Front Page Titles (by Subject) LETTER VI. - The Works of Jeremy Bentham, vol. 8 (Chrestomathia, Essays on Logic and Grammar, Tracts on Poor Laws, Tracts on Spanish Affairs)
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LETTER VI. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 8 (Chrestomathia, Essays on Logic and Grammar, Tracts on Poor Laws, Tracts on Spanish Affairs) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). In 11 vols. Volume 8.
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On the anxiety of the Legislation Committee to keep the door of the Cortes shut, against works coming into competition with their own. Conditions on which Sanctionment is recommended. [Necessity of the free tone of these Letters.]
Such, with the exception of the words in brackets, was the title of this my sixth letter as announced in the first. Meantime, the matter itself has undergone no small change. Of the anxiety of the gentlemen in question to keep out of the sight of their colleagues, and thence of their constituents, rival productions in general, and in particular your humble servant’s actually existing works, and future contingent Codes, you have already heard more than enough. The anxiety on his part not to be so kept out of sight—this is the only anxiety which, in the course of this letter, will give you any further trouble.
Before I take my leave of theirs altogether, I must however, submit to you, in the way of contrast, a short recapitulatory sketch, of the principal objects, to the accomplishment of which, the opposite anxieties may have been observed directing themselves, and the different arrangements, of which the pursuit of the respective objects has been productive.
1. My object being the greatest happiness of the greatest number—the same which, in articles 4 and 13 of your Constitutional Code, stands proclaimed as the all-comprehensive object of that official work, I have on every occasion held it up to view and made application of it.
Gentlemen’s object being—what I will leave to themselves, or some one for them, to state,—they have not, on any occasion, as far as I can see, taken any the smallest notice of it.
2. As one means towards that same end, for the purpose of securing the aptitude of the work in relation to it—namely, in so far as depends upon appropriate moral aptitude on the part of the framers of the first draught, and for that purpose to shut the door against all particular and thence sinister local interest, backed with power sufficient to give effect to it,—I make offer of a foreign hand, secured by its position from all sinister interest.
Gentlemen’s object being still what I will leave to some one else to name,—and, by that organ of impeccability, to which as far as appears they trust, their minds being, to their own satisfaction, sufficiently secured against all seduction from sinister interest,—their anxiety has, for an ulterior object, the keeping all such troublesome intrusion as effectually excluded as possible.
3. In further pursuit of that same end,—to secure aptitude to the work,—in so far as depends upon the above and the two other branches of appropriate aptitude on the part of the workman or workmen, namely, intellectual aptitude and active talent,—another object of mine, is—so to order matters, that no distinguishable arrangement shall be proposed, that has not for its support a distinguishable and openly expressed reason or set of reasons: and this security, the hand I offer is accordingly prepared to afford.
Gentlemen’s object being still what I must leave to themselves or some one else to name,—their anxiety is—so to order matters, that no arrangement which in your nation is to have the force of law, shall have any one assigned reason for its support: in such sort, that whether there be any reason or reasons for it at all, and if yes what, shall remain for everlasting, a subject of unsatisfiable doubt and boundless conjecture.
4. In further pursuit of that same end,—regarding consistency of design, as highly conducive, not to say necessary, to the attainment of it,—lest, while in one part, the end, whatever it be, is pursued by one course, in another part it be pursued by an indeterminately different course,—my anxiety is—that, throughout the whole field the groundwork thus laid shall, if possible, be the work of one and the same hand.
Gentlemen’s object being still what I must leave to some one else to say in a positive manner,—but, as far as appears to me, from their own declarations, coupled with the nature of their situation, what may be called mutual accommodation—division of the whole stock of power and glory, upon the principle of a partition treaty,—their anxiety has been—to secure, and they have secured accordingly, to themselves and one another, this same means of mutual accommodation. And, of the result, and of the influence, which, if this work of theirs should become law, may be expected to be exercised by it on the greatest happiness of the greatest number, samples have already been brought to view, and in greater number than can naturally be welcome.
5. Still, in pursuit of that same end,—taking into consideration, with reference to works of the description in question, the immensity of the demand for appropriate intellectual aptitude and appropriate active talent on the part of the workman, and at the same time the deplorable scantiness of the supply everywhere in conjunction with appropriate moral aptitude in the same breast—yes—everywhere, Spain itself (forgive me, Sir, for saying so) not excepted,—my strongly manifested anxiety has from the first been, and continues to be, to secure to your country, as well as to every other, now and at all times, the greatest obtainable number of works of the above-mentioned description, by hands of the above description, for those to whom it belongs to choose out of: and, towards the fulfilment of this wish, I have laboured with as much energy as ever monopolist employed in his endeavours to secure his monopoly. Witness the second of my letters to Emperor Alexander as published in my “Papers on Codification.”
Gentlemen, in their anxiety to keep out of the way the competitor from whose intrusion most trouble seems to have been apprehended,—took the measures, explained in the second of these my letters to yourself, Sir,—being such measures, as promised at least equal success against all similar intruders.
Under these circumstances, despatch would naturally be, in their eyes, no inconsiderable object: and by the principle of the division of labour, applied as it appears to have been applied, not only was harmony promoted, but despatch likewise.
But enough now, Sir, of anxieties: prepare yourself, for gladness. Whether, in the honourable breasts in question any such sensation is likely to be produced by the sight of any Code of my drawing, you are in a condition to imagine. In mine, the sight of theirs has been and is a source of real satisfaction.
The case is—in my way of viewing the matter, the tendency of this production of theirs, with reference to me, is—to promote in a variety of ways that intrusive design which is giving you, Sir, so much trouble.
1. It will, to an extent more or less considerable, lay open to my view those local circumstances, in the exclusive knowledge of which, gentlemen’s modesty has found a support to their claim of exclusive privilege.
2. It thereby lays before me, as well as before the nation which it is my ambition to serve, a complete map of those parts of the field of law, to which, if to any, the objection derived from foreignership can have any application. Spreading out the map before me, it enables me, on each occasion, to make those references—those clear and exact references—of which you may have been seeing, Sir, so many more examples than it can have been agreeable to any eye in the situation of yours to see.
