Chapter VI: Bentham's Doctrine (2)

I must, however, pass lightly over a very clear and interesting discussion to reach a further point of primary importance to the Utilitarian theory, as to the distinction between the moral and legal spheres.[407] Bentham has now 'made an analysis of evil.' He has, that is, classified the mischiefs produced by conduct, measured simply by their effect upon pleasures or pains, independently of any consideration as to virtue and vice. The next problem is: what conduct should be criminal?--a subject which is virtually discussed in two chapters (xv. and xix.) 'on cases unmeet for punishment' and on 'the limits between Private Ethics and the act of legislation.' We must, of course, follow the one clue to the labyrinth. We must count all the 'lots' of pain and pleasure indifferently. It is clear, on the one hand, that the pains suffered by criminals are far less than the pains which would be suffered were no such sanctions applied. On the other hand, all punishment is an evil, because punishment means pain, and it is therefore only to be inflicted when it excludes greater pain. It must, therefore, not be inflicted when it is 'groundless,' 'inefficacious,' 'unprofitable,' or 'needless.' 'Needless' includes all the cases in which the end may be attained 'as effectually at a cheaper rate.'[408] This applies to all 'dissemination of pernicious principles'; for in this case reason and not force is the appropriate remedy. The sword inflicts more pain, and is less efficient than the pen. The argument raises the wider question, What are the true limits of legislative interference? Bentham, in his last chapter, endeavours to answer this problem. 'Private ethics,' he says, and 'legislation' aim at the same end, namely, happiness, and the 'acts with which they are conversant are _in great measure_ the same.' Why, then, should they have different spheres? Simply because the acts 'are not _perfectly and throughout_ the same.'[409] How, then, are we to draw the line? By following the invariable clue of 'utility.' We simply have to apply an analysis to determine the cases in which punishment does more harm than good. He insists especially upon the cases in which punishment is 'unprofitable'; upon such offences as drunkenness and sexual immorality, where the law could only be enforced by a mischievous or impossible system of minute supervision, and such offences as ingratitude or rudeness, where the definition is so vague that the judge could not safely be entrusted with the power to punish.'[410] He endeavours to give a rather more precise distinction by subdividing 'ethics in general' into three classes. Duty may be to oneself, that is 'prudence'; or to one's neighbour negatively, that is 'probity'; or to one's neighbour positively, that is 'benevolence.'[411] Duties of the first class must be left chiefly to the individual, because he is the best judge of his own interest. Duties of the third class again are generally too vague to be enforced by the legislator, though a man ought perhaps to be punished for failing to help as well as for actually injuring. The second department of ethics, that of 'probity,' is the main field for legislative activity.[412] As a general principle, 'private ethics' teach a man how to pursue his own happiness, and the art of legislation how to pursue the greatest happiness of the community. It must be noticed, for the point is one of importance, that Bentham's purely empirical method draws no definite line. It implies that no definite line can be drawn. It does not suggest that any kind of conduct whatever is outside the proper province of legislator except in so far as the legislative machinery may happen to be inadequate or inappropriate.

Our analysis has now been carried so far that we can proceed to consider the principles by which we should be guided in punishing. What are the desirable properties of a 'lot of punishment'? This occupies two interesting chapters. Chapter xvi., 'on the proportion between punishments and offences,' gives twelve rules. The punishment, he urges, must outweigh the profit of the offence; it must be such as to make a man prefer a less offence to a greater--simple theft, for example, to violent robbery; it must be such that the punishment must be adaptable to the varying sensibility of the offender; it must be greater in 'value' as it falls short of certainty; and, when the offence indicates a habit, it must outweigh not only the profit of the particular offence, but of the undetected offences. In chapter xvii. Bentham considers the properties which fit a punishment to fulfil these conditions. Eleven properties are given. The punishment must be (1) 'variable,' that is, capable of adjustment to particular cases; and (2) equable, or inflicting equal pain by equal sentences. Thus the 'proportion' between punishment and crimes of a given class can be secured. In order that the punishments of different classes of crime may be proportional, the punishments should (3) be commensurable. To make punishments efficacious they should be (4) 'characteristical' or impressive to the imagination; and that they may not be excessive they should be (5) exemplary or likely to impress others, and (6) frugal. To secure minor ends they should be (7) reformatory; (8) disabling, _i.e._ from future offences; and (9) compensatory to the sufferer. Finally, to avoid collateral disadvantages they should be (10) popular, and (11) remittable. A twelfth property, simplicity, was added in Dumont's redaction. Dumont calls attention here to the value of Bentham's method.[413] Montesquieu and Beccaria had spoken in general terms of the desirable qualities of punishment. They had spoken of 'proportionality,' for example, but without that precise or definite meaning which appears in Bentham's Calculus. In fact, Bentham's statement, compared to the vaguer utterances of his predecessors, but still more when compared to the haphazard brutalities and inconsistencies of English criminal law, gives the best impression of the value of his method.

