NOTES:

[415] _Works_, iii. 267.

[416] _Ibid._ x. 569

[417] _Autobiography_, p. 116.

[418] The subject is again treated in Book v. on 'Circumstantial

Evidence.'

[419] _Works_, vi. 204.

[420] _Works_, vii. 391.

[421] _Works_, vii. 321-25. Court-martials are hardly a happy example

now.

[422] 'Truth _v._ Ashhurst' (1792), _Works_, v. 235.

[423] _Works_ ('Codification Petition'), v. 442.

[424] _Ibid._ vi. 11.

[425] _Ibid._ v. 92.

[426] _Works_, vii. 204, 331; ix. 143.

[427] _Ibid._ vii. 214.

[428] _Ibid._ v. 349.

[429] _Ibid._ v. 364.

[430] _Works_, v. 371.

[431] _Ibid._ v. 375.

[432] _Ibid._ vii. 188.

[433] _Ibid._ v. 370.

VI. RADICALISM

Thus Bentham, as his eyes were opened, became a Radical. The political

purpose became dominant, although we always see that the legal abuses

are uppermost in his mind; and that what he really seeks is a fulcrum

for the machinery which is to overthrow Lord Eldon. Some of the

pamphlets deal directly with the special instruments of corruption. The

_Elements of the Art of Packing_ shows how the crown managed to have a

permanent body of special 'jurors' at its disposal. The 'grand and

paramount use'[434] of this system was to crush the liberty of the

press. The obscure law of libel, worked by judges in the interest of the

government, enabled them to punish any rash Radical for 'hurting the

feelings' of the ruling classes, and to evade responsibility by help of

a 'covertly pensioned' and servile jury. The pamphlet, though tiresomely

minute and long-winded, contained too much pointed truth to be published

at the time. The _Official Aptitude minimised_ contains a series of

attacks upon the system of patronage and pensions by which the machinery

of government was practically worked. In the _Catechism_ of reformers,

written in 1809, Bentham began the direct application of his theories to

the constitution; and the final and most elaborate exposition of these

forms the _Constitutional Code_, which was the main work of his later

years. This book excited the warmest admiration of Bentham's

disciples.[435] J. S. Mill speaks of its 'extraordinary power ... of at

once seizing comprehensive principles and scheming out minute details,'

and of its 'surpassing intellectual vigour.' Nor, indeed, will any one

be disposed to deny that it is a singular proof of intellectual

activity, when we remember that it was begun when the author was over

seventy, and that he was still working at eighty-four.[436] In this book

Bentham's peculiarities of style reach their highest development, and it

cannot be recommended as light reading. Had Bentham been a mystical

philosopher, he would, we may conjecture, have achieved a masterpiece of

unintelligibility which all his followers would have extolled as

containing the very essence of his teaching. His method condemned him to

be always intelligible, however crabbed and elaborate. Perhaps, however,

the point which strikes one most is the amazing simple-mindedness of the

whole proceeding. Bentham's light-hearted indifference to the

distinction between paper constitutions and operative rules of conduct

becomes almost pathetic.

Bentham was clearly the victim of a common delusion. If a system will

work, the minutest details can be exhibited. Therefore, it is inferred,

an exhibition of minute detail proves that it will work. Unfortunately,

the philosophers of Laputa would have had no more difficulty in filling

up details than the legislators of England or the United States. When

Bentham had settled in his 'Radical Reform Bill'[437] that the

'voting-box' was to be a double cube of cast-iron, with a slit in the

lid, into which cards two inches by one, white on one side and black on

the other, could be inserted, he must have felt that he had got very

near to actual application: he can picture the whole operation and

nobody can say that the scheme is impracticable for want of working

plans of the machinery. There will, doubtless, be no difficulty in

settling the shape of the boxes, when we have once agreed to have the

ballot. But a discussion of such remote details of Utopia is of

incomparably less real interest than the discussion in the _Rationale of

Evidence_ of points, which, however minute, were occurring every day,

and which were really in urgent need of the light of common sense.

Bentham's general principles may be very simply stated. They are, in

fact, such as were suggested by his view of legal grievances. Why, when

he had demonstrated that certain measures would contribute to the

'greatest happiness of the greatest number,' were they not at once

adopted? Because the rulers did not desire the greatest happiness of the

greatest number. This, in Bentham's language, is to say that they were

governed by a 'sinister interest.' Their interest was that of their

class, not that of the nation; they aimed at the greatest happiness of

some, not at the greatest happiness of all. A generalisation of this

remark gives us the first axioms of all government. There are two

primary principles: the 'self-preference' principle, in virtue of which

every man always desires his own greatest happiness'; and the 'greatest

happiness' principle, in virtue of which 'the right and proper end' of

government is the 'greatest happiness of the greatest number.'[438] The

'actual end' of every government, again, is the greatest happiness of

the governors. Hence the whole problem is to produce a coincidence of

the two ends, by securing an identity of interest between governors and

governed. To secure that we have only to identify the two classes or to

put the government in the hands of all.[439] In a monarchy, the ruler

aims at the interest of one--himself; in a 'limited monarchy' the aim is

at the happiness of the king and the small privileged class; in a

democracy, the end is the right one--the greatest happiness of the

greatest number. This is a short cut to all constitutional questions.

Probably it has occurred in substance to most youthful members of

debating societies. Bentham's confidence in his logic lifts him above

any appeal to experience; and he occasionally reminds us of the proof

given in _Martin Chuzzlewit_ that the queen must live in the Tower of

London. The 'monarch,' as he observes,[440] 'is naturally the very

worst--the most maleficent member of the whole community.' Wherever an

aristocracy differs from the democracy, their judgment will be

erroneous.[441] The people will naturally choose 'morally apt agents,'

and men who wish to be chosen will desire truly to become 'morally apt,'

for they can only recommend themselves by showing their desire to serve

the general interest.[442] 'All experience testifies to this theory,'

though the evidence is 'too bulky' to be given. Other proofs, however,

may at once be rendered superfluous by appealing to 'the uninterrupted

and most notorious experience of the United States.'[443] To that happy

country he often appeals indeed[444] as a model government. In it, there

is no corruption, no useless expenditure, none of the evils illustrated

by our 'matchless constitution.'

The constitution deduced from these principles has at least the merit of

simplicity. We are to have universal suffrage, annual parliaments, and

vote by ballot. He inclines to give a vote to women.[445] There is to be

no king, no house of peers, no established church. Members of parliament

are not to be re-eligible, till after an interval. Elaborate rules

provide for their regular attendance and exclusive devotion to their

masters' business. They are to be simply 'deputies,' not

'representatives.' They elect a prime minister who holds office for four

years. Officials are to be appointed by a complex plan of competitive

examination; and they are to be invited to send in tenders for doing the

work at diminished salary. When once in office, every care is taken for

their continual inspection by the public and the verification of their

accounts. They are never for an instant to forget that they are

servants, not the masters, of the public.

Bentham, of course, is especially minute and careful in regard to the

judicial organisation--a subject upon which he wrote much, and much to

the purpose. The functions and fees of advocates are to be narrowly

restricted, and advocates to be provided gratuitously for the poor. They

are not to become judges: to make a barrister a judge is as sensible as

it would be to select a procuress for mistress of a girls' school.[446]

Judges should be everywhere accessible: always on duty, too busy to have

time for corruption, and always under public supervision. One

characteristic device is his quasi-jury. The English system of requiring

unanimity was equivalent to enforcing perjury by torture. Its utility as

a means of resisting tyranny would disappear when tyranny had become

impossible. But public opinion might be usefully represented by a

'quasi-jury' of three or five, who should not pronounce a verdict, but

watch the judge, interrogate, if necessary, and in case of need demand a

rehearing. Judges, of course, were no longer to make law, but to propose

amendments in the 'Pannomion' or universal code, when new cases arose.

His leading principle may be described in one word as 'responsibility,'

or expressed in his leading rule, 'Minimise Confidence.'[447] 'All

government is in itself one vast evil.'[448] It consists in applying

evil to exclude worse evil. Even 'to reward is to punish,'[449] when

reward is given by government. The less government, then, the better;

but as governors are a necessary evil, they must be limited by every

possible device to the sole legitimate aim, and watched at every turn by

the all-seeing eye of public opinion. Every one must admit that this is

an application of a sound principle, and that one condition of good

government is the diffusion of universal responsibility. It must be

admitted, too, that Bentham's theory represents a vigorous embodiment

and unflinching application of doctrines which since his time have

spread and gained more general authority. Mill says that granting one

assumption, the Constitutional Code is 'admirable.'[450] That assumption

is that it is for the good of mankind to be under the absolute authority

of a majority. In other words, it would justify what Mill calls the

'despotism of public opinion.' To protest against that despotism was one

of the main purposes of Mill's political writings. How was it that the

disciple came to be in such direct opposition to his master? That

question cannot be answered till we have considered Mill's own position.

