Philip Schofield and Catherine Pease-Watkin (eds), The Collected Works of Jeremy Bentham: On the Liberty of the Press, and Public Discussion, and other Legal and Political Writings for Spain and Portugal
On the Course taken by the Legislative Committee, to prevent, otherwise than by Punishment eo nomine, the free Examination of their proposed Penal Code.
Sir!—I continue. On the subject of the word free, as here applied, a word or two in explanation may have its use: misconception and ungrounded imputation of error may be obviated by it.
When, in speaking of action on the field of government, use is pg 130made of the word freedom,—of freedom considered as designative of a possession capable of being infringed or violated—it is pretty generally understood, though perhaps not quite so generally as it were to be wished, that it is not merely by physical force, or fear, or sufferance of evil in this or that shape, but likewise by hope or receipt of good, that the infringement or violation of it is capable of being produced. It is in the case of Election to Office, that this extended acceptation seems to be most distinct and general: but, in regard to formation and manifestation of opinion, be the subject of consideration what it may, it will be found no less proper and needful. As evil is more easily producible, and capable of being carried to a higher pitch of intensity, than good, fear of evil, as applied to the purpose in question, is upon the whole the more efficient instrument of the two. But, though there are some cases in which the smoother instrument cannot be employed at all, and others in which both may be employed together, other cases again are not wanting, in which, while the rougher is altogether inapplicable, the smoother may be employed, and is continually employed, with perfect facility and sure effect. Examples may perhaps offer themselves, Sir, to your view before this letter closes.
I proceed. In my desire to give the utmost extent in my power, to whatever service my labours may be capable of rendering to my fellow creatures,—neither the nation, nor the government of which you bear so distinguished a part, could fail to be included. To the endeavours, already directed by me to this particular effect, you are not altogether a stranger; nor yet, I believe, to the difficulties which hitherto these same endeavours have found in their way. Of these difficulties of course not the least effective has been, the aversion with which the foreign productions in question have but too unquestionably been regarded—regarded by that same Committee, on whose work you were pleased to call for my observations: and, to speak plainly, yet I hope not improperly, the consequence is—my fixt apprehension, and that a very serious one, that as far as depends upon the gentlemen in question,1 unless some change should take place in their sentiments, the Spanish mind will be rendered inaccessible to me.
The liberty of the press is a topic, on which (as above) I have already touched, in one of those recent tracts which I hope are, ere this, in your hands.2 But that little work was completed and printed before this authoritative work of the Spanish Legislation Commit-pg 131tee1 was in mine. So paramount in my eyes is the importance of this liberty to good government—more so perhaps, supposing the separation possible, than even the form of government itself,—so intimate, at the same time, the connexion, between the liberty thus denominated, and whatever chance any work of mine may otherwise have, of becoming productive, in Spain, of any part of the effect aimed at by it,—that, on this occasion, in the course of my endeavours to obtain the access in question, I find myself unavoidably led to make some addition to what I have there said: and, what renders me the less scrupulous about troubling you on the subject, is—that thereby, to how small an extent so ever, my remarks, as far as they go, will be so many testimonies of my desire and endeavour to pay obedience to the commands, with which, Sir, you have been pleased to honour me.
The subject-matter in question being a proposed Code of Law, sure like every other human work to have its imperfections, the consequence is,—that if any remarks on it come to be received as desired, only in so far as, to an extent more or less considerable, indication is given of its imperfections, can any such remarks be productive of any use. Of any such imperfections, simple indication is of some use, and, by an operation of this sort, some service is rendered. To propose a corresponding alteration, if, and in proportion as, the alteration is well adapted to the purpose, is to render an ulterior and still greater service. On the presumption of its contributing to the melioration of the subject-matter, alteration is in the language of English legislation, adopted into the French, termed amendment. Amendment is either omission, insertion, or, which is a compound of the two, substitution. If this be true, of this cast therefore, and this only,—of this disapprobative cast, and not of the approbative cast,—are the remarks which a workman, really solicitous for the ultimate goodness of his work, will be desirous of receiving, and use his endeavours to receive.
To the truth of the above position, one exception indeed there is: and, to preserve the statement from the imputation of error or oversight, though the exception has no place in the present case, I will mention it. If so it be, that the work in question has been made the subject of delusive remarks, or insufficiently-grounded conclusions of the disapprobative cast, then so it is, that by counter remarks of an approbative tendency,—in a word, by remarks of a justificative cast with reference to the work, service may also be rendered.
Such then, and such alone, are the sort of remarks by the pg 132communication or receipt of which the greatest happiness of the greatest number can on the present occasion be promoted: receipt, namely by the two descriptions of persons, to whom in their respective situations it belongs to judge: by the legislators, that, for the benefit of their constituents, they may themselves put the remarks to use: by their constituents, that they may judge how far their representatives have put to use the information furnished to them, and thence how far they have given themselves a title to a renewal of confidence.
Unfortunately, in the eyes of legislators themselves, in the eyes of public trustees in whatever situation, no remarks of any such disapprobative cast is it their interest to see received by their principals: no such remarks would it be altogether agreeable to them to receive themselves, even if (what can scarcely be) they were assured that the remarks so received would not ever find their way to any one of those same principals. As to what regards liberty of discussion, the truth is, (how should it be otherwise?) in every country (so is human nature constituted), what every man desires is, to see all other men in possession of the most perfect liberty of making public all such ideas, by the publication of which the accomplishment of his views and purposes would, in his view of the matter, be promoted; to see no man in possession of any such liberty as that of making public any such ideas, by the publication of which the accomplishment of his views and purposes would, in his view of the matter, be impeded. If it be of human beings that the population of Spain is composed, this account of the matter will be no less applicable to that country than to any other.
