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pg 23 SECURITIES AGAINST MISRULEapg 24

pg 25PRELIMINARY EXPLANATIONS

§ 1. Object of the proposed arrangements—Security against Misrule, by the sole remedy—publicity

The here proposed system of arrangements has for its object, as the title imports, the applying, to such of the evils as are most apt to be produced by the immediate agency of the Monarch or those in authority under him, such remedies as present the least unpromising chance of obtaining the application of them at his hands.

One word—misrule—will serve for conveying a general conception of the disease: another word—publicity, for conveying the like conception of the remedy:—the only remedy (it will be seen) which, without a change in the form of the government, the nature of the disease admitts of.

Thus much for a general conception. But under both heads some explanations present themselves as necessary: necessary in the first place for rendering the ideas clear and determinate: in the next place, for shewing that it is to this one recipe, publicity, that relief, in every shape in which the nature of the disease admitts of, is referable. Some observations will follow in the view of shewing in what ways application may be made of it to most advantage: also some others, having for their object the shewing what the chance is that the remedy will be found obtainable.

Whatsoever may be the chance which the here proposed remedy affords of being productive of the desired effects, the smal[l]ness of it affords not any ground of objection to it: for under a Monarchy, such being the nature of the case as not to admitt of any other, the option is—this or none. The great difficulty is in obtaining the concessions. Should that point be accomplished, its efficacy to no inconsiderable degree need not be despaired of. True it is—abundant indeed are the instances which history affords of concessions having the same object. None in which the engagements taken by those concessions have not been grossly and continually violated. Still however there seems sufficient reason to think, that without this safeguard, weak as it was, the instances of oppression would have been still [more] numerous and afflictive. The Charters, in which the concessions were expressed, afforded a determinate denomination and standard of reference for the several grievances, a rallying point for sufferers with their complaints. If even in these shapes the paper when employed in pg 26the character of a breast plate of defence against the Monarchical sword was not altogether destitute of efficacy, still less need its efficiency be despaired of in the present case—for in none of these instances had any such care been applied to the making the most of the only possible remedy as will here be visible in the system of arrangements here proposed.

§ 2. Misrule—shapes in which it is here combated1

First as to the shapes in which the evil is capable of presenting itself.

1. Shape 1. Sufferers all determinate: the individuals all determinate and assignable. Examples: Homicide, Confinement, Banishment. In the aggregate of this suffering consists the evil of the first order: for distinction sake it may be called purely private.

2. Shape 2. Sufferers, altogether undeterminate. Examples: Waste of public money: Act of engaging in an unnecessary war. In this case the evil may be called purely public.

3. Shape 3. Immediate sufferers determinate, but the greater part of the evil composed of the sufferings of individuals altogether undeterminate. Examples: 1. Political gagging: i.e. obstructing in any way the communication between mind and mind for the melioration of the common lot on any subject of discourse: more especially on a political subject. 2. National debilitation—weakening the means of defence and security in the hands of the people against injury at whatsoever other hands, those of the rulers themselves not excepted. In this case the evil may be said to be mixt; or public through the medium of private: through the sides of one individual the public is wounded—that is to say all other individuals are: as well those who do not feel the wound as those who do.

Under the general name of vexation may be included every political evil, in so far as the consideration of it is confined to the sufferings of determinate and assignable individuals: namely the individual persons who are the immediate sufferers by the individual mischievous act in question.

Oppression is vexation, in so far as the hand of power is considered as occupied in the production of it. Thus, if inflicted without sufficient warrant, i.e. without being necessary to the preserving the community from evil of still superior magnitude, homicide, confinement, and banishment, are, if produced by a hand not armed with legal power, acts of vexation simply: if by a hand armed with legal power—if for pg 27example by the hand of the Sovereign, acts of oppressive vexation, or in one word oppression.

In oppression by the hand of rulers, two stages are discernible, and require to be distinguished. By oppression in its first stage, the disease is produced as above. By oppression in the second and last stage, the remedy is excluded or endeavoured to be excluded.

By the same act, whereby oppression in this its last stage is exercised, oppression in the first stage may also be exercised: it is so in most instances in those several cases in which the evil has been spoken of as being of a mixt, or public and a private, nature: the afflicting hand wounding the public through the sides of individuals. Examples: 1. Political gagging; 2. National debilitation, as above.

In so far as the suffering, by loss or otherwise, to the party vexed and oppressed is attended with profit to the oppressor or other vexer, or any one whom it is his design thereby to favour, oppression has the effect of depredation.a

§ 3. Sole remedy, publicity; sole means of applying the protective power of the Public Opinion Tribunal. Publicity and notification—their mutual relations1

So much for the disease. Now as to the remedy. A single word, publicity, has been employed for the designation of it. For this same purpose another expression—Public Opinion—might have been employed: employed and without impropriety, though, with reference pg 28to the other expression, not synonymous nor any thing like it. Of what nature the relation between them is—will be seen presently.

Employing on this occasion the denomination Public Opinion, it will be necessary to go further and add the word Tribunal: the Tribunal of Public Opinion we must say—or for shortness the Public Opinion Tribunal. True it is that thus to speak is in some sort to use the language of fiction. But the fiction is not of the sort of those of which deception is the object and the effect. It will be seen to be the work of necessity, interwoven with the texture of all language, and not having deception either for its object or its effect. The groundwork it will be seen is composed of truth: from fiction all that it borrows is a sort of covering necessary to fit it for use.

If we consider the whole number of the members of the political community in question as constituting the entire body, the functionaries of government, all ranks together, will be the agents of that body, placed by the suffrages of the rest under a representative democracy, placed by birth or narrow election under every other form of government: and in both cases, all those by whom any cognizance is taken of public affairs may be considered as constituting the Tribunal of Public Opinion, a sort of Committee of the whole body formed in the manner of a Committee of the English House of Commons in the case where, at the institution of the Committee, it is ordered that every Member of the House who chooses to attend, attends accordingly and has a voice.

Only in so far as these individuals the whole aggregate of them are considered as constituting but one body—and that body acting with the formalities of a Judge—is there any thing of fiction in the representation here made: for as to effects—effects produced by the action of this body, or at any rate by the anticipation of it, nothing can be more real or more perfectly out of dispute.

Regarding then this body in the character of a workman, operating on the minds of public functionaries, publicity may be stated as the characteristic and indispensable instrument of this workman: an instrument no less indispensable and characteristic than the turning-lathe is of the sort of workman called a turner. It is by publicity that the Public Opinion Tribunal does whatsoever it does: any further than employment is given to his instrument, the workman can not do any thing.

Intimately and inseparably connected with the import of the word pg 29publicity are the words notify—to notify, notification. By the word notification action in a certain shape and the effect or result of that same act are indiscriminately designated. Such is the poverty and thus such the confusedness of language, at any rate of our principal Rome-sprung languages. Publicity has for its synonym notification in the case where it is employed to designate the effect. Take any matter or supposed matter of fact at pleasure, the degree of its publicity is as the number of the persons to whom notification of it has been made, into whose minds the knowledge of it has found entrance: the knowledge, or at any rate the conception in question whatsoever it may be.

The general nature of the remedy being thus explained, further matter will be brought to view under the heads following.1

§ 4. Subjects of Notification—their mutual relations. 1. Ordinances. 2. Transgressions. 3. Suffrages

Subjects of or for publicity and thence for notification:

1. Ordinances: 2. Transgressions, or say violations of those same ordinances: 3. Suffrages: opinions formed by the several Members of the Public Opinion Tribunal, on the subject of those same transgressions as compared with those same ordinances.

Transgression supposes something transgressed; in the instance here in question, that something is something having or designed to have the authority of law.

1. In the first place come the several ordinances, of which misrule, in each of the several shapes against which a security is by this system endeavoured to be provided, will have been a transgression: ordinances: or supposed rules having the effect of ordinances: ordinances inhibitive of vexation and oppression in all its several shapes. If at the time of giving establishment to security in these several shapes, ordinances adapted to the purpose are already in existence, it is well: if not, fresh ordinances for the purpose must on this occasion be provided.

2. In the next place come whatsoever instances of transgression happen to take place. If none, so much the better: the ordinances have in the compleatest manner possible fulfilled their purpose. If within the time in question any transgressions have had place, the number of them being given, the nearer the number by which notification and publicity have been received to the total of the number that have had place, the better.

pg 303. Suffrages. Understand by suffrages, the opinions produced in the minds of the several Members of this same tribunal by the cognizance of the several transgressions. The degree of publicity, as applied to persons taking cognizance of the several transgressions, will be as the number of these suffrages.

Note that in the number of the members of this same tribunal is included the number of all those on whose obedience [depends]1 as well the effect of the several general ordinances by which vexation is prohibited, as also of any particular acts or particular ordinances in consequence of which any acts of vexation and oppression are exercised in violation and transgression of those same general and salutary ordinances. Power on the one part is constituted by and is greater or less in proportion to obedience on the other. It is in the direct ratio of the obedience, and in the inverse ratio of resistance. But the greater the number of the members of the whole community to whom the existence of an act of oppression has been made known, the greater is the number of those by whom, on the occasion of an endeavour to exercise other acts of a similar nature, supposing the past act notified to them, not only may obedience be withholden, but resistance opposed.

Rule. Abstraction made of the several degrees of influence possessed—influence of understanding on understanding and influence of will on will included, the actual power of the Public Opinion Tribunal will be as the number of the suffrages actually declared in the minds of the several members: its power, as supposed by other persons, and in particular the head functionary and other functionaries to whose transgressions it is the object of this Security to oppose a check, will be as the number of the suffrages which they expect to find formed.

This influence with its several possible degrees it may seem may be laid out of the account altogether, for of the persons on whom by possibility it is capable of being exercised, the only persons here in question are the members of the political community in question—considered in their character of members of the Public Opinion Tribunal belonging to it. Thus accordingly, when considered in a general point of view, for the most part does the matter stand. One point however there remains in relation to which the sort of influence in question is capable of having a distinct operation. The suffrages suppose of all the members of this tribunal take the same direction: they being all of them pronounced in condemnation of the oppressive act in pg 31question. Thus far, as between suffrage and suffrage, it makes no difference which was the result of a self-formed opinion, which of them the result of an opinion derived from the influence exercised on the mind in question by that of some other member, exercised whether on will or on understanding, or on both together. But, though, by the supposition, the direction in which the suffrages act is the same, and the ultimate number of them, by what cause so ever produced, is the number in question, yet the degrees of energy with which, upon occasion, they may respectively be disposed to act in conformity to those same suffrages may be to any amount different; and in each case this degree of energy may be greater or less according to the nature and energy of the influence received.

Note that to simplify the conception, the direction taken by the suffrages in question is on this occasion supposed to be, in the instance of every one of them, the same. But as by the supposition the subject of these suffrages is in every instance some act of oppression, exercised by the Sovereign on individuals, there is nothing in this supposition that seems likely to be in any very considerable degree wide of the truth.1

§ 5. [I.]2 Operations subservient to publicity: viz. in relation to Ordinances. 1. Scription. 2. Sanctionment. 3. Registration

So much for the several subject-matters to which the act of notification may have need to apply itself. Now as to the several successive operations the performance of which may be necessary to the production of the effect.

These preparatory operations will be in a considerable proportion varied according to the nature of the subject-matter: according as it comes under one or another of the three above-mentioned denominations: namely ordinances, transgressions, or suffrages.

I. First as to Ordinances.

First let the appropriate and requisite ordinances be supposed already in existence, and possessed of binding force.

If, so far as regards the purpose here in question, they are already present to every mind capable of taking cognizance of the matter, it is well. Unfortunately there is not any where on the surface of the globe any country in which this sort of omnipresence or any thing like it has place: not even in that country, the Anglo-American United States, in pg 32which the productions of the printing press are most extensively diffused: much less in Northern Africa, where even the instrument itself has never yet been in use.

Necessary to the existence of an Ordinance in a binding state are three distinguishable operations: namely scription, sanctionment and registration.

  1. 1. Scription. By this understand the act of composing and committing to writing the matter in question.

  2. 2. Sanctionment. By this understand the investing it with binding force, by some person or persons generally recognized as being possessed of the correspondent power.

  3. 3. Registration, or say recordation. By this understand the depositing and keeping in some appropriate receptacle, the individual instrument to which the act of sanctionment has been applied. But for this, the correctness and even genuineness of all copies, written or printed, might stand exposed to doubt and dispute.

Minute and useless will the distinctions thus brought to view be apt at first sight to appear. Upon a second view, nothing it will be seen can be farther from being so. No where will that country be seen, in which, throughout a vast and indeterminate portion of the field of action and legislation, an operation so essential as sanctionment will not be seen wanting to that matter to which is given nevertheless the name and binding force of law.

§ 6. Continuation. How, in Tripoli and elsewhere, instead of regularly sanctioned Ordinances, other matter is referred to for the purpose of judicature

Thus far, Ordinances, appropriate and adequate to the exigency, have been supposed to be already in existence. If so it be well. But suppose the state of things to be in the contrary case? what is then to be done?

Case 1. In relation to the matter in question, no Ordinance of the above description in existence. But on the occasion of judicial decisions, the standard of reference composed of anterior decisions, or inferences deduced from them.

In the European Governments, with the exception of the small extent to which a general Codification has had place, such is the state of the rule of action, under the dominion of what is called Common Law or unwritten law. On most parts of the field of law a quantity of matter has been written—written by men not invested nor so much as pretending to be invested with legislative authority: and out of this huge and shapeless mass of writing the Judge on each occasion makes pg 33choice of such portions as appear to him best adapted to his purpose: to the purpose which is most agreable to him, whatever it may happen to be. In this state of things, singularly unfortunate, if not unskilful, must that Judge be who, out of so rich a treasury, fails on any occasion to find that which is most agreable to his wishes whatsoever they may happen to be: to his wishes, guided as they can not but be by what at the moment he looks upon as being his interest.

In the countries in question, if I understand the matter right, none of those memorials have been collected, which in England over so large a portion of the field of thought and action stand [in] the place of law. I mean that sort of matter which is composed of statements of cases by which judicial decision has been called for—the particular decision pronounced in each case, and the general positions which have been brought forward by the Judge in support and justification of his particular decision, or such general positions as in the way of inference have been deduced from it by mere volunteer dissertators not invested with any such authority as that of a Judge.

Case 2. The standard referred to injudicial decisions, composed—of inferences drawn not from former decisions, but from an original standard of antient date.

In the countries in question the standard of reference is it seems of this second sort. There stands the Coran, the work of Mahomet, the universally acknowledged standard of opinion and practice in all matters of religion as well as law. But for a great portion of those particular cases [to] which the occurrences of life are continually giving birth, in this book the matter, being for the most part of a nature extremely general, is not susceptible of an application particular enough to serve as an adequately determinate guide. Influenced by this observation, different persons without concert with each other have at various times set themselves to work to fill up the vacuities, all of them agreeing in the homage paid to the general positions discoverable in the sacred text, but differing from one another in no inconsiderable degree in respect of the inferences drawn from them—the particular positions of which, as being included within them, application has been made. With reference to the sacred text, these works of inferior authority stand in the relation of Commentaries.

Throughout the dominion of the Coran, four of these Commentaries have obtained the preeminence over all the others.1 Such is the degree of that preeminence as to have given rise as it were to two classes of Commentaries: Commentaries of the first order and Commentaries of pg 34the second order—those of the second order being not exclusively at least Commentaries on the sacred text, but Commentaries upon those of the first order: Commentaries on Commentaries. Commentators of the first order, four, as above: Commentaries of the second order, not so few as seven hundred.

Though1 clear of confusion from that source of which indication has been given as above in the case of the European, and especially the English, Books of Reports and Treatises deduced from them, the Eastern system fails not however to labour under very obvious, and such as can not but be very grievous, imperfections.

In the first place, no one of them having in a direct way taken for its object of pursuit the greatest happiness of the greatest number, none can unless by accident have made any clearly defined provision for such arrangements of detail as are to be found deducible from it.

In the next place, in spinning out the thread of inference they have all of them taken on various occasions courses more or less different.

From all these diversities, to an extent more or less considerable, two evil consequences can not but have taken place. So indeterminate in this or that case is the bearing of some or all of these previous Commentaries upon that case, that the Judge, be his probity ever so pure, finds more or less difficulty in determining in what manner he shall make application of them to the case. The other consequence is—that amidst such a diversity, the Judge, in so far as the union of disposition and opportunity produces on his part an inclination to corruption, seldom finds any difficulty in gratifying it.2

With3 regard to aptitude of phraseology—aptitude of phraseology on the part of the rule of action, thence security and sense of security on the part of the members of the community, thus much may with confidence be asserted with reference to the most apt Codes of European law, namely that in respect of determinateness of designation as well as aptitude with relation to the only proper end of legislation, the greatest happiness of the greatest number, they are in a deplorable degree deficient. Continuing to apply the words which custom has applied on the several occasions, on each occasion the assumption they proceed upon is that of the word in question the pg 35import is adequately determinate, and scarcely perhaps in a single instance is that assumption true.

If such is the case in the instance of these Codes of law, the authors of which during the penning of [them]1 kept before them all along a determinate object of pursuit, namely the greatest happiness of somebody—the greatest happiness of the Monarch whose power was employed in giving birth to them and binding force-still more assuredly must it be the case in the instance of which the rule of action has from time to time been spun out in the way of inference from a work which, whatsoever may have been the talent employed in the writing of it, was and is of a mixt character, having something of religion in it, something of law, with here and there a passage of history, springing in the whole texture of it out of the occurrences of the day, and that day a very remote one with reference to present days, the state of society being at the same time in a great variety of particulars widely different from what it is at present: widely different, and amongst other points of difference, far less diversified.2

Be the exigency however ever so pressing—be the demand for new and precise definition of leading terms ever so urgent, every thing can not be done at once. With the stock of these terms—whatsoever may be the contents of it—with this stock of instruments, in the penning of the proposed Securities in question, must the scribe content himself, putting them to use in the best manner he is able.

In the character of a guide to Judges, in so far as their intentions are honest, the necessity of a collection of Ordinances has thus far been brought to view—of Ordinances in the form of Ordinances—of an all-comprehensive collection covering the whole field of legislation and putting an exclusion upon every standard of reference that is not in that exclusively apposite and adequate guide.

But if even to the Judge, to that functionary to whose function it belongs to decide upon the conduct of the members of the community at large—pronouncing those decisions which never can be pronounced without producing suffering in some shape or other, from the lowest to the highest degree, to a party or parties on one side or the other, how much more necessary must it not be to an individual in the situation of one who every day of his life is exposed to the danger of pg 36becoming party to a suit for want of access to a document which would enable him by anticipation to preserve himself from the sufferings which otherwise can not but await him at the hand of the Judge.

If necessary to the right termination of these afflictive processes called causes or suits at law, how much more strictly necessary are they1 not to the prevention of them? Without any such forewarning guides and timely instructive guides, a termination in some way or other these courses of suffering can not but receive: but by no other means than these sources of timely information can they be anticipated and prevented.

