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SECURITIES AGAINST MISRULE, ADAPTED TO A MAHOMMEDAN STATE, AND PREPARED WITH PARTICULAR REFERENCE TO TRIPOLI IN BARBARY. - 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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SECURITIES AGAINST MISRULE, ADAPTED TO A MAHOMMEDAN STATE, AND PREPARED WITH PARTICULAR REFERENCE TO TRIPOLI IN BARBARY.
now first published from the mss. of
NOTE BY THE EDITOR.
The papers from which the following pages are extracted bear different dates, ranging from August 1822 to February 1823. With the exception of the matter of Chapter IV., the originals are in detached masses, to which the Author does not seem to have applied any system of arrangement: probably owing to the circumstance that the work was abruptly interrupted, either because he found it could not be immediately applied to practical use, or for some other cause. The value of this fourth chapter, which contains the securities in terminis, is in the skill with which it is adapted to the uses of any reforming and enlightened monarch of a Mahommedan and semi-barbarous country, who may wish to give his subjects the utmost advantages of a civilized and constitutional government, which he can convey to them without resigning his own authority or infringing on the religious observances and national habits of the people. The other chapters will be found to contain,—a short analysis of the forms which misrule adopts under arbitrary governments; a demonstration that any remedies that may be adopted must depend for their efficacy and existence on the force of public opinion; an account of the manner in which that force may be brought to bear most efficaciously in such a direction; and a calculation of the chances which any such project as that propounded has of being sincerely adopted. Besides the papers here printed, there are in the same collection many others having particular reference to the state of the Pachalic of Tripoli, and to individuals connected with its government at the time when the author wrote. Finding these to possess only a local interest, which the lapse of time has materially diminished, the Editor considered that the better course would be to omit them. The information contained in them was furnished by Hassuna D’Ghies, Ambassador from Tripoli to London, at whose request, indeed, the Author had entered on the subject. This man had, by his amiable disposition, extensive accomplishments, and singularly enlightened political views, endeared himself to many Europeans, who have lately had to lament his sudden death, under circumstances which caused a suspicion that he was poisoned. He was about thirty years old when he became acquainted with Bentham, and had been eight years resident in Europe. On his return to the East, he became Editor of the Newspaper published at Smyrna by the Turkish Government.
The word Securities: its superiority to others used for the like purpose.
Generally speaking, legislative arrangements that have been established, or endeavoured to be established, for the security of the governed against the governors, have, for their success, trusted to force actually in hand: if not to force in a state of independence, as in the Anglo-American United States, at any rate, to force in a state of resistance, as in England, in the Petition of Rights under Charles I., and the Bill of Rights, passed on the transference of the Crown from James II. to William III.: and in France, in the Déclaration des Droits de l’Homme, passed by the earliest of the successive national assemblies.
This sort of title has in itself one radical defect: it presents no conception of the object which it has in view. The object which it really has in view is, as here expressed, the affording to the governed security against misrule—that is bad government—on the part of the governors. Nothing can be clearer than the meaning given of the word security: nothing for the present purpose can be clearer than the meaning given to the words bad government: or, as their signification is expressed by a single word, misrule.
When, instead of the word securities and misrule, you employ such a word as right, a cloud, and that of a black hue, overshadows the whole field. The attitude you take is restless, hostile, and uneasy. You show that you are in discontent, but you show no clear grounds for your discontent. What you give intimation of—though even to this no explicit expression is given, is—that some rights of yours have been violated, and that a determination has been formed by you not to sit still and see them violated any longer. But these rights, the violation of which is thus declared—from what source is it that they are derived? To any such word as right, no other conception can ever be attached but through the medium of a law, or something to which the force of law is given: from a real law comes a real right; from an imagined law nothing more substantial can come than a correspondently imagined right. Lay out of the question the idea of law, and all that you get by the use of the word right, is a sound to dispute about. I say I have a right: I say you have no such right: men may keep talking on at that rate till they are exhausted with vociferation and rage; and, when they have done, be no nearer to the coming to a mutual conception and agreement than they were before.
On the other hand, if no demand for security againt misrule can have place, until and except in so far as some law is violated, no such security can possibly be obtained in the case in which it is most needed: for the case in which it is most needed is that, in which, the laws being altogether at the command of the rulers, the very work of their hands, no violation of law can be needed for the accomplishment of the misrule: on the contrary, the more frequent and extensive the violations of the law are, the more extensive is the mitigation thus given to the evil, for the production of which they were established.
By the phrase—securities against misrule, all this perplexity is avoided.
But the great advantage of it with reference to practice is—that it is employable, and with equally indisputable aptitude, in every state of the society: whatsoever is the condition of the governed under or in relation to the governors. It may be employed by a sovereign representative body, on the occasion of the establishment of the constitution of the state. It may be employed, not only under a monarchy, but by a monarch altogether absolute, unless in so far as by the arrangements in question a limit, or at least a sort of bridle, to his authority is regarded as being applied.
For the subjects to say to the sovereign,—This or that is our right—say or do what you will—is as much as to say, you are no longer sovereign. For the sovereign to be made to say—You have such and such a right as against me, or I have not such and such a right as against you, is as much as to say, I am no longer your sovereign.
On the occasion of the here proposed arrangements, the course taken is—to put them in such a form that, with the government still in the state of an abstract monarchy, they may possess whatever chance of acceptance can, in the nature of the case, be possessed by any arrangements of the same or equally effectual import, aiming at the same object: but if, even in so unfavourable a state of things, a paper in this form may possess a chance of acceptance answering its wished for purpose,—in proportion as the state of things is more and more favourable, its aptitude will be still less and less exposed to doubt.
That, otherwise than by fear of evil, a sovereign can be brought in any way knowingly to tie up his own hands is, generally speaking, too much to expect. But what without such fear he may perhaps be brought to consent to—with less reluctance at least, is, to tie up in the way in question the hands of his agents: in which case matters may be so managed, as that without knowing it he may thus be made to throw obstacles in the way of his own steps, in so far as they proceed in a sinister direction.
Misrule defined and explained.
Misrule is bad government: it comprehends whatsoever is opposite to good government. A government is good in proportion as it contributes to the greatest happiness of the greatest number; namely, of the members of the community in which it has place. Rule may therefore come under the denomination of misrule in either of two ways: either by taking for its object the happiness of any other number than the greatest, or by being more or less unsuccessful in its endeavours to contribute to the greatest happiness of the greatest number.
No government having anywhere had place that had for its main object any other than the greatest happiness of those among whom the powers of government have from time to time been shared, all governments that have hitherto had existence have had more or less of bad in them. Of all governments, the worst have uniformly been those in which the powers of government have—all of them—been in the hands of one; because in that case such government has had for its object the greatest happiness of that one member: and to that object the happiness of all the other members has of course been made a continual sacrifice.
Take any government whatever: by rendering it less bad than it is, whatsoever means are capable of being proposed or so much as thought of, are reducible to one or other of two heads:—1st, arrangements by which a change will be effected on the form of the government; 2d, arrangements by which a check will be applied to the power of the ruling functionary or functionaries without any such change. Arrangements which belong to the first of these heads constitute a seperate subject of consideration. The set of arrangements herein proposed under the notion of their serving more or less in the character of securities against misgovernment otherwise called misrule, require not any such changes. The supposition on which they are grounded is that by one means or other, without any such change, the ruler or rulers may, by one consideration or other be induced to lend their power, to the purpose of giving them the sanction of law. Not therefore to misrule in every shape is it in the nature of the here proposed arrangements to apply a remedy; at least in a direct and immediate way. Not to misrule in any of those shapes in which it bears upon the members of the community in an undistinguishable mass: not, for example, to lavish expenditure, and to unnecessary and therefore unjust war; evils, towards obviating which, nothing can be done by any means other than a change in the very form of government. To those cases alone has it any direct and immediate application, in which the evil comes home to the feelings of particular, and those determinate, and in each case assignable individuals.
Considered in its application to assignable individuals, misrule may be termed vexation: the persons considered as the authors of it being persons clothed with power, the vexation may be termed oppression. In so far as from the burden thus imposed, benefit in any shape is received by the authors, or by any whom they are in this way disposed to favour, the oppression is depredation.
As to the authors, though to a boundless degree, and in a conspicuous and avowed manner, the only persons in whom oppression and thence depredation can have for its authors are those by whom in the state in question the supreme power is possessed, yet to a great and indeterminate amount, not only their several subordinates—instruments of, and sharers in, that same power—but the rich in general possess as such, and to an amount rising in proportion to their riches, in addition to that desire which is in all men, the faculty of giving birth to those same evils.
The shapes in which vexation is here attempted to be combated, are not all the shapes in which the evil is capable of showing itself; for against these thus taken in the aggregate, security more or less effectual is already in every country taken, and must therefore, in the country in question, be on the present occasion supposed provided by the existing laws. Calumnies, for example, or personal injuries, or injuries to mental or personal rights, are among the subjects not here taken on hand, as being of such a nature that the particular remedies here provided are either needless or inapplicable, with relation to them. The only vexations belonging to the present purpose, are those which, on those over whom power is exercised, are in a particular manner liable to be inflicted by those by whom the same power is possessed. Meantime these being the same persons, at whose disposal everything is that bears the name of law, to seek to afford, by means of new laws, security against those persons: to seek to afford, by means of new laws, security against those at whose disposal those laws will be when made, is an enterprise which, to a first view, can scarcely fail to wear the face of absurdity. As well, may it be said, seek to obtain security against the attacks of an armed man, by means of other arms placed in that same man’s hands. Such (it must be confessed) would be the absurdity, if it were necessary that the armour, in the manufacturing of which he will be requested to concur, should be armour of the offensive kind, or even of the effectually defensive kind, and that intended to be in any manner employed against himself. But on his part this conception is not a necessary, nor altogether certain one. Against depredation and oppression, from which he derives not, in any shape, any benefit—against depredation and oppression, exercised by, and for the benefit of, the rich in general, or by even his own instruments, and other subordinates in particular, it may happen to him not to have any strong or determinate reluctance to see a tolerably essential security provided: and as against any oppression which it is, or may have come to be, his pleasure to exercise, what may happen is—that it will not be very plainly visible to him, how it is possible that any supposed security can in reality be efficacious. But more of this when the proposed remedy, together with the evil in all its shapes, have been distinctly brought to view. Whatsoever may be the chance which the here proposed remedy affords of being productive of the wished effects, the smallness of it affords not any ground of objection to it: for, under a monarchy, such being the nature of the case, as not to admit of any other, the option is—this or none. The great difficulty is in obtaining the concession. Should that point be accomplished, its efficacy to no inconsiderable degree need not be despaired of. Abundant are the instances, which history affords, of concessions having the same object: some in which the engagements taken by these concessions have been grossly and continually violated. Still, however, there is sufficient reason to think, that without this safeguard, such as it was, the instances of oppression would have been still more numerous and afflictive. The charters by which the concessions were expressed, afforded a determinate standard of reference—a rallying point. If, even in this case, paper, when employed in the character of a breastplate of defence against the sword, was not altogether destitute of efficacy, still less need its efficacy be despaired of in the present case: for in none of these instances was any such attention applied to the making the most of the only possible remedy, as will be seen employed in the system of arrangements here proposed.
The here proposed system of arrangements has for its object, as above set forth, the applying, to such of the evils as are most apt to be produced by the immediate agency of the Monarch, or those in authority under him, such remedies as present the least unpromising chance of obtaining the application of them at his hands.
One word—misrule—will serve for conveying a general conception of the disease: another word—publicity, for conveying the like conception of the remedy: the only remedy which, (it will be seen,) without a change in the form of the government, the nature of the disease admits of.
Thus much for a general conception. But, under both heads, some explanations present themselves as necessary: necessary, in the first place, for rendering the ideas clear and determinate: in the next place, for showing that it is to this one recipe, publicity, that relief, in every shape in which the nature of the disease admits of it, is referable. Some observations will follow, in the view of showing in what way application may be made of it to most advantage; having for their object the showing what the chance is, that the remedy will be found obtainable.
First, as to the shapes in which the evil is capable of presenting itself.
Shape 1. Sufferers all determinate: the individuals all determinate and assignable. Examples—Homicide, confinement, banishment. In the aggregate of this suffering, consists the evil of the first order: for distinction’s sake, it may be called purely private.
Shape 2. Sufferers, altogether indeterminate. Examples—Waste of public money: act of engaging in an unnecessary war. In this case, the evil may be called purely public.
Shape 3. Immediate sufferers determinate, but the greater part of the evil composed of the sufferings of individuals altogether indeterminate. Examples—1. Political Gagging: i. e. obstructing in any way the communication between mind and mind, for the melioration of the common lot, on any subject of discourse; more especially on a political subject. 2. National debilitation—weakening the means of defence and security, in the hands of the people, against injury at whatsoever other hands, those of the rulers themselves not excepted. In this case, the evil may be said to be mixed; or public through the medium of private. Through the sides of one individual the public is wounded: that is to say, all other individuals are: as well those who do not feel the wound, as those who do.
Under the general name vexation, may be included every political evil, in so far as the consideration of it is confined to the sufferings of determinate and assignable individuals: namely, the individual persons who are the immediate sufferers by the individual mischievous act in question.
Oppression is vexation, considered in so far as the hand of power is considered as occupied in the production of it. Thus, if inflicted without sufficient warrant, i. e. without being necessary to the preserving the community from evil of still superior magnitude,—homicide, confinement, and banishment, are,—if produced by a hand not armed with legal power, acts of vexation simply, if by a hand armed with legal power,—if for example by the hand of the sovereign, acts of oppressive vexation, or in one word, oppression.
In oppression by the hands of rulers, two stages are discernible, and require to be distinguished. By oppression in its first stage, the disease is produced as above. By oppression in the second and last stage, the remedy is excluded, or endeavoured to be excluded.
By the same act, whereby oppression in this its last stage is exercised, oppression in the first stage may also be exercised: it is so in most instances, in those several cases, in which the evil has been spoken of as being of a mixed or public and private nature: the afflicting hand wounding the public through the sides of individuals. Examples—1. Political gagging; 2. National debilitation, as above.
In so far as the suffering, by loss or otherwise, to the party vexed and oppressed, is attended with profit to the oppressor or other vexer, or any one whom it is his design thereby to favour, oppression has the effect of depredation.*
Thus it is, that, in the case where a community is plundered by its rulers, by the support given to an unnecessary war, suppose two such wars, and the sums extorted for the purpose of the war the same in both, the one in which depredation to the greatest amount has had place, is thus far the least mischievous.
If, during the course of the war, a million of money is paid for gunpowder to the makers, better it is for the community that the half of it be put in the shape of profit into the pocket of the makers, than that the whole be converted into gas, producing or not producing the destruction which it was intended to produce.
Only to aid conception are the above suppositions put: for, how far they are from being ever exemplified, is sufficiently manifest.
The modes of oppression against which security is here endeavoured to be provided, may be more particularly enumerated as follows:†
1.Vexation on the account of religion: or say, Religious persecution.
N.B. In this particular case, what may happen, is—that the sovereign, if from oppression on this account, he does not derive any particular gratification, may be content to deprive his successors of it: while by his own act he stands deprived of the power, only because he has no desire to make use of it, they will by the same act stand deprived of it, even though they should have the desire to make use of it. In this case, therefore, a direct promise of non-exercise, or even a direct appropriate abdication may not without hope be sued for at his hands.
2.Secret confinement, viz. of the person of an individual: confinement, namely within the walls of a prison, or within any other less narrow place.
3.Secret banishment: i. e. by forcible exportation, or in any other way exclusion of an individual, from the whole of the dominion of the state in question, or from this or that part of it.
5.Mysterious disappearance: namely, disappearance of an individual from a cause as yet unknown: it must be any of the above three—confinement, banishment, or death.
7.Extortion of personal service.∥
8.Obstruction of intellectual communication.¶
10.Violation of private documents.†
PUBLIC OPINION THE SOLE REMEDY—PARALLEL BETWEEN THE PUBLIC-OPINION TRIBUNAL AND THE OFFICIAL JUDICATORIES.
General view of the Public-Opinion Tribunal.
Thus much as to the disease; now as to the remedy: of the two only accessible remedies that the nature of the case admits of, the only one that belongs to the present purpose. For conveying a general idea of the remedy, a single word—publicity—may for the moment serve: but before the nature and operation of it can be conceived with any tolerable degree of distinctness and clearness, considerable explanations will unavoidably be necessary.
Publicity! but to what acts applied? Answer. In the first place to the acts of rulers: in the next place to the opinions formed in relation to them by subjects: publicity to the acts,—knowledge of the acts being necessary to the existence of the opinions.
The existence of such publicity being supposed, and the degree of it perfect, in what way does it contribute to the object in question,—namely the affording security against misrule? Answer. Be the acts of the Government ever so arbitrary, the subject many, in proportion as they form and make public their respective opinions, in relation to them, act in so far, in the character of judges: judges sitting in judgment over the conduct of, and in this way exercising rule over, the rulers themselves.
Exercising in any way rule over their rulers: how then is it that they can remain subjects? Answer. In the way of direct mandate and coercive powers;—no: in no such way can they give direction to the conduct of these same rulers. Yes: in the way of indirect and gentle power, or in one word, influence: for in this way do our children, at an age in which nature places them under the absolute dominion of their parents, operate on the conduct of those same parents. But the particular way in which the effect is brought about, may call for further explanation.
Operating thus as judges, the members of this same community may, in their aggregate capacity, be considered as constituting a sort of judicatory or tribunal: call it for example The Public-Opinion Tribunal.
Taken in its utmost latitude, this tribunal would include all of them without exception. But, of no question, on any occasion, can any such multitude, in such their capacity, by physical possibility, actually take cognizance. Those less than a certain age, and the infirm, for example, not to mention any other classes, cannot but be excepted. Only to a certain part of the whole number, and that perhaps generally speaking the smallest, will the physical faculty of taking cognizance of any such political question be confined. If then, all the members of the community without exception were to be considered as members of this same half and half imaginary tribunal, those who are not physically incapable of taking part in its deliberations, must be considered as constituting a committee of that same aggregate and multitudinous body—a committee invested with the powers of the whole: a committee in which, as in a sort of committee every now and then exemplified in the proceedings of the English House of Commons, as many of the members of the house as enter have voices.
Again, take this or that particular operation. Of those who, all of them, possess the physical capacity of entering on it, a certain portion only, and that most commonly the smallest portion, will actually take cognizance of it: if then, those who might take such cognizance are considered as constituting a committee of that same body, then those who thus actually do take part in the business may be considered as constituting a sub-committee.
The greater the suffering produced by any act of oppression, the greater, provided it has been made known to them, is the number of the individuals who, in the character of members of this committee, are likely to take cognizance of the affair in the first instance. The greater the number of these members of this committee, who having joined in the cognizance thus taken, pass condemnation on the deed, the greater the number of those other persons who on the authority of this report take cognizance, not of the affair at large, but of the conduct of the actors, whoever they may be, in the act of oppression, so far as to concur in the opinion—the judgment, the sentence of condemnation,—passed upon those oppressive agents in consideration of their oppressive act.
The greater the number of those who concur and join in the provisional sentence, the greater the number of those who are likely to concur and join in the definitive sentence. As to the sentence, whatsoever may be the individual gradation of punishment, the ultimate punishment which it is in the power of this tribunal to inflict on the oppressors, whosoever they may be, consists in the withdrawing from them altogether that obedience to the extent of which that of their power is correspondent and commensurate. The subtraction of obedience, suppose it universal,—the corresponding power is by the very supposition at an end. This same subtraction is according to the description thus given of it, a mere negative act. But in the production of the effect arrived at by it, positive acts directed to the same end have place or come to be exercised. The extinction of the life of the oppressor-in-chief, for example, may be the punishment indicated by the sentence; executioners, any number of the members appointed for the purpose, or even this or that single one of them. By the adherents of the oppressor, the corresponding sentence with the execution of it, will, of course, be objected to on the ground of irregularity. But to act against this word irregularity, some other will be found by the concurrers in and approvers of the sentence.
In England, for example, if the king were among the individuals upon whom the supposed sentence had been passed, and execution given to it accordingly, a natural and constitutional objection would be, that to render it regular and constitutional, an act, called an act of attainder, was necessary,—an act of attainder passed like every other act of parliament by the joint consent and concurrence of the King’s Most Excellent Majesty, as well as that of the Lords and Commons of Great Britain and Ireland, almost all of them in one way or other in a state of dependence on his good pleasure; and that, His Majesty not having been pleased to give his consent to any such act, the sentences so passed and executed are thereby null and void. By any regular Tribunal composed of Judges placed by his said Most Excellent Majesty, this objection would be held valid: and on the individual by whom the sentence in question had so been executed on the body of his said Majesty, a sentence, including amongst other things the extinction of the life of this irregularly commissioned executioner, would accordingly be executed. On the other hand, by the member or members of the irregularly constituted Tribunal of Public Opinion, under whose authority the sentence of extinction against the Monarch had so been executed, the objection would as surely be overruled. On the part of this, or any other malefactor, it would have been perfectly regular for him to have given his assent to the sentence passed upon himself. But though perfectly regular, it is by no means usual. It is so far from being so, that if any such assent were waited for, it may be stated as a matter of certainty that neither to this purpose of extinction of life, nor to the purpose of any the slightest restriction, would any bar be opposed in any case to the utmost quantity of suffering which it would be, physically speaking, in the power of the supreme ruler to inflict on the individuals subject to his power, in the legal sense of that same imposing appellation.
In the above strain, for example, thought and acted the Members of that section of the Public-Opinion Tribunal, by whose warrant, by the denomination of a warrant by the Members of the High Court of Justice, the life of Charles the First of England was extinguished at Westminster in the year 1649.