3. In a word, it lays before me—it lays before the members of the existing Cortes—it lays before their constituents,—it lays before the succeeding Cortes—it lays before the so deeply interested and observant nation, the only existing production, with which any one of those that I have in preparation has as yet to contend. It is not necessary for me, to attempt to affix any precise value to the use which this circumstance may be found to give to it with reference to my intrusive purpose. Suffice it to observe, that the less the value of the production in the eyes of the nation to which it looks for support, the greater will be its value with reference to the purpose of every intrusive rival.
Actual satisfaction at seeing the Code in its candidate state is one thing: eventual satisfaction at seeing it in an elected state is another. By the title of this Letter, as announced in my first, you may have been prepared, Sir, for a certain eventual satisfaction on my part, even in the event of my seeing the sanction of law given to the proposed Code in the exact state, in which it has been the subject of all the freedom you have seen taken with it. Of this same satisfaction you may at the same time have observed, that it is not altogether absolute and unconditional, but limited by conditions more than one. At that time, conditions more than one I had accordingly in view. But, on a nearer inspection, that my chance for satisfaction may be as favourable as possible, I have settled with myself to put aside these same conditions, all but one. Sanction then I say this proposed Code—Yes, and as soon as may be: if, within the time, the imperfections, which you yourself, Sir, have had the frankness to lay your finger upon, can, any or all of them, be removed, so much the better; not to speak of any of those supposed ones, which my own presumption represents itself as having given indication of. But, if nothing of this can be done, sanction it even as it stands at present.
Now then for the condition: it is neither more nor less than this—instead of the more commonly looked for everlasting duration, give it but a temporary, and that a short one. When experience,—and a long one need not be insisted upon,—has demonstrated its usefulness, then will be the time for giving to it that eternity, which will be so much more to the taste of its honourable authors.
Considering the terms, in which your letter speaks of this proposed Code,—were I even to indulge a serious expectation of seeing this condition annexed to the passing of it, I hope, Sir, you would not find it altogether an immoderate one. Such is the presumptiveness of my hope, it extends even to this—namely, that, in the endeavour to cause this condition to be annexed, your influence, which fame represents to me as so powerful, will not be withholden.
That, on the part of the gentlemen in question, any willing consent to this effect will be given, is, I must confess, rather too much for my hope. Feeling, each of them, on his own forehead, seeing in virtue of the partition treaty, each of them on that of every other, those two most instructive organs, which there has been such frequent occasion to touch upon—the organs of impeccability and infallibility,—they will feel themselves under an incapacity of conceiving, how, in any such troublesome limitation, there can be any use. Alas! The closer I look into this matter, the less sanguine is my hope. Turning to their “most accredited Codes,” whose wisdom they have made theirs, I have found no precedent on which my hope can anchor itself. To the best of my recollection, on the foreheads of all persons concerned in the manufacturing of all these several Codes, servants as well as masters, the two organs have been alike prominent.
Whither then shall this same hope of mine betake itself! The answer is not difficult: to United Anglo-America, resting-place as well as cradle of all honest political hope. An example then I have already, in that rashly begotten, and happily expired, act of Congress, to which I have already had occasion, Sir, to solicit your attention, and to which, without fear of contradiction from that Ultramaria, I gave, or might have given, the denomination of the liberticide law. Here sits my hope quietly for the first moment. Oh but, (cries a voice,) that state is a democracy: ours is a monarchy: it is only in a monarchy that any such organs are seen. The illustrious Gall, by whom the organs of this class were first discovered,—did not the empire of Austria give him birth? Under the notion of promoting the greatest happiness of the greatest number, do not the rulers in that American seat of anarchy, make the condition of that same greatest number, depend upon the will of that greatest number? Can anything be more absurd? As for us, we make the condition of the greatest number—Oh, yes—and of all the rest—depend upon the will of one individual—one single individual, without whom nothing can be done, and by whom everything can be done: everything, so it be with that proper and necessary assistance, for the purchase of which it is that we have placed at his disposal the good things of this wicked world in all requisite abundance. In some countries there might be danger in such an arrangement: but in ours there is none. In some countries, all men’s first care is for themselves, and their own particular connexions. But, in our country, when a man gets into an office,—if it be of a certain height, he forgets he has a self belonging to him: King and country are the sole objects of his care.
Well, Sir, be this as it may, I will not deliver myself up absolutely to despair. One other precedent I have in store. I should have said a mine of precedents: for such it is and a most abundant one. It is the practice of the government under which I write. Rotten as it is,—and hastening as it appears to me to be, to a change which cannot be for the worse,—sacrificing as it does on all points of contrariety the greatest happiness of the greatest number to the supposed happiness of the ruling few and the supremely ruling one,—still, on points on which no such contrariety has place, examples of prudence, the fruit of long experience, are here and there to be found: and this is not the least conspicuous nor the least incontestable. Codes, it is true, we have none: the very word is horrible to us. Statutes, however, we have every year, and every year in a heap such as would outweigh a hundred of your Codes. No, Sir: not a year passes, but amongst these statutes there are—I fear to say how many—for I have neither time nor eyes to count them—but I can venture to say multitudes, of each of which the duration is limited to a time certain, and that a short one. Witness even the Six Acts, which, for your information, I must call by the aggregate name of the liberticide acts, but which among us, are sufficiently known by the more concise and merely numerical name: Acts, which had the same object as that American Act, which by its death has been rendered the pride of that happy people, of which, during its life, it was the shame.
Even the statute, on which the standing army depends for its continuance—that standing army, by the dissolution of which the government would, if its own fears are just, be dissolved—even this statute (it is called the Mutiny Act,) lives but from one year to another. Trust not to me, Sir, for this: ask anybody—ask our Minister at your Court, whoever he may happen to be. Not that, in the possession of any such expatriated court favourite, you will be likely to find any such dry and bulky matter as the matter of our Statutes at large. But, that which everybody knows, you will find him knowing: and for this purpose it will suffice.