But I have now followed Bentham far enough to consider the more general

characteristics of his doctrine.

I have tried, in the first place, to show what was the course of

Bentham's own development; how his observation of certain legal abuses

led him to attempt the foundation of a science of jurisprudence; how the

difficulty of obtaining a hearing for his arguments led him to discover

the power of 'Judge and Co.'; how he found out that behind 'Judge and

Co.' were George III. and the base Sidmouth, and the whole band of

obstructors entrenched within the 'matchless constitution'; and how thus

his attack upon the abuses of the penal law led him to attack the whole

political framework of the country. I have also tried to show how

Bentham's development coincided with that of the English reformers

generally. They too began with attacking specific abuses. They were for

'reform, not revolution.' The constitution satisfied them in the main:

they boasted of the palladia of their liberties, 'trial by jury' and the

'Habeas Corpus' Act, and held Frenchmen to be frog-eating slaves in

danger of _lettres de cachet_ and the Bastille. English public opinion

in spite of many trammels had a potent influence. Their first impulse,

therefore, was simply to get rid of the trammels--the abuses which had

grown up from want of a thorough application of the ancient principles

in their original purity. The English Whig, even of the more radical

persuasion, was profoundly convinced that the foundations were sound,

however unsatisfactory might be the superstructure. Thus, both Bentham

and the reformers generally started--not from abstract principles, but

from the assault upon particular abuses. This is the characteristic of

the whole English movement, and gives the meaning of their claim to be

'practical.' The Utilitarians were the reformers on the old lines; and

their philosophy meant simply a desire to systematise the ordinary

common sense arguments. The philosophy congenial to this vein is the

philosophy which appeals to experience. Locke had exploded 'innate

ideas.' They denounced 'intuitions,' or beliefs which might override

experience as 'innate ideas' in a new dress; and the attempt to carry

out this view systematically became the distinctive mark of the whole

school. Bentham accepted, though he did little to elaborate, this

doctrine. That task remained for his disciples. But the tendency is

shown by his view of a rival version of Radicalism.

Bentham, as we have seen, regarded the American Declaration of

Independence as so much 'jargon.' He was entirely opposed to the theory

of the 'rights of man,' and therefore to the 'ideas of 1789.' From that

theory the revolutionary party professed to deduce their demands for

universal suffrage, the levelling of all privileges, and the absolute

supremacy of the people. Yet Bentham, repudiating the premises, came to

accept the conclusion. His Constitutional Code scarcely differs from the

ideal of the Jacobins', except in pushing the logic further. The

machinery by which he proposed to secure that the so-called rulers

should become really the servants of the people was more thoroughgoing

and minutely worked out than that of any democratic constitution that

has ever been adopted. How was it that two antagonist theories led to

identical results; and that the 'rights of man,' absurd in philosophy,

represented the ideal state of things in practice?

The general answer may be that political theories are not really based

upon philosophy. The actual method is to take your politics for granted

on the one side and your philosophy for granted on the other, and then

to prove their necessary connection. But it is, at any rate, important

to see what was the nature of the philosophical assumptions implicitly

taken for granted by Bentham.

The 'rights of man' doctrine confounds a primary logical canon with a

statement of fact. Every political theory must be based upon facts as

well as upon logic. Any reasonable theory about politics must no doubt

give a reason for inequality and a reason, too, for equality. The maxim

that all men were, or ought to be, 'equal' asserts correctly that there

must not be arbitrary differences. Every inequality should have its

justification in a reasonable system. But when this undeniable logical

canon is taken to prove that men actually are equal, there is an obvious

begging of the question. In point of fact, the theorists immediately

proceeded to disfranchise half the race on account of sex, and a third

of the remainder on account of infancy. They could only amend the

argument by saying that all men were equal in so far as they possessed

certain attributes. But those attributes could only be determined by

experience, or, as Bentham would have put it, by an appeal to 'utility.'

It is illogical, said the anti-slavery advocate, to treat men

differently on account of the colour of their skins. No doubt it is

illogical if, in fact, the difference of colour does not imply a

difference of the powers which fit a man for the enjoyment of certain

rights. We may at least grant that the burden of proof should be upon

those who would disfranchise all red-haired men. But this is because

experience shows that the difference of colour does not mark a relevant

difference. We cannot say, _a priori_, whether the difference between a

negro and a white man may not be so great as to imply incapacity for

enjoyment of equal rights. The black skin might--for anything a mere

logician can say--indicate the mind of a chimpanzee. The case against

slavery does not rest on the bare fact that negroes and whites both

belong to the class 'man,' but on the fact that the negro has powers and

sensibilities which fit him to hold property, to form marriages, to

learn his letters, and so forth. But that fact is undeniably to be

proved, not from the bare logic, but from observation of the particular

case.

Bentham saw with perfect clearness that sound political theory requires

a basis of solid fact. The main purpose of his whole system was to carry

out that doctrine thoroughly. His view is given vigorously in the

'Anarchical Fallacies'--a minute examination of the French Declaration

of Rights in 1791. His argument is of merciless length, and occasionally

so minute as to sound like quibbling. The pith, however, is clear

enough. 'All men are born and remain free and equal in respect of

rights' are the first words of the Declaration. Nobody is 'born free,'

retorts Bentham. Everybody is born, and long remains, a helpless child.

All men born free! Absurd and miserable nonsense! Why, you are

complaining in the same breath that nearly everybody is a slave.[451] To

meet this objection, the words might be amended by substituting 'ought

to be' for 'is.' This, however, on Bentham's showing, at once introduces

the conception of utility, and therefore leads to empirical

considerations. The proposition, when laid down as a logical necessity,

claims to be absolute. Therefore it implies that all authority is bad;

the authority, for example, of parent over child, or of husband over

wife; and moreover, that all laws to the contrary are _ipso facto_ void.

That is why it is 'anarchical.' It supposes a 'natural right,' not only

as suggesting reasons for proposed alterations of the legal right, but

as actually annihilating the right and therefore destroying all

government. '_Natural rights_,' says Bentham,[452] is simple nonsense;

natural and imprescriptible rights 'rhetorical nonsense--nonsense upon

stilts.' For 'natural right' substitute utility, and you have, of

course, a reasonable principle, because an appeal to experience. But lay

down 'liberty' as an absolute right and you annihilate law, for every

law supposes coercion. One man gets liberty simply by restricting the

liberty of others.[453] What Bentham substantially says, therefore, is

that on this version absolute rights of individuals could mean nothing

but anarchy; or that no law can be defended except by a reference to

facts, and therefore to 'utility.'

One answer might be that the demand is not for absolute liberty, but for

as much liberty as is compatible with equal liberty for all. The fourth

article of the Declaration says: 'Liberty consists in being able to do

that which is not hurtful to another, and therefore the exercise of the

natural rights of each man has no other bounds than those which ensure

to the other members of the society the enjoyment of the same rights.'

This formula corresponds to a theory held by Mr. Herbert Spencer; and,

as he observes,[454] held on different grounds by Kant. Bentham's view,

indicated by his criticism of this article in the 'Anarchical

Fallacies,' is therefore worth a moment's notice. The formula does not

demand the absolute freedom which would condemn all coercion and all

government; but it still seems to suggest that liberty, not utility, is

the ultimate end. Bentham's formula, therefore, diverges. All

government, he holds, is an evil, because coercion implies pain. We must

therefore minimise, though we cannot annihilate, government; but we must

keep to utility as the sole test. Government should, of course, give to

the individual all such rights as are 'useful'; but it does not follow,

without a reference to utility, that men should not be restrained even

in 'self-regarding' conduct. Some men, women, and children require to be

protected against the consequences of their own 'weakness, ignorance, or

imprudence.'[455] Bentham adheres, that is, to the strictly empirical

ground. The absolute doctrine requires to be qualified by a reference to

actual circumstances: and, among those circumstances, as Bentham

intimates, we must include the capacity of the persons concerned to

govern themselves. Carried out as an absolute principle, it would imply

the independence of infants; and must therefore require some reference

to 'utility.'