Bentham's next step is an elaborate classification of offences, worked out by a further application of his bifurcatory method.[414] This would form the groundwork of the projected code. I cannot, however, speak of this classification, or of many interesting remarks contained in the _Principles of Penal Law_, where some further details are considered. An analysis scarcely does justice to Bentham, for it has to omit his illustrations and his flashes of real vivacity. The mere dry logical framework is not appetising. I have gone so far in order to illustrate the characteristic of Bentham's teaching. It was not the bare appeal to utility, but the attempt to follow the clue of utility systematically and unflinchingly into every part of the subject. This one doctrine gives the touchstone by which every proposed measure is to be tested; and which will give to his system not such unity as arises from the development of an abstract logical principle, but such as is introduced into the physical sciences when we are able to range all the indefinitely complex phenomena which arise under some simple law of force. If Bentham's aim could have been achieved, 'utility' would have been in legislative theories what gravitation is in astronomical theories. All human conduct being ruled by pain and pleasure, we could compare all motives and actions, and trace out the consequences of any given law. I shall have hereafter to consider how this conception worked in different minds and was applied to different problems: what were the tenable results to which it led, and what were the errors caused by the implied oversight of some essential considerations.

Certain weaknesses are almost too obvious to be specified. He claimed to be constructing a science, comparable to the physical sciences. The attempt was obviously chimerical if we are to take it seriously. The makeshift doctrine which he substitutes for psychology would be a sufficient proof of the incapacity for his task. He had probably not read such writers as Hartley or Condillac, who might have suggested some ostensibly systematic theory. If he had little psychology he had not even a conception of 'sociology.' The 'felicific calculus' is enough to show the inadequacy of his method. The purpose is to enable us to calculate the effects of a proposed law. You propose to send robbers to the gallows or the gaol. You must, says Bentham, reckon up all the evils prevented: the suffering to the robbed, and to those who expect to be robbed, on the one hand; and, on the other, the evils caused, the suffering to the robber, and to the tax-payer who keeps the constable; then strike your balance and make your law if the evils prevented exceed the evils caused. Some such calculation is demanded by plain common sense. It points to the line of inquiry desirable. But can it be adequate? To estimate the utility of a law we must take into account all its 'effects.' What are the 'effects' of a law against robbery? They are all that is implied in the security of property. They correspond to the difference between England in the eighteenth century and England in the time of Hengist and Horsa; between a country where the supremacy of law is established, and a country still under the rule of the strong hand. Bentham's method may be applicable at a given moment, when the social structure is already consolidated and uniform. It would represent the practical arguments for establishing the police-force demanded by Colquhoun, and show the disadvantages of the old constables and watchmen. Bentham, that is, gives an admirable method for settling details of administrative and legislative machinery, and dealing with particular cases when once the main principles of law and order are established. Those principles, too, may depend upon 'utility,' but utility must be taken in a wider sense when we have to deal with the fundamental questions. We must consider the 'utility' of the whole organisation, not the fitness of separate details. Finally, if Bentham is weak in psychology and in sociology, he is clearly not satisfactory in ethics. Morality is, according to him, on the same plane with law. The difference is not in the sphere to which they apply, or in the end to which they are directed; but solely in the 'sanction.' The legislator uses threats of physical suffering; the moralist threats of 'popular' disapproval. Either 'sanction' may be most applicable to a given case; but the question is merely between different means to the same end under varying conditions. This implies the 'external' character of Bentham's morality, and explains his insistence upon the neutrality of motives. He takes the average man to be a compound of certain instincts, and merely seeks to regulate their action by supplying 'artificial tutelary motives.' The 'man' is given; the play of his instincts, separately neutral, makes his conduct more or less favourable to general happiness; and the moralist and the legislator have both to correct his deviations by supplying appropriate 'sanctions.' Bentham, therefore, is inclined to ignore the intrinsic character of morality, or the dependence of a man's morality upon the essential structure of his nature. He thinks of the superficial play of forces, not of their intimate constitution. The man is not to be changed in either case; only his circumstances. Such defects no doubt diminish the value of Bentham's work. Yet, after all, in his own sphere they are trifles. He did very well without philosophy. However imperfect his system might be considered as a science or an ultimate explanation of society and human nature, it was very much to the point as an expression of downright common sense. Dumont's eulogy seems to be fully deserved, when we contrast Bentham's theory of punishment with the theories (if they deserve the name) of contemporary legislators. His method involved a thoroughgoing examination of the whole body of laws, and a resolution to apply a searching test to every law. If that test was not so unequivocal or ultimate as he fancied, it yet implied the constant application of such considerations as must always carry weight, and, perhaps, be always the dominant considerations, with the actual legislator or jurist. What is the use of you? is a question which may fairly be put to every institution and to every law; and it concerns legislators to find some answer, even though the meaning of the word 'use' is not so clear as we could wish.

