« PreviousContinue »
moner at Queen's College, Oxford; he went through the University and took his degree of A. B. in 1763, at the age of fifteen. Shortly after he commenced eating his commons in Lincoln's Inn, but attended at Oxford to hear Blackstone's lectures. To these lectures he listened without the presumption, at that time, to set himself up as a critic, yet not without some occasional feelings of protest. Returning to London, he attended as a student the Court of King's Bench, then presided over by Lord MANSFIELD, of whom he continued for some years not only a great admirer, but a profound worshipper. He took his degree of A. M. at Oxford, at the age of eighteen-the youngest graduate that had been known at either of the Universities, and in 1772 he was called to the bar.
Bentham had been educated to sentiments of the most devoted loyalty to the English government, and had breathed from infancy, at home, at school, at college, and in the courts, an atmosphere conservative and submissive to authority, yet in the progress of his law studies, beginning to contrast the law as it was with law such as he conceived it might and ought to be, he came gradually to abandon the position of a submissive and admiring student, anxious only to make the law a ladder by which to rise to wealth and eminence, for that of a sharp critic, an indignant denouncer, a would-be reformer. His father, who fondly hoped to see him Lord Chancellor, had some cases in readiness for him on his admission to the bar, and took every pains to push him forward, but in vain: his temperament, no less than his moral and intellectual constitution, wholly disqualified him for success as a practising lawyer. He soon abandoned, with disgust, to the infinite disappointment of his father, all attempts at labor in the line of his profession.
For some years he supported himself upon a very narrow income, devoting his attention to general study, and especially to the science of chemistry, which was then in its infancy, to metaphysics and to jurisprudence the latter rather as it should be than as it was. The writings of Hume and Helvetius had led him to adopt utility as the basis of morals, and especially of legislation, and already he began to write down his ideas upon this subject-the commencement of a collection of materials for, and fragments of, a projected but never completed code, which, for the remainder of his life, furnished him with regular and almost daily employment.
He published a great number of works between 1776 and 1827, all manifesting great ability and unbounded zeal in the cause of legal reform. The most famous of these is his Rationale of Judicial Evidence."
In 1811 he addressed an elaborate letter to President Madison, offering, upon the receipt of a letter importing the President's approbation, and, as far as depended upon him, acceptance of his proposition, forthwith to set about drawing up for the use of the United States, or such of them as might accept it, “a complete body of law-in one word, a pannonion, or as much of it as the life and health of a man, whose age wanted a little of four-and-sixty, might allow of,” asking and expecting no reward beyond the employment and the honor of it. This letter, beside a sketch of his plan, which embraced not merely the text of a code but a professional running commentary of reasons, included also a vigorous attack upon the existing system of English and American jurisprudence, and an answer to certain anticipated objections both to the plan and to himself as legislator. Mr. Brougham wrote, at the same time, to some American friends, expressing his opinion that no person in Europe was so capable as Bentham of such a task. For various reasons the proposition was not accepted.
In 1822 he published his “ Codification Proposal,” addressed to all nations professing liberal opinions, offering his services as legislator, and arguing in favor of a code emanating from a single mind. He was consulted on the Spanish penal code, and published some letters thereon, and similar applications were made to him from Spanish America. But the downfall of liberalism in the Peninsula, and the protracted civil wars in the late Spanish colonies, disappointed his expectations in that quarter. Becoming recognised in England as a leader of the radical party, he entered with great zeal into political controversy, and published in this connection many vigorous pamphlets. His last published work was his « Constitutional Code."
In his earlier writings Bentham expresses himself with great terseness and energy; in his later writings he sacrificed everything to precision, for which purpose he employed many new words, some of which, such as international, codify, codification, maximize, minimize, &c., have become permanent additions to the language. His analysis of human nature, on which he based his system, can hardly rank him high as a metaphysician; his employment of the exhaustive method of reasoning frequently led him into useless subdivisions and unnecessary refinements, but he had a very acute intellect, a thorough devotion to truth, a strong spirit of benevolence, unwarped by any selfish or party views. Unawed by authority, he appealed to reason alone, and having devoted his whole life to the study of jurisprudence, his works abound with suggestions and ideas as novel as they are just. In the improvements introduced of late years into the administration of the law both in England and America, many of his suggestions have been followed, often without acknowledgment or even knowledge, perhaps, of the source whence they originated. There are many more of his ideas that may yet be put to use.