Here, then, Sir,—under a government, of the determination of which, on every point of conflict, to sacrifice the greatest happiness of the greatest number to that of the ruling few, you cannot entertain a doubt—under this government, the life of which is in its own persuasion, no less inseparably attached to that of a particular law, than that of Meleager was to the log which somebody threw into the fire—under this government you see no such fear has place, as that of mischief to itself, from thus rendering the law capable of going out at the end of a twelvemonth. What say they then? Were it only for appearance sake, cannot gentlemen be prevailed upon to assign to this Code some experimental duration? If yes, say then one year, say two years: and, in either case, from thence, as is the custom with us, to the end of the then next Cortes.
You see, Sir, how mistaken the notion would be—that, between this exertion of self-diffidence and prudence, and the practice of depredation, to an amount so far above anything that in your country men can have any conception of, there could be anything of practical inconsistency. Those who require such comfort, let this comfort them.
But, (methinks, Sir, I hear you saying to me,) this contentment on your part, is it in any degree consistent, with the opinion, of which such copious intimation is given in your preceding Letters?
Sir, I will tell you simply how that matter stands. Good and evil may be considered in an absolute point of view, or in a comparative: compared with a greater, a lesser evil is good. No mass of law so bad, that I would not vote for it, on condition of its taking the place of a worse.
Of the state, in which the penal branch of law exists at present in your country, gentlemen have, in their preface,—though but in the way of allusion, as to a state of things out of dispute,—given that account, to which, in the second of these Letters, I had occasion to allude. All circumstances considered, I can scarcely entertain a doubt, but that, in comparison with such a Code, even that, which I have been so tediously commenting upon, would be a blessing.
From yourself, moreover, I learn, Sir, that—to an extent, the precise limits of which are not known to me, but which appears not to be a narrow one—the existing atrocities alluded to fail of receiving execution and effect. Here then is my hope and my consolation. Of the existing Code, the articles which in their view are unfit to receive execution, have, to a considerable degree, actually failed of receiving it. An inference I indulge in is this: of the projected Code, the articles which, in my view, are unfit to receive execution, would, to an amount more or less considerable, in the event of its becoming law, be in that same case.
In a certain state of the law, the existence of the human species depends upon the degree of execution given to the law: or, at any rate, the more exact the execution, the greater is the happiness of the greatest number in the community in question. In this state is the law, for example, in the Anglo-American United States: notwithstanding the remnant of that poisonous matter, which was originally imported from the Augean stable on the other side of the water; and which the lawyers, who fatten upon it, still keep, on the penal and civil part of the field, unexpelled.
In another state of the law, the existence of the species depends upon the non-execution of the law, and the consequent impotence of the ruling tribe: of the ruling few, under the supremely ruling one. In this state, for example, is the law, in a country which it would be superfluous to name. Carried into full execution and effect, libel law would of itself suffice for the extirpation of the inhabitants: for the conversion of all dwellings into jails, of all the inhabitants into jailors or prisoners; and,—by giving this destination, to all those on whose productive labour, themselves and their fellow-countrymen depend for subsistence,—substituting starvation to existence.
In your country, though utterers and readers of libels, all newspapers without exception included, are not so numerous as in the one just alluded to, laws, I cannot doubt, might be found, by the aggregate virtue of which, if fully executed, an equally complete clearance would be effected.
Wherever Roman law has reigned,—in addition to a functionary, by whom, under his own name, power of pardoning, applicable to offences in general, has been avowedly possessed and exercised,—other functionaries there are, by whom, without the name, that same power has been possessed and exercised. Where the judicatories have not possessed the power of giving execution to penal laws of their own motion,—nor without being called upon by a servant of the Monarch in the situation of prosecutor-general,—the whole of this covertly pardoning power has had his single breast for the seat of it. In so far as this has been exercisable by them at their own motion, this mode of proceeding has been styled the inquisitorial; and, within their several ranges, the power of the prosecutor-general has had the judges of the several judicatories for sharers in it. According to Banniza, thus, for example, if my recollection does not deceive me, stood the matter in the Austrian dominions; according to Boehmer, in the Prussian. I should expect to find the case standing on much the same footing among you: not to speak of the rest of Europe.
With us, the matter stands as yet upon not quite so bad a footing: the power of giving effect to the laws on which personal security depends is not made an object of monopoly: our Monarch being God upon earth, as we are all of us taught from Blackstone, our lawyers, as far as depends upon them, have, it is true, given to him the power of putting to death every man it would be agreeable to him to put to death, on condition of finding one hand to do the job, and another, by the counter-signature of a pardon, to concur in giving impunity to it. But, commodious as upon this statement it may seem, this mode of proceeding,—signatures and counter-signatures being visible things,—has not yet become a customary one: modes not less effective but less conspicuous have hitherto obtained the preference: discriminating slaughter has not yet been visibly added to indiscriminate. Matters, however, are in preparation for it. Recent progress has been made. The last session but one or two produced a statute, by which the right of certain relatives to prosecute for the murder of the correlative without permission from the Monarch,—in which case, on conviction, a pardon from him was without effect,—was abrogated. Since then, the life of every man in the kingdom hangs by a thread, which a word from the king may cut at any time. Mine, Sir, remaining as you see still uncut, what gratitude do I not owe?
I beg your pardon, Sir—I have been digressing. What belongs to your case is this. Under a government, which has for its real object the supposed happiness of the ruling few through the sacrifice of the real happiness of the subject many,—the system of law being to such a degree bad, that the execution of it if complete would suffice for the extirpation of the species,—in such a state of things, if the species remains in part unextirpated, it must be indebted for its existence to some arbitrary power, by which the purposes proposed by the makers of the law are prevented from being carried into effect. While your judicial establishment, and your system of judicial procedure, remain upon their present footing, or upon any footing standing on a ground of Rome-bred law,—the otherwise natural effects, of codes drawn from that source—of codes such as the one I have before me—will, in arbitrary powers such as those I have been speaking of, find a palliative. And on this palliative rests the confidence I entertain, of seeing your country still inhabited, even supposing the code in question to pass in its own words unchanged.
