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LETTER VII. - 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 Religion, and the Plan pursued in the proposed Code, for the support of it by death and other punishments.
Religion—Catholic Religion—Pena de muerts—Death (so says Article 230) death, the portion of every one, who, directly and by deed shall conspire to establish (establecer) in any part of Spain (en las Españas) any religion other than the Catholic (Spanish Ultramaria included or not included:—I should expect to find it included.) Establish? What is to establish? A set of men who, in a house, appropriated or not appropriated to the purpose of religious worship, or let it be in open air, perform religious worship in a way of their own,—may not they, under this Article, by a willing Judge, without much difficulty, be killed for doing so?
On this subject, Sir, I should hardly have thought it worth while to trouble you with any observations on my part,—but for the words, by which, speaking of “les Articles qui parlent sur la Religion,” you encourage me with the assurance—“cela ne passera pas.” As to its being meant to apply to all these Articles without exception, this could scarcely, I think, have been your meaning: but, at any rate, I hope the prophecy will prove a true one, if applied, as I hope it was meant to be, to this same 230th Article. It being no more my intention to say anything, either in this letter, or in any code of my drawing, against the Catholic Religion, than to run my head against a wall,—I find no difficulty, Sir, in submitting to you, in relation to this subject, a few scattered observations.
To every sincere and at the same time firm believer in the Christian Religion in general, and in the Catholic edition of it in particular,—it cannot, I think, but be matter of sad concern, to see the testimony of so many illustrious names, attached,—as in the Articles 230, 231, 232, 233, 234, 235, 236, and I know not how many besides, in the Chapter declared to be appropriated to that subject,—to any such declaration, as that, in their opinion, without support from temporal punishment inflicted on gainsayers, the belief in it would not be able to stand its ground.—Not stand its ground? Not in Spain? What should hinder it? In Ireland, as so many Irishmen settled in Spain can testify to you, it not only stands its ground, but gains ground: and that not only without support from oppression, but in spite of it.
“What?” (says somebody) “and, among all the sorts of acts, to which the Chapter on Religion seeks to apply prevention, and for the purpose of prevention, punishment,—is there absolutely not any one to which, if it depended upon you, you would apply prevention, and even in some shape or other, punishment?” O yes, some there are unquestionably: namely, all those acts by which, to human beings to an indefinite or other adequately large extent, I see any real evil,—in a word, any sensation of an uneasy nature, to a certain degree of intensity,—produced. Here, then, is a line drawn, which, if drawn, on the proper plan, would be at any rate a tolerably plain and clear one. All exhibitions, which, being to the minds of individuals taken in any considerable number, productive of uneasiness on a religious account, are offered to their senses in such manner as that the unpleasant sensation produced by them, whatever it be, is unavoidable—all such acts are, in my view of the matter, objects calling for prevention by means of punishment; and, in this consideration, I cannot but approve of the principle acted on in Articles 237, 238, and 239 of the proposed Code.
Why? Because man is a being but too susceptible of uneasiness, and the more of it he can be saved from the better. But—the Almighty—is he a being susceptible of uneasiness in any shape? For my part, I cannot find any sufficient reason for believing him so to be: however, if on this point, the Cortes, by means of information received from those to whom it belongs to give it, have been more fortunate,—this point must be considered as settled. But, this point being supposed to be thus settled, then come two or three others. The Almighty being susceptible of uneasiness, and in particular of uneasiness produced by words employed by men, in speaking to or of him,—is it his Almighty will to be saved from such uneasiness or not? if yes, does he stand in need of any human power, and in particular of that of the Cortes, to give effect to such his will? if, on the contrary, it is his Almighty will not to be saved from such uneasiness, but to continue suffering under it, does it become the Cortes to endeavour to oppose their power to such his Almighty will? and if yes, does such opposition afford any considerable promise of proving effectual? Corresponding questions, in regard to the Saints; to whom also, meaning doubtless the departed Saints, the protection provided for the Almighty is, in Article 237, (I perceive,) extended. Having ventured so far as to submit to your view these questions, the answers I must be content to leave, which I do without reluctance, to the competent authorities.