§ 7. Operations necessary to adequate publicity of Ordinances continued: 4. Multiplication of copies—its importance

4. Multiplication. So much as to scription, sanctionment and registration. Now as to multiplication.

In the country in question, written discourse, though not printed discourse, being in use, of whatsoever ordinances are in force as such, copies one or more can not but be in existence somewhere. In the Metropolis of the country of course. In the seat of the principal Judicatory of the country of course. In the case here in question, the first operation therefore that requires to be performed is—multiplication. For this purpose the newly invented instrument called the lithographic press seems for a first beginning preferable to the ordinary printing press: not that there is any reason why either should put an exclusion upon the other.

The advantages which at the outset it presents itself as in possession of are the following:

  1. 1. It is by much the cheaper.

  2. 2. It requires for the production of the effect, a much less numerous association of different arts and thus of different artists.

  3. 3. Being with difficulty distinguishable from ordinary manuscript, the use of it will be less alarming than that of the printing press to the artists who at present are employed in the transcription of manuscript works.

pg 37§ 8. Continuation. Necessary instrument of multiplication as applied to Ordinances, a printing press. Caution, as to the throwing Scribes out of employ

On the occasion of this as of every other mode employable for the abridgment of human labour, an effect which can never be too scrupulously attended to, and which at the same time has been almost universally turned aside from, is its effect on the interest—on the very means of subsistence—of the operative hands whose subsistence is derived from the practice of the art in its antecedent state. In various countries of Europe—in England more perhaps than in any other, prodigious is the mass of evil that has been produced by this neglect.

First branch of the evil, distress of the laboring hands whom the introduction of the new art causes to be dismissed, and thence deprives of the means of subsistence. Second branch of that same evil, suffering in the shape of pecuniary loss and other shapes, experienced by those who, thinking to profit by the new art, dismiss in a proportion more or less considerable the hands whom they were wont to occupy in the exercise of the old established one: suffering, namely that produced by the hostility of those who find themselves thus deprived of the means of subsistence—hostility exercised under the notion of its being an exercise of retributive justice.

To the one great master manufacturer, the sufferings of these his discarded servants, to how many hundred so ever they may amount, have generally speaking been of little or no importance. But to no one of all these human beings, strange as it may be in his eyes, is it a matter of no importance. To each of these discarded servants, the difference between comfortable subsistence and death or scanty subsistence from the Parish fund is in reality of much greater importance than is to the Capitalist the difference between the old established rate of profit to which he has been accustomed, and the new and encreased rate of profit to which he aspires.

The law relative to this subject being uniformly the expression of the will either [of] himself or [of] men belonging to a class still more insensible than he is to the miseries of men less fortunate than themselves, the act by which he deprives them of the whole of their subsistence is never treated on the footing of a crime or even of an offence: but on the other hand any act whereby the men who by him have each of them been deprived of the whole of their subsistence shall endeavour to retaliate by depriving him of ever so small a part of his vast opulence is treated on the footing of a crime, pg 38and deep is the turpitude imputed to those who have defiled themselves with it.

As to this depravity, whatsoever may be the amount of it, one thing is undeniable, namely that he to whose loss it is manifested, under the circumstance of neglect in question, is the author of it, and has himself to thank for it.

In his own eyes, as also in those of his superiors on whom the state of the laws depends, the heart of the man of opulence is no less full of virtue than his purse of money, To himself the difference in the article of profit is no object. But the public, the sole object of his regard, the public is enriched by it. The discarded laborers—a mean and groveling race, who care nothing about the public, experience nothing but what they deserve.

In the instance here in question, happily the evil here in question, if so it be that it requires any care for the exclusion of it, requires no such care as in the case ante-mentioned. Supposing the Securities in question granted, the copies, the production of which will be necessitated, will furnish of themselves a fresh demand, for which no adequate means of supply can at the time when the demand commences be in existence.

Meantime whatsoever be the improved mode of multiplication employed—lithographic press or ordinary press—care should be taken that the employment given to it should not be such as to throw out of employment any of the existing scribes, except in so far as other employment not less advantageous is found for them. Measures should at the same time be taken to prevent the influx of fresh hands into their business. If notification of the stoppage of the demand for their art be not sufficient, even prohibition might be employed: prohibition absolute, or unless by licence.

§ 9. [Operations necessary to adequate publicity of Ordinances continued:] 5. Distribution

Next to the operation of multiplying the copies of these literary instruments of national security against misrule comes the exposure of the copies to unlimited dissemination. Next to multiplication comes distribution. Distribution is either gratuitous, or for a price, for example in the way of public sale.

Of copies to a limited amount the distribution might, it is true, be gratuitous. But on such terms the demand might be indefinite: for to no man, able or not able to read the characters on it, would a quantity of paper be without its use. Exposure to sale presents itself therefore pg 39as an indispensible mode. But the price demanded should not at any rate be to any the least amount greater than what will suffice to cover the expence. If it were insufficient, it might be so much the better; on the side of economy all that is essential is that it be not so small, as that for purposes other than that of reading it should be worth a man's while to purchase it.

Obvious and unanswerable is the reason why, so it does but prevent mere waste application to purposes other than those intended, the price can not be too small. The efficiency—the usefulness—of these securities will be as the number of the minds by which cognizance of them is taken. On this ultimate security depends the efficiency of whatever else can be designated by that name. For the benefit of this security, no expence that can be incurred by [the distribution of] a number of copies equal to that of the individuals able to read them can be too great.

§ 10. [Operations necessary to adequate publicity of Ordinances continued:] 6. Public recitation

As far as it goes, compared with simple Exposure to sale, this operation presents several advantages.

  1. 1. By this means, conception of the master document in question may be conveyed to minds in vast multitudes to which by the other, in a word by any other, means it would not be possible to convey it.

  2. 2. It is not necessarily attended with any expence.

  3. 3. It is susceptible of any additaments applied to it in the view of rendering it the more impressive: of these presently.

On the other hand the signs by means of which the conception is conveyed or endeavoured to be conveyed to the minds in question being of the supremely fugitive and evanescent kind, their existence ceasing as soon as it has commenced, deplorably inadequate will this mode of communication necessarily be in comparison of that which operates by signs susceptible of indefinite permanency. [Not] even for the single instant in which the communication has place can the conception derived be reasonably expected to equal that which has place in the other case in any of the qualities requisite; namely either in clearness, correctness or comprehensiveness: much less at any instant separated from that first instant by any considerable interval of time.

Now as to impressiveness. This quality is capable of being raised above the ordinary level by any one of the following circumstances:

  1. 1. The rank of the person by whom the recitation is performed.

  2. pg 402. Any extraordinary degree of aptitude on his part in respect of the properties desirable on the part of a public reader or speaker: for example clearness of pronunciation, strength and agreableness of voice, propriety of intonation with reference to the sense.

  3. 3. The place at which the recitation is made.

  4. 4. Any circumstance of ceremony with which it may be thought advisable to accompany the operation.

The discourse in question being drawn up and agreed on, the Sovereign, for example, in the principal Mosque, stationed in an elevated station, in which he may be seen by the whole Assembly, takes the paper in hand, and reads it in a voice suited to his convenience. When read he touches it with his seal, with the seal by which his acts as Sovereign are in use to be authenticated, he touches it with his seal, and that instant a signal being given, notification is conveyed to the greatest distance by the firing of artillery and musquetry and the sounding of drams, and trumpets, or whatever loud instruments of music are in use.

After this, for the more effectual information of the surrounding audience, the best reader in all points taken together as above that can be found reads the paper over again, and the notifying sounds as above are repeated. The ceremony might be preceded and followed by a procession from the Palace of the Sovereign to the Mosque and back again.

In those Monarchies of Europe which are called Constitutional—in those and in those which have elsewhere sprang from them—it has been customary for the Monarch to open and close the Legislative Assembly by a speech from the throne—a speech of which though not so much as supposed to have been the penner, he is himself the recitator. But of all these several speeches one general character may be given. For the most part they contain nothing but vague generalities: they contain no enactments: they contain no specific engagements. They are not intended to give expression [to] any specific engagements: indeed the manifest and scarcely dissembled object is to avoid binding the royal speaker to any thing, to keep his hands as free as possible. If on any occasion they amount to any thing, it is when the object of them is [to] notify, though in the most general terms, the assent of the Monarch to a new Constitutional Code or to any particular law to which a preeminent degree of importance is attached, or to propose in the most general terms possible a subject for deliberation and eventual enactment.

In the case of Tripoli, should the consent of the Sovereign to the proposed system of Securities be obtained, the design if I understand aright is—to endeavour to prevail upon him to recite with his own lipspg 41 not merely a form of words expressive of his assent, but the whole contents of the discourse, unless the length of it should be such as presents an unsurmountable obstacle to the physical exertion necessary.

For this purpose the example of the Sovereigns of the West, as above, might perhaps contribute more or less to the surmounting of any reluctance of which the novelty of the proposal may have been productive in his mind.

§ 11. II. Second subject-matter of notificative Operations—Transgressions, viz. of men in power. Difficulties as to the giving publicity to them—how obviated

II. Second class of matters to which publicity requires to be given, transgressions.

By transgressions understand, as above, instances in which, the tutelary ordinances having been established as above, acts of oppression as above characterized happen notwithstanding to have place.

Unfortunately in this second instance, the placing the matter in question in broad day-light is not altogether so safe nor therefore so easy as in the former instance.

To an operation of this description the nature of the case will be seen opposing three obvious opponents: namely fear, indolence and poverty. It remains for inquiry what can be done towards the surmounting of these several obstacles.

Obstacle 1, fear. To observe where this passion attaches, we have but to observe the parties whose conjunct labours are necessary to the production of this result.

These are—1. the person or persons from whom in each instance the information should come: 2. the person or persons [by]1 whom it should be received. Furnisher of the information any person may be: a receiver of it is as such a sort of public functionary: understand if so it be that he does what is requisite to the giving publicity to it, as he must do sooner or later, or he might as well not receive it.

In comparison of that which is opposed by fear, the force of all other obstacles put together is inconsiderable.

Fear is the expectation of eventual evil—evil at the hands of all those to whom publicity in relation to the event in question may come to be disagreable. Against all such fear the most effectual of all securities is concealment: concealment of every person by whom anypg 42thing has been contributed to the publicity of the obnoxious state of things.

Known it is necessary they should be—known to the functionary by whom the information is received or extracted, were it only for the sake of eventual responsibility in case of disturbance given to the peace of the community, or of individuals at least, by false accounts. To one functionary or perhaps one set of functionaries it is necessary that for this purpose every person contributing to the furnishing of the information should be adequately known: known to the purpose of being eventually forthcoming to the purpose of being subjected to punishment in case of mendacity or unjustifiable temerity. But to no other person is it necessary that he should be known.

Next come the several persons by whom any part is borne towards the giving permanence and appropriate publicity to the information when received. At one stage or other some one person at least there must be—naturally persons more than one, whose agency in the business can not be kept concealed: concealed that is to say from those from whose power vengeance will naturally be to be apprehended. But when once any one person is known as having borne a part in it, the greater the number of the persons thus known to have done so, the better: the greater their number, the higher their situation, meaning their official situation—and the more dispersed their several situations, meaning their local situations: for the higher their official situations and the greater the number of the persons occupying those several situations, the more dangerous will it be for the oppressor to endeavour to extend to them his oppressing hand: the higher and more numerous, the more dangerous: and the more dispersed, the more difficult.

Suppose for example by one such functionary or set of functionaries information of an act of oppression received and committed to writing: if their situation is that of a set of functionaries constituting a Judicatory of the higher order, then suppose a copy sent to every Judicatory in the dominion, and by the joint authority of them all made public at one and the same time: made public, by whatsoever means of publicity happen to be at their command. Here the security against vengeance from the oppressor is at its maximum: unless it should be deemed advisable that from this branch of the authority of the state communication be also made to the military.1

pg 43[Obstacle 2, indolence.] A case may be supposed, in which whether fear have place or no, indolence may oppose a bar more or less powerful to communication. Suppose the oppressed party alive and in condition to act, indolence is not in his instance very likely to have place: for affording the requisite excitement, the desire of compensation and vengeance will generally speaking be sufficient. But to Mm, even though living, it may happen that the injury is not for some time known: and in the case in which the oppression—the injury—is at its maximum, this is the case where adequate excitement is most apt to be wanting: this is the case in which by the oppressive act the life of the victim has been made a sacrifice. In this case whether any connection of his disposed to come forward and seek redress be in existence will be matter of accident. In one case, and that not a very uncommon one, the non-existence of any such person will be an occurrence altogether natural. A dead body, say at the dawn of day, the dead body of a man, is found lying in a high road or some other such public place, and for some time nobody knowing whose it is, by no connection of his is the catastrophe known or suspected.

In a case of this sort the object is to obtain information from the person to whose senses the spectacle has happened to present itself in the first instance. In this, for surmounting the resisting force of indolence, three active forces present themselves—appeal to social affection by a standing authoritative and appropriate discourse, punishment in the case of non-performance, reward in the case of performance, of this public service. Of these instruments, whether one or more or all may with most propriety be employed will depend upon circumstances: circumstances too particular to lay claim to a place here.

Obstacle 3, poverty: understand relative poverty—inability to defray the expence, whatsoever it may be. Of the operations necessarily preparatory to the ultimate publication above brought to view, an indefinite number may, any or all of them, be unavoidably attended with an indefinite amount of expence. 1. Collecting from places in indefinite number, each of them indefinitely distant, persons capable pg 44of serving in the character of reporting, or say deposing, witnesses. 2. Committing to writing the result of their respective depositions. 3. Transmitting from judicatory to judicatory, from office to office, copies of the written instrument to which the statement of the case was first consigned.

That provision might in some way or other be made for them, the case required that these several sources of expence should be brought to view. In what particular way such provision may most conveniently [be] made will depend upon local circumstances, such as lie not within the cognizance of him by whom these particulars are offered to view.

Note here, that as well upon those who are likely to be most willing as upon those who are likely to be most unwilling, should the tone of whatever ordinances are issued for promoting publication be as forcibly imperative as possible. The more irresistible in appearance the coercive process, the greater will be the security given to him in whose breast any desire to cooperate towards the beneficial effect in question has place: against the wrath of the offended and denounced oppressor he has coercion to plead [for] his excuse.

§ 12. Continuation. Notificative operations applicable to such transgressions1

§ 13. III. Third subject-matter of notificative operations, Suffrages: viz. of the members of the community considered as members of the Public Opinion Tribunal. Operations applicable to them: 1. Extraction.2. Registration. 3. Multiplication. 4. Transmission and Diffusion or Circulation. Sole adequate instrument, a Newspaper

III. Suffrages.

To the subject-matter thus denominated, of the abovementioned operations those which apply will be seen to be the following: viz. 1. Extraction. 2. Registration. 3. Multiplication. 4. Transmission, or say Diffusion.

For all these several operations, one and the same article presents itself as the effectual and the only effectual instrument. This instrument is no other than a Newspaper: multitude of instruments of pg 45the same sort employed by so many different sets of hands, and multitude of copies of each, as great as possible.

In this instrument may be seen not only an appropriate organ of the Public Opinion Tribunal, but the only constantly acting visible one.

In this the same Tribunal, it is by the Newspaper Editor that in each case the motion in which the decision originates is made: and thus much of the matter is no fiction but the exact truth. Thereupon come the suffrages—suffrages given by those members of the community, being at the same time readers of the Newspaper or in converse with those that are, to whom it happens to take cognizance of the matter. These being from the nature of the business incapable of being collected, the number of them must in each case be left to inference and conjecture. Mean time one thing requires to be remarked, namely that in the instance of each person it is by the real opinion and the real and inward affection—not the opinion and affection declared and avowed, that the salutary effect, the check applied to misrule, is produced: for it is by opinion and affection really entertained, and not by the opinion and affection professed to be entertained by a man, that his action in the shape in question is produced.

Newspapers suppose two: taking different sides of the question in each case: one suppose the side of the suffering people; the other the side of an oppressing Sovereign and his misrule: the case is rendered more complicated; but [not] the nature of it. Motions the tenor of them in every instance visible and permanent: outward suffrages, expressed or not expressed, i.e. with or without tenor—but in both cases, invisible and evanescent. Of these suffrages, some are on the side of one of the motions, others on that of the other.

Greater is the efficiency of this one sort of written instrument than that of all other written instruments put together. On this or that question, pamphlets and books—works small and great—may be written in any number, each of them of any bulk in use. But by no one of them is any regular cognizance taken of the several occurrences as they take place: for by any publication suppose any such regularity and constancy of attention kept up, it becomes the very thing here in question—a Newspaper.

In a Representative Government, at any rate in a Representative Democracy, with the exception of the function of the principal Minister, greater is the importance [of] the function of this unofficial functionary than of any official one: more important, that is to say particularly to the great purpose here in question—that of making application of the power of the Public Opinion Tribunal in by far the most beneficial and the highest character of a check upon misrule. By the Prime Minister impulse is given to the machinery of the politicalpg 46sanction: by the Editor of the prime popular Newspaper, to that of the social sanction. Of this superiority the causes are: 1. the greater the number of the suffrages which, on each occasion, [take for their ground] the motions made by this representative of the people,1 the motions made by this unofficial compared with those made by any official representative, but 2. more particularly the constancy and continuity of action which has place in this case—sources of influence in respect of which no official representative, limited as his motions and discourses are to particular and scattered seasons and scattered points of time, can hold comparison.

§ 14. Extent of circulation—in the case of a Newspaper, circumstances on which it depends:—1. Constancy. 2. Frequency. 3. Variety. 4. Cheapness. 5. Impartiality and candour. 6. Moderation

The aptitude of the Newspaper in question as measured by the greatest happiness of the greatest number being given, its usefulness will be as the extent to which the diffusion of it has place: in other words as the number of the minds to which it finds its way.

The circumstances on which the degree of this extent depends, in particular at the outset of the sort of institution in question, are: 1. the constancy, 2. the frequency, of its publication: 3. its mixture with matters of a nature more universally interesting: 4. its cheapness—the smallness of the price: 5. the impartiality of its procedure in respect of the admission or rejection of articles: 6. the moderation of its language: i.e. its purity from expressions of vague and ungrounded vituperation and laudation of men and measures.2

Of these several qualities the three first are at once the most essential, and the most easy to secure to it, as being more compleatly independent of the mental qualities, moral and intellectual, of individuals.

1. As to constancy. This quality is of all others the easiest to secure. The interest created and kept up by it can not but be in the closest degree dependent upon the assurance with which on the occasion of each paper a reader looks forward to a regular succession of the like entertainment provided by the same hand. So invariably is this property possessed by this species of discourse wherever it haspg 47place, that the absence of it, not being presented by experience, is not easily presented to view by imagination.

2. Next in the order of importance comes the article of frequency. The number of readers being given, the greater the frequency of its appearance, the greater the degree of diffusion: nor, in the instance of the aliment thus administered to the mind, is the appetite slackened by the frequency of its application, as in the case of the aliment administered to the bodily frame:1 on the contrary it is rather kept alive and invigorated: the meal of each day operating as an excitement to look out for that of the next day following.