In every political state, without exception, it has been the practice of rulers to employ the power attached to their situation, in the endeavour to give effect to this desire in both its branches; in every political state but one, this is still their practice. You will not, I hope, Sir, insist on my speaking of Spain as being that one. In my pamphlet on the liberty of the press and public discussion, I have already pointed it out: the Anglo-American United States.1
Correspondent to this desire is, in that same commanding situation, the regard entertained for all such useful truths in general as belong to the field of government. Ever anxious is this regard: but the expedient employed for securing access and acceptance to all such truths, at the hands of other men, is, in case of diversity of opinion, actual or possible, to prevent men from hearing any thing about the matter from any other than one side. What that side is may without much difficulty be imagined.
pg 133As this one side is of course the side fixt upon by these same tenderly-solicitous and all-commanding functionaries, the partiality thus manifested might be productive of some danger, were it not for that conjunction of infallibility with impeccability, the belief of which it is their equally solicitous and all-comprehensive endeavour to inculcate into the minds of men in general; but of course more particularly into the minds of all those, whose happiness it is to live in subjection to their power.
Twenty years, if I misrecollect not, was the term during which it was at one time the determination of a National Assembly of France, that the Constitutional Code framed by them should continue exempt from all alteration at the hands of any set of men; and in particular of any set of men elected by their Constituents, in the same way as they themselves had been.1 Not quite so intense perhaps was the persuasion of their being in possession of the same useful pair of attributes, in the breasts of the authors of your already established Constitutional Code. Not greater than eight years was the term appointed for this purpose:2 this for a finite term; but, at the end of this finite quantity, came another, on the face of which a colour, not altogether unlike that of infinity, is visible. But of this I have spoken in one of those tracts of mine already mentioned.3
It cannot, I think, appear questionable to you, Sir, that it is by these same universally prevalent dispositions, that, on the occasion in question, the conduct of the gentlemen of the Committee in question has, with no small degree of exactness, been regulated: regulated, in relation to two kindred objects, to the connexion between which your attention has been above invited, namely, the liberty of the press in general, and the faculty desired by me of submitting to the consideration of the whole body of the representatives of the Spanish nation a series of works, the first of them having the same subject-matter as that of the work laid before them by that same Committee. When brought home to individuals, the idea, which on the present occasion stands associated with it, is not a pleasant one: yet, for clearness, and that the state of the case may be immediately and distinctly seen, I must e'en ascribe to it its proper relative character, and call it a work coming in competition with theirs: a work which, with reference to theirs, is a rival work.
pg 134I shall first speak of the policy in question, as it may be seen applying itself to the more extensive and major object, the liberty of the press at large. I shall then take leave to request your more particular attention, for the bearing which it has upon the particular work in question—the proposed rival work: but even from the first, this minor object will unavoidably be ever and anon peeping out, and offering itself to view.
Good, operating in the way of reward, evil, operating in the way of punishment:—these I think have been already mentioned,1 as the instruments, and the two only instruments, by which, on an occasion such as that in question, for a purpose such as that in question, the minds in question could in any direct way be operated upon.
Applied to the purpose here in question, the matter of reward not only admits but requires some refinement in the mode of applying it. On the present occasion, the object which gave room for such an application was, the obtaining at the hands of the Cortes at large in the first instance, and ultimately and finally at the hands of their constituents, the people at large, acceptance for the proposed work.
Though not in name, nor in the shape of a determinate sum of money already deposited in a bag, the faculty of making application of the matter of reward, in its principal shapes, money, power, and reputation, could not, in the nature of things, fail to be virtually at the disposal, of men in the situation in which the gentlemen in question were acting. Between the whole legislative body, of which they were and are such distinguished members; between this body on the one part, and the immediate and avowed givers of all the above-mentioned political good gifts, namely, the Monarch, &c. on the other, I need scarce remind you how intimate the connexion is, which cannot but have place.
Turning to Article 171,2 to the King, by his sole authority, I see it belongs (No. 16) to nominate and remove (if separar means to remove) the Ministers of State and Dispatch, namely, the seven pg 135ministers, of whom (Art. 222)1 the Gobierno is composed; (No. 5) to fill up (if proveer means to fill up) all civil and military employments; (No. 8) to command the army and navy, and to appoint the commanders; (No. )2 to nominate ambassadors, ministers, and consuls; (No. 12) to order the application of the funds, appropriated to each branch of the public administration; (No. 7) to grant honours and distinctions of every class according to law; (No. 13) to pardon delinquents according to law. Now then, Sir, it being so completely in the power of the members of the Cortes to obtain for themselves, and their connexions, an undefined indeed but thence a boundless share in the aggregate mass of all these good things; and this, in the instance of each of them, without so much as a pretence of meritorious service in any individual shape, or of any probable expectation of any such service, must it not, if there be any difference, be matter of increased facility to them, to obtain for other persons, shares, in that same vast mass, by reference made to incontestably existing service? service rendered in such well defined as well as universally conspicuous shapes, as those which stand recorded in so many portions of written discourse, having for their subjects, matters so superior in extent and importance to those which form the ordinary subjects of official service?
The gentlemen in question may perhaps assure you, Sir, (and I should not wonder if they did) that this notion of their having any such good things at command is my mistake: for that in articles 129, 130, the Constitution has, by express prohibition, taken care to preserve their virtue against temptation in every such shape;3 and pg 136that in article 202 of their own proposed Penal Code, by forfeiture, infamy and expulsion, it has been their care that that same article in the Constitutional Code shall not be a dead letter.1 A prohibition? Excuse me, Sir, speaking with respect, the mistake is not mine, but theirs. Not prohibition, but permission is the effect (and can I avoid adding the object?) of these same self-denying ordinances:—of the severe virtue, thus displayed by the constitution-makers of the first Cortes, and of the rigour with which the gentlemen in question have proposed to enforce it. True it is, that by article 129 no deputy, while such, can either receive for himself any employment of the number of those which are conferred by the king! Alas! no: if he is unfortunate enough not to see any person whom he can trust to receive it for him, he must e'en wait for it till the unexpired part of the term of his deputyship, namely from two days to not much less than two years, has elapsed. By the next article (130) if a pension or a lot of factitious dignity be the object of his wishes, he must even wait one year longer for the fulfilment of them. Moreover, what he is there declared incapable of receiving for himself, (admitir, obtenir) he is by both articles taken together prohibited, and during the same length of time, from soliciting for another. Solicit? No, to be sure, no such thing ought he ever to do: it would be beneath his dignity. It is for the creatures of the Crown to solicit, and at his hands, the honour which a member of the legislative body would do to them by his acceptance. So much for the process of solicitation: a process, it must be acknowledged, ill suited to a person so exalted: accordingly the trouble and humiliation of it is saved to him, the benefit remains untouched and pure.