NOTES:

[406] _Morals and Legislation_, ch. xii.

[407] _Morals and Legislation_, ch. xiv. (a chapter inserted from Dumont's _Traites_).

[408] _Works_ ('Morals and Legislation'), i. p. 86.

[409] _Ibid._ i. 144.

[410] _Ibid._ i. 145.

[411] _Works_ ('Morals and Legislation'), i. 143.

[412] _Ibid._ i. 147-48.

[413] _Works_ ('Morals and Legislation'), i 406 _n._

[414] _Works_ ('Morals and Legislation'), i. 96 _n._

V. ENGLISH LAW

The practical value of Bentham's method is perhaps best illustrated by his _Rationale of Evidence_. The composition of the papers ultimately put together by J. S. Mill had occupied Bentham from 1802 to 1812. The changed style is significant. Nobody could write more pointedly, or with happier illustrations, than Bentham in his earlier years. He afterwards came to think that a didactic treatise should sacrifice every other virtue to fulness and precision. To make a sentence precise, every qualifying clause must be somehow forced into the original formula. Still more characteristic is his application of what he calls the 'substantive-preferring principle.'[415] He would rather say, 'I give extension to an object,' than 'I extend an object.' Where a substantive is employed, the idea is 'stationed upon a rock'; if only a verb, the idea is 'like a leaf floating on a stream.' A verb, he said,[416] 'slips through your fingers like an eel.' The principle corresponds to his 'metaphysics.' The universe of thought is made up of a number of separate 'entities' corresponding to nouns-substantive, and when these bundles are distinctly isolated by appropriate nouns, the process of arranging and codifying according to the simple relations indicated by the copula is greatly facilitated. The ideal language would resemble algebra, in which symbols, each representing a given numerical value, are connected by the smallest possible number of symbols of operation, +, -, =, and so forth. To set two such statements side by side, or to modify them by inserting different constants, is then a comparatively easy process, capable of being regulated by simple general rules. Bentham's style becomes tiresome, and was often improperly called obscure. It requires attention, but the meaning is never doubtful--and to the end we have frequent flashes of the old vivacity.

