The works of Jeremy Bentham T. 1

Introduction To The Study Of The Works Of Jeremy Bentiiam

AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLA- TION,

ESSAY ON THE PROMULGATION OF LAWS, AND THE REASONS THERE- OF; WITH SPECIMEN OF A PENAL CODE,

ESSAY ON THE INFLUENCE OF TIME AND PLACE IN MATTERS OF LEGISLATION,

A TABLE OF THE SPRINGS OF ACTION : Showing the several Species of Pleasures and Pains of which Man’s Nature is susceptible : together with the several species of Interests, Desires, and Motives respectively corresponding to them : and the several sets of Appellatives, Neutral, Eulogistic, and Dyslogistic, by' which each species of Motive is wont to be designated ; to which are added, Explanatory JS’otes and Observations, indicative of the applications of which the matter of this Table is susceptible, in the character of a Basis or Foundation, of and for the Art and Science of Morals, otherwise termed Ethics, whether Frivate or Public alias Politics— (including Legislation)— 2'Acoretioa^ or Practical alias Deontology — Exegetical alias Expository (which coincides mostly with Theoretical^ or Censorial, which coincides mostly with Deontology : also of and for Psychology, in so far as concerns Ethics, and History (including Biography) in so far as considered in an Ethical point of view,

A FRAGMENT ON GOVERNMENT ; OR A COMMENT ON THE COMMEN- TARIES ; Being an Examination of what is delivered on the subject of Government in general, in the Introduction to Sir William Blackstone’s Commentaries. With a Preface, in which is given a Critique on the Work at large,

PRINCIPLES OF PENAL LAW Including, I. Political Remedies for the Evil of Offences. II. Rationale of Punishment, with Appendix on Death Punishments. III. Indirect Methods of Preventing Crimes, . . • . • •

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The Publisher of the first complete Edition of Bentham’s Works thinks a brief prefatory explanation indispensable, in order that the reader may know what he has to look for. The literary executor of “ the master,” Dr. Bowring, being abroad, and others well qualified declining to undertake the task, it has devolved on the writer of the following pages, who sets to work on a somewhat hasty summons.

The science of legislation, and of morals as bearing on legislation, was invented by Bentham : he laid the foundations, and hitherto no one has carried the superstructure higher than he did. In order to appreciate what Bentham has accomplished — to indicate to the reader what he may expect to find in Bentham’s writings, — it will be necessary to glance at — first, the state in which he found legislative science and public opinion ; second, the development of his opinions, the objects and character of the works he produced ; third, the effect his writings have already produced, and the farther effect they are in the act of producing.

I. Of the state in which Bentham fomid legislative science and public opinion.

These two topics are inseparable. Abstract principles, and that floating mass of incoherent opinions caught up and relinquished at random, which has hitherto formed the moral creed and rule of the masses, re -act upon each other. On the one hand, conclusions of the philosopher are adopted by many who are incapable or unwilling to appreciate their reasons : on the other, the opinions of men direct their actions, their actions constitute the events of society, and these events suggest the reflections out of which the philosopher elaborates his principles.

The events of European history had, about the time of Bentham’s birth, established several true and important opinions as the political creed of all reflecting men ; although the common principle, upon which the whole of them ultimately rested, not having been dis. covered, their necessary connexion was not felt — their exact import and extent was not clearly seen — and their important consequences were almost entirely overlooked.