Of this sort, among the punishments which it belongs to the power of the Tribunal of Public Opinion to inflict, is that which stands highest in the scale. But beneath it stand others in number and variety indefinite. Among them are—1. All obstructions to the exaction of contributions, the produce of which is placed at the disposal of the Sovereign: 2. All obstructions capable of being opposed to the execution of the judgments of the several regularly constituted Tribunals: 3. All modes of annoyance, by which, in retribution for the demonstrations of hatred and contempt received, demonstrations of correspondent hatred and contempt are rendered: 4. Invectives said and sung: 5. Invectives written and posted up: 6. Of whatever liberty is left to the subjects, to the members of the community at large, by the laws and practices of the government,—use made to the purpose of opposing, and, so far as may be, frustrating these same laws and that same practice. All this while, be the quantity of suffering ever so enormous, so long as regularity, and nothing else is looked to,—all this while to the Acts of Government, by which all this misery is produced, on the score of regularity at least, nothing can be excepted. Of whatsoever is done by the superior authority of the State, or by any subordinate authority by its order, or with its allowance, in how great a degree soever productive of human suffering, and destructive of human happiness, regularity is an inseparable quality and accompaniment: irregularity of whatsoever is done by the Tribunal of Public Opinion, in opposition to anything which is done by the constituted authorities. Irregular it is in whatsoever degree it has the effect of diminishing the quantity of suffering produced by the regular Tribunals, and is in this, or any other way, productive of addition to the net amount of human happiness. In so far, then, as, by the ruling Members of this irregular Tribunal, their own interest is rightly understood, the option is throughout between regularity and happiness. By those by whom regularity is preferred to happiness, this same irregular Tribunal will be hated, even in so far as fear permits—despised, and everything done that can be done to diminish, and, if possible, annihilate its power.
Those who desire to see any check whatsoever to the power of the government under which they live, or any limit to their sufferings under it, must look for such check and limit to the source of the Public-Opinion Tribunal, irregular though it be, and, to the degree in which it has been seen, fictitious: to this place of refuge, or to none; for no other has the nature of things afforded. To this Tribunal they must, on every occasion, make appeal. To this Tribunal they must, on every occasion, give what contribution it is in their power to give: for do what they can, never can they give to it too much praise: never can they ever give to it enough: never can they give to it so much as, for the greatest happiness of the greatest number, it would be desirable that it should have.
In the assertion implied in the giving, as above, to a certain portion of the members of the community, the several denominations—Public-Opinion Tribunal—Committee of the Public-Opinion Tribunal—and Sub-committee of the Public-Opinion Tribunal—there is a mixture of the real and the fictitious. In this statement, what, it may be asked, then, are the points that are real, what those which are fictitious? Why with that which is real mix up anything fictitious? Of these two questions, the latter may with more convenience be answered first; say, then, from the necessity of the case: for of that which is real, it is not possible to give any clear explanation, but by the help of something which is fictitious. The imperfection is one that is inherent in the very nature of language. Too often is the language of fiction employed for no other purpose than deceit: but this case is not of the number. Not so much for avoidance of imputation, as for clearness of explanation, an endeavour will now be made to draw the line of separation throughout: to point out, in these appellatives, what there is that agrees with abstract truth,—what there is that is metaphysical and fictitious.
For this purpose, the plainest course that can be taken is to confront the scattered body thus newly placed upon the list of judicatories, with those to which the title will not, by any one, be refused: to bring them to view in conjunction, giving indication, all along, of their several points of agreement and difference under so many determinate heads: placing, of course, in front the ordinary sort of judicatory, and making it the standard of reference.
Attributes of a Judicatory.
The more closely the nature of the Public-Opinion Tribunal is looked into, the more clear and strong will be the conception of its efficiency, and consequently its existence.
When announced, it will be apt to present itself as nothing more than the offspring of imagination and language. The cause and reason of this is, that on no occasion are the several members of it seen sitting altogether; nor in their official and judicial capacity are they so much as capable of sitting and taking part in the business at the same time, or in the same edifice or enclosure; or, when at a distance, of maintaining anything like a regular course of correspondence. It wears, therefore, the colour of fictitiousness, but it possesses the substance of reality. This will be rendered manifest in proportion as observation is taken of the operations, by the performance of which the ordinary judicatories, commonly so called,—those in the instance of which no one could think of contesting the denomination,—are characterized.
To a judicatory, as such, belong certain functions; these functions are exercised by the performance of correspondent operations. To a judicatory, as such, belongs a certain mass of power: namely, the power necessary to the performance of these same operations. To the will of the several members of every judicatory applies, moreover, a certain mass of ruling interest: and in the exercise of their power they will, of course, be guided by the direction in which their will is acted on by this same ruling interest.
To the head of ruling interest belongs that of pay, since the ruling interest by which they are respectively actuated, depends in a great degree on their pay, if pay they have: on the manner in which it is connected with their continuance in their situations, and the line of conduct therein maintained by them.
As to the operations or functions, they may be thus enumerated.
1. Receiving claims and accusations: claims referring to what is called the civil branch, i. e. the non-penal branch of judicature—accusations to the penal.
2. Receiving oppositions and defences,—oppositions to claims, defences against accusations.
3. Receiving, compiling, collecting, and storing, evidence, viz. in support of oppositions as well as claims, of defences as well as accusations.
4. Hearing or reading arguments, or say reasons, of parties, or advocates, or both.
5. Forming on each occasion an opinion, or say a judgment, with a correspondent will.
6. Giving expression to such judgment and will.
7. Giving execution and effect to such judgment and will.
Among different judicatories, it is evident, may these functions in various ways be distributed. But, to the attainment of the ends of justice, it is necessary that in some way or other they should be all performed.
Attached to these essential operations may be other incidental ones, such as entertaining applications for delay, and so forth; but to the catalogue of essential ones it will be found that the above belong, and that there are no others that do belong to it.
As to the word power, before it can serve to bring to view, in any distinct form, the attributes comprehended under it, certain particulars, serving as sources of division, will require to be brought to view: namely, 1, The several fields over which it exercises itself: 2, The means of efficiency—means by the use of which it gives to itself execution and effect.
1. As to fields of exercise. To the power of every efficient official judicatory, belong two distinguishable fields; 1, the local, which may also be termed the territorial, topographical, or geographical field: 2, the logical, termed also the metaphysical. In the logical may, moreover, be distinguished, 1, the corporeal subjects included in it, namely, the persons and things: 2, the incorporeal subjects, namely, the suits or demands of which cognizance is taken, i. e. the claims and accusations.
2. As to means of efficiency, they are the means of operating with effect on the above-mentioned subjects: namely,—on immoveable portions of territory, moveable things, and persons: on things by means operating on body alone, namely, physical force; on persons by these same means, with the addition of forces operating on mind, namely, prospect of punishment, (i. e. of eventual evil in any shape,) and prospect of reward. On the aggregate amplitude of these several fields and means of efficiency depends the aggregate amplitude, or say the magnitude, of the mass of power belonging to any official judicatory; in the same elements will be found the measure of the power of this unofficial judicatory—the Public-Opinion Tribunal.
As to ruling interest, it is a topic that will be apt to present itself as more new than agreeable when applied to an official judicatory; it does not, however, the less indisputably belong to it, as well as to this all-comprehensive, though unofficial judicatory, the Public-Opinion Tribunal; and in this one of its attributes will this all-comprehensive though unofficial judicatory be seen to possess its strongest title to regard. The interest of the Public-Opinion Tribunal—that is to say, of the aggregate number of its members—the ruling interest, can never be in discordance with the interest of the aggregate number of the members of the particular state or community in question: whereas, the interest,—whether we take the aggregate interest of the whole number of official tribunals, or their several particular and distinct interests; that is to say, the aggregate of the interests of the several members,—can never be in complete accordance with that same universal interest.
Such is the identity on the part of the real net interest: and in so far as correctly understood, and capable of being pursued, it is the net interest that, in every individual and in every aggregate of individuals, will, on each occasion, be the actual ruling interest.
As to the attribute of power, the existence of it will be more readily recognised in the gross, namely, by the contemplation of its effects, than comprehended in detail, by reference made to the corresponding elements in the power of a judicatory of the official kind. But to its being clearly apprehended and conceived, a glance at these details is indispensable. In the first instance, however, thus much may be remarked of it in the gross, namely, that by its effects the reality of the power itself is demonstrated, and by the reality of the power, the reality of the judicatory to which the power is ascribed and attributed; for of that which has no existence there can be no attributes.
Constitution of this unofficial Judicatory.
To every official judicatory, the above several attributes will be allowed to belong without dispute. No less truly will they be seen to belong to the unofficial judicatory.
First as to the members. In this first point will be seen to lie the greatest, or rather the only difficulty. In this part of the picture, reality wears somewhat the air of fiction. Of the object designated by the appellation of Public-Opinion Tribunal, familiar as the expression is, the existence will be apt to be suspected of being no other than figurative, and merely nominal: on the other hand the name of it is not more perfectly familiar, than the existence of its power is universally recognised; and of an object, the power of which is admitted, to deny the existence, would be self-contradiction. Even in regard to members, the only difficulty lies in the determination of the individuals to whom, on each occasion, the appellation can without impropriety be ascribed; and even on this point, the uncertainty may not unfrequently be seen shared in by the official judicatories.
Be this as it may, a function supposes a functionary—one functionary at the least; an operation an operator. Ere any account can be rendered of the operation of the unofficial judicatory, some individual or individuals must be brought to view, as and for so many members of this judicatory—members by whom the several operations are performed. At the head of these, as exercising the function in question in a manner the most conspicuous, sits the editor of a newspaper, in which the press, however legally handcuffed otherwise, is to the purpose of being capable of affording an example of this sort of judicature, practically free. Say, for example, an English newspaper. An Anglo-American United States newspaper is to this purpose legally as well as practically free; but it being in Europe less known, the English newspaper will be the more convenient standard of reference.
But of the unofficial judicatory, an English newspaper editor is but one member amongst millions. To show in what way he is the head, it will be necessary to show in what relation this one individual stands to the millions: in a word, of what different classes in relation to so many different purposes, this judicatory, taken in its totality, is composed; to show, in short, the composition of the whole judicatory.
Take any political community—the British Empire for example: of the aggregate of all the persons belonging to it, ruler and subjects taken together, will the Public-Opinion Tribunal be composed; and not only the inhabitants of the two islands, but the inhabitants of the several distant dependencies in the once four quarters—now five great portions—of the globe, must to this, as to other purposes, be considered as included. But not to speak of those who do not take a part in the consideration of subject-matters of the sort in question, a large proportion of the number—to wit children below a certain age, is composed of those who by physical incapacity are rendered physically incapable of taking such part. Distinction 1. Those members who belong to the Tribunal in respect of interest and future practice only, and those who belong to it in respect of personal practice.* Among those who belong to it, in respect of personal practice, may again be distinguished these classes—viz. 1. The merely speaking members; 2. Those who are not only speaking but also reading members; 3. Those who are not only speaking and reading, but also writing members; 4. Those who are not only speaking, reading, and writing, but also printing and publishing members.
The class of merely speaking members forms the basis of the several others: it cannot anywhere at any time be extinguished: if it could be extinguished, European governments are not wanting in which it would most assuredly be extinguished—at least endeavoured to be so. For instance, by cutting tongues out, it might be, and would most effectually be, extinguished. But tongues and the use of them are indispensable to the performance of the labour, without which the stock of the several instruments of felicity, by means of which the felicity of the ruling one and of the subruling few is reaped, could not be brought into existence. By any such extinction as this, the interest of these same rulers would, according to their conception of it, be not served but disserved. Accordingly no such extinction has ever yet been endeavoured at, or seems at all likely ever to be endeavoured at. Not so by the general extinction of those other classes, saving and excepting such a portion of them respectively, as under the direction of the supreme ruler may be necessary to be employed in the production and preparation of these same useful and necessary instruments, and securing him in the undisturbed possession of them, and in the application of them by him and for him to their respectively appropriate purposes.
So long as human beings come in presence of each other, it is impossible, generally speaking, to prevent their conversing with each other, and so long as they converse with each other on any subject, it is not possible to prevent them from conversing occasionally upon political subjects. In the interior of a palace, even without the trouble of cutting their tongues out, men may be converted into mutes. Accordingly in palaces, in which the art and science of legitimate rule has been carried to perfection, a transformation of this sort is known to have been accomplished. But in places other than palaces, for preventing conversation from taking any such dangerous direction, no means does the nature of the case afford, but the employment of spies. But here occur divers difficulties. Spies adequate to the purpose would require to be no less numerous than soldiers, and to be even more highly paid. And how well soever paid, among them—no one can say in how large a proportion—might be those who, seeing it necessary to deceive somebody, would prefer deceiving the universal enemy to deceiving their respective friends. Moreover, the more strict and effective the system of discipline employed in the extinction of the several classes of publishers, writers, and readers, the more apt would this policy be to become the subject of frequent, not to say constant conversation, among the classes of speakers, whose existence it would never be possible to extinguish.
If all the members of the political community in question be considered as being every one of them so many members of the Public-Opinion Tribunal, those who are, physically speaking, not incapable of acting as such, may be considered as constituting a standing committee of the whole body invested with the powers of the whole. What would, however, be more simple in conception, and would be more exactly conformable to direct truth, would be to consider the whole aggregate of those who are, physically speaking, not incapable of taking a part in the consideration of public affairs, as composing and constituting the entire judicatory: invested with the power in trust for themselves and the several other members of the community at large.
These, then, constituting the entire body, a committee of that same body will be the aggregate, composed of all those who, at any given point of time, do actually concur in taking cognizance of the affairs in question, or any part of them; and that, whether in the way of publication, writing, reading, or oral converse: and, of the general committee, so many sub-committees may be conceived as constituted—so many sub-committees as there are aggregates of individuals who, on any occasion, in any place, take actual cognizance of this or that political operation, to whatever part of the field of government it appertains.
Of these several subcommittees, the several individuals by whom, respectively, a literary work of any kind, bearing in any way upon any part of the field of government, is published, may be considered as so many presiding, or say leading members, or, in one word, presidents. But, among these presidents, a political newspaper editor, being the only one in constant authority, is, as it were, president of all these presidents; king of these kings; lord of these lords of the dominion of liberty and independence; real and not sham representatives of all who buy, and of all who read with sympathy, their respective publications, the product of their respective labours.
Among the infinity of subcommittees of the Public-Opinion Tribunal, as above indicated, three, as being the most efficient ones, require to be distinguished: these are—
1. The Subcommittee of General Superintendance. President, a newspaper editor. Other members, his customers and readers, and in particular his correspondents. These last belong to the catalogue of leading members.
2. Subcommittees of Justice, or say Judicature. Members, the several individuals who, being present in the several judicatories during the carrying on of the several businesses, take interest in what is going forward, in such sort as to form an opinion of approbation or disapprobation, in relation to any part of it.
3. Subcommittees of Religion. Members, the persons present at the several sermons or other discourses held on the subject of religion by the several officiating priests: also those by whom the several works on that subject are read or heard in places other than those which are appropriated to this sort of occupation.
In one and the same number of an English newspaper may commonly be seen the united product of the labours of a number of these subcommittees.
Thus much may, it is hoped, suffice for the purpose of illustration, and for the giving to our conception of the subject such degree of clearness, as the nature of the case admits.
Functions or Operations of the Supreme Unofficial, compared with those of the Official Judicatories.
The several operations included in this part of the business of an English newspaper, being thus taken, as and for a specimen and sample of the functions of a sub-committee of the Public-Opinion Tribunal, let us see in what way the mode in which these several functions, as thus performed by it, agrees with, and in what way it differs from, the mode in which these same functions are most commonly performed, in and by an official judicatory.
To the present purpose they may be enumerated as follows:—
1. Receiving claims and accusations.
2. Receiving oppositions and defences.
3. Receiving, compelling, collecting, and storing, evidence.
4. Receiving, and hearing or reading, arguments of parties litigant, or advocates.
5. Forming opinions or judgments on these, with correspondent will.
6. Giving expression to such judgments and will.
7. Giving impression to such expression.
8. Giving diffusion to such impression.
9. Giving execution and effect to such judgments and will.
Distinct in themselves are all these several operations, and, by the ordinary Judicatories, who have the time of other men as well as their own at their disposal, as well as the channels of communication at command, they are performed at different times, and in regular succession, as above displayed.
In and by the Public-Opinion Tribunal, a member of it not having, generally speaking, any channel of communication, or the time of any other person at his command, these several operations cannot respectively be performed but as occasion offers; and when occasion does offer, it must be made the most of, and the several operations, all of them, or as many as can with advantage, be performed at once.
Follow, under the above several heads, a few observations, having for their object the bringing to view the principal points of agreement and difference between the one sort of Judicature and the other.
1. Receiving accusations.*
In the newspaper in question, an allegation is made of misconduct in a certain shape, as having had place on the part of a certain functionary or set of functionaries: the accuser, whether the editor himself or a correspondent, makes to newspapers no difference. Here the function of receiving accusations stands exemplified.
2. Receiving Defences. Of the exemplification made of the exercise of this function, indication will be made presently.
3. On this same occasion, a correspondent perhaps makes mention of this or that particular, as having fallen within his own knowledge: the name though not signed,—having for the security of editor and printer, or not having, been privately communicated. Here the function of reception of evidence, and at the same time that of the impression of it, and that of the diffusion of it, stand exemplified.
At the same time, whether directly by means of appropriate and direct questions, or at any rate, indirectly and virtually by means of apposite affirmations as above, the party accused is called on either to confess the act thus indicated, with the inculpative circumstances, and at the same time directly or virtually to confess the culpability of it, or to deny the act, or some inculpative circumstance or circumstances belonging to it, or admitting what is above, to argue in justification of the act.
The next day, or next but one, suppose, the party thus called on argues in justification of the act; and at the same time either directly avers the having done it, or by his silence, or the turn given to his argument, virtually admits it: here the function of compelling evidence stands exemplified.
On the former day, intimation was moreover given of certain other persons, as having been percipient witnesses of the act, or this or that inculpative circumstance belonging to it, and as being thereby rendered capable, if so disposed, of becoming in relation thereto reporting, narrating, or say, deposing witnesses. Here a commencement of the function of collecting evidence stands exemplified.
Purchasers, in number more or less considerable, being in the habit of filing and preserving the numbers of the newspaper in question as they come out, here the function of keeping in store—in a word, of storing the stock of evidence in question stands exemplified.
4. With the evidence thus received, compelled, collected, and kept in store, is commonly at the same time mixed up, and thus received and kept in store in some proportion or other, matter on both sides bearing the character of argument: argument having for its object the bringing to view either the probability or improbability of the alleged act, or of the alleged inculpatory circumstances, or the impropriety or propriety of it or both together: each party, by the argument he delivers, directly or virtually calling for counter-argument on the other side. Here then the function of receiving arguments at the hands of parties litigant or their advocates, or both, stands exemplified. The function of reading or hearing these arguments—this mass of argument, together with the correspondent mass of evidence is, in this case, left to the purchasers and other readers or hearers of the newspaper, each one exercising it for himself, or this or that of his associates.
5 and 6. Having received from his correspondent the above-mentioned letter and thereupon the several other masses of evidence and argument above-mentioned, the editor in the course of the controversy forms and declares some opinion, or say judgment, of his own, provisional or definitive, in favour of the accusing or the defending side. Here the function of forming, and that of giving expression to, such opinion and judgment, stand exemplified.
The judgment, suppose, is a judgment declaring conviction, and passing sentence of condemnation on the party so accused. But in such judgment and sentence of condemnation, is included an opinion, that by the party thus condemned, a disreputable act has been committed: an act whereby he will be lowered in the estimation of other members of this same unofficial judicatory in an indeterminable and incalculable number, in consequence of which depression, he will in the natural course of things, be deprived in some sort and purpose or other of their good offices, and upon occasion even be exposed, in some sort or purpose, to positive ill offices at their hands: and in such judgment is naturally at least, if not necessarily and virtually included, the declaration of a will, or say, a desire that such shall be the result.
By this president and leading member of this subcommittee of the Public-Opinion Tribunal, by which cognizance is taken of this affair—by him, not to speak of others who agree with him—expression is given to the judgment so formed. But by others in uncalculable number, by whom no judgment is expressed,—a judgment on the subject—the like judgment suppose—is formed. But, in such instances the judgment being formed, though no expression is ever given to it, a correspondent will as above is naturally formed,—a correspondent will—whence result subtraction of good offices and performance of ill offices, as above.
7 and 8. From the newspaper editor the aggregate of this mixed mass of evidence and argument, together with the accompanying preliminary matter as above, and the expression given to the judgment and will as above, receive of course impression and diffusion in the way of his business. Here then the several functions of giving impression and diffusion to the judgment and will, and to the expression given to them, stand exemplified.
9. In ways and by members of this same unofficial judicatory, in a number altogether out of the reach, not only of general perceptive enumeration, but of calculation, execution and effect will continually, and as it were of course, be given to the judgment in question, namely, by the consequent will and ill offices, positive and negative, as above. Here, then, the function of giving effect and execution to the opinion, or say the judgment in question, stands exemplified.
From a review of the above several functions or operations, may be formed a deduction of no small practical moment. This is, the prodigious importance, absolute and comparative, of the situation and functions of this president and leading member of so many subcommittees of this not the less supreme and all-comprehensive because unofficial judicatory: the importance absolute, and more particularly in a comparative point of view: comparison had with all other members of all other and whatsoever classes, as above-mentioned.
Next to him in the order of importance comes the author of this or that work belonging to some department of the field of politics—of that vast field, the whole of which lies within the dominion and is every day coming under the survey, of the unofficial functionary.
Power of the Unofficial compared with that of the Official Judicatory.
I. Means of execution and effect. Among the elements constitutive of political power, this, though in the list of them it occupies the last place, is the first to be looked to, this being the effectual one, without a clear conception of which no clear conception of the others can be formed.
Of the means of execution and effect, the aggregate efficiency will depend, 1. upon the number of persons disposed to concur in contributing to the effect; 2. partly upon the internal force, physical and mental, of each; 3. partly upon the quantity of external physical force at the command of each, i. e. of the sorts of things capable of giving increase to human physical force, such as arms, ammunition, &c.; 4. partly upon the facility of acting in concert; 5. partly upon the smallness of all opposing force; 6. partly upon the magnitude of the evil, to which the possessor of the power has the physical faculty of subjecting the individuals subject to it in case of non-compliance and obedience; 7. partly upon the comparative magnitude of such evil, viz. as compared with the magnitude of the evil to which, in the case of a rival possessor of power, such rival is able to subject the common subject or subordinate.
Compare now, under these several heads, the condition of the unofficial judicatory with that of the official ones considered separately or in the aggregate.
1. In respect of the number of persons disposed, in the character of agents, to concur in giving execution and effect to the opinions, judgments, and wills in question. In this particular the advantage which the unofficial judicatory possesses, when compared with the official judicatories, all of them put together, is at first mention manifest. Of those by whom on any occasion the judgment and will of the former have been formed, and those whom it finds disposed to concur in giving sanction and effect to them, some with more energy, others with less, the number is exactly the same; it is the aggregate number of the whole community.
