CHAPTER VIII.

Law Reform--Jeremy Bentham--His Opinion of the Common Law--His

"Felicity" Principle--His Universal Code--His Works--The Fruits of

his Labors--His Talents and Character.

The father of Modern Law Reform was JEREMY BENTHAM. This singular person

has been often sneered at by Americans, who knew nothing of him or his

writings, except that he lived somewhere in Europe, and was called "a

visionary foreign philosopher" by the North American Review. He was the

constant theme of ridicule for a large class of Englishmen, who only

cared to know that he was said to be an eccentric old man, who shunned

the world, admitted his guests to dine one at a time, wore an uncouth

garb, was an abominable sloven, turned wooden bowls on a lathe and run

in his garden for exercise, relieved the tedium of study by playing now

on a fiddle and then on an organ, heated his house by steam, slept in a

sack, looked very much like Ben. Franklin, did not believe in rotten

boroughs or rotten creeds, did believe in free trade in corn and money,

thought the common law the perfection of absurdity, Lord Eldon's court a

libel on equity, and wrote codes for all creation to use in the

twenty-ninth century.

Mr. Bentham was one of the most remarkable men that has appeared in our

age. He was born in 1747, and was descended from a race of attorneys. At

the age of five, the family called him "the philosopher;" at eight he

played well on the violin, on which he afterwards became a proficient;

and at thirteen went to Oxford, where he excited admiration and wonder

by his acute observations, logical skill, and precision of language.

When he took his degree, he was esteemed the first reasoner and

philosophical critic in the University. He was at Oxford when Wesley and

the "Methodists" were expelled, and his generous soul took up arms

against this tyranny. This induced him to examine the thirty-nine

articles of the Church, one by one; and when it became necessary for him

to subscribe them, long was the struggle before Bentham could bring his

hand to do it. He has left on record a rebuke of this test, which ought

to consign it to universal condemnation. At Oxford, he attended the law

lectures of Blackstone, (being the substance of his Commentaries,) and

his clear mind detected the fallacies in his reasoning, and his humane

and honest spirit revolted at many of his eulogiums on the Common Law of

England.

The Bar, to which he was admitted in 1772, opened a brilliant prospect

before him. His precise and acute method of drafting equity and law

pleadings was much extolled, and his refusal to receive the usual fees

excited no less attention. A sharp solicitor swelled a swindling bill of

costs in a case in which Bentham had succeeded--he protested--"Quirk"

told him it was made up according to the rules, and he would lose caste

if he altered it. Bentham was disgusted, resolved to quit the

profession, and spend his life in "endeavoring," as he expressed it, "to

put an end to the system, rather than profit by it." To the grasping

pertinacity of this solicitor, the world is indebted for the sixty

years' labor of Jeremy Bentham in the cause of law reform. Soon after

this, he published his first work, "A Fragment on Government; being an

examination of what is delivered on that subject in Blackstone's

Commentaries." He then visited Paris, where he became intimate with

Brissot, through whose agency, and without his knowledge, he was

subsequently made a citizen of the French Republic, and elected a member

of the second National Assembly.

His father died in 1792, leaving him a moderate fortune, which enabled

him entirely to abandon his profession, and devote himself to the

preparation of those works on Law and Government which have celebrated

his name in the Four Quarters of the Globe. During the truce of Amiens,

he again visited Paris, accompanied by Sir Samuel Romilly, where he

found himself famous. M. Dumont was then publishing his works in French.

Of his "_Traites de Legislation Civile et Penale_," in 3 vols., about

4,000 copies were sold in Paris. At this time, there happened to be

three vacancies in the French Institute, one of which was reserved for

Bonaparte. Bentham was chosen to fill one of the vacancies. From

elective affinity, no less than through the agency of Romilly, he soon

after became intimate with the young men, known as "the Edinburgh

Reviewers," Brougham, Jeffrey, Smith, Horner, Mackintosh, and their

associates, and from that time was the Mentor of that galaxy of talent

on the subject of Law Reform.