The labors of Bentham, although not crowned with any immediate success, furnished an inexhaustible fund of arguments for the use of men who took a more active part in public life. Sir Samuel Romilly was perhaps the most eminent and able of these. He entered public life at a time when three hundred different offences were punishable alike with death—when murder, robbery, counterfeiting, sheep-stealing, and shop-lifting were all equally heinous in the eye of the law. His first public effort was to oppose a project for making these ferocious laws still more bloody; and during many years of public life he never ceased struggling for a reduction of the number of capital offences. He also exerted himself strenuously to reform the practice of the courts of law and equity. But all his efforts were in vain. Lord Eldon, the embodiment of blind and headstrong conservatism, was then in practically supreme power, and was able to thwart all attempts at reform. Romilly died a melancholy death in 1818, without seeing any fruit of his labors.
Other men, however, were kindled to enthusiastic endeavors by the doctrines of Bentham and the example of Romilly. Prominent among these was Henry Brougham. With a wonderful flow of language, and with untiring perseverance, he fought the Court of Chancery and all its allies. Not long after the death of Romilly, commissioners were appointed to investigate into the condition of the courts, and though composed of men by no means radical in their tendencies, it was impossible for them to avoid the conclusion that the state of things into which they examined was disgraceful to an enlightened country. A swarm of useless officers, receiving enormous salaries for doing nothing, were found in every court. Every avenue of litigation was choked up with business. The Chancellor was hopelessly behind his calendar. Though no corruption was imputed to any official, yet the state of affairs was such that even corruption could not have made it much worse.
Some moderate reforms were effected in the constitution and procedure of the courts, at the instance of the commissioners, but the judges were not disposed to join cordially in the work, and it was not until the Tory party lost its unity in 1829, that any substantial progress was made in civil procedure. Meanwhile, however, a great improvement was made in the law of crimes and punishments.
Sir Robert (then Mr.) Peel, although a leader of the Tories, gave way to the pressure of the reforming party, and introduced a series of measures, amounting to a partial codification of the criminal law, and greatly restricting the death penalty. In this case, as in many others, he adopted the ideas of his opponents, and secured to himself the credit of measures to which the whole current of his previous life had been opposed.
In 1830, the new rules of the common law courts greatly simplified the pleadings and practice of those courts. In the same year the Tories were swept out of power, and Lord BROUGHAM succeeded Lord Eldon as Chancellor of England. He went to work with vigor; cleared off the long arrear of cases, and thereafter rendered the decisions of the court with a promptitude unknown before.
From that time a constant series of reforms have been in progress. The courts have been remodelled, the law of real property greatly improved, the law of evidence reconstructed on wiser principles, and commercial law modified to meet the wants of com. merce, instead of fettering commerce to abstract and unphilosophic notions of law.
The vast alterations in practice and pleading since the new rules we reserve for future consideration, inasmuch as it was one of the results of the great change effected in New York in 1848, and of that we must first speak.
The doctrines of Jeremy Bentham (of which we have heretofore spoken) met with but a very limited degree of attention, and a still more limited acceptance, in America. A young, busy, and practical people, such as were our fathers and grandfathers in the period between 1800 and 1825, are apt to take law ready made, and accept it with any rough modifications which will make it decently applicable to their condition, without critical examination and with little thought of reform on any extended scale. Had Bentham come over to this country, instead of addressing letters to presidents and governors, settled down as an American citizen, framed a code for one of the new states of the far west, and presented it to the legislature at its first meeting, it is by no means unlikely that it would have been adopted by half a dozen western states in succession, and by this time would have been law in the larger part of the free states. Just so we fülly believe that, at this day, if some enterprising law-reformer would exert himself to provide for the wants of the new and thinly populated territories, such as Colorado, Dakota, Nevada, and perhaps even Kansas and Nebraska, he could secure the whole of that growing region for the experiment of codified law, which he may spend all his life in vainly urging upon New York or Massachusetts.
Such an effort must, however, be made in the very childhood of a state. The same people who would eagerly accept almost anything as a system of law at first, will, as soon as they have a system, and have gone to work under it, be more deaf, if possible, to suggestions of change during the first fifty years of their history,