2. The same may be said of the aggregate amount of internal force, physical and mental.
3. The same may be said of that portion of the aggregate means of execution which is composed of objects belonging to the class of things: for to the aggregate of the individuals above-mentioned, as belonging on this occasion to the class of persons, belongs the aggregate of the individual objects belonging to the class of things.
6.* So likewise as to the magnitude of the evil to which in quality of possessors of the power, that is to say, of the above-mentioned elementary ingredients of it, the members of the judicatory in question have the physical faculty of subjecting those at whose charge the execution and effect in question are to be given in case of non-compliance or disobedience. For in this magnitude is comprehended, without any exception or limitation, the aggregate amount of all the evil to which, in what shape soever, it is in the power of man to subject man.
7. So likewise in the case of competition, as to the magnitude of the evil to which the members of this unofficial judicatory, and the members of the several official judicatories, its rivals, are capable separately and collectively to produce at the charge of any individual or individuals considered in the character of their common subjects.
II. Personal branch of the corporeal field of the power of a judicatory.
Under the head which applies to members, has been brought to view the all-comprehensiveness of this branch of the unofficial judicatory, as compared with any official judicatory or judicatories; not only sharers of this power, but contributors to its magnitude, because so many ready executors of its will, are the members of this unofficial judicatory every one of them. Under that same head has also been brought to view the faculty which in each political community this unofficial judicatory has of receiving reinforcements to an unlimited amount from the members of the like judicatories in the several other political communities having place on the surface of the globe.
Compare this element of its power with the correspondent element of the most powerful official judicatory in the same political state. The power of the official judicatory will be still the inferior: no such faculty of receiving reinforcements to an unlimited amount from other states belongs to it.
Correspondent to the extent in respect of the number of the individuals of whose force the force of this aggregate is composed, is the extent of the number of those on whom the force is capable of being exercised. On the one hand, all enter into the composition of the public force: so, on the other hand, all behold all in a state of subjection to this same public force.
III. Incorporeal field of jurisdiction of a judicatory—extent of the classes of suits or causes appertaining to it, i. e. of the rights on which claims may be grounded, and the wrongs on which accusations may be grounded.
In the case of the official judicatories, the rights which their field of jurisdiction embraces are those only in which, proceeding according to the system of procedure pursued by them, more good than evil, with reference to the interests they are employed to support, may, it is supposed, be produced by their interference; and so in the case of accusations. By the unofficial judicatory cognizance is taken, not only of all these same rights and wrongs, claims and accusations, but also of all others in which the interests of the community, in respect of the several individuals included in it, are, in the opinion of the several members of the standing committee of the judicatory, and of its several subcommittees, as above, concerned.
Thus much as to the points in which this unofficial judicatory is superior to the official judicatories. Now as to those in which it lies under a disadvantage.
1. In the first place, taken in its totality, it labours under a division—a constant and invariably established division, in respect of interests. Two parties constituting so many sections—the democratical and the aristocratical, are destined, in all communities and at all times, to have place in it. The interests of the few—the extra-opulent, and therefore, if by no other means, the powerful few, being in a state of opposition to that of the many, that of the consuming class which produces nothing to that of the producing class, which produces more than it consumes,—hence it is that, whatever power is in the hands of the aristocratical class, over and above that which is in the hands of the same number of those of the democratical class, constitutes a sort of disease with which the body politic, taken in its totality, is afflicted.
By the original structure of its constitution, this body is destined to labour under two distinguishable diseases, having for their cause or causes the inward resistance of two intestine sets of enemies; one set composed of the ultra-indigent class of malefactors, who, being as such weak and powerless, and objects of general disgust, are thereby exposed to punishment: the other, composed of the ultra-opulent, who being as such powerful and objects of general respect, are thereby exempted and preserved from punishment. Of both of these, depredation is the characteristic occupation: by the ultra-indigent it is ever acted on upon a small scale, by the ultra-opulent upon the largest scale.
Intestine depredators of this class being innate accompaniments of the constitution of every political community, they exist, nor can they ever cease to exist, in a representative democracy, even though constituted in the purest form possible. In that form they may be kept under in such sort as not to be productive of any considerable mischief; but they cannot, consistently with the security of the whole, ever be altogether extirpated. Thus stands the matter in the only sort of government which has for its object the greatest happiness of the greatest number: for as to all others they have for their object the greatest happiness of the smaller number, at the expense of that of the greater.
In a monarchy, at the head of the highest predatory class is stationed the arch-depredator the Monarch: a creature in whose devouring and consuming maw, for the small chance of giving increase to the felicity of that one being, the substances of thousands and tens of thousands of others whose claims are as good as his are consumed.
The analogy between the innate disease of the body politic, and one of the diseases which, in the body natural, though frequent, is but casual, cannot have escaped the observing eye: in the class of malefactors so called and treated as such, may be seen the ascarides by which the several parts of the intestinal canal are occupied and infested: in the higher parts—in the aristocrats—may be seen the teretes, the smooth and polished sort, as the name imports: in the monarch the solitary worm or grub, in French ver solitaire, no constitution being equal to the endurance of more than one, the extraction of which is at once so difficult, so perilous, and yet so necessary. An emblem is not a proof, nor is it here meant as such; but if furnished by the nature of the case, and happily chosen, it will contribute clearness and strength to the conception, and for this purpose alone is it here brought to view.
Happily, the disease, such as it is, is in a particular degree that of infancy: sooner or later the body politic, if not killed by it, outgrows it. Every addition made to the number of readers is an addition to the number of persons capable of reading books on political subjects, and of so becoming members of sub-committees of the unofficial Judicatory: while by the same means an addition is made to the number of persons by whom discourse is held on that subject in public, or at any rate, in private, and consequently to the number of sub-committee-men, as above. Every addition made to the number of persons becoming inhabitants of towns, in contradistinction to the being inhabitants of the country, separated from one another by distances more or less considerable, becomes an addition to the number of readers of politics, as above, or at least, to the number of hearers of political discussion.
Every addition thus made to the number of the persons habituated or disposed to the constituting themselves members of these unofficial committees, is an addition made to the number of those capable of taking cognizance, and likely to take cognizance of any appeal made to this tribunal by any members of the Government,—by any official functionaries when disagreeing with one another. By every such disagreement an addition is, therefore, naturally made to the power of this Judicatory—of the only body, the interest of which is not in discordance, but in accordance with, as being the same thing with, the interest of the greatest number of the members of the political community in question, whatever it be: even by every verbal discussion held between man and man, among the people at large, on that same subject, an appeal of this sort is made. Accordingly, by every such disagreement, so as the subject-matter and the particulars of it do but transpire, a service is rendered to the public interest—to the greatest happiness of the greatest number. No such service is commonly intended, but how far soever from being intended, it is not the less rendered.
Of such disagreement the causes are happily not a few.
1. In a monarchy a disputed succession is liable to have place.
2. A minority—the nonage of the monarch.
3. The manifest mental debility of the monarch, whether from old age, permanent bodily ill health or mental derangement. Manifest it must be, and undisguiseably so, to constitute anything that can be regarded as a particular, and incidental, and extraordinary case: for as to intellectual inferiority, comparison had with the ordinary herd, it is among the necessary results of the situation itself.
4. Between any two branches of the monarch’s family, any disagreement in which the monarch takes, or is thought to take a part.
5. A disagreement between the sovereign in possession and the monarch in expectancy,—between the monarch on the throne and the next heir-apparent or presumptive.
6. Disagreement among the members of an administration, or as between the members of the existing administration, and the other men of rank and opulence, who are habitually collected within the field of the sovereign’s observation.
In a mixed monarchy, the existence of disagreement between the constituent parts of it is of the very essence of the species. True it is that another property belonging to the essence of the species is the having a bond of union, a sinister interest in which they share—a sinister interest acting in evident opposition to the interest of the greatest happiness of the greatest number: and by this unity of interest, the government may, for a length of time more or less considerable, be kept from dissolution. Not less true is it, however, that in a government of this species, not less considerable are the causes of disagreement that have place.
If, between the power of the monarch and whatsoever power there is by which his is kept in check, the limits are not sufficiently defined, thereupon come contentions between the one power and the other.
So, if between two powers subordinate to that of the monarch, if so it be that the monarch takes a part on the one side or the other, which is what can scarcely fail to have place.
By a certain degree of prudence, disagreement from any one of the above three causes may be kept from breaking out: one cause, however, there remains, which is of the essence of the species, and which cannot by any human prudence be at any time altogether excluded. This is the competition for power as between party and party in the class of statesmen.
The matter of good in the shape of matter of corruption is, suppose, even the whole of it in the hands of the monarch, or at his disposal. Still, be it ever so vast, and be his desire of satisfying everybody ever so ardent, to give satisfaction to that desire, is at all times plainly impossible. So far from decreasing, as the quantity at his disposal, and accordingly, disposed of, increases, the aggregate amount of the appetite increases in that same ratio: the more there is to be had of it, the greater is the number of those, each of whom beholds for himself a probability of obtaining a share of it.
Thus then, between the party by whom this mass is shared (including those who, by their means, are in certain expectation of succeeding to a share in it) on the one hand, and the party to whom, neither in possession nor in immediate expectancy, is any share in view, strife, constant and interminable, has place,—constantly is the excluded party occupied in forcing itself in. For doing so it has no means but that of preferring against the party in possession, accusations, matter for which never has been, nor in such a form of government ever can by any possibility be wanting. But for the bringing and prosecuting these accusations, there exists but one possible tribunal, and this is—the Public-Opinion Tribunal.
Difficult, however, is the game which has at all times to be played by the corruptionist in expectancy. Otherwise than by appeal to the power of the unofficial Judicatory, in no way can he do anything towards the forwarding of his wishes. But to carry on any such appeal is to act as accuser, either of the functionaries who act under the form of government, or of the form of government itself, or both. As to the pointing of the accusation against the individuals their rivals, if that were all, in this it is not in the nature of the case that there should be anything that is not perfectly agreeable to them: what is thus aimed at is all profit, no loss. But under such a government the utmost mischief that is ever done beyond that which the government itself affords a warrant for, is in comparison with that which is done with a sufficient warrant from the form of government very inconsiderable. Depredation, and with it oppression in every other imaginable shape, may be carried on to any extent, and yet nothing be done in which condemnation in any shape is passed by either the letter or the spirit of the law, or the usage of government in or under it. Meantime that same load will be at all times pressing, and with ever-increasing weight; and those men being, by their hapless condition, condemned to keep up the continued profession of being friends to the people, no sooner does any particular instance of misrule in either of these shapes come to light, than all eyes are turned to them in expectation of their taking up the accusing part. In truth, the depredation and oppression exercised, having all of it the form of the government for its cause, it is never possible that the connexion between the effect and the cause can escape all eyes.
2. Second point of disadvantage—comparative incapacity of acting in concert.
Of this disadvantage there are two sorts of causes, the one natural, the other factitious.
Of the natural causes, the radical and principal one is local distance. It presses, of course, with particular weight on the condition of the inhabitants of the country, as compared and contrasted with that of the inhabitants of towns. In both cases its pressure is in the inverse ratio of the density of the population, and, as between town and town, in the inverse ratio of the number of inhabitants in each.
Of this cause the efficiency is capable of being counteracted and disturbed, by every circumstance by which either facility is given to the means of communication, or a counter-advantage afforded by means of profit in a pecuniary or any other shape, from frequent intercourse. By water carriage, for example, whether it be by sea or inland navigation that the facility is afforded,—by mutual advantage in the way of trade, the counter-advantage is afforded.
Of this same disadvantage the factitious causes are those which are produced by prohibitions and restrictions imposed by governments.
In every government but a democracy, the interest of the ruling few being in a state of opposition to the general interest, the consequence is, that in every species of government but that one, the class of functionaries beholds in the Public-Opinion Tribunal not a support, but an adverse power: a power capable of becoming superior to its own, capable not only of opposing limits to it, but of extinguishing it, and commonly the only one that is so: the only one without exception in the supposition that the political state in question has nothing of the sort to fear from any foreign State or States.
Hence, consequently, with the governing body of every State but that one, it is a constant object to throw in the way of such communication, so far as applied to political purposes, i. e. so far as applied to the formation of subcommittees of the unofficial Judicatory in question, every difficulty possible.
In the course of these endeavours it finds two natural interferences and difficulties: the odium attendant on it, and the obstacles thrown in the way of communication for such transactions as are regarded as being serviceable to its interests, and as such approved of.
As to the odium, it will be in intensity and extent exactly in the ratio of the degree in which the qualities of probity and intelligence have place in the community. By no government which is not an enemy, an uncontrollable enemy, to the rest of the community, can any such endeavour be ever employed: by every such endeavour an avowal is made of such enmity, consequently of such inaptitude, and of its being the interest of all men subject to it to put it down with all possible speed, and by whatsoever means appear to be at the same time the most efficacious, and in the shape of evil in all shapes least expensive: an avowal not in words, it is true, but in deeds; in deeds by which of the state of the agent’s mind on every occasion evidence is afforded to such a degree conclusive, that the most probative that in the nature of the case can be afforded by words alone, shrinks into insignificance; and, in truth, sinks into nothing at all when opposed to the above-mentioned practical evidence.
The other impediment consists in the difficulty of preventing or obstructing communication for this unacceptable purpose, without preventing or obstructing it in its application to others that are regarded by the government as serviceable to its interests, or even necessary to its existence.
Take, for instance, the English Government, with its Tax upon Newspapers, An. 1801, £200,000; do. An. 1821, £400,000.* In any coolly reflecting mind, no doubt can have place that were it not for this counter-consideration, every newspaper, the editor of which acts in the character of leading member of a subcommittee of that Public-Opinion Tribunal, would long ago have been extinguished. The odium—had that been all—the government would have been content to subject itself to; but the odium with the loss of so large a sum added to it, and at a period of so much financial pressure and difficulty, would have been decidedly more than could be afforded to be paid even for so mighty and decisive an advantage.
NOTIFICATION AND PUBLICATION IN REFERENCE TO SECURITIES.
Subjects of notification, and thence publicity.
1. Ordinances. 2. Transgressions, or any violations of those same ordinances. 3. Suffrages, or opinions formed by the several members of the Public-Opinion Tribunal, on the subject of or in relation to some transgression, as compared with those same ordinances.
Transgression supposes something transgressed; in the instance here in question that something is something having or designed to have the authority of law.
1. In the first place come the several ordinances, of which misrule in each of the several shapes against which a security is by this system endeavoured to be provided will have been a transgression: ordinances, or supposed rules having the effect of ordinances—of ordinances interdictive of vexation and oppression in all its several shapes. If at the time of giving establishment to security in those several shapes, ordinances adapted to the purpose are already in existence, it is well; if not, fresh ordinances for the purpose must in this case be provided.
2. In the next place come whatsoever instances of transgression happen to take place. If none, so much the better; the ordinances have in the completest manner possible fulfilled their purpose. If any transgressions within the law in question have had place, the number of them being given, the greater the number to which notification and publicity have been secured as compared with the total number that have had place, the better.
3.Suffrages. Understand by suffrages, the opinions produced in the minds of the several members of this same tribunal by the cognizance of the several transgressions. As applied to persons taking cognizance of the several transgressions, the degree of publicity will be as the number of their suffrages.
Note, that in the number of the members of this same tribunal, is included the number of all those on whose obedience or will depends the effect, of the several general salutary tutelary ordinances by which vexation is prohibited, as also of any particular acts or particular ordinances, in consequence of which any acts of vexation and oppression are exercised in violation and transgression of these same general and salutary ordinances. Power on the one part is constituted by and is in greater or less proportion to obedience on the other. It is in the direct ratio of the obedience, and in the inverse ratio of resistance. But the greater the number of the members of the whole community to whom the existence of an act of oppression has been made known, the greater is the number of those by whom, on the occasion of an endeavour to exercise other acts of a similar nature, supposing the first act notified to them, not only may obedience be withholden but resistance opposed.
Rule: abstraction made of the several degrees of influence possessed—influence of understanding on understanding, and influence of will on will included, the actual power of the Public-Opinion Tribunal will be as the number of the suffrages, actually declared in the minds of the several members: its power, as supposed by other persons, and, in particular, the several functionaries to whose transgressions it is the object of the securities to oppose a check, will be as the number of the suffrages which they expect to find formed and delivered.
This influence with its several possible degrees it may be said may be laid out of the account altogether. For of the persons on whom by possibility it is capable of being exercised, the only persons here in question are the members of the political community in question, considered in the character of members of the Public-Opinion Tribunal belonging to it. Thus, accordingly when considered in a general point of view for the most part does the matter stand. One point however there remains in relation to which the sort of influence in question is capable of having a distinct operation. The suffrages, suppose, of all the members of this tribunal take the same direction, they being all of them pronounced in condemnation of the oppressive act in question. Therefore, as between suffrage and suffrage, it makes no difference which of them was the result of a self-formed opinion—which of them the result of an opinion derived from the influence exercised on the mind in question by that of some other member: exercised whether on will, or on understanding, or on both together. But, though, by the supposition, the direction taken by the suffrages is the same, and the ultimate number of them, by what cause soever produced is the number in question, yet the degree of energy with which upon occasion they may respectively be disposed to act in conformity to these same suffrages may be to any amount different: and in each case this degree of energy may be greater or less according to the nature and force of the influence received.
Note, that to simplify the conception, the direction taken by the suffrages in question is, on this occasion, supposed to be the same in the instance of every one of them. But as by this supposition the subject of these suffrages is in every instance some act of oppression exercised by the sovereign or individuals, there is nothing in this supposition that seems to be in any very considerable degree wide of the truth.
So much for the several subject-matters to which the act of notification may have need to apply itself. Now, as to the several successive operations, the performance of which may be necessary to the production of the effect—of the effect, by whatsoever name designated, whether notification or publicity.
These preparatory operations will be in a considerable degree different, according to the nature of the subject-matter, according as it comes under one or other of the three above-named denominations, namely, ordinances, transgressions, or suffrages.
Notification, with respect to ordinances.
First, let them be supposed already in existence, and possessed of binding force.
If, so far as regards the purpose here in question, they are already present to every mind capable of taking cognizance of the matter, it is well. Unfortunately, there is not anywhere, on the surface of the globe, any country in which this sort of omnipresence, or anything like it, has place; not even in that country, the Anglo-American United States, in which the productions of the printing-press are most extensively dispersed: much less in Northern Africa, where even the instrument itself has never yet been in use.
Necessary to the existence of an ordinance in a binding state are three distinguishable operations: namely, scription, sanctionment, and registration.
1.Scription. By this understand the act of composing and committing to writing the matter in question.
2.Sanctionment. By this understand the investing it, with binding force, by some person or persons generally recognised as being possessed of a correspondent power.
3.Registration, or say recordation. By this understand the depositing and keeping, in some appropriate receptacle, the individual instrument to which the Act of Sanctionment has been applied. But for this the correctness and even genuineness of all copies, written or printed, might stand exposed to doubt and dispute.
Minute and useless will the distinction thus brought to view be apt at first sight to appear. Upon a second view nothing, it will be seen, can be farther from being so. Scarcely will that country be seen in which, throughout a vast and indeterminate portion of the field of action and legislation, an operation so essential as sanctionment will not be seen wanting to that matter to which is given nevertheless the name and binding form of law.
Thus far ordinances, appropriate and adequate to the nature of the exigency, have been supposed to be already in existence. If so, it is well. But, suppose the state of things to be a contrary case, what then is to be done?
Case 1. In relation to the matter in question, yet no ordinance of the above description in existence; but in the case of judicial decisions, the standard of reference, composed of anterior decisions, or inferences deduced from them. In the European governments, with the exception of the few instances, if any, in which codification has had place, such is the state of the rule of action, when it is in the state of what is called common law, or unwritten law. On most parts of the field of law, a quantity of matter has been written—written by men not invested, or so much as pretending to be invested with the legislative authority; and out of this huge and shapeless mass of writing, the judge on each occasion makes choice of such portions as appear to him best adapted to his purpose; to the purpose which is most agreeable to him, whatever it may happen to be. In this state of things, singularly unfortunate, if not unskilful, must that judge be who, out of so rich a granary, fails, on any occasion, to find that which is most agreeable to his wishes, whatsoever they may happen to be—to his wishes, guided, as they cannot but be, by what at the moment he looks upon as being his interest.
In the countries in question, if I understand the matter right, some of those memorials have been collected, which in England, over so large a portion of the field of thought and action, occupy the place of law. I mean that sort of matter which consists,—of statements of cases by which judicial decision has been called for, the particular decision pronounced in each case, and the general positions which have been brought forward by the judge in support and justification of his particular decision,—or of such general positions as, in the way of inference, have been deduced from it by men volenter dissertantes—rulers not invested with any such authority as that of a judge.
Case 2. The standard of reference referred to in judicial decisions, composed of inferences drawn, not from former decisions, but from an original standard, composed in a time of remote antiquity.
In the country in question, the standard of reference is, it seems, of this sort, and consists of the matter following:—There stands the Koran, the work of Mahomet, the universally acknowledged standard of opinion and practice in all matters of religion, as well as law. But, for a great portion of these particular cases, to which the occurrences of life are continually giving birth,—in this book, the matter being for the most part of a nature extremely general, is not capable of an application particular enough to serve as an adequately determinate guide. Influenced by this view, different persons, without concert with each other, have at various times set themselves to work to fill up the vacuities, all of them agreeing in the homage paid to the general positions discoverable in the sacred text, but differing from one another in no inconsiderable degree, in respect of the inferences drawn from these important positions, of which, as being included within them, application has been made. With reference to the sacred text, these works of inferior authority stand in the relation of commentaries. Throughout the dominion of the Koran, four of these commentaries have obtained the pre-eminence over all the others. Such is the degree of that pre-eminence as to have given rise, as it were, to two classes of commentaries; commentaries of the first order, and commentaries of the second order. Those of the second order being not exclusively, at least, commentaries on the sacred text, but commentaries upon those of the first order. Commentators of the first order, four as above. Commentators of the second order, not as few as seven hundred.
Though clear of confusion from that source of which indication has been given, as above, in the case of the European, and especially the English Books of Reports, and Treatises deduced from them, the eastern system fails not, however, to labour under very obvious, and such as cannot but be very grievous inconveniences.