These things considered—“blasphemies,” or “imprecations,” (Article 237,) or whatever else be the denomination given, to portions of discourse, by which, with or without production of uneasiness, offence has been supposed to be given to God, or to the Saints, or to both,—so long as they are confined to writing or printed books,—or to private conferences, not open to the public at large, into which he, to whom what is said is productive of uneasiness, entered of his own free choice, without being obliged to repair thither in prosecution of any matter of business;—to no such discourses, how revolting soever to myself, could I, if it depended on me, think of applying punishment in any shape. But, in a promiscuous multitude,—in a church suppose, a judicatory, or any other public building, or in a road or market-place, or a ship,—suppose such language uttered, uneasiness to men may be produced, and with it demand for punishment.
Whatsoever may be the justice—with which the above observations may be found to apply to offensive audible exhibitions,—with correspondent justice they will, I think, be found to apply to visible exhibitions: it matters not through what sense the wound passes to the mind, if the mind is wounded.
Whatever difficulty may have been produced in Gentlemen’s minds, by offences styled offences against Religion, considered as commissible by individuals at large,—it is but a small matter (I should suppose) in comparison with that produced by offences through Religion: offences apprehended at the hands of that particular order of men, in whom, among you, the votaries of religion are wont to behold its special and little less than exclusively authorized guardians.
As to myself,—reference always made to the greatest happiness of the greatest number,—I beheld as issuing from this source two widely different mischiefs: the one temporary in its nature, the other permanent. 1. By the temporary mischief, I mean, that which consists in opposition made by this particular class of functionaries, to the government composed of all the other classes of functionaries: a mischief which, to the greatest number of the people, is great, in proportion as the conduct of the present government is, in a higher degree than that of the late, conducive to that same greatest happiness. 2. The permanent mischief is—that which I apprehend, from the junction of the body of the sacred functionaries with the profane ones: the junction, of the two particular interests of these two sections of the ruling few, into a body of particular and thence sinister interest, which will thereby be so much the more effectually enabled,—as, if the body be composed of men, it cannot but be as surely disposed,—to sacrifice to its own supposed greater happiness, the greatest happiness of the greatest number:—or, if interest be the word, the universal interest.
Supposing the old government to continue unrestored,—the temporary mischief, as above described, will be growing less and less every day, as the functionaries established under the old government drop off, and as the public mind grows more and more enlightened. In corresponding proportion will the permanent mischief take its place; and, when it has once swallowed up its present opponent the temporary mischief,—will remain in possession of the field, without anything, unless it be the spirit of the people, to oppose it. In a word, the temporary mischief is—superstitious influence: the permanent mischief, corruptive influence.
In the temporary mischief I see nothing very formidable: nothing but what, under the constitution as it stands, may admit of a remedy: an easy, a gentle, and an effectual remedy. This remedy, Sir, I shall proceed to submit to you: and with the less diffidence, considering how near on some points it comes to that which I see employed by the Committee.
For conciseness I shall put it into a form in some respects similar to what I should pursue in the penning of the correspondent part of a Code. But, I must beg of you not to consider it, as anything like an adequate sample of such a Code. To give to it anything like the precision and conciseness, that would be given to it in a regular work of that kind of which it would form a part, is altogether impossible. In any such fabric of my construction, the form of each part would be dependent on that of every other.
General description of the proposed remedy.
1. With the exception of ecclesiastical functionaries in general, and bishops in particular, addressing themselves in print or writing to the people within the range of their authority, in the exercise of their official functions,—leave to persons of all descriptions—ecclesiastics of all classes as well as others—the complete liberty of publishing whatsoever they please on the subject of religion, without exposure to punishment in any shape, or impediment to the circulation of such their discourses. N. B. Such,—only without the exception,—is the state of the law in the Anglo-American United States: and no mischief in any shape,—no such mischief as that of oppression by government, or disaffection towards rulers, or discord as between citizen and citizen through the instrumentality of religion,—is produced by it, or has place there.
2. On the part of an ecclesiastical functionary of whatever class, let the publication of any instrument,—on the face, or on the occasion, of which, either by his proper name, or the name of his function, he stands designated, either as sole author, or partaker in the authorship or publication, of such instrument,—designated whether in the direct way, or in any way howsoever indirect,—stand interdicted: unless and until it shall have received a license in writing, under the hand of a functionary of the temporal class:—say the political chief of the province.
In this case,—though the composition of the instrument is, as consistently with the religion in question it cannot but be, the sole act of the ecclesiastical functionary,—yet the publication of it may be considered as the joint act of the ecclesiastical functionary and the temporal: or a relative censorship may be considered as established, with the temporal functionary for censor. The operation is the same, in whichever light considered.