The severity thus displayed is indeed most exemplary: but the act in the proscription of which it expends itself, is an event that can pg 137never happen. What? can solicitation be necessary to a man, to produce the supposition that money, power, or factitious dignity, for himself or his connexion, are among the things he would like to have? Such, Sir, is the footing on which the prohibition (meaning always the permission) stands in the Constitutional Code. This is the footing on which, in the projected Penal Code, gentlemen found it placed; and on this same footing have they left it.
The faculty, which, under your constitution, the representatives of the people have, of making their bargains with the advisers of the Crown, and thereby, so it be in a number sufficient to compose a majority, employing the whole force of government, in the exercise of depredation, and of oppression in all its other shapes, at the expense of their constituents,—this disastrous faculty comes in here, it must be confessed, but as in a parenthesis. It is, however, that sort of parenthesis, which can scarcely, on any occasion, avoid obtruding itself: for, what is the occasion in which the state of things thus alluded to will not be exercising its irresistible influence? Yes, Sir, it is the necessary result of the existence of any race of irremovable functionaries whatsoever, with a certain quantity of the objects of general desire at their disposal. The legislator who gives to any such race this power, gives the invitation. The people's representative, who is content to act as such, without using any endeavours to remove the power, out of the hands so situated and so filled, gives his acceptance; a tacit indeed, but not the less effectual acceptance. Whether, in your circumstances, any thing better could have been done, is another question: meantime, be it ever so bad, that which is done, is not the less done.
On the part of the representatives of the people, during the first days of such a constitution, before things are come to a settlement, and persons are come to an understanding, fear or ambition may produce refractoriness. Little by little, however, if the constitution keeps upon its legs, by mutual interest a sort of agreement will be produced, and a sort of partnership concern, always at the expense of the people, established, and carried on: partnership, carried on, and, in some proportion or other, variable according as individual character varies,—division of the common stock of the objects of general desire continually made. Day by day, stock, and power of enlarging it, will receive increase: day by day, the purse of government will be replenished: day by day the hands of government will be strengthened: strengthened by that course, which, death in hand, death for every thing, gentlemen (I see) have already been exerting themselves with so much energy in marking out: an energy, some samples of which it will lie in my way, Sir, to pg 138submit to your consideration.1 Yes, Sir, a state of contest, and ill humour, such as seems to have place at present, or a state of agreement such as that I have just been giving intimation of, and gentlemen with their code have thus been making preparation for—such, in every nation on whose shoulders an irremoveable chief, clothed with any such body of power as above, or any thing approaching to it, is fastened,—such, Sir, is the only alternative.
Well, Sir, my parenthesis is at an end.
But (says somebody) this reward that you speak of, as being held out to annotators—in what shape is it that you see it held out? Sir, in no shape: in no shape, and thereby in all shapes: in all shapes, in which it may be regarded as being, either immediately or by the intervention of other hands, capable of being administered to such as shall use their endeavours to be thought to merit it. From no such quarter as that in question can be invitation given, but reward, of itself, places itself at the back of it. Seeing the invitation, you see the reward: seeing the reward, you see it in all the shapes, that imagination, warmed by hope, can give to it.
Now then as to the invitation itself. In the preface to this proposed Code, (see the preface, p. [xviii.])2 you may see the invitation in question given.3 Invitation! and to what service? To the service that would be rendered by the composition of an entire work on the subject in question? of any work fashioned throughout by a single hand? Of the advantage attendant on this plan of operation you see, Sir, the exposition I have announced.4 Rival works indeed? On this, or any other occasion, have gentlemen given encouragement in any shape to rival works? Not they indeed. And why not? The answer is almost too obvious to bear mentioning. Suppose a rival work produced—a work to any amount, howsoever great, more eminently conducive than theirs to the end professed to be aimed at,—suppose this done, the work would not have been theirs, the praise would not have been theirs, the rewards, in whatsoever shape looked for, would not have been theirs,—at any rate would not have all of them been theirs. How then could any such idea as that of a rival work have been an endurable one?
pg 139Be this as it may, this was not the service called for. See then what was that service. It was the taking in hand the existing work, the only work which, so far as depended upon them, gentlemen would suffer to come into existence; the taking in hand this work, and the sending in remarks upon it. Remarks,—but of what description? Of that description, which alone could, with reference to the greatest happiness of the greatest number of your fellow countrymen, Sir, be of any use? remarks, in a word, of the disapprobative cast already mentioned?1 remarks indicative of imperfection, with or without proposed amendments? Oh, no: such was not the sort of remarks wished for. To remarks of this cast no prohibitive bar, it is true, stands opposed. But to what purpose should any such bar have been opposed? what need of it could the nature of the case admit of? In what shape, by any man of common sense, could reward in any shape be expected from any such remarks? Yes, peradventure, from indication given of this or that little spot, or supposed spot, in the sun, just for the sake of showing what it might be in the power of the observer to discover in other luminaries, if it were made worth his while. Yes: a drop or two of gentle censure, but tempered with becoming diffidence and apology, sweetened by an ample infusion of panegyric, and atoned for by intimations of more unreserved obsequiousness on a more favourable opportunity.
Thus it is that, even supposing it were in the terms of it held out to all, a reward offered for such a service would, in the interpretation put upon it, be unavoidably narrowed: narrowed by the consideration of the situation from whence it came. The situation, as above described, considered,—descriptions of persons, more than one, may be named, from whom, how well soever qualified, the probability could not, in the eyes of the gentlemen in question, be great, that without special invitation any such remarks should come. Take, for an example of one of these classes, natives known to be not well affected to the recently introduced order of things: take for another example, foreigners: to them, unless the design had been to prevent remarks from being sent in by them,—to them should special invitations have been addressed. And why not? why not, even to the most hostile? From a hostile hand, out of a hundred remarks, suppose ninety-nine not only in their form hostile, but in their tendency mischievous: so long as there is one that is beneficial, to reject it for no better reason than that of its coming from a hostile quarter, is it consistent with common sense? because this or that man has laboured to hurt you, is that a reason why you should refuse to convey a benefit to those for whom you are in trust?
pg 140So much as to undoubted enemies. But from the foreigner, as such, nothing of hostility could have been apprehended. Knowing the prepossessions he would have to encounter, by what inducement, but the hope of rendering, or that of being thought to have rendered, useful service, could he have been led to impose upon himself the labour, necessary to the making trial, whether it would be permitted to him to render it?
