetical.
In the rules suum cuique and non suum nulli is included, you see, Sir, this instruction to the legislator.—So order matters, that, in addition to the general Code in which all have a concern, each one shall have—have actually in his hands—every particular Code in which he has any concern: and that in a state separate from every particular Code in which he has not any concern.
The all-comprehensive survey, thus and for this purpose taken of the field of legislation—the division thereupon made of the rule of action into general Code and system of particular Codes—was there no use in it, Sir? Was it mere theory? had it no bearing upon practice? no influence on the greatest happiness of the greatest number? To the gentlemen in question—was it unknown, Sir? No, Sir, it was not, it could not be, unknown to them: it stared them in the face: it stared so strongly that they shut their eyes against it. It came from the intrusive foreigner: it was not of their starting: it would have given them too much trouble:—in a word, it suited not their purpose. It was put aside accordingly. There, Sir, you see the cause.—No such thing was to be found in any of the most accredited Codes:—there, Sir, you see a pretence.
Such is the omission. Now for one little example of the consequences.
On my plan, under the head of Husband and Wife, in a particular Code so denominated, a document, in which all benefits and all burthens, attached by law to those two correlative conditions, are set forth, would be found. If it depended upon me,—on entrance into that contract, into the hand of every man and that of every woman, should a copy of it be placed, or no such contract should be entered into: if some time before the ceremony, so much the better. They would then enter into the engagement with their eyes open, and not as at present, blindfold. An instrument of this sort—would it be less instructive, less useful than a ring? But rings were made before Codes were made: before Codes were made, or the press for the printing of them invented. But moreover, from the relations between husband and wife come eventually those between father and child: of the particular Code intituled Law of father and child, notice would accordingly be given in the particular Code intituled Law of husband and wife: with or without intimation, more or less particular, of the details.
In the Committee’s proposed Code, arrangements relative to this pair of correlative conditions, have place. Under what head? Under that of “Offences against buenas costumbres:” Articles 559, 560, 561, 562: offences against good morals or good customs. But, on or before entrance into this engagement,—what man, what woman, should this same Code pass, would think of buying a copy of it, and reading it? Even if they did set about reading it, would not they, to save trouble, be apt to glance over the titles? Glancing over the titles, would they see any one of them, in which either the word husband or the word wife is mentioned? Not seeing any such title, but seeing the title offences against buenas costumbres, would they be led by it, to expect to find in it anything that they would have more concern in after their marriage than they had before?
One little example more.—Knowing that, in the Code in question, there is a compartment, in the title of which functionaries in general are mentioned,—every man, to whom that denomination belongs, will of course understand, that in some way or other he can scarcely fail to have a personal interest, in making himself acquainted with the contents.
But, from any such title as that of offences against the liberty of the nation, what is there that should lead him to make any such inference?
In the Committee’s proposed Code, I see a division thus intituled—“Of the offences,” (delitos y culpas,) “of public functionaries in the exercise of their offices:”—Chapters xii.; pages 23, from 132 to 155 inclusive; articles 76, from 453 to 528 inclusive. After so much said on the subject under its own name,—who, without notice given, would expect to see anything more about it under any other name? Yet, under other names, more there is in abundance,—and no warning given of it: and, in particular, under that of offences against the liberty of the nation, as above.
Whatsoever be the benefits, undertaken to be conferred on a man by any part of the law—whatsoever be the burthens imposed upon him by force of punishment,—do gentlemen know of any means a man has of making himself secure,—secure, either of enjoying the benefit or of escaping from the punishment,—without reference made to the law? Wherefore then did they decline taking the measure necessary for the putting this saving knowledge within every man’s power? Wherefore?—but that—either absolutely, or in comparison with some nearer object,—the greatest happiness of the greatest number was, in their eyes, an object of indifference.
Giving to a man this double security—giving to every human being that could read it, or hear it read, this double security—giving to the whole body of the law all this efficiency—a service such as this, would it, Sir, be a service without value? This service, the intrusive foreigner would have rendered, and would yet render, to your nation. This service, gentlemen would not themselves render, nor would they suffer him to render it.
They are Spaniards: to them it belongs to be apprized of all those circumstances, affecting in each case the demand for legislation, that are peculiar to Spaniards: to them, yes; to him, not.—Be it so, Sir. But, by him who, having complete knowledge, will not make application of it, or by him who, having but incomplete knowledge, would make application of it to the uttermost of his power—by which of the two, with reference to the purpose, whatever it be, is most service likely to be rendered? On the part of the foreigner, the knowledge of the circumstances peculiar to Spain was wanting: relation being had to Spain, imperfections in any work of his would thence have been inevitable. Admitted. But, whatever would have been these imperfections, could there have been, on the part of the gentlemen in question, any want either of the inclination, or of the power, necessary to the correction of them? Thus stood the matter at the first. But, at present, and in future, whatever wisdom it may be, that, in their instance, composes the fruit of this indispensable local knowledge, it is now visible: It is seen in their proposed Code, and all foreigners, as well as all Spaniards, have it before them.