When Bentham was admitted to the bar, he found the English law, its

principles and its practice, entrenched behind the interests of powerful

classes, and embedded in the prejudices of all. Though called the

perfection of reason, to his penetrating eye it was the offspring of a

barbarous age, and, though a noble production for the times that gave it

birth, had obtruded into the light of an infinitely milder and more

liberal civilization the harsh features which stamped its origin. To him

it was the patchwork of fifteen centuries--a chaos of good and evil--an

edifice exhibiting the architecture of the ancient Briton, the Gaul, the

Goth, the Dane, the Saxon, and the Norman, all jumbled together, and to

which, in order to render it tenantable, modern hands had made numerous

additions and improvements, till the whole had become a huge, shapeless,

and bewildering pile. He saw that it contained masses of material to aid

in the erection of a new edifice, adapted to the enlarged wants and

cultivated tastes of the present age. And he entered upon the

elucidation of his plans for a judicial structure worthy of the noon of

the nineteenth century. He was the first man who sat down to the task of

exposing the defects of the English law. Heretofore, its students and

ministers had been content to sift its principles from a chaotic mass of

statutes and decisions, and collect and arrange the perplexing details

of its form of procedure. Commencing at the bottom, he worked up through

all its ramifications, bringing everything to the test of expediency,

and inquiring whether the parts were homogeneous with the whole, and

whether the whole was suited to the wants of existing society, and the

promotion of human well-being. Probably not intending, when he started,

to do more than improve the system by amending it, he soon aimed at its

complete reconstruction, branching out into an exhausting discussion of

the principles on which all human laws should be based, nor stopping

till he had surveyed the nature of Government in its widest relations.

The test-principle of his system may be explained briefly thus: The only

proper end of the social union is, the attainment of the maximum of the

aggregate of happiness; and the attainment of this maximum of the

aggregate of happiness is by the attainment of the maximum of individual

happiness. The standard for determining whether a law is right or wrong,

is its conduciveness to the maximum of the aggregate of happiness, by

conducing to the maximum of individual happiness. This was known in his

day, and in ours, as "the greatest-happiness principle," or "the

principle of felicity"--which latter term he much preferred to that by

which it is more commonly known, "the doctrine of utility." This was the

keystone of Bentham's system. With this principle in his hand, he

traversed the entire field of legislation, dividing it into two great

parts--internal law, and international law. Internal law included the

legislation which concerns a single State or community; international,

that which regulates the intercourse of different States with each

other. His chief attention was devoted to preparing a code of internal

law under the Greek name of _Pannomion_, (the whole law.) This he

divided into four parts--the constitutional, the civil, the penal, and

the administrative. The _constitutional_ defined the supreme authority,

and the mode of executing its will. The _civil_ defined the rights of

persons and of property, and was termed the "right-conferring code." The

_penal_ defined offenses and their punishments, and was termed "the

wrong-repressing code." The _administrative_ defined the mode of

executing the whole body of the laws, and was termed "the code of

procedure." Some of these codes he run out into details. Others he left

unfinished. They all bore the stamp of great research, learning, and

symmetry, and were supported by vigorous reasoning, and elucidated by a

comprehensive genius. Many a _codifier_ of our day has been indebted,

directly or indirectly, to these labors of Jeremy Bentham, to an extent

of which he was perhaps not aware.

His system struck at the very root of the English law. Of course, such a

"wild enthusiast," such a "reckless innovator," was laughed at,

misrepresented, and abused. Not a single tile or crumbling pillar of

"the perfection of reason" must be touched. The rubbish that blocked up

the avenues leading to it, the dust which choked its passages, must not

be removed. Venerable for its age, hallowed as the legacy of our

ancestors, the work of wise men and dead men, it must be worshiped at a

distance and let alone. All classes deified it, and denounced such as

would sneeze at its consecrated dust. The king as he placed the golden

round on his anointed head, and the noble as he gazed on his stars and

ribbons--the fat bishop as he pocketed his tithes, and the lean

dissenter as he paid them--the judge in his scarlet robes, and the

barrister in his wig of horsehair--the merchant as he paid his onerous

duties to the government, and the yeoman as he liquidated the ruinous

rents of his landlord--the clodhopper as he took his shilling for twelve

hours of exhausting toil, and the culprit as he hung on a cross-tree for

killing the hare which poached on his beans--all, high-born and

low-born, patrician and plebeian, rich and poor, wise and foolish, were

ready to make oath that the common law of England was the perfection of

reason, and to swear at Jeremy Bentham for doubting it. If Bentham had

done nothing more than dispel this delusion, he would deserve the thanks

of the millions in both hemispheres who submit to the sway of the common

law; and this he did most effectually.