Such, if I do not mistake the matter, being the course which a preferable regard for the greatest happiness of the greatest number of Spanish citizens, would, on the occasion in question, have caused to be taken in relation to foreigners, be pleased now, Sir, to observe the course actually taken.
Advertisements were proposed to be inserted, and doubtless were inserted, in the national Gazette:—advertisements inviting remarks from all hands, inviting them with the most eloquent energy imaginable.
Tercero says (page xx.) Que asimismo, por anuncio en la gaceta, se invite á todos los literatos y personas instruidas que de este modo quieran concurrir á [empresa]1 tan recomendable y de tanto interes para toda la nacion, [espresándose]2 que las Cortes apreciarán [sobremanera]3 el que lo ejecuten, y den este testimonio de patriotismo y amor á la causa pública.4
At that very time, one hand was not unknown—one hand, from which, with well-grounded assurance, gentlemen might have expected—if not exactly the sort, much more than the sort, of service thus called for. The interval, and more than the interval, allowed for these communications, namely, between some day previous to the 21st of April 1821, and the 1st of July 1821,5 had passed away; and by that hand no intimation to any such effect had been received. Whatever information, now in the middle of September, the individual in question is possessed of, it is to yourself, Sir, that, viz. on the 22d of August and not before, he became indebted for it.6 Was it that his name, or his works, were unknown to them? No, assuredly. For in the hearing of the gentlemen in question, one of those works had been read:7 with others, he is not without reason for believing, that of pg 141old some of them had been familiar. Others again, and in no small number, had, to their knowledge, been presented to the illustrious body, of which they are such distinguished members; and, if he has not been egregiously misinformed, presented, and, with no very common tokens of approbation, accepted.1 Is it that the way to the scene of his labours,—is it that the way to his hermitage2—was unknowable or unknown to them? Sir, (not to speak of private correspondence through the Spanish mission at the Court of London,) the Finance Minister of the day in his public capacity, the Minister of the Interior of the day in his private capacity, the whole Gobierno of the day, the whole septemvirate of Ministers, had found the way to it.3
But no: not merely on that one foreigner,—no, but on all foreigners without exception, was the exclusion meant to be put: witness the word patriotismo; for, the Spanish being the nation in question, whatsoever were the service rendered by any foreign hand, whatsoever were the generous affection manifested by any such service, it is not any such word as patriotism that could be the name for it.
On this word patriotismo a not uninstructive comment is supplied, by the affront put, through the medium of the French papers, on one of the members of the French legislative assembly, and on the present which, doubtless in the presumption of a due regard on the part of the constituted authorities of Spain for the interest of their principals—he had ventured to make to the Cortes: little, of course, could that distinguished representative of the French people think, that for the good he was seeking to do to the Spanish nation, evil in that or any other shape would be the requital.4 This, of course, has for pg 142its ground the supposition of a participation, on the part of the gentlemen in question, in the affront so given: what truth there may be in it can scarcely be unknown to a person in your position, Sir, but is altogether unknown to me: only from what is known to me, namely that which is known to every body, can any judgement of mine be formed. In that case, what there was of purposed affront out of the question, if any real injury was done, to what party or parties was it done? to the individual, by whom the information, whatever it was, was thus presented? No, but to the people, who see in the gentlemen in question their appointed agents and trustees. Is it not to them, Sir, that the injury, if any, was done?—an injury, the magnitude of which will be in the direct ratio of the relative usefulness of the information thus rejected.
Oh! but, Spanish wisdom! such is the transcendency of Spanish wisdom! by it all the assistance that could be had from the whole world besides, is rendered superfluous and useless! Thus it is that self-regard and self-sufficiency think to hide themselves under a cloak of patriotism. To every man's vanity a bribe is thus offered in the shape of a compliment; and such a compliment! And for this bribe it is, that he is called upon to give the reins to particular and sinister interest in the breast of these his agents, and to make sacrifice of whatever benefit, to an amount altogether boundless, might have been the result of the assistance it accepted: assistance given to inexperience by experience on a field of action, at once the most important and the most difficult that can be named.
True it is that, in a certain way, in speaking of what they have already done, mention is made by them, but in the most general terms imaginable, of their having taken cognizance of foreign Codes,1—an alleged token of zeal, industry, magnanimity, and prudence, for which, by the very mention made of it, praise is claimed. As this was no more than what every eye would look to pg 143them for as a duty, no praise was to be had for the avoidance of it: on the contrary, it was only from the alleged performance of the task that any thing in the way of praise could be expected.
But information in the field of legislation being the thing to be looked for, for what reason look for it in the works of men clothed in power—in works, too, in and by which that very power has been exercised—for what reason look for it to such works, not only in preference to, but even to the exclusion of, the works of men not so distinguished? Supposing the greatest happiness of the greatest number of their constituents their end in view, there were two reasons, why to unofficial even the preference should have been given over all such official productions. In the very nature of the situation from which they have come, what is made manifest by all such official productions, is—that they were produced under the irresistible influence of a sinister interest: an interest separate from, and throughout the whole field of legislation, in numerous and important points, diametrically opposite to, that of the greatest number: in a word, a particular interest, to which, throughout the whole extent of such opposition, the universal interest would of course be sacrificed. In regard to the official productions, this was matter of certainty: it could not be otherwise: in regard to the unofficial productions, though, by the unavoidable exposure to the temptations held out by the ambition of having a place among the ruling few, the like result is in each man's case rendered but too probable, yet there was no such certainty as in the other case.
So much as to what depends upon moral, now as to what depends upon intellectual, aptitude.
From the situation of the unofficial publicist, something in the way of a rationale might be expected: expected, and even with full assurance. Why? Because on this would be his sole dependence for whatever influence he could hope to exercise. To the work of the official publicist in question,—if the writer whose writing, whatsoever might be the purport of it, was to have the force of law,—no such needless incumbrance had ever been seen attached. From that situation, prisons and gibbets, such as the gentlemen in question have prepared such abundant work for, they saw every where set up in the place of reasons; and by those irresistible instruments, the proverbially feeble one,1 as they saw but too plainly, has in all such works been, in the judgement of the workmen at least, rendered needless and superfluous.
