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PART II.: SECURITIES IN FAVOUR OF INDIVIDUALS. - 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 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.
[* ] 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.