3. Variety. Admixture of this sort with matters of other sorts the most [general]2 and this in the greatest variety possible. What gives this property an essential claim to notice is—1. that besides the degree in which the degree of diffusion depends upon it, the degree of frequency with which it can appear is to such a degree dependent on it, and 2. that it is so little dependent upon the talent employed in the conducting of it.

Suppose for example six sorts of matter each of them interesting to one class of readers, no one sort interesting to classes more than one: by this means you have six times as many readers and regular purchasers as if there were no more sorts of matter in it than one. Each class stands assured of having something in which he takes an interest: as it is on no other terms that he can get any thing, no one of them is debarred from the purchase of his own sixth by the consideration that more than that sixth is not obtainable.

Where this variety of matter is kept up, in respect of attractiveness no imaginable literary composition can by possibility enter into competition with them, nor in particular with reference to the uses here in question. From the physical association, the contiguity of the material and visible signs, an association is insensibly formed between the ideas of which they are respectively the representatives. Taking up the Newspaper, each person is upon the look-out for the matter of that sort in which he takes a more particular interest. But while he is upon the look-out for that, matter of all other sorts is continually offering itself to his eyes. Little by little, the strangeness and repulsiveness of each wears away, each in some degree or other becomes more and more familiar to him: and even supposing that matters in which he takes no interest at all are regularly passed over without a glance, still of those in which he takes some interest, the interest is in this way, little by little, encreased.

pg 48In what abundance, by the mere circumstance of their being among the contents of his newspaper, a man is led to the reading of articles for which he would not ever have looked in any publication exclusively appropriated to the reception of them, is a circumstance which can scarcely have escaped any person's experience.1

5. Impartiality—its uses. Wheresoever Newspapers have place, so will parties: and wherever there are parties, all minor divisions naturally coalesce under one all-comprehensive division, the assailants and the supporters of the party which has the power of the country in its hands. If there be any tolerable degree of freedom, a newspaper can scarcely have place for any length of time but rival newspaper[s], one or more, will start up likewise. Be the number of newspapers ever so great or ever so small, great would be the advantage in respect of extent of custom, if the Editor could prevail upon himself to keep up an impartial course between the two parties: to give equal admission to attacks and to defences. Obvious altogether is the advantage which the course thus prescribed by justice would secure to him: readers of all parties would be invited—no reader of any party would be repelled. Number of readers in each party suppose equal, on this impartial plan the number would be the double of that which it is on the ordinary partial plan.

But for securing to the instrument of instruction this at once most respectable and most difficult endowment, and this without prejudice to the currency of it, what would be the most eligible course? Not to omitt controversial matter on both sides, but to admitt it on both sides: by the omission of this stimulating matter the publication would be rendered [insipid]:2 by the reciprocal and double insertion, it will be rendered doubly excitative and attractive.

On the part of a Newspaper Editor, nothing is more easy than to profess impartiality; few things more difficult [than] to maintain it. But if in the highest degree utility depends upon impartiality, upon actual impartiality, in a not much inferior degree does it depend upon the reputation of impartiality—upon the proportion between the number of those of its readers in whose eyes it is impartial and the number of those in [whose eyes]3 it fails in respect of a quality so highly desirable: and unhappily it may be in ever so high a degree actually impartial, and yet, and even from that very cause, be partial in the eyes of both.4

pg 49For keeping up impartiality without diminution of pugnancy, the most effectual course, supposing extent of sale sufficient, would be for the proprietor of the Newspaper to employ two Editors, one whose affections were on the one side, the other whose affections were on the opposite side: the number of days in the year allotted to each being the same. There should not however be any regular course of alternation: in particular the most obvious course, each conducting the paper every other day, should not be employed. Why not? the answer is—lest in that case there should be a correspondent alternation and division among the customers: one set buying the paper on the government day and not on the opposition day: the other on the opposition day and not on the government day. Not that the greater part of the readers would thus content themselves with no more than half of the aggregate stock of facts: but still some there would be, and antecedently to experience it would not be possible to say in what number. As to any endeavour to conceal this part of the arrangement, it would neither be practicable nor desirable. To exclude fraud and injustice and to secure harmony, some arrangements of detail would be necessary—nor does the framing such as should be adequate present to view a task of any considerable difficulty.

6. Moderation, or say Good temper.

Unhappily for securing this quality, important as it is—there is no such simple and effectual recipe as hath been shewn to have place in the case of impartiality.

Of moderation the simplest and clearest description, as far as it goes, that can be given is—the avoiding to employ for the giving expression to disapprobation, whether of men or modes of action, any words or phrases of vague and violent vituperation that express aversion and displeasure, without any precise[?] designation of the cause of it.

Of every violation of the line of moderation, various and serious are apt to be the evil consequences:

  1. 1. By the disgust which it can not but provoke, it tends to repel readers in a number altogether unascertainable and unlimited: and among them not only those who are decide[d]ly attached to the party whose sensibility is thus wounded, but others who are neutral, indifferent or undecided.

  2. 2. By the hostility thus manifeste[d], correspondent hostility on the opposite side can not but be provoked.

  3. pg 503. Among the consequences of such hostility, prosecutive attacks in the field of judicature will, with more or less frequency, have place.

§ 15. Plan for the conducting of a Newspaper at Tripoli—Topics under which matter may be inserted

[Sorts of articles] by which an interest more or less extensive can not fail to be excited [are]:

  1. [1.] an indication1 of things offered for purchase or hire:

  2. [2.] prices of goods of various sorts at various places:

  3. [3.] probabilities in respect of future encrease and diminution of price.

  4. [4.] In particular, descriptions of the Slaves as they arrive from time to time for sale. To attract attention, to every such advertisement might be prefixed the image of a Negro—as in the Newspapers of the United States.

    So likewise the images of other sorts of articles on sale.

  5. [5.] Accidents. At all times by occurrences of this sort more or less of interest can scarcely fail to be excited in most breasts. The greater the interest taken, the greater the encouragement and assistance afforded to the sympathetic affection upon an extensive scale: that affection upon the strength of which morality and felicity so essentially depend.

  6. [6.] Offences. Of matter under this head the usefulness is of prime importance with reference to the particular design here in question. Of the misdeeds of various sorts from time to time committed, few in comparison at the utmost will be those committed by the orders of the Sovereign, or which it is matter of pleasure or advantage to him to see committed. For the greater part they will be of that class by which, while no profit in any shape is produced to men in power as such, suffering is produced to individuals, and through individuals danger and alarm to the community at large—thereby to the members of government in their quality of members of the community at large. This being the case, to the publication of misdeeds in general no aversion will be excited in their minds, no objection will have place in their eyes. But the habit of inserting and reading accounts of misdeeds of all shapes being once established, mention of misdeeds committed by or agreable to men in power will find their [way]2 in along with the rest, will flow in along with the crowd, will slide in unobserved by the pg 51editor, or at least as if unobserved. And thus the way will be paved for the general admission of misdeeds by the commission of which the interest of the man in power is served, or imagined by Mm to be served.

  7. 7. Proceedings of judicatories: especially that of the Cadi in the Metropolis: being that by the proceedings of which the greatest interest will naturally be excited.

  8. 8. Deaths. Number of, in the Metropolis and other principal towns: according to a periodical enumeration, if obtainable.

    In the case of those of remarkable persons, their names given, with any particulars that can be collected of their characters.

  9. 9. Births. Those of persons of the male sex may be ascertained by the acts of circumcision: of which a register, if not actually kept, might it is supposed without much difficulty be caused to be kept by the Imans and Notaries of the several Mosques.

  10. 10. The like occurrences in the domains of the neighbouring States.

  11. 11. Parallels between the particulars indicative of the state of society and manners as between the State in question and other Mahometan States on the one part, and Christian States in general or in particular on the other: viz.

    1. 1. Points on which the advantage appears to be on the side of Mahometan States.

    2. 2. Points on which the advantage appears to be on the side of the Christian States.

      In all these cases, constant standard of reference, greatest happiness of greatest number.

  12. 12. Indication of physical inconveniences; with or without hints respecting the most eligible means of remedy.

To each class of articles as above there might be a use in prefixing the denomination of it in a separate line and larger type: as thus—

  • Accidents
  • Offences
  • Deaths

By this means, 1. a reader would be directed instantaneously to the class, whatever it were, in which it happened to him to take an interest: 2. the attention would by this perpetually-recurring excitement be kept awake: 3. by these exemplifications, the minds of readers would be familiarized with the practice and general conception of commodious arrangement.§ 16. Literary capital requisite antecedently to commencement

pg 52§ 16. Literary capital requisite antecedently to commencement

Particulars of the mass of literary capital to be provided antecedently to the commencement of the publication of a work of this sort.

Antecedently to the setting up of any such Newspapers, it would be highly advisable to have a stock more or less common of Newspapers to serve as sources by which heads of information would be brought to view, and might be selected. Of all newspapers the English are by far the most instructive: next to them, those of the Anglo-American United States. In comparison of these, the French are worth but little: the newspapers of all other nations put together, nothing at all. A public document which it is hoped will accompany this paper will serve to shew the prodigious number of articles of this sort that are every year published in England. Also the common revenue derived from them:1 always remembered that this is among the worst of all sources of revenue: more especially so would it be, in any country in which Newspapers were set up for the first time. The reason is that to an extent more or less considerable every tax operates as a prohibition: a prohibition applied to the sort of article taxed: and in the instance in question, though a bounty would not be necessary nor therefore useful, a bounty would be less mischievous than a prohibition.

Suppose a dozen boys receiving at the School in question their education,2 the most useful and thus the highest occupation which the best head among them could be put to would be that of conducting a Newspaper on his return to his own country. The Master might choose for this purpose the most promising and he might be trained to it, even at the School itself before his return.

Antecedently to the setting up as above, a stock of matter should be prepared and kept in readiness: trying various topics for the purpose of observing and learning which of them excited the strongest interest. As the publication went on various articles—advertisements in particular—would of course be sent in by those whose tastes were pleased or their interests as it seemed to them served. As this miscellaneous and more highly interesting matter by degrees came in, the pg 53less interesting matter belonging to the original stock would give way to it. It is of the utmost consequence—that on no appointed day whatsoever any failure of the appearance of the paper should take place: and by the preparatory stock in question all such failure might effectually be prevented.

§ 17. How to maximize the usefulness of this instrument of publicity and public instruction

A degree of diffusion sufficient for continuance being supposed already to be established, now then comes the question concerning the general usefulness of it, by what means it may be raised to the highest pitch.

In the first place as to the only right and proper end of social action—the greatest happiness of the greatest number—this all-comprehensive and all-important principle, though not on every occasion held up to view in its own name, should on every occasion be inwardly kept in view: and even by name the greater the number of the occasions on which, without exciting alarm and disgust, it can be brought to view, the better: for by it a standard is held up—the only legitimate standard—by which the mischievousness of misdeeds can be proved, and the degree of it measured and indicated.

Every occasion should be embraced of making application of the greatest happiness principle to the individual occurrences of the day, shewing: 1. how morality and happiness depend upon the notoriety of the rule of action referred to by the judicatories: 2. importance of the greatest degree of equality consistent with security in the case of the external instruments of felicity in all their shapes—in particular, power and the matter of wealth in all its shapes: 3. shewing how compensation to all sufferers by a misdeed in any shape ought to take place of barren punishment, because the burthen of affording compensation operates as punishment as far as it goes: [4.] how punishment should be adapted to misdoing, that by allotting to the more mischievous misdeed the more severe punishment those who can not refrain from misdoing altogether may be induced to committ the less mischievous in preference to the more mischievous, etc. etc.

pg 54§ 18. Public Opinion Tribunal—Parallel between this unofficial [and] the official Judicatories1

Sub§1. A Judicatory: its attributes

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:—a purely fictitious and verbal entity. The cause and reason of this is—that on no occasion are the several members of it seen sitting all together in their official and judicial capacity, or so much as capable of sitting and taking part in the business at the same time and in the same edifice or inclosure, or when at a distance maintaining any thing 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 sort of judicatories commonly so called—those in the instance of which no one would 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 every judicatory as such belongs a certain mass of power: namely the power necessary to the performance of those same operations.

To the will of the several members of every judicatory applies moreover a certain ruling interest: in the exercise of this power they will of course be guided by the direction in which their will is acted upon by this same ruling interest.

To the head of ruling interest belongs that of pay: for as much as the ruling interest by which they are respectively actuated depends of course in a great degree on their pay, if pay they have: [on]2 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 called functions, they may be thus enumerated:

  1. 1. Receiving claims and accusations: claims referring to what ispg 55called the civil branch, i.e. the non-penal branch, of judicature; accusations, to the penal.

  2. 2. Receiving oppositions and defences: oppositions, to claims; defences, against accusations.

  3. 3. Receiving, compelling, collecting, and storing evidence: viz. in support of the oppositions as well as claims, of defences as well as accusations.

  4. 4. Hearing or reading arguments, or say reasons, of parties or advocates or both.

  5. 5. Forming on each occasion an opinion, or say a judgment, with a correspondent will.

  6. 6. Giving expression to such judgment and will.

  7. 7. Giving execution and effect to such judgment and will.

Amongst different judicatories, it is evident, may these functions in various ways be distributed. But to the attainment of the ends of justice the exercise of them all is necessary—it is necessary that [by] some persons or other, in some way or other, they should be all performed.

Inserted in some way or other in the string of these essential operations may be other incidental ones, such as citations, applications for delay, and so forth. But it will be found that these belong, and that there are no others that do belong, to the catalogue of essential ones.

As to the word power, before it can serve to bring to view in any clear and 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:—the local: which may also be termed its territorial, topographical or geographical field: the logical, termed also the metaphysical. In the logical may moreover be distinguished: 1. the corporeal subjects comprehended in it, namely the persons and things; 2. the incorporeal subjects, namely the sorts of suits, causes, or demands of which cognizance is taken, i.e. of claims and accusations.

[2.] As to means of efficiency, they are its means of operating with effect, with relation to whatever be the end proposed, on its above-mentioned subjects, namely on persons, and on immovable portions of territory [and] moveable things: on things by means operating on body alone, namely physical force; on persons, by those same means with the addition of forces operating on mind, namely prospect of pg 56punishment—i.e. of eventual evil in any shape, and the prospect of reward, [good]1 in any shape: matter of evil, applied as punishment, matter of good, applied as reward or otherwise: viz. as capital.2

On the aggregate amplitude of these its 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 the Public Opinion Tribunal.

As to ruling interest, it is a topic that will be apt to present itself as more new than agreable when applied to any official judicatory: it does not however the less indisputably belong to it, as well as to 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 interest can never be in discordance with the interest of the aggregate number of the members of the political state or community in question: whereas 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, it can never be in compleat accordance with the abovementioned 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 real net interest that in every individual and in every aggregate of individuals will on each occasion be the actual ruling interest.

Sub§2. Attributes belonging to this unofficial Judicatory—I. Members

To every official judicatory, the above several attributes will be allowed to appertain without dispute. No less truly will they be seen to belong to this unofficial judicatory.

First as to its Members. On this first point will be seen to lie the greatest, or rather the only, difficulty. In this front 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 recognized. As to the particular instances of its manifestation, they will not be left to rest on so uncertain a support as that of unscrutinized usage: in proper place some of them will here be brought pg 57to view: and of an object the power of which is admitted, a proposition which should deny the existence would be a self-contradictory one. Even in regard to Members the only difficulty lies in the determination of the individuals to whom on the several particular occasions the appellation can without impropriety be applied: but even as to this point, the uncertainty may not unfrequently be seen shared in by official Judicatories.

Be this as it may, a function supposes a functionary: at the least one functionary: an operation, an operator. Ere any account can be rendered of the operations 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 them as being the most conspicuous, and as exercising the function in question in a manner the most conspicuous, sits the Editor of a Newspaper [in a State]1 in which the press howsoever legally manacled 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 object of reference.

But, of the unofficial judicatory, an English Newspaper Editor is but one member amongst millions. To shew in what way he is so it will be necessary to shew in what relation this one individual stands to the millions: in a word of what different classes and ranks, to so many different purposes, this judicatory taken in its totality is composed: to shew the constitution of the whole judicatory.

Take any political community—the British empire for example. Of the aggregate of all the persons belonging to it, rulers and subjects taken together, will the Public Opinion Tribunal be composed. 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 nature in question, a large proportion of the number, to wit children below a certain age, is composed of those who by physical infirmity are rendered absolutely incapable of taking such part. Distinction 1st.: those members who pg 58belong to the Tribunal in respect of interest and future practice only, and those who belong to it in respect of present practice.

Not excluded from this judicatory are, as such, any persons of the female sex. 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 or a share in it, they the gentler half of the species stand as yet excluded by tyranny and prejudice. But from a share in the power of this judicatory of judicatories, not even the united force of tyranny and prejudice ever have altogether excluded them any where, much less will henceforward ever exclude them.

In those who belong to it in respect of present practice may again be distinguished [four]1 classes: viz. 1. those who are 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 can not any where 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 be endeavoured to be extinguished. For example by cutting tongues out it might be extinguished, and would of course be extinguished. But tongues and the use of them are indispensable to the performance of that labour without which the stock of the external instruments of felicity, by means of which the felicity of the ruling one and the subruling few is reaped, could not be brought into existence. By any such extinction as this the interest of these same rulers would, in 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 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 pg 59of 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 occurr divers difficulties: spies adequate to this 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 put a deceit would prefer putting it upon the universal enemy to putting it upon their respective friends. Moreover the more strict and efficient 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 whom in conclusion it would never be possible to extinguish.

If all the several members of the political community in question be considered every one of them as being so many members of the Public Opinion Tribunal, those who are physically speaking not incapable of acting as such may be considered as composing a standing Committee of the whole body, invested with the powers of the whole.

That which however would be no less simple in conception, and would be more exactly conformable to strict 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 standing Committee of that same body will be the aggregate composed of all those who at any given point of time do actually concurr in taking cognizance of the affairs in question or any part of them, and they whether in the way of publication, writing, reading or oral converse: and of this General Committee 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 operation of a political nature, to whatsoever part of the field of government it appertains.

Of these several Sub-Committees the several authors 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: and a political Newspaper Editor, being the only one in constant pg 60activity, is as it were among the Presidents of these same Presidents: King of these Kings; Lord of these Lords;1 real and not sham representatives of all who buy and of all who read with sympathy their respective publications, the products of their respective labours.

Among the infinity of Sub-Committees of the Public Opinion Tribunal as above indicated, three as being the most efficient ones [are] required to be distinguished. These are:

  1. 1. The Sub-Committees of General Superintendence. 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. 2. The Sub-Committees of Judicature, or say Justice. Members, the several individuals who, being present in the several Judicatories during the dispatch 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. 3. Sub-Committees 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 fruit of the labours of a number of these Sub-Committees.

Thus much may, it is hoped, suffice, for the purpose of illustration, and for the giving to our conceptions on the subject such degree of clearness as the nature of the case admitts.