The early religious reformers had deviated into the error of endeavouring to substitute one class of dogmatic opinions, sanctioned by law, for another. The stubbornness of contending sectarians had rendered in many cases a rude rule-of-thumb toleration unavoidable, but wherever a sufficient majority were of one way of thinking, formal creeds, sanctioned by legislative authority, were the order of the day. Again, the encroachments of Charles L had led men to inquire into the basis on which the kingly power rested. The Long Parliament, finding the claims advanced by the King incompatible with security of person and property for the subject, overturned the throne : and the people, finding an irresponsible body of legislators equally dangerous, overturned the Long Parliament. The first experiment having failed, kings were restored, and were not long of driving the people to seek some new bulwark against their attacks. To soothe the superstitious veneration entertained for traditional establishments, the fiction of an original compact between the subject and sovereign was devised, and under its shelter, James II. was driven from the throne, and William III. seated in his place. But for one circumstance, the Bill of Rights would have transformed the “ compact” from a fiction into a reality. That circumstance was, that the Revolution of 1688 transferred the excess of power from the king, not to the people, but to the aristocracy. The king dwindled to a puppet, moved by the largest faction of that privileged ca&te. A wider scope was given to aristocratical ambition ; the British nolulity split into two hereditary parties, which assumed the name of Whigs and Tories; and the structure of the representative bod\ uas advl GENERAL

niirably calculated for enabling whichever of them obtained the ascendency, to work its will with a House of Commons, which, seemingly the representative of the people, was in reality the hired servant of the aristocracy. The American revolution put an end to this illusion. The sturdy fathers of the Transt lautic Republic insisted upon the reality uf what the mother country had been contented to enjoy in name only — the practical application of the doctrine that “ taxation without representation is tyranny. Thus successively did these important truths come to be recognised : — That no religious opinions, honestly entertained, can be criminal ; that power is vested in the chief magistrate bv the people, and for their benefit alone, and may be resumed if abused; that the only safeguard for the persons and property of the citizens consists in their retaining the power of enacting laws and imposing taxes in the hands of representatives freely chosen by themselves. These principles, empirically discovered, were vaguely' enough understood. To them came in time to be added some dim perception of the truths, that where men were loft most free to form their own religious opinions, the intellect assumed a hardier and more energetic character — and that where industry was least trammeled, the comfort of individuals, and the general wealth of the nation, most abounded. As yet, however, no man had arisen of sufficient clearness and grasp of intellect to detect the one-pervading principle, of which all these theorems were only diversified manifestations.

Where the teachers were only half-learned, much wisdom could not be anticipated from the taught. The opinions of all men are composed partly of what they have come to know by their own exertions, partly of what they have received upon trust from the tradition of others. With the bulk of mankind, the latter ingredient preponderates to a great extent. Indolence makes them rest contented with what they are told. Indolence does inoic; it is annoyed by cont radictory information startling it from its repose, and regards the occasion of the disturbance with ill-w'ill. Ihus interest is brought into play, and many an activ'e spirit is forced to remain torpid as his neighbours, for fear of rendering them unfriendly, and incurring, at the very least, a suspension of their good offices. This is the secret of men’s attachircnt to “ things as

Preface

they are herein consists the strength of “ existing establishments. ” The mass of society in Great Britain, during the lattei half of last century, could learn nothing precise or practical in politics from men whose views were, as a whole, vague and incoherent. Men’s natural vis inertia made them acquiesce in what was taught them, notwithstanding the ill-concealed incongruity of its parts. And the whole fabric of British institutions was of a nature to render them friendly to the substitution of w'ords for things. Nothing seemed the result of pre-disposition — every thing seemed, as it were, to have grown up. The constitution was a congeries of makeshifts. If a man remarked that the House of Commons did not represent the people, he was soothed with the phrase “ virtual representation.” If he complained of the voluminous, contradictory, and inaccessible nature of the law, he was silenced by grave panegyrics on the wisdom of the successive occupants of the Bench, who, by virtue of legal “ fictions,” had, as circumstances emerged, built up an artificial system of law, far superior to what any legislature could have devised. Civil life was one great and continuous practical lesson in the art of saying one thing and meaning another. 'Fhe allied Church and the Universities completed the doctrine of insincerity. The most awful mysteries of religion were prostituted to a ceremony, eompliaiice with w'hich entitled to office: at the national seats of learning, young men were made to commence what was understood to be their search after truth, by professing to believe, and promising always to believe, what they were incapable of understanding.

