Editor’s Note pg 219Editor’s Note2726To Diego Colón6 December 1820 (Aet 72)

Dear Sir

Your Messenger has just been here. Not being at the moment in a condition to go down to him I sent down one of my young men, and he received the Message. You had received (it was said) from the Finance Minister the instructions you were in expectation of;² and being for some time particularly engaged, would as soon as your engagements permitted name an early day for calling on me. The sooner and the oftener you do so the more I shall feel myself honoured and gratified. The particular business of the paper money however will not give any necessary acceleration to any such visits.

Now then as to the reason. To be plain with you, my object on this occasion is to drive a bargain with you: and so, as you will see, it was from the very first. It is written the labourer is worthy of his hire.³ If I set to work, nay and before I set to work, I look to have my hire. In payment for this service—at any rate for my best endeavours in relation to it, what I look for is—the being admitted to render you a much more valuable and peculiar service; I mean—the drawing up for you a compleat body of proposed law, beginning with the penal branch: the whole upon the principles which have met with so flattering a reception in Spain and have so long been known there. The case is—this business of legislative draftsman is the business I have bred myself up to. I have served seven seven years apprenticeships to it. It is the one I feel myself most at home in. Why I make this a stipulation I will tell you presently.

Offering myself for the employment in question is offering myself in the quality of a servant to your King. With us, when a man offers himself in the quality of a servant, he is asked for a testimonium which is called his character, and if he has it in his power, never fails to come pg 220provided with one. The employment I am looking for being a little out of the ordinary track, it seemed to me that a character, could any such thing be found, would in the present instance, afford a more particular promise of being of use. Something in this way may be seen in various places in 'Papers on Codification':⁴—one of the works, which, it has been my ambition to be allowed to present to the Cortes, and of the arrival of which at Madrid I have just had the satisfaction of being informed. The favourable conception which that august Body has so lately been pleased to manifest in relation to me stands recorded in their Journals.⁵ But in almost every one of these instances it is by a foreign hand that the testimonial, whatsoever it may be, has been given. From a mans own country, supposing any such testimonial to be had, there are some circumstances which, on an occasion such as the present, render it in a peculiar degree extraordinary: and at the same time the more valuable. A prophet, it has been observed, has no honour in his own country:⁶ the same observation may be seen to apply and with no less force, to the occupation to which I belong. On the one part, jealousies of all sorts, on the other part familiarity, renders his chances less in his own country than in any other. On this head I may therefore reckon myself peculiarly fortunate. A man might be any number of times better qualified than I can pretend to be, and not be able to produce so good a character as the one which an unlooked for combination of circumstances brought into existence, and which the present occasion has just now brought to my remembrance.

The document I allude to is a sort of portrait of me, drawn in, and I may even say by our House of Commons: and what renders it the more singular, and the more valuable, is that for two or three who were on the same side in politics, I had at that very time in the House near a hundred adversaries. You will find it subjoined to this letter.⁷

Visible as are upon the face of the transaction, my dispositions and my wishes, any thing that may appear singular in this mode of dealing, will I hope be regarded with indulgence: whatsoever may be thought of it in other respects, my anxiety to be admitted to render the more important service stands at any rate depicted in colours not to be mistaken. I have no secrets: I need none: this same mode of dealing I will tell you why I had recourse to it. The service, if any, which in relation to paper money it might be in my power to render, pg 221presents itself in a tangible shape: the amount, the importance of it, lie open to general observation. Not so the sort of service which if I do not deceive myself I should be able to render in relation to the drawing up of a compleat body of proposed law. Of the nature extent and importance of this service no individual but myself can be in a way to form any tolerably adequate conception. To do so it would be necessary to a man, to feel within his grasp the whole field of legislation which is little less than the whole field of thought and action: to have taken the same views of it that I have done, to have been in the habit of traversing it in the same directions, and to have devised the same collection of means for the accomplishment of the several ends that appertain to it.

Viewing the importance of the service in this light you will not wonder at my anxiety to avail myself of every incident that presented any additional chance, how faint so ever, of accomplishing it.

On the part of your government, the bargain will not I hope be regarded as a very hard one. How faint so ever may be the expectation of benefit in relation to the paper money, the sacrifice made for it will not at any rate surely be deemed a very burthensome one: a letter in the name of his Majesty from the Minister to whom it appertains, the Minister of Justice I suppose, conveying to me in relation to his department, an invitation analogous to that which his colleague the Finance Minister has been already pleased to honour me with in relation to his.