Sub§3. II 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 one English Newspaper being thus taken as and for a specimen or 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 are there performed by it agrees with, and in what way it differs from, the mode in which those same functions are most commonly performed in and by an Official Judicatory.

  To the present purpose they may be enumerated as follows:2

  1. 1. Receiving claims and accusations.

  2. 2. Receiving oppositions and defences.3

  3. pg 613. Receiving, compelling, collecting and storing evidence.

  4. 4. Receiving and hearing or reading arguments of parties litigant or advocates.

  5. 5. Forming opinions or judgments on ditto: with correspondent will.

  6. 6. Giving expression to such judgments and will.

  7. 7. Giving impression to such expression.

  8. 8. Giving diffusion to such impression.

  9. 9. Giving execution and effect to such judgment[s] and will.

Distinct in themselves are all these several operations: and in and by the ordinary Judicatories, who have the time of other men as well as their own time 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, either any channel of communication or the time of any other person at his command, these several operations can not 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 to advantage be performed, 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 judicatory and the other.

1. Receiving accusations. Note that, in the case of a claim, conception not being quite so simple, it may for the purpose of the present exemplification be put aside. In the Newspaper in question an allegation is made of misdoing 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 this purpose 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 makes mention perhaps of this or that particular as having fallen within his own knowledge: for the security of Editor and Printer the name though not signed, having 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 allegations as above, the party accused is called upon either pg 62to confess the act thus indicated with its inculpative circumstances, and at the same time thus directly or virtually to confess the culpability of it, or to deny the act or some essential inculpative circumstance or circumstances belonging to it, or admitting what is above to argue in justification of the act.

The next day or the next but one suppose, the party thus called argues in justification of the act; but at the same time either directly avows the having done it or by his silence or the turn given to his argument virtually admitts it. Here the function of compelling evidence stands exemplified.

On the former day, intimation is 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 rendering themselves 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]1 commonly at the same time mixt 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 alledged act or of the alledged inculpative circumstances, or the impropriety or propriety of it, or both together: each party, by or with the argument he delivers, directly or virtually calling for counterargument 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 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 associate of his.

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 defend-pg 63ing 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 depressed 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 proportion or other of their good offices, and upon occasion even be exposed in some sort or proportion 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 should be the result.

By this President and leading member of this Sub-Committee 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 an incalculable number by whom no judgment is expressed, a judgment on the subject—the like judgment suppose—is in mere conscience formed. But the judgment being formed, though no expression is ever given to it, a correspondent will, as above, is naturally formed, a correspondent will, from whence result substraction of good offices, and performance of ill offices, as above.

7. and 8. From the Newspaper Editor the aggregate of this mixt mass of evidence and argument together with the accompanying preliminary matter as above, and the expression given to the judgment and will as above, receives 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 in question, and to the expression given to them, stand exemplified.1

9. In ways and by members of this same unofficial judicatory in a number altogether out of the reach not only of general perception but of calculation, execution and effect will naturally, 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 pg 64then 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 of the profession and functions of this President and leading member of so many Sub-Committees of this not the less supreme and all-embracing because unofficial judicatory: the importance in an absolute and more particularly in a comparative point of view: comparison had with all other members of all other and whatsoever classes, as abovementioned.

Next to him in the order of importance comes the author of works belonging to this or that department in the field of politics—of that vast field the whole of which lies [within]1 his domain and is every day coming under the survey of this all-embracing superintendent.

Sub§4. III Power—comparison as to2

[I.] Means of efficiency and effect—among the constituent elements of political power, this, though in the above list of them it occupies the last place,3 is the first to be looked to: this being the essential one, without a clear conception of which no clear conception of any of the others can be formed.4

Of the means of execution and effect the aggregate efficiency will be composed of:

  1. 1. the number of persons disposed to concurr in contributing to the effect;

  2. 2. the internal force, physical and mental, of each;

  3. 3. the quantity of external physical force at the command of each, i.e. of the sorts of things capable of giving encrease to human physical force such as arms, ammunition, etc.;

  4. 4. their facility for operating in concert; the smallness of all opposing forces;

  5. 5. 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 disobedience;

  6. pg 656. in the case of a rival possessor of power, [the comparative magnitude of the evil to which the possessor of power,]1 as compared with the magnitude of the evil to which such rival, is able to subject the common subject or subordinate.

Compare now under these several heads the condition of the unofficial Judicatory with official ones, considered separately or in the aggregate.

1. In respect of the number of persons disposed, in the character of agents, to concurr in giving execution and effect to the opinions, judgments and wills in question.

In this particular the advantage which this unofficial judicatory possesses when compared with that of the official judicatories—all of them put together—is at first mention manifest. Of those by whom on any occasion the judgment and will in question has been and remains formed, and those whom it finds disposed to concurr in giving execution and effect to it, some with more energy, others with less, the number is exactly the same: it is the aggregate of all the individual members of the whole community.

2. In the same case is the aggregate amount of internal force, physical and mental.

3. So likewise 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 abovementioned as belonging on this occasion to the class of persons appertains the aggregate of the individual objects belonging to the class of things.2

4.3 So likewise as to the magnitude of the evil—to which, in quality of possessors of the power, that is to say of the abovementioned 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 to the power in question in case of non-compliance and disobedience. For in this magnitude is comprehended without any exception or limitation the aggregate amount of all the evil in what shape so ever it is in the power of man to subject man.

pg 665. So likewise, in ease of rivality, 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 able separately or 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 jurisdiction of a judicatory.

Under the head of Members has been brought to view the all-comprehensiveness of this branch of the power [of the] unofficial judicatory compared with that of any official judicatory or judicatories.1 Not only sharers in this power but contributors to its magnitude, because so many ready executioners 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.2

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 has it of receiving reinforcements to an unlimited amount from other states.

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 exerted. As 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. Real branch of the corporeal field of the jurisdiction of a judicatory.3

[IV.] 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 under the system of procedure pursued by them, more good than evil with refer-pg 67ence to the interests they are employed to give 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 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, in the opinion of the several members of the standing Committee of the Judicatory and of its several Sub-Committees as above, are 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 universally established division—in respect of interest: 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 interest of the few, the extra-opulent and thereby, even if by no other means, the powerful few, being in a state of constant 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.1

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 existence 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, stand thereby exempted and preserved from punishment. Of both depredation is the characteristic occupation: by the ultra-indigent it acts ever upon a small scale, by the ultra-opulent upon the largest scale.

Intestine depredators of [both classes]2 being innate accompaniments of the constitution of every political community, they exist, nor pg 68can 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 can not 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 expence of that of the greater.

In a Monarchy at the head of the highest prædatory class is stationed the arch-depredator—the Monarch: a parasite in whose one maw, for the small chance of giving encrease to the felicity of that one being, the sustenances of thousands and ten thousands of others whose claims are as good as his is consumed.

The analogy between this innate disease of the body politic and one of the diseases which in the body natural, though frequent, is but casual can not have escaped the observing eye: in the class of malefactors so called and treated as such may be seen the minute ascarides by which the lowest 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, in French le 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; accordingly neither is it here meant for 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 on this occasion brought to view.

Happily the disease, such as it is, is in a particular degree the disease 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 made to the number of persons capable of reading books on political subjects, and in that character becoming Members o. Sub-Committees of this unofficial Judicatory: through these means it makes an addition to the number of persons by whom discourses on that subject in public, or at the worst in private, may [be] heard from the lips of the fraternity of readers, and in that character constituting an addition 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 pg 69politics as above, or at the least to the number of hearers of political discourse.

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 of the official functionaries when disagreeing among themselves. By every such disagreement an addition is therefore naturally made to the power of this judicatory—of the only political 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: for by every publication on the subject of the disagreement whatever it be—even by every verbal discourse 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 naturally is commonly intended: but how far so ever from being intended, it is not the less rendered.

Of such disagreement the causes are happily not a few:

  1. 1. In a Monarchy, a disputed succession is liable to have place.

  2. 2. A minority—the non-age of the Monarch.

  3. 3. The manifest mental debility of the Monarch, whether from old age, permanent bodily ill-health, or mental derangement. Extraordinary it must be, and undisguisably so, to constitute any thing that can be regarded as a particular and casual cause—for as to intellectual inferiority, comparison had with the ordinary level, it is among the necessary results of the situation itself.

  4. 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. [5.] Disagreement amongst the members of an administration, or as between the members of an existing administration and the other men of opulence and rank who are habitually collected within the field of the Sovereign's observation.

  6. [6.] A disagreement between the Monarch in possession and the Monarch in expectancy—between the reigning Monarch on the throne and the next Monarch in expectancy.

In a mixt Monarchy, the existence of disagreement between the component 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 pg 70sinister interest acting in constant opposition to the interest and 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 that in a government of this species not less constantly causes of disagreement have place.

If between the power of the Monarch and whatsoever other power there is by which his is kept in check the limits are not sufficiently defined, thereupon comes contention 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 happen.

By a certain degree of prudence, disagreement from any one of the above [two]1 causes may be kept from breaking out.

One cause however there remains which is of the essence of the species, and which can not by any human prudence be at any time compleatly shut out. This is the competition for power as between party and party in the class of statesmen.

The matter of good in the shape of the 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 every body 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 encreases, the aggregate amount of the appetite encreases in that same ratio: the more of it there is to be had, 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 constant expectation of succeeding to shares in it on the one hand, and the party to whom neither in possession nor in 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 receipt of any such accusation, there exists but one possible judicatory, and that is the Public Opinion Tribunal.

Difficult however is the course which at all times has to be taken by the corruptionist in expectancy. Otherwise than by appeal to the power of the unofficial judicatory, in no way can he do any thing pg 71considerable towards the forwarding of any 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 things that there should be any thing that is not perfectly agreable 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, in comparison of that which is done with a warrant from the form of government, and that a sufficient one, is very inconsiderable. Depredation, and with it oppression in every other imaginable shape, may be carried on to any pitch, and yet nothing 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 burthen, at all times and with ever-encreasing force, will be pressing on the shoulders of the people, and these men being by their hapless condition condemned to keep up the profession of being friends to the people, no sooner is any particular instance of misrule in either of these shapes brought to view than all eyes are turned [to them],1 in expectation of [their]2 taking up the accusing part.

In a word, the misrule exercised having all of it the form of the government for its cause, it is not possible that the connection 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 situation 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 diminished by every circumstance by which either facility is given to the means of communication, or a counteradvantage afforded by means of profit, in a pecuniary or any other shape, from frequent intercourse. By water carriage for example, whether by sea or inland pg 72navigation, the facility is afforded: by mutual demand in the way of trade the counteradvantage 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 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 even in case of necessity of extinguishing it, and commonly the only one that is so: the only one without exception, on the supposition that the political state in question sees nothing of this sort to fear from any foreign State or States.

Hence consequently with the supreme operative 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 Sub-Committees of the unofficial judicatory in question, every obstruction possible.

To this endeavour it finds two natural counterforces and difficulties: the odium inseparably attendant on it; and the obstructions thrown in the way of communications for the purpose of such transactions as are regarded as being serviceable to its interests, and as such approved of.

As to the odium, in intensity and extent it will be exactly in the ratio of the degree in which the attributes of moral and intellectual aptitude have place in the community. By no government which is not an enemy—an uncontrovertible enemy—to the rest of the community, can any such endeavour be ever or any where employed: by every such endeavour an avowal is made of such enmity, consequently of its own inaptitude, and consequently of its being the interest of all who are subject to it to put it down with all possible speed and by whatsoever means promise to be at the same time the most efficient and, in respect 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 evidence the most probative that in the nature of the case can be given by words alone shrinks into insignificance: and in truth amounts to nothing at all when opposed to the abovementioned 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 pg 73regarded by the government as serviceable to its interest or even necessary to its existence.

Take for instance the English Government with its tax upon Newspapers: amount of the tax, Anno 1801, £2.., 000: Ditto Anno 1821, £4.., 000.1 In any coolly reflecting mind, no doubt can have place that were it not for these counter-considerations all newspapers, the Editor of which acts in the character of leading Member of a Sub-Committee of the Public Opinion Tribunal, would long ago have been extinguished. The odium, had that been all, the government for so great an advantage would have been content to subject itself to: but the odium with the loss of little less than £500,000 a year added to it,2 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.3

pg 74CONSTITUTIONAL SECURITIES OF THE TRIPOLITAN NATION: OR SECURITIES, GIVEN BY THE SOVEREIGN, TO THE PEOPLE OF TRIPOLI AND FEZZAN, AGAINST ABUSE OF POWER, NOW AND FOR EVER

EXORDIUM

The Sovereign of Tripoli to the People. Address I: Proclamation1

People! Beloved People! People! whom God hath committed to my care! harken now to my voice, it shall be a sound of sweetness in your ears.

Opening on a former day (for so did God ordain) the Book of life, I read in it this sentence. 'Ruler! act not of thy own will purely: that which is of moment, do it not but with advice of wise and honest Counsellors.'2

No sooner had I read these words, than it seemed as if a film had fallen from my eyes. I looked up: and lo! all the errors of my past life stood, as it were in array, before me. I trembled. I should have sunk under the sight, had not the same divine words, which thus brought to my eyes the evil, brought with them, and left in my heart, the remedy.

On a sudden, it seemed to me as if the Prophet were looking down upon me: and that—not with hand, as when he delivered to our fore-fathers the book of truth3—not with hand, but with tongue and lips, he spake to me these words.

'My Son! Adore God, and listen to his Prophet. Thou hast erred; I will set thee right: thou hast been severe; I will make thee gracious: thou hast been selfish; I will make thee generous: thou hast been pg 75weak in mind; I will make thee wise: thou hast been in peril; I will make thee safe: thou hast been weak in power; I will make thee strong: thy power would end with thy life; I will continue it even to the end of time. The power of those that shall come after thee shall thus be bounded. But thy own power shall receive encrease. Yea, verily it shall receive encrease. For, that obedience which those who went before thee were wont to receive from fear, that, yea and more also, shalt thou receive: receive, from admiration, love, and gratitude. Do that which I command thee, the whole multitude of the faithful throughout the earth shall look up to thee: they shall envy thee, until they imitate thee: all generations to come shall bless thee: they shall bless thee, even as a second Prophet, from whose word they will have received a new being, a being, compared with which the state of all who went before thee was a state of affliction, fear, and darkness.

'Ruler! thou takest upon thee to provide for the wants of thy people, and thou knowest not what they are: thou callest upon them to obey thy will, and they know not what it is.

'My Son! thou shalt call the people around thee, and thus shalt thou then know their wants. Thou shalt call around thee men chosen by the people, and, when thou hast heard their counsel, thou shalt profit by it. Thou shalt cause thy will to be written in a book, and wheresoever the book of my law is kept, the book of thy law shall be heard.

'Thou shalt divide thy dominion into districts, and from each district thou shalt call unto thee a wise man—the man whom the people shall have chosen.

'In each district thou shalt place a Judge. At his right hand shall lie the book of my word: at his left hand shall lie the book of thy word, and of the words of those, concerning whom it is written on the Table of brass, that in all ages they shall come after thee.1 The seat of the Judge shall be on high; it shall be in the presence of the people. Under him shall sit at all times two men, three men, or, as the case may require, some greater number, taken by lot among the fathers or sons of families. Without these men he shall do nothing. On each occasion he shall pass such decision as, in his own judgment, shall be according to the law, and according to the facts that have come before him: but, whatsoever these men shall see good to say, shall, in the first place, have been heard.

'Thus doing, thou shalt be loved, as Sovereign was never before loved: for never before did people receive from Sovereign such gifts as thy people will thus have received from thee.

pg 76'Thus doing, thou shalt be safe—safe against adversaries from within, even as before thee no Sovereign was ever safe: for, that safety which other Sovereigns seek in vain from fear, thou wilt have received from love.

'Thus doing, thou wilt be safe—safe against adversaries from without, even as before thee no Sovereign was ever safe: for, seeing thy people clinging to thee, while their subjects flee from them, they will see, that, instead of assailing thee, those whom they would lead or send against thee, would cast themselves at thy feet, and sue to be received into the number of thy subjects.

'The yearly growing wealth, which God hath committed to thee as Sovereign, thou shalt divide into two parts. The one thou shalt continue to receive for the subsistence of thee and thy family; this thou shalt not of thyself encrease. The other shall be diminished or encreased, as necessity calls: and the receipt as well as disposal thereof shall be according to that, which thou, after hearing the wise men from the people, shalt have ordained.'1

People! I know not as yet, whether what it seemed to me that I then saw and heard was the truth, or whether it was but an illusion and a dream. When the men of your choice shall stand before me, we will pray with one voice to the Almighty: his will shall put aside all clouds, and make the truth manifest to all hearts.

The Sovereign of Tripoli to the People. Address II: Acknowledgement of Rights2

People! beloved People! I address myself to you a second time.

I have begun: I continue: I will persevere. I will persevere, until, in so far as depends upon the understanding and the will which God has given to me, the edifice of your felicity shall have been completed.

pg 77Opening a second time that book which is the perennial fountain of the sublimest wisdom, I have read in it these words. 'Sovereigns! Ye are but Shepherds of men: the people are your flock: for them are you at all times responsible to God.' Thus saith the Prophet.1 But pg 78responsible in respect of what? in respect to what unless it be their happiness.

But if any one man ought to be happy, then why not every other? And if every man, then why any one man more than any other? If all then could be made equally happy, so much the better. If all my beloved subjects could be made equally happy—every one of them as happy as the happiest—Oh! how would my happiness be encreased! This however is what the nature of man forbids. In the scale of happiness the plunderer and the plundered, the oppressor and the oppressed, ought not to be placed on the same degree. The rich man and the poor man can not be placed upon exactly the same degree. For if men in general, rich and poor together, could not keep what they got, none would labour, and all would die. All therefore can not be kept in a state of equal happiness: the will of God as shewn by the nature of man forbids it. And thus it is that, from any thing that I could do for my subjects, it were in vain for me to hope any thing more or better than the greatest happiness of the greatest number: in that I behold the boundary of my hopes.

Meditating on these things, I acknowledge, and do hereby declare—that the greatest happiness of the greatest number of the members of the community whatsoever it be, is to the ruler or rulers of that same community as such the only right and proper end in view and object of pursuit: the only right and proper measure of the goodness or badness of all their actions.

People! Beloved People! God hath given me the power over you, I hold it even as every one of you holdeth the hands of which he is possessed. God hath given me power over you: but it is only for your happiness that he has given it to me. Behold therefore now the use which I make of it. Receive now from my hands the benefits which, in obedience to God and his prophet, freely and of my own motion I give. I give them to remain to you and your posterity throughout all ages. It will be for you and your posterity to secure them to yourselves as against any who shall attempt (which God forbid!) to take them from you.