In the first place, no one of them having taken for its object of pursuit the greatest happiness of the greatest number, none can, except by accident, have made any clearly defined provision for it in the course of such arrangements of detail as are to be found deducible from it.
In the next place, in opening out the thread of inferences, they have all of them taken, on various occasions, courses more or less different.
From all these diversities, two evil consequences, to an extent more or less considerable, cannot but have taken place. So indeterminate, in this or that case, is the bearing of some or all of these previous commentaries upon the case, that the judge, be his probity ever so great, finds more or less difficulty in determining in what manner he shall make application of them to the case.
The other consequence is, that amidst such diversity the judge, in so far as the union of disposition and opportunity produces, on his part, an inclination for corruption, seldom finds any difficulty in gratifying it.
With regard to aptitude of phraseology—aptitude of phraseology on the part of the rule of action, the source of security on the part of the members of the community,—thus much may with confidence be asserted, with reference to the most aptly penned codes of European law; namely, that, in respect of determinateness of designation, as well as aptitude, with relation to the only proper end of legislation, the greatest happiness of the greatest number, they are in a deplorable degree deficient. Continuing to apply the words which custom has applied to the several occasions, on each occasion the assumption they proceed upon is, that of the word in question the import is adequately determinate,—and scarcely, perhaps, in a single instance is that assumption true.
If such is the case in the instance of those bodies of law, the authors of which, during the penning of them, set and kept before them, all along, a determinate object of pursuit, namely, the greatest happiness of somebody—the greatest happiness of the Monarch whose power was employed in giving birth to them and binding force; still more assuredly must it be the case in the instances in which the rule of action has, from time to time, been spun out, in the way of inference, from a rule which, whatever may have been the talent employed in the making of it, was yet of a mixed character; having something of religion in it, and something of law in it, with here and there a passage of history; springing the whole texture of it out of the occurrences of the day, and that day a very remote one with reference to present days, the state of society being, at the same time, in a great variety of particulars, widely different from what it is at present: widely different, and, amongst other points of difference, far less diversified.
Be the inquiry, however, ever so pressing, be the demand for new and precise definition of binding terms ever so urgent, everything cannot be done at once. With the stock of those terms, whatsoever may be the extent of it, with this stock of instruments, in the penning of the proposed securities must the scribe content himself, putting them to use in the best manner he is able.
In the character of a guide to Judges, the necessity of a collection of ordinances has just been brought to view,—of ordinances in the form of ordonnances,—of an all-comprehensive collection, covering the whole field of Legislation, and putting an exclusion upon every standard of reference that is not in that exclusively adequate guide.
But if necessary even to the Judge,—to the functionary to whose function it belongs to decide upon the conduct of the members of the community at large, pronouncing that decision which never can be pronounced without producing suffering in some shape or other from the lowest to the highest degree,—to a party or parties on one side or the other,—how much more necessary must it not be to an individual in the situation of one who every day of his life is exposed to the danger of being party to a suit for the want of being able to have access to a document which would enable him by anticipation to preserve himself from the sufferings which otherwise cannot but await him at the hand of the Judge.
If necessary to the right termination of these afflictive processes called causes or suits at law, how much more strictly necessary are they not to the prevention of them. Without any such forewarning and trusty instructive guides, a termination in some way or other, these courses of suffering cannot but receive; but by no other means than these means of timely information can they be anticipated and prevented.
It may be matter for consideration whether to this fundamental and all-important institution of rational government, the form of a charter—the form of a declaration of rights, or the form of a contract should be given.
If obtainable, the form of a contract will unquestionably be the more beneficial: whatsoever securities are afforded will thus be fixt upon the firmer basis. The case of a charter remains always more or less exposed to one cause of failure: being the free and sole act of the Sovereign, whatsoever is granted by him on any one day may be taken back by him on any other: when he granted it, it was on the supposition that no bad consequences would result from it: but that supposition being disproved, necessity compels him to revoke it. To this effect are the words which at any time may just as easily be uttered as any others of the same length and number: and wheresoever and by whomsoever in the situation in question uttered, no want of voices to echo them need ever be feared.
So much for charters. Charters the people in question cannot have been much used to. Contracts—compacts—all people are more or less used to: more or less in the use and expectation of seeing them kept: and, at any rate, of regarding the infraction of them as an act of injustice, and a reasonable cause of displeasure and discontent: a reasonable cause for endeavour to obtain remedy.
In the case of a charter, if it be regarded as really obligatory, there is but one party on whom any obligation attaches: in the case of a contract, there are two parties: the people forming one of them. If then the contract form be the form employed, consistency would seem to require that, on the occasion of the solemnity from which it appears to derive its sanction, there should be given by and on the part of the people, thanks to the Sovereign for his entering into his part in it:—thanks with acclamations. Thanks to the Sovereign—to God—to the prophet—to everybody—nothing of this sort need be grudged. But on their part, if anything, what more can be done with safety and advantage? Promise to obey him and all his descendants to the end of time? this would be too much: too much even although, on the part of those potentates, the condition of their performing their part of the contract were attached to the promise on the part of the people. For—what if another form of government should come to be regarded as in a greater degree contributory to the greatest happiness of the greatest number? Promise to obey his descendants so long as the contract were on their part kept inviolate, and so long as Monarchy continued to be the form of Government? This is exactly what seems desirable: but unfortunately, the more desirable on the one part, the less likely to be acceded to on the other.
In the case of England, the Whig Monarchists who brought about the Revolution in the time of James II. saw the advantage attached, as above, to the contract form; and in their arguments employed it accordingly. Their contract, however,—the original contract they called it—was a mere fiction: and of its being a mere fiction an evil consequence was—that, on each occasion, the terms of it remaining to be feigned,—they made them whatsoever seemed to them most advantageous to their own particular interests. But, in the case here in question, there would be no fiction, and there being two contracting parties to this contract, the terms of it might, by mutual consent of both parties, be changed at any time. So long as the terms were kept by the Monarch, the people would not be likely to feel much inclination to change: but, supposing them at any time infringed by him, it would be for them to make themselves amends, and provide for that purpose whatsoever security seemed to them most efficient: for example, the change from the mixed Monarchy to a Representative Democracy: and for the bringing about such change, the securities here in question would prepare them, by giving them power in every shape.
Means of Multiplication of Ordinances.
In the country in question, written discourse, though not printed discourse, being in use, of whatsoever ordinances are in force as such, copies, one or more, cannot but be in existence somewhere. In the metropolis of the country of course. In the seat of the principal judicatory of the country of course. In the case here in question, the first operation therefore that requires to be performed is multiplication. For this purpose the newly invented instrument, called the lithographic press, seems for a beginning preferable to the ordinary printing press, not that there should be any reason why either should put an exclusion upon the other.
The advantages which at the outset it presents itself as in possession of are the following:
1. It is by much the cheaper.
2. It requires for the production of the effect a much less numerous association of Arts, and thence of different artists.
3. Being with difficulty distinguishable from ordinary manuscript, the use of it will be less alarming than the use of the printing press, to artists who at present are employed in the transcription of manuscript writing.
On the occasion of this as of every other mode employable for the abridgement of human labour, an effect which can never be too scrupulously attended to, and which at the same time has been almost universally turned aside from, is its effect on the interest—on the very means of subsistence of the working hands, the whole of whose subsistence is derived from the practice of the art in its present state. In various countries of Europe, in England more perhaps than in any other, prodigious is the mass of misery that has been produced by this means.
First branch of the evil, the distress of the labouring hands whom the introduction of the new art causes to be dismissed, and thus deprives of the means of subsistence. Second branch of that same evil, suffering in the shape of pecuniary loss and other shapes, sustained by those who, trusting to profit by the new art, dismiss in a proportion more or less considerable those hands whom they were wont to occupy in the course of the old established one: suffering, namely produced by the hostility of those who are thus deprived of the means of subsistence,—hostility exercised under the notion of its being in exercise of retributive justice.
To the great capitalist, the sufferings of these his discarded servants, to how many hundreds soever they may amount, has, generally speaking, been of little or no importance. But to no one of all these human beings, strange as it may be in his eyes, is it a matter of no importance. To each of these discarded servants, the difference between comfortable subsistence, and death, or scanty subsistence from the parish funds, is, in reality, of much greater importance than is to the capitalist the difference between the old established rule of profit to which he has been accustomed, and the new rule of profit to which he aspires. The law relative to the subject being uniformly the expression of the will, either of himself or of one belonging to a class still more insensible than he is to the miseries of men less fortunate than themselves, the act by which he deprives them of the whole of their subsistence, is never treated on the footing of a crime, or even of an offence. On the other hand, any act whereby the men, who by him have been deprived of the whole of their subsistence, shall endeavour to retaliate, by depriving him of ever so small a part of his vast opulence, is treated on the footing of a crime, and deep is the turpitude imputed to those who have defiled themselves with it.
As to the depravity, whatsoever may be the amount of it, one thing is undeniable, namely, that he in whose loss it is manifested under the circumstance of neglect in question, is the author of it, and has himself to thank for it.
In his own eyes, as also in those of his superiors, on whom the state of the laws depends, the heart of the man of opulence is no less full of virtue than his purse of money. To himself the difference in respect of profit is no object; but the public, the sole object of his regard,—the public is enriched by it. The discarded labourers, a mean and grovelling race, who care nothing about the public, experience nothing but what they deserve.
In the instance here in question, happily the evil here in question, if so it be that it requires any cure for the existence of it, requires no such cure as in the cases just mentioned. Supposing the securities in question granted, the copies the production of which will be completed, will furnish of themselves a fresh demand, for which no adequate means of supply can at the time, when the demand commences, be in existence.
But, whatsoever be the improved mode of multiplication employed, lithographic press or ordinary press, care should be taken that the employment given to it should not be such as to throw out of employment any of the existing scribes, except in so far as other employment, not less advantageous, is found for them.—Measures should at the same time be taken to prevent the influx of fresh hands into their business. If certificate of the stoppage of the demand for this art be not sufficient, even prohibition might be employed: prohibition absolute, or unless by license.
Next to the operation of multiplying the copies of these literary instruments of national security against misrule, comes the method of their distribution. Distribution is either gratuitous, or for a price,—for example, in the way of public sale.
Of copies to a limited amount, the distribution, it is true, might be gratuitous. But in such a case the demand might be indefinite; for to no man, able or not to read the characters on it, could a quantity of paper be without its uses. Exposure to sale, therefore, presents itself as an indispensable mode. But the price demanded should not at any rate be to any the least amount greater than what will suffice to cover the expense. If it were insufficient, it might be so much the better. On the side of convenience, all that is essential, is that it be not so small as that for purposes other than that of reading, it should be worth a man’s while to purchase it.
Obvious and unanswerable is the reason why, so it does but prevent undue application to purposes other than those designed, the price cannot be too small. The usefulness and the efficiency—the usefulness of these securities will be as the number of the minds by which cognizance of them is taken. On this ultimate security depends the efficiency of whatsoever else can be designated by that name. For the benefit of this security, no expense that can be incurred by a number of copies, equal to those of the individuals able to read them, can be too great.
Application of Public Recitation to Ordinances.
As far as it goes, this operation, compared with swift exposure to sale, presents several advantages.
1. By this means, a conception of the master document in question may be conveyed to minds in vast multitudes, to which, by any other means, it would not be possible to convey it.
2. It is not necessarily attended with any expense.
3. It is susceptible of any additaments applied to it in the view of rendering it the more impressive: of these presently.
On the other hand, the signs by means of which the conception is conveyed, or endeavoured to be conveyed, to the minds in question, being of the supremely fugitive and transient kind, their existence ceasing as soon as it has commenced, deplorably inadequate will this mode of communication uniformly be, in comparison with that which operates by signs, susceptible of indefinite permanency. Nor even for the single instant in which the communication takes place, can the conception derived be generally expected to equal that which has place in the other case, in any of the qualities requisite; namely, in clearness, correctness, or comprehensiveness: much less at any instant separated from that first instant by any considerable interval of time.
Now as to impressiveness. This quality is capable of being raised above the ordinary standard by any one of the following circumstances:
1. The rank of the person by whom the recitation is performed.
2. An extraordinary degree of aptitude on his part, in respect of the properties desirable on the part of a public reader or speaker: for example, clearness of pronunciation, strength and agreeableness of voice, propriety of intonation with reference to the occasion.
3. The place at which the recitation is made.
4. Any circumstance of ceremony with which it may be thought advisable to accompany the operation.
The discourse in question being drawn up and agreed on, the sovereign, for example, in the principal mosque, stationed in an elevated station, in which he may be seen by the whole assembly, takes the paper in hand, and reads it in a voice suited to his convenience. When read, he touches it with his seal—with the seal by which his acts as sovereign are in use to be authenticated; he touches it with his seal, and that instant a signal being given, notification is conveyed to the greatest distance by the firing of artillery, and musketry, and the sounding of drums and trumpets, or whatever wind instruments of music are in use.
After this, for the more effectual information of the surrounding audience, the best reader in all points taken together as above, that can be found, reads the paper over again, and the notifying sounds, as above, are repeated. The ceremony might be preceded and followed by a procession from the palace of the sovereign to the mosque, and back again.
After the reading has been performed, any such declarations of censure on all infractors may be added as the forms of the religion and the usages of the country will admit of.*
In those Monarchies of Europe which are called Constitutional, in them, and in those which have elsewhere sprung from them, it has been customary for the Monarch to open and close the legislative assemblies by a speech from the throne—a speech of which, though not so much as supposed to have been the framer, he is himself the recitator. But of all these general speeches one general character may be given. For the most part they contain nothing but vague generalities. They contain no enactments. They are not intended to give expression to any specific engagements. Indeed the manifest and scarcely dissembled object is to avoid binding the Royal speaker to anything—to keep his hands as free as possible. If on any occasion they amount to anything, it is when the object of them is to notify, though in the most general terms, the assent of the Monarch to a new Constitutional Code, or to any particular law to which a preeminent degree of importance is attached; or to propose, in the most general terms possible, a subject for deliberation and eventual enactment.
In the case of Tripoli, should the consent of the Sovereign to the proposed system of securities be obtained, the design, if I understand aright, is to endeavour to prevail upon him to re-echo from his own lips, not merely a form of words expressive of his assent, but the whole contents of the discourse, unless the length of it should be such as to present an insurmountable obstacle to the physical exertion necessary.
For this purpose, the example, as above, of the Sovereigns of Europe might perhaps contribute more or less to the surmounting of any reluctance of which the novelty of the proposal may have been productive in his mind.
Notification and Publicity as to Transgressions.
By transgression, understand, as above, instances in which the tutelary ordinances, having been established, as above, acts of oppression, as above characterized, happen, notwithstanding, to have place.
Unfortunately in this second instance, the placing the matter in question in broad daylight, is not altogether so safe, nor yet so easy, as in the former instance.
To an operation of this description, the nature of the case will be seen opposing these obvious opponents; namely, fear, indolence, and poverty. It remains for inquiry what can be done towards the surmounting of these several obstacles.
1st. Obstacle—fear. To observe where the fear attaches, we have but to observe the parties whose conjunct labours are necessary to the production of this result.
These are, 1st. The person or persons from whom in each instance the information should come; 2d. The person or persons by whom it should be received. Furnisher of the information any person may be: a receiver of it is as such a sort of public functionary; at any rate, if so it be that he does what is required to the giving publicity to it, as he must do sooner or later, or he might as well not receive it.
In comparison with that which is offered by fear, the force of all other obstacles put together is inconsiderable.
Fear is the expectation of eventual evil, evil at the hand of all those to whom publicity, in relation to the event in question, may come to be disagreeable. Against all such fear, the most effectual of all securities is concealment: concealment of every person by whom anything has been contributed to the publicity of the obnoxious state of things.
Known it is necessary they should be—known to the functionary by whom the information is received or extracted, were it only for the sake of eventual responsibility, in case of disturbance given to the peace of the community and of individuals, by false accounts. To one functionary, or perhaps one set of functionaries, it is necessary that for this purpose every person contributing to the furnishing of the information, should be adequately known: known to the purpose of being eventually forthcoming to the purpose of being subjected to punishment, in case of mendacity or injurious temerity. But to no other person is it necessary that he should be known.
Next come the several persons by whom any part is borne towards the giving permanent and appropriate publicity to the information when received. At one stage or other, some one person at least there must be—naturally persons more than one—whose agency in the business cannot be kept concealed: concealed, that is to say from those from whose power vengeance will naturally be to be apprehended. But when any one person is known, as having borne a part in it, the greater the number of the persons thus known to have done so the better: the greater the number, the higher their situation (meaning their official situation) and the more dispersed their several situations—meaning their topographical situations. For the higher their official situation and the greater the number of the persons occupying those several situations, the more dangerous will it be for the oppressor to endeavour to extend to them his oppressing hand: the higher and more numerous the more dangerous, and the more dispersed the more difficult.
Suppose, for example, by one such functionary, or set of functionaries, information of an act of oppression received and committed to writing. If their situation is that of a set of functionaries constituting a Judicatory of the higher order, then suppose a copy sent to every Judicatory in the Dominion, and by the joint authority of them all made public at one and the same time: made public by whatsoever means of publicity happen to be at their command. Here the security against vengeance from the oppressor is at its maximum: unless it should be deemed advisable, that from this branch of the authority of the State, communication be also made to the Military.
2d. A Case may be supposed in which whether fear have place or no, indolence may oppose a bar, more or less powerful, to communication. Suppose the oppressed party alive and in condition to act, indolence is not in his instance very likely to take place. For affording the requisite excitement, the desire of compensation and vengeance will, generally speaking, be sufficient. But to him, even though living, it may happen that the injury is not for some time known; and the case in which the oppression—the injury—is at its maximum, is that in which adequate excitement is most apt to be wanting. This is the case in which, by the oppressive act, the life of the victim has been made a sacrifice. In this case, whether any connexion of his disposed to come forward and seek redress, be in existence, will be matter of accident. In one case, and that not a very uncommon one, the non-existence of any such person will be an occurrence altogether natural. A dead body, say at the dawn of day,—the dead body of a man is found lying on a high road or some such public place, and for some time nobody knowing whose it is, by no connexion of his is the catastrophe known or suspected.
In a case of this sort, the object is to obtain information from the first person to whose senses the spectacle has happened to present itself in the first instance. Here, for surmounting the resisting force of indolence, three active forces present themselves: appeal to the social affections by a standing authoritative and appropriate discourse, punishment in the case of non-performance, and reward in the case of performance, of this public service. Of these instruments, whether one or more, or all, may with most propriety be applied, will depend upon circumstances; circumstances too particular to lay claim to a place here.
3d. Obstacle—poverty. Understand relative poverty—inability to defray the expense, whatever it may be. Of the operations necessarily preparatory to the ultimate publication above brought to view, an indefinite number may, any or all of them, be unavoidably attended with an indefinite amount of expense. 1. Collecting from places in indefinite number, each of them indefinitely distant, persons capable of serving in the character of reporting, or say, deposing witnesses. 2. Committing to writing the result of their respective depositions. 3. Transmitting from Judicatory to Judicatory, from office to office, copies of the written instrument to which the statement of the case was first consigned.
Though provision might, in some way or other, be made for them, the case required that these several sources of expense should be brought to view. In what particular way any such provision may most conveniently be made will depend upon local circumstances, such as are not within the cognizance of him by whom these particulars are offered to view.
Note here, that as well upon those who are likely to be most willing, as upon those who are likely to be most unwilling, should the tone of whatever ordinances are issued for providing publication be as forcibly imperative as possible. The more irrisistible in appearance the coercive process, the greater will be the security given to him in whose breast any desire to co-operate towards the beneficial effect in question has place: against the wrath of the offended and denounced oppressor he has coercion to plead as his excuse.
Natification and Publicity as to Suffrages—Newspapers: Letter Post.
To the subject-matter thus denominated, the operations which apply to the purpose in hand will be seen to be the following, viz. 1. Extraction. 2. Registration. 3. Multiplication. 4. Transmission or say diffusion.
For all these several operations one and the same instrument presents itself as the efficient and the only efficient instrument. This instrument is no other than a Newspaper: multitude of instruments of this same sort employed by so many different sorts of hands, and multitude of copies of each, as great as possible.
In this instrument may be seen not only an appropriate organ of the Public-Opinion Tribunal, but the only regularly and constantly acting visible one.
In this same tribunal it is by the Newspaper Editor that in each case the motion in which the decision originates is made: and thus much of the matter is no fiction, but the exact truth. Thereupon come the suffrages;—suffrages given by those members of the community being at the same time readers of the Newspaper, or in converse with those that are,—so when it happens to take cognizance of the matter. These suffrages being, from the nature of the case, incapable of being collected, the number of them must in each case be left to inference and conjecture. Meantime thus much may be remarked, namely, that in the instance of each person it is by the real and true opinion, the real and inward affection, not the opinion and affection declared and avowed, that the salutary effector the check applied to misrule is produced: for it is by opinion and affection really entertained, and not by the opinion and affection professed to be entertained by a man that an action in the shape in question is produced.
Newspapers, suppose, two taking different sides of the question in each case: one suppose the side of the suffering people; the other the side of the oppressing Sovereign and his misrule. Here the case is rendered more complicated; motions the tenor of them in every instance visible and permanent. Suffrages expressed or not expressed, i. e. with or without tenor, but in both cases, invisible and evanescent. Of these suffrages some are on the side of one of the writers, others on that of the other.
Greater is the efficiency of this one sort of written instrument than that of all other written instruments put together. On this and that question pamphlets and books, works, small and great, may be written. But by no one of them is any regular cognizance taken of the several occurrences as they take place: for by any publication, suppose any such regularity and constancy of attention kept up, it becomes the very thing here in question, i. e. a Newspaper.
In a Representative Government, at any rate in a Representative Democracy, with the exception of the function of the principal Minister, more important is the function of this unofficial functionary than that of any official one. More important, that is to say, in particular to the great purpose here in question—that of making application of the power of the Public-Opinion Tribunal in its highest character and by far the most beneficial one, of a check upon misrule. Of this superiority the causes are—1. In each individual instance the greater number of the suffrages on which the motions made by these Representatives of the people are taken for their ground, the motions made by these unofficial compared with those made by any official representative. By the Prime Minister impulse is given to the machinery of the political sanction: by the Editor of the prime popular Newspaper to that of the Social Sanction.—But, 2. more particularly the constancy and continuity of action which has place in this case—sources of influence in respect of which no official Representative limited as his motions and discourses are, to particular and scattered reasons and scattered points of form can hold comparison with him.