The only difference is—the special authority from your King: a document which, in regard to the paper money I do not look for—not feeling any need or demand for it. The paper money is but as a drop in the bucket compared with an all-comprehensive body of law: if nothing comes of it, it is but a few days lost.

But the drawing up an all comprehensive body of law, accompanied all along with the reasons, together with other unprecedented appendages—a work, more (I fear) than sufficient to fill up what remains to me of life is a sort of enterprise by much too great to be undertaken without express commission: to be undertaken, as a commercial man might say upon speculation: undertaken without any assurance of its being put to use. Not that the whole benefit, if there be any, will depend upon my living long enough for the completion of it. I shall work hard: and so far as it goes whatever I shall have done will be your's.

The more reasonable the demand of an invitation, the less […?] will be the deputation[?].

Will it be said why not wait for the pleasure of the Cortes? The answer is obvious. The Cortes does not meet to do business till the 1st pg 222of March, and by that time the penal branch of the Code might be in considerable forwardness: and in the mean time a Committee of the Cortes has itself made I can not say what advance in this very sort of work. From first to last during its too short existence this eccentric business may be kept excluded by indispensable business. In the very existence of the Cortes there is something singularly and I fear not very beneficently fleeting. It had not so much as two years to live from the first: at the end of that time its identity is compleatly destroyed: not an atom of its anterior preserved in its subsequent body: and during its ephemeral life it is awake but one fourth, or at the utmost but one third part of its time. At any rate the existing Cortes dies beyond redemption a short time hence. But, as with us so with you, the King, as our lawyers are so fond of saying, never dies.

But the Minister? Sufficient, as you acknowledge in the case of the paper money, why is he not so, in your eyes, in the case of the Code? The reason has been already given. The Minister who bespeaks a Code of me today, may be dead or out of place tomorrow. And in either case what becomes of my Code? By whom can there be any assurance of its being presented to the Cortes? by whom can there be any assurance of its being so much as thought of?

Another thing—I am upon the verge of 73: the current of ideas has not in my mind the velocity it had once. I have need of excitement: I want a stimulation: I want encouragement. That which a glass of spirits is to a man who works with his body, an encouragement of this sort would be to me who have to work with my mind. Without such an encouragement, I know not whether I should be able so much as to enter upon such a work: without it, I am quite sure I should not execute it either so well by a great deal, or so promptly, as with the help of it.

Will it be said to me—You need no additional encouragement—you have received enough already? You have yourself spoken of the notice taken of you by the Cortes. Should this be said, the answer to this likewise is ready. All that that expresses is a general disposition to receive whatever communication I may be disposed to make. But the difference between so indeterminate an expression of good opinion, and that of a particular desire to receive a work of such all-comprehensive importance, and this from a body which itself has such an one in hand, is too manifest to need insisting upon: nor has even that document been communicated to me in its tenor or by any official hands.

Of the sort of invitation in question, if not in itself improper, a collateral benefit to you may be the result: I mean the augmentation of that unexampled glory—the glory of giving laws to willing nations—pg 223that has already become yours. I say unexampled: for to Spain, and with the strictest truth may be applied that saying which, in the language of […?] flattery, was with such notorious falsehood said of the tyrant of tyrant Rome—volentis Per popules dat jura—He o'er the willing nations spreads his laws.⁸ Yes (it may be said to me) that glory, our country has: but without you: and therefore to continue so to do she has no need of you. My answer is—the antecedent is undeniable; but the consequent does not follow. Though the same honour would not have been done to a Code directed to bad ends—to a Bonaparte Code for instance—to a Bourbon Charter—yet that it was done to your Code was owing not solely to the goodness of the work, but in part to the urgency of the occasion, and the obvious utility of copying from the work of a government—and that a monarchical one—already established. A Constitutional Code was a work which in some shape or other it was absolutely necessary to have to go on with: the new government in each case found the possession of it necessary to its very existence. But for any new criminal or civil Code there was no such indispensable necessity: under whatever disadvantage, there is in each instance the old system which it is possible, and till a better can be made, necessary, to go on with. But (in each of those countries) no sooner is a fresh Code looked for, than the Code looked for will be the best Code that is to be had. Consistency will be looked for, exemption will be looked for from those defects which in the Spanish Code have already been not only seen but felt by Spaniards themselves, not to speak of others which it would be so easy to point out. As a security against the like defects, as well as for whatever improvements the advance made by the age may be capable of affording they will naturally be on the look out for the name of some determinate individual whose views on the subject have been made known by his works—who will be responsible for whatever he brings forward to receive whatsoever of honour or dishonour may be regarded as due to each distinguishable part of his work. To be exempt from all such responsibility is of the essence of a Committee acting as your Committee of Legislation does and can not avoid doing, acting in secret. But in every such body all prejudices and particular interests have full scope, and operate in full force: and unless there be in the body some one Member whose influence is strong enough to swallow up every other the work which is the result is a sort of general compromise.