Bentham brought to his work reasoning faculties which did not so much

probe subjects to the bottom as begin there, and work upwards to their

surface--a patience which no amount of drudgery could weary--a taste

whose light reading was Bacon and Beccaria--a memory retentive as

tablets of brass--a boldness which shrunk from looking no institution in

the face, and questioning its pretensions to utility and its claims to

homage--an honesty which never averted the eye from conclusions

legitimately born of sound premises--a conscience which followed truth

wherever it led. Lord Brougham, who knew him intimately, has happily

said: "In him were blended, to a degree perhaps unequaled in any other

philosopher, the love and appreciation of general principles, with the

avidity for minute details; the power of embracing and following out

general views, with the capacity for pursuing each one of numberless

particular facts." He was an adept in numerous modern languages, as

French, Italian, Spanish, and German, and he extended his linguistical

knowledge into the Swedish, Russian, and other northern tongues. These

acquisitions facilitated his study of the history of all countries and

times, with whose philosophy, legislation and jurisprudence he was

acquainted beyond most men.

His numerous writings all bore some relation to his "Felicity"

principle, and the topics discussed were almost as multifarious as human

exigency and action. Including his larger pamphlets, they must number

some fifty volumes. They chiefly relate to Government, law, and

jurisprudence; but he also wrote extensively on morals, politics, and

ecclesiastical establishments. Nor did science wholly escape his

searching pen, for he treated of chemistry and anatomy. He wrote against

Blackstone's Commentaries, and attacked Burke's plan for economical

reform. He wrote on prison discipline and penal colonies, and

illustrated the anti-Christian tendency of oaths. He advocated free

schools, and denounced church establishments. He attacked rotten

boroughs, and drafted plans for work-houses. He vindicated free trade,

and showed the impolicy of the usury laws. He prepared a constitutional

code to be used by any State, and drew up a reform bill for the House of

Commons. He wrote separate volumes or pamphlets on bankruptcy, poor

laws, primogeniture, escheats, taxation, jails, Scotch reform, the

French judiciary, the criminal code of Spain, juries, evidence, rewards

and punishments, oaths, parliamentary law, English reform, education,

Church-of-Englandism, &c., &c., &c. He wrote for or offered codes to

France, Spain, Greece, Russia, and the South American States--sent a

letter to each Governor of the United States, proposing to prepare for

them an entire code of laws--was intimate personally or by

correspondence with Howard, Lafayette, Wilberforce, the Emperor

Alexander, Napoleon, Brissot, Mirabeau, Neckar, Benezet, Franklin,

Jefferson, Bolivar, Jean Baptiste Say, Toussaint L'Ouverture, and in

fact with most of the men of his times, who were celebrated in any part

of the world for their services in the cause of liberty, humanity and

reform.

Of course no man, unless endowed with all the wisdom of the ancients and

the moderns, could write so much on such a variety of subjects, without

committing to paper a good deal of nonsense. Yet he wrote no page but

contains some profound thoughts, whilst many of his volumes are replete

with wisdom. And if any one mortal man could have written codes for all

the nations on earth, that man was Jeremy Bentham.

His defects were partly the result of his peculiar mind, and partly of

those idiosyncrasies which germinate in all speculators who mingle

little with men and things. Bold and original to a fault, he rather

suspected that an old thing was necessarily a bad thing. His exhaustless

patience, and fondness for abstractions and theorizing, which grew by

what they fed on, led him to carry everything out, out, out, till he

sometimes trenched on absurdity or sunk in obscurity. In vulgar phrase,

he was prone to "run a thing into the ground." He mixed so little with

the world, and had such limited experience in the every-day business of

life, that he often forgot that his codes must be executed by and upon

mortal men. He lived fifty years in the house immortalized as the

dwelling-place of Milton, in the very heart of London; and yet

nine-tenths of the inhabitants, about whom he was thinking, and writing,

and printing for half a century, never knew that he lived at all. Habits

induced by this recluse life, were not improved by his being the head

and oracle of a school, whose immoderate puffings, which he must hear,

were not counterbalanced by denunciations from without, to which he

never listened. He tried to reduce everything to a system, and wrote as

if the human mind were a curious little wheel, to be put into a vast

engine, which, when regulated according to his system, would run without

jarring or friction. He made too little allowance for the

individualities, eccentricities, _crooked-stickednesses_ of mankind. But

in this he did not differ from many other philosophers--men wiser and

better than their generation--men so far beyond and above their times,

that they look like dwarfs to their cotemporaries.

Then, he undertook so much that he left a great deal incomplete; so

that, in many of his works, while he has finished one side of a subject,

he seems not to have touched or seen the other side. His style,

especially in his latter years, was rough, involved, uncongenial; often

obscure from its very verbosity; and, when clear, fatiguing the reader

by so thoroughly exhausting the subject as to leave nothing for him to

do but read. He called his style of reasoning "the _exhaustive_ mode,"

and he crowded it full of crabbed words of his own invention. He wrote

many of his works in French, and they were given to the world by Dumont,

a Genevan. Hazlitt has wittily said: "His works have been translated

into French; they ought to be translated into English." Sydney Smith,

when reviewing his "Book of Fallacies," remarks, in his quaint way,

"Whether it is necessary there should be a middleman between the

cultivator and the possessor, learned economists have doubted; but

neither gods, men, nor booksellers, can doubt the necessity of a

middleman between Mr. Bentham and the public.* * The mass of readers

will choose to become acquainted with him through the medium of Reviews,

after that eminent philosopher has been washed, trimmed, shaved, and

forced into clean linen."