You are now, Sir, in a condition to judge, whether, on the satisfaction above declared, in what degree soever well or ill grounded, inconsistency can be charged.
Though, beyond the above-mentioned temporariness, lest you should be asking too much, I should be sorry to see you asking for anything in the character of a condition,—a few other things there are, which I will venture to mention in the character of simple propositions.
1. One is—that of an Article, declaring, that for giving increase to the quantity of punishment appointed in any case by the new Code, no recourse shall be had to any at present existing portion of statute law: any more than for applying punishment, in any shape or degree, to any act to which this same new Code has not applied punishment. Something in this view I should expect to find actually done, but time and eyes forbid the search.
In Title I. chapter xiii. as above-mentioned, I see a chapter, entitled “On delinquencies (delitos) and delinquents not comprehended in this Code:” and therein, besides laws relative to matters ecclesiastical and ordinances relative to matters military, I find—namely in Article 185, over and above delitos, mention made of culpas as being commissible against the regulations or ordinances which govern (rijan en) any matters or branches of the public administration. But, of these non-comprehended portions of law, I see no more particular designation given.
For the purpose here in question, the more obvious, as well as the shorter and at the same time the more complete course would be—a general clause, killing at one stroke, with the exception of such as were kept alive by a list made out for that purpose, the whole body of the penal laws found in existence. This would be the only endurable course, supposing the survey, taken on this occasion of the field of penal law, an all-comprehensive one. But, to the gentlemen in question,—if the truth may be confessed, this same idea of all-comprehensiveness, considering how natural it is for a man to measure all other men’s faculties by his own, scarcely should I expect to find it an endurable one: and, at the hands of him by whom accomplishment is regarded as impossible, accomplishment cannot reasonably be looked for.
Even among us, among whom, how ill soever applied, experience in the field of legislation is so much more abundant than with you,—men, in other respects not destitute of intelligence, are not wanting, to whom the idea of setting, in any such way, any precise bounds to the demand for punishment and coercion, is an intolerable one.
“Not being myself (without more trouble than I choose to bestow) able to descry any such limits, the thought that, by any labour he can bestow, it should be in the power of any other man to trace them out, is intolerable to me.” Such is the confession, involved in every declaration, of the impossibility of substituting on the field in question light to everlasting darkness. What is above said with relation to your Statute Law, or, as it is called, Written,—may, with little or no difference, be found applicable to your Common Law, or, as lawyers love to call it, (because there is so much writing in it,) Unwritten Law. I mean the Rome-bred, commonly called the Roman Law. In it I behold a still more vivacious, as well as venomous hydra, than in your statute law. A hydra, yes:—but, unfortunately, not in your Legislation Committee—no, not even in its President, whatever he may behold in a looking-glass, can I behold a Hercules.
What if, by their Code,—after the storm of horror and contempt poured forth upon the system of penal law which they found in existence,—Gentlemen should be found to have left it in a state of undisturbed existence; adding thus, instead of substituting, the new load of their own framing, to a burthen declared by themselves to be an intolerable one? Should such an omission be found actually to have place, your exertions, Sir, will, I hope, not be wanting for the repair of it.
Do what you can, Sir, I cannot very well see how, in the situation of Advocates, a set of men, nurtured in Rome-bred law, can effectually be prevented, from pointing, if not in a direct, in a little less effectual though indirect way, to the old hag for an interpretation of it: nor,—without which the call would be hopeless,—men, in the situation of Judges, impregnated with the same poisonous milk, be prevented from giving ear to it. Thence it is, that, for substituting certainty to uncertainty, cognoscibility to uncognoscibility, there exists not any possible instrument, other than a complete mass of expository matter, subjoined all along to the main text, and intervening between the main text and the Rationale, interwoven, as in my above-mentioned French works, stands not only proposed, but, if I do not misrecollect, exemplified.
Yes, Sir, when completed, the collection of Codes should, either in the way of insertion or in the way of reference, contain everything, to which the force of law is given by government: and, while it embraces everything in existence by its power, it should embrace the whole contingent future by its providence.
One little proposed arrangement I would not venture, Sir, to trouble you with, were it not for the facility with which—and, I hope, without any very sensible wound to national honour and glory, or soreness in the organ of infallibility—effect might be given to it. In this Code, the numbering of the Articles goes on, I observe, in one and the same series, from first to last: number of the last Article, 829. In this arrangement no method has place but that of the numeration table, nothing of what is meant by classification. But, along with this arrangement, comes a system of classification in the customary form; or, at any rate, a form resembling what is customary. First comes a Part styled The Preliminary Part; then come Part the first and Part the second. Under Part the first, I find eight Titles; under Part the second, three: under every Title, except Title eighth and Title ninth, I find Chapters more than one: and, under every Chapter I suppose there may be, under little less than every chapter I am sure there are, Articles more than one.
This being the case, the little arrangement I would venture to propose is—that, to the number of the Article, reckoning from the first in the whole work,—be added, or substituted, the number of the Article, reckoning from the first in the Chapter of which it forms a part.