Thus it is, that, in a kindred and congenial sinister interest, the pg 144sinister interest to the operation of which the gentlemen in question, in their situation, stood so inevitably exposed, found a natural ally: while the indiscriminating prejudice, which power, by whomsoever possessed, and how ill so ever exercised, has every where found means to establish in favour of itself and its own operations, gave its sanction to the expectation that, in works of that description, fit models and objects of imitation for their own work would be viewed: works of which, accordingly, in that character, I cannot but hope to find, Sir, that in your opinion but too much use has been made.
The truth is—who can deny it?—one exception alone excepted—as between the rulers of every nation and the rulers of every other, there exists a community of sinister interest, and correspondent sympathy.1 In particular, in the union of impeccability with infallibility, may be seen a pair of attributes, the belief in which is to all of them alike convenient: and in the assumption of which they accordingly fail not, any of them, to join, with equally plenary and unqualified self-satisfaction and assurance. True it is, that to be inferior in the conjunct scales of moral and intellectual virtue to those whose place is inferior to their own in the conjunct scales of power and opulence, is a condition entailed upon them by the unalterable nature of things: for in the direct and not in the inverse ratio of the need he has of voluntary good offices at the hands of his fellow creatures, will be the strength of a man's solicitude and endeavours to stand high in their esteem, and to deserve well at their hands. But, the certificate to the contrary, which, with an unanimity that only within these few years has begun to experience any disturbance—this most convenient and comfortable certificate, which, under the same sinister influence, has been signed by almost all writers, from whose works men have derived that instruction by which mind is formed, has as yet kept minds for the most part shut against a truth, which, when once received, will be found pregnant with all comprehensive practice.
Upon the sort of service in question, at the hands of foreigners, friendly or unfriendly, with what pretension to consistency, could an exclusion, in any shape, direct or thus indirect, be thus put? I mean always on any such supposition as that the greatest happiness of the greatest number of their constituents was the end in view. For, that they derived whatever service was in their eyes capable of being derived from foreign Codes, is what gentlemen themselves declare, (p. xii.) and even give themselves credit for.2 By any such accidental circumstance as that of its having received the sanction of a pg 145government in a foreign country, is it in the nature of the case, that the utility of any arrangement with reference to Spain shall have received increase? And in that case, let the draughtsman have been who he may, was he any thing more than one out of an indefinite number of his countrymen, from each of whom equally well grounded expectation of the like service might with equal reason, not to speak of the superior reason above mentioned, have been entertained? With perfect consistency, however, it must be acknowledged, might that be done which was done, on the supposition that it was their own particular interest, in preference to, and to the exclusion of, that all-comprehensive interest that gentlemen had in view. For in the case of the Codes, the service, said in general terms to be profited by, being already rendered, was a service, the rendering of which it was not in their power to prevent coming into existence: and the individual by whom it had been rendered not being known, could not rob them of any part of the looked-for rewards in any shape: whereas in the case of any foreigner by whom an invitation given by them had been accepted, the individual by whom the service had been rendered would have possessed, and naturally speaking have exercised, the faculty of making himself known, and thereby have come in for his due share, whatever it might have been, of the reward: at any rate of the praise.
As to foreignership at large—foreignership in unofficial situations—this condition, which, by the gentlemen in question, has been taken for a cause of effective exclusion, is the very one which, in the paper above referred to, you may have observed me employing in the character of a ground for preference.1 The reason is—the comparative inaccessibility of that situation to all corruptive influence. After what has been said, I would rather hear you answer, than say myself, whether it was not by the consideration of this very inaccessibility among other circumstances, that the exclusion was determined.
But not only is the door thus shut by them against all information from foreigners and from opponent fellow-citizens, but with still more effective and inexorable rigour is it shut against the greater number of those individuals, how well so ever affected, whose happiness it cannot but have been gentlemen's wish should be understood to have been their end in view. You see already, Sir, that it is of ultramarians2 that I speak: of such of those whose distance from the seat of legislation precluded them from the possibility of causing any pg 146information on the subject to be delivered in from them within the appointed time: that is to say, of all of them in the lump: those only excepted, to whom, in a number scarcely equal to that of Frenchmen, it may have happened during the interval to have had their residence within the Spanish part of the Peninsula. No political bar, it is true, here: nothing more than a physical bar. But the physical bar is as insuperable as those political bars which your legislature (pardon me, Sir,) has been in so much haste to set up—I mean those which belong to the prohibitive and restrictive anticommercial system1—are feeble and inefficacious. Your thus excluded fellow-citizens, such of them as still remain to you,—what think you will they say to this, to a proceeding, in which, so far as regards them, even the common exterior forms have not been observed? If Spaniards are lovers of forms—and they have not unsparingly been spoken of as being rather too much so for their own interest—if Spaniards are lovers of forms, how will the matter be taken by these your distant kinsmen? Are they Spaniards? are they non-Spaniards? If Spaniards, what treatment is this that has been given to them? If non-Spaniards, where is your right to legislate over them? where is so much as your pretence?
When speaking of information from foreign hands, it is of themselves (p. xii.) that, of course, they speak, as the persons of all others to adopt whatsoever shall be 'most analogous to the political state of the nation.'2 Ah, Sir! should you ever see the remarks I have ventured to make, and the arrangements I have ventured to propose, with an equal view to the greatest happiness of Peninsular and Ultramarian Spaniards,3 you will see perhaps 'how much more analogous to the political state' of the greatest number, is the system proposed by one foreigner at least, than the one proposed by these so highly distinguished and selected Spanish citizens. Yes, Sir; with no eye other than an equal eye, could a person not exposed either to sinister influence, or to interest-begotten prejudice, have considered the interests and claims of the two so unhappily conflicting parties: and in the unendurableness of all useful and impartial information on that subject, may not the aversion to receive any such service from any such hand, have had one at least of its causes?