Such paltering with public opinion could not fail to re-act dangerously on public morals. Men unfurnished with sound princi[)les of action were tossed backw'ards and forwards between empty formulas of words. In books they might find professions of elevated sentiment ; in active life, they found corruption everywhere. Walpole and Doddington systematized corruption : Gerrard Hamilton taught the art of veiling ugly practices with fair words. Lawwers trained in the school of fiction — divines, perverted from the beginning, by being taught to profess belief before they began to inquire, and thoroughly corrupted by rich pluralities, the reward of sycophancy and political intrigue, lent their aid to cement the fabric. I'here w'anted not

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counteracting instruments of good — ^the lofty sentiments of the poets, — the holy beauty of that book on which the church professed to stand, — the sense of evils flowing from a bad system, — the contagious example of America. But these accidental influences were, to the compact frame- work of the constitution, as a horde of guerillas to the organization of one of Napoleon’s armies. The better spirits felt, rather than saw, the evils of society. They attempted to enforce their own views by the sophistical forms of reasoning devised by their antagonists, and were necessarily defeated. When the friends of parliamentary reform sought to make good their point by arguing that their system of representation was the real established one, and the other only a usurpation, the reason revolted against such perversion of feet. The struggle between good principles and evil practices seemed only to have made bad worse : virtue began to assume the aspect of a profitless disturber of the peace. But, as the German proverb says, “ When the tale of bricks is doubled, Moses is near.” It was indeed high time that our Moses should make his appearance.

II. Of the development of Bentham’s opinions, the objects and character of the works he produced.

We are inclined to think that it was a fortunate thing for Bentham, that, connected as he was with the aristocracy, his connexions did not belong to the section of it which has affected to patronize liberal principles. If they had, he might, notwithstanding his purely intellectual cast of character, have, like so many others, commenced with being encouraged to make a display of fine sentiments, have proceeded to be gradually absorbed into the vortex of low personal struggles for office, under the delusion that he was enacting the part of a patriot, and ended by being as hollow and heartless a prating Whig as any of his compeers. Luckily for him, he was of a right Tory stock, and nurtured in the loyal and orthodox University of Oxford. His earlier studies rather inclined him to persevere in the family faith. “ The writings of the honest but prejudiced Earl of Clarendon,” he says in a note to his ‘ Fragment on Government,’ “ to whose integrity nothing was wanting, and to whose wisdom little but the fortune of living a little later, and the contagion of a monkish atmosphere : these and other concurrent causes had listed my infant affections on the side of despotism. The genius of the place I dwelt in, the authority of the State, the voice of the Church in her solemn offices: all these taught me to call Charles a martyr.” But his disposition did not fit him for an intriguing partisan, and it is the nature of Toryism to favour, in all like him, devotion to any pursuits likely to keep them from criticising public affairs. Speaking of a considerably later period of his life, he says — ” Party, I belonged to none: I knew not what sort of a thing party was.” But however little calculated by his dispositions to be emmeshed in party contests, there was that in his nature which would not allow him to remain uninfluenced by the political questions which were then beginning to convulse the abysses of society as with n moral earthquake.

The predominant characteristics of Bentham’s mind were : — sincerity, or love of truth ; benevolence, or an ever active desisrj to contribute to the happiness of others ; i,*c. vestigation, or a reckless craving which coul4 only be satisfied by thoroughly examining whatever attracted his attention in all its bearings. If we add, that what phrenologists would call the faculties of order or classification, and of constructiveness, were in him peculiarly active, we have the key at once to the origin of bis opinions, and their progressive development. Circumstances seem to have determined the field he selected for the exertion of those faculties ; but it was the almost unparalleleo power and energy of his mind that enabled him to cultivate that field to so much purpose.