N. B. To this purpose must be considered—not beneficed ecclesiastics only, but all ecclesiastics whatsoever, regular as well as secular. For, it is—not only from special power or dignity, but from the sacred character common to them all, that their influence is, in the instance of each, wont to be derived. Co-extensive is the designation employed in the proposed Code, Article 213.
I. Reasons for the general liberty.
1. Against vexation to the feelings of individuals, security will be sufficiently afforded, by the above proposed interdiction, of discourse, visible as well as audible, and of all other objects of an anti-religious nature, if exhibited in any such manner as to be open, to eyes to which they are disagreeable.
2. Against mischief by the propagation of mischievous errors, security will be afforded, by the unbounded faculty of refutation, left to all persons in whose eyes they possess that quality: and, of inducement adequate to the production of such refutation, in so far as the nature of the case admits of refutation, no deficiency can reasonably be apprehended: if there were any, nothing could be easier to government, than the providing an adequate supply to it. See the Tract on the Liberty of the Press, and Public Discussion.
3. Any fear, real or pretended, of seeing the will of the Almighty, in this or any other particular, overpowered and frustrated by human agency, is too palpably self-contradictory and absurd, to be defendible:—or to be accounted for, otherwise than by long-continued custom produced in its origin by the union of force and fraud, with or without superstitious terror.
4. Of the fear of seeing the will of the Almighty frustrated, in the particular instance of the existence and extent of the religion of Jesus,—the groundlessness is moreover demonstrated by experience, in the case of the Anglo-American United States.
5. Of the fear of seeing the will of the Almighty frustrated, in the still more particular instance of the existence and extent of the Catholic edition of the religion of Jesus,—the groundlessness is moreover further demonstrated by experience, in the case of Ireland, as noticed above.
II. Reasons, against every such attempt, as that of designating, for the purpose of punishment, the sort of supposed mischievous discourse, meant to be interdicted on the score of opposition to the existing government, on the part of ecclesiastical functionaries, speaking as such.
1. Such designation is, as to a part of the extent, needless. In so far as such discourse has for its immediate tendency to engage men in the commission of acts injurious to person or property,—the offence is met by the laws applying to such offences, taken in their utmost latitude.
2. As to the rest of the extent, it is impossible. The above case excepted,—it is not possible to reach by any description, the sort of discourses in question, when emaning or appearing to emane, from any person invested with the consecrated character. Out of phrases, extracted either from the Fathers, or even from the Bible,—in a word, from any writings, whatever they may be, which in the religion in question are held as sacred,—out of phrases thus extracted, may be composed, by any one who shall think it worth his while, a cento, abundantly sufficient for any such mischievous purposes. Of the portions of discourse thus extracted and employed, the application thus made will be a misapplication. True: but the source from whence they were extracted will not have been the less sacred. Too great to be contended against, will be the difficulty of passing condemnation, on matter extracted from such sacred sources,—when seen, or believed to be, extracted by such consecrated hands.
3. Uniform conviction will be hopeless. Howsoever, in such a case, a judge, zealous to a certain degree on the side of the existing rulers, may be disposed to pronounce conviction,—a judge, inwardly hostile or less zealous, can scarcely be punished for not doing so. Such (says the obnoxious ecclesiastical functionary to the judge) is the interpretation put by me: if my interpretation is erroneous, does it belong to you—not only to put an opposite interpretation upon the sacred text, but to punish me, only because mine is different from yours? Then comes the judge and says to his superiors, Can you punish me, layman as I am, for not punishing, on the ground of its being a misinterpretation, an interpretation put by a consecrated person on these sacred texts?
As to the particular restraint,—note, in the first place, the assumption on which the demand for it is grounded: it is—that, from the class of persons in question, under existing circumstances, hostility to the new order of things is naturally to be apprehended.
Grounds for the assumption are these: viz.
1. Hostility, from this quarter, has actually been manifested to a very considerable extent.
2. It is but natural, and even, morally speaking, excusable,—that, having been admitted into their respective functions when the former order of things was in force,—they should, by sense of duty, and thence by reflection, as well as by particular self-regarding interest, be attached to it, and led to give support to it.
III. Reasons for the restraint.
1. Addition of what is wanting, to the perfect freedom of discussion, which, by the supposition, was meant to be established by the general provision relative to this subject. The power,—exercised over the judgment of the people at large, by means of the fears, derived from the source in question, and infused into their breasts,—is a power by which inward freedom of consideration is liable to stand excluded, and the mind to be rendered insensible to the force of argument on the other side.