Suppose this not done, note, Sir, the inconvenience. In process of time, comes an Article to be inserted, or an Article to be repealed. Take in the first place the case of insertion. Suppose the insertion made at the end of the series, the system of designation receives no disturbance. But, suppose it made at the commencement of the series, the consequence is—that, if the numerical order is still preserved throughout the whole of the series thus constructed, the numerical names by which the Articles were originally designated are now all erroneous: and, to the number of each, the number of that which was next in the series must be substituted, or confusion will be the result: and, in whatever part of the series the new Article is inserted, the numerical names of all above it remain indeed unaffected, but those of all below it require to be subjected to the change: so, in case of a repeal, the consequence is—a state of things which is the converse of the above. In practice what will be the result? That no such insertion or expunction will have place. Whatever is therefore done, must be done by an independent law, leaving the numerical arrangement undisturbed. But, in this way, the logical arrangement, which has been given to the existing series of Articles, cannot be extended to any supplemental ones. Now,—instead of the arithmetical arrangement throughout, with the logical arrangement here and there jostling it,—suppose the usual logical arrangement had been employed, with the arithmetical, as usual, in subordination to it. In any Title, and in any Chapter of that Title, suppose a new Article added: at the end of the series of Articles contained in that Chapter let the addition be made,—the classification will be still preserved, and everything left unchanged and undisturbed.—Conversely, suppose repeal made of an Article in that same Chapter,—at the end of the series of Articles belonging to that Chapter insert an Article, giving notice that the Article in question is repealed. In case of substitution, the notification will be—“to such an Article (designating it by its number) substitute the following.”
With that same method of theirs, it being theirs, the Honourable authors of the logical method in question were, it must be presumed, not ill satisfied. The little alteration here submitted has no other object than the giving to that same method of theirs a degree of undisturbed continuance such as it could not possess otherwise. If not adoption, this little intrusion may at any rate, I hope, obtain forgiveness.
As to the origin of this change-excluding method,—in the organ of infallibility I cannot but suspect it might be to be found.—Question to the Genius of the organ: To a work thus perfect, the Demon of presumption himself, could he ever have the effrontery to propose, in any part, a change?—Answer: Impossible.
Under the inspiration of this same Genius it was, that the authors of the Constitutional Code ordained in positive terms that no change should have place for eight years: tacking, at the same time, by a stroke of refined policy, to the end of that period, an indefinite one. And, with the inspirations of this same Genius, the honourable authors of this same projected Penal Code appear to be no less sufficiently impregnated.
Quitting the allegro, I must return to the penseroso.
Proportioned to the severity, if there be any, in the above remarks,—especially if in any degree it should be felt to be warranted by justice,—will naturally be—the sensation of chagrin, produced in the breasts, of whatever persons are, in virtue of the parts respectively taken by them in the work, the subjects of them. Believe me, Sir, or believe me not, it is not without a correspondent chagrin on my part, that any such unpleasant sensation can ever present itself to my mind. Imagination finds no difficulty in placing me in their situation. Triumph, were I assured of it,—triumph on any occasion, and in any shape, if the persons triumphed over were present, would to me have more of concern than joy in it.
In no sensitive being could I ever yet witness pain,—whether body and mind, or mind alone, were the seat of it,—without catching, as if by contagion, a portion more or less considerable of it. It is thus that I am constituted: that I am so, is it not known to all that have ever lived with me?
The consequence is,—that in the present instance, lest I should fail in the fulfilment of what appears to me my duty towards your nation and mankind at large, it is all along necessary for me, to keep my mind abstracted from any effect it may have upon them in any such unpleasant way, as completely as possible. All this while, in supposing the production of chagrin by such a cause, I look—not to the honourable gentlemen in question, of none of whom have I the honour to know anything but what I see in public documents,—but to the universal and unchangeable nature of man, in the situation in which I see them placed. It is to this cause, as much perhaps as to any other, that we are indebted for libel law: it is for this cause, that men in such abundance—(and the gentlemen in question could direct your regard to some examples)—are so eager in their endeavours, to consign to ignominious death, those whose misfortune it is to differ from them. In speaking of chagrin from such a cause, I speak of that which, it seems to me, can scarcely fail to exist: not of anything which I should expect to see declared. How it is with man in such a situation, often have I had occasion to observe. Ask him, while the animadversion is applying itself—speak of the effect naturally produced by it, and express your own regret at the thoughts of it—you will be taken up short, your sympathy will be taken for insult: and the more acute the feeling is, the more decided will be the protestations of indifference.
Among the effects of these operations of mine, if any effects they have, I cannot therefore but number these unpleasant ones. As to their original cause, operations and effects together, it is no other than that which, on every occasion, has place in the case of the medical operator. Exactly as much unkind feeling, and no more, have I towards the gentlemen in question, collectively and individually, as the surgeon has towards his patient. When the surgeon operates, it is for the good of the individual operated upon, and, with the exception of his particular connexions, no others. In my case, it has been for the good of all Spaniards of both hemispheres, that, in wish and endeavour at least, I have been operating, and through Spain, sooner or later, for the good of the whole human race. Considering that, in all this, I make no personal sacrifice in any shape worth mentioning, judge, Sir, whether, without much danger from the imputation of credulity, you may not venture to believe me.
Be that as it may, judge then, Sir, whether, by the contemplation of any such universally encountered uneasiness, as above, I should have been justified in turning my back upon the unmeasureable mass of misery, which these remarks of mine, such as they are, have been labouring to alleviate, and in the production of which I should have been a participator, if, by any such narrow sympathy, my pen, such as it is, had been stopped. Think, Sir, whether, by a single instance of execution given to a single one of the one-and-twenty homicidal articles above spoken of,—every one of them, in the view of so many other attentive observers of human nature as well as myself, so much worse than useless,—suffering could fail of being produced, to a greater amount, than in all five of these same illustrious breasts put together, could be produced, by anything that has been said, or ever could be said, by the unknown stranger,—placed as he is forever out of their sight as effectually as if by the hand of death.