Bentham, then, objects to the Jacobin theory as too absolute and too

'individualist.' The doctrine begs the question; it takes for granted

what can only be proved by experience; and therefore lays down as

absolute theories which are only true under certain conditions or with

reference to the special circumstances to which they are applied. That

is inconsistent with Bentham's thoroughgoing empiricism. But he had

antagonists to meet upon the other side: and, in meeting them, he was

led to a doctrine which has been generally condemned for the very same

faults--as absolute and individualist. We have only to ask in what sense

Bentham appealed to 'experience' to see how he actually reached his

conclusions. The adherents of the old tradition appealed to experience

in their own way. The English people, they said, is the freest, richest,

happiest in the world; it has grown up under the British Constitution:

therefore the British Constitution is the best in the world, as Burke

tells you, and the British common law, as Blackstone tells you, is the

'perfection of wisdom.' Bentham's reply was virtually that although he,

like Burke, appealed to experience, he appealed to experience

scientifically organised, whereas Burke appealed to mere blind

tradition. Bentham is to be the founder of a new science, founded like

chemistry on experiment, and his methods are to be as superior to those

of Burke as those of modern chemists to those of the alchemists who also

invoked experience. The true plan was not to throw experience aside

because it was alleged by the ignorant and the prejudiced, but to

interrogate experience systematically, and so to become the Bacon or the

Newton of legislation, instead of wandering off into the _a priori_

constructions of a Descartes or a Leibniz.

Bentham thus professes to use an 'inductive' instead of the deductive

method of the Jacobins; but reaches the same practical conclusions from

the other end. The process is instructive. He objected to the existing

inequalities, not as inequalities simply, but as mischievous

inequalities. He, as well as the Jacobins, would admit that inequality

required justification; and he agreed with them that, in this case,

there was no justification. The existing privileges did not promote the

'greatest happiness of the greatest number.' The attack upon the

'Anarchical Fallacies' must be taken with the _Book of Fallacies_, and

the _Book of Fallacies_ is a sustained and vigorous, though a curiously

cumbrous, assault upon the Conservative arguments. Its pith may be found

in Sydney Smith's _Noodle's Oration_; but it is itself well worth

reading by any one who can recognise really admirable dialectical power,

and forgive a little crabbedness of style in consideration of genuine

intellectual vigour. I only notice Bentham's assault upon the 'wisdom of

our ancestors.' After pointing out how much better we are entitled to

judge now that we have got rid of so many superstitions, and have

learned to read and write, he replies to the question, 'Would you have

us speak and act as if we never had any ancestors?' 'By no means,' he

replies; 'though their opinions were of little value, their practice is

worth attending to; but chiefly because it shows the bad consequences of

their opinions.' 'From foolish opinion comes foolish conduct; from

foolish conduct the severest disaster; and from the severest disaster

the most useful warning. It is from the folly, not from the wisdom, of

our ancestors that we have so much to learn.'[456] Bentham has become an

'ancestor,' and may teach us by his errors. Pointed and vigorous as is

his exposure of many of the sophistries by which Conservatives defended

gross abuses and twisted the existence of any institution into an

argument for its value, we get some measure from this of Bentham's view

of history. In attacking an abuse, he says, we have a right to inquire

into the utility of any and every arrangement. The purpose of a court of

justice is to decide litigation; it has to ascertain facts and apply

rules: does it then ascertain facts by the methods most conducive to the

discovery of truth? Are the rules needlessly complex, ambiguous,

calculated to give a chance to knaves, or to the longest purse? If so,

undoubtedly they are mischievous. Bentham had done inestimable service

in stripping away all the disguises and technical phrases which had

evaded the plain issue, and therefore made of the laws an unintelligible

labyrinth. He proceeded to treat in the same way of government

generally. Does it work efficiently for its professed ends? Is it worked

in the interests of the nation, or of a special class, whose interests

conflict with those of the nation? He treated, that is, of government as

a man of business might investigate a commercial undertaking. If he

found that clerks were lazy, ignorant, making money for themselves, or

bullying and cheating the customers, he would condemn the management.

Bentham found the 'matchless constitution' precisely in this state. He

condemned political institutions worked for the benefit of a class, and

leading, especially in legal matters, to endless abuses and chicanery.

The abuses everywhere imply 'inequality' in some sense; for they arise

from monopoly. The man who holds a sinecure, or enjoys a privilege, uses

it for his own private interest. The 'matter of corruption,' as Bentham

called it, was provided by the privilege and the sinecure. The Jacobin

might denounce privileges simply as privileges, and Bentham denounce

them because they were used by the privileged class for corrupt

purposes. So far, Bentham and the Jacobins were quite at one. It

mattered little to the result which argument they preferred to use, and

without doubt they had a very strong case, and did in fact express a

demand for justice and for a redress of palpable evils. The difference

seems to be that in one case the appeal is made in the name of justice

and equality; in the other case, in the name of benevolence and utility.

The important point here, however, is to understand Bentham's implicit

assumptions. J. S. Mill, in criticising his master, points out very

forcibly the defects arising from Bentham's attitude to history. He

simply continued, as Mill thinks, the hostility with which the critical

or destructive school of the eighteenth century regarded their

ancestors. To the revolutionary party history was a record of crimes and

follies and of little else. The question will meet us again; and here it

is enough to ask what is the reason of his tacit implication of

Bentham's position. Bentham's whole aim, as I have tried to show, was to

be described as the construction of a science of legislation. The

science, again, was to be purely empirical. It was to rest throughout

upon the observation of facts. That aim--an admirable aim--runs through

his whole work and that of his successors. I have noticed, indeed, how

easily Bentham took for granted that his makeshift classification of

common motives amounted to a scientific psychology. A similar assumption

that a rough sketch of a science is the same thing as its definite

constitution is characteristic of the Utilitarians in general. A

scientific spirit is most desirable; but the Utilitarians took a very

short cut to scientific certainty. Though appealing to experience, they

reach formulae as absolute as any 'intuitionist' could desire. What is

the logical process implied? To constitute an empirical science is to

show that the difference between different phenomena is due simply to

'circumstances.' The explanation of the facts becomes sufficient when

the 'law' can be stated, as that of a unit of constant properties placed

in varying positions. This corresponds to the procedure in the physical

sciences, where the ultimate aim is to represent all laws as

corresponding to the changes of position of uniform atoms. In social and

political changes the goal is the same. J. S. Mill states in the end of

his _Autobiography_[457] that one main purpose of his writing was to

show that 'differences between individuals, races, or sexes' are due to

'differences in circumstances.' In fact, this is an aim so

characteristic from the beginning of the whole school, that it may be

put down almost as a primary postulate. It was not, indeed, definitely

formulated; but to 'explain' a social theorem was taken to be the same

thing as to show how differences of character or conduct could be

explained by 'circumstance'--meaning by 'circumstance' something not

given in the agent himself. We have, however, no more right as good

empiricists to assert than to deny that all difference comes from

'circumstance.' If we take 'man' as a constant quantity in our

speculations, it requires at least a great many precautions before we

can assume that our abstract entity corresponds to a real concrete unit.

Otherwise we have a short cut to a doctrine of 'equality.' The theory of

'the rights of man' lays down the formula, and assumes that the facts

will correspond. The Utilitarian assumes the equality of fact, and of

course brings out an equally absolute formula. 'Equality,' in some

sense, is introduced by a side wind, though not explicitly laid down as

an axiom.[458] This underlying tendency may partly explain the

coincidence of results--though it would require a good many

qualifications in detail; but here I need only take Bentham's more or

less unconscious application.

Bentham's tacit assumption, in fact, is that there is an average 'man.'

Different specimens of the race, indeed, may vary widely according to

age, sex, and so forth; but, for purposes of legislation, he may serve

as a unit. We can assume that he has on the average certain qualities

from which his actions in the mass can be determined with sufficient

accuracy, and we are tempted to assume that they are mainly the

qualities obvious to an inhabitant of Queen's Square Place about the

year 1800. Mill defends Bentham against the charge that he assumed his

codes to be good for all men everywhere. To that, says Mill,[459] the

essay upon the 'Influence of Time and Place in Matters of Legislation'

is a complete answer. Yet Mill[460] admits in the same breath that

Bentham omitted all reference to 'national character.' In fact, as we

have seen, Bentham was ready to legislate for Hindoostan as well as for

his own parish; and to make codes not only for England, Spain, and

Russia, but for Morocco. The Essay mentioned really explains the point.

Bentham not only admitted but asserted as energetically as became an

empiricist, that we must allow for 'circumstances'; and circumstances

include not only climate and so forth, but the varying beliefs and

customs of the people under consideration. The real assumption is that

all such circumstances are superficial, and can be controlled and

altered indefinitely by the 'legislator.' The Moor, the Hindoo, and the

Englishman are all radically identical; and the differences which must

be taken into account for the moment can be removed by judicious means.