Ah, Sir! it is not only from what it may be in men's power to do, pg 147but likewise from what it may be in their inclination to do, that, to have any chance of proving correct, our inferences must be deduced. And whatever be the meaning of the phrase 'analogo al estado politico de la nacion—' whatsoever be the meaning of this so conveniently nebulous insinuation—think, Sir, if in all its parts your system of legislation were equally 'analogous to the political state' of those Spaniards, who in greater number are inhabitants of Ultramarian Spain, as of those who in lesser number are inhabitants of Peninsular Spain, where would be the advantage that could possibly be derived by the lesser number from the dominion claimed by them over the greater? But this is among the parts of the field of thought and action, on which, that their view of them may be the clearer, men in your country, as in every other, are so unhappily confirmed in the habit of shutting their eyes: at any rate of striving, might and main, to keep shut the eyes of their fellow-citizens. O yes! if Ultramarian could as easily be shut as Peninsular eyes! then would all be peace and amity.1
Such being the descriptions of persons against whom, with their remarks, the door is shut, a word as to those to whom it is left open. These are natives of the Peninsular Spain at large, and one particular class—the class of lawyers. (See p. xix.)2 To the invitation given to natives at large, apply those observations which need not be repeated.
As to lawyers, being already comprehended in that general description, to them no special invitation, no second invitation, could naturally have been given, but for some special purpose. What can have been that purpose?
If there be a class of men whose particular interest is in a state of diametrical and immoveable opposition to the best interests and greatest happiness of the greatest number, it is the class of lawyers: it is their interest that, in regard to every possession, for the security of which men look to law, uncertainty should be at the highest degree of the scale at which it can be, consistently with the sufficiency of the fund, from which the professional profit must be drawn: it is their interest that the expense, with its sources and accompaniments, the delays and vexations attached to the purchase of a man's claim for justice, be as abundant as possible, for the sake of the profit extractible out of the expense.
pg 148In this profession, the state of the mind—is it not, to a first view, that of a perfect indifference as between right and wrong, for the defence of either of which, as it may happen, a man is hired? to a nearer view, a predilection in favour of wrong, as being the most dependent and most profitable customer? The assassin so called, is the malefactor, who, for the hire he receives, risks his life; the lawyer is the malefactor, who, for the hire he receives, risks nothing: risks nothing; but, on the contrary, like the conqueror, obtains at the hands of the foolish and corrupted multitude applause and admiration, in the direct ratio of the quantity of human misery he has produced.
If there be a profession, by which a man is prepared for the perpetration of mischief, in profitable, so it be an unpunishable shape, is it not the profession of the law? If there be a profession by which, by the power of continual practice and continually received remuneration, all regard for truth is completely eradicated—a profession, by which insincerity is by the same means, with correspondent effect, injected and fixed, is it not the profession of the law? If there be a profession, by which, by the same perpetually recurring operation, a man is more effectually prepared than by any other for the letting his faculties out to any person, for any purpose for which reward in [apposite]1 shape and adequate quantity is to be got—if there be a profession, by which, for even the most inconsiderable reward, a man is prepared, so it be without personal hazard to himself, at the instance of any one who is able and willing to give him that reward, to render to the greatest amount a sacrifice of the greatest happiness of the greatest number,—is it not the profession of the law?
These considerations—all which stand on the surface of the case—these considerations, which so stare every man in the face, can they have been a secret to the gentlemen of whom I speak? Was it possible for them to doubt of the object and tendency of any remark, that, consistently with the nature of man, could come from such a source? Was it possible for them to be uninformed of the alliance between the particular and sinister interest of this class of men, and whatever particular and sinister interest their own situation exposed them to the action of?
I shall presently, Sir, have to request your notice, for a sort of auction which, in this preface of theirs, gentlemen have set up:—an auction, at which the lots on sale are composed of recommendations, to be given by them to the favour of the givers of good gifts, and the biddings are to be in expressions of praise bestowed upon this their own work; the first bidding, above which all others are to rise in a sort of indefinite height, having, as you will see, been made pg 149by themselves. Supposing the auction to find bidders, can there have been any doubt in gentlemen's minds, of the spirit with which biddings would come from the class of purchasers thus exclusively distinguished?
Not that the door ought to have been shut against lawyers, any more than against any less determined enemies of good government and good laws; only that it should not have been thrown open to them so much wider than to friends; in a word, than to all the world besides.
On an occasion such as this, in the force of public opinion, any man, even though a lawyer, would, if it were in his own single person that he came forward with his remarks, find some restraint: some restraint on the effusion of particular and sinister interest in one situation, seeking to be admitted into partnership with particular and sinister interest in a situation more elevated and effective. Even of this restraint, on looking at the terms of the special invitation thus addressed to lawyers, it seems as if the removal were among their objects. Copies of the proposed Code are ordered by them to be sent—Sent whither? To the three sorts of bodies corporate thus denominated; namely, 'Universities, Tribunals, and Colleges of Advocates.'1 By whom, in such a case, might it most naturally have been expected, that the returns, if any, made to all this magnanimity, would be made? By whom? unless it be by the several bodies, to whom before all other persons, if not to the exclusion of all other persons, it was to be, and I cannot but conclude has been, made known. But by any body in the situation of this Committee, from any of the bodies so addressed by it,—what, consistently with the universal principles of human nature, as evidenced by universal practice, could be expected? what, unless in the accidental case of discord produced by particular interests, could be expected, but one uninterrupted chorus of extatic praise?
Will it be said, that by the words employed in the designation of these bodies, nothing more was meant than to make known the channels employed for conveying the great work to the cognizance of individuals, and that it was from the members in their individual capacity, and not from the bodies, (that is to say, not from some of the leading members, released by their union from all responsibility as towards public opinion,) that the remarks were looked for? But had this been the meaning, where could have been the difficulty of finding expression for it? Whether this could have been their meaning, you, Sir, from your situation, perhaps know; by us, at our distance, no conjecture can be made, but from such details pg 150respecting lengths of time, compared with lengths of work and space, as gentlemen themselves have been pleased to supply us with.