Ere this, your inward sanction cannot, I think, Sir, but, to an extent more or less considerable, have been given, to the persuasion, in which, on my part, this correspondence commenced: I mean, the persuasion of the inevitable disadvantage, with which, with reference to the greatest happiness of the greatest number, it could not but have been carried on, had my part in it been to be strained through a censor’s sieve, though a Conde de Toreno’s had been the hand that held it. Thus much I can venture to affirm, and without fear of contradiction,—that, in the multitude of remarks, the freedom of which, be the justice of them what it may, has been so undeniable,—there exist, in no small proportion, such as, even in the persuasion of their justice, a prudent man, in your situation, could not have brought himself to give utterance to. Whatever were the demand for animadversion, could any such man have poured forth any such body of animadversion, on this same work of your selected colleagues, either in their presence or out of it? In your situation, could a man have spoken in any such strain, of the object of such extensive idolatry—(oh, that there were none worse grounded!) your Constitutional Code? In your situation could a man have spoken in any such strain of aristocracy at large? In your situation, could a man have spoken of the order of lawyers in particular, as I have found it so continually and indispensably necessary to speak of them? In your situation, could a man have spoken of the order of churchmen, as I have already begun to speak, and shall have to speak again, in my next and as it were postscript letter? In your situation, could a man have spoken of the situation in which your Cortes is doomed to sit, breathing an atmosphere, loaded, as I have shown it to be, with the fumes of sinister and corruptive interest? exposed to a miasma, against which scarce could a Fontana d’ oro, in the metropolis of every province, afford a sufficiently powerful antidote? In your situation, could a man have anything near so strongly invited attention, as at every turn I have seen reason to do, to the union of the most perfectly unrestrained discussion, with the perfection of security, harmony, public economy and good government in every imaginable shape, in the instance of the Anglo-American United States? In a word, in your situation, could a man have spoken, as I have found but too much occasion to speak, of monarchy?—of monarchy, in any the least absurd and mischievous form in which that disastrous result, of primæval necessity in the infancy of society, can possibly present itself?
[In* your situation, could a man, Sir, have spoken, as I have found but too much occasion to speak, of monarchy? Fancy not, however, from anything I have said—fancy not, Sir, that you have been hearing me say—Rid yourselves of your monarchy. True it is, that no government, to which the name of monarch ever has been or ever can be applicable, ever has been or ever can be anything better than a system of established plunderage: plunderage—regulated indeed, but only because,—unless it be in this as in every case regulated,—the matter of plunderage, and with it the profit, must soon cease. In Spain, monarch’s established share,—according to official accounts, taken and made public here about the year 1787,—one-fourth of the whole expenditure of the government: besides ulterior expenditure, to an amount unascertainable and unlimited.
True it is, that by no man has any attempt been ever made—by no man will any attempt be ever made—to show in what way it is that, from the subjecting all to the will of one or of a few, the happiness of the greatest number can receive increase.
True it is, that by no man has any attempt been ever made—by no man will any attempt be ever made—to show how, by giving everything to one or to a few, or by placing everything within the grasp of one or of a few,—subsistence, abundance, or security in any shape, can, any more than equality, be afforded to all, or to so much as the greatest number.
True it is, that by no man has any attempt been ever made to show—by no man will any attempt be ever made to show—that, in any instance, in which the ruling few were not dependent on the will of the subject many for their continuance in rule, they ever failed to give to their own interest the preference over that of the subject many; or how,—in case of every such constant preference of every one else to self as they pretend to give,—the human species could so much as continue in existence.
Is it in human nature,—that a monarch, full of resentment for restraint endured—restraint, which in every shape is in his eyes an injury—is it in human nature,—that a man so situated should, by anything but terror or impotence, be induced to part with any the least particle of power, which he has been in use to exercise, or so much as to wish for?
Is it in human nature,—that, in a state of indigence, (and so long as he has anything that is not his own, every monarch is in a state of indigence,) any such man, in any such indigence, should ever, with patience, behold himself reduced to a state of still more pinching indigence?
All this, Sir, without much strain upon the fancy, you may actually hear me saying: but still what you do not hear me saying is—Rid yourselves of your Monarchy.
Regulated plunderage, to whatever extent carried on, is still a less evil than unregulated plunderage to the same extent is.
Conducive to the greatest happiness of the greatest number no government can be—if, and so long as, the greatest number think the contrary: for, can any man be happy, any further than in his own opinion he is so? And, on this subject, or any other subject, sitting where I do, how can I tell what they think? Whatsoever care has even as yet been employed upon their minds, has it not been employed to make them think wrong, or, rather than that they should not think wrong, to prevent them from thinking at all?—No, Sir,—in a few years, in no eyes in which the greatest happiness of the greatest number is the only legitimate end of government,—will any government, other than that of a representative democracy as in the Anglo-American United States, be legitimate. But, either in one body, or in a cluster of confederated bodies, have you,—in any such proportion as they had it, or in any other sufficient proportion,—the stuff of which representative democracies are made? A representative democracy, not less necessarily perhaps than a monarchy, must have a chief. The Americans had their Washington: and, in default of him, with the exception of his next successor, every President they have ever had, would have made a Washington. But, among you? is there anything out of which a Washington could be made?—There may be, for aught I know: but how can I know?
Desirable or undesirable, in a constitution—made, of materials such as yours is made of—materials so irreconcileably discordant,—change, in one direction or in the other, is in my eyes altogether unavoidable. Saying this, what I do not say, is—Rid yourselves of Monarchy. But what I do say, is—Whatever change you make, be it in favour of the greatest happiness of the greatest number,—not of the ruling few, or of the supremely ruling one: be it, towards a form by which all causes of insecurity and discontent are excluded, rather than towards that form, under which among you, they were so recently operating; operating, all together, and with a so disastrously effective force.]
Now, Sir, permit me for a moment to indulge in a supposition, which, in its matter, whatever in your eyes may be the probability of it, will, I am confident, not be, in every part, displeasing to you: it is this. After sight of the objections brought to view,—Gentlemen, being in their own minds satisfied of the reasonableness of them to an extent more or less considerable, come forward,—and, on such considerations as, in their judgment, shall be best suited to the occasion, declare themselves content, or desirous, as they think best, that this work of theirs shall sleep a while on the shelf: or, (to take another supposition, and which, for the reason above given, may be perhaps a preferable one,) to an extent more or less considerable,—amendments, of the nature of those which I have ventured to submit, together with others that may perhaps be suggested, having been made,—the proposed Code, at their presentation, passes: but with a clause confining the duration of it to a certain limited time, and that, as above, not a long one. To these two suppositions, have patience with me, Sir, while I add one more. At the suggestion of these same most competent hands, not only is the door thrown open, but invitation given—given to every man whom it shall find disposed to accept it—to deliver in, with or without further remarks on the only as yet proposed Code, a Code of his own penning, with or without an interwoven rationale, as he shall be advised.