The aptitude of the Newspaper in question, with reference to the greatest happiness of the greatest number being given, its usefulness will be as the extent to which the diffusion of it has place: in other words, as the number of the persons to whose minds it finds its way.
The circumstances on which the degree of that extent depends, in particular at the outset of the sort of institution in question are, 1st, the constancy; 2, the frequency, of its publication; 3, its mixture with matters of a nature universally interesting; 4, its cheapness—the smallness of the price; 5, the impartiality of its procedure in respect of the admission or rejection of articles; 6, the moderation of its language, i. e. its purity from expressions of vague and ungrounded vituperation and laudation of men and measures.
Of the several qualities the three first are at the same time the most essential, and the most easily secured to it, as being those that are the most completely independent of the mental qualities, moral and intellectual, of individuals.
1. As to constancy. This quality is of all others the easiest to secure. It is moreover a matter of prime necessity that the institution be so conducted. The interest created and kept up by it cannot but be in the closest degree dependent upon the assurance with which, on the occasion of each paper, a reader looks forward to a regular succession of the like entertainment provided by the same hands. So invariably is this property possessed by this species of discourse wherever it has place, that the absence of it not being presented by experience, is not easily presented to view by imagination.
2. Next, in the order of importance, comes the quality of frequency. The number of readers being given, the greater the frequency of its appearance, the greater the degree of diffusion. Nor, in the instance of the aliment thus administered to the mind, is the appetite slackened by the frequency of its application, as in the case of the aliment administered to the bodily frame. On the contrary, it is rather kept alive and invigorated,—the meal of each day operating as an excitement to look out for that of the next day following.
3. Variety, admixture of the political matter with matters of other sorts, in the greatest variety possible. What gives this property an essential claim to notice, is—besides the degree in which the amount of diffusion depends upon it—that it is so little dependent upon the talent employed in the conducting of it.
Suppose, for example, six sorts of matter, each of them interesting to one class of readers, no one sort interesting to classes more than one. By this means, you have six times as many readers, and regular purchasers, as if there were no more sorts of matter in it than one. Each class stands assured of having something in which he takes an interest. As it is on no other terms that he can get anything, no one of them is debarred from the purchase of his one-sixth by the consideration that without more than that sixth it is not obtainable.
When this variety of entertainment is kept up, no imaginable literary composition can, in respect of attractiveness, by possibility enter into competition with this, nor, in particular, with reference to the uses here in question. From the physical association—the contiguity of the natural and visible signs—an association is instantly formed between the ideas of which they are respectively the representatives. Taking up the newspaper, each one is upon the look-out for the master of that sort in which he takes a more particular interest; but while he is upon the look-out for that, matter of all other sorts is continually offering itself to his eyes. Little by little the dryness and repulsiveness of each wear away; each, in some degree or other, becomes more and more familiar to him. And even supposing that matters in which he takes no interest at all, are regularly passed over without a glance, still of those in which he takes some interest, the interest is, little by little, increased.
In what abundance, by the mere circumstance of the being among the contents of his newspaper, a man is led to the reading of articles for which he would not ever have looked in any publication exclusively appropriated to the reception of them, is a circumstance which can scarcely have escaped any person’s experience.
5. Impartiality,—its uses. Wheresoever there are newspapers, there will be, or rather are already, parties; and wherever there are parties, all minor divisions naturally fall under one all-comprehensive division,—the assailants and the supporters of the party which has the power of the country in its hands. If there be any tolerable degree of freedom, a newspaper can hardly have place for any length of time, but rival newspapers, one or more, will start up likewise. Be the number of newspapers ever so great or ever so small, great would be the advantage, in respect of extent of currency, if the editor could prevail upon himself to keep up an impartial course between the two parties,—to give equal admission to attacks and to defences. Obvious altogether is the advantage which the course thus prescribed by justice would secure to him. Readers of all parties would be invited. No readers of any party would be repelled. Number of readers of each party suppose equal; on this impartial plan, the number would be the double of that which it is on the ordinary partial plan.
But, for securing to the instrument of instruction this at once most respectable and most difficult endowment—and this without prejudice to the diffusion of it—what would be the most eligible course? not to make controversial matter on either side, but to admit it on both sides. By the sacrifice of this stimulating matter, the publication would be rendered, by the double and reciprocal insertion, doubly excitative and attractive.
On the part of a newspaper editor, nothing is more easy than to profess impartiality; few things more difficult than to maintain it. But if, in the highest degree, utility depends upon impartiality—upon actual impartiality—in a not much inferior degree does it depend upon the reputation of impartiality,—upon the proportion between those of his readers, in whose eyes he is impartial, and the number of those in whose eyes he fails in respect of a quality so highly desirable: and unhappily he may be in ever so high a degree actually impartial, and yet, and even from that very cause, be partial in the eyes of both.
For keeping up impartiality without diminution of frequency, the most effectual course, supposing extent of sale to permit, would be for the proprietor of the newspaper to employ two editors, one whose assertions were on the one side, the other whose assertions were on the opposite side: the number of days in the year allotted to each being the same. Why not? The answer is, lest in that case there should be a correspondent alteration and division among the customers: one set buying the paper on the government day and not on the opposition day: the other on the opposition day and not on the government day. Not that the greater part of the readers would thus content themselves with no more than half the aggregate stock of facts. But still some there would be, and antecedently to experience it would not be possible to say how many. As to any endeavour to conceal this part of the arrangement it would neither be practicable nor desirable. To exclude fraud and injustice, and to secure harmony, some arrangements of detail would be necessary; nor does the securing such as would be adequate present to view a task of any considerable difficulty.
6. Moderation, or say good temper. Unhappily for securing this quality, important as it is, there is no such simple and effectual recipe as hath been shown to have place in the case of impartiality.
Of moderation, the simplest and clearest description, as far as it goes, that can be given is—the avoiding to employ for the giving expression of disapprobation, whether of men, or measures, or modes of action, any words or phrases of vague and violent vituperation, that express aversion or displeasure, without any precise designation of the cause of it.
Of every violation of the laws of moderation, various and serious are apt to be the evil consequences.
1. By the disgust which it cannot but produce it tends to exclude readers to a number altogether unascertainable and unlimited: and among them not only those who are decidedly attached to the party whose sensibility is thus wounded, but others who are neutral, indifferent, or undecided.
2. By the hostility thus manifested correspondent hostility on the opposite side cannot but be provoked.
3. Among the consequences of such hostility prosecutions—attacks in the field of Judicature will, with more or less frequency, have place.
Hints respecting the best plan for the conducting of a Newspaper.
1. One sort of article by which an interest, more or less exclusive, cannot fail to be excited, is—an indication of sights to be seen: things offered for purchase or hire: prices of goods of various sorts at various places: probabilities in respect of future increase and diminution of price.
2.Accidents. At all times, by occurrences of this sort, more or less of interest can scarcely fail to be excited in most breasts. The greater the interest taken, the greater the assistance and encouragement afforded to the sympathetic affection: that affection, upon the strength of which morality and felicity so essentially depend.
3.Offences. Of matter under this head, the usefulness is of prime importance with reference to the particular design here in question. Of the misdeeds of various sorts from time to time committed, few in comparison, at the utmost will be those committed by the order of the sovereign, or which it is matter of pleasure or advantage to him to see committed. For the greater part they will be of that class by which, while no profit in any shape is produced to men in power, as such, suffering is produced to individuals, and through individuals, danger and alarm to the community at large, and thereby to the Members of Government in the quality of members of the community at large. This being the case, to the publication of misdeeds in general no aversion will be excited in their minds, no objection will have place in their eyes. But the habit of writing and reading accounts of misdeeds of all sorts being once established, mention of the misdeeds committed by or agreeable to men in power, will find their way in along with the rest—will slide in unobserved by the editor, or at least, as if unobserved. And thus the way will be paved for the general admission of misdeeds, in the commission of which the man in power has an interest, or imagines he has an interest.
4.Proceedings of Courts of Justice: especially that of the Cadi in the metropolis: being that by the proceedings of which the greatest interest will naturally be excited.
5.Deaths. Number of in the metropolis, and other principal towns: according to a periodical enumeration, if obtainable. In the case of those of remarkable persons, their names given with any particulars that can be collected of their characters.
6.Births. Those of persons of the male sex may be ascertained by the acts of circumcision: of which a register, if not actually kept, might, it is supposed, without much difficulty, be caused to be kept, by the Imans and Notaries of the several mosques.
7. The like occurrences in the domains of the neighbouring states.
8. Parallels between the particulars indicative of the state of society and manners, as between the state in question and other Mahometan States on the one part, and Christian States in general, or in particular, on the other.
1. Points on which the advantage appears to be on the side of the Mahometan States.
2. Points on which the advantage appears to be on the side of the Christian States.
In all these cases, constant standard of reference the greatest happiness of the greatest number.
9. Indications of physical inconveniency; with or without hints respecting the most eligible means of remedy.
To each class of articles, as above, there might be a use in prefixing the denomination of it on a separate line and larger type; as thus:—Accidents; Offences; Deaths. By this means, 1. Readers would be directed instantaneously to the class, whatever it were, in which he happened to have an interest. 2. The attention would, by this perpetually recurring excitement, be kept awake. 3. By these exemplifications the minds of the readers would be familiarized with the practice and general conception of commanding arrangements.
A degree of diffusion sufficient for continuance being supposed to be already established, now then comes the question,—concerning the general usefulness of it, by what means it may be raised to the highest pitch.
In the first place, as to the only right and proper end of sound action, the greatest happiness of the greatest number. This all-ruling, all-comprehensive, and all-important principle, though not on every occasion brought forward and held up to view in its own name, should, on every occasion, be inwardly kept in view: and even by name, the greater the number of the occasions on which, without exciting abuse and disgust, it can be brought to view the better. For by it a standard is held up, the only legitimate standard by which the mischievousness of misdeeds can be proved, and the degree of it measured and indicated.
Every occasion should be embraced of making application of the greatest happiness principle to the individual occurrences of the day, showing, 1. How morality and happiness depend upon the notoriety of the rule of action referred to by the Judicatories. 2. The advantage of the greatest degree of equality consistent with security in the distribution of the external instruments of felicity in all their shapes: in particular, power and the matter of wealth in all its shapes. 3. Showing how compensation to all sufferers by a misdeed in any shape ought to take place of punishment, because the burden of affording compensation operates as punishment so far as it goes; how punishment should be adapted to misdoing, that by allotting to the more mischievous misdeeds, the more severe punishment, those who cannot reform from misdoing altogether, may be induced to commit the less mischievous in preference to the more mischievous, &c. &c.
Particulars of the mass of literary capital to be provided antecedently to the commencement of the publication of a work of this sort.
Antecedently to the setting up any such newspaper, it would be highly advisable to have a stock more or less extensive of foreign newspapers, to serve as sources out of which heads of information would be brought to view, and might be selected. Of all newspapers the English are by far the most instructive. Next to them, those of the Anglo-American United States. In comparison with these the French are worth but little; the newspapers of all other nations put together nothing at all. The public demand which it is hoped will accompany the paper, will serve to show the prodigious number of articles of this sort that are every year published in England;—also the enormous revenue derived from them: always remembered, that this is among the worst of all sources of revenue, and more especially so would it be in any country in which newspapers are set up for the first time. The reason is, that to an extent more or less considerable, every tax operates as a prohibition, a prohibition applied to the sort of articles taxed: as in the instance in question, though a bounty would not be necessary, a bounty would be less monstrous than a prohibition.*
Suppose a dozen boys receiving at the school in question† their education, the most useful and thence the highest occupation which the best head among them could be put to, would be that of editing a newspaper on his return to his own country. The master might choose for this purpose the most promising, and he might be trained to it even at the school itself before his return.
Antecedently to the setting up as above, a stock of matter should be prepared and kept in readiness: various kinds of matter being tried for the purpose of observing and knowing which of them excited the most interest. As the publication went on, various articles of every sort, advertisements in particular, would of course be sent in by those whose taste were pleased, or their interest, as it seemed to them served. As thus miscellaneous and ever highly interesting matter by degrees came in, the less interesting matter belonging to the original stock would give way to it. It is of the utmost consequence that on no appointed day whatsoever any failure of the appearance of the paper should take place: and by the preparatory stock in question, all such failure might effectually be prevented.
Production and multiplication are effected by newspapers: conveyance by the letter post.* These and whatever other documents require, for the production of their intended effect, to be sent to a distance, are of no use, but in proportion as they are conveyed to their respective destinations. Between any two places in the dominion in question, is there any such establishment as a post for letters? A messenger or chain of messengers travelling at stated intervals between the one and the other? Between the capital, for instance, and the two Universities, or one and which of them? The first thing to be done in this way would be to establish a system of communication of this kind between the office of the Cadi at the capital, and the several judicatories. Next to that would be the establishing the like between each judicatory and the several mosques within its territorial field of jurisdiction, messengers one or more going the circuit among the mosques.
In time, pay received for letters sent from individuals to individuals, might lessen the expense to government. As the number of persons who read and write receives increase, so will the receipts of every such establishment. But at no time should any of these receipts be made a source of revenue. A tax on the intercourse between man and man being a prohibition on all who cannot afford to pay the tax, cripples social intercourse: cripples it for all sorts of purposes, and nips all improvement in the bud.
Of the proposed system of communication, the direct as being the most important object is—personal security; and in particular security against oppression by the hands of rulers. But a system of communication, if once established for the major purpose, will apply itself of itself to all minor purposes. It will contribute to the efficiency of the judicial power as applied to its more obvious and more ordinary purposes. It will contribute to the security of individuals as against injury by individuals.
It will contribute to the increase of commerce: in regard to each article, making known to each possessor of a surplus beyond his occasion, where those individuals are to be found, who, to the desire of possessing the article, add the means of paying for it. Whether for the mere chance of finding individuals in sufficient number able and willing to make use of it for merely commercial purposes, it would be worth while to establish a system of communication in the first instance, would be matter of uncertainty calling for calculation; but, on the supposition that it would be worth while to establish it for the sake of security alone, any the least chance of its being contributory to the increase of commerce, that is to say to the increase of opulence, cannot but operate as an additional probable benefit, and as an additional inducement.
Meantime, in the early state of the establishment, by whom shall the expense, whatever may be the amount of it, be defrayed? A question this which, where any advance is proposed to be made in the track of civilisation, is unhappily obtruding itself at every step. As to the sovereign, the funds of the state, which are all of them his funds, are never sufficient for so much as his own personal expenses; never sufficient, as yet, nor in the nature of the case, under such a form of government, ever likely to be so.
Soldiers in a certain number—say 8000, are at present kept up. If of these a certain number were regularly employed as letter-carriers, they would not be the less fit for service in the character of soldiers: they would be the more fit. By thus changing their situation, these messengers would thus become every day better and better acquainted with the country; and in that way as well as others, be by so much the fitter for service in their character of soldiers.
A slow conveyance, so it were but regular and constant; a slow conveyance extending over a large portion of the territory, might be preferable to a more expeditious one extending over a less portion of territory. For quick conveyance, horses, mules, or dromedaries, would be necessary; but by this means the expense would perhaps be doubled. In certain districts, camels would be necessary for the carriage of the water necessary for subsistence; but this would be only in certain districts.
THE SECURITIES IN DETAIL.
SECURITIES IN FAVOUR OF THE NATION CONSIDERED IN THE AGGREGATE.
Securities against Vexation on Account of Religion.
Art. 1. Provided that it be in a chamber enclosed and covered, and that the eyes of the true believer be not annoyed by public ceremonies or processions, with religion for their cause or pretext, or his ears by the sound of bells or other noises: provided also, that by no religion shall any justifying cause be made for causing suffering in any shape to any individual in respect of person, property, reputation, or condition in life:—Every person is at liberty to perform divine service after his own manner. For this purpose any persons without exception may assemble together in private or in public.
Art. 2. Every person is at liberty to write and publish whatever he pleases on the subject of religion, even although the truth and the goodness of the only true religion be impugned thereby: by the true believer, that which is adverse to the only true religion, will either not be read at all, or read with the merited contempt.
Counter-Security. Provided that no writing or imitative figure, containing matter thus odious to the only true religion, be exposed anywhere to view in such manner as to be offensive to the eye of the true believer as he passes. For any such exposure, any person is responsible to the purposes of punishment.
Art. 3. Every person is at liberty to speak what he pleases on the subject of religion, even although the truth or the goodness of the only true religion be impugned thereby: by the true believer, that which is adverse to the only true religion will either not be heard at all, or heard with the merited contempt.
Counter-Security. Provided that no discourse whereby either the truth or the goodness of the only true religion is impeached, be uttered in any public place in such manner as to be offensive to the ear of the true believer as he passes: or in the presence and to the displeasure of any true believer in any private place. The utterance of any such discourse in the hearing of a true believer is an injury to him, and as such may be punished according to law.
Securities against National Gagging: or security for Appeal to Public Opinion and the Power of the Law, on the subject of the conduct of all persons whatsoever, functionaries as well as non-functionaries.
Art. 1. Every man is at liberty to express as well by visible as by audible signs, and in any way and to any extent to make public, whatsoever in his judgment it will be contributory to the greatest happiness of the greatest number to be informed of: and this although disapprobation be thereby expressed towards persons in authority, or any of them, whether on account of the general tenor of their conduct, or on account of their conduct on this or that occasion in particular.
Counter-Security. Provided always, that for any injury thereby done to the reputation of any individual by false imputations, every person concerned in the doing of such injury is responsible to the purpose of reparation and punishment at the suit and for the benefit of any individual or individuals injured: and that, for anything which being so expressed, has for its object the exciting men to the commission of this or that particular offence, any man shall be responsible as above, according to the nature of such offence.
Art. 2. If, on account of any indication given of supposed delinquency in any shape on the part of any person, non-functionary or functionary, a party be proceeded against at law as for injury to reputation, proof of the delinquency so indicated shall be received as a cause of justification; and for the making of such proof, the testimony of that same individual on whom the delinquency is charged, may be extracted in the same manner as that of any other person.
Art. 3. All persons are at liberty at all times and in any number, to hold converse with one another on all subjects in general, and on the subject of the conduct of persons in authority in particular: and on the means of rectifying whatever may be amiss either in the conduct of rulers or in the form of the government, to hold converse, namely, as well in the way of correspondence at a distance, as in presence: and if at a distance, and thence through the intervention of others, as well by written as by oral discourse.
Counter-Security. Provided always, that if for the prevention of evil to person or property, it shall at any time be thought good by the proper authority, for limited time, to prevent or inhibit persons at large from coming together in numbers greater than are capable of hearing from beginning to end, the discourse of the same speaker at the same time,—especially in the night-time, and with arms about their persons: in any such case, that which shall be so done to this purpose, shall not be considered as done in breach of this article.
Art. 4. Every act having for its object the production of the effect thus denounced, under the term National Gagging, is placed as above in the list of injurious acts. Every person who has knowingly any part in the production of it is accordingly punishable by the obligation of making reparation, with or without punishment in another shape, according to the shape in which the injurious act has shown itself.
The right of which the offence thus denominated is the infringement, is the right of exercising influence in the choice of the whole number of those members of the community by whom a public function in any shape is exercised, and of declaring an opinion on their conduct, as well as that of every other individual in whose good conduct all members without exception have an interest; the right of censorship, including the right of receiving and writing communication relating to the information which, to be just, the exercise of this function requires a man to be possessed of: in short, the possessing on each occasion in a manner sufficiently correct and extensive, the proper grounds of censorship.
Right Recognised. Giving expression and publicity to all facts and observations which, in the judgment of the individual in question, promises to be contributory to the greatest happiness of the greatest number: whether the tendency of the correspondent information be to raise or depress this or that person in the scale of public estimation.
Correspondent acts of power prohibited, as being violations of these rights, and thereby put upon the footing of punishable offences—punishable in the same manner as they would be if exercised by persons not invested with any such power.
1. Punishing, or endeavouring to contribute to the punishing of, any person for having given utterance to any discourse to the effect in question, expressed by audible signs.
2. Punishing any person for giving expression to such discourse by visible signs: that is to say, in characters written or printed.
3. Punishing any person for transferring to another for a time, or in perpetuity, either gratis or for a price, any paper in which such signs stand visible.
4. Seizing, detaining, destroying, or damaging any paper or other substance, on which signs expressive of the sort of discourse in question are marked. Issuing or contributing to the issuing of any order for such seizure, detention, destruction, or deterioration—giving or contributing to give execution to such order.
5. Obstructing by force, intimidation, or deceit, the meeting of persons in any number, in any place in which they have individually any right to station themselves,—obstructing them while in the act of making communication of such their observations, and the opinions and wishes suggested by them. In a case where physical force is thus employed, the act of applying it is a corporal injury: where the same effect is attempted to be produced by deceit, it is a fraud.
6. Seizing the body of any person so occupied, thereby infringing his liberty of locomotion. Corresponding offence—injurious confinement.
7. Seizing any paper, writing, printed book, or other visible instrument of discourse, having for its object the making two or more persons assemble for any such purpose as above. Corresponding offence—violation of private writings—of visible instruments of communication between man and man.
8. Consequences in respect of eventual acts of corporal injuriation, (homicide included,) in prosecution of the above forbidden designs:—
Art. 5. In case of any bodily contest between persons occupied in the exercise of any of the above rights, and other persons, functionaries or non-functionaries, occupied in the endeavour to give disturbance to such exercise, any wound or other suffering unavoidably produced by the exercisers or any supporters of theirs in the way of self-defence, is lawful and unpunishable: but if produced by the disturbers on the persons of the exercisers, unlawful and punishable: punishable in the same manner and degree as if no such pretence had been set up.
Art. 6. On the occasion of any such contest, all persons are warranted in giving assistance to the exercisers: no person is warranted in giving assistance to the obstructors.
Art. 7. So in regard to damage done to property in any such bodily contest: damage unavoidably done by the exercisers or their assistants to property of the obstructors is lawful and unpunishable: damage done by the obstructors or their assistants is unlawful and punishable.
Securities against National Disarmament and Debilitation.
Art. 1. All persons are at liberty to keep arms of all sorts, to wit, either in their own habitations or elsewhere, at their choice: also to exercise themselves, and cause themselves to be trained, in the use of arms, whether it be separately or in any numbers.
Art. 2. Also, singly or in companies of any number, to carry arms about them for their own defence.
