The Works of Jeremy Bentham,

["Jeremy Bentham (IPA: ['benθəm]) (26 February [O.S. 15 February 15] 1748) – June 6, 1832) was an English jurist, philosopher, and legal and social reformer. He was a political radical and a leading theorist in Anglo-American philosophy of law. He is best known as an early advocate of utilitarianism and fair treatment of animals who influenced the development of liberalism.

"Bentham was one of the most influential utilitarians, partially through his writings but particularly through his students all around the world. These included his secretary and collaborator on the utilitarian school of philosophy James Mill, James Mill's son John Stuart Mill, and several political leaders..." - From Wikipedia]

Vol. 2

[The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1843). 11 vols.]

LETTER I.

On the Liberty of the Press—the approaching Eight Months’ sleep of the Cortes—and the Exclusion of Experience from the succeeding Cortes.

London, 7th October 1820.

Spaniards!—

The Madrid intelligence of the prosecution of a newspaper editor, for comments on the Madrid system of police, and of the introduction of the proposed law against political meetings, has just reached me. I am astounded!—What? is it come to this?—so soon come to this? The men being men, of their disposition to do this, and more, there could not be any room for doubt. But that this disposition should so soon ripen into act, this (I must confess) is more than I anticipated. Neither of the issue of the prosecution, nor of the fate of the proposed law, has the intelligence yet reached me. But that any such prosecution should have been instituted—any such proposed law introduced—that the impatience of contradiction, not to say the thirst for arbitrary power, should so soon have ventured thus far,—these, in my view, are of themselves highly alarming symptoms.

By the prosecution, if successful, unless the alleged offence have features in it such as I do not expect to find in it, I see the liberty of the press destroyed: by the proposed law, if established, I see the almost only remaining check to arbitrary power destroyed.

Taken together, they form a connected system—these two measures. By the authors of this system, you have of course been told, that it is indispensably necessary—necessary to order, to goodorder, to tranquillity—and, perhaps, honourable gentlemen may have ventured so far into the region of particulars and intelligibles, as to say—to good government, and some other good things.—Spaniards! it is neither necessary, nor conducive to, nor other than exclusive of, any of those good things. What says experience? In the Anglo-American United States, of the two parts of this system, neither the one nor the other will you see. No prosecution can there have place, for anything written against the government, or any of its functionaries as such. No restriction whatever is there on public meetings—on public meetings held for any such purpose as that of sitting in judgment on the constitution—on any measures of the government—or on any part of the conduct of any of its functionaries. Yet, if there were a country in which these restraints, or either of them, would be necessary or conducive to good government, it would be that; for, in that country the people are all armed: armed, at all times, in much greater proportion than in any other country—armed, at any time they please, every one of them.

No: in that only seat of real and established good government (for yours, alas! is not yet established)—in that country, in which, ever since that good government was established—in which, for the forty years that it has been in existence, public tranquillity has not known what disturbance is,—there is no more restriction upon men’s speaking together in public, than upon their eating together in private. People of Spain! do you know this? You scarcely do. But is it not high time you should?*

Both these lessons of experience you shall see more particularly in time and place: you will on that occasion see, in the same manner, a passage in history, an allusion to which is all that room can be found for here. A law had been passed, authorizing prosecution for the sort of offence, prosecuted for, as above, among you. Under it, one single prosecution took place—it failed: the law was repealed—the authors of it lost the public confidence, and with it their political influence.

I. As to the restraints on constitutional liberty, that my conception of the matter may at once be seen in its utmost extent, I shall, in the present letter, state at once the measures which I would venture to recommend for examination. But, in the meantime, it may be some satisfaction to you, to see before you an outline of the considerations by which the wish to see some such measures carried into effect has been produced.

First, as to the liberty of the press.

Every expression betokening disapprobation of the texture of the government, or of the conduct of any person bearing a part in the exercise of the powers of government, conveys an imputation on reputation—on the reputation of the persons at the head of the government. This cannot be denied: for as at all times the texture depends upon the person so situated, in proportion as the texture is ill adapted to the only proper end of government, so are they to their situations: and between one degree of disapprobation and another, it is not possible to draw a line. Accordingly, any such expression is, at pleasure, commonly considered by them in this light, and punished. If the imputation is to a certain degree, particular,—imputing an individual act legally punishable, or at least disreputable,—it constitutes the sort of act expressible by the term defamation: if to a certain degree vague and general, vituperation. But these sorts of acts are, both of them, commonly treated on the footing of offences: and this, too, even where the person who is the subject of the imputation is a private individual, not bearing a part in the exercise of any of those powers.