Whatever may have been the sins found to have been hitherto manifested, (always supposing that into a political situation so elevated it is possible for political sin to have found entrance,) whatever may have been the sins manifested,—a confession, such as the above, would it not be an ample—would it not, Sir, be a glorious atonement? By such sin, followed by such atonement, would not more merit be made manifest, more magnanimity displayed, more admiration deserved and called forth, than if in no shape sin had manifested itself?
Condemned, on the occasion of I forget what controversy,* with Bossuet—condemned by the constituted authorities of the country and the time,—Fenelon, Archbishop as he was, of his own motion, ascended his own pulpit, and, in the face of the assembled multitude, read his own condemnation, together with the retractation he disdained not to make in consequence. It is for the multitude at large I bring this anecdote to mind: for to yourself, Sir, it can scarcely, I think, be new. On a field of controversy such as that was—on the part of a mind such as that of the author of Telemachus was—sincerity may, to some eyes, appear not altogether exempt from dispute. Not so either self-command or enlightened policy. Matchless is as yet the splendour, with which the heroism of the man, displayed in a shape so unexampled, stands illuminated. Of victory over others, you may see almost as many examples as you see contests. Examples of victory over self, you may look for till you are tired. The retractation made by Fenelon, was made under the eye, and in conformity to the known pleasure of a man, from whom, on his part as on the part of everybody he ever saw, everything imaginable was to be hoped and feared. If, in consequence of any of the arguments submitted to yourself, Sir, in the first place, to the gentlemen themselves in the next place, any such self-sacrifice as above suggested should come to be made,—it will, by an admiring public, be seen to have had anything rather than hope or fear, looking to the individual, at whose suggestion it will have been made.
Well, Sir, if, in the honourable eyes in question, all this inducement is not yet enough, here is something more. Over the world of ideas, with this their instrument of conquest in hand, their aim has been (in their preface does it not stand sufficiently avowed?) universal empire. If, without any to share in it, it be in their eyes sufficiently within their reach, they will continue still to strive for it. In the other case, putting off Don Quixote, and putting on Sancho Pança, permit me to say, Half a loaf is better than no bread. So says our English proverb, for which there can, I think, scarce fail to be a Spanish one. If, leaving to some other, as it may happen, that lower part of the honour which belongs to the fundator incipiens, gentlemen’s magnanimity can content itself with that upper part which belongs to the fundator perficiens,—that highest part may be still their own. Let experience, Sir, declare whether this sort of peaceful conquest be quite so remote from the region of probabilities as some would be glad to see it. By a rare union of merit with fortune, circumstances favouring, the Spanish Constitutional Code—has it not already found numerous adopters? adopters in all nations by whom the attempt has been made to render Monarchy (Oh, Herculean, or rather Sisyphian labour!) consistent with the greatest happiness of the greatest number? Let them have received a plan, in which the dictates of that principle are pursued with undeviating consistency—pursued over the two remaining parts of the field of law—the Penal and the Civil,—think, Sir, to what extent, sooner or later, Spain may not, by their hands, have spread over the willing nations, the blessing of her laws!
Whatever may be their determination on that question, in mine their can be no difficulty. If life and faculties continue, my Codes will successively be drawn up. The encouragement, which, from so many quarters, I have received, would, of itself, have been a sufficient stimulus. The discouragement, received at the hands of the Legislative Committee of the existing Cortes,—not to speak of the Cortes itself, which on this ground knows nothing of what it has seen, heard, or received,—has been an additional stimulus. As the work proceeds, it will find its way into various languages: the Spanish will not be the last.
Into your Ultramaria—including all that was your Ultramaria—it will, in that as well as other dresses, find its way without difficulty.
Thus far my determination reaches. But now commence my uncertainty, and my desire of information, in so far as, in a case such as that in question, information is possible. Is it through the regular channels—or is it in the way of contraband, with other piece-goods, that the fruit of my endeavours to serve your constituents will have to make its way, to them, and to their paulo-post-future representatives? I am prepared for both sides of the alternative: but it would be a convenience to me to know, in which of the two the greatest probability is to be found.
Sir, when in dernier resort, for giving effect to whatever endeavours can be used to serve your country, I put on the garb of a malefactor and assume an attitude of defiance, it is not—indeed it is not—with a light heart. But, in the state in which your legislation still is: still is, and for I know not what further length of time seems doomed to be,—what else, by a man whose first regard is neither for laws nor makers of law, but for those for whom such laws, in as far as they are anything better than nuisances, must be made,—what else, what better, Sir, can be done? If you are fed, must it not be against law? if you are clothed, must it not be against law? as if in one word prohibition were contained the united powers of capital, skill, and access to market! If you are instructed, no wonder, then, if this too must be against law.
Believe me, Sir, neither is the uncertainty I speak of in any degree a feigned one. I see what the present is: but, until the millstone, which the Committee, with but too much countenance from their colleagues, have suspended over your press, has either been set aside, or been let down upon it and crushed it,—I am unable to see, in anything that is either past or present, any security for the future. Of the most comprehensive of those works of mine that are in French, the first volume, thanks to the zeal and talent of Dr Toribio Nunez, has been some time in Spanish: the others may, by this time, for aught I know have followed it. True it is, that, to the functionaries, whoever they may be, whom the Legislation Committee looks to for giving execution and effect to its Code, I should not expect to find, that in my Penal Code, even with the rationale standing part of it, there is anything that will give any heavier offence, than may have been given to them already by those works, or even than that which may come to be given to them by these present Letters. But, in this respect, the lot of this little work remains as yet in total darkness: and, supposing this darkness cleared away, and cleared away in my favour, still the like darkness would cover those so much more extensive and important future works. If I have not, in either instance, any assurance of proscription,—still, in that quarter, in neither instance, have I anything like an assurance of toleration.