These benefits are the rights and securities which I hereby acknowledge to be yours: the securities against misrule: securities against abuse of power on the part of the Sovereign or those in authority under him. Doing what I do, I do it without fear of error, seeing that in so doing I take nothing for myself, and that it is to you my beloved people that I am giving whatsoever it is that I give.

pg 79GENERALS1

I. Securities in favour of the Nation considered in the aggregate

I. Security against vexation on account of religion

Article 1. Every person is at liberty to perform divine worship after his own manner. For this purpose any persons without exception may assemble together in private or in public.

Counter-Security. Provided2 that it be in a chamber enclosed and covered, and that the eyes of the True Believer be not annoyed by public ceremonies or processions, with religion for their cause or pretext, or his ears by the sound of bells or other noises. Provided also that by no religion shall any justifying cause be made for causing suffering in any shape to any individual, in respect of his person, property, reputation, or condition in life.

Article 2. Every person is at liberty to write and publish whatsoever pg 80he pleases on the subject of religion, even although the truth or the goodness of the only true religion be impeached thereby. By the True Believer that which is adverse to the only true religion will either not be read at all, or read with the merited contempt.

Counter-Security. Provided that no writing or imitative figure, containing matter thus adverse to the only true religion, be exposed any where to view in such manner as to be offensive to the eyes of the True Believer as he passes. For any such exposure every person is responsible to the purpose of punishment.

Article 3. Every person is at liberty to speak what he pleases on the subject of religion, even although the truth or the goodness of the only true religion be impeached thereby. By the True Believer that which is adverse to the only true religion will either not be heard at all, or heard with the merited contempt.

Counter-Security. Provided that no discourse, whereby either the truth or the goodness of the only true religion is impeached, be uttered in any public place in such manner as to be offensive to the ears of the True Believer as he passes: or in the presence and to the displeasure of any True Believer in any private place. The utterance of any such discourse in the hearing of the True Believer is an injury to him, and as such may be punished according to law.

II.1 Security against National Gagging: or Security for appeal to Public Opinion and the power of the law on the conduct of all persons whatsoever: functionaries as well as non-functionaries

Article 4.2 Every man is at liberty to express, as well by visible as by audible signs, and in any way and to any extent to make public, whatsoever in his judgment it will be contributory to the greatest happiness of the greatest number [for men]3 to be informed of: and this, although disapprobation be thereby expressed towards persons in authority, whether on account of the general tenor of their conduct, or on account of their conduct on this or that occasion in particular.

Counter-Security. Provided always, that, for any injury thereby done to the reputation of any individual by false imputations, every person concerned in the doing of such injury is responsible to the purpose of reparation and punishment at the suit, and for the benefit, of any individual or individuals injured: and that, for any thing which pg 81being so expressed has for its object the exciting men to the commission of this or that particular offence, any man shall be responsible, as above, according to the nature of such offence.

Article 5. If, on account of any indication given of supposed delinquency in any shape on the part of any person, non-functionary or functionary, a person be proceeded against at law as for injury to reputation, proof of the delinquency so indicated shall be received as a cause of justification: and, for the making of such proof, the testimony of that same individual on whom the delinquency is charged may be extracted in the same manner as that of any other person.a

pg 82pg 83Article 6.1 All persons are at liberty at all times, and in any number, to hold converse with one another, on all subjects in general, and on the subject of the conduct of persons in authority in particular: and on the means of rectifying whatever may be amiss either in the conduct of rulers or in the form of the government: to hold converse, namely as well in the way of correspondence at a distance, as in presence: and, if at a distance, and thence through the intervention of others, as well by written as by oral discourse.

Counter-Security. Provided always, that if, for the prevention of evil to person or property, it shall at any time be thought good, by the proper authority, for limited times to prevent or inhibit persons at large from coming together, in numbers greater than are capable of hearing from beginning to end the discourse of the same speaker at the same time, especially if in the night time, or with arms about their persons, in any such case that which shall be so done by them to this purpose, shall not be considered as done in breach of this article.

III. Security against National Defencelessness

Article 7. All persons are at liberty to keep arms of all sorts: to wit, either in their own habitations, or elsewhere at their choice: also to exercise themselves, and cause themselves to be trained, in the use of arms, whether it be separately or in any numbers.

Also, singly, or in companies in any number, to carry arms about them for their own defence.

Counter-Security. Provided always, that if, for guarding against a pg 84temporary oppression of the greater number by sudden insurrection of the smaller number under favour of surprize, it shall at any time be thought good by the proper authority to inhibit such assemblages from having place otherwise than after due notice, neither shall any such inhibition, nor any necessary measures taken for giving effect to it, be considered as amounting to a breach of this article.

So, if to prevent slaughter, spoliation or oppression of individuals by individuals, it shall seem good to the proper authority to inhibit the carrying of offensive arms in this or that particular place, or by this or that particular person or set of persons, or on this or that particular occasion, or during this or that particular time, or to inhibit all persons from carrying any offensive arms in a concealed manner at any time.

II. Securities in favour of individuals

Article 8. No one shall against his will, or as the case may be against the will of those under whose guardianship he is placed, be arrested, imprisoned or otherwise confined, except for the purposes, and on the occasions, and in the manner determined and declared by law.

Article 9. No person shall against his will, or as the case may be against the will of those under whose guardianship he is placed, be sent or kept out of the dominions of the state or any part thereof, except for the purposes, and on the occasions, and in the manner determined and declared by law.

Article 10. No person shall be put to death but for the purposes and on the occasions determined and declared by law.

Article 11. 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, and in the manner determined and declared by law.

Article 12. Of no man shall any personal service in any shape be exacted, except for the purposes, and on the occasions, and in the manner determined and declared by law.

Article 13. On no man's property shall any infringement be made, except for the purposes, on the occasions, and in the manner determined and declared by law.

Article 14. On the security of no man's private writings shall any infringement be made, except for the purposes, on the occasions, and in the manner determined and declared by law.

Article 15. Of the security of a man's private writings it may be an infringement if, against his will declared or reasonably presumable, they be placed or kept out of his custody, within or without the pg 85dominions of the State, or destroyed, or in any way damaged, or inspected, or seized for whatsoever of these or any other purposes it be.

Article 16. If, for giving execution and effect to the law, it becomes necessary, in virtue of any exception mentioned in Articles [8, 9, 10, 11, 12, 13, 14] or [15] to make infringement on the security of body or goods, no such infringement shall be made beyond what such necessity requires. For any injury in either shape, all persons therein concerned, functionaries or not functionaries, shall be deemed trespassers: and as such responsible in respect of burthen of compensation and punishment in the same manner as wrongdoers at large.

DETAILS

[I. Securities in detail in favour of the Nation]

II. National Gagging1

Every act having for its object the production of the effect thus denominated belongs as above to the list of injurious acts. Every person who has knowingly any part in the production of it is accordingly punishable by the obligation of making reparation, with or without punishment in other shape, according to the shape in which the injurious act has shewn itself.

The right of which the offence thus denominated is the infringement is the right of exercising influence in the choice of the whole number of those members of the community by whom a public function in any shape is exercised, and of declaring an opinion on their conduct as well as that of every other individual in whose good conduct all members without exception have an interest: the right of censorship: including the right of receiving and writing unlimited information relative to all grounds on which, to be just, the exercise of that function requires a man to be possessed of: in a word, the possessing on each occasion, in a manner adequately correct and extensive, the proper grounds of censorship.

Liberty of communicating by word of mouth, to as many as chosen, information in any shape in which it is regarded by the individual in question as contributory to greatest happiness.

Right recognized. Giving expression and publicity to all facts and observations of which, in the judgment of the individual in question, pg 86the conception promises to be contributory to the greatest happiness of the greatest number: whether the tendency of the correspondent information be to raise or lower this or that person in the scale of public opinion.

Correspondent acts of power prohibited as being violations of these rights, and thereby placed upon the footing of punishable offences, punishable in the same manner as they would be if exercised by individuals not invested with any such power:

1. Punishing, or contributing or endeavouring to contribute to the punishing, of any person for the having given utterance to any such discourse, to any discourse to the effect in question, when expressed by audible signs.

2. Punishing etc. any person for giving expression to ditto discourse by visible signs: that is to say in characters written or printed. Issuing any order for such punishment.

3. Punishing any person for transferring to another for a time or in perpetuity, either gratis or for a price, any paper or other substance on which such signs stand visible. Issuing any order for such seizure. Giving or being concerned in giving execution to any such order.

4. Seizing, detaining, destroying or deteriorating any paper or other substratum on which signs expressive of a discourse in question are marked. Issuing or contributing to the [issuing of]1 any order for such seizure, detention, destruction or deterioration. Giving or contributing to give execution to any such order.

5. Obstructing by force, intimidation or deceit the approach, entrance or continuance of persons in any number to, into or in any place in which they have separately any right to station themselves. Obstructing them while in the act of making reciprocal communication of such their information and the opinions and wishes suggested by it.

6. Seizing the body of any person so occupied, thereby infringing upon his liberty of locomotion. Corresponding offence: Injurious Confinement.

7. Seizing any paper, writing, printed book or other visible instrument of discourse having for its object the inviting two or more persons to assemble for any such purpose as above. Corresponding offence: Violation of private secrets, of written instruments of communication between man and man.

8. Consequence in respect of eventual acts of corporal injuriation, homicide included.

In case of any bodily contest between persons occupied in the exercise of any of the above rights and other persons, functionaries or pg 87non-functionaries, occupied in any such endeavour as that of disturbing such exercise, any wound or other suffering unavoidably produced by the lawful exercisers in the way of self-defence, or any supporters of theirs, is lawful and unpunishable: but if occasioned by the disturbers on the bodies of the exercisers, unlawful and punishable: punishable in the same manner and degree as if no such pretence had been set up.

[9.] On the occasion of every such contest, all persons are warranted in giving their corporal assistance to the exercisers. No person is warranted in giving assistance to the obstructors.

10. So in regard to damage done to property on the occasion of any such bodily contest: damage unavoidably done by the exercisers or their assistants to property of the obstructors is lawful and unpunishable: damage done by the obstructors or their assistants is unlawful and punishable.

III. National disarmament and debilitation

Every act having for its object the production of the effect thus denominated stands as above in the list of injurious acts.

Correspondent rights violated are:

  1. 1. Right of putting and keeping one's self in a state of aptitude in the character of member of the armed force of the community.

  2. 2. Right of exercising one's self and being exercised in the use of arms.

Correspondent exercises of power prohibited, rendered unlawful and as such punishable as being acts of violation with reference to the above rights: punishable as if exercised by persons not invested with power.

  1. 1. Punishing any person for having been occupied in being so trained or in training any other person.

  2. 2. Punishing any person for repairing for the purpose of being trained to any place in which for any other purpose he had a right to station himself.

  3. 3. Punishing any person for giving invitation in any shape to others, oral or graphical, to engage in any such exercise or to meet others for the purpose of such exercise.

  4. 4. Obstructing, or contributing to obstruct, the meeting of persons in any number for this purpose.

  5. 5. Obstructing them as above in the commencement or continuance of the sort of operation here in question.1

pg 88II. Securities in detail in favour of individuals

IV. Security against secret confinement: for the protection of the persons of individuals against oppression, by persons in authority, without or even with the knowledge of the Sovereign

  1. 1. Whensoever, on the alledged ground 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.

  2. 2. To this end, the name and situation of every habitation designed by authority to be used as [a place]1 of confinement, whether on the score of delinquency or insanity, shall be entered in an appropriate register, one exemplar whereof shall be kept in the metropolis in the Office of the Chief Judicatory; and of this exemplar a copy shall be kept at the Office of every other Judicatory.

  3. 3. On the commitment of an individual to any such place of confinement, entry of such commitment shall be made on a register to be therein kept for that purpose, mentioning the name by which, in his own declaration or otherwise, such individual is distinguished; the person or persons by whose hands he has been brought; the person by whose authority he has been brought; the time for which he is so committed: and the evidence on which such commitment has been grounded: a sufficient description by name and otherwise of every person on whose testimony the commitment has had place being added, as also the cause for which he has been committed.

  4. 4. Within | | 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 as shall be legible to all passengers.

  5. 5. If at any time by some 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 expence of the prisoner, if found guilty, or at the expence of the public, if there be fund 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 be in each case preferred.

  6. pg 896. Causes for which, instead of the ordinary appropriate prison, an extraordinary prison as above may be employed are as follows:

  1. 1. The ordinary prison by its fullness rendered incapable of holding the prisoner without danger to health or safe custody.

  2. 2. —or by want of repair.

  3. 3. —or by unhealthiness produced for example by contagious disease.

  4. 4. —or rendered by distance inaccessible without halting for repose.

  5. 5. —or by hostility on the part of enemies, foreign or domestic.

  6. 6. —or by danger of forcible rescue.

  7. 7. If in any such occasional prison a prisoner be detained more than {24} hours, over the door thereof shall be fixt up a paper of notice such as that prescribed by Article | |1 in the case of an ordinary prison: and for the framing or attestation thereof the assistance of some Iman be invoked: that of the nearest Mosque in preference.

  8. 8. Of the commitment of a person to any such extraordinary prison the bringer shall make known the fact together with the cause by which, as supposed, it was rendered necessary, and whether such notice as should have been fixt up as above was fixt up, and if not, why not.

  9. 9. The bringer shall make known to such Keeper of the ordinary prison or such Judge, as the case may be,2 the fact of such detention at the extraordinary prison, together with the causes and circumstances of it: if he omitts so to do, the detention shall, for and during the time of it, be deemed injurious.

  10. 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 imprisonment had place: and shall moreover, to the extent of his means, be compelled to furnish, or contribute to the furnishing, compensation in a pecuniary shape for the injury.

  11. [11.] Any person by whom it shall be known or suspected that in a certain building a certain person is kept in confinement may repair to the Keeper and require to be informed by him whether such person be actually under his custody. If being so interrogated the Keeper refuses or forbears to make answer, or makes a false answer, the Keeper, being thereof convicted, shall suffer condign punishment: and if at the time of the interrogation the person in question was actually in his pg 90custody, shall be punished as having been guilty of injurious imprisonment.1

  12. [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.

  13. [13.] For prevention of vexation and impertinent inquiries, the Keeper, before he makes reply to any such interrogation as above, may require the applicant to make himself known to the purpose of eventual responsibility.2

  14. [14.] Any person may repair to the Judicatory of the District in which such place of confinement is situated, and there require of the Judges that the person so under confinement may be produced before them, and at a public audience, inquiry 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.

    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.

  15. [15.] 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, are responsible as for injurious imprisonment.

V. Security against injurious banishment

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 commination or deceit, sent or kept out of the territory 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 commination 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 other individual on whose behalf he is entitled to prosecute.3

pg 91Of every 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 executed, until thirty days after the sentence has been read in the Chamber of audience.

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 measures of prevention against injurious and secret banishment.

For security against secret and injurious banishment two obvious measures of the preventive kind present themselves. One is—prohibiting egress without a passport; the other is—prohibiting egress without previous entry of the fact in an 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 with truth is—that generally speaking the evil of the remedy will be found preponderant over the good. The state of things will be an extraordinary one if for one instance in which the egress is involuntary 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 limitation 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 hope 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.

For argument sake, the security thus afforded has hitherto been pg 92supposed entire. This however it can not 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. This efficacy will depend upon the nature of the communications with other countries, and the efficacy of the means actually employed for keeping persons and things in this way in a state of confinement. True it is, that exportation performed upon the person of another against his will will not in general be so easy to a man as if performed upon his own person, or upon an equal mass of inanimate things.

VI. [Security] against secret and unlawful homicide

On the death of every person, notice thereof shall forthwith be given to the Iman of the Parish within which the death took place. If it was in any habitation, by the Occupier thereof, or some other person in whose presence the death took place: if not in any dwelling or the ground belonging to a house and occupied therewith, as for example on a journey, then by some one or more of any persons who were present: if found dead, then by some person by whom the body was so found.

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 thereunto whatsoever publicity it may be in his power to produce.

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 dispatch, 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 criminal agency on the part of any individual, do whatsoever may be in his power towards the discovery and punishment of every criminal so concerned.

Having received such communication, let the Iman with all practicable 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. Of whatsoever he thus sees and hears he shall make a minute, authenticating by the name of the witness the purport and as near as may be the words of every person so examined—causing such party interrogated to authenticate with his name, if able, such his testimony, after having first read it over, that so the correctness of the minute so made may be established.

pg 93In taking such examination let the servant of God proceed as follows:

  1. 1. Except as excepted, let every thing done by him on this occasion be done as publickly as possible.

  2. 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 have reason to keep secret from such person any thing that tends to point suspicion upon the person so suspected, until measures have been taken for his arrestation.

  3. 3. Let him in the name of God and his Prophet, adjure all believers 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 interrogatives as he shall have put to them.

  4. 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 allegations in justification of such refusal be made, let him make mention also of such allegations.

  5. 5. So, if any means be used to evade giving such information.

  6. 6. So, if after promise to give it, such promise be not fulfilled.

  7. [7.] Of the 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 every thing that is said:

  8. [8.] questions as well as answers.

  9. 9. So, demeanour.1

  10. 10. In the case of each individual so interrogated, at the end of what is written in relation to him, let him read over to him what has been written: in every instance where intimation has been given by the witness that the account so given of him [is]2 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 any thing that has been written: for any contradictions which have place between any subsequent part of a man's testimony and any antecedent part may help to make known the truth.

  11. 11. 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, then 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:

  12. pg 9412. 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 ulterior testimony may upon occasion be resorted to with least inconvenience in every shape.

  13. 13. 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, include the same accordingly in the number of the questions. If, regarding the same as improper, he declines 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.

  14. 14. Of the names of all persons present during the examination of each witness, let entry in like manner be made: unless the number should be so great that such entry would occupy too much time. In such case the number may be limited to twelve: insert those by whom a desire to have entry of their names has been expressed [in preference] to those by whom no such desire has been expressed—nor let refusal be made to any by whom such desire has been expressed until the number of 24 has been completed. 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.

[VII Security against Mysterious Disappearance]

In case of the unexpected disappearance of any person, if it be known or suspected that he is secretly kept in confinement any where 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: means shall be employed for the recordation and notification of the fact, to the end that if unlawfully confined he may be liberated or otherwise dealt with, if unlawfully transported he may be brought back, or if unlawfully put to death measures may be taken for the punishment of all persons thereto contributory.

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 dominions of the State.1

pg 95On the occasion of any such application, 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.

In every judicatory in the office of which any such copy has been received, the presiding Judge shall cause it to be kept in the archives, having first made notification thereof in the promptest and at the same time in the most public manner that the circumstances of time and place admitt of.

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 if the party be alive to the causing it to cease, 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 their responsibility use such means as their situation admitts of to the forwarding to the proper Judicatory the information so obtained.1

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:2 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.

In so far as applicants are unable to defray the expence of copies pg 96and transmission, let the Judicatory defray such expence out of any such means as it has in its power.

VIII. Security against misuse of private writings: or Security for the writings or other documents of individuals against wanton or oppressive seizure, destruction, damnification or inspection by persons in authority

No writing, against the will, known or reasonably presumable, of the owner, shall be carried or kept out of his custody or power, or be seized, destroyed, damaged or inspected by order of any person in authority, nor otherwise than in pursuance of the order of some judicatory: of an appropriate judicial functionary.