On this subject, the following are the assumptions that, in governments in general, seem commonly to have been made:—

Whatsoever be the treatment of an offender, in the case where the party offended is but a private individual, in the case where he is a public functionary—especially if spoken of as such, much more if the whole body of the rulers, or those at the head of it, are the parties offended,—the offence is more mischievous, or, on some other account, creative of a demand for a stronger repressive force, in the shape of punishment, as well as in all other shapes: and this force ought to rise in magnitude as the rank of the person offended rises; and the judicatory, by which cognizance is taken of the offence, should in this case be different; as also the forms of procedure different.

My notion, as confirmed by the practice of the Anglo-American United States, is, in all those particulars, the reverse. In the case of the public functionary, for vituperation, how gross soever, there should be no punishment at all: for defamation, no punishment unless the imputation be false and groundless; nor even then, unless the false assertion, or insinuation, be the result of wilful mendacity, accompanied with the consciousness of its falsity, or else with culpable rashness—namely, with that which is exemplified by the giving credence and currency to an injurious notion, adopted without any, or on palpably insufficient grounds: no separate judicatory: no separate form of procedure, styled penal or criminal, while, in the other case, it is styled civil; and, in the case of defamation, in disproof of rashness of assertion, as well as of wilful falsehood, the defendant should be at liberty to make proof of the truth of the imputation; and, for that purpose, to extract evidence from the person who is the subject of it, as he might from any other person at large.

For these notions, speaking in general terms, my reason is—that to place on any more advantageous looting the official reputation of a public functionary, is to destroy, or proportionably to weaken, that liberty, which, under the name of the liberty of the press, operates as a check upon the conduct of the ruling few; and in that character constitutes a controuling power, indispensably necessary to the maintenance of good government.

Speaking more particularly, whatsoever evil can ever result from this liberty, is everywhere, and at all times, greatly outweighed by the good.

1. The good, consisting, as it does, in the security thus afforded for good government; and covering, as it does, the whole field of government, is plainly infinite.

2. In comparison with this good, the utmost evil that from this cause can result to any person, or to any number of persons, however situated, would, even if altogether unaccompanied with compensation, be comparatively minute.

3. In the elevated situation in question, whether the imputation be unmerited or merited, the nature of his situation furnishes a man with means of support and defence,—and in so far as the imputation is false, means of disproof and refutation,—increasing with the height of his situation: and, at any rate, much beyond any which can be within the reach of an individual not so situated.

4. In every such situation, immediately upon his advancement into it, and therefore antecedently to his becoming the object of any such imputation, a man finds, in the advantages attached to such his situation, a compensation for all the evil to which, in this, and all other shapes taken together, he stands exposed by it.

5. The higher the situation, the more abundant the antecedent compensation it thus puts him in possession of.

Against the allowance of this liberty, considered with a view to its effect on the goodness of the government, no arguments that have been or may be adduced, will bear the test of examination.

1. First comes dangerousness. Dangerous, it always and everywhere is: for it may lead to insurrection, and thus to civil war; and such is its continual tendency.

Answer: In all liberty there is more or less of danger: and so there is in all power. The question is—in which there is most danger—in power limited by this check, or in power without this check to limit it. In those political communities in which this check is in its greatest vigour, the condition of the members, in all ranks and classes taken together, is, by universal acknowledgment, the happiest. These are the Anglo-American United States, and the kingdom of Great Britain and Ireland. In the republic, this liberty is allowed by law, and exists in perfection: in the kingdom it is proscribed by law, but continues to have place, in considerable degree, in spite of law.

Take away this check, there remains no other but the exercise of this same liberty by speeches in public meetings: and in that shape, besides that it is not applicable with nearly equal advantage, it is much more dangerous.

II. Next comes needlessness. To the prevention of misgovernment, the other remedies that government itself affords, are adequate.

The rulers in chief, whoever they are, have nothing so much at heart as the happiness of all over whom they rule: and that wisdom by which they are informed of the means most conducive to that end, is in them perfect; or, if not absolutely free from all imperfection, that endowment is in their situation much more so, than in that of the subject-many.