2. From the freedom of discussion, no defalcation is thus made. Not even on the part of these functionaries themselves: since, for the giving support to their opinion, it leaves to them whatever liberty is possessed by any other citizen. They may give currency to whatever arguments they please, so as they do not make it known from what privileged source they come: the arguments will then operate with whatever rational force properly belongs to them, and no more.
3.Exclusion of useless punishment. If punishment were ordained to be applied to all such discourse, as, emanating from the quarter in question, shall, according to a description given of it, be deemed mischievous, it might, under the uncertainties above-mentioned, come to be now and then inflicted. This punishment, being upon the whole inefficacious, would be useless, and expended in waste: evil, produced without preponderant good.
Look, on the other hand, to the case, where the offence to which the punishment is applied, is the offence of publishing without the required license. In this case, the fact is so easily ascertainable, and so completely unexposed to dispute, that, by a presumption by no means unreasonable, it may be assumed that the offence will scarce ever be committed. If the instrument is not regarded as coming from the ecclesiastical functionary in question, it is not productive of the mischievous effect apprehended: as little is it, if, on being interrogated whether it has his sanction, he denies it:—if, on the other hand, he avers that it has his sanction, in this case, having by the supposition no license to produce, he plainly incurs the punishment. Under these circumstances, how small the probability is that a man should thus expose himself, is manifest.
True it is,—that, by this restriction, confined as it necessarily is to discourse in a written state, mischievous discourse from the quarter in question, not uttered otherwise than by word of mouth, is not reached. But,
1. For the repression of all actual mischief—all mischief in a tangible shape—all mischief, which is anything more than mischief in tendency—all mischief, in a word, which has for its subject-matter either person or property,—provision is made, by the general and standing laws, by which, acts mischievous to person or property are erected into offences, and, as such, made punishable.
2. The mischievous discourse in question being, by the supposition, not committed to writing,—the effect of it will be proportionately uncertain and transient.
3. In so far as any reports made of the purport of it find their way into print,—they will have to encounter the arguments, which,—on the side, that, by the supposition, is not only the right side, but the side which has the remuneratory power of government for its support,—cannot, as above shown, be reasonably expected to be deficient: and as, by the supposition, the mischievous matter will not be avowed by the functionary from whom it is reported to have come, they will not operate with more than their proper and reasonable force.
IV.Punishment, proposed for promulgation without such license.
1. Banishment, for a term to be limited, from every part of the Spanish territory.
2. Forfeiture of all ecclesiastical benefices situated within the Spanish territory, i. e. of the temporalities thereto belonging. N.B. If, by the ecclesiastical law recognised in Spain, any difficulty be opposed to such forfeiture,—for example, a difficulty as to the separation of the temporalities from the spiritualities,—this point will require to be settled.
3. In case of damage, produced to person or property, by means of any incitement, regarded as having been given by the unlicensed instrument,—obligation to make compensation for the injury.
1. The justice of the arrangement manifest to all eyes. N.B. But this supposes, that the connexion,—between the publication of the unlicensed instrument and the physical damage in question,—in the character of cause and effect, has been sufficiently ascertained.
2. Assistance necessary to the law more effectually secured: secured, on the part of the persons, whose subserviency is necessary to the execution of it: necessary—in the several characters of witnesses, and informers or prosecutors.
N.B. Capital punishment makes martyrs: a martyr may be more mischievous after death than during life. Neither by banishment,—nor by forfeiture of the ill bestowed invitations to idleness and anti-christian luxury,—nor by obligation of making amends for injury,—nor by all together,—is any such instrument of good or evil as a martyr manufactured.
V.Punishment for the Political Chief, in case of his giving a license to an instrument of the sort in question, which, in respect of the mischievous tendency imputed to it, shall have been deemed unfit to receive a license.
In case of actual damage produced to person or property,—obligation to make compensation:—as in the case of the ecclesiastical functionary, as above.
N.B. If, in the case in which no such damage has been produced, it be thought fit to apply punishment to the case of the temporal licensing functionary,—a description of the nature of the offence, committed by the improperly licensed spiritual functionary, will require to be given: a description, the difficulty of which has been above brought to view. But, in comparison with the peril that has place in the case of the improperly licensed spiritual functionary,—the utmost peril, that can have place in the case of the licensing temporal functionary, is very inconsiderable. The inducement, by which a person in the situation of the ecclesiastical creature of the former government is naturally stimulated to the commission of the offence,—has no place in the situation of the temporal creature of the new government by which the former government has been supplanted. Whatever therefore be the description given of the offence,—very inconsiderable is the probability, of its being, in any such situation as that of the temporal functionary in question, ever committed.