The circumstance that seems to have given the first impulse to the inquiries which engrossed his future life, was the dispute between Great Britain and her colonies, which, during his law-studentship, was the universal topic of conversation. His inquiring turn of mind made him anxious to form such an opinion of the merits of the controversy as would be satisfactory to himself. His original leanings, we have seen, were towards monarchy : the shallow arguments of the then advocates of liberal opinions for a while confirmed him in his error. “ Conversing with lawyers,” he says, in the passage from which we have already quoted, ‘‘ 1 found them full of the virtues of their Original Contract, as a recipe of sovereign cflir'm v viii

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for reconciling- Hie acckleiital necessity of resistance with the general duty of submission. This drug of theirs they administered to me to calm my scru[)les ; but my unpractised stomach revolted against their opiate. I bid them open to me that page of history in which the solemnization of this important contract was recorded. They shrunk from this challenge ; nor could they, when thus pressed, do otherwise than our Author ( Blackstone) has done,— confess the whole to be a fiction. This, methought, looked ill. It seemed to be the acknowledgment of a bad cause, the bringing a fiction to support it.” He elsewhere says, in reference to the same subject — “As to the American controversy, the badness of the only arguments employed against bad government, whether on the one side of the water or the other, had left me sticking to it.” But the equal want of sound argument on the servile side of the question prevented liim from long adhering to it. In his uncertainty he met with Hume’s Essays, and found in them wliat he sought — an unassailable central principle, from which he might sally on his quests after truth, and to which he might retire to recruit his powers by repose whenever he was baffled. This was the principle of utility, or, as he subsequently expressed it with more precision, the doctrine that the only test of the goodness of moral precepts or legislative enactments, is their tendency to promote the greatest possible happiness of the greatest possible number. Armed with this discovery, he applied it on all occasions, thereby at once directing himself to the truth, and establishing, by a multiplicity of experiments, the trustworthiness of his test.

Bentham was guided to the recognition of tliis all-pervading principle at an early period of his career, by his strictly logical turn of mind, which saw through the empty veil of woiuls substituted for things, and by his instmetive truthfulness of disposition. The profession, to whicli choice or the u’ill of his guardians devoted him, the law, furnished ample materials for stimulating these propensities, and further developing his opinions. He i has told us, that while attending in the Court of King’s Bench during the years of his studentship, the chief objects of his admiration, and in part of his emulation, were Lord Manstield and Mr. Dunning. Even in his advanced years, he recurred to his feelings towards the former in glowing language: — “ From the first morning on whicli 1 took iny seat on one of the hired boards that slid from under the officers’ seats in the area of the King’s Bench, at the head of the gods of my idolatry had sitten the Lord Chief- Justice. Days and w'eeks together have I made my morning piU grimage to the chief seat of the living idol, with a devotion no less ardent and longing, and somewhat less irrational, than if it had been a dead one.” Of Dunning he says — “ If in my style, appropriate aptitude in any shape or degree is discernible, it is probably in no small djgree to Dunning that it is due. Precision, correctness, clearness, guardedness in expression — closeness in argumentation — seemed to me his characteristic features : in these, combined with force, he seemed to me altogether without a rival.*’** At the Bar, of all men I had ever heard, he had been the one whom I had heard with tire greatest pleasure and attention, — the one, whose style in speaking, it seemed to me, that on all occasions it would be matter of the highest satisfaction to me to be able to imitate.”

Mansfield was the first who lent to the decisions of English courts the liberal view's of the man of the w'orld, and the graceful systematic coherence of the man of literary tastes. Dunning was nervous and perspicuous. They contributed by their example to cultivate that love of systematic arrangement, and clear unequivocal expression, to which Bentham w'as by his nature predisposed. At the same time, more minute acquaintance with the law convinced him, that, as he has forcibly expresssd himself in the Introduction to the Rationale of Judicial Evidence — “ The incomprehensibility of the law, a circumstance which, if the law w'cre wdse and rational, w'ould be the greatest of all abuses, is the very remedy, which, in its present state, preserves society from utter dissolution ; and that if rogues did but know all the pains that the law has taken for their benefit, honest men would have nothing left they could call their own.” His sincerity was offended to find fiction the gre<at staple of law. His benevolence w'as hurt by seeing the necessary tendency of the cumbrous and unintelligible system, by delay and accumulation of expense to destroy where it was meant to defend. His faculty of invention was stimulated to devise substitutes for the mischievous system of law and judicial organization w'hich he found existing. To this task he devoted his future life. This was thenceforth his business in the world, and all his investigations radiate from this as from a

centre are subordinate and auxiliary to this

end. If we keep this fact steadily in view, many shallow objections to passages in his works are dissipated at once : the cavillers have mistaken practical applications of principle for abstract enunciations of principle.

