Page images

and legislator should keep steadily before their eyes, that was the supreme tribunal before which every act, every custom, and every institution should be tried; the touchstone of morality, the palladium of law. The phrase, indeed, was not his own. It had been invented years before by Hutcheson, and Hume had founded his moral system upon the basis of utility.' Bentham is commonly styled the 'Father of the Utilitarians,' and Sir Leslie Stephen begins his history of the Utilitarian sect with him. In this Stephen would appear to be entirely justified, because he sat down to write an history of the English Utilitarians, that is an history of the sect, and more or less a continuation of his English Thought in the Eighteenth Century. On the other hand, Dr. Albee appears to be equally justified in his History of English Utilitarianism in beginning with the Cambridge Platonists, and only about half-way through the book devoting a chapter to · William Paley and Jeremy Bentham’; because he is writing the history of an important phase of English Ethics, and there Bentham naturally sinks into a comparatively subordinate position. But if this be true, whence comes Bentham's originality? The answer is that he founded ‘not a doctrine but a method ",' and his originality consists not in his philosophical system, but in his uncompromising and detailed application of it.

In fact, as a system of ethics, Benthamism need not detain us long. The whole of the ethical systems founded directly upon utility were well described by the late John Stuart Blackie in the phrase Externalism.'

From Thomas Hobbes of Malmesbury down to Alexander Bain of Aberdeen, the morality of the Utilitarians is a morality in which the moral virtues of the inner soul is as much as possible denied, and the moral virtue of outward institutional or other machinery as much as possible asserted?'

This remark may be illustrated from the extreme importance that Bentham attached to sanctions, and the time he devotes to the classification of springs of action to form his celebrated · felicific calculus. Morality, therefore, depends on consequences, not on motives, a doctrine that, however necessary in law, takes all meaning out of ethics. It is the less necessary to indulge in any criticism of his system of morals because it was decisively condemned by his disciple John Stuart Mill in the essay published only six years after Bentham's death. And when a disciple condemns, who shall justify? Bentham's philosophy, remarks Mill,

Stephen, English Utilitarians, vol. I, p. 236. 9 Four Phases of Morals, p. 286.

[ocr errors]
[ocr errors]


'will do nothing for the conduct of the individual, beyond prescribing some of the more obvious dictates of worldly prudence, and outward probity and beneficence. There is no need to expatiate on the deficiencies of a system of ethics which does not pretend to aid individuals in the formation of their own character; which recognizes no such wish as that of self-culture, we may even say no such power, as existing in human nature ; and if it did recognize, could furnish little assistance to that great duty, because it overlooks the existence of about half of the whole number of mental feelings which human beings are capable of, including all those of which the direct objects are states of their own minds?.'

But when we pass from the domain of ethics to the domain of legislation we are at once. sensible of the strength of a clear general principle that can be applied to every detail, and the very weakness of this principle in the field of ethics was a cause of its strength in the field of law. Bentham had an excellent knowledge of French, in fact he could employ it almost as easily as his mother tongue, and in some respects his methods of thought were more French than English. Now a dominant note in the French political philosophy during the latter part of the eighteenth century was its exaggerated view of the power of legislation. The French revolutionary leaders set about the construction of a new State with the lightest of hearts, and the most touching faith in the efficacy of their principles. Of the magnitude of the task and the difficulties in the way of its execution they had no conception. History to them, as to Gibbon, was little more than the register of the crimes, follies, and misfortunes of mankind 2: Before the onward march of Reason the institutions, the customs, and the habits that centuries had formed would crumble in the dust. The continuity of history was a doctrine that only hard experience could teach ; and only when the generation of the Revolution had passed away did men realize the truth of the saying of Wilhelm von Humboldt, that,

Constitutions cannot be grafted on mankind like buds on trees. Where time and nature do not come to his assistance, man can make no more lasting work than bind together a few flowers that the first sunbeams will wither.'

The doctrine of the Rights of Man Bentham's acuteness threw aside; but in his disregard of history he was a true child of the revolutionary age. The natural man' he never accepted, but


"J. S. Mill, op. cit., p. 297. » Decline and Fall of the Roman Empire (Bury's edition), vol. I, p. 77. This is what Gibbon said of history. The conception of it as worked out in his masterpiece is far different, and far more noble.

& Quoted in Cambridge Modern History, vol. viii. The French Revolution, p. 711.

underlying his theories there is the idea of an average man. He would allow that the circumstances of time, place, climate, and so forth must be taken into consideration, but assumed that such circumstances were superficial and capable of indefinite alteration by the legislator 1

His works are an unflinching application of the principles of Utility to every department of Law. His philosophy was weak, but his method was strong; in fact he got on very well without any philosophy at all. To every law and to every institution he addressed the one inevitable question, 'What is the use of you ?' It was this essential practicality of mind that established his superiority over the philosophers whose general methods he followed. The general trend of thought in England was to extol the British Constitution and English Law as the perfection of human reason. This attitude is exemplified by the Commentaries of Blackstone and the Constitutional Treatise of De Lolme. To such a school of thought the method of Bentham was a rude shock. He dared to speak disrespectfully of time-honoured institutions, and to demand from every one of them clear proofs of their utility. A more bracing method could not be applied to any system. The institutions that were rooted in the affections of the people, and which answered to a social need, would come successfully through the ordeal, the remainder would be condemned upon an intelligible principle.