Suppose even that, in the text of the law, no penalty is attached to the supposed mischievous conduct in question, on the part of the temporal functionary,—even in this case, the requisite means of repression will scarcely fail of being applied. For this purpose, the power of removal, belonging to the superiors in the executive department, might, it should seem, suffice.
VI.Punishment for the Political Chief, in the case of his refusing a license to an instrument of the sort in question, to which it is thought a license ought not to have been refused by him.
In this case, there seems not to be any adequate demand for punishment. The situation in question would be too perilous,—if, for two offences of an opposite nature,—one of them so difficultly susceptible of precise description—punishment were thus menacing a man on both sides.
To put an extreme case. Suppose the result to be—that, from the quarter in question, no written instrument of the sort in question ever emanes. The greatest possible evil that could result from such deficiency does not present itself as very serious. From the same quarter there would remain, in unlimited quantity, in the oral form, instructions to any effect wished to be communicated, and in the written form, instructions equally unlimited, so it be in an anonymous state:—in that state, in which it will carry with it, no more indeed than the weight, but yet all the weight, that properly belongs to it.
VII.Reason for the proposed temporariness of the restriction.
1. Restriction, howsoever applied, being so much evil,—ought not to stand applied, but in so far as it has the effect of excluding evil to a greater amount. For the exclusion of the evil in question, the most perfectly effectual course would be—to continue the restriction so long as any one functionary, admitted into the order in question under the former state of things, continued alive. But, were the duration given to it thus protracted, the restriction would continue long after the need of it had ceased to exist. Threescore, or as far as fourscore years, might be the duration of it. Even supposing unabated hostility sure in the instance of every one of them,—it is not by one, nor by a small number, that in this way any considerable mischief would be produced. In a torch, though lighted, there is nothing dangerous,—except in so far as combustible matter, in a quantity sufficient for mischievous effect, is within reach of it, Say then in ten, say in twenty—say at the utmost in thirty years,—with the hope, even the desire, of producing mischief in this shape, it seems reasonable to believe, would be effectually extinguished: if not in all, at any rate in so large a proportion of the whole number, as to leave the rest in a state of sufficient impotence.
I was about to speak, somewhat at large, upon the permanent mischief, in regard to which gentlemen of the Committee are so much at their ease, and your humble servant so full of apprehension: I had even written more than as much again as, on the conclusion of this Letter, you will now have been troubled with. What has saved you is—the recollection, that in the composition of the mischief in question, the mass of the matter of corruptive influence in the hands of the clergy is but one element out of a number: and that therefore, under the head of Religion, discussions on this subject would not have their proper place.
I will not attempt, Sir, to take up any more of your time, by offering to your view the points of difference and the points of agreement—for points of agreement on this subject there are—between your Honourable Colleagues, and your troublesome correspondent. There would be no use in it: and, when confronted, the passages will, I hope, speak sufficiently for themselves.
By one thing or other, I have thus been insensibly led, to the obtruding upon you, as it were by a side wind, something like a sample, of the manner, in which,—in a Code furnished with a rationale,—the principle of the greatest happiness of the greatest number, would be applied to the several particular cases: the several elementary ingredients of the great compound—I mean the probable feelings of all individuals concerned—being, to the best of the operator’s ability, looked out for, set down, numbered up, weighed and measured. Inadequate in a lamentable degree must unavoidably be any such sample. In an entire work of this kind, constructed in pursuance of an uniform design, that degree of condensation is practicable, which in any part taken by itself is impossible: condensation—a quality in this case so indispensable—to precision, comprehensiveness, and consistency, as well as notification. On the same subject,—you and your honourable colleagues, Sir, have before you a work, of which, in this place, I need say no more, than that, compared with their proposed Code, it is a different one. The eyes of “cultivated Europe”—Yes, and of the so much better cultivated America—not to speak of that which is beginning to be cultivated—are fixed upon you. You will make your choice. And now at length, Sir, a period is put, to the course of continually increasing vexation,—which, by the philanthropic and spontaneous zeal of a common friend, has,—such have all along been my apprehensions,—been unawares imposed upon you, at the hands of your not the less sincerely respectful correspondent,