Two rules you have already, Sir, in a nutshell: permit me to slip into it one other such little pair, and I have done.
Rule 3. Ideis iisdem, verba eadem.—or thus—Eadem natura, eadem nomenclatura. Of this the converse is—Rule 4. Ideis diversis, verba diversa: or thus—Alia natura, alia nomenclatura. Change the expression, can any one avoid suspecting at least, that the ideas you meant to convey are changed likewise? Supposing it your intention to convey different ideas, could you take any other means than that of using different words? If you could not, then is the use you have made of different words a certificate of diversity in the ideas; and this certificate is a false one. If these rules be conducive to the ends of language, and the opposite course repugnant to the ends of language, try them, Sir, upon the proposed Code: try them throughout upon that great work, and see what will become of it. Of this I have already submitted to you a few exemplifications.
Thus is it, as I have so often had occasion to observe—thus is it, Sir, that in every page the same unfortunate spectacle is but too visible:—knees bent, before the fascinating art of Rhetoric: backs turned, upon her formal, but honest, sister, Logic. Good this in poets: but is it so in legislators?
Ideis iisdem, verba eadem; ideis diversis, verba diversa—there, Sir, you see two rules of expression, two rules for the expression to be given to the matter of the law. Suum cuique; non suum nulli—there you have two rules of distribution: two rules, for the distribution to be given, to that same matter, on the possession of which, to so vast an extent, the difference between happiness and misery, in the instance of every human being, depends. Proceeding thus, what Linnæus did for natural history—what Sauvages did for the nosological branch of medicine,—that will this your troublesome correspondent do, Sir, for legislation, so far as life and faculties suffice. And already, though it were by nothing more than these four short rules, is not some little progress made?
Lawyers, employed by the ruling few, with or without cognizance taken by a supremely ruling one—lawyers, linked with these their employers by a community of sinister interests—such are the men, by whose particular wills, governed by their particular and thence sinister interests, on this as on every other occasion, as far as has depended upon the state of the law, the condition of the millions has been disposed of. But, with the exception of those violences, from which the danger to every man’s person and property is serious and manifest, their own included,—it is the interest of lawyers, that the multitude of offences in all shapes should be at its maximum,—in such sort as that the profit, from defending the injured against the injurer, and the injurer against the injured, shall be so likewise. Thus it is, that, with the above exception, mischief, in whatever shape produced by ignorance of the law, is by professional draughtsmen viewed with delight: and, it being to their high seated employers matter of indifference, hence it is, that we see it left, upon the footing at which it suits the interest of the lawyer class, that it should everlastingly be kept.
[* ] See vol. iv., p. 563-4.
[* ] To these words, meant all of them to designate so many species of the genus offence,—to these words, to give the equivalent in English words, is not possible. The intention of them seems to be, to designate three degrees of criminality: in general, the highest standing first. But this distinction has nothing to do with the nature of the offence: it takes that offence for the greatest, to which it has been the pleasure of the despot to attach the greatest punishment. This was the distinction established by Napoleon. In the climax established in his penal Code, you have contravention, delit, crime. Of this order, that which is here in view in your proposed Spanish Code seems to be the reverse. By the word culpas, I was led to suspect the distinction to have been borrowed from the Roman law. But, though the ideas seem so to be in both instances, in one of them the word is not. The word culpas corresponds indeed to the Roman culpa: but the word delitos does not correspond to the Roman dolus: which word—(a word that, considering its meaning in the ordinary language, namely deceit, was miserably ill-chosen by the lawyer tribe) so far as in their language it means anything, means criminal consciousness, their culpa meaning temerity pure from criminal consciousness: a distinction piteously ill-adapted to the denoting of different classes of misdeeds, it being applicable alike to all classes. In gentlemen’s proposed Code, the first chapter, consisting of one article, has for its title, De los delitos y culpas: neither in the title, nor in the body of the article, is there any such word as faltas: Of delito a definition is given, whereby the conception, so far as discernible, appears to correspond with that of criminal consciousness: and in like manner culpa with temerity. To these definitions, such as they are, no reference is made either in the articles here in question, namely, 185, 186, 187, 188, or in any other of the articles in which the words are employed:—words to which meanings are attributed, so different from any that any man can have found attached to them in ordinary discourse. In relation to the first article, the supposition thus proceeded upon, is—that every man carries it at all times in his head. In the instance of the five honourable draughtsmen themselves, or any one of them, can it, Sir, have been a true one?
In articles 189, 190, being the remaining ones of this chapter, I find not only the word faltas dropt, but also the word culpas. Was this by design, or by inadvertence?
[* ] See the Constitutional Code, in vol. ix. of this collection.—Ed.
[* ] See in this collection, vol. i. p. 164.