Without pausing to illustrate this from the Essay, I may remark that for

many purposes such an assumption is justifiable and guides ordinary

common sense. If we ask what would be the best constitution for a

commercial company, or the best platform for a political party, we can

form a fair guess by arguing from the average of Bentham and his

contemporaries--especially if we are shrewd attornies or political

wirepullers. Only we are not therefore in a position to talk about the

'science of human nature' or to deal with problems of 'sociology.' This,

however, gives Bentham's 'individualism' in a sense of the phrase

already explained. He starts from the 'ready-made man,' and deduces all

institutions or legal arrangements from his properties. I have tried to

show how naturally this view fell in with the ordinary political

conceptions of the time. It shows, again, why Bentham disregards

history. When we have such a science, empirical or _a priori_, history

is at most of secondary importance. We can deduce all our maxims of

conduct from the man himself as he is before us. History only shows how

terribly he blundered in the pre-scientific period. The blunders may

give us a hint here and there. Man was essentially the same in the first

and the eighteenth century, and the differences are due to the clumsy

devices which he made by rule of thumb. We do not want to refer to them

now, except as illustrations of errors. We may remark how difficult it

was to count before the present notation was invented; but when it has

once been invented, we may learn to use it without troubling our heads

about our ancestors' clumsy contrivances for doing without it. This

leads to the real shortcoming. There is a point at which the historical

view becomes important--the point, namely, where it is essential to

remember that man is not a ready-made article, but the product of a long

and still continuing 'evolution.' Bentham's attack (in the _Fragment_)

upon the 'social contract' is significant. He was, no doubt, perfectly

right in saying that an imaginary contract could add no force to the

ultimate grounds for the social union. Nobody would now accept the

fiction in that stage. And yet the 'social contract' may be taken to

recognise a fact; namely, that the underlying instincts upon which

society alternately rests correspond to an order of reasons from those

which determine more superficial relations. Society is undoubtedly

useful, and its utility may be regarded as its ground. But the utility

of society means much more than the utility of a railway company or a

club, which postulates as existing a whole series of already established

institutions. To Bentham an 'utility' appeared to be a kind of permanent

and ultimate entity which is the same at all periods--it corresponds to

a psychological currency of constant value. To show, therefore, that the

social contract recognises 'utility' is to show that the whole organism

is constructed just as any particular part is constructed. Man comes

first and 'society' afterwards. I have already noticed how this applies

to his statements about the utility of a law; how his argument assumes

an already constituted society, and seems to overlook the difference

between the organic law upon which all order essentially depends, and

some particular modification or corollary which may be superinduced. We

now have to notice the political version of the same method. The 'law,'

according to Bentham, is a rule enforced by a 'sanction.' The imposer of

the rule in the phrase which Hobbes had made famous is the 'sovereign.'

Hobbes was a favourite author, indeed, of the later Utilitarians, though

Bentham does not appear to have studied him. The relation is one of

natural affinity. When in the _Constitutional Code_ Bentham transfers

the 'sovereignty' from the king to the 'people,'[461] he shows the

exact difference between his doctrine and that of the _Leviathan_. Both

thinkers are absolutists in principle, though Hobbes gives to a monarch

the power which Bentham gives to a democracy. The attributes remain

though their subject is altered. The 'sovereign,' in fact, is the

keystone of the whole Utilitarian system. He represents the ultimate

source of all authority, and supplies the motive for all obedience. As

Hobbes put it, he is a kind of mortal God.

Mill's criticism of Bentham suggests the consequences. There are, he

says,[462] three great questions: What government is for the good of the

people? How are they to be induced to obey it? How is it to be made

responsible? The third question, he says, is the only one seriously

considered by Bentham; and Bentham's answer, we have seen, leads to that

'tyranny of the majority' which was Mill's great stumbling-block. Why,

then, does Bentham omit the other questions? or rather, how would he

answer them? for he certainly assumes an answer. People, in the first

place, are 'induced to obey' by the sanctions. They don't rob that they

may not go to prison. That is a sufficient answer at a given moment. It

assumes, indeed, that the law will be obeyed. The policeman, the gaoler,

and the judge will do what the sovereign--whether despot or

legislature--orders them to do. The jurist may naturally take this for

granted. He does not go 'behind the law.' That is the law which the

sovereign has declared to be the law. In that sense, the sovereign is

omnipotent. He can, as a fact, threaten evildoers with the gallows; and

the jurist simply takes the fact for granted, and assumes that the

coercion is an ultimate fact. No doubt it is ultimate for the individual

subject. The immediate restraint is the policeman, and we need not ask

upon what does the policeman depend. If, however, we persist in asking,

we come to the historical problems which Bentham simply omits. The law

itself, in fact, ultimately rests upon 'custom,'--upon the whole system

of instincts, beliefs, and passions which induce people to obey

government, and are, so to speak, the substance out of which loyalty and

respect for the law is framed. These, again, are the product of an

indefinitely long elaboration, which Bentham takes for granted. He

assumes as perfectly natural and obvious that a number of men should

meet, as the Americans or Frenchmen met, and create a constitution. That

the possibility of such a proceeding involves centuries of previous

training does not occur to him. It is assumed that the constitution can

be made out of hand, and this assumption is of the highest importance,

not only historically, but for immediate practice. Mill assumes too

easily that Bentham has secured responsibility. Bentham assumes that an

institution will work as it is intended to work--perhaps the commonest

error of constitution-mongers. If the people use the instruments which

he provides, they have a legal method for enforcing obedience. To infer

that they will do so is to infer that all the organic instincts will

operate precisely as he intends; that each individual, for example, will

form an independent opinion upon legislative questions, vote for men who

will apply his opinions, and see that his representatives perform his

bidding honestly. That they should do so is essential to his scheme; but

that they will do so is what he takes for granted. He assumes, that is,

that there is no need for inquiring into the social instincts which lie

beneath all political action. You can make your machine and assume the

moving force. That is the natural result of considering political and

legislative problems without taking into account the whole character of

the human materials employed in the construction. Bentham's sovereign is

thus absolute. He rules by coercion, as a foreign power may rule by the

sword in a conquered province. Thus, force is the essence of government,

and it is needless to go further. To secure the right application of the

force, we have simply to distribute it among the subjects. Government

still means coercion, and ultimately nothing else; but then, as the

subjects are simply moved by their own interests, that is, by utility,

they will apply the power to secure those interests. Therefore, all that

is wanted is this distribution, and Mill's first problem, What

government is for the good of the people? is summarily answered. The

question, how obedience is to be secured, is evaded by confining the

answer to the 'sanctions,' and taking for granted that the process of

distributing power is perfectly simple, or that a new order can be

introduced as easily as parliament can pass an act for establishing a

new police in London. The 'social contract' is abolished; but it is

taken for granted that the whole power of the sovereign can be

distributed, and rules made for its application by the common sense of

the various persons interested. Finally, the one bond outside of the

individual is the sovereign. He represents all that holds society

together; his 'sanctions,' as I have said, are taken to be on the same

plane with the 'moral sanctions'--not dependent upon them, but other

modes of applying similar motives. As the sovereign, again, is in a

sense omnipotent, and yet can be manufactured, so to speak, by voluntary

arrangements among the individual members of society, there is no limit

to the influence which he may exercise. I note, indeed, that I am

speaking rather of the tendencies of the theory than of definitely

formulated conclusions. Most of the Utilitarians were exceedingly

shrewd, practical people, whose regard for hard facts imposed limits

upon their speculations. They should have been the last people to

believe too implicitly in the magical efficacy of political

contrivances, for they were fully aware that many men are knaves and

most men fools. They probably put little faith in Bentham's Utopia,

except as a remote ideal, and an ideal of unimaginative minds. The

Utopia was constructed on 'individualist' principles, because common

sense naturally approves individualism. The whole social and political

order is clearly the sum of the individuals, who combine to form an

aggregate; and theories about social bonds take one to the mystical and

sentimental. The absolute tendency is common to Bentham and the

Jacobins. Whether the individual be taken as a unit of constant

properties, or as the subject of absolute rights, we reach equally

absolute conclusions. When all the social and political regulations are

regarded as indefinitely modifiable, the ultimate laws come to depend

upon the absolute framework of unalterable fact. This, again, is often

the right point of view for immediate questions in which we may take for

granted that the average individual is in fact constant; and, as I have

said in regard to Bentham's legislative process, leads to very relevant

and important, though not ultimate, questions. But there are certain

other results which require to be noticed. 'Individualism,' like other

words that have become watchwords of controversy, has various shades of

meaning, and requires a little more definition.