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.

In case of any such misuse, every 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.a

If by any illegal means writings be obtained contributory 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 liquidation of the punishment, any evil suffered by him in consequence of the inspection thus obtained of any other writings shall be considered.

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.

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 support of this or that particular right, [are obtained]1 writings or other documents capable of serving as evidence respecting any other supposed offence or right, the evidence thus obtained may be employed accordingly. But if in this way possession pg 97or inspection has been obtained of writings or other documents by the disclosure 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.

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, though 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 good as shall be deemed to have been produced by the production of such evidence. a

IX. Security against Official depredation

Official depredation may have place at the expence of an individual, or at the expence of government: that is to say at the expence of the whole community at whose expence the money employed in the service of government is collected.

Official depredation at the expence 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 wherewith [this]1 misdeed is committed may be either force, intimidation or deceit.

Intimidation may be exercised by producing either the fear of some eventual positive evil, or by the fear of failing to obtain the matter of good which the functionary had no right to prevent the individual from receiving.

Injunction 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 kept concealed from any pg 98person, such declared wish affords a presumption of official depredation: and such presumption, if the fact of the having given intimation of such a wish is credited, shall be regarded [as] conclusive.

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 reason or in respect of his official situation, gift or service in any shape other than what is appointed and allowed by law be received by him, or to his use, or to any person specially connected with him by any tie of self-regarding 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 expence of the public service, the matter of good in some shape in which it ought not to be so rendered to him.

In case of intimidation the gift or the equivalent for the service may be recovered of the functionary, or his heirs at any time within | | years.

So in case of corruption, it may be recovered for the use of the public treasury.

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 or service if presented, shall be deemed a calumny, and every person wilfully contributing to the conveying such intimation shall be punished as the authors of such calumny.

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.

Provided always that if the Sovereign be pleased to repair to 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.

Every functionary by whom, on account of any branch of the public service, money or money's worth or the loan thereof 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 pg 99appropriate instrument in writing acknowledging such receipt. This instrument may be termed an acknowledgment of receipt, or in one word a receipt.

If no such instrument be so delivered, the act of receipt shall be deemed an act of official depredation, or say in one word extortion.

Of every such receipt two copies shall be made. One of them shall be delivered to the requisitionist1 as above.2 On it shall be written:

  1. 1. Name of the Place in or at which the requisition is made. District, Town if any, and Parish.

  2. 2. Time at which the requisition is made.

  3. 3. The branch of the public service for which the requisition is made: for example the financial, the judicial, or the military.

  4. 4. Official name of the functionary by whom the requisition is made.

  5. 5. Personal name of the functionary by whom the requisition is made.

  6. 6. Name of the individual on whom the requisition is made.

  7. 7. The subject-matter of the requisition so made.

  8. 8. The time on or before which it is expected that the article so required shall be delivered.

  9. 9. The place at which it is expected that the thing in requisition shall be delivered.

  10. 10. If the thing in requisition be delivered accordingly, mention of such delivery.

  11. 11. If no such delivery has place, mention of the non-delivery with the cause of it as alledged by or on the part of the requisitionist.

If lawful such requisition will be either specially or generally manifested.

By specially manifested, understand manifested by a requisition made to the particular requisitionist in question.

By generally manifested, understand manifested to all such persons as come 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.

X. Securities against Official Oppression at large3

Oppression is vexation by means of power.

By an act of vexation, understand every act by which a person is made to suffer in any one or more of man's six vulnerable points.

pg 100These are:

  1. 1. Mind.

  2. 2. Body.

  3. 3. Reputation.

  4. 4. Properly.

  5. 5. Power.

  6. 6. Condition in life.a

To misrule in this mode apply the several provisions which on the subject of Official Depredation apply to the several heads following: namely.

Art. 3. Instruments incorporeal.

Art. 4. Modes of intimidation.

Art. 5. 6. Presumptive evidence.

Art. 7. Reparation of the injury.

Art. 8. 9. [10.] Sole case in which Sovereign's consent is credible.1 For the mode of examination and recordation in this case, see the general provision under that head.2

XI. [Security against] Extortion of personal serviceb

By no person, functionary or non-functionary, shall personal service in any shape be exacted of any individual on account of government, without giving him in writing a sufficient acknowledgement thereof.

pg 101 In such acknowledgement shall be contained the particulars following—namely:

  1. 1. The name of the person at whose hands the service was required.

  2. 2. The proper name and official name of the functionary by whom the service was required.

  3. 3. The particular nature of the service.

  4. 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. 5. The time: that is to say the year, month, day and hour at which the service was first required.

  6. 6. The time during which the service was required to be continued.

  7. 7. The willingness or unwillingness of the individual to render the service so required.

  8. 8. In case of unwillingness, the reasons, if any, alledged by him, why the service ought not at all, or ought not at that time, to be exacted of him.

  9. 9. The due performance, imperfect performance, or non-performance of the service so required.

  10. 10. Collateral damage, if any, inevitably sustained by the requisitionist by the performance of the service.

Of such act of acknowledgement, let two copies be taken: one to be delivered to the individual, the other kept by the functionary.

On each of them let the individual signify his assent or dissent to the several statements, 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.

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.

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 can not 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. 1. Prevention, stoppage or diminution of damage by any physical calamity such as that occasioned by fire or inundation.

  2. pg 1022. 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 evil-doers.

  3. 3. Prevention, stoppage or diminution of damage in the like shapes by foreign enemies.

Where the nature of the service is such as to require that it be exacted of individuals in an indeterminate number at the same time, no such act of acknowledgment need be given.

But in this case let a general statement of the matter be committed to writing by the proper functionary, and deposited either at the Mosque or the Judicatory within the District of which the matter happened, or both as the case may require.

If so 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 signalize 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 so manifested be sufficient, let an entry be made in an appropriate Register to be kept in every Mosque and in every Judicatory. It may be stiled, The Register of Merit: or the Register of extraordinarily meritorious public service.

pg 103 PRELIMINARY EXPLANATIONS CONTINUED

§ 19. Means of obtaining the requisite Concession—probability of success, on what it depends

Sub§1. Concession—what the chance in favour of it

Such are the securities proposed1—proposed as presenting the fairest promise in every point of view: natural consequences if conceded, and probability of concession taken together. Unfortunately whatsoever may be the chance of such concession, blindness on the part of the Sovereign to these its beneficial consequences is (it will be seen) a condition little less than indispensable to the existence of so felicitous a state of things. Only in proportion as it2 applies a restrictive check to the doing of his will, only in proportion to the extent in which it operates in this direction, can it be productive of any of those salutary effects for the purpose of which it is proposed. But the general idea of any effectual opposition to his own will, in whatsoever direction operating, is an idea to which in a mind so situated a quantity of pain is attached greater than can be outweighed by the consideration of any particular pleasure which he may [be] capable of deriving from the contemplation of any particular good effects in which the creatures subject to his power must receive a 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 its 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 voluntarily instrumental in afflicting himself with the pain so certainly and immediately attached to the intro-susception of the nauseous dose.

The chance of the requisite concession is not equally minute in all imaginable cases. To obtain security against vexation in all its shapes, and at all times, and as against all persons, but more particularly against all such as have it most completely in their power to give birth to it, is the object of these arrangements: more particularly against pg 104vexation 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 thus distinguishable: 1. the Sovereign himself: 2. the Sovereign's favourites: 3. the several functionaries under him considered as being on any such occasions apt to be employed as his and their instruments for his and their personal gratification: 4. 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 entertain 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 of itself a matter of indifference: against any sentiment of sympathy of which they may be the object, may 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—the whole of whose time is regarded as being employed in his service, belong to him by a nearer and closer tie than the members of the community at large, remote as they are from his sight and his cognizance. If in this case there be any thing by which the scale can be turned in favour of the people, it must be a species of fear—fear of the evil that by possibility may be turned toward even his own hand by the consideration of the connection that has place between himself and these 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 odium 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 either his own person or those of his more especial favorites—in such case no very urgent inducement may be necessary to obtain his consent. In Tripoli, as in England, if at any time he can set the people at rest by this sacrifice of a set of instruments in which no special favorite is contained, 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. Dismissing a set of Tories, as a gamester tosses on the floor an unlucky set of cards, he may go on playing the same game with a pack of Whigs.

pg 105Sub§2. Means of obtainment. Precautions to be taken. Cautions observed

On the part of the Monarch the probability of his concurrence in arrangements directed to this end will be in the direct ratio of the relative inoffensiveness of the proposed arrangements, and in the inverse ratio of his proneness to take offence.

By the first of these considerations the problem is of course suggested—how to render the arrangements in form as well as substance as little offensive as they can be consistently with the accomplishment of the end or purpose. The cautions that present themselves as being suggested by this object are as follows, viz.

  1. 1. Be the vexations and oppressions what they may, bring not to view so long as it can be avoided any such supposition as that of their being practiced by command or so much as with the knowledge of the Sovereign. Present them as liable to be practiced by functionaries or opulent individuals at large, by functionaries as necessary to their official connections: by men of opulence as necessary to their opulence. But neither should any such precise designation as this [be made] without necessity: by words indicative of human beings in general these will be included as well as all others. If in any case there be necessity or use in giving any such particular designation, it will be to prevent any such supposition as that, by the consideration of the moral excellence supposed to be naturally attached to such high dignity, the intention of including them in the compass of the arrangement was not present to the mind of the legislator: or else to obviate any such apprehension on the part of the injured, lest the Judge, for want of words of sufficient force to compell him, should decline making application of the penal part of the law in the case of an oppressor of sufficient power to be formidable to the Judge.

  2. 2. Avoid as much as may [be] the appearing to proceed upon any such supposition as that of there being any thing amiss in the conduct of the Monarch.

  3. 3. If therefore the case be such that without something done towards it by some functionary the act of vexation in question can not have been committed, let the supposition be that it has been in pursuit of his own individual or some other particular sinister end that it has been practiced by the functionary and not in the view of benefit in any shape to the Monarch.

  4. 4. Even if from the nature of the case it appears plain that by the subordinate functionary in question no particular benefit can have been accrued, no effect beneficial to any person other than the Monarch produced, still it will not be necessary to suppose that either the will or the knowledge of the Monarch had any part in it. On the part of the subordinate functionary the inducement may have beenpg 106overzeal in the service of the Monarch: or the desire of affording to himself a gratification from the vexation produced in the breast of some individual regarded by him with the eyes of an enemy.

  5. 5. If the case be such as that without special concurrence on the part of the Monarch himself the vexation can not have been practiced, as where his signature is attached to a mandate in execution of which it has been practiced, in this case the supposition proceeded upon must be that of his having been deceived by this or that functionary by means of false representations concerning matters of fact. For in the elevated situation in which a Monarch stands, this is a mode of deception from which the most consummate wisdom can not in every case preserve a man from being misled. Be the man who he may, in regard to whatsoever matters of fact have not been present to his own senses, if inference from other facts will not suffice, his conception must have for its ground reports made by others.

  6. 6. If the case admitts not of any other supposition than that the Monarch has been misled, let the supposition implied be that it has been by false statements as to matters of fact, than by unwise judgments and advice. The being misled by false statements is a misfortune from which no degree of wisdom can always preserve any human being: on the part of a person thus misled no error in judgment, no intellectual weakness in any shape, is implied in the supposition. Not so in the case of being misled by bad advice. Intellectual weakness in some shape or other is in this case necessarily implied. The opinion of another man is looked to by him as a ground for the opinion on which he is to act. Why looked to? unless it be because he is not only incompetent to form an opinion of his own for the guidance of his own conduct, but so clearly so, as to be himself conscious of his own incompetence. Thus in the first place, by the consciousness of the weakness of his own judgment, he is in a manner compelled to borrow a judgment from another man: in the next place, when this judgment is lent to him, though by the supposition it is an erroneous one, his judgment has not enabled him to see in it what it is, to discern the real character of it.

  7. 7. If the nature of the case be such as not to admitt of any such supposition as that on the part of the Monarch either misinformation or bad advice from others had any part in the business, if at the same time a document purporting to be with his signature has been employed in the production of the vexation, as in the case of a signed mandate to tear a female from the arms of a father or a husband and bring her to his bed, the only avowable supposition remaining is that his signature has been forged, or by mistake attached to a wrong instrument. If in any public manner, for example in a judicatory or apg 107council of any sort, he comes forward and avows it, in such case there is no other alternative but submission or open disobedience. Example: French Lit de Justice.1

Note well the period at which these suppositions require to be brought and kept in view. It is the period of the framing of the arrangements—the period when the Monarch's consent to them is to be endeavoured to be obtained: final cause to lessen as much as possible his apprehension of seeing his desires restrained, or his mis-deeds exposed. But supposing his sanction once obtained, the stronger the restraint, and the more entire and extensive the exposure, so much the better, unless a danger should appear of his being to such a degree irritated by the restraint or the exposure as openly to infringe or even abrogate the securities.

Remains for [consideration] the quantity in the inverse ratio of which the probability of concession will in this case encrease: the degree of proneness on the part of the Monarch to take offence in such sort as to refuse his concurrence.

This will depend partly upon external, partly upon internal circumstances: upon the situation of his affairs, and upon the state of his mind, general and particular, by whom in the case in question the situation in question is occupied.

External circumstances favorable to such a result may be thus expressed: 1. on the part of the Sovereign an extraordinary demand for money, or 2. personal service to a great extent, say in a military capacity, coupled with the persuasion of the inability to obtain it by any other coercive methods: in a word by any other means than the free consent of the individuals at whose hands it is looked for.2

As to frame of mind, so far as depends upon the condition thus designated, the following are the psychological causes by any one of which, supposing the quality adequate, the effects may be produced:

  1. 1. Timidity—fear of popular resentment in case of non-compliance.

  2. 2. Facility of yielding to advice, coupled with the favorable accident of having for advisers men who themselves have, by whatever causes, been disposed to give advice to the effect in question.3

pg 108 [6.] Prospect of extending his reputation, his influence, and eventually his dominion, over the neighbouring nations.

As to persons in a situation to act as advisers, on the part of each individual so situated, concurrence or non-concurrence will depend upon the preponderance as between [the] degree of force with which his will is operated upon by the restraining inducements on the one part and the impelling inducements on the other.

To the list of restraining inducements belong the following.

  1. 1. In so far as the securities in question are productive of the effect aimed at, loss of the share which he might otherwise have expected in the benefit of any vexation or oppression practiced for the advancement of his own interests or the gratification of his own desires.

  2. 2. The like in respect of any person or persons connected with him by any special tie of self-regarding interest or sympathetic interest.

  3. 3. Fear of resentment as being producible in the breast of the Monarch by the observation of the part taken by him in the promotion of the innovation in question. If on the part of the Master, upon the balance there be any real reluctance in regard to the coming in to the proposal, it is not his actually coming into it that will have the effect of doing away any resentment he may have conceived towards those by whom in his view of the matter support has been given to it.

In the situation of the advisers in question, impelling motives with reference to the measure in question may be as follows:

1. to 6.1 Considerations of a social nature in the same shapes as those above indicated in the case of the Monarch.

7. Sense of insecurity under the form of government as it exists.

In this inducement lies the main hope of concurrence at the hands of men so situated. This inducement applies to all ranks, the highest not excepted: it applies to them in all circumstances with reference to prosperity.

It applies to all the vulnerable points for the protection of which the tutelary arrangements in question are required.

Neither for life nor for liberty, for neither of those possessions, against resentment, fear, concupiscence or erroneous conception in the breast of the Sovereign, can any permanent security be possessed by any one individual in the community in the present state of the government.

In respect of property ail men labour under insecurity, not merely in that shape in which it involves danger and alarm in respect of what they have already, but in that shape likewise in which by the sense of it they are prevented from making all those additions to it to which a pg 109feeling of security such as is enjoyed even in the worst-governed European nations is sufficient to give birth.

In the present state of insecurity, no man who has capital to any considerable amount can make application of it to any source of profit, the reaping of which supposes and requires the assurance of reaping the fruits of the disbursement for an indefinite length of time.

Sub§3. Persuasives for the Pacha's concurrence in the concession1

1. On the event of his death, danger to his whole family from dispute among his sons as to the succession to the Sovereignty.

2. Danger to the whole nation from a Civil war produced by that dispute.

No possible means of security against these dangers but a meeting of persons chosen by the people to ratify beforehand the choice he shall have made.

If he can not endure to see a successor thus fixed upon for fear of his making a party in opposition to him, may not the choice be made by a secret instrument of declaration sealed up and not opened till his death?

Or, if made public in the first instance, might not a power of revocation be annexed to it?

As to the choice of the future sovereign, those who concurr in the measure should be previously agreed among themselves. This done, they may make him believe that the choice depends absolutely upon his will and pleasure, if whenever he speaks to any one of them upon the subject he finds them all speaking in favour of the same person: it being presumed that having so strong an interest in the goodness of the choice, they will find no difficulty in assigning the reasons for it.

3. Supposing a Representative body were established, Tripoli would exhibit the first example of a Mahometan country in which undertakings, for private or public benefit, requiring the permanent employment of capital to a considerable amount will have been set on foot. Example[s]:

  1. 1. Manufactories of articles suitable to the local wants and means of supply.

  2. 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. pg 1103. Reservoirs for the preservation of a supply of water in extraordinarily dry seasons: for example by wells dug in apt places, and water raised from them by horse power or a steam engine.

  4. 4. Embankment of rivers in their course for the purpose of irrigation, or for giving motion to mills.

  5. 5. Erection of a prison on the Panopticon plan for deriving profit from the labour of prisoners.

  6. 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, directed by Geological observations, their existence has been discovered. To conduct it with advantange 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 would not lose any thing. For the effect of such claim is neither more nor less than 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.

4. In such a state of things, individual foreigners would by degrees be found who would venture to embark their capitals in enterprizes of such descriptions as the above.

5. Loans might even be obtained by Government for the establishment of any such public works as might be too great for the purses of individuals. This advantage will receive considerable facility from the extraordinary accumulation of capital that has taken place of late years in the European nations, and the diminution in the rate of annual profit in return for the use of it.

6. The Pacha's revenue consists in the whole or in great part in a tax on the produce of the soil. Such produce can never receive any considerable encrease, but from a proportionate encrease in the quantity of labour and money laid out upon it in the shape of capital: and the quantity of capital can never receive any considerable encrease but from a correspondent encrease in the degree of general security: and the degree of general security can never receive any considerable encrease but from a correspondent change in the constitution. Where in respect of person and property every man's lot depends upon the momentarily changeable and never assuredly cognoscible will of a single individual, no human being in the country can with reason regard himself as safe, and least of all the Sovereign. By keeping every human being in the country in a state of perpetual insecurity, danger and alarm, he converts every man into a natural enemy pg 111and keeps himself in the character of an enemy to them, exposed to hostile retribution at their hands.