We are now in condition, starting from this point, to trace the progressive development of Bentham’s opinions, as manifested in his writings. There is, however, one preliminary to be first disposed of : this seems to be the most appropriate place for dissipating the absurd notion that he was a mere theorist. There never was a mind less disposed to wander in vague speculation : there never was a more thoroughly and essentially practical mind. Two instances may be given in confirmation of our assertion, that he was what is conventionally termed “ a man of business,” in addition to the fact of his admirable management of his own domestic affairs. About the date of his first publication, having paid a visit to Paris, he there contracted an intimacy with a painter, who was in search of an engraver for a portrait of Lord Mansfield. Bentham was employed to draw the articles of agreement between the two artists, and this document having accidentally come into the hands of Lord Mansfield, elicited from him expressions of unqualified approbation, which (the transaction being quite in the ordinary track of business) could only be occasioned by the style of execution. Again : the late Lord Lansdowne, a shrewd man of the world, gave a pretty unequivocal proof of the esteem in which he held Bentham’s Worldly wisdom, when he recommended him to the dowager Lady Ashburton, for a second husband, on the plea that he would make an excellent guardian for her son, a minor. But indeed, the subjects of Bentham’s writings, and his mode of handling them, suffice to show the practical turn of his mind. In order to stimulate him to exertion, it was necessary that something to be done be at least the ultimate object: and in working to this end, not the slightest item that might throw an obstacle in the way of the practical application of his principles was ever overlooked ; while every new mechanical invention that seemed to promise additional facility, w'as seized upon the moment it appeared.

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Bentham’s first publication was his “ Fragment upon Government,” — an examination of what is delivered on the subject of go vernment in general, in the Introduction to Sir William Blackstone’s Commentaries. It was published in 1776 (ten years after the author’s entry at Lincoln’s-inn,) and is interesting, as containing the germ of his whole system. He broadly avows his universal test his fun-

damental principle of utility. He shows no mercy to the w'ell-rounded periods of Blackstone, exposing with the most ruthless logic their ostentatious w'rapping up of no meaning in sounding language. The first object of the treatise is to show, that correspondent to discovery and improvement in the natural world is reformation in the moral. With an energy unsurpassed in the wmrks of his maturest genius, he vindicates adherence to stern simple truth on all occasions, laying down the principle as applicable to the defender of abuses, that “ every false and sophistical reason that he contributes to circulate, he is himself chargeable w'ith.” He makes wild work with the figures of speech employed to plaster up the chinks and crannies of “ Matchless Constitution.” He tosses about and disperses “ checks and balances,” “ blending of aristocracy, democracy, and monarchy, into a whole, combining all their advantages, and free from their defects,” and the like. He paints the social structure of Britain as it existed, and in a great measure still exists, not in the dainty phrases of legal fiction. The work is critical : it shows the hollowness of what had been hitherto taught. It leads men to look about for a better teacher, and heralds his coming. It clears away the rubbish, that the true builder may commence operations. The whole tone of the work corroborates what w'e remarked above, regarding law reform being the starting-post of all Bentham’s expeditions of discovery. It is legal reform alone that he seems to contemplate: if not wedded to monarchy, his divorce from it is more to be inferred than seen. Further investigations were necessary to impress upon his mind the full importance of democratical institutions. His democratic principles were not an evanescent sentiment caught from the perusal of classical authors ; they were the mature conviction of his mind. After ranging through all possible forms of government, he reposed on the democratic representative at last as the only one that suited

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his purpose. It is not, however, in the Fragment upon Government that we must look for this : there he contents himself with exposing the nonsense written by others about the four recognised types of government, and showing its practical inutility.