Counter Security. Provided always that if for guarding against temporary oppression of the greater number by sudden insurrection of the smaller number under favour of surprise, it shall at any time be thought good for the proper authority to inhibit such assemblies from having place otherwise than after due notice, neither shall any such inhibition, nor any necessary measures taken for giving effect to it, be considered as amounting to a breach of this article.
So if to prevent slaughter, spoliation, or oppression of individuals by individuals, it shall seem good to the proper authority to prohibit the carrying of offensive arms in this or that particular place, or by this or that particular person or set of persons, or on this or that particular occasion, or during this or that particular time; or to prohibit all persons from carrying any offensive arms in a concealed manner at any time.
Otherwise than as above, every act having for its object the production of the effect of national disarmament and debilitation, is placed in the catalogue of injurious acts.
The rights of which, the offence thus denominated is a violation, are:—
1. The right of putting and keeping one’s self in a state of aptitude, in the character of a member of the armed force of the community.
2. The right of exercising one’s self, and being exercised in the use of arms.
Correspondent acts of power prohibited, rendered unlawful, and as such punishable as being acts of violation with reference to the above rights: punishable as if exercised by persons not invested with power.
1. Punishing any person for having been occupied in training himself, or being so trained, or in training any other person.
2. Punishing any person for repairing, for the purpose of being trained, to any place in which for any other purpose he had a right to station himself.
3. Punishing any person for giving invitation to others in any shape, either oral or graphical, to engage in any such exercise, or to meet others for the purpose of such exercise.
4. Obstructing, or endeavouring to obstruct, by force, intimidation, or deceit, the meeting of persons in any number for this purpose.
5. Obstructing them as above in the commencement, or continuance, of the set of operations here in question.
SECURITIES IN FAVOUR OF INDIVIDUALS.
General Declaratory View.
Art. 1. No person shall, against his will, or against the will of those under whose guardianship he is placed, as the case may be, be arrested, imprisoned, or otherwise confined, except for the purposes, and on the occasions, and in the manner, determined and declared by law.
Art. 2. No person shall, against his will, or against the will of those under whose guardianship he is placed, as the case may be, be sent or kept out of the dominion of the State, or any part thereof, except for the purposes, and on the occasions, &c. (as above.)
Art. 3. No person shall be put to death, but for the purposes and on the occasions, &c. (as above.)
Art. 4. No person shall be mutilated, disabled, bruised, wounded, or otherwise made to suffer in any part of his body, except for the purposes, and on the occasions, &c. (as above.)
Art. 5. Of no man shall any personal service in any shape be exacted, except for the purposes, and on the occasions, &c. (as above.)
Art. 6. On the security of no man’s property shall any infringement be made, except for the purposes and on the occasions, &c. (as above.)
Art. 7. On the security of no man’s private writings shall any infringement be made, except for the purposes and on the occasions, &c. (as above.)
Of the security of a man’s private writings it may be an infringement, if, against his will declared or justly presumable, they be placed or kept out of his custody, within or without the dominions of the State, or destroyed, or inspected, or seized, for whichsoever of these or any other purposes it be.
Art. 8. When, for giving execution and effect to the law, it becomes necessary, in virtue of the exceptions mentioned in the above articles, to make infringement on the security of body or goods, no such infringement shall be made beyond what the necessity of the case requires. For any farther injury to body or goods, all persons therein concerned, functionaries or non-functionaries, shall be deemed trespassers, and as such responsible in respect of burthen of compensation and punishment, in the same manner as wrong-doers at large.
Securities against secret confinement: for protection of the persons of individuals against oppression by persons in authority, without, or even with the knowledge of the sovereign.
Art. 1. Wherever, on the alleged ground of its being in furtherance of the purposes of justice, the person of any man is put under confinement, information thereof shall be given in the most public manner, to the end that all persons taking an interest in his welfare, may have it in their power to take lawful measures for securing him against injustice.
Art. 2. To this end the name and situation of every habitation, designed by authority to be used as a place of confinement, whether on the score of delinquency or of insanity, shall be entered in an appropriate register, an exemplar of which shall be kept in the metropolis in the office of the chief Judicatory: and of this exemplar a copy shall be kept in the office of every other Judicatory.
Art. 3. On the commitment of an individual to any such place of confinement, entry of such commitment shall be made in a register to be therein kept for that purpose, mentioning the name by which, on his own declaration or memoir, such individual is distinguished: the person or persons by whose hand he has been brought to prison: the person or persons by whose authority he has been brought to prison: the cause for which he is so committed: the time for which he is so committed: and the evidence on which such commitment has been grounded,—a sufficient description by name and memoir of every person on whose testimony the commitment has had place being added, as also the cause for which the individual has been committed.
Art. 4. Within [NA] hours after the commitment of the prisoner, a copy of such entry shall be pasted up over the door of the Judicatory, in such characters and situation that it shall be legible to all passengers.
Art. 5. If at any time, by any special necessity, the commitment of the prisoner to the appropriate prison be rendered impracticable or improper, any other building, public or private, may, for the time, be employed for the purpose, care being taken that the vexation thereby occasioned, as well to the occupant of such building, as to the prisoner, be as little as possible; and that at the expense of the prisoner, if found guilty, or otherwise at the public expense, (if there be funds sufficient,) compensation be made to the occupant for the vexation: for which reason also, that building which for this purpose may be employed with least vexation—compensated or uncompensated, to the occupant, must be in each case preferred.
Art. 6. Cases for which, instead of the ordinary appropriate prison, an extraordinary prison as above may be employed, are as follows:—
1. The ordinary prison being rendered incapable of holding the prisoners without danger to health or safe custody, by reason of its fulness.
2. — — or by want of repair.
3. — — or by unhealthiness,—produced, for example, by contagious disease.
4. The ordinary prison rendered by distance inaccessible without halting for repose.
5. — — or rendered inaccessible by hostility on the part of enemies, foreign or domestic.
6. — — or by danger of forcible rescue.
Art. 7. If in any such occasional prison a person be detained more than (24) hours, over the door there shall be posted up a paper, such as that described by Article 4 in the case of an ordinary prison, and for the framing or attestation thereof, the assistance of some Iman be invited: that of the Iman of the nearest mosque in preference.
Art. 8. On the commitment of a person to any such extraordinary prison, the bringer shall give the earliest possible notice to the keeper of the ordinary prison, and to the President of the Judicatory in whose district the extraordinary prison is,—of the fact of the detention, together with the cause by which it was rendered necessary, and whether such notice as should have been fixed up, as above, is or is not fixed up, and if not, why not.
Art. 9. The bringer shall make known to such keeper of the ordinary prison, and such judge, the fact of such detention at the extraordinary prison, together with the causes and circumstances of it: if he omit so to do, the detention shall, during the omission, be deemed unlawful.
Art. 10. Every person who knowingly and wilfully has been contributory to the injurious imprisonment of any person, shall himself suffer imprisonment for a length of time equal to that during which the party so injured was imprisoned; and shall, moreover, to the extent of his means, be compelled to furnish compensation, in a pecuniary shape, for the injury.
Art. 11. Any person by whom it shall be known or suspected that, in a certain building, or other receptacle, a certain person is kept in confinement, may repair to the keeper, and require to be informed by him whether such person is actually under his custody. If, being so interrogated, the keeper refuse or forbear to make answer, or make a false answer, he shall suffer condign punishment, and if, at the time of the interrogation, the person in question was actually in his custody, shall be punished as having been guilty of injurious imprisonment.
Art. 12. To the interrogation, whether the person in question be at that very time in the custody of such keeper, may be added the interrogation, whether, at any, and what time, he had been in such custody: and if yes, in what manner, and by what means, he ceased to be so.
Art. 13. For prevention of vexation and impertinent inquiry, the keeper, before he makes reply to any such interrogatory, as above, may require the applicant to make himself known, to the purpose of eventual responsibility.
Art. 14. Any person to whom, by any such keeper, any such acknowledgment has been made, may repair to the judicatory of the district in which such place of confinement is situated, and there require of the judge that the person so under confinement may be produced before him, and that, at a public audience, inquiry be made into the cause of such confinement: which inquiry made, the person shall be remanded or set at liberty, or otherwise dealt with as the case may require.
Art. 15. What is here said of a prison shall be understood of any other place in which, whether according, or not according to law the person in question is under confinement.
Art. 16. If, to avoid his being produced to the judicatory, as above, a prisoner is shifted from place to place, all persons concerned in such shifting, and conscious of its having that for its purpose, shall be responsible as for injurious imprisonment.
Securities against injurious banishment.
Definitions. Injurious banishment is where, without, or otherwise than according to lawful sentence of a judicatory, a subject of the state is, to his vexation, by force, unlawful intimidation, or fraud, sent or kept out of the state, or any part thereof.
If out of the whole territory of the state, the banishment is external: if out of this or that particular part, internal.
The intimidation is unlawful, if the means employed be a threat of vexation by unlawful means, or even of lawful prosecution, for other cause than injury done to the individual by whom the comminatory intimation is conveyed, or to some individual on whose behalf he is entitled to prosecute.
Art. 1. Of any sentence of banishment, external or internal, pronounced by a subordinate judicatory, notice shall, by the earliest opportunity, be sent to the office of the head judge; nor shall the sentence be executed until confirmed by his signature; nor then, until thirty days after the sentence has been read in the Chamber of Audience.
Art. 2. Every person who knowingly and wilfully has been contributory to the injurious external banishment of any person, shall suffer imprisonment for a length of time equal to that during which such banishment shall have had place; and shall, moreover, to the extent of his means, be compelled to contribute to the furnishing compensation, in a pecuniary shape, for the injury.
Observations on the subject of preventive measures against injurious and secret banishment.
For security against secret and injurious banishment, two obvious measures of the preventive class present themselves: one is, prohibiting egress, without passports; the other is prohibiting egress without entry of the fact in the Official Register Book.
It may, perhaps, be too much to say that, in no state of things, either of these means ought to be employed; but what may be said, and with truth, is, that generally speaking, the evil of the remedy will be found to preponderate over the good. The state of things will be an extraordinary one, if, for one instance in which the egress is involuntary on the part of the individual, there will not be hundreds, not to say thousands, in which it is voluntary—say, for argument’s sake, one thousand. Here, then, in the hope of saving, from the greater vexation, a single person, a thousand are subjected to the lesser. But, in the case where a passport is rendered necessary, neither in its length, nor therefore in its aggregate amount, has the vexation any certain limit. Power without limit, over every one who has need of the passport, is thus given to the functionary or functionaries, whoever they be, whose signature or signatures are necessary to the giving validity to it; and thus, for the sake of saving one from injurious banishment, a thousand are exposed to arbitrary confinement—confinement not the less vexatious for not being against law. In the case where simple registration is all that is required, the power of granting or refusing the passport not being given in a direct way, the danger of abuse may seem as if materially lessened, if not removed. It is not, however, by a great deal, so effectually lessened in reality as in appearance: for still, so long as the minute in question remains unmade, the confinement is as effectual as if the case had been that of a passport that had been delayed.
The argument from the security thus afforded has hitherto been supposed entire. This, however, it cannot be in any case: and the more uncertain the effect of it is, the less the utility absolutely considered, and thence comparatively, with reference to the vexation produced by it. The efficacy will depend upon the nature of the communication with other countries, and the efficacy of the means actually employed for keeping persons and things in a state of confinement;—true it is that exportation of another person against his will is not, in general, so easy to a man as the exportation of his own person, or of an equal mass of inanimate things.
Securities against secret and unlawful Homicide.
Art. 1. On the death of every person, except as excepted, notice thereof shall be given to the Iman of the parish within which the death took place; if in any dwelling-house, by the occupier thereof, or some other person in whose presence the death took place: if not in any dwelling-house, or the ground belonging to a house, and occupied therewith—as, for example, on a journey, if at the time any person or persons were present, then by some one or any of the persons present—if the person be found dead, then by some person by whom the body was found.
Art. 2. In every case in which it appears that in the production of the death of any individual human agency has in any shape borne a part, every person to whose mind or senses appearances tending to give probability to such an incident have presented themselves, is expected and required to give to his conception in relation thereto whatsoever publicity it may be in his power to produce.
Art. 3. To this end, after making inspection of the dead body, if it be in his power, with his own eyes, let him repair to the nearest mosque with all possible despatch, and communicate to the Iman such observations as he has made: to the end that this servant of God may take cognizance of the facts, and in case of immoral agency on the part of any individual, do whatsoever may be in his power towards the discovering and punishing of every criminal so concerned.
Art. 4. Having received such communication, the Iman shall, with all practical diligence, repair to the spot on which the body lies, and there make examination of the state of the body, and make inquiry in relation to the matter at the hands of all persons by whom appropriate information is offered, or at whose hands it seems capable of being obtained.
Art. 5. In taking such examination, let the servant of God proceed as follows:
1. Except as excepted, let everything done by him on this occasion be done as publicly as possible.
2. If, in regard to this or that person, he sees reason to suspect that on seeing what passes he may give information thereof to some person or persons contributory to the death, for the purpose of enabling them to escape, he may keep secret from such person anything that tends to point suspicion upon the person so suspected, until means have been taken for his arrestation.
3. Let him, in the name of God and his Prophet, adjure all persons so interrogated, to declare the truth, the whole truth, and nothing but the truth, in relation to the matter in hand, and that as well spontaneously, as in answer to all such questions as he shall have to put to them.
4. In case of refusal to give information, or to make answer to this or that question, let him take note thereof; but if any allegation in justification of such refusal be made, let him make mention also of such allegation.
5. So if any means be used to evade giving such information.
6. So, if after promise to give it, such promise be not fulfilled.
7. Of the demeanour as well as discourse of every individual at whose hands testimony is required, as above, let him take account in writing, noting as correctly as possible the very words of everything that is said.
8. In the case of each individual so interrogated, let him read over to him what has been written: in every instance where it has been signified by the witness that the account so given by him was in this or that particular incorrect, and that it ought to have been so and so, let him make addition accordingly. But let him not on this account obliterate anything that has been written; for any contradiction that has place between any subsequent part of the testimony, and any antecedent part, may help to make known the truth.
9. At the end of the account thus given of each person’s testimony, let him cause the witness, if able, to write his own name in confirmation thereof: if unable, let the servant of God write the name, and cause the witness, in confirmation thereof, to take the pen in hand and make a mark: and to this mark let him add in his own hand, or the hands of the respective persons, the names of the persons who saw the mark made: or of a competent number of them, choosing such whose attestive testimony may upon occasion be resorted to with least inconvenience in every shape.
10. If by any person present a desire be expressed that a question to this or that purport be put to any other person, in relation to this same business, let the servant of God, if in his judgment such question be not irrelevant, or on any other account improper, put the same accordingly on the number of the questions. If regarding the same as improper he decline putting it to the witness, still, if by him by whom it is propounded, or by any other person present, it be desired that entry be made of such request and refusal, so be it.
11. Of the names of all persons present during the examination of such witness, let entry in like manner be made, unless the number be so great that such entry would occupy too much time: in such case the number may be limited to twelve, unless the persons themselves desire entry to be made of their names: in which case, after those by whom no such desire has been expressed, have been entered to the number of twelve, entry may be made of those by whom the desire is expressed till the whole number amount to twenty-four. If by any person complaint be made of partiality in the choice, let note be made of such complaint, the servant of God following his own judgment notwithstanding.
Securities applicable to the case of mysterious disappearance.
Art. 1. In case of unexpected disappearance of any person, if it be known or suspected that he is clandestinely kept in confinement anywhere, or has been secretly put to death, or by force or fraud sent out of the country: application being made on his behalf to the Cadi, or to any inferior judicatory, entry shall thereof be made in the Register Book of such judicatory, and means shall be employed for the recordation and notification of the fact, to the end that in the case of his being unlawfully confined, he may be liberated or otherwise dealt with; or if unlawfully transported, he may be brought back; or if unlawfully put to death, means may be taken for the punishment of all persons concerned in the commission of the injury.
Art. 2. Such application being made, the judge shall hear and make entry thereof in an appropriate Register Book of the Judicatory, and shall do whatsoever shall be in his power towards the causing notification to be made thereof throughout the dominion of the state.
Art. 3. At the request of any person so applying, the judge shall immediately deliver to him, or suffer him to take or cause to be taken, a copy thereof signed by the said judge. Copies in any number being taken of such copy, the judge shall, without delay, cause examination thereof to be made, and as soon as they have respectively been found or made correct, shall in like manner authenticate them by his signature, to the end, that, by the applicant, transmission thereof be made to all such judicatories and mosques, as the applicant shall be desirous of sending them to: whereupon, immediately upon the receipt of each such copy, the Iman of the mosque shall make publication thereof, by reading the contents to the faithful in full congregation assembled.
Art. 4. In every judicatory, in the office of which any such copy shall have been received, the presiding judge shall cause it to be kept in the archives, having, in the first place, made notification thereof in the promptest, and at the same time, in the most public manner that the circumstances of time and place admit of.
Art. 5. Attached to such record of disappearance, shall be an invitation to all persons having knowledge of any facts, tending to the discovery of the authors of the injury, or the causing it to cease if the party be alive, to repair to any judicatory, or to any mosque at their choice, there to testify what they know. Which done, the president of the judicatory, or the Iman of the mosque, shall, upon his responsibility, use such means as his situation admits of, to the forwarding to the proper judicatory the information so obtained.
Art. 6. The petition on which a record of disappearance is grounded, must be signed by some one person, namely, to the end that, in case of its being presented through malice, or otherwise without justification or sufficient excuse, the person presenting it may be responsible to the purpose of pecuniary compensation, with or without ulterior punishment for the vexation so produced. Such petition may be signed by persons in any number: and in such case, such signatures may be in lines one under another, or in lines forming the rays of a circle. The use of this radial form is, to save the individual principally concerned, from being more exposed than the rest to vindictive treatment at the hands of any functionary or other person, in whose breast the application might excite displeasure.
Art. 7. In so far as applicants are unable to defray the expense of copies and transmission, let the judicatory defray it out of any such means as it has in its power.
Securities against Extortion of Personal Service.*
Art. 1. By no person, functionary or non-functionary, shall personal service in any shape be exacted of any individual, without giving him in writing a sufficient acknowledgment thereof.
Art. 2. In such acknowledgment shall be contained the particulars following, namely—
1. The name of the individual at whose hands the service was required.
2. The proper name and official name of the functionary by whom the service was required.
3. The particular nature of the service.
4. The nature of the exigency: i. e. of the demand or need which, on the public account, there was for the performance of such service.
5. The time, that is to say the year, month, day, and hour, at which the service was first required.
6. The time during which the service was required to be continued.
7. The willingness or unwillingness of the individual to render the service so required.
8. In case of unwillingness, the reasons, if any, alleged by him, why the service ought not at all, or ought not at that time, to be exacted of him.
9. The performance, imperfect performance, or non-performance, of the service so required.
10. Collateral damage, if any, inevitably sustained by the individual, by the performance of the service.
Art. 3. Of such act of acknowledgment let two copies be taken: one to be delivered to the individual, the other kept by the functionary.
Art. 4. On each of these let the individual signify his assent or dissent to the several statements therein contained, attesting the same by his name or his mark: his name, if he be unable to write it, being written by, or by order of, the functionary.
Art. 5. The nature of the service and the fact of the exaction of it being thus recorded, it will then be to be compensated for on account of government, or left uncompensated according to the nature of the case.
Art. 6. Let the act of acknowledgment, as to all particulars antecedent to the performance of the service, be made out and signed antecedently to such performance, or not till afterwards, according to the nature of the exigence: that is to say, according as this testimony can or cannot be given beforehand without prejudice to the service.
Examples of cases in which it may probably not be capable of being given without prejudice to the service:
1. Prevention, stoppage, or diminution, of damage by any physical calamity, such as that occasioned by fire or inundation.
2. Prevention, stoppage, or diminution, of damage to body or goods by delinquency in any shape—such as, killing, wounding, or beating, forcible depredation, destruction or damnification of goods, by internal rebellion.
3. Prevention, stoppage, or diminution, of damage, in the like shape by foreign enemies.
Art. 7. Where the nature of the service is such as to require that it be executed by individuals in an indeterminate number at the same time, no such act of acknowledgment need be given to each one of them.
Art. 8. But in this case let a general statement of the number be committed to writing by the proper functionary, and deposited either in the mosque or the judicatory within the district of which the matter happened, or both, as the case may require.
Art. 9. If so it be that this or that individual has, on the occasion of the performance of such service, received any material damage in body or goods, let note, with sufficient attestation be taken thereof, to the end that he may receive compensation in a pecuniary shape at the hands of government.
Art. 10. So if it be, that by the magnitude of hazard to body or goods, or by the success or energy of his exertions, it has happened to this or that individual to distinguish himself in an eminent degree, let note thereof be taken, and a duly attested copy thereof be delivered to him. In this case, if the degree of merit manifested be sufficient, let entry be made in an appropriate register to be kept in every mosque and in every judicatory. It may be styled The Register of merit, or The Register of extraordinarily meritorious public service.
Securities against Official Depredation.
Definitions.—Official depredation may have place at the expense of an individual, or at the expense of government,—that is to say, at the expense of the whole community, at whose expense the money employed in the service of government is collected. Official depredation at the expense of government belongs not to this purpose.
Official depredation has place in so far as any public functionary avails himself of the power or influence possessed by him by means of his office, to obtain from any person money, money’s worth, or beneficial service in any shape, not having a right thereto by law.
The instrument whereby this offence is committed, may be either force, intimidation, or deceit.
Intimidation may be exercised by producing either the fear of some eventual positive evil, or the fear of failing to obtain the matter of good which the functionary had no right to prevent the individual from receiving.
Art. 1. Imposition of secrecy is evidence of official depredation. If on the occasion of the valuable thing or service received, intimation is by the functionary conveyed to the individual, that it is the wish of the functionary that the transaction should be concealed from anybody, such declared wish affords presumption of official depredation. The presumption, if the fact of the having given intimation of such a wish is credited, shall be regarded as provisionally conclusive.
Art. 2. If on account of any service or supposed service, rendered or supposed to have been rendered or to be about to be rendered to an individual, by a public functionary, by means or in respect of his official power, gift or service other than what is appointed and allowed by law be received by him, or to his use, or for any person specially connected with him by any tie of interest or sympathy, intimidation or corruption shall be presumed to have been exercised by such functionary: intimidation, namely by apprehension, lest evil in some shape in which it ought not to be inflicted by him on the individual, be so inflicted, or lest good in some shape in which it ought to be rendered to the individual by the functionary without such gift or service, should not be rendered by him accordingly: corruption, in the view of obtaining of the functionary, at the expense of the public, the matter of good in some shape in which it ought not to be so rendered.