For such a writer no environment could be more favourable than the first quarter of the nineteenth century, from the rise of Napoleon to the passing of the Reform Bill. 'If I had to begin life again,' Lord Eldon is reported to have said, 'I would begin as an agitator.' The most uncompromising of the Tories, the man who consistently opposed every measure of reform, who'never ratted?'; even he felt that the times were out of joint, and the agitators flourished as none else flourished. The mass of abuses to be attacked was huge. They have often been described, and there is no necessity to repeat the description in this place; but they formed the most promising subject matter that any agitator could possibly desire.

Of Bentham's remedies the sovereign one was codification. For judge-made law he had the most profound aversion and contempt. The following witty description of it (from Truth v. Ashurst) will appeal to every one who has ever indulged in the ruinous luxury of being one of the parties in a leading case. Case-law may be

i Stephen, op. cit., vol. i, p. 300.

• The expression used by the Radical mob of Oxford, “There goes old Eldon, cheer him, he never ratted.'


[ocr errors]

a beneficial institution in many ways, but it must always retain the disadvantage of throwing the expense of deciding a new point of law upon the individuals who are unfortunate to raise it first. 'It is the judges that make the common law. Do you know how

ffb they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him. This is the way you make laws for your dog, and this is the way the judges make laws for you and me.'

Bentham's idea of codification is in an essential respect different from that of modern writers. The modern method of making a code is to state in an accurate and compendious form the result of a series of judicial decisions without making any alteration in the substance of the law; Bentham's code was a method of effecting huge alterations in the substance of the law. Neither Bentham nor any other reformer would have been satisfied with a codification of the law as it existed in their time. Such a process to them would have appeared to be a stereotyping of abuses, an effective brake to the whole reform movement. The Theory of Legislation, therefore, is an examination a priori and de novo of the field of Law, and a statement of what, according to the principle of Utility, the law under each heading ought to be. In the matter of arrangement, one of the most important points of a modern code, in fact in the matter of form generally, his method marks no advance on those of his predecessors. So far from agreeing with John Stuart Mill's aphorism that he found the philosophy of Law a chaos, he left it a science, we venture to assert that his contributions to pure jurisprudence are comparatively insignificant. The only parts of his writings that could be classified under that heading are the politico-legal theories contained in the Fragment on Government. His discussion of the question of Sovereignty marks little, if any, advance upon the ideas of Hobbes, though his writings do not give any countenance to the suggestion that he had ever studied the Leviathan 1.

Bentham's supremacy was in the field of Legislation, and it would be well to consider for a moment the exact. extent of his influence in that direction. A generation or more ago no writer had any doubt of the extent of it. Sir J. F. Stephen, speaking of Theory of Legislation, says:

'If any one would take the trouble of reading it, with an early edition of Blackstone on one side, and a late edition of Stephen's

1 (Bentham's great difference from Hobbes is that, guided by Hume, as he explicitly states, he rejected the fiction of an original contract, whether of Hobbes's or of Locke's pattern, being the foundation of political society. But this is in the region of political as distinct from legal speculation. -Ed.] VOL. XXII.


Commentaries on the other, he would be able to satisfy bimself that it has met with a degree of success wbich perhaps no other book ever gained in this country' So Maine, writing in 1861, says

It is impossible to overrate the importance to a nation or profession of having a distinct object to aim at in the pursuit of improvement. The secret of Bentham's immense influence in England during the past thirty years is his success in placing such an object before the country. He gave us a clear rule of reform. English lawyers of the last century were probably too acute to be blinded by the paradoxical commonplace that English Law was the perfection of human reason, but they acted as if they believed it for want of any other principle to proceed upon. Bentham made the good of the community take precedence of every other object, and thus gave escape to a current which had long been trying to find its way outwards 2.'

Can we at the present time accept these statements as historically true without qualification ? Was Bentham's influence as real and as deep as it has been represented--was he 'the teacher of the teachers,' or was he merely the chief exponent of ideas that were common to the thoughts of his time? It is certainly true that his consistent and avowed followers, the 'party called the Philosophical Radicals, were an entirely insignificant factor in political life. They held a few seats in the Reform Parliament of 1832, but even that small influence quickly declined, and their leaders left for other spheres of activity, Grote to write the History of Greece, and Molesworth to edit Hobbes.

The answer to the question is, we think, supplied by Prof. Dicey's recently published Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century. This most illuminating book shows clearly that from the beginning of the Reform period until about the year 1870 the spirit of Bentham was the dominant spirit in English Legislation. The Philosophical Radicals might be an insignificant party, but they were extremists, and the practical common sense and entire want of logic of English political life usually reduces a party of extremists to insignificance. The legislation of that period is strongly individualistic, and the measures of that period are measures advocated by Bentham, because bis principles had taken hold of the political thought of the time. Since 1870, as Prof. Dicey points out with no less clearness, the influence of Bentham and of his principles has declined, because it has been replaced by Collectivism as the dominant note in legisla

Sir J. F. Stephen, Horae Sabbaticae, series iii, p. 219. · Ancient Law, p. 78.

« PreviousContinue »