Bentham’s mind, we have repeatedly observed, was essentially constructive : it could not rest satisfied with negative results. Between 1776 and 1782, his views had become so matured, that he had chalked out for himself a scries of publications, which, when cotnplete, would exhaust all that he felt necessary for the accomplishment of his purposes. As the enumeration of these furnishes a chart or outline, within some department or other of which all the labours of his future life may find a place, we give it a place here.

“ Part the 1st. — Principles of Legislation in matters of civil, more distinctively termed private disiribulive, or for shortness sake, dislrUnitive law.

“ Part the 2d. — Principles of legislation in matters of penal law.

“ Part the 3d. — Principles of legislation in matters oi procedure ; uniting in one view the criminal and civil branches, between which no line can be drawn but a very indistinct one, and that continually liable to variation.

“ Part the 4th Principles of legislation

in matters of reward.

“ Part the 5th. — Principles of legislation in matters of public distributive, more concisely, as well as familiarly, termed constitutional law.

“ Part the 6th. — Principles of legislation in matters of political tactics: or the art of maintaining order in the proceedings of public assemblies, so as to direct them to the end of their institution ; viz. by a system of rules, which arc to the constitutional branch, in some respects, what the law of procedure is to the civil and the penal.

“ Part the 7th Principles of legislation

in matters betwixt nation and nation, or, to use a new, though not inexpressive appellation, in matters of international law.

“ Part the 8th — Principles of legislation in matters of finance.

“ Part the 9th Principles of legislation

in matters of political econonvj.

“ Part the 10th. — Plan of a body of law, complete in all its branches, considered in respect of its for in; in other words, in respect

PREFACE.

of its method and terminology ; including a view of the origination and connexion of the ideas expressed by the short list of terms, the exposition of which contains all that can be said with propriety to belong to the head of general jurisprudence. [Such,” he adds in a note, “as obligation, right, power, possession, title, exemption, iminunity, fiancliise, privilege, nullity, validity, and the like.”]

A little reflection will suffice to show that these heads may be made to embrace every topic with which the legislator can have anything to do. In filling up a map of the territory, the outline of which is here sketched, he spent the whole of the rest of his life. As he himself foresaw, the order in which the “ parts” are arranged, although the “ best fitted for apprehension,” was not that in which such of them as were published during his life ultimately made their appearance, — the succession of his works having been influenced in a great measure by “ collateral and temporary considerations.” In the mass of writers, the faculty of language overmasters every other: they are never (piite aware of the coherence or incoherence of their dim notions, until they see them staring them in the face from the paper. They ■work up a book rapidly : and can always show in tangible ifianuscripts the fruits of their hours of literary labour. With Benthain it w^as otherwise ; language was with him a very subordinate concern — the mere vehicle for conveying his ideas. With the class of writers we have adverted to, arrangement and distribution is a mere matter of external form : it exists only in the visible signs of hooks, chapters, and volumes. With Bentham, on the other hand, arrangement was essentially a part of his subject: with him the outward symbols of arrangement flowed necessarily from his mode of thought. The whole field of his exertions lay distinctly before him: when be seemed to expend himself upon the minutest details of one corner of it, this was not because he overlooked the rest, or attributed an undue prominence to the subject of the moment, but because a man can only do one thing at a time. He laboured incessantly — seeking to give the last finish to every part of his work: conscious that when the whole was finished, each part would stand in its due relation to the rest, and thus create harmony of proportions. When he found the stone of a right size and texture, he did not waste timi

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having it cut, if the building was not far nough advanced to admit of its being laid. He knew where it was, and that he could fit it for use when he required it. The great architect, with his plans of the building as distinct in his mind’s eye as if it were finished, collected his materials, and arranged them so that each should be at hand when wanted. The details were executed by his assistants, under his superintendence, he lending at times a finishing touch. To the uninstructed, the works published during his life may seem fragmentary— his collections may seem a chaos ; but he who, taking the above enumeration of projected works for a guide, reads himself into Bentham’s way of thinking, will soon come to see, that in the works published during his life, and his MS. remains nowabout to appear for the first time, the task of his life has been sufficiently accomplished.