I say from lengths of time, &c. The twenty-first day of April is the day of the date attached to their preliminary discourse: and thereupon come the authenticating signatures: latest day allowed for the sending in of remarks, the 1st of July then ensuing:1 interval, two months and nine days. The document, to which on that day these signatures were affixed—in what state on that same day was it? in the manuscript or in the printed state? If in the manuscript state, then to find the time left for distribution, receipt, and composition and transmission of remarks, will be to be deducted the time employed in the printing of the work: of a work containing in the preliminary discourse 20, in the body of the work 248, 4to pages. In either case, it is from 'the secretary of this same committee,' or 'through the medium of the Gobierno,'2 the septemvirate of Ministers, that the packets had to go: to go to the utmost bounds of your extensive country, not very advantageously distinguished for the goodness of its roads, or for the facility of its communications of any kind. Now suppose one of these packets arrived at the residence of the official person to whom it has been addressed: thereupon, whatever further distribution it can have has to wait his leisure, and the determination of the individuals, within whose reach the several copies shall be placed, will depend more or less upon his choice: upon his choice, either singly or in conjunction with the individuals, whoever they may be, in whom he sees his necessarily consultable colleagues.
Now, Sir, within any such space of time, taking it at its maximum, to this display of condescending magnanimity, what was the sort of return—the only sort of return—that could have been looked for? Indication given of particular imperfections, with or without indication of means of remedy, grounded on the separate consideration of the several articles? could any such instructive indication have been of the number of the communications that were expected, or of the communications that could have been made? No, surely. But if not, what others? The answer is sufficiently obvious. In the form of addresses, laudatory orations, conceived in the most general terms, and vying with one another in intensity of admiration as above: of time for these, whensoever inclination had place—for these in any number, there could be no want: for no remarks of the other cast, in a condition fit to make their appearance—for no remarks of any such pg 151unwelcome cast, even supposing inclination ever so alert, could there have been any thing approaching to a sufficiency of time.
Thus it is that, independently of all those other securities, under the ingenuity thus displayed, the mere circumstance of time served to secure to whatever communications could be received, that laudatory character which, if any, it had been determined they should possess.
Praise was the one thing needful:1 praise was a thing gentlemen were determined to have. This I have been forced to say over and over again. But what I have not yet said, or, if I have, not yet shewn, is—that for fear of accidents, some they were determined to have that should be of their own making. I have spoken of the auction, of the lots to be sold at it, and of the prices in expectation of which the lots were put up to sale: I have spoken of their being themselves the first bidders, and of their bidding as being the price at which each lot was put up. Be pleased now, Sir, to look at the terms of it.
'It will be worthy of being reckoned (says p. xix.) among the most celebrated Codes of cultivated Europe: it will merit the esteem of wise nations; it will merit the gratitude of the Spanish nation: it will merit the veneration of the present age; it will perpetuate the memory of the legislature of 1821 in all future generations.'2 Now what, Sir, is the work thus spoken of? What is it but that which has been the fruit of the united wisdom of the gentlemen themselves, who are pleased thus to speak of it?
True it is, that before it has been raised to this pitch in the scale of excellence, not to speak of the remarks sent in, in no time, as above, it will have had the benefit of such remarks and consequent amendments as shall have been made by the legislature at large: but the remarks and amendments made in it by the legislature, what will they have had for their groundwork? This same work of the gentlemen in question: this, and nothing else. Now what at the utmost can be the amount of any alterations, which, after any thing like an adequate discussion, can by possibility be made within the quantity of employable time, so anxiously and effectually narrowed as it has been by the Constitutional Code?3 Time sufficient for adopting each several article by acclamation:—yes; even on the supposition that before the acclamation each article is not only to be read, but read well: for pg 152this operation the quantity of time left1 applicable to the business may be sufficient. But suppose any thing that could be called a discussion to have place, long before the first title could have received any tolerably well-considered amendments, the whole quantity of time applicable to the business will have been consumed.
All this while, self-abasement there is—and that in no small quantity as well as intensity: magnification of the burthen, and of their inability to bear up under it: great reliance professed in the assistance looked for from without; looked for from the zeal, not only of colleagues and fellow citizens, but of foreigners. Speaking of the heavy charge (la pesada carga) which they felt pressing on their shoulders, and of the debility of those same shoulders, ('que gravitaba sobre sus debiles hombros,') they speak on the other hand of the alleviation which they promise themselves from the assistance of well-informed men of divers descriptions, concluding with estrangeros. But all this is in p. xi.:2 and page xix. is the page in which, this self-confidence having in the interval risen to the degree just mentioned, the desire of receiving assistance from strangers gives way to the anxiety for the exclusion of it.
The self-diffidence has the air of an introduction, employed to prepare the way for the self-confidence. The self-diffidence looks as if drawn from some treatise of rhetoric; the self-confidence as if drawn from some other source.
Such as you have been seeing, Sir, is gentlemen's persuasion of their own appropriate aptitude; thus transcendant and consummate is it in their own eyes! But, not to speak of their colleagues in the legislature, their constituents,—if eyes they have, what will it be in the eyes of their constituents? For the support of any such claim, not a particle of ground, as far as I can find, have they, any of them, in any shape, at any time, made any where. Right of succession? can that be their ground? Impossible: for you will see how energetically they have negatived it.3 If that were their ground,—at the very lowest point, if they themselves are to be believed, would their station be in the scale of aptitude. If to their judgement, if to their pointedly declared judgement, any confidence is due, down to the moment at which this function devolved upon them, never can there have been any thing more consummate than the inaptitude, by which the pg 153productions of all who have gone before them in the same track have been characterized. Their constituents—what will they say to them? The assent of their constituents—will that be given to this judgement of condemnation, to a condemnation so severe, so universal, and at the same time so pregnant with practical inference? Well, suppose the assent given. The gentlemen themselves—what will they be the better for it? From this rule, sweeping as it is, the confidence with which they look for an exception in their own favour is indeed entire. But this confidence—on what ground does it stand? None, as I have already said;—none whatever have they made for it. Of their aptitude, of the existence of which in their imagination every body stands persuaded—persuaded, as if it had been made manifest by the strongest evidence, what evidence have they to show? Have they so much as their own evidence? Not they indeed: not so much as their own evidence: unless an event altogether supernatural and miraculous be to be believed: believed upon the ground of this same evidence. True it is, that while page xix. was writing, their persuasion of their own aptitude was such as is there described. But, at the time when page [xi.]1 was writing,—what was it? This too you have seen: so that, if they are to be believed, the change from a state of self-lamenting debility to a state of exulting vigour, took place within the interval occupied by the composition of these [eight]2 pages.
