date

1821 Oct. 1 To Toreno 2 o or
1821 Oct. 1

To Toreno

2 o or 3 o

Letter IV

Religion

Censorship

31

5

*5

*4

Two Articles after comes Article 220 “which power is given to the King, hearing (oyendo[?]) the advice of his Council of State in the manner prescribed by the Constitution (namely in Article 171 to which however, no reference is given) to suspend the course of and call in (recoger[?]) Pastoral Charges Instructions or Edicts which the Prelates or Ecclesiastical Judges have directed to their Diocesans on the exercise of their ministry, if in their opinion the instruments in question contain things contrary to the Constitution, or to the laws, and give order for the prevention[?] of the author, if he has deserved it (sè habiere meritos para illo[?]).

In Ultramaria, some power to the Political Chief taking into consultation the Fiscals of the Supreme Judicatory[?] (audicuna[?]) of the Province, or if there be no such Judicatory, two lettered Fiscal Promoters.

In the Peninsula and adjacent Isles like power of calling in to the Political Chief, under his responsibility in case of having urgency and danger in it en il caso de grave urgentia y peligro.

Thus plainly there you see Sir are the functionaries in question invested with the Censorship, and with only this difference from the ordinary mode namely that if the authors of the writings /delinquents/ in question make /employ ordinary/ use of common measure in ingenuity and industry, the whole or the greatest part of the whole of the good aimed at may be frustrated, rendered unattainable, the offence may /will/ be productive of the greatest matter of the supposed mischievous effect it aims at.
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  • Title: [1821 Oct. 1 To Toreno 2 o or]
    Description: 1821 Oct. 1

    To Toreno

    2 o or 3 o

    Letter IV

    Religion

    Censorship

    30

    4

    5

    4

    Art. 226. 218. 213.

    [marginal note:] Art. 220

    Article 213 in case of the publication of a forbidden discourse of a certain description by an Ecclesiastic, secular or regular, if it be a pastoral (episcopal) charge in official edict or writing, bodies ecclesiastical there are three separate temporal functionaries are mentioned: namely the Political Chief, the Alcaldo[?] and the Judge on all /every one/ of whom the obligation is imposed /it is made matter of obligation/ —not only of proceeding against the delinquent but of calling in (ruoja[?]) the offensive writing. Penalty from 300 to 600 dollars. How it is that without interfering with one anothers authority and producing mutual obstruction all these different functionaries can in this case go to work, is not clear to me. A maxim I have already had occasion to submitt to your view, is that in the case of a functionary of any description, bu every number /unit/ added to number one, responsibility is diminished.

    But /Meantime/ the offence in question what is it? it is the offence constituted by the guardarsi[?] Article: the offence which consists in giving expression to an /the/ opinion that in that production of impeccability and infallibility entituled the Political Constitution of the Spanish Monarchy there exists an Article which on some point or other had better not be kept than kept, better be altered than left as it is.
  • Title: [1821 Oct. 1 To Toreno 2 o or]
    Description: 1821 Oct. 1

    To Toreno

    2 o or 3 o

    Letter IV

    Religion

    Censorship

    29

    3

    4

    3

    Admitting /Now suppose/ that the expedient of Censorship and Licensing must here be employed, now as to the mode of it. The Constitutional Code under the head of the power given to the King in Article 171 Para 15 Gives in a direct way to the King, in relation to Decrees of Councils and Bulls of Popes, the power of licensing or keeping back those instruments with the advice of the Council of State in some cases and the supreme Judicatory in other cases. Here we have an example of licensing in the direct mode: and this is the only mode employed in the Constitutional Code.

    Now for an example of licensing in an indirect mode: an indirect mode /course/ employed and for ought I know invented by the Legislative Committee.

    Their course /mode/ is to leave to all persons at whose hands they are apprehensive of annoyance in the mode in question namely by mischievous writings, the liberty of publishing them. But no sooner are they published, than if there be any thing mischievous in them, it is made the duty of some temporal functionary his duty under severe penalties to call them in and do what depends upon him for preventing the dissemination of them.

    This is what in an English proverb is called shutting /waiting to shut/ the stable door till after the steed is stolen. The temporal functionary is bound to stop /put a stop to/ the mischief done /produced/ by the spiritual functionary. But at what time? Not till after to an indefinite amount the mischief which it is thus endeavoured to prevent has been produced.
  • Title: [1821 Oct. 31 To Toreno 3]
    Description: 1821 Oct. 31

    To Toreno

    3

    Letter VII Religion

    §. Facienda—Reason

    11

    4

    {9} 8.

    Inserendumne? where[?]?

    The Censorship in question established, and as per Article | | of the proposed Code the political chief in /of/ the Province (suppose) appointed Censor, a pastoral charge for the Bishop of a Diocese contained within the Province is presented for a licence. This licence will be either granted or refused. Suppose it granted, you have reason to believe /presume/ that there is nothing noxious in it: for if there be, whatsoever be the mischief produced, , the Political Chief by whom the licence has been granted is responsible Suppose it /the licence/ on the other hand refused. If refused, on sufficient ground every thing is as it should be: mischief is prevented, and the purpose of the law answered. But if refused without any ground at all, still there is no considerable harm done. For be the composition ever so excellent ever so useful, no parts of its real use is thus excluded /shut out/: for to the Bishop, as to every other man, for this discourse as for almost any discourse, the press is open and free.