How is it possible, Sir, that I should? If, with the functionaries in question, matters for that purpose, are already, or shall have come to have been, arranged,—what man, whose misfortune it is to give publicity to anything by which their displeasure shall have been called forth, can have any sufficiently grounded expectation of being suffered to live? not to speak of incarceration in its most hideous forms, and for never ending terms. Subvertir, trastornar, alterar, embarazar, guardárse—any one of those words, not to look for others, would it not be sufficient, Sir, for the fatal purpose?
True it is, that the Gobierno of the day, the septemvirate of Ministers,—if I may believe the official assurance of one of them, entertained, not many months ago a desire to see these projected works of mine: a desire which they were accordingly pleased to make communication of to the King. But, besides that the offence, which I cannot but be too well assured cannot fail to be given by these letters of mine, had not then any existence,—the gentlemen, of whom the government of that day was composed, have for some time been—what, in a few months, the Gentlemen of the Legislation Committee in question will be: and, under the proposed Articles in question, I see nothing that should prevent these my quondam honourable and official supporters, from being involved in that same fate, which, but for the circumstance of distance, might so naturally be mine.
True it is again, that for any such work there could not, I should suppose, be much to fear, supposing the circulation of these letters to remain unrepressed. But, unless it be from yourself, Sir,—for this, even in the present state of things, I cannot see any tolerably well-grounded assurance. How much less can I, under the proposed Code in question, if, in anything like its present state, it shall have become law?
Now then, Sir, comes a fresh vexation, which I know not how to avoid exposing you to: a request for answers, to a few unavoidably troublesome, and therefore sincerely reluctant questions. The uncertainty above spoken of, it being the cause and reason of them, will, I hope, be received as an excuse, or I have none.
Not to take, for the subject of the desired information, a work that as yet has no existence, I will take for a representative of it those Letters which have already given you so much trouble: and hereupon it is that I take the liberty of submitting to you the questions that here follow. To this work I might add those other tracts of mine on Spanish and Portuguese affairs, which in the original English have for sometime been (as you inform me) in your hands,—were it not that, if this little work is tolerated, there can be no fear for either of those lesser ones.
1. Without special interference, on the part of yourself, Sir, or any other person in particular, is it your opinion that they will, or that they will not, be suffered to circulate unrestricted? to be bought and sold freely, and all over the country, as books in general are? and this without danger in any shape to any persons by whom, in any part of Spain, any part shall have been borne in the publication of them?
2. If there be any such impediment to their diffusion, may I be warranted in any such hope, as that the influence of your declared opinion and wishes will be employed in the endeavour to remove it?
One word more, Sir, and the experiment, so unexpectedly made upon your patience and power of forgiveness, is at an end.
Prepare yourself now, Sir, for what I am sure you cannot be accustomed to receive—and what I myself am as little accustomed to give as to receive—a menace. Menace as it is, it is however of that sort, a man’s sensitiveness to which is—not in the inverse but in the direct ratio, of the elevation of the place he possesses in the scale of public estimation, and of the goodness of his title to possess it. It is of that sort, or you would not have it to encounter, I believe, from anybody, and I am sure not from me. Nor yet from me, but for the weakness of my position, would you be troubled with it.
That which, in my character of unretained but not the less zealous advocate of your nation, I have need of, so far as you are concerned, is—to see you at liberty: at real, and not merely apparent liberty. But, to a man in a situation such as yours, exposed to so much pressure in so many sinister directions, it is impossible to receive liberty but from some opposing pressure.
In the assembly of the deputies of the people you cannot take your seat, but encompassed by colleagues, from whom, in all varieties of form, you will hear this in substance—“Leave the intruding foreigner unnoticed. Let him write on at his peril. The constituted authorities will take charge of him: What is he to us? What need Spaniards care for foreigners? Let him remain unanswered. Least said is soonest mended. What a pity you thus noticed him! But this will be a lesson to you, and to all of us in future.”
In the midst of all this (for how guarded soever the expression, you see the meaning that is at the bottom of it)—after such a warning from the highest but narrowest section of the tribunal of public opinion,—is it in the nature of the case, that a man in your situation should feel himself in possession of real and effective liberty?
Oh no! it is impossible. I see virtue struggling, but tottering. Now then for a support.
Where the desire exists to maintain a line of conduct, which, in the nature of the case, cannot but be in contrariety to the wills and opinions, to which a man is under the necessity of showing a certain deference,—a sense of superior duty presents not only a justifiable cause, but may frequently be found a convenient and allowed plea, for yielding to it; and thus, out of obligation, real or though but apparent, springs real liberty.
In the tribunal of public opinion—the only efficient guardian of political virtue—there are (I believe I have already made my bow to the superior of them) two grand sections. In your situation, on a thousand occasions, the suffrages of that one section are irresistibly forced from the line of rectitude by the pressure of a swarm of particular interests. In the inferior and more numerous section, is the only steady seat of that virtue, which has for its object the greatest happiness of the greatest number.
At Paris, sits one of the most respectable committees of this multitudinous body. Paris, Sir, is not unknown to you: in Paris you behold, Sir, or report has been misled, a not altogether unattractive residence. . . “If I decline doing what is thus asked of me, what will Paris say to me?” This, Sir, is a question you need not be ashamed to put to any of your colleagues. Now then, Sir, for my menace—Return to Paris when you will,—these letters, in a French dress, will meet you there.
Now then, Sir, you are free: free to prefer public good to private considerations. Now, Sir, you stand at your ease, and armed. Receive at length in form, the assurance of that respect, tokens of which, so much more demonstrative than any express declarations can be, have in no part of this long address (I stand persuaded) been found wanting, from
To the Comte de Toreno, &c. &c. &c.
[* ] Though written at the time, the paragraphs between this and the bracket in p. 543 were not inserted in the Letters as sent to the Conde de Toreno.
[* ] The celebrated dispute as to Quietism.—Ed.