It is from Spaniards, be pleased to observe,—from these same Spaniards, that, with a declared exception in favour of themselves, and one other which the rules of politeness could not fail to add in favour of the company present, and a presumable one in favour of the author of the Constitutional Code, this assertion comes of a universal state of inaptitude, with reference to the work of legislation on the part of all Spaniards.
So much for these Spaniards. Now, as to this same point, what would naturally be the judgement of an impartial foreigner? As, down to this moment, according to their own conviction, men born and bred under Spanish government have been in so eminent a degree unskilful, the probability is, (he would say,) that even now, at this moment, they are not so consummately skilful, that assistance from abroad should be peremptorily rejected: rejected, under any such notion as that of its not affording so much as a chance of being of any use.
On their own assertion, as you have seen, rests the notion of their own aptitude: upon their own assertion, and that a self-contradicted one: for to no other proof have they so much as made reference. Of the inaptitude of their predecessors this notion stands on somewhat pg 154better ground. In proof of this, they have given statements and references, of which I cannot resist the temptation, Sir, of presenting you with some specimens. Scarcely can language furnish expressions more energetically declarative of consummate worthlessness. The essence of the national legislative wisdom they found concentrated, they inform you, in a compilation—the work of the then impeccable and infallible, but now extinct Council of Castille:1 a mass composed (say they p. xi.) of collections made with a view to the amendment of the law. Disgust is the sensation declared to have been produced by its contents: a parcel of rough drafts, loose remarks, incoherent and undigested pages: dissertations half religious, half political: extracts from various penal laws, with notes exhibiting coincidences and repugnances. Apparent destination of the whole, furnishing patchwork for insertion into a new edition of the statutes at large. (Recopilacion.) Plan, the old plan: 'salutary innovation, none: convenient reform, none: sole object, preserving and giving support to the antiquated and vitious system: basis, the same: punishments, the same: with a vast heap of laws and titles unsuited to the present day.'2
Under the notice of reform, the best thing that had been thus proposed to be done was—the giving a new edition of the old system in the old spirit, and upon the old plan: of which old system they had already, in p. vi., spoken in terms in which every vitious quality a system of law is susceptible of, is spoken of as exemplified by it in the highest degree conceivable: incomprehensibility in the style, absurdity and iniquity in the regulations, atrocity in the punishments employed for giving effect to them; and so forth.3
pg 155At the end of what is said of the above plan for the amendment of those same laws (p. xii.),—that the spirit of them may be anticipated from the nature of the subjects, examples of those subjects are brought to view.
'Holy Trinity—Catholic faith—Jews, and their expulsion from the kingdom—Moors and Moriscos—heretics and persons excommunicated—diviners, sorcerers, and soothsayers—oaths and perjuries— sacrilege—money-lending and usury—eccentricities of the sexual appetites in respect of species and sex: these and others which' (they conclude with saying) 'ought not to have any place or direct insertion in any good criminal Code.'1
Thereupon, Sir, comes a natural question:—what answer shall I give to it? The depravity, so unreservedly ascribed to the whole body of the law—to the whole of the law then and even still in existence— by what causes was it produced? Was it not by sinister interest? by interest-begotten prejudice? by authority-begotten prejudice? by inbred intellectual weakness, the fruit of bad education, in a country into which no good book, unless by stealth, could ever penetrate? of a mind-debilitating and mind-perverting system of education, and those habits of thinking and acting, that could not but have kept flowing from it throughout life? All these causes of inaptitude—is it in the nature of man, that, at any point of time whatever, the influence should all on the sudden cease? The explosion, by which some of the instruments of tyranny were driven from about the throne, and some of its victims cast into their places—this or any other political convulsion, is it in the nature of it to change with equal rapidity the whole texture of men's minds?
Gentlemen speak of new lights (p. vii. ix. xix.):2 even the King's Proclamation to the Ultramarians (April 27, 1820) speaks of new lights.3 It was by these new lights (or if not, by what else?) that this pg 156self-confidence, of which, Sir, you have been seeing such abundant testimony, was inspired. But, these new lights—from what sources were they derived? From Spanish sources? No: even by gentlemen themselves this supposition, you have seen, is energetically negatived.1 From what sources then? From what but foreign ones? Yet, that from these sources—from the only sources, from which the lights which form their sole dependance have ever come—any fresh lights should come, this is what they cannot endure the thoughts of.
Instead of eulogy, suppose melioration the thing desired,—what, in advertising for remarks, would have been the course taken? Would it have been any such close course? No, Sir: it would have been a course as open as the nature of the case could possibly have admitted. 'Send in your remarks,' (it would have been said,) 'send in your remarks, whoever you are, they shall be printed: not only to our eyes shall they be presented, but to the eyes of all our constituents; of all our and your fellow-citizens; in a word, of all mankind; of all those beings, on whose condition, in respect of happiness, your remarks will exercise their influence: exercise it? Yes:—in proportion to the value possessed by them, in the first place in the eyes of the selected and official judges, in the next place in the eyes of all men sitting as judges in the tribunal of public opinion. Send in, each of you his work, without name or other token, by which, antecedently to the time for its being put to use, the judgement passed upon it might be perverted: perverted by good or ill will as towards the person of the workman. Send it in without any such public notification: and be assured, that if, for drawing aside the impartiality-securing veil, any private intimation be conveyed,—the avenging eye of the public will be on him by whom the corruptive information is conveyed, and on him, whoever he be, on whom it is productive of the effect it aims at.'
P.S. I should be curious, Sir, to know, if the thing were possible, how many and what the communications are, that, in pursuance of the invitation to send in remarks on their draught, have been received by the legislative committee: received, antecedently to the appointed day, July the first, or at any time since: what received, and from what public bodies, and what individuals respectively, sent in, and from what places: and, of those received, what have been printed and published for the information of constituents, beginning with the people of Madrid. It might to any one be matter of curiosity, to say no more, to see what sort of agreement there has been, between the pg 157facts and the inductions above hazarded in relation to them: hazarded by a man, whose eyes or ears no positive information whatever had ever reached.