NOTES:

[434] _Works_, v. 97, etc.

[435] See preface to _Constitutional Code_ in vol. ix.

[436] Bentham's nephew, George, who died when approaching his

eighty-fourth birthday, devoted the last twenty-five years of his life

with equal assiduity to his _Genera Plantarum_. See a curious anecdote

of his persistence in the _Dictionary of National Biography_.

[437] _Works_, iii. 573.

[438] _Works_, ix. 5, 8.

[439] The theory, as Mill reminds us, had been very pointedly

anticipated by Helvetius. Bentham's practical experience, however, had

forced it upon his attention.

[440] _Works_, ix. 141. The general principle, however, is confirmed by

the case of George III.

[441] _Ibid._ ix. 45.

[442] _Ibid._ ix. 98.

[443] _Works_, ix. 98.

[444] e.g. _Ibid._ ix. 38, 50, 63, 99, etc.

[445] _Ibid._ ('Plan of Parliamentary Reform,') iii. 463.

[446] _Works_, ix. 594.

[447] _Ibid._ ix. 62.

[448] _Ibid._ ix. 24.

[449] _Ibid._ ix. 48.

[450] _Dissertations_, i. 377.

[451] _Works_, ii. 497.

[452] _Ibid._ ii. 501.

[453] _Ibid._ ii. 503.

[454] _Justice_, p. 264; so Price, in his _Observations on Liberty_,

lays it down that government is never to entrench upon private liberty,

'except so far as private liberty entrenches on the liberty of others.'

[455] _Works_, ii. 506.

[456] _Works_, ii. 401.

[457] _Autobiography_, p. 274.

[458] Hobbes, in the _Leviathan_ (chap. xiii.), has in the same way to

argue for the _de facto_ equality of men.

[459] _Dissertations_, i. 375.

[460] I remark by anticipation that this expression implies a reference

to Mill's _Ethology_, of which I shall have to speak.

[461] _Works_, ix. 96, 113.

[462] _Dissertations_, i. 376.

VII. INDIVIDUALISM

'Individualism' in the first place is generally mentioned in a different

connection. The 'ready-made' man of whom I have spoken becomes the

'economic man.' Bentham himself contributed little to economic theory.

His most important writing was the _Defence of Usury_, and in this, as

we have seen, he was simply adding a corollary to the _Wealth of

Nations_. The _Wealth of Nations_ itself represented the spirit of

business; the revolt of men who were building up a vast industrial

system against the fetters imposed by traditional legislation and by

rulers who regarded industry in general, as Telford is said to have

regarded rivers. Rivers were meant to supply canals, and trade to supply

tax-gatherers. With this revolt, of course, Bentham was in full

sympathy, but here I shall only speak of one doctrine of great interest,

which occurs both in his political treatises and his few economical

remarks. Bentham objected, as we have seen, to the abstract theory of

equality; yet it was to the mode of deduction rather than to the

doctrine itself which he objected. He gave, in fact, his own defence;

and it is one worth notice.[463] The principle of equality is

derivative, not ultimate. Equality is good because equality increases

the sum of happiness. Thus, as he says,[464] if two men have L1000, and

you transfer L500 from one to the other, you increase the recipient's

wealth by one-third, and diminish the loser's wealth by one-half. You

therefore add less pleasure than you subtract. The principle is given

less mathematically[465] by the more significant argument that

'felicity' depends not simply on the 'matter of felicity' or the

stimulus, but also on the sensibility to felicity which is necessarily

limited. Therefore by adding wealth--taking, for example, from a

thousand labourers to give to one king--you are supersaturating a

sensibility already glutted by taking away from others a great amount of

real happiness. With this argument, which has of late years become

conspicuous in economics, he connects another of primary importance. The

first condition of happiness, he says, is not 'equality' but 'security.'

Now you can only equalise at the expense of security. If I am to have my

property taken away whenever it is greater than my neighbour's, I can

have no security.[466] Hence, if the two principles conflict, equality

should give way. Security is the primary, which must override the

secondary, aim. Must the two principles, then, always conflict? No; but

'time is the only mediator.'[467] The law may help to accumulate

inequalities; but in a prosperous state there is a 'continual progress

towards equality.' The law has to stand aside; not to maintain

monopolies; not to restrain trade; not to permit entails; and then

property will diffuse itself by a natural process, already exemplified

in the growth of Europe. The 'pyramids' heaped up in feudal times have

been lowered, and their '_debris_ spread abroad' among the industrious.

Here again we see how Bentham virtually diverges from the _a priori_

school. Their absolute tendencies would introduce 'equality' by force;

he would leave it to the spontaneous progress of security. Hence Bentham

is in the main an adherent of what he calls[468] the '_laissez-nous

faire_' principle. He advocates it most explicitly in the so-called

_Manual of Political Economy_--a short essay first printed in 1798.[469]

The tract, however, such as it is, is less upon political economy proper

than upon economic legislation; and its chief conclusion is that almost

all legislation is improper. His main principle is 'Be quiet' (the

equivalent of the French phrase, which surely should have been excluded

from so English a theory). Security and freedom are all that industry

requires; and industry should say to government only what Diogenes said

to Alexander, 'Stand out of my sunshine.'[470]

Once more, however, Bentham will not lay down the 'let alone' principle

absolutely. His adherence to the empirical method is too decided. The

doctrine 'be quiet,' though generally true, rests upon utility, and may,

therefore, always be qualified by proving that in a particular case the

balance of utility is the other way. In fact, some of Bentham's

favourite projects would be condemned by an absolute adherent of the

doctrine. The Panopticon, for example, though a 'mill to grind rogues

honest' could be applied to others than rogues, and Bentham hoped to

make his machinery equally effective in the case of pauperism. A system

of national education is also included in his ideal constitution. It is,

in fact, important to remember that the 'individualism' of Benthamism

does not necessarily coincide with an absolute restriction of government

interference. The general tendency was in that direction; and in purely

economical questions, scarcely any exception was admitted to the rule.

Men are the best judges, it was said, of their own interest; and the

interference of rulers in a commercial transaction is the interference

of people inferior in knowledge of the facts, and whose interests are

'sinister' or inconsistent with those of the persons really concerned.

Utility, therefore, will, as a rule, forbid the action of government:

but, as utility is always the ultimate principle, and there may be cases

in which it does not coincide with the 'let alone' principle, we must

always admit the possibility that in special cases government can

interfere usefully, and, in that case, approve the interference.

Hence we have the ethical application of these theories. The

individualist position naturally tends to take the form of egoism. The

moral sentiments, whatever they may be, are clearly an intrinsic part of

the organic social instincts. They are intimately involved in the whole

process of social evolution. But this view corresponds precisely to the

conditions which Bentham overlooks. The individual is already there. The

moral and the legal sanctions are 'external'; something imposed by the

action of others; corresponding to 'coercion,' whether by physical force

or the dread of public opinion; and, in any case, an accretion or

addition, not a profound modification of his whole nature. The

Utilitarian 'man' therefore inclines to consider other people as merely

parts of the necessary machinery. Their feelings are relevant only as

influencing their outward conduct. If a man gives me a certain 'lot' of

pain or pleasure, it does not matter what may be his motives. The

'motive' for all conduct corresponds in all cases to the pain or

pleasure accruing to the agent. It is true that his happiness will be

more or less affected by his relations to others. But as conduct is

ruled by a calculation of the balance of pains or pleasures dependent

upon any course of action, it simplifies matters materially, if each man

regards his neighbour's feelings simply as instrumental, not

intrinsically interesting. And thus the coincidence between that conduct

which maximises my happiness and that conduct which maximises happiness

in general, must be regarded as more or less accidental or liable in

special cases to disappear. If I am made happier by action which makes

others miserable, the rule of utility will lead to my preference of

myself.

Here we have the question whether the Utilitarian system be essentially

a selfish system. Bentham, with his vague psychology, does not lay down

the doctrine absolutely. After giving this list of self-regarding

'springs of action,' he proceeds to add the pleasures and pains of

'sympathy' and 'antipathy' which, he says, are not self-regarding.