Bentham invented the words _Codify_ and _Codification_, now in such

general use. But let it not be supposed that he was guilty of the

absurdity of imagining that the entire laws of a Commonwealth could be

compressed into a single volume; nor of that other absurdity, that the

laws can be written so plain that the meanest capacity can understand

them fully, and apply them, without mistakes, to all the varieties of

human rights and wrongs, and the ever-shifting vagaries and exigencies

of society. He never had wit enough to see how it was, that what never

could be true in regard to any other science or species of writing, must

be true in regard to jurisprudence and legislation. He left that

discovery for penny-a-liners, who believe all the law the world needs

can be printed between the yellow covers of a twenty-page pamphlet.

Bentham labored without any apparent success at home for years. He was

famous in France, and appreciated in Russia, before he was known in

England. At length, his reiterated blows made an impression. He won

converts in high places, and they became his "middlemen" with the

public. Brougham and Smith spread out his great ideas in attractive

colors on the pages of the Edinburgh, and they sparkled in brilliant

speeches from Romilly and Mackintosh on the floor of Parliament. One

after another, the champions for the inviolability of the ancient system

were prostrated, till reasonable men admitted that, whether or not

Jeremy Bentham was right, the common law was certainly wrong, and must

be materially altered. Though he took no part in actual legislation, his

was the master mind that set other minds in motion; his genius, the

secret spring that operated a vast reformatory machine. He did not live

to see his whole system adopted, (and would not, had he lived till the

millennium,) but he saw parts of it incorporated into the jurisprudence

of his country, whilst other parts were postponed rather than rejected.

He saw the fruits of his labors in the amelioration of a sanguinary

criminal code, and especially in the abridgment of the death penalty--in

the improvement of the poor laws and penitentiaries, and the kindlier

treatment of prisoners--in the softening of the harsher features of

imprisonment for debt, of the bankrupt laws, and the general law of

debtor and creditor--in lopping off some excrescences in chancery, and

cutting down costs and simplifying the modes of procedure in other

courts--in the abolition of tests, and the emancipation of the

Catholics--in the greater freedom of trade, the enlargement of the

suffrage, and the partial equalization of representation in

Parliament--in the appointment of commissioners to revise the whole mass

of statute law, and reduce it to a uniform code--and, more than all, in

the conviction, penetrating a multitude of intelligent minds, that a

large portion of the English law, as administered, so far from being the

perfection of reason, was a disgrace to the human understanding, and the

homage paid to it a degrading idolatry.

Nor did he see these fruits in England alone. As he labored for the

world, so he saw the products of his toil in both hemispheres. France

and Russia published his writings, and they were read in Germany and

Switzerland. His works were circulated at Calcutta and the Cape of Good

Hope; at New York, and New South Wales; in the Canadas, and the

Republics of South America. This country profits by his culture in the

simplification of its laws, and their revision and codification in many

of its States--in the comparative humanity of its criminal codes and

prison discipline--and especially in the recent sweeping reforms in the

practice of its courts in three or four States, and the abolition of the

monopoly of the legal profession--a monopoly worthless to those whom it

protected, and galling to those whom it excluded. By no means do I

intend to say, that to him we are solely indebted for these reforms. But

his hand planted the tree whose fruit is now being gathered. His chief

glory is the emancipation of the Anglo-Saxon mind from a blind idolatry

of the English common law; and for this he deserves unmeasured praise.

Mr. Bentham was kind, cheerful, simple-hearted, witty, and greatly

beloved by his friends. Frank, so frank that he was bluff, he refused a

costly present from the Emperor of Russia, lest he should be tempted to

praise when he ought to blame. A great husbander of moments, he took air

and exercise while entertaining ordinary visitors; and, when conversing

on his favorite themes with such as Romilly and Brougham, kept his

secretaries busy in noting down their remarks. The ridicule and abuse of

which he was the subject rarely reached its aim, for he avoided personal

controversies, discussing principles, and not men. He died in 1832, in

the 85th year of his age; and gave a singular evidence of his attachment

to his principles, by bequeathing his body to the surgeon's knife, for

the advancement of medical science.

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