7. Supposing the system established, his nation, and above all he as the head of it, will be illustrious among, and even above, all the Sovereigns of Europe and the other parts of the Christian world. In every one of these instances without exception, whatever portion of power has been given up—whatever change has been made for the better in the condition of the people in the character of subjects, it has been the work of necessity, not of free will on the part of the Monarch. By the supposition, the change is not only on his part altogether voluntary, but it is his own work. By the supposition, there will be no difficulty in making it known that it is so: all the circumstances by which it is [transacted]1 will be conveyed to England, and blazoned forth in the English Newspapers: from whence they will find their way into those of the Anglo-American United States, and in the mean time to the liberal French Newspapers, if with any tolerable hope of safety they can be published there.

8. Coupled with this intelligence would be that of the encouragement given to the useful arts and sciences of modern European invention by the translations made of works of that class into Arabic and the lectures read in the Tripolitan Universities.2

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.

9. 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 others put together, would be drawn to Tripoli, and as none of them would go thither but with money in their pockets, here may be seen another channel through which capital will flow into it.pg 112

Notes

a Generally speaking, legislative arrangements that have been established or been endeavoured to be established for the security of the governed against the governors have for their expectations of success trusted to force actually in hand: if not to force in a state of independence, as in the Anglo-American United States,1 at any rate to force in a state of resistance, as in England in the Petition of Right under Charles the first, and in the Bill of Rights, passed on the occasion of the transference of the Crown from James the 2d. to William the third: and in France, the Declaration des Droits de l'Homme issued by the earliest of the successive National Assemblies.2

This sort of title has in itself a radical defect: it presents no conception of the object which it has in view: the object which it really has in view is—no other than that which is here expressed—the affording to the governed security against misrule—i.e. bad government at the hands of their governors. Nothing can be dearer than the meaning given to the word security: nothing, for the present purpose at least, can be clearer than the meaning given to the word bad government—or as their signification stands expressed by a single word—misrule.

If in place of the words securities and misrule, you employ such a word as right, a cloud, and that of a black hue, envelops the whole field. The attitude you take is restless, hostile, and menacing. You shew that you are in discontent, but you shew no clear grounds for your discontent. What you give intimation of is—though even to this no explicit expression is given—that some rights of yours have by somebody or other been violated, and that a determination has been formed by you not to sit still and see them violated any longer. But these rights the violation of which is thus declared, from what source is it that they are derived? To any such word as right no clear conception can ever be attached, but through the medium of a law, or something to which the force of law is given: from a really existing law comes a real right: from a merely imagined law nothing can come more substantial than a correspondently imagined right. Lay out of the case the idea of a law, and all you get by the use of the word right is a sound to dispute about. I say I have a right: I say you have no such right. Men may keep talking on at that rate till they [are] exhausted with vociferation and rage, and when they have done be no nearer to the coming to a mutual conception and agreement than they were before.

On the other hand, if no demand for security against misrule can have place until—and except in so far as—some law is violated, no such security can possibly be obtained in the case in which it is most needed: for the case in which it is most needed is that in which, the laws being altogether at the command of the rulers—the very work of their hands, no violation of law can be needed for the accomplishment of the misrule: on the contrary, the more frequent and extensive the violations of the law are, the more extensive is the mitigation thus given to the evil for the production of which they were established.

By the phrase Securities against Misrule, all this perplexity is avoided.

But the great advantage of it with reference to practice is—that it is employable, and with equally undisputable aptitude, in every state of the society: whatsoever is the condition of the governed under or in relation to the governors. 1. It may be employed by a sovereign representative body on the occasion of the establishment of the constitution of the State: 2, it may be employed not only under a Monarchy, but under a Monarchy altogether absolute, unless in so far as by the very arrangements in question a limit or at least a sort of bridle to his authority is regarded as being applied.

On this latter account it is, that—in one event at least—i.e. upon the supposition that the form of government continues unchanged, it will be found, to the exclusion of every other sort of phrase, capable of being applied to the purpose.

For the subjects to say to the Sovereign—'This or this is our right—say or do what you will'—is as much as to say—'You are no longer Sovereign'. For the Sovereign to be made to say—'You have such or such a right as against me'—or, 'I have not such or such a right as against you', is as much as to say—'I am no longer your Sovereign'.

On the occasion of the here-proposed arrangements, the course taken is—to put them in such a form that, with the government still in the state of an absolute Monarchy, they may possess whatsoever chance of acceptance can in the nature of the case be possessed by arrangements of the same or equally effectual import, aiming at the same object: but if, even in so unfavorable a state of things, a paper in this form may possess a chance of answering its wished for purpose, in proportion as the state of things is more and more favorable, its aptitude will be still less and less exposed to doubt.

That, otherwise than by fear of evil, a Sovereign can be brought to consent knowingly to tie up his own hands is generally speaking too much to expect. But what without such fear he may perhaps consent to do, with less reluctance at least, is to tie up in the way in question the hands of his Agents: in which case matters may be so managed, as that without knowing it he may thus be made to throw obstacles in the way of his own steps in so far as they proceed in a sinister direction.

a Note that, in so far as all future evil is out of the question, the loss to sufferers being supposed the same, the evil produced by depredation is less than that produced by barren vexation by destruction and otherwise: for in the case of depredation, though the enjoyment produced is less than the suffering, still to set against the suffering there is the enjoyment.

But, when the future is taken into the account—the future, pregnant with the danger and the alarm—then it is that the evil from depredation may be seen to be greater than from barren vexation: the inducement that excites men to the productive injury being so much more extensive and constant, as well as commonly stronger in its operation, than that which excites them to the barren one.

Thus it is in the case where a community is plundered by its rulers by the support given to an unnecessary war: suppose two such wars, and the sums extorted for the purpose of the war the same in both, the one in which depredation to the greatest amount has had place is thus far the least mischievous. If during the course of the war a million of money is paid for gunpowder to the makers, better it is for the community that the half of it be put in the shape of profit into the pocket of the makers, than that the whole be converted into gas, producing or not producing the destruction which it was intended to produce.

Only to aid conception are the above suppositions put: for, how far they are from being ever exemplified is sufficiently manifest.

a On this subject, namely the interdiction of the party defamed in an action for defamation, a general error and confusion of ideas has place at all times in the English mind.

If the discovery of the facts of the case be the object, nothing can be more absurd than the exclusion put upon the testimony of the individual who it is certain knows more of them than any other individual whatsoever, and by whom in case of delinquency every possible endeavour has commonly been used to keep them from the knowledge of every individual who on the occasion in question was not in confederacy with him.

Impunity is thus secured to every delinquent to the proof of whose delinquency the extraction of his own testimony is necessary.

Nothing can be more absurd than the use so commonly made on this occasion of the words tenderness, humanity, and so forth. If on the score of tenderness, humanity or whatever else be the word, there were any good reason to inhibit the extraction of the evidence of a party accused, there would be much better reason on this same score for inhibiting the extraction of the testimony of every other person whatsoever. For what other person can there be of whom it is so sure that he will avoid doing injury by his testimony to the person in question, as this same person himself will?

The accident of a man's delinquency being known or not known to persons other than himself can not have any thing to do with any claim which on the score of tenderness, humanity, or whatever be the word, a man can have for remission or mitigation of punishment. It has nothing to do with any of the circumstances by which the turpitude of delinquency is encreased or lessened: nor with any of those other circumstances by which a reasonable demand for remission or diminution of punishment is created.

Absurd and mischievous as it is, the rule by which such extraction stands inhibited appears to have had its origin in one which is plainly and undeniably a reasonable one. The words of it are in Latin. For this language being a generally unintelligible one was accordingly a favorite one to English lawyers. The words of it were in Latin: Nemo tenetur accusare seipsum: No man is bound to accuse himself.

Of the religious tyranny established by Queen Elizabeth1 one feature was the authorizing the Inquisitorial Judicatory created under the name of High Commission Court to force a man to appear before the Judge or Judges and make answer to questions calling upon [him]2 to state what his opinions were on all points whatsoever at their choice. But to hold on this or that point this or that opinion was at that same time an outrageously punishable, and in some instances a mortally punishable, offence.

In this way the same tyrant who inflicted the punishment, gave birth to the offence, for the purpose of giving [herself]1 a pretext, and such was the effect of the law made on the occasion in justification for the infliction of the punishment.2 Thus was the [… ?] victim placed between two fires: a real one if what he said were true: an imaginary one, but, being in imagination eternal, not less terrible for being imaginary, if in what he said there were any thing that were false.

Even in this case the application of the word accuse was improper and an abuse of words. To accuse is one thing: to give testimony is another: a man may make accusation without giving testimony: a man may give testimony without making accusation. To accuse is to call upon the Judge, expressing a desire that in the case in question he will inflict punishment on the party who is the object of the accusation.

The thief who being apprehended on suspicion of what he has done, and accordingly on being asked what he chooses to say on the subject, chooses to answer to this or that effect in the hope of saving himself from being provisionally sent to a prison—this malefactor or any other malefactor—is it really his desire to undergo the punishment? Thus palpable are the absurdities into which rational beings may be led by following one another without reflection, like sheep or geese.

Vast in an incalculable degree is the evil produced by this absurdity on English practice. Immense is the addition it makes to the rigour of the penal system: immense again is the addition it clearly makes to the mass of criminality: for the greater the rigour of the punishment, the greater on the part of a humane people the reluctance to contribute to the execution of it.

Two classes of men have contributed to the establishment of this error: namely, 1. Lawyers, in virtue of that interest by the pursuit of which their endeavours have in all countries and at all times been engaged in the maximization of the aggregate number of delinquencies in every punishable shape: 2. delinquents themselves.

Under all governments, without any exception other than that of the Anglo-American United States, and under the English Government in particular, among delinquents have at various times been numbered those members of the country that have deserved best of it, and to a great extent been thought to do so—understand those by whom opposition has been made to those by whom the powers of government have been exercised, accompanied in some instances with the endeavour to substitute to the bad government in which they lived some other form in a greater degree contributory to greatest happiness. Till the Anglo-American Government made its appearance, no system of law having really had for its object the greatest happiness of the greatest number, nor any other object than the greatest happiness of the governors and those who shared with them in a community of particular and sinister interest, at all times the security of governors against [the governed]3 was the main object of the system of laws, at no time the securing of the governed from depredation and oppression at the hands of the governors. At all times it has therefore been the interest of the greatest number that the laws made for the support of rule should have as little strength and efficacy as possible.

This being the case it is better, or to speak more properly less bad, for the people—it is in the greater degree contributory to the greatest happiness of the greatest number, that this rule of law, absurd and mischievous as it is, should be observed in every application made of it, than that it should cease to be observed in every application made of it. Why? Only because such is the depravity [of] the constitutional branch of the penal law, or say the penal branch of the constitutional law, that more good is done by the enfeeblement of this branch than evil by the enfeeblement of every other.

In those circumstances that which would be best to be done is sufficiently obvious. Leave the rule in existence in so far as it applies to this class of offences, abolish it in its application to all others.

Mean time the propriety of this course is not more indisputable, than is the certainty of its not being pursued. For to pursue it would be to confess that the political part of the penal system is what it is—a system of tyranny: a confession of which assuredly no reasonable expectation can be entertained.

A better course still and only positively good one would be to abolish the whole of this branch of the penal system. But if the less bad course is impossible, the only good one is one impossibility mounted upon another.

a 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.

a Example, For the purpose of causing a person to be disinherited or otherwise made to suffer by an over-severe or tyrannical father, husband or master, an enemy 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.

a As of enjoyment, so of sufferance, mind is the sole immediate seat. In this one vulnerable point is included (it may therefore be observed) all these others. But either through one or more of these five distinguishable points, considered as so many channels, may the sensation be produced, or in an immediate way, without passing through any one of them. The word mind has on this occasion been found necessary in the character of a receptacle for giving lodgement to various modes of vexation not produced through any one of these other vulnerable points.

Vexation is produced in the case where property is the vulnerable point on which the oppression bears. But in this case it stands designated by the more particular name of depredation or spoliation.

Remain for vexation, and oppression in the narrowest sense, the cases in which it is in mind immediately, or through body, reputation, power, or condition in life, that the vexation is produced.