In the instance of each Member of the aggregate mass of his particular interest and interest begotten prejudice some part is given up pg 224but some part is retained: of those portions which are retained, the compound is that which is carried into effect: and to this mass of sinister interest and prejudice the universal interest—the only interest which has no one to support it, is sacrificed: sacrificed to a greater or less extent, according to circumstances. All this has necessarily a place in the case of a Committee: in a secret Committee: nothing of all this has place in the case of an individual: what is delivered by him as his he is responsible for to the utmost. This being more or less manifest to every thinking mind, nothing but the inability to find an individual, whose competency to such a work stands established, will except in a case of such urgency as that which, a Constitution being on the carpet, in two successive instances, directed all eyes to the Spanish Code—nothing else will I say cause men to direct their eyes to an invisible body, a body of which the members are out of sight. But whether there be not such an individual, as well as whether, at present there be in existence any more than one such individual, are questions in relation to which, among the persons on whom it depends, what I have seen and heard on this subject does not leave on my part much apprehension of any difference of opinion.

Should the acceptance of this offer of mine be declined in Spain, whether any such work will or will not be composed by me is more than I myself am able to predict: it may or may not according to circumstances. But supposing it to come out, observe, Sir, if you please, the consequence. Suppose it produced in obedience to the invitation stipulated for, it comes out under the auspices of the Spanish government, and if approved by Portugal, if approved by Naples, it is to your Government that Portugal and Naples will respectively regard themselves as indebted for it: suppose on the other hand that the required invitation is refused, and the work is produced notwithstanding and being produced is approved, and experienced benefit is the result of it, it is to the author that those other Nations respectively to the author and him exclusively they will hold themselves indebted for the benefit, and to your Government for the refusal of it.

As to the unity of the rule of action in all points on which diversity is not necessitated by local differences—as to the practical unity of the rule of action between the three nations, and the benefits attached to it, this is what I must be content to leave to the imagination of those concerned: nor, in doing so, does it appear to me that I run much risk: the facility this gives to mutual intercourse the bond of connection and amity established—the universal security afforded against the deterioration of the work—the security given for emulation and consequent improvement—these are benefits for the obtaining—a sufficient pg 225conception of which no great need of details will I think be felt. To place the question upon clear ground two states of things must be conceived. One in which this unity of law has place in all three nations: the other, that in which the state of the rule of action is in the several nations altogether different while it is upon a par with them in regard to goodness in all other respects.

The Minister to whom if to any one, this proposition goes in the first instance, is the Minister of Finance, but the Minister to whom the obtainment of the instrument proposed belongs is not the Minister of Finance, but the Minister of Justice. The Finance Minister, is therefore the person to whose good offices, and to the success of such good offices the proposal looks as to the primary and more immediate object of its dependence. But, in the situation occupied by the Finance Minister, should the object that belongs to his department appear to that gentleman worth the trouble, I should not apprehend much difficulty. Of the Minister of Justice all that it has fallen in my way to know is—that he is young in office.⁹ As such, on the occasion of a measure so much out of the routine of office, it will be but natural that he should look for countenance and support from an already established Colleague. But this support he will by the supposition have. I speak of his Colleague in the Ministry. For as to the Cortes so long as that Minute which has me for its subject remains upon the Journals, he can not be in want of countenance, not to say sufficient warrant. Command indeed he will not find in it. But permission, and eventual approbation, he cannot I think fail to see in it.

For the moment I will now take leave to suppose the invitation or commission in question resolved upon: a few words I would on that supposition humbly propose for insertion in it: not, however, meaning to stipulate for them, but only to submitt them for adoption or rejection as may be deemed most advisable. The demand which presents itself to me for the words in question, is this.