Moreover, as we have seen, he has some difficulty in denying that

'benevolence' is a necessarily moral motive: it is only capable of

prompting to bad conduct in so far as it is insufficiently enlightened;

and it is clear that a moralist who makes the 'greatest happiness of the

greatest number' his universal test, has some reason for admitting as an

elementary pleasure the desire for the greatest happiness. This comes

out curiously in the _Constitutional Code_. He there lays down the

'self-preference principle'--the principle, namely, that 'every human

being' is determined in every action by his judgment of what will

produce the greatest happiness to himself, 'whatsoever be the effect ...

in relation to the happiness of other similar beings, any or all of them

taken together.'[471] Afterwards, however, he observes that it is 'the

constant and arduous task of every moralist' and of every legislator who

deserves the name to 'increase the influence of sympathy at the expense

of that of self-regard and of sympathy for the greater number at the

expense of sympathy for the lesser number.'[472] He tries to reconcile

these views by the remark 'that even sympathy has its root in

self-regard,' and he argues, as Mr. Herbert Spencer has done more fully,

that if Adam cared only for Eve and Eve only for Adam--neither caring at

all for himself or herself--both would perish in less than a year.

Self-regard, that is, is essential, and sympathy supposes its existence.

Hence Bentham puts himself through a catechism.[473] What is the 'best'

government? That which causes the greatest happiness of the given

community. What community? 'Any community, which is as much as to say,

every community.' But _why_ do you desire this happiness? Because the

establishment of that happiness would contribute to _my_ greatest

happiness. And _how_ do you prove that you desire this result? By my

labours to obtain it, replies Bentham. This oddly omits the more obvious

question, how can you be sure that your happiness will be promoted by

the greatest happiness of all? What if the two criteria differ? I desire

the general happiness, he might have replied, because my benevolence is

an original or elementary instinct which can override my self-love; or

I desire it, he would perhaps have said, because I know as a fact that

the happiness of others will incidentally contribute to my own. The

first answer would fall in with some of his statements; but the second

is, as I think must be admitted, more in harmony with his system.

Perhaps, indeed, the most characteristic thing is Bentham's failure to

discuss explicitly the question whether human action is or is not

necessarily 'selfish.' He tells us in regard to the 'springs of action'

that all human action is always 'interested,' but explains that

the word properly includes actions in which the motive is not

'self-regarding.'[474] It merely means, in fact, that all conduct has

motives. The statement, which I have quoted about the 'self-preference'

principle may only mean a doctrine which is perfectly compatible with a

belief in 'altruism'--the doctrine, namely, that as a fact most people

are chiefly interested by their own affairs. The legislator, he tells

us, should try to increase sympathy, but the less he takes sympathy for

the 'basis of his arrangements'--that is, the less call he makes upon

purely unselfish motives--the greater will be his success.[475] This is

a shrewd and, I should say, a very sound remark, but it implies--not

that all motives are selfish in the last analysis, but--that the

legislation should not assume too exalted a level of ordinary morality.

The utterances in the very unsatisfactory _Deontology_ are of little

value, and seem to imply a moral sentiment corresponding to a petty form

of commonplace prudence.[476]

Leaving this point, however, the problem necessarily presented itself

to Bentham in a form in which selfishness is the predominating force,

and any recognition of independent benevolence rather an incumbrance

than a help. If we take the 'self-preference principle' absolutely, the

question becomes how a multitude of individuals, each separately

pursuing his own happiness, can so arrange matters that their joint

action may secure the happiness of all. Clearly a man, however selfish,

has an interest generally in putting down theft and murder. He is

already provided with a number of interests to which security, at least,

and therefore a regular administration of justice, is essential. His

shop could not be carried on without the police; and he may agree to pay

the expenses, even if others reap the benefit in greater proportion. A

theory of legislation, therefore, which supposes ready formed all the

instincts which make a decent commercial society possible can do without

much reference to sympathy or altruism. Bentham's man is not the

colourless unit of _a priori_ writing, nor the noble savage of Rousseau,

but the respectable citizen with a policeman round the corner. Such a

man may well hold that honesty is the best policy; he has enough

sympathy to be kind to his old mother, and help a friend in distress;

but the need of romantic and elevated conduct rarely occurs to him; and

the heroic, if he meets it, appears to him as an exception, not far

removed from the silly. He does not reflect--especially if he cares

nothing for history--how even the society in which he is a contented

unit has been built up, and how much loyalty and heroism has been needed

for the work; nor even, to do him justice, what unsuspected capacities

may lurk in his own commonplace character. The really characteristic

point is, however, that Bentham does not clearly face the problem. He is

content to take for granted as an ultimate fact that the self-interest

principle in the long run coincides with the greatest 'happiness'

principle, and leaves the problem to his successors. There we shall meet

it again.

Finally, Bentham's view of religion requires a word. The short reply,

however, would be sufficient, that he did not believe in any theology,

and was in the main indifferent to the whole question till it

encountered him in political matters. His first interest apparently was

roused by the educational questions which I have noticed, and the

proposal to teach the catechism. Bentham, remembering the early bullying

at Oxford, examines the catechism; and argues in his usual style that to

enforce it is to compel children to tell lies. But this leads him to

assail the church generally; and he regards the church simply as a part

of the huge corrupt machinery which elsewhere had created Judge and Co.

He states many facts about non-residence and bloated bishoprics which

had a very serious importance; and he then asks how the work might be

done more cheaply. As a clergyman's only duty is to read weekly services

and preach sermons, he suggests (whether seriously may be doubted) that

this might be done as well by teaching a parish boy to read properly,

and provide him with the prayer-book and the homilies.[477] A great deal

of expense would be saved. This, again, seems to have led him to attack

St. Paul, whom he took to be responsible for dogmatic theology, and

therefore for the catechism; and he cross-examines the apostle, and

confronts his various accounts of the conversion with a keenness worthy

of a professional lawyer. In one of the MSS. at University College the

same method is applied to the gospels. Bentham was clearly not capable

of anticipating Renan. From these studies he was led to the far more

interesting book, published under the name of _Philip Beauchamp_.

Bentham supplied the argument in part; but to me it seems clear that it

owes so much to the editor, Grote, that it may more fitly be discussed

hereafter.

The limitations and defects of Bentham's doctrine have been made

abundantly evident by later criticism. They were due partly to his

personal character, and partly to the intellectual and special

atmosphere in which he was brought up. But it is more important to

recognise the immense real value of his doctrine. Briefly, I should say,

that there is hardly an argument in Bentham's voluminous writings which

is not to the purpose so far as it goes. Given his point of view, he is

invariably cogent and relevant. And, moreover, that is a point of view

which has to be taken. No ethical or political doctrine can, as I hold,

be satisfactory which does not find a place for Bentham, though he was

far, indeed, from giving a complete theory of his subject. And the main

reason of this is that which I have already indicated. Bentham's whole

life was spent in the attempt to create a science of legislation. Even

where he is most tiresome, there is a certain interest in his unflagging

working out of every argument, and its application to all conceivable

cases. It is all genuine reasoning; and throughout it is dominated by a

respect for good solid facts. His hatred of 'vague generalities'[478]

means that he will be content with no formula which cannot be

interpreted in terms of definite facts. The resolution to insist upon

this should really be characteristic of every writer upon similar

subjects, and no one ever surpassed Bentham in attention to it. Classify

and re-classify, to make sure that at every point your classes

correspond to realities. In the effort to carry out these principles,

Bentham at least brought innumerable questions to a sound test, and

exploded many pestilent fallacies. If he did not succeed further, if

whole spheres of thought remained outside of his vision, it was because

in his day there was not only no science of 'sociology' or

psychology--there are no such sciences now--but no adequate perception

of the vast variety of investigation which would be necessary to lay a

basis for them. But the effort to frame a science is itself valuable,

indeed of surpassing value, so far as it is combined with a genuine

respect for facts. It is common enough to attempt to create a science by

inventing technical terminology. Bentham tried the far wider and far

more fruitful method of a minute investigation of particular facts. His

work, therefore, will stand, however different some of the results may

appear when fitted into a different framework. And, therefore, however

crudely and imperfectly, Bentham did, as I believe, help to turn

speculation into a true and profitable channel. Of that, more will

appear hereafter; but, if any one doubts Bentham's services, I will only

suggest to him to compare Bentham with any of his British

contemporaries, and to ask where he can find anything at all comparable

to his resolute attempt to bring light and order into a chaotic infusion

of compromise and prejudice.

NOTES:

[463] _Works_, 'Civil Code' (from Dumont), i. 302, 305; _Ibid._

('Principles of Constitutional Code') ii. 271; _Ibid._ ('Constitutional

Code') ix. 15-18.

[464] _Works_, i. 306 _n._

[465] _Ibid._ ix. 15.