b Extortion of 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

Notes Settings

Notes

Editor’s Note
1 Fragments with the marginal sub-heading 'Misrule—shapes' are at UC xxxiv. 160v (10 October 1822), xli. 179v (28 October 1822) and xxiv. 176 (26 November 1822).
Editor’s Note
1 A further draft on the subject of publicity and the public opinion tribunal is at UC xxiv. 231–3, 177–85 (26, 28–9 November 1822). Other fragments are at UC xxiv. 135 (2 October 1822) and xxiv. 186–8 (24 December 1822).
Editor’s Note
1 In the text, Bentham noted at this point, '☛ Here add the list as soon as settled', presumably a list of the titles of §§4–17, which deal with the topic of publicity.
Editor’s Note
1 The addition is suggested by the marginal summary; 'Note, among these members are all persons on whose obedience depends the effect of the vexation-prohibiting ordinances, and of ordinances violating ordinances and acts.'
Editor’s Note
1 There is no text corresponding to the following marginal summary, which belongs here: 'The suffrages here meant are not the external but internal: it is by internal that action of the same person is influenced: by the external alone action of other persons. Only in respect of their effect on action are their suffrages, i.e. opinions, worth regarding.'
Editor’s Note
2 MS 'II'.
Editor’s Note
1 For the four major schools of religious law, the Hanafi, Shaft, Maliki and Hanabila, see 'Account of Tripoli', §4, p. 10 above.
Editor’s Note
1 The corresponding marginal summary paragraph is headed: 'I. Disadvantages of these Commentaries or inferential standards of reference compared with modern sanctioned Ordinances.'
Editor’s Note
2 There is no text corresponding to the following marginal summary, which belongs here; 'II. Disadvantages as compared with Books of Reports and Treatises grounded on them. Reports bring to view actual particular cases presenting demand for legislation: Commentaries as above, not.'
Editor’s Note
3 The corresponding marginal summary paragraph is headed: 'III. Disadvantages of even the best-penned European Codes of Ordinances.'
Editor’s Note
1 MS 'it'.
Editor’s Note
2 The marginal summary differs slightly from the text at this point: 'Still more persuasively operative must those imperfections be where of no one has the greatest happiness been distinctly aimed: not even that of the ruling one or few with whose happiness that of the many will every where be more or less connected: his happiness being more or less dependent on theirs. So likewise as to indeterminateness of the diction, in particular that which regards the designation of the several sorts of acts to which, under the notion of their being pernicious to the community or disagreable to rulers, punishment is attached.'
Editor’s Note
1 i.e. collections of Ordinances.
Editor’s Note
1 MS 'from'.
Editor’s Note
1 The following fragment on this theme is at UC xxiv. 172 (2 November 1822): 'If in the event of an act of oppression exercised by the Sovereign, and a deposition stating the transaction, made before a pair of Notaries attached to a Mosque, or before the Cadi of a Judicatory, copies were sent to all the several other Judicatories, might not a representation in which the whole body or a considerable part of it concurred be presented to the Sovereign, and rendered publickly notorious all over the Capital and elsewhere with very little danger to the individuals concurring in it? If no more than a single Iman or no more than a single Cadi were to present to the Sovereign a representation of this sort, he might be tempted to render the troublesome man shorter by the head. But under any Pacha that ever sat or any Pacha that is ever likely to sit on the throne, is it likely that the whole body of these functionaries to whom the attachment of the people it seems is so strong, the whole body or any considerable part of it, would be apprehensive of such a fate? 'Be this as it may, what seems evident enough is—that the greater the number were of these respected functionaries that joined in a representation of this sort, the less the cause they would have to apprehend destruction or oppression at the despot's hands.'
Editor’s Note
1 No MSS for this section have been indicated on the plan at UC xxiv. 191 (14 November 1822), and none appear to have been written.
Editor’s Note
1 MS '1. the greater the number of the suffrages by which, on each occasion, the motions made by this representative of the people are taken for their ground'.
Editor’s Note
2 In the margin, Bentham added a further circumstance: 'the quantity of talent in all shapes employed in the composition of it'.
Editor’s Note
1 In the margin, Bentham added at this point: 'it being understood that the frequency is not greater than once in four and twenty hours'.
Editor’s Note
2 MS 'generally'.
Editor’s Note
1 Bentham did not consider the fourth point, 'Cheapness'.
Editor’s Note
2 The addition is suggested by the marginal summary: 'Effect of the exclusive mode, insipidity'.
Editor’s Note
3 MS 'which'.
Editor’s Note
4 Bentham seems to contradict himself by maintaining that a newspaper may appear partial to a group of readers to whom the same newspaper appears impartial. His point was that the newspaper, despite its actual impartiality, might appear partial to readers of both parties. See the corresponding marginal summary: 'Of impartiality, profession easy; practice difficult: nor from actual follows reputed ditto, but reputed partiality in the eyes of both.'
Editor’s Note
1 MS '1. One sort of article by which an interest more or less extensive can not fail to be excited is—an indication'.
Editor’s Note
2 MS 'away'.
Editor’s Note
1 According to 'Stamps issued for Newspapers', ordered to be printed by the House of Commons 2 May 1822, House of Commons Accounts and Papers 1822, xxi. 381–4, there were 24,779,788 stamps issued in 1821, yielding a revenue of £412,996.
Editor’s Note
2 Bentham had encouraged D'Ghies to write to his father recommending him to send twelve boys to Hazelwood School, which had been founded at Edgbaston, Birmingham, in 1819 by Thomas Wright Hill and his sons Arthur, Rowland and Matthew Davenport Hill: see 'Bentham to Adams', p. 150 below.
Editor’s Note
1 Abandoned fragments relating to topics discussed in this section are at UC xxiv. 180 (n.d. December 1822) and xxiv. 239 (10 December 1822).
Editor’s Note
1 MS 'evil'.
Editor’s Note
2 In the text, Bentham noted at this point: 'Quere.'
Editor’s Note
1 The addition is suggested by the marginal summary: 'First, as most conspicuously existing, and extensively and constantly operating, Newspaper Editor: viz. in a State, for example England, where, howsoever legally manacled, to a certain degree he is in practice free.'
Editor’s Note
1 MS 'three'.
Editor’s Note
1 See I Timothy 6: 15.
Editor’s Note
2 This list of functions differs slightly from that given in Sub§ 1, pp. 54–5 above.
Editor’s Note
3 The remainder of this list and the following two paragraphs are in the hand of the copyist, but bear additions, deletions and emendations in Bentham's hand.
Editor’s Note
1 MS 'are'.
Editor’s Note
1 In the text, Bentham noted at this point: '☛ Here state the superior utility and efficiency as compared with practice of Ordinary Judicatories.' He expanded on this theme in the marginal summary: '7 and 8. Giving impression, multiplication and diffusion to the above. This is done in the ordinary and constant course of his [i.e. the Newspaper Editor's] business. By him done constantly and compleatly. By Ordinary only casually: and rather permitted by them than done. By many not permitted.'
Editor’s Note
1 MS 'with'.
Editor’s Note
2 In the text, Bentham noted at this point: '☛ Quere whether to insert this?'
Editor’s Note
3 See Sub§ 1, pp. 55–6 above.
Editor’s Note
4 In the text, Bentham noted at this point: 'Are not the elements of political power considered in some part of Constitutl. Code 1822 and Letters to Toreno?-—if so they must be consulted. Modes of Subordination certainly are.' For such a discussion see 'Economy as applied to Office', Ch. 1, §§4–6 and Ch. 4, in First Principles preparatory to Constitutional Code, ed. P. Schofield, Oxford, 1989 (CW), pp. 6–12, 30–9. A similar discussion does not however appear in Letters to Count Toreno on The proposed Penal Code, delivered in by The Legislation Committee of The Spanish Cortes, April 25th, 1821, London, 1822 (Bowring, viii. 487–554).
Editor’s Note
1 MS 'the comparative magnitude of the evil to which in the case of a rival possessor of power'. The emended text follows the sense of the marginal summary: 'In case of competition between power-holder and power-holder, superiority of the evil the one can inflict on the common subject in comparison of what the other can.'
Editor’s Note
2 In the marginal summary, Bentham added a qualification to the second and third points, namely 'saving scission'.
Editor’s Note
3 Bentham did not consider the fourth point in the preceding list here, where he deals with the points in which the unofficial judicatory was strong in comparison with official judicatories, but further on where considering the points in which it was comparatively weak (see pp. 87–73 below). The enumeration of the final two points is therefore not consistent with the above list.
Editor’s Note
1 See Sub§ 2, pp. 56–60 above.
Editor’s Note
2 Bentham did not raise this point in Sub§ 2 above, but see Constitutional Code, vol. I, ed. F. Rosen and J.H. Burns, Oxford, 1983 (CW), Ch. V, §4, Art. 2, p. 35.
Editor’s Note
3 There is no text corresponding to the following marginal summary, which belongs here; 'Correspondent in extent to its power over persons as above, is its ditto over things belonging to ditto persons.'
Editor’s Note
1 In the margin, Bentham noted at this point:'☛ Consult Thomson on Medicine for the nomenclature.' See Alexander Thomson, The Physician; or, Domestic Medical Friend, 2nd edn., London, 1807, p. 98: 'Worms are chiefly of four kinds: the large round worm; the very small maw-worm, or ascarides, resembling bits of thread; the short, flat worm, or cucurbitina; and the jointed, called the tape-worm, or tænia, which is sometimes many yards long.'
Editor’s Note
2 MS 'this class'. The emendation follows the sense of the marginal summary: 'Both depredators being innate in every government, they are so even in the purest representative democracy: sole government founded on greatest happiness principle.'
Editor’s Note
1 MS 'three'.
Editor’s Note
1 MS 'by him'. The reference here is to 'these men', i.e. the corruptionists in expectancy: Bentham seems inadvertently to have used the singular instead of the plural.
Editor’s Note
2 MS 'his'.
Editor’s Note
1 According to 'Stamps issued for Newspapers', Home of Commons Accounts and Papers 1822, xxi. 381–4, the revenue derived from this source in 1801 had been £234,571, and in 1821 £412,996,
Editor’s Note
2 In the margin, Bentham noted at this point, 'the immensity of the mass of the matter of corruption affording so many ['?] for sharers in it and supporters under it', but it is unclear where this phrase should be placed.
Editor’s Note
3 In the text, Bentham noted at this point: '☛ Add the gratification to individuals even of the most servile party—corruptionists in expectancy and even corruptionists in possession—from the entertainment, particularly the scandal part of it.'
Editor’s Note
1 A draft of this Address is at UC xxiv. 1–4 (4–5 August 1822) and a partial fair copy at xxiv. 9 (28–9 January 1823). The text is in the hand of the copyist but bears additions, deletions and emendations in Bentham's hand.
Editor’s Note
2 The Koran does not contain these words as such, but cf. sura iii, verse 159 and sura xlii, verse 38, where the ruler is invoked to take counsel in matters of administration.
Editor’s Note
3 According to the orthodox view, Mohammed was not himself responsible for the transcription of the Koran, as Bentham suggests; Ms revelations, which were delivered orally, were memorized or written down by his followers and only after his death collected together to form the Koran.
Editor’s Note
1 Presumably an allusion to the 'preserved' or 'well-guarded' tablet, mentioned in the Koran at sura lxxxv, verse 22, in which all events, past and future, have been recorded.
Editor’s Note
1 Bentham may have intended to insert the following passage from UC xxiv. 10 (29 January 1823) at this point: '"When by the blessing of God the fruit of their labours has encreased, then, by the like same blessing may thy share of it receive encrease. That fruit can not encrease till their assurance of having it at their disposal shall have encreased. That assurance can never be encreased, so long as without any consent of theirs it can be taken at any time out of their hands."'
Editor’s Note
2 A fair copy of this Address is at UC xxiv. 15–17 (20 August 1822). A related fragment is at UC xxiv. 18 (7 October 1822).
The following explanation, headed 'Reconnaissance de Droits', which Bentham wrote for D'Ghies' benefit, is at UC xxiv. 50–1, 53, 52 (18 August 1822); 'I. Reconnaissance—raison pour employer ce mot.
'Le projet de manifeste ayant pour but la sûreté du peuple contre les abus de pouvoir de la part du Souverain—on propose de le désigner par quelque titre ambigu et capable de recevoir l'une ou l'autre de deux interprétations sérieusement différentes en effet: savoir, 1. la récognition des droits en question comme déjà existant d'eux-mêmes et n'ayant besoin de l'acte du Souverain pour les confier: 2. la concession de la part du Souverain, mais provisionellement seulement, le Souverain et ses successeurs étant censé se réserver le pouvoir de révoquer, quand bon lui semble, ce que par ces présentes il accord[e].
'Si les droits étaient décidément regardés comme déjà existans sans lui et indépendamment de sa volonté, le danger est qu'il n'y auroit pas moyen de l'engager volontairement à signer l'écrit en question: la répugnance étant universelle nonseulement de sa part mais aussi de la part de la majorité, pour ne pas dire la totalité, de ceux auquels il aura communiqué l'affaire.
'Si ces mêmes droits étoient décidément regardés comme étant originairement dépendant de sa volonté, le danger est s'il lui arrivoit de les révoquer en tout ou en partie, ou, ce qui reviendroit au même, de les enfreindre de même sans les révoquer, les sujets seroi[en]t disposés à souffrir la révocation sans réclamation, et sans la regarder comme une injustice.
'II. En cas d'adoption, moyens de publication pour le présent et pour toujours.
'1. Déposer aux Archives avec formalité l'original signé de la main du Souverain: c.-à-d. le papier même qu'il est supposé avoir lu dans la grande Mosquée.
'2. Ne seroit-il pas convenable de le faire écrire en grandes lettres d'or, et sur un fonds noir pour plus de relief?
'3. Envoyer un exemplaire à chaque Tribunal pour y être toujours suspendu en grandes lettres, le tout sur une seule et même surface de façon à en être constamment vu le tout ensemble par tous les assistans. Comme le nombre de ces tribunaux ne passe pas 15 ou environ, ne pourroient-ils tous ces exemplaires recevoir la signature du Souverain?
'4. Envoyer de même un exemplaire à chaque Mosquée pour y être de même en tout tems devant les yeux de toute la congrégation.
'Le motif ostensible et même un des motifs véritables seroit pour donner une étendue correspondante à la gloire du Souverain et à la reconnaissance et l'amour du peuple.
'Un motif non prononcé et plus important seroit de lier la volonté du Souverain et de ses successeurs en déterminant les sujets partout de ne pas viser la révocation ou l'infraction des concessions sans faire leur possible pour l'empêcher.
'Moyens de parvenir.
'1. Commencer par envoyer au Chef de chaque Tribunal séparément un exemplaire du papier proposé pour sonder son opinion. Dans le cas de chaque Tribunal seroit-il mieux de l'adresser au Chef seulement, en lui recommandant le secret, ou au Chef officiellement pour être communiqué à tous les Membres du Tribunal à la fois?
'2. Supposant réponse favorable de la part du plus grand nombre des Tribunaux, et peu favorable de la part des autres. Que faire? Pourroit-on les faire s'assembler dans la Capitale? et avant l'assemblement, conviendroit-il de faire connoître aux répugnans que la majorité est contr'eux?
'Quelle seroit l'autorité à laquelle il conviendroit de commencer pour sonder les esprits? 1. Le Souverain même? 2. Parmi les personnes qui l'entourent, celles censées avoir la plus grande part à sa confiance? 3. Les membres des Tribunaux comme ci-dessus?
'N'est-il pas vrai que le motif principal sur lequel on compte, ou au moins un motif, est son besoin d'argent? Si cela est, qui sont les personnes que l'on regarde comme capable[s] d'induire les autres sujets à fournir la contribution qu'on se proposeroit de donner? Ces personnes ne seroi[en]t-il[s] pas celles desquelles on s'assureroit d'abord? en suite de quoi, leur consentement supposé, il faudroit être d'accord sur la somme que l'on proposeroit de lui offrir.
'Si on commençait de cette manière, ne seroit-ce pas un moyen d'éviter tout soupçon de la part du Souverain? Étant le premier objet dans l'ordre du tems, l'affaire de subvenir à ses besoins auroit la mine d'avoir été regardée comme l[e] premier dans l'ordre de l'importance: et l'obtention de la Reconnaissance de Droits ne paraîtroit qu'un moyen du second ordre employé pour faciliter l'obtention de l'objet principal.'
Editor’s Note
1 The Koran does not contain these words, but similar sentiments are expressed in a saying of Mohammed narrated by both al-Bukhari and Muslim: see Mishcàt-ul-Másábìh́ or A Collection of the Most Authentic Traditions, regarding the Actions and Sayings of Múhammad, trans. A.N. Matthews, 2 vols., Calcutta, 1809–10, ii. 211–12.
Editor’s Note
1 The following fragment, at UC xxiv. 136, 147 (9 October 1822), explains the division of the securities into 'Generals' and 'Details' and the scope of the securities: 'The proposed legislative provisions, proposed in the character of means of Security, or in one word Securities against evil in the shapes in question, are divided into two classes. In the first are placed those which are conceived in general terms: in the other those provisions of detail which have for their object the giving execution and effect to those which are in general terms. Without the particular ones, the correspondent general ones would be in a great degree, if not altogether, inefficacious: without the general ones, the design of the particular ones might not be universally and clearly understood.
'Be the subject what it may—be the persons in question who they may, in vain would rules imposing or endeavouring to impose obligations on those persons be laid down if from non-fulfilment no penal consequence were to follow. Hence it is that from beginning to end provisions of a penal east—belonging as such to the penal branch of law—could not fail to be interspersed.
'Of the evils producible in the condition of individuals by the action of individuals, not one is there which directly or indirectly is not producible in them by the action of the Sovereign who ever he may be. But in this boundless aggregate there will be some which are not in use nor much in danger of being produced by hands so situated. Are these then to be left without remedy? No certainly. But for these together with all other evils that are regarded as such, remedies, such as they are, are applied by those arrangements in the framing of which the hands of individuals only, and not those of the Sovereign or any person whom he is disposed to give authority, licence or impunity, are [regarded as] the peccant hands. Calumnies for example, or personal injuries, or injuries to marital or paternal rights, are not in the natural course of things in a way to be inflicted by the hands or by the order of persons so situated. The reason why these subjects have not been taken in hand is that to those cases the particular remedies here provid[ed] are either needless or inapposite.
'Another class of evils which do not belong to the case in hand are those which consist in depredation or waste in the case where the subjects of these misdeeds belong not to the stock of individuals but to that stock which is at the hands of government, of the persons by which the powers of government are exercised.
'The reason why these cases are left untouched is—that in these cases remedies of a different kind are necessary and those which are here provided would have little or no application.'
Editor’s Note
2 This sentence is in the hand of the copyist, but bears emendations in Bentham's hand.
Editor’s Note
1 This heading and the following two paragraphs are in the hand of the copyist, but bear emendations in Bentham's hand. The original draft is at UC xxiv. 18 (20 August 1822).
Editor’s Note
2 The enumeration of the articles is continued in the marginal summary, though not in the text.
Editor’s Note
3 The addition is suggested by the marginal summary: 'By signs visible or audible any man may express and in any way and to any extent make public whatsoever it is in his eyes conducive to greatest happiness that men be informed of.'
Editor’s Note
1 This and the following article are in the hand of the copyist, but bear additions, deletions and emendations in Bentham's hand.
Editor’s Note
1 Under the heading of 'Details', Bentham does not appear to have considered the topic 'I. Religious Persecution'.
Editor’s Note
1 The addition is suggested by the marginal summary: 'Issuing or contributing to issuing, or execution, of order for seizing etc.'
Editor’s Note
1 There is no text corresponding to the following marginal summary, which belongs here: 'Annoying any person on account of his having been engaged in such exercise.
'Modes of obstruction: 1. Force. 2. Intimidation. 3. Deception. 4. Corruption.'
Editor’s Note
1 MS 'places'.
Editor’s Note
1 See the fourth point above.
Editor’s Note
2 According to the marginal summary, the bringer 'shall give earliest possible notice of commitment and its cause' both to the 'Keeper of the ordinary prison' and to the 'President of the Judicatory in whose district the extra prison is'.
Editor’s Note
1 In the marginal summary, Bentham added; 'if no [i.e. if the prisoner was not in his custody], Keeper falsely answering or not answering, punishable at discretion'.
Editor’s Note
2 The marginal summary is more detailed than the text here: 'For responsibility, applicant, on requisition by Keeper, is bound to make known to Keeper his name, condition in life, and abode. On his silence or false answer. Keeper still bound to answer, but the inquirer punishable as for vexation.'
Editor’s Note
3 In the text, Bentham noted with relation to this paragraph: '☛ Quere whether to insert this?'
Editor’s Note
1 This point is not included in the text, but is taken from the marginal summary.
Editor’s Note
2 MS 'are'.
Editor’s Note
1 The marginal summary is more detailed than the text here: 'Of such application with the alledged grounds of it, let entry be made, including examination of all apt witnesses suggested by applicant or Judge, Name of the application—information of mysterious disappearance—name of the written discourse containing the evidence—record of mysterious disappearance etc.'
Editor’s Note
1 There is no text corresponding to the following marginal summary, which belongs here: 'On receiving such record, power to Judicatory or Iman to compell attendance of all apt witnesses.'
Editor’s Note
2 In the marginal summary, Bentham added: 'Of each the name and description sufficient for responsibility must be given: else no record made.'
Editor’s Note
1 MS 'If by legal means employed is obtained for the purpose of obtaining evidence … particular right'.
Editor’s Note
1 MS illegible.
Editor’s Note
1 By 'requisitionist' Bentham meant the person on whom the requisition was made, rather than the person who made the requisition.
Editor’s Note
2 In the marginal summary, Bentham added: 'Duplicate of receipt with requisitionist's signature kept at the Office or by the functionary receiving.'
Editor’s Note
3 A further draft on this topic, which Bentham finally considered inappropriate for use here, is at UC xxiv. 142–4 (7–8 October 1822).
Editor’s Note
1 This enumeration corresponds closely to that of the marginal summary paragraphs in 'IX. Security against Official depredation', pp. 97–9 above. Bentham seems to have intended to organize the material on depredation, and possibly the whole of the 'Details' section, into distinct articles: see the Editorial Introduction, p. xxvn above.
Editor’s Note
2 On the plan at UC xxiv. 190 (8 October 1822), under the heading 'Procedure or Collection of Evidence', Bentham listed the following points: '1. Publicity saving special cause for secrecy. 2. Means of securing deposition and verity of ditto. 3. Minutation—mode of. 4. Power of interrogation to Bystanders. 5. Attestation by bystanders.' For a discussion of these topics see 'VI. [Security] against secret and unlawful homicide', pp. 92–4 above.
on the other. In so far as to the individual in question labour is a source of profit, forced labour is loss to an amount equal to the profit which in the time so employed by him might have been gained.
Editor’s Note
1 For the placing of this section after 'Constitutional Securities' see the Editorial Introduction, p. xxiv above.
Editor’s Note
2 i.e. 'any such arrangement', as per marginal summary.
Editor’s Note
1 Under the ancient monarchy in France, Royal decrees had to be registered by the Paris Parlement before they came into force. If the Parlement remained opposed to a particular decree, the King could impose his will by means of a Lit de Justice, whereby he appeared ceremonially at Parlement in order personally to supervise the registration.
Editor’s Note
2 There is no text corresponding to the following marginal summary, which belongs here: 'Cause of demand: 1. Personal expenditure. 2. Defensive war. 3. Offensive ditto for depredation or conquest.'
Editor’s Note
3 In the text, Bentham noted at this point: 'Add 3. Love of reputation. 4. Sympathy for the people.' In the marginal summary, he added the following points: '3. Sensibility to the love of reputation. 4. Sensibility to the love of power thus exercisible in a new way. 5. Sensibility to the happiness of his subjects.'
Editor’s Note
1 The enumeration follows that in the marginal summary.
Editor’s Note
1 A further but apparently incomplete draft of this topic, headed 'The Sovereign's inducements to concurrence' and dated 14–15 November 1822, is at UC xxiv. 382–77 (the final five sheets are in the hand of the copyist).
Editor’s Note
1 MS 'transmitted'.
Editor’s Note
2 Bentham and D'Ghies had discussed the feasibility of sending a scientific expedition to Tripoli (see the Editorial Introduction, pp. xviii–xix above), the members of which, it was hoped, would read a course of lectures and demonstrate equipment in the schools at Tajaoura and Zanzour (see UC xxiv. 23, 26, 38).
Editor’s Note
1 An allusion to the War of Independence 1776–83 fought by the American colonies against the Crown of Great Britain.
Editor’s Note
2 The Petition of Right was presented by Parliament to Charles I (1600–49), King of England, Scotland and Ireland from 1825, who gave his assent to it on 7 June 1628. The Bill of Rights, based on the Declaration of Rights submitted for acceptance to William and Mary, and outlining the terms on which they were to be offered the throne following the removal of James II (1833–1701), King of England, Scotland and Ireland from 1685 to 1688, received the Royal assent, as 'An act for declaring the rights and liberties of the subject, and settling the succession of the crown' (1 William and Mary, sess.2, c.2), on 16 December 1689. The Declaration of the Eights of Man and the Citizen was adopted by the French National Assembly on 26 August 1789, and with slight modifications incorporated into the French Constitution of 1791.
Editor’s Note
1 Elizabeth I (1533–1603), Queen of England and Ireland from 1558.
Editor’s Note
2 MS 'them'.
Editor’s Note
1 MS 'himself'. Presumably Bentham meant to refer to Elizabeth I.
Editor’s Note
2 Apparently an allusion to the Act of Supremacy of 1559 (1 Eliz, I, c. 1), in consequence of which the High Court of Commission was established on a statutory basis and empowered to investigate and proceed against 'heresies, errors, schisms, abuses, offences, contempts and enormities'.
Editor’s Note
3 MS 'government'.
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