On the field of a criminal code, I have not perceived comparatively speaking much expression of jealousy or apprehension: crimes are bad things and it is every bodys wish to see as few of them as possible. Not so in the case of a civil code. Here property is to be disposed of: and when on this part of the field a new Code is proposed a new distribution of property is apt to present itself as being intended. Thereupon, by those whose interest it is, that property should be left in that state of insecurity, into which it has every where been plunged by a mixture of despotism and lawyercraft—a legion of hobgoblins, pg 226which, for such purposes they keep in store, is of course let loose upon the proposers and supporters of any Code which in proportion as it substitutes real to pretended security can not in that respect fail to be new: Jacobinism I mean, together with Spenceanism,¹⁰ Atheism and I forget what others. Now it is—not the destruction of property but the confirmation of it—the confirmation of it as it stands at the present time, whatever be that time—that, in any Civil Code of my drawing, would be the main object. Whether, in the Constitutional Code, which the Cortes gave their sanction to,—in that Code in which for the system of popular representation they established universality, secresy, equality and only because Ultramaria was to vote, instead of anuality biennality of suffrage, it was among the objects aimed at by them to subvert or to give stability to property, may be left to them to answer to themselves. But amongst the adherents of the allied despots in general and those of this every day more and more rapidly sinking government in particular it is a constant assumption that of all who advocate those same principles, universal destruction of property is the object, and to the utmost the endeavour. Now then so it is that by all to whom I am known I am known in the character of an advocate of those same pretendedly dangerous principles. Let the Minister of Finance, let the Minister of Justice, ask any representative of our Government at your Court, any representative of the French government at your Court, whether any such person as myself was ever heard of by them, the answer will be either in the negative or if in the affirmative the character of Radical, which does really belong to me will be tacked to it, accompanied of course with those other denominations, in the character of synonyms to it: and in that case and on the supposition that this nomenclature, should in a greater or less degree, be productive of its intended effect, what the impression is which may come to be made by it in the first place in Spain especially among the Grandees and other great Land proprietors, to whom, generally speaking, the idea of innovation good and bad together is what water is to a man bitten by a mad dog, and from thence in Portugal and Naples, this is what your Ministers and such other persons as it may concern will be much better able to judge of than I can pretend to be.

These things considered the wording which I would beg leave to submitt as suitable to the occasion is something to the following effect … 'I have it in command from His Majesty to express his desire that pg 227for the use of Spain, and for the consideration of the Cortes, you will proceed to draw up, in so far as life and health may permitt, an all-comprehensive body of law commencing at the penal code, and proceeding from there to the Civil Code: his Majesty trusting that on the occasion of the Civil Code you will take for your primary object the preservation of property in general upon whatsoever footing such your work shall at its appearance find is established: keeping all regard for equality in due and perfect subordination to the care of security, in conformity to those principles which in that particular stand declared in your works.' and in conclusion I should hope to find a declaration of his Majesty's intention that whatsoever portions of such proposed law shall have been received from me shall from time to time so soon as received be by his Majesty's order communicated to the Cortes; who of course will do in relation to such communication what in their judgment shall be most advisable.

Whatsoever be the determination in regard to the above clause, should the invitation or commission in question be sent, it may perhaps be his Majesty's further pleasure that communication of such his Majesty's pleasure should be made to the Ministers of Portugal and Naples at his Court: to the end that in the drawing up of the proposed work, the circumstances of all three countries may at the same time be taken into account: that the solicitude of his Majesty, for the felicity of those now so naturally and closely allied nations, may be manifested, and that the hope of an otherwise unlooked for benefit may be diffused, for the comfort and satisfaction of the people: I say a benefit: for this character may I hope be ascribed to an all-comprehensive [code,] Only if thus prepared for them by a long exercised mind, with the situation of which all sinister interest is incompatible, and of which the individual interest is as thoroughly identified with the universal interest common to all three nations, as it is possible for any individual interest to be identified with any more extensive interest.

In regard to the paper money, I set out with mentioning that my offer to apply myself to it was conditional: and that which is in question was the condition annexed to it. The instructions—the only instructions I ever gave on the subject are in the hands of Mr Mora at Madrid: the accuracy of this statement may in the mean time be seen if it be worth while in the copy which I have preserved and which is open to your inspection, Sir, whenever you may be pleased to command it. To the main question all this is most perfectly immaterial: the reason, and the only reason of my mentioning it is lest it should appear to the Finance Minister that this about the paper money was no more than a contrivance for making an instrument of him for the pg 228other purpose. By what has been said, all suspicions of any such disrespect on my part will I trust be compleatly excluded.