Art. 3. In case of intimidation, the gift, or the equivalent of the service, may be recovered of the functionary or his heirs at any time within (NA) years.
Art. 4. In case of corruption it may be recovered for the use of the public treasury.
Art. 5. If by any public functionary, gift or service not due to the sovereign by law, be received or required of any individual, on pretence that it is for the sovereign’s use or by command of the sovereign, the intimation by which it is asserted or supposed, that the sovereign issued any such command, or would receive any such gift of service if permitted, shall be deemed a calumny, and the functionary and every person willingly contributory to the conveying such intimation, shall be punished as the author of such calumny.
Art. 6. If on any such occasion, any writing to any such effect be produced, purporting to be authenticated by the signature of the sovereign, the same shall be regarded as a forged instrument, and the persons concerned in the exhibition thereof shall be punished as for forgery.
Art. 7. Provided always, that if the sovereign be pleased to appear in the judicatory, and in the face of the bystanders, declare that the signature was really his signature, in such case it shall be acknowledged as such, and all due obedience shall ensue.
Art. 8. Every functionary by whom, on account of any branch of the public service, money or money’s worth is required at the hands of any individual, shall, on receiving that which is required, or any part of it, deliver to the person of whom it has been received, an appropriate instrument or writing, acknowledging such receipt. This instrument may be termed an acknowledgment of receipt, or in one word a receipt.
Art. 9. If no such instrument be delivered, the act of receipt shall be deemed an act of official depredation, or say in one word extortion.
Art. 10. Of every such receipt two copies shall be made. One of these shall be delivered to the person in whom the requisition is made as above; in it shall be written:
1. Name of the place in or at which the requisition is made—district, town, if any, and parish.
2. Time at which the requisition is made.
3. Official name of the functionary by whom the requisition is made.
4. Personal name of the functionary by whom the requisition is made.
5. Name of the individual on whom the requisition is made.
6. The subject-matter of the requisition so made.
7. The branch of the public service for which the requisition is made—for example, the financial, the judicial, or the military.
8. The time on or before which it is required that the thing in question shall be delivered.
9. The place at which it is required that the thing in question shall be delivered.
10. If the thing in question be delivered accordingly, mention of such delivery.
Art. 11. If lawful, such requisition shall be either specially or generally manifested.
By specially manifested, understand manifested by a requisition made to the particular individual.
By generally manifested, understand manifested to all such persons as are within the description thereupon given—as, for example, all the persons in a certain district, or all the persons of a certain class whose ordinary abode is within that same district.
Securities in favour of Private Writings: or Securities for the Writings or other Documents of Individuals, against wanton or oppressive Seizure, Destruction, Damnification, or Inspection, by Non-functionaries or Functionaries.
Art. 1. No writing shall, against the will, known or reasonably presumable of the owner, be carried or kept out of his custody or power, or be seized, destroyed, damaged, or inspected, by or by order of any person in authority: unless it be in pursuance of the order of a Judicatory.
Art. 2. Such order may be either subsequently to the definitive sentence pronounced in a suit or cause, and for the purpose of giving effect to such sentence, or antecedently to such sentence, and for the purpose of furnishing due grounds for it in the shape of evidence.
Art. 3. In case of such oppressive seizure, destruction, damnification, or inspection, any person concerned in the infliction of the injury shall be responsible to the purpose of pecuniary compensation, with or without ulterior punishment, as the case may require.
Note, that the evil produced by such injurious inspection is capable of wearing any shape in which evil to any person or persons is capable of having place:—in his person, in his reputation, in his property, in his condition in life: in any of these ways an individual is liable to be made a sufferer from such a cause.
Art. 4. If, by any illegal means, writings be obtained contributing to the proof of any offence, the illegality of the means shall not have the effect of exempting the possessor from the punishment adapted to the offence: but in the adaptation of the punishment, any evil suffered by him in consequence of the inspection thus obtained of any other writing, shall be considered.
Art. 5. So, in the case where, as between two parties who are in a state of dispute with relation to a certain right, a writing having for its tendency the giving effect to the claim of one of the parties, and which, as such, the other ought to produce, or to have produced, has been obtained by illegal means: that is to say, without sufficiently and properly issued warrant. But if it be by wilful falsehood in any shape that the writing has been obtained, all persons concerned shall be punished for the falsehood: and the party, if privy to the falsehood, shall not have the benefit of the evidence so obtained. But care must be taken, lest, he not being privy to the falsehood, a false friend should, by obtaining it by means of falsehood, deprive him of the benefit of it.
Art. 6. If, by legal means employed for the purpose of obtaining evidence of this or that act of delinquency, or of the correspondent non-delinquency, or in respect of this or that particular right, writings or other documents capable of serving as evidence respecting any other supposed offence or right, be obtained, the evidence thus obtained may be employed accordingly. But if, in this way, possession or inspection has been obtained of writings or other documents, by the publicity of which evil in any shape has been produced to any person, without service rendered to justice in any shape, as above: for such evil, all parties concerned in the production of it shall be responsible to the purpose of reparation or punishment, or both, as the case may require.
Art. 7. If, for the purpose of producing serious evil by disclosure of writings or other documents, evidence not applicable to any other than a trivial offence or a trivial right be obtained, although it be by legal means, all persons knowingly concerned in such inspection or divulgation, shall be responsible to the purpose of reparation, or punishment, or both. But from the punishment, deduction may be made proportioned to any such real good as shall be deemed to have been produced by the production of such evidence.
Example. For the purpose of causing a person to be disinherited, or otherwise made to suffer by an over-severe or capricious father, husband, or master, an adversary obtains by legal means, in company with documents applicable to the purpose of a trivial offence or right, others which, by means of some exasperation, produce the evil effect intended, as above.
HOPES OF SUCCESS FOR ANY PROJECT HAVING SUCH SECURITIES FOR ITS END.
Value of the Concession on the part of the Sovereign.
In the first instance, all that to this effect can be done by the sovereign—all that can be asked for at his hands—is resolveable into one thing—promises. Towards the performance of these promises, all that can be done in the event of a violation of the promises is, the procuring notoriety for the several acts by which such violation has been effected.
Everything I say that he can do on his part amounts to a promise, and nothing more. If, for example, he grants a representative assembly, what he thereby does by such grant amounts to a promise to suffer the deputies to be elected, and to meet, according to forms of their own choosing, or forms recommended by him, as the case may be. If, in the case of such invitation or permission, he makes a declaration or assurance that, in the event of their meeting, he will not thenceforward give, or endeavour to give, execution and effect to any laws to which they have not given their consent, whether antecedently to their receiving his sanction or not till afterwards: here again is another promise or set of promises.
If what is obtained of him consists of edicts, interdicting the exercise of any acts by which, in certain ways therein mentioned, men are made to suffer in their persons or their property, by whomsoever such acts may have been exercised,—in this again is comprised a promise, not only to abstain from such acts himself, but to punish without exception all persons by whom they shall be or have been exercised.
As a security, and that a necessary one, for the performance of this primary class of promises, comes a sort of secondary class of promises, having for their subject-matter in the event of any violation of these promises, the suffering the giving execution and effect to a set of mandates and permissions, having for their object the giving to every such infraction notoriety to every extent possible.
If, notwithstanding these promises, explicit and implied together—promises engaging not to give any such predatory or other oppressive orders, orders to that effect are given by him, here again is another instance of violation of promise on his part. If, notwithstanding the correspondent order to the citizens of all classes not to exercise such acts of violation, acts of that sort are exercised, and he omits to give the requisite orders for appropriate prosecution and virtual punishment,—if to any exertions made by the injured parties, or others, for the purpose of instituting and continuing such prosecution until sentence be pronounced, and if condemnatory, executed, he, by himself or others, opposes obstructions in an immediate and declared, or unimmediate and undeclared, way—obstructions to any endeavours used for bringing about such punishment;—here again is another violation of promise—another instance of perfidy on his part.
Still, in all these cases, everything that is done by any person other than the sovereign himself, consists in an appeal made to public opinion: of everything that is thus done or endeavoured at, the success depends upon the spirit, the intelligence, the vigilance, the alertness, the intrepidity, the energy, of those of whose opinions the public opinon is composed.
As everything depends upon public opinion, so does everything depend upon notoriety—notoriety as above to ordinances, transgressions of these ordinances, and suffrages. And note here, with regard to transgressions, that be the instances of violation ever so frequent, it follows not from such frequence that the ordinances in question have been altogether without effect; much less that in their own nature they are inefficient and nugatory. This may be exemplified in the case of the ordinance whereby assistance given to a person engaged in the commission of this or that act of oppression is declared to be criminal, and as such punishable, resistance to it lawful and not punishable.* Antecedently to such concession, any person by whom any such act of oppression was witnessed, would regard it as lawful, and be without hope of any punishment being inflicted on any person concerned in it. Suppose, on the other hand, the concession and the virtual promise contained in it made, every one would, in the first instance, and unless taught the contrary by experience, entertain the expectation and hope of seeing it observed: and in pursuance of such hope, individuals might rise up with one accord, and concur in opposing effectual resistance: individuals into whose conception, but for such ordinance, no idea but that of obedience would have entered.
This view of things—this hope—this estimate of the usefulness of solemn monarchical promises, how flagrantly soever violated, is confirmed by all history—by the history of all nations in which they have been made.
In England, for example, take the instances of Magna Charta, and the Bill of Rights, as already referred to: Magna Charta, dating near the commencement of the thirteenth century of the Christian era, the Bill of Rights towards the close of the seventeenth. Abundant and frequent have been the violations of both these clusters of promises: yet is it to them that the English are indebted for every security against misrule—for every abstraction from misrule by which their condition is distinguished to its advantage from that of the inhabitants of the continent of Europe.
So in France. Take, for instance, the charter which the conquering despots forced the people to receive at the hands of the reigning Monarch. The security miserably inadequate—the principle upon which it is grounded, a security for, not against, misrule. The lot of the whole people declared dependent upon the arbitrary will of a single one of them. He, by his situation, rendered, in every intelligible sense of the word worst, the worst of all of them. On every occasion, he would be instrumental in sacrificing the interest of these thirty millions of his fellow-countrymen to his own sinister interest and caprice; yet such is his benevolence, that cases are mentioned by him in which he promises, so far, to keep a restraint upon his desires, as to forbear from making the sinister sacrifice. Each moment he would be warranted in taking all they have; yet such is his generosity, that, of the fruit of each man’s labour, there is a part which, in so far as it may happen to the promise to be observed, he may keep. Even of this scandalous provision, insulting and grossly inadequate as it is, the violations are incessant. Still, however, under this so inadequately bridled mixed monarchy, the lot of the people is less disastrous than under the despotism by which the Revolution was produced.
The probability of the Sovereign’s consent abstractly considered.
The question concerning the probability of consent on the part of the sovereign was brought to view at the outset: it has never been out of remembrance. Unfortunately, having, as they have, for their object the applying limits to his power, the greater the efficacy which the several proposed arrangements would have, on the supposition of his consent, the less sanguine the hope of its being obtained cannot but be. As to this point, such as they are, they must take their chance. That hopes have place, that to the purposes here in question he may be brought to bestow upon the people a benefit so transcendant and so unexampled, is a datum without which the work could not have been undertaken.
In form and tenor, the object has been to render what is done as little offensive to the feelings of a man in the situation in question as the nature of the case can admit of its being: of misdeeds and misdoers, a description in the several cases is given: if so it be that it is his will and pleasure to give himself a title to that appellation, there is no help for it; but to him, personally and individually, it is not, on any occasion, applied.
If to stop the course of justice be his will and pleasure, so it must be: all that could be done is, so to order matters, that the security thus endeavoured to be afforded, cannot, in any case, be taken away without its being seen by, and known to, the people that it has been taken away, and that, by taking it away, he is stopping or perverting the course of justice.
Not only so, but matters are so ordered as that, unless, in so far as special injunction of secrecy has been communicated, whatsoever has place is, by the general means of notoriety, whatever they are that have been provided, made notorious: to wit, according to the degree of notoriety, whatever it be, which, by these same means, has been established.
But, in all internal concerns, at least, not to speak of international ones, secrecy in the acts of constituted authorities, or in the circumstances in which they have been performed, affords a presumption,—and indeed, with the exception of certain cases to a comparatively small extent, which may, without difficulty, be distinguished and declared, amounts to a confession,—of guilt, of moral and political guilt: a confession, that the promotion of some sinister interest, and not the universal interest, is the object of what is done. A confession of this sort, neither the sovereign himself, nor any subordinate of his, will willingly be seen to make.
A bit of some sort or other, and that an effectual one, the courser must have in his mouth: the object is to render it so soft and smooth that, as far as possible, it shall be imperceptible. Accordingly, whatsoever be the obstacle, on no occasion is it to the person of the sovereign that it is opposed: not to him, either by name or description, but to the person concerned in the vexatious practice, whatsoever it may be. And the practice being not only vexatious, but, with reference to determinate individuals, plainly injurious, that the sovereign should, in his own person, be an actor in the injury, can scarcely, in decency, be supposed by anybody, nor will it be expected of these arrangements that they should have any such supposition for their ground. The injurious act being brought to light, whatever disrepute attaches upon it will attach, at any rate, in the first instance, upon the instruments which he employs. On them he will see it attaching: and on them, on the supposition of its not coming home to himself, he will, without much concern or resentment, as towards anybody, so long as it is not seen by him to come home to himself, see it attach. For its not doing so, he will naturally be led to trust to the splendour that environs him, and to the delusion and awe which it inspires.
To a certain degree, what he thus relies upon will take place: but, in the meantime, of a fund of discontent in the breasts of individuals not known to him, and therefore not exposed to punishment, symptoms will be continually breaking out. By the obscurity of the source, danger, in the eyes of him on whom it impends, far from being diminished, is magnified; and thus it may be that, upon the whole, he will find his situation more comfortable by abstaining from injury, than by indulging himself in it. Compared with a set of provisions, bearing expressly upon the person of the sovereign, opposition in this mode will be analogous to that which, in machinery, is opposed by friction, compared with that which is produced by an opposing bar.
Accustomed to contemplate all objects in a general point of view, the draughtsman has had some advantages over the sovereign, who, in his situation, is not accustomed to the labour of regarding them in any other than a particular point of view. By the legislative draughtsman, the objects that belong to the occasion will be seen, all of them, in a general point of view.—The vexations which, whether in the shape of simple vexation, or in that of depredation, a man in the situation of the sovereign cannot fail, upon occasion, to conceive the desire of practising: the instruments and other favourites, whom, whether on their personal accounts respectively, or in virtue of their common relation to him, as being part and parcel of his property, he will be disposed to let into a participation of these his privileges, (in some instances beforehand, and in the way of previous license, in all instances in the way of impunity, in the event of any endeavours used to call them to account;) so, on the other hand, the resentment which, by any endeavour or so much as a disposition on the part of the person injured to obtain remedy or so much as relief, can scarce fail to be handled in a breast so situated.
To the eyes of the sovereign himself, no such extensive views will naturally be present. When the means of securing notoriety to his proceedings are proposed to him, if so it be that there exists no particular act of depredation or vexation in any shape that he has conceived the desire to commit, he will not be forward to suppose that there will be any such in future: he will not be forward to suspect to himself a disposition, which, even in his own instance, he could not regard as altogether free from blame.
If so it be that no individual instrument or favourite to whom, in respect of any particular instance of depredation or oppression he would like to afford license or impunity, happens to be in the moment in his eye, it will not be agreeable to him to look backward to past instances of any such undue favour, or forward to future contingent ones. If so it be that there exists no particular individual against whom, by the audacity of his endeavours to obtain remedy or relief his resentment has been kindled, he will not find much satisfaction in any such supposition as that of his being angry without just and sufficient cause. Not that in his situation advisers to whose situation reflections of a general nature are more necessary, are likely to be wanting—advisers by whom representation will be made of the danger, with which improvement in any shape, and particularly in the shape here in question cannot but be pregnant: nor therefore does there seem any great ground for hope, that without more special and particularly strong impulse, a concession so unexampled and naturally so revolting to ruling pride, will be submitted to. But be it what it may, this chance is the only one: which being the case, no argument against the taking it can be derived from the smallness of it.
Such as above being the securities proposed as presenting the fairest promise in every point of view, natural consequences if conceded, and probability of success taken together—only in proportion as they apply a restrictive check to the accomplishment of the sovereign’s will, only in proportion to the extent to which they operate in this direction, can they be productive of any of those salutary effects for the purpose of which they are proposed. But the idea of any effectual opposition to his own will, in whatsoever direction operating, is an idea to which, in a mind so situated, more pain is attached than can be outweighed by the consideration of any particular pleasure that he may be capable of deriving from the contemplation of any particular good effects, of which the creatures subject to his power must receive their share, before he receives his: their share being at the same time, if taken in the aggregate, much greater than his. His situation is as to this matter that of the infant with his physic—some years must have passed over his head before any such remote contingent and imperfectly conceived event as the cessation of the suffering he is enduring from the disease, can form of itself an adequate inducement to be freely and voluntarily instrumental in afflicting himself with the pain so certainly and immediately attached to the nauseous dose.
The chance of the requisite concession is not equally small in all imaginable cases. To obtain security against vexation in all its shapes, and at all times against all persons, but more particularly against all persons who have it most particularly in their power to produce it, is the object of these arrangements: more particularly against vexation at the hands of the sovereign and those in authority under him: vexation for the gratification of their respective appetites and passions.
The classes of persons at whose hands it is most to be apprehended are—1. The sovereign himself. 2. The sovereign’s favourites. 3. The several functionaries under him considered as being on every such occasion employed as his and their instruments for his and their personal gratification: so these same functionaries considered as being in a condition to employ their power in the production of vexation and oppression, for their own gratification and supposed advantage.
To vexation of this latter description, so far as confined to this latter purpose, the sovereign will not naturally have any considerable aversion: what may be the sufferings of the people taken at large will on this occasion, as on every other, be to a mind so situated a matter of indifference: against any sentiment of sympathy of which they may be the objects, will be to be set that portion of sympathy which has for its object the enjoyments of a select set of men, who being in a more especial manner in his service, belong to him by a nearer and dearer tie than the members of the community at large, removed as they are from his sight and his cognizance. If there be anything by which his sympathy can be turned in favour of the people, it must be a species of fear: fear of the unpopularity that by possibility may be turned against his own sacred head, by the consideration of the connexion that has place, between himself and those creatures of his will—the oppressors, whose power of continuing the oppression, a word from him would suffice to terminate.
If then, according to his calculation, any dissatisfaction produced by the divulgation of instances of oppression, will on every occasion take them and them alone for its object: if it will not rise higher: if it will not rise so high as to reach his own person, or those of his more especial favourites: in such case no very urgent inducement may be necessary for obtaining his consent. In Tripoli, as in England, if at any time he can make the people quiet, by the sacrifice of a set of instruments in which no special favourite is numbered, a comparatively small inducement—a comparatively slight degree of apprehension may suffice. Turning out this set, and taking in a different one, he may, through their instrumentality, go on in the same track, beginning only a new score. Turning out a set of Tories, he may go on playing the same game with a pack of Whigs.
Inducements by which, in the situation of Sovereign of Tripoli, a man may be engaged to concur, and take the lead in the proposed change.
1. Inducements purely self-regarding—inducements applying to him in his personal capacity,—to his purely self-regarding interest.
Person, reputation, property, domestic relations, condition in life; in respect of one or more of these possessions, if in any way, in the situation in question, as in any other, will a man’s welfare or condition be affected, whether it be in an advantageous way, or in a disadvantageous way.
1st, As to person. Under the existing state of things, the person of the sovereign is in a perpetual state of insecurity. To individuals in an indefinite number, inducements for attacking his life are continually presented by both branches of human appetite, the irascible and the concupiscable. Under a form of government, such as the arbitrary one still in existence, as in all former times, oppression in all its shapes cannot but be matter of continual practice. Of every injury thus sustained, the sovereign presents himself to the view of the injured party as the author. In most instances this will be an erroneous view: but in a more or less considerable number, it can scarcely fail to have more or less of truth in it. So imperfectly defined under such a form of Government are the boundaries which separate right and wrong: in particular, those by which rightful occupation is distinguished from depredation in whatsoever way committed,—whether without consent and by force as in the way of taxation, or with consent, and by a sort of fraud, as by taking up goods in the capacity of a purchaser, but without ever paying for them.
Thus much as to the provocation offered to the irascible appetite, in the case of a boundless multitude; a multitude to which, at any rate, there are no bounds but those by which the population of the country is circumscribed.
Now, as to the provocation offered to the concupiscable appetite. The sovereign not having at present any established and regularly disciplined military force for the security of his person, nothing but an uncertain number of irregularly armed retainers and irregularly and unequally paid domestics, the sovereignty presents itself at all times to the eyes of a man of ardent ambition or desperate courage, in the character of a prize which awaits the hand of every man who has the spirit to put in for it. In the situation in question, were it possible for a man to have any hold on the general affections of his subjects, this hold might be a sort of security to him, a sort of discouragement to every man of adventurous disposition, who would feel disposed to put in for the prize. But no such possibility has place. By any considerable body of men who would embark together for the purpose on the principle of equality, or by a handful of men, if tolerably well trained and placed under the command of a single adventurer, induced by regular pay, by hope of plunder, or by personal attachment, the miscellaneous unarmed and irregularly and unequally-paid body of his present defenders might at any time be overpowered, and an end—a violent end put to the sovereign’s life.
2. Reputation. In this particular, the advantage which invites his acceptance is, it will be seen, altogether matchless. But before any thing of detail under this head is brought to view, there will be a convenience in carrying on the inquiry through the other heads that have been mentioned. Under this head, suffice it to observe, on the present occasion, that with a man in such a situation, anything positively good in the way of reputation can scarcely in the general case find a resting-place. Whatever there may be to which this appellation can apply will be rather of the negative than of the positive cast;—such a man has in such a situation done rather less mischief than such another man. Thus, in respect of this endowment, a man has everything to gain by the change, nothing to lose.
