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CHAPTER II.: PUBLIC OPINION THE SOLE REMEDY—PARALLEL BETWEEN THE PUBLIC-OPINION TRIBUNAL AND THE OFFICIAL JUDICATORIES. - 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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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.
[* ] 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.