Should it be his pleasure to hear any thing more from me about the paper money he will have the goodness if it be not attended with too much trouble, to contrive that I shall have a sight of all the several paper money, as well as all the several metallic money now current in Spain: and in relation to the paper money, and all other, if there be any other evidence of debt from Government to individuals, it may be proper to add whatever document may be necessary to convey an accurate conception of their respective nature and the results.

Should I apply myself to this business I can count upon the advice and assistance of some of the best informed minds in relation to this subject that this or any other country is in possession of: and which would be generally acknowledged to be such, if I were at Liberty to mention them.

I shall conclude with a consideration, which though personal to the individual, may perhaps be found not wholly beneath regard, nor devoid of interest to a generous nation, to the service of which he has already, since the revival of Spanish liberty, devoted by far the greatest part of his time, and is thus labouring for permission to devote on the same gratuitous terms what remains to him of life. That life may depend upon the receipt or non receipt of the sort of instrument, which he is thus venturing to stipulate for. By his own government all those are avowedly devoted to destruction, who shall dare to advocate that system of popular representation which you originated, and which after you Naples and Portugal have adopted. Of the victims thus devoted he stands amongst the most prominent. In the little tract which has already been honoured with the notice of the Cortes Burdett, Cartwright, and others are mentioned as being for their exertions in this cause at that time under prosecution.¹¹ They have been convicted; and the punishment is at this moment hanging over their heads.¹² Since the threat uttered by Lord Castlereagh at one of the last sittings of the House of Commons¹³ seventeen more prosecutions, if the information I have just received from competent authority does not deceive me, have just been added to the list. Among those already convicted is a poor man in the country, whose crime was the publishing in a small work a small portion of what I myself had first pg 229published in a large one.¹⁴ The very paragraph, which, in this very letter I am now penning, is of itself a punishable crime. For, by a recent law publication given to any thing which has so much as a tendency to bring the government into hatred and contempt is a punishable crime;¹⁵ and by a recent decision of those Judges, of whose decisions Common Law is made the bare writing of any such thing is also a punishable crime:¹⁶ and if the publication or writing, if that which I have just been writing, has not a tendency to bring into hatred and contempt the Government, of and concerning which it is written, and so truly written, what else can have?

If prosecuted The Jury by whom I shall be tried will have been chosen by an official person connected by the closest ties with those by whom I shall be prosecuted, and in a state of official dependence on the Judge for the checking of whose powers Juries are professed to have been entrusted.

If prosecuted I shall therefore be convicted: if convicted the least that could happen to me would be to be fined to a great amount and imprisoned for as long a time, and as afflictive a manner, as the Judges pleased: those functionaries, in the development of whose misrule and corruption fifty years of my life are known to them to have been employed. And if imprisoned, infirmities which, while at liberty, I can keep under without difficulty, would soon be fatal to me.

From that illustrious, and much lamented friend of mankind whose name can not be unknown to any one to whom the transactions of the English Parliament are not altogether unknown—from my intimate old friend and declared disciple Samuel Romilly—but a short time before his death I received the most positive assurance of the fate which he who was in a situation to know declared to be then awaiting me: the assurance I mean of my having been devoted to prosecution in the event of my publishing in the way of general sale, one of my works which was notwithstanding published: it is that in which the abuses of which our Ecclesiastical system is composed are laid open to view. 'If you publish this, I am as sure as I am of my existence, that you will be prosecuted: and, if you are prosecuted, I am as sure as I am of my existence, that you will be convicted'. pg 230These were among his last words to me his very last words—no day but my last day will obliterate the memory of them.¹⁷

Whether it is to the sort of character above spoken of, or whatever else it be, still there is something which as yet has kept from actualy falling the sword thus suspended over my head.¹⁸ If there be any thing that can keep from being finally cut the thread by which it hangs, it is the sort of indirect protection which it would thus be in the power of your Government to afford me. The hands which have embraced[?] themselves without remorse in the blood of unprotected individuals, would shrink from the imputation of offering an affront to Royalty in the person of a thus distinguished servant.

When, as may be seen in my Papers on Codification, my offers of service in that line were accepted by Emperor Alexander, it was by a letter written by himself in his own hand: but, in the present instance, whether the obtainment of such an authority would be practicable or desirable, are two questions both of which wd. be or wd. not be to be considered.

                          I am, Dear Sir, with the truest respect,                               Your's

                                  Jeremy Bentham.

Chevalier de Colomb.

etc. etc. etc.