3. Property. Under the present form of government, if in the hands of every inferior possessor, property in all its shapes is in a state of insecurity; in the hands of the superior possessor it can scarcely be said to be in a much better state. The desires of the man, whoever he be, by whom the situation of chief ruler is filled,—the desires of this man, whoever he be, being continually out-running the means of satisfying them, the agents employed by him in the collection of his dues are continually upon the alert for occasions and means of adding to the amount. But, in such a state of things, while on the one part there is a constant endeavour to grasp at more than has been wont to be received, so, on the other part, there exists a correspondent endeavour to withdraw from the grasp of the depredator as much as possible,—not only the more and more, continually demanded, over and above what has been habitually received, but likewise as much as possible of that which has hitherto been received. The consequence is, that in the midst, or by means of this conflict, security is banished from both sides.
In the midst of this conflict, less than he has at present, he may have to any amount, more he cannot have unless his subjects have it to give to him: and his subjects are at all times prevented from having any more to give to him; prevented by that state of insecurity which is inseparable from their condition. He is indigent, because they are indigent under the existing form of government; their indigence, it will be seen, is perpetual and incurable: therefore so is his. But on this subject there will be occasion to say more presently.
4. Domestic relations and condition in life.—To this head may be referred the uncertainties and anxieties which besiege the monarch in his character of father. The prospect of a bloody contest between his sons as being about to have place whenever his own life is at an end. In every Frank monarchy the order of succession is clearly fixed: no such apprehension as that of a civil war from any such cause has place. In the dominion of Tripoli the order of succession is not fixed, and in the existing state of the family, that which in almost every other country would be one of the severest curses, is even a blessing. Of his three or four sons, the eldest on whom men’s eyes would naturally have fixed themselves in the first place, is at present generally regarded as being decidedly unapt for reigning, by the flagrant atrocity of his disposition. This generally, and at present: but when the existing sovereign has quitted the stage, who can say for certain what turn men’s minds, the minds on which such things depend, may take. What an incitement may not such an occasion be, for some ambitious desperado to come forward and collect a party, for the support of the natural or rightful heir to the monarchy, whose sins he will pronounce expiated by the disgrace he has endured, and whose disposition has been molified and cured by the lessons which, from the silent hand of adversity he has received.
II. Extra regarding inducements.—Inducements applying to him in his social capacity, viz. in so far as his prosperity is dependent on that of the people.
The same division, the same heads of inquiry that served in the case of his personal interest, will serve now in the case of his social interest.
In this case, however, the survey will have little need to touch upon any of the above four points, other than that of property: of property which, in this case, receives the name of the matter of National Wealth. In so far as, in respect of personal condition, reputation, or condition in life, the lot of individuals at large considered as members of the same community, happens to be an object of interest and solicitude to him, it is well: but in this case it is to his sympathetic affections and not to his self-regarding affections that the interest applies.
Remains, then, as the sole remaining subject of consideration in the character of a source of inducements to the sovereign to give the consent in question, the Article of National Wealth.
So far as regards hope of increase, nothing can be more intimate than the connexion between the interest of the sovereign and that of his subjects taken in the aggregate; no object more strictly dependent upon another than is his opulence upon their opulence.
In the existing state of things, under the existing form of government, the sovereign has at all times extracted from his subjects as much as was capable of being extracted from them. In this state of things, all ulterior increase to him without increase to them being hopeless, remains as the only source of hope in regard to increase to him, such increase whatsoever it may be, as may be derived from a correspondent increase to them.
But under the existing state of things, any very considerable increase of wealth to them is impossible: all such increase is altogether dependent on a general sense of security. No considerable increase of wealth can take place but by means of a proportionate increase of capital. But no considerable increase of capital employed in giving increase to the generality of growing wealth, can take place without a proportionate and correspondent increase in the sense of security. Capital is money, or money’s worth, laid out in large masses in the hope of reimbursement, with an increase at the end of a length of time, more or less considerable,—say six, eight, or ten years: or even without hope of reimbursement, on the condition that the returns each year, though perhaps not more than a twentieth, or five-and-twentieth, or thirtieth of the capital advanced shall be perpetual and transferable. Whatsoever money or money’s worth a man has in store, over and above what serves him for the current consumption of the year, if he cannot obtain security for any return that might otherwise be expected from the employment of it, he will either hoard it up as a stock to serve him in case of casual demand on the score of distress by loss or otherwise; or if he employ it, he will employ it in some other country—employ it, that is to say, either in giving increase to the quantity of national wealth in some other country, or, what comes to the same thing, in an indirect way; namely, by occupying the place of an equal quantity, which may be drawn off from that destination, and thus giving increase to the quantity of national wealth in that same country as above.
But by any such sense of insecurity, not only will capital be prevented from being so employed as to increase the stock of national wealth in the country in question, but it will be prevented from coming into existence: the adequate motive, the inducement for giving existence to it being wanting. By the sight of the external instruments of enjoyment or felicity, in all their several shapes, every human being is in a state of constant temptation, solicited by these as he is to make acquisition of them, and in the way of consumption employ them according to their several qualities and destinations. All without exception are perpetually operated upon, and stand exposed to the temptation. For, indeed, not one in a thousand is in a way to conceive the idea of employing capital in the purchase of foreign securities. Not many have the self-denial to sacrifice in any such way to any considerable extent the present to the contingent future: a future, which even in a state or country of the greatest security, is seldom estimated so high as it is worth, and which, in a country such as this in question, is worth so little in comparison with what it is worth in countries where subjects enjoy a very considerable and efficient security against all irregular and unserviceable exactions by the hand of government, however it may be as to regular and serviceable ones.
Thus temptation has in every state of things two branches: one is that which is presented by the love of enjoyment in the several shapes in which it is afforded by the several instruments of enjoyment according to their several natures; the other is that which is constituted by the aversion to labour, or say, by the love of ease.
This impossibility of any considerable increase of wealth to the nation, and thence to the sovereign, without a correspondent increase in the article of security,—security against misrule, the force of the arbitrary power in the hands of the sovereign, will appear the more plainly in proportion as the several sources from which the matter of wealth is capable of being extracted, are the more particularly brought to view.
Capital may be employed in giving increase to the quantity of growing wealth in either of two ways or situations: namely, 1st, In the hands of individuals acting singly, each employing his capital on his own single account; 2nd, In the hands of individuals acting in associations more or less extensive, the capital being collected from a number of hands more or less considerable, and according to the magnitude of the concern, employed either by the same hands by which it is supplied, or by a lesser number of hands chosen and appointed by the united suffrages of those by whom, and for whom, it is employed.
With the first of these two states of things, as being the more simple, let us commence the inquiry; the other will be understood from it of course.
The first most extensive and most obvious source of increase to wealth,—is labour employed immediately upon land.
In this case insecurity may attach upon it in two ways, either or both of them: namely, 1st, Upon the undisturbed possession of the land itself; 2nd, Upon the undisturbed possession of the growing produce. The most intensely and extensively operative cause of insecurity and of the sense of insecurity, is that which affects the title to the land; the title to the perpetual possession, or the title to the assured possession of it for a fixed and ascertained number of years, as the case may be.
Wheresoever the title to the land may be deficient, either in respect of certainty, or in respect of permanence, the inducement to expend any capital in the improvement of it, will experience proportionate diminution.
In Tripoli, the title to the land itself is everywhere more or less exposed to hazard and loss from two sources: 1. From the arbitrary power of the sovereign; 2. From attacks in the way of litigation by individual counter claimants.
In the case of lands in general, for the sovereign to take forcible possession of them, without other ground or cause assigned than the absoluteness of his power is, it is believed, not a very ordinary occurrence. Still, however, he that can do anything whatsoever that can be done by power, can of course do that whenever he pleases.
Improvements having land for their immediate subject-matter, will apply either to the surface or to the interior.
Improvements applying to the surface, will apply either to the soil itself, or to its boundaries, or to its means of communication.
Improvements applying to the soil itself, will consist either of the addition of manures, or of the addition or subtraction of water.
Manures are either texture-improving manures or aliment-supplying, say in one word alimentary manures.
Improvements having respect to water, operate either by the subtraction of it, when in too great quantity, that is to say by drainage, or by occasional addition to it, that is to say by irrigation.
Whether it be to be excluded by draining, or occasionally introduced for the purpose of irrigation, capital, to an amount more or less considerable, must, it is evident, be expended: capital, the returns for which will be more or less distant and uncertain.
Boundaries are either, 1st, For mere demarcation, i. e. showing where property ends; or, 2d, For exclusion of objects, the entrance of which would produce annoyance.
These are, 1. High winds, i. e. air when in a certain degree of agitation: 2. Animals wild or tame: 3. Human beings, at whose hands depredation, destruction, or deterioration are apprehended. Boundaries, having any such exclusion for their object are styled fences.*
Some animals there may be, for the sufficient exclusion of which, in some situations and circumstances, no very considerable expenditure of capital may be necessary. But in other instances the expenditure necessary for this purpose, even where this is the only one, may be very great.
As to human beings, of fences sufficient for the exclusion of depredators and deteriorators in this shape, the expense cannot, in any situation, fail of being very considerable. For the effectual exclusion of them, if absolutely determined to gain entrance, no expense, how vast soever, can, it is evident, be sufficient. In the making of fences in this view, a sort of calculation sufficiently obvious, is of course made: on the one side, is set down the estimated value of the damage apprehended from such intrusion, on the other hand, the estimated expense of such fence as will in general be sufficient: sufficient to overbalance the net profit looked for by an intruder after deduction of the value of the burthen, composed of the labour and physical hazard of the enterprise, combined with the eventual evil apprehended in the case of detection and punishment.
Now as to the interior of the earth. Say, in the English phrase, the bowels of it: meaning in general whatever masses of matter lie within the surface down to which vegetation extends.
Extensive portions of the matter of the earth considered in this point of view, are called mines. Such portions as are regarded as consisting of earth concreted into a stony hardness, and not containing metallic substances in any proportion worth regarding, are, in English, distinguished by a particular name, quarries; and so in other languages.
When separated from other substances, the several different subjects of the mineral kingdom as it is called, exhibit differences in value upon a scale of prodigious length: witness at the one end of it, diamonds and other glittering stones, deriving value from their splendour combined with their rarity: at the other end, clay, sand, lime, and coal. Not, however, from the value of the species of the matter when obtained separately, is the value of the mine that affords it to be estimated, but to that circumstance, combined with the quantity and quality of the labour employed in effecting the separation, and conveying the matter in its separate state to the several places where it is put to use. Taking all these circumstances into consideration, the working of a diamond mine, or of a gold mine, may, instead of the most lucrative of all mining concerns, be a losing one, and such in many instances it actually has been. Witness, for example, Brazil; as may be seen in Mr Mawe’s interesting travels in that interesting country.
On the other hand, not only coal and chalk, but even clay and sand, may be, and in every well cultivated country actually have been, and continue to be, extracted with considerable profit. Witness the clay extracted for porcelain and other pottery.
In England in particular, coal, a substance, which from the vegetable has, by lapse of time, past into the mineral kingdom, has, for centuries past, constituted the foundation of vast opulence to numerous families: opulence, in masses superior to any that are to be found in Tripoli, of whatsoever materials composed.
As to stones called precious, and the metals called by way of distinction precious, although they are capable of existing in such quantities, and under such circumstances as not to pay for the labour of extraction, yet they are also capable of existing, and accordingly have been found to exist, in such proportions and under such circumstances as to afford a greater rate of profit than any other ingredients in the composition of the earth’s interior. Hence it is, that by men in general, and in particular by men armed with power, they have been in all times, and in all places, regarded with peculiar avidity. Accordingly, mines in which gold has been found, and mines in which silver has been found, have in many, perhaps most countries, been by law and practice, in whose soever land, and by whomsoever discovered, declared sacred to the use of the sovereign: too valuable to be capable of passing into any subject hand.
In general, before the peculiar precious substance can be found in any very considerable quantity, it becomes necessary to penetrate to a depth where vegetation ends. Here and there, however, exceptions to this rule have been found: gold in particular has, in large quantities, been obtained by extracting and sifting the earth found at the bottom of shallow rivers. As to silver, in the mixed masses in which it is contained, it has been found in a great variety of proportions: in some instances, in a proportion so large, that every other metal mixed with it has, in the course of the extraction, been driven away and sacrificed to it: in other instances, it has been, as it were, drowned in the less precious metal: and the less precious metal has been sold at a price no higher than what would have been asked for it, had no silver been combined with it. In particular, this in many instances has been the case with lead in England.
In the case of a mine in which silver is thus found, in combination with a metal inferior in separate value, unfortunate may be the condition of the proprietor, who has expended a capital in the extraction of it. Sooner or later enters the agent of the sovereign and says—this mine is a sacred one: sacrilegious the subject-hands that have employed themselves in the working of it: there must be no more such sacrilege.
So much for the surface of the earth and its interior, as an illustration in detail of the ends to which capital might be employed, were the system of securities established. Of undertakings for private or public benefit, requiring the permanent employment of capital, the following may be held as a general enumeration:
1. Manufactories of articles suitable to the local wants and means of supply.
2. Means of communication, such as roads, canals, bridges, improvements in the facilities for communication afforded by rivers; source of profit, money in the shape of tolls.
3. Reservoirs for the preservation of a supply of water in extraordinary dry seasons: for example, by wells dug in apt places, and water raised from them by horse-power or a steam-engine.
4. Embankment of rivers in their course for the purpose of irrigation, or for giving motion to mills.
5. Erection of a prison on the Panopticon plan for deriving profit from the abour of prisoners.
6. Digging of mines: extraction of useful mineral substances of various kinds from the bowels of the earth, when, by the use of boring machines, as directed by geological observation, their residence has been discovered. To conduct it with advantage, an enterprise of this sort commonly requires large advances in the shape of capital.
But to this end all claim to the absolute ownership of mines, on the part of the sovereign, in grounds belonging to individuals, must be solemnly given up. By such surrender he might profit to an indefinite amount, and could not lose anything; for the effect of such claim is neither more nor less than that of an interdiction, prohibiting the working of any such mines. It would remain for consideration whether any profit could be derived to the sovereign from a tax upon the produce of such mines.
In conclusion, supposing the system established, the government, and, above all, the sovereign at the head of it, would be illustrious among all, and even above all the sovereigns of Europe and the other parts of the Christian world. By the supposition, the change is not only on his part altogether voluntary, but it is his own work. By the supposition, this being the truth, there will be no difficulty in making it known that it is so. All the circumstances by which it is transacted will be conveyed to England, and blazoned forth in the English newspapers: from which they will find their way into the Anglo-American United States, and, in the meantime, to the liberal French newspapers, if, with any tolerable hope of safety, they can be published there.
Coupled with this intelligence, would be that of the encouragement given to the useful arts and sciences of modern European countries, by the translations made of writers of that class into Arabic, and the lectures read in the Tripolitan Universities.
These circumstances, taken together, would constitute as it were, a pump for capital: a pump by the force of which, capital would be drawn into Tripoli from all countries in which it overflows.
By curiosity, and the desire to see the country in which such moral wonders had been wrought, travellers from other countries, but from England in greater numbers than from all other countries put together, would be drawn to Tripoli; and as none of them would go thither without money in their pockets, here may be seen another channel through which capital would flow into it: and with it those comforts which are habitually enjoyed in other countries, and are yet unknown in Tripoli.
end of volume viii.
[(b.)] [Stages.] In regard to the several stages, into which the proposed course is proposed to be divided, all that, in the present state of the undertaking, can be done, is—to give intimation of the choice, which, among the several possible subjects of instruction, has been made, and of the order in which it is proposed they shall succeed to one another. At this juncture, any such attempt as that of fixing the quantity of time, absolute and comparative, respectively to be allotted to them, would evidently be premature.
[* ]Vide Appendices III. and IV.
[* ] Note, that in so far as all future evil is out of the question, the loss to sufferers being supposed the same, the evil produced by depredation is less than that produced by barren vexation, by destruction and otherwise; for in the case of depredation, though the enjoyment produced is less than the suffering, still to set against the suffering, there is the enjoyment.
But, when the future is taken into the account, the future, pregnant with the danger and the alarm—then it is that the evil from depredation may be seen to be greater than that from barren vexation: the inducement that excites men to the productive injury, being so much more extensive and constant, as well as commonly stronger in its operation, than that which excites them to the barren one.
[† ] The analysis which immediately follows, bears, in the original MSS., a date two months apart from the more general analysis given above; and perhaps the author would not himself have promulgated them in juxtaposition, without some explanatory remarks as to the different arrangement adopted in the two cases. It will be remarked that neither of them follows the exact order adopted in giving the securities in detail, but they both go over the same ground.—Ed.
[‡ ] Against vexation in these three shapes provision is of course already made in the existing system of law, whatever it may be—and the vexatious act being made punishable, secrecy is of course an accompaniment endeavoured to be given to it. But when hands by which the injury is inflicted are of the number of those which are armed with power, that power extends to the giving to the whole operation a degree of secrecy beyond any which could be given to it by ordinary and powerless hands: and for the maintenance of secrecy, even where power is irresistible, the avoidance of odium affords commonly an adequate inducement. By the arrangements proposed under these heads, secrecy will be found combated by instruments of elucidation of which none are everywhere in use, and of which some are not anywhere as yet in use.
[§ ] If exercised by the sovereign himself, the nature of the case admits not of a remedy. But, if exercised by this or that functionary subordinate to him, a not impossible event is that this or that other functionary equally subordinate to him,—for example, a judicial functionary or set of functionaries, shall hold themselves warranted—on the supposition, that being unjust, the sovereign has no participation in it,—in declaring this supposition, and proceeding upon it accordingly: that is to say, unless and until compelled by irresistable means to know, that the sovereign himself is the person, or of the number of the persons, from whose will the vexation has emanated.
[∥ ] This article is necessary to complete the description of depredations; the subject-matter of wealth is composed either of things or of the services performed by persons.
[¶ ] To this head belong all measures of suppression or restraint, applied to public discussion, or to the use of the pen or the press, on the subject of political measures and men, or to communication on those subjects in the way of epistolary correspondence or personal intercourse by persons in any numbers.
[* ] To this head belong all measures of suppression or restraint applied to the practice of openly carrying arms offensive and defensive: or that of being trained in the use of them in conjunction with other men in any numbers.
Say openly: for of arms secretly worn, the only purpose is individual assassination. It is not by daggers that the defensive force of a people against misrule can be augmented. For defence against malefactors no use can there be in any such concealment. As to the case of a whole people, kept in an oppressed state by an irresistible military force foreign or domestic, it is here noticed, but this is not a place for the consideration of it.
[† ] To this head belongs what is sometimes designated by the inadequate expression of seizure of papers. This mode of oppression has for its subject such letters, memorandums, and other visible and tangible instruments of discourse, by the communication of which, to persons other than those for whose eyes they were intended, vexation in almost any shape and to any amount, in any one of an infinitely diversifiable variety of ways, is liable to be produced. So far as the only effect as well as object of the invasion is the furnishing evidence of a misdeed committed or meditated, the vexation, whatsoever might be the shape or the amount of it, could not with propriety be spoken of, by the appellation of oppression: nor yet where, as between individual and individual, of the portion of visibly expressed discourse thus dealt with, no other use is made, other than the causing it to be subjected to inspection for a judicial purpose, in the character or for the discovery of evidence: of evidence tending to give validity or invalidity to this or that claim of right.
But by vexation, committed in this shape by public functionaries without control, oppression to an indefinite amount is capable of being produced. On the occasion or on pretence of a search for evidence of a misdeed in this or that shape committed or not committed, writings of all sorts and in any numbers might be destroyed, damaged, carried off, or inspected: inspected and the contents divulgated. Commercial credit might be ruined, enmities excited, peace and reputation of families destroyed, and so forth. On pretence of search for evidence, alleged to be in the possession of the person in question, papers or other objects not found in his possession might by the authors of a pretended search be inserted among such as were found in it: the friendly deceit practised by Joseph upon his brethren might in this way be practised for a hostile and homicidal purpose.
[* ] Not excluded from this judicatory are persons of the female sex as such. From the exercise of a share in the constitutive power, by means of votes in the election of the possessors of the supreme operative power, they, the greater half of the species, stand as yet excluded by tyranny and prejudice. But from a share in the power of the judicatory of judicatories, not even the united force of tyranny and prejudice, ever have altogether excluded them anywhere, much less will henceforward ever exclude them.
[* ] In the case of a claim, conception not being quite so simple, it may for the purpose of the present exemplification be put aside.
[* ] For No. 4 and 5 see below, as to the points in which the unofficial is inferior to the official judicatory.
[* ] The sum realized by the stamp-duty on newspapers, for the financial year 1840, was £238,394, the duty having been reduced in 1836, from 4d. (with a discount of 25 per cent.) to Id.—Ed.
[* ] In England, when concession was made by King John, and afterwards by his son Henry the Third, copies were ordered to be deposited in certain monasteries: also public maledictions to be pronounced at certain times against all infractors. These means of publicity and impressiveness proved lamentably insufficient, as the numerous recorded infractions and renewals of these charters (such was the name given to the written instruments) abundantly demonstrate. But the means of publicity and permanence which then had place in England, were as nothing compared with those which at present have place at Tripoli: not to speak of the ulterior ones which it might be made to have. Besides that there was no printing press, the arts of reading and writing were not to the amount of a tenth or twentieth part, or more, so extensively in use.
[* ] See farther on this subject p. 571, supra.
[† ] From the memoranda and correspondence of the author in connexion with this subject, it would appear that part of his project was the education of young natives of Tripoli, in Britain; but he does not appear to have put this part of his recommendation definitively into form.—Ed.
[* ] What follows was written, as appears from the dates on the MSS., some months previously to the above considerations as to newspapers: and the circumstance that the subjects though intimately connected with each other were separately treated at different periods, will account for any want of connexion that may appear in the arrangement.—Ed.
[* ] Extortion of personal service may be considered as depredation; viz. to the amount of the profit derived from it on the one hand, and the loss or other sufferance produced by it on the other. In so far as to the individuals labour is a source of profit, forced labour is loss to an amount equal to the profit which in the time so employed by them might have been gained.
[* ] See chap. iv. Sect. 2, supra p. 585.
[* ] In bringing to view improvement in the several shapes, the object is to render it manifest, that, saving exceptions to a very inconsiderable amount, improvement cannot be made without an expenditure of capital; of capital mostly to such an amount as to require several years of successful labour for the reimbursement of it, with adequate profit correspondent to the degree of retardation and hazard.