This being assumed,—in this union of all the elements of official aptitude—(appropriate probity, appropriate intellectual aptitude, and appropriate active talent)—with uncontrouled power in the persons of the rulers in chief, the subject-many possess an adequate security against any want of correspondent aptitude in the persons of their several subordinates. In case of simple inaptitude, removal will follow: in the case of inaptitude, coupled with delinquency, prosecution, and thence punishment, will follow.

Answer: The rulers in chief, whoever they are, if they are men, have their own happiness more at heart than that of all over whom they rule put together: the very existence of man will in every situation be found to depend upon this general and habitual self-preference.

As to wisdom, it can never be so near to perfection without, as with these all-comprehensive means of information, which nothing but the liberty here in question can give.

Upon exertion depends the possession of all the several elements of official aptitude above mentioned, and in particular the acquirement of the appropriate information, as above. But the higher the situation, the less is the exertion which he who is in it is disposed to apply to the functions of it. For the higher the situation, the less he has to apprehend for himself in case of demonstrated inaptitude in any shape.

Without this liberty, the rulers in chief will not be sufficiently either disposed, or enabled to apply, so much as simple removal, much less punishment, for remedy against inaptitude on the part of their subordinates. Beholding in those subordinates, so many ever-obsequious instruments in their hands—instruments continually applicable to their own personal purposes—the rulers will naturally and generally feel more sympathy for them than for the people at large: they will not be disposed to remove or punish them, merely for acting against the people’s interest; much less for acting in favour of the separate and sinister interest of these same rulers: as where the rulers themselves engross or share the profit of the offence.

To the formal prosecution at the suit of rulers,—and, where allowed, at the suit of subjects,—the informal informations, which it is the property of this liberty to supply, constitute, in one case, an assisting support—on the other, a succedaneum and substitute. Destitute of this assistance and this substitute, prosecution, even when not refused, is at once insufficient and over expensive. So small as is the number of prosecutions, compared with that of delinquencies, the delay, vexation, and expense attendant on them, compose no inconsiderable evil. What, if such prosecutions were as numerous in proportion to delinquencies, as under the liberty in question these informations are, that are given by the exercise of it? Under the least bad systems of judicial procedure extant, the prosecutions teem with factitious delay, vexation, and expense, over and above what is natural and necessary. Attendant on informations, there is neither factitious expense, nor factitious delay: vexation, there is comparatively little—none but what is proportioned to delinquency, and stands in lieu of punishment.

For the establishment of the truth or falsity of the imputation—for the establishment of the guilt or innocence of the party suspected of delinquency—the utmost stock of relevant and applicable facts and arguments that can be secured by prosecution, is very imperfect without the addition of those which this liberty and nothing else is capable of supplying.

II. So much as to the liberty of the press. Now as to the liberty of public meetings.

Without much variation, the arguments that apply to the former of these two branches of personal liberty and constitutional security, apply to this. But of this branch the extinction is already known to have been taken for the object, as well as subject, of an already proposed law: and, ere this, the object may have been effected by an established law.

In support of this extinction, the English newspapers have brought to my view a system of argument, stated as having been employed by various public functionaries. To these, after holding up to view the proposed law in what seems to me its proper colours, I propose to give a distinct consideration in another letter.

From one who, in regard to the individual facts of the case, has no other information than what is above alluded to, any observations made in such circumstances are not altogether out of all danger of being regarded as ungrounded; and to such a degree, as to be destitute of all claim to notice. But—such is the nature of man when clothed with power—in that part of the field of government which is here in question, whatever mischief has not yet been actually done by him to-day, he is sure to be meditating to-day, and unless restrained by the fear of what the public may think and do, it may actually be done by him to-morrow. Of the documents which form the subject of the ensuing remarks, it is impossible for me to say to what extent the accounts that have reached me may not be incorrect. So far as regards individuals, these remarks must therefore from first to last be considered as no other than hypothetical, depending for their appositeness upon the correctness of the reports respectively given of these arguments. But if, considered as applied to the arguments themselves, the remarks should be found justly applicable, the fact, that on the particular occasion in question, the arguments were not actually employed by the persons to whom they stand ascribed, will not detract much from the value of any information which the remarks may be thought to afford. Ungrounded in the character of a censure, in that of a warning, the remark may not the less have issue.

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