[466] _Ibid._ ('Principles of Penal Code') i. 311.

[467] _Ibid._ i. 312.

[468] _Works_, x. 440.

[469] _Ibid._ iii. 33, etc.

[470] _Ibid._ iii. 35.

[471] _Works_, ix. 5.

[472] _Ibid._ ix. 192.

[473] _Ibid._ ix. 7.

[474] _Works_, i. 212.

[475] _Ibid._ ix. 192.

[476] See, _e.g._, i. 83, where sympathy seems to be taken as an

ultimate pleasure; and ii. 133, where he says 'dream not that men will

move their little finger to serve you unless their advantage in so doing

be obvious to them.' See also the apologue of 'Walter Wise,' who becomes

Lord Mayor, and 'Timothy Thoughtless,' who ends at Botany Bay (i. 118),

giving the lowest kind of prudential morality. The manuscript of the

_Deontology_, now in University College, London, seems to prove that

Bentham was substantially the author, though the Mills seem to have

suspected Bowring of adulterating the true doctrine. He appears to have

been an honest if not very intelligent editor; though the rewriting,

necessary in all Bentham's works, was damaging in this case; and he is

probably responsible for some rhetorical amplification, especially in

the later part.

[477] _Church of Englandism_ (Catechism examined), p. 207.

[478] See this phrase expounded in _Works_ ('Book of Fallacies'), ii.

440, etc.

END OF VOL. I

NOTE ON BENTHAM'S WRITINGS

The following account of Bentham's writings may be of some use. The

arrangement is intended to show what were the topics which attracted his

attention at successive periods.

The collected _Works_, edited by Bowring, appeared from 1838 to 1843 in

eleven volumes, the last two containing the life and an elaborate index.

The first nine volumes consist partly of the works already published;

partly of works published for the first time from Bentham's MSS.; and

partly of versions of Dumont's redactions of Bentham. Dumont's

publications were (1) _Traites de Legislation civile et penale_ (1802;

second edition, revised, 1820): [vol. i. contains _Principes generaux de

Legislation_ and _Principes du Code civil_; vol. ii. _Principes du Code

penal_; and vol. iii. _Memoire sur le Panoptique_, _De la Promulgation

des Lois_, _De l'Influence du Temps et des Lieux_, and _Vue generale

d'un Corps complet des Lois_]; (2) _Theorie des Peines et des

Recompenses_, 1811, 1818, 1825; (3) _Tactiques des Assemblees

deliberantes et Traite des Sophismes politiques_, 1816; (4) _Traite des

Preuves judiciaires_, 1823; and (5) _De l'Organisation judiciaire et de

la Codification_, 1823.

In the following I give references to the place of each work in

Bowring's edition.

Bentham's first book was the _Fragment on Government_, 1776 (i.

221-295). An interesting 'historical preface,' intended for a second

edition (i. 240-259), was first printed in 1828. The _Fragment_, edited

by Mr. F. C. Montague, was republished in 1891.

The _Introduction to the Principles of Morals and Legislation_ was

published in 1789, in one vol. 4to (i. 1-154). It had been printed in

1780. A second edition, in two vols. 8vo, appeared in 1823. It was

intended as an introduction to the plan of a penal code. Bentham says in

his preface that his scheme would be completed by a series of works

applying his principles to (1) civil law; (2) penal law; (3) procedure;

(4) reward; (5) constitutional law; (6) political tactics; (7)

international law; (8) finance; and (9) political economy, and by a

tenth treatise giving a plan of a body of law 'considered in respect of

its form,' that is, upon 'nomography.' He wrote more or less in the

course of his life upon all these topics. Dumont's _Traites_ of 1802

were based partly upon the _Introduction_ and partly upon Bentham's MSS.

corresponding to unfinished parts of this general scheme.

The two first sections of this scheme are represented in the _Works_ by

_Principles of the Civil Code_ (i. 297-364) and _Principles of Penal

Law_ (i. 365-580). The _Principles of the Civil Code_ is translated from

Dumont's _Traites_, where it follows a condensed statement of 'general

principles' taken from the opening chapters of the _Introduction_. An

appendix 'on the levelling system' is added in the _Works_ from

Bentham's MSS. The _Principles of Penal Law_ consists of three parts:

the first and third (on 'political remedies for the evil of offences'

and on 'indirect means of preventing crimes') are translated from parts

2 and 4 of Dumont's _Principes du Code penal_ (parts 1 and 3 of Dumont

being adaptations from the _Introduction to Morals and Legislation_).

The second part of the _Penal Law_, or _The Rationale of Punishment_ is

from Dumont's _Theorie des Peines et des Recompenses_. Dumont took it

from a MS. written by Bentham in 1775. (See Bentham's _Works_, i. 388.)

An appendix on 'Death Punishment,' addressed by Bentham to the French

people in 1830, is added to Part II. in the _Works_ (i. 525-532). No. 4

of Bentham's general scheme corresponds to the _Rationale of Reward_,

founded upon two MSS., one in French and one in English, used by Dumont

in the _Theorie des Peines et des Recompenses_. The English version in

the _Works_, chiefly translated from Dumont and compared with the

original manuscript, was first published in 1825 (ii. 189-266). Richard

Smith 'of the Stamps and Taxes' was the editor of this and of an edition

of the _Rationale of Punishment_ in 1831, and of various minor

treatises. (Bentham's _Works_, x. 548 _n._)

The _Table of the Springs of Action_ (i. 195-220), written at an early

period, was printed in 1815, and published, with modifications, in 1817.

The _Vue generale_ included in the _Traites_ of 1802 was intended by

Bentham as a sketch for his own guidance, and is translated as _View of

a Complete Code of Laws_ in the _Works_ (iii. 154-210). The two essays

in the 1802 _Traites_ on 'the promulgation of laws' and the 'influence

of time and place in matters of legislation' are translated in _Works_

(i. 157-194). A fragment on _International Law_--a phrase invented by

Bentham--written between 1786 and 1789, first appeared in the _Works_

(ii. 535-571), with _Junctiana proposal_--a plan for a canal between the

Atlantic and the Pacific--written in 1822, as an appendix.

Besides the above, all written before 1789 in pursuance of his scheme,

Bentham had published in 1778 his _View of the Hard Labour Bill_ (iv.

1-36); and in 1787 his _Defence of Usury_ (iii. 1-29). A third edition

of the last (with the 'protest against law taxes') was published in

1816.

During the following period (1789-1802) Bentham wrote various books,

more or less suggested by the French revolution. The _Essay on Political

Tactics_ (ii. 299-373), (corresponding to No. 6 of the scheme), was sent

to Morellet in 1789, but first published by Dumont in 1816. With it

Dumont also published the substance of the _Anarchical Fallacies_ (ii.

489-534), written about 1791. A _Draught of a Code for the Organisation

of the Judicial Establishment of France_, dated March 1790, is reprinted

in _Works_ iv. 285-406. _Truth v. Ashhurst_, written in 1792 (v.

231-237), was first published in 1823. A _Manual of Political Economy_,

written by 1793 (see _Works_, iii. 73 _n._), corresponds to No. 9 of his

scheme. A chapter appeared in the _Bibliotheque Britannique_ in 1798. It

was partly used in Dumont's _Theorie des Recompenses_, and first

published in English in _Works_ (iii. 31-84). _Emancipate your

Colonies_ (iv. 407-481) was privately printed in 1793, and first

published for sale in 1830. A _Protest against Law Taxes_, printed in

1793, was published in 1795 together with _Supply without Burthen, or

Escheat vice Taxation_, written in 1794. To them is appended a short

paper called _Tax with Monopoly_ (ii. 573-600). _A Plan for saving all

Trouble and Expense in the Transfer of Stock_, written and partly

printed in 1800, was first published in _Works_ (iii. 105-153).

During this period Bentham was also occupied with the Panopticon, and

some writings refer to it. _The Panopticon, or the Inspection House_

(iv. 37-172), written in 1787, was published in 1791. _The Panopticon

versus New South Wales_ (iv. 173-248) appeared in 1802; and _A Plea for

the Constitution_ (on transportation to New South Wales) (iv. 249-284),

in 1803. Closely connected with these are _Poor-laws and Pauper

Management_ (viii. 358-461), reprinted from Arthur Young's _Annals_ of

September 1797 and following months; and _Observations on the Poor Bill_

(viii. 440-459), written in February 1797, privately printed in 1838,

and first published in the _Works_.

About 1802 Bentham returned to jurisprudence. James Mill prepared from

the papers then written an _Introductory View of the Rationale of

Evidence_, finished and partly printed in 1812 (see _Works_, x. 468 _n._

and Bain's _James Mill_, 105, 120). Dumont's _Traite des Preuves

judiciaires_ (1823) was a redaction of the original papers, and an

English translation of this appeared in 1825. The parts referring to

English Law were omitted. The _Rationale of Evidence_ (5 vols. 8vo,

1827), edited by J. S. Mill, represents a different and fuller redaction

of the same papers. It is reprinted in vols. vi. and vii. of the _Works_

with the _Introductory View_ (now first published) prefixed. To the same

period belongs _Scotch Reform_, with a _Summary View of a Plan for a

Judicatory_, 1808 (second edition 1811, v. 1-60).

After 1808 Bentham's attention was especially drawn to political

questions. His _Catechism of Parliamentary Reform_ (iii. 433-557),

written in 1809, was first published with a long 'introduction' in the

_Pamphleteer_ for January 1817. Bentham's _Radical Reform Bill, with

explanations_ (iii. 558-597) followed in December 1819. _Radicalism not

dangerous_ (iii. 598-622), written at the same time, first appeared in

the _Works_ (iii. 398-622). _Elements of the Art of Packing as applied

to Special Juries, especially in Cases of Libel Law_ (v. 61-186),

written in 1809, was published in 1821. _Swear not at all_ (v. 188-229)

(referring chiefly to Oxford tests), written in 1813, was published in

1817. _The King against Edmonds_ and _The King against Wolseley_ (v.

239-261) were published in 1820. _Official Aptitude minimized; Official

Expense limited_ (v. 263-286), is a series of papers, first collected in

1831. It contains a _Defence of Economy against Burke_, and a _Defence

of Economy against George Rose_, both written in 1810, and published in

the _Pamphleteer_ in 1817, with _Observations_ on a speech by Peel in

1825, and _Indications respecting Lord Eldon_. The two last appeared in

1825. Connected with these political writings is the _Book of Fallacies_

(ii. 375-488), edited by Bingham in 1824, from the 'most unfinished of

all Bentham's writings.' Allusions seem to show that the original MSS.

were written from 1810 to 1819. It was partly published by Dumont with

the _Tactique, etc._

Bentham, during this period (1808-1820), was also led into various

outlying questions. _The Pannomial Fragments_, _Nomography_, and

_Appendix on Logical Arrangements employed by Jeremy Bentham_ (iii.

211-295) were first published in the _Works_ from MSS. written from 1813

to 1831. With the _Chrestomathia_ (viii. 1-192), first published in

1816, are connected fragments upon 'Ontology,' 'Language,' and

'Universal Grammar' (viii. 193-358), first published in _Works_ from

fragments of MSS. of 1813 and later. George Bentham's _Outline of a New

System of Logic_ was partly founded upon his uncle's papers. Bentham at

the Ford Abbey time (1814-1818) was also writing his _Church of

Englandism and its Catechism examined_, 1818. The _Analysis of the

Influence of Natural Religion upon the Temporal Happiness of Mankind_,

by Philip Beauchamp, edited by George Grote, appeared in 1822; and _Not

Paul but Jesus_, by Gamaliel Smith, in 1823. Francis Place helped in

preparing this at Ford Abbey in 1817 (Mr. Wallas's _Life of Place_, p.

83). _Mother Church of England relieved by Bleeding_ (1823) and the

_Book of Church Reform_ (1831) are extracted from _Church of

Englandism_. Bowring did not admit these works to his collection.

In his later years (1820-1832) Bentham began to be specially occupied

with codification. _Papers upon Codification and Public Instruction_

(iv. 451-534) consist chiefly of letters, written from 1811 to 1815,

offering himself for employment in codification in America and Russia,

and first published in 1817. In 1821 appeared _Three Tracts relating to

Spanish and Portuguese Affairs, with a Continual Eye to English ones_;

and in 1822 _Three Letters to Count Toreno on the proposed Penal Code_

(in Spain) (viii. 460-554). A short tract on _Liberty of the Press_ was

addressed to the Spanish people in 1821 (ii. 275-299). _Codification

Proposals_ (iv. 535-594) appeared in 1823, offering to prepare an

'all-comprehensive code of law' for 'any nation professing liberal

opinions.' _Securities against Misrule addressed to a Mahommedan State,

and prepared with a special Reference to Tripoli_, written in 1822-23,

was first published in the _Works_ (viii. 551-600). A tract on the

_Leading Principles of a Constitutional Code_ (ii. 267-274) appeared in

the _Pamphleteer_ in 1823. The first volume of the _Constitutional

Code_, printed in 1827, was published with the first chapter of the

second volume in 1830. The whole book, edited by R. Doane from papers

written between 1818 and 1832, was published in 1841, and forms volume

ix. of the _Works_. Doane also edited _Principles of Judicial Procedure_

(ii. 1-188) from papers written chiefly from 1820 to 1827, though part

had been written in 1802. Several thousand pages upon this subject--the

third part of the original scheme--were left by Bentham at his death.

During his last years Bentham also wrote a _Commentary on Mr. Humphrey's

Real Property Code_, published in the _Westminster Review_ for October

1826 (v. 387-416); _Justice and Codification Petitions_ (v. 437-548),

printed in 1829; _Jeremy Bentham to his Fellow-Citizens in France on

Houses of Peers and Senates_ (iv. 419-450), dated 15th October 1830;

_Equity Dispatch Court Proposals_ (iii. 297-432), first published in

_Works_ and written from 1829 to 1831; _Outline of a Plan of a General

Register of Real Property_ (v. 417-435), published in the Report of the

Real Property Commission in 1832; and _Lord Brougham Displayed_ (v.

549-612), 1832.

The _Deontology_ or _Science of Morality_ was published by Bowring in

two vols. 8vo in 1834, but omitted from the _Works_, as the original

edition was not exhausted. The MS. preserved at University College,

London, shows that a substantial beginning had been made in 1814; most

of the remainder about 1820. The second volume, made, as Bowring says,

from a number of scraps, is probably more 'Bowringised' than the first.

Dumont's _Traites_ were translated into Spanish in 1821, and the _Works_

in 1841-43. There are also Russian and Italian translations. In 1830 a

translation from Dumont, edited by F. E. Beneke, as _Grundsaetze der

Civil- und Criminal-Gesetzgebung_, etc., was published at Berlin. Beneke

observes that Bentham had hitherto received little attention in Germany,

though well known in other countries. He reports a saying attributed to

Mme. de Stael that the age was that of Bentham, not of Byron or

Buonaparte. The neglect of Bentham in Germany was due, as Beneke says,

to the prevalence of the Kantian philosophy. Bentham, however, had been

favourably noticed in the _Hermes_ for 1822, and his merits since

acknowledged by Mittermaier and Warnkoenig in the _Zeitschrift fuer

Rechtswissenschaft_. Beneke (1798-1854) was opposed to the Hegelian

tendencies of his time, and much influenced by Herbart. See Ueberweg's

_History of Philosophy_ (English translation, 1874, ii. 281, etc.) and

the account of Bentham in Robert von Mohl's _Staatswissenschaften_, etc.

(1853), iii. 595-635.

A great mass of Bentham MSS. belongs to University College, London. They

are contained in 148 boxes, which were examined and catalogued by Mr. T.

Whittaker in 1892. A few of these contain correspondence, part of which

was printed by Bowring. Others are the manuscripts of published works.

Some are upon the same subjects as the published works, and others refer

to topics not included in his publications. Besides the _Deontology_

manuscripts and a fragment upon 'Political Deontology,' there is a

discussion of the means of suppressing duels, an argument against the

legal punishment of certain offences against decency, and a criticism of

the gospel narrative similar to _Not Paul_, etc. I have not thought it

necessary to examine these fragments after reading Mr. Whittaker's

report. Bentham's principles are sufficiently stated in his published

works; and the papers which have been reposing in the cellars of

University College can have had no influence upon the world. There is

another large collection of MSS. in the British Museum from the papers

of Bentham and his brother, Sir Samuel. Ten folio volumes contain

correspondence, much of it referring only to Sir Samuel. A long

correspondence upon the acquisition of the 'Panopticon' land is

included. Another volume contains many of Bentham's school and college

exercises. There are also the manuscripts of the _Nomography_, _Logical

Arrangements_, etc. This collection was used by Bowring and by Lady

Bentham in the life of her husband.

Printed by T. and A. CONSTABLE, Printers to Her Majesty at the Edinburgh

University Press