The _Rationale of Evidence_, as Mill remarks,[417] is 'one of the richest in matter of all Bentham's productions.' It contains, too, many passages in Bentham's earlier style, judiciously preserved by his young editor; indeed, so many that I am tempted even to call the book amusing. In spite of the wearisome effort to say everything, and to force language into the mould presented by his theory, Bentham attracts us by his obvious sincerity. The arguments may be unsatisfactory, but they are genuine arguments. They represent conviction; they are given because they have convinced; and no reader can deny that they really tend to convince. We may complain that there are too many words, and that the sentences are cumbrous; but the substance is always to the point. The main purpose may be very briefly indicated. Bentham begins by general considerations upon evidence, in which he and his youthful editor indicate their general adherence to the doctrines of Hume.[418] This leads to an application of the methods expounded in the 'Introduction,' in order to show how the various motives or 'springs of action' and the 'sanctions' based upon them may affect the trustworthiness of evidence. Any motive whatever may incidentally cause 'mendacity.' The second book, therefore, considers what securities may be taken for 'securing trustworthiness.' We have, for example, a discussion of the value of oaths (he thinks them valueless), of the advantages and disadvantages of reducing evidence to writing, of interrogating witnesses, and of the publicity or privacy of evidence. Book iii. deals with the 'extraction of evidence.' We have to compare the relative advantages of oral and written evidence, the rules for cross-examining witnesses and for taking evidence as to their character. Book iv. deals with 'pre-appointed evidence,' the cases, that is, in which events are recorded at the time of occurrence with a view to their subsequent use as evidence. We have under this head to consider the formalities which should be required in regard to contracts and wills; and the mode of recording judicial and other official decisions and registering births, deaths, and marriages. In Books v. and vi. we consider two kinds of evidence which is in one way or other of inferior cogency, namely, 'circumstantial evidence,' in which the evidence if accepted still leaves room for a process of more or less doubtful inference; and 'makeshift evidence,' such evidence as must sometimes be accepted for want of the best, of which the most conspicuous instance is 'hearsay evidence.' Book vii. deals with the 'authentication' of evidence. Book viii. is a consideration of the 'technical' system, that namely which was accepted by English lawyers; and finally Book ix. deals with a special point, namely, the exclusion of evidence. Bentham announces at starting[419] that he shall establish 'one theorem' and consider two problems. The problems are: 'what securities can be taken for the truth of evidence?' and 'what rules can be given for estimating the value of evidence?' The 'theorem' is that no evidence should be excluded with the professed intention of obtaining a right decision; though some must be excluded to avoid expense, vexation, and delay. This, therefore, as his most distinct moral, is fully treated in the last book.

Had Bentham confined himself to a pithy statement of his leading doctrines, and confirmed them by a few typical cases, he would have been more effective in a literary sense. His passion for 'codification,' for tabulating and arranging facts in all their complexity, and for applying his doctrine at full length to every case that he can imagine, makes him terribly prolix. On the other hand, this process no doubt strengthened his own conviction and the conviction of his disciples as to the value of his process. Follow this clue of utility throughout the whole labyrinth, see what a clear answer it offers at every point, and you cannot doubt that you are in possession of the true compass for such a navigation. Indeed, it seems to be indisputable that Bentham's arguments are the really relevant and important arguments. How can we decide any of the points which come up for discussion? Should a witness be cross-examined? Should his evidence be recorded? Should a wife be allowed to give evidence against her husband? or the defendant to give evidence about his own case? These and innumerable other points can only be decided by reference to what Bentham understood by 'utility.' This or that arrangement is 'useful' because it enables us to get quickly and easily at the evidence, to take effective securities for its truthfulness, to estimate its relevance and importance, to leave the decision to the most qualified persons, and so forth. These points, again, can only be decided by a careful appeal to experience, and by endeavouring to understand the ordinary play of 'motives' and 'sanctions.' What generally makes a man lie, and how is lying to be made unpleasant? By rigorously fixing our minds at every point on such issues, we find that many questions admit of very plain answers, and are surprised to discover what a mass of obscurity has been dispelled. It is, however, true that although the value of the method can hardly be denied unless we deny the value of all experience and common sense, we may dispute the degree in which it confirms the general principle. Every step seems to Bentham to reflect additional light upon his primary axiom. Yet it is possible to hold that witnesses should be encouraged to speak the truth, and that experience may help us to discover the best means to that end without, therefore, admitting the unique validity of the 'greatest happiness' principle. That principle, so far as true, may be itself a deduction from some higher principle; and no philosopher of any school would deny that 'utility' should be in some way consulted by the legislator.

The book illustrates the next critical point in Bentham's system--the transition from law to politics. He was writing the book at the period when the failure of the Panopticon was calling his attention to the wickedness of George III. and Lord Eldon, and when the English demand for parliamentary reform was reviving and supplying him with a sympathetic audience. Now, in examining the theory of evidence upon the plan described, Bentham found himself at every stage in conflict with the existing system, or rather the existing chaos of unintelligible rules. English lawyers, he discovered, had worked out a system of rules for excluding evidence. Sometimes the cause was pure indolence. 'This man, were I to hear him,' says the English judge, 'would come out with a parcel of lies. It would be a plague to hear him: I have heard enough already; shut the door in his face.'[420] But, as Bentham shows with elaborate detail, a reason for suspecting evidence is not a reason for excluding it. A convicted perjurer gives evidence, and has a pecuniary interest in the result. That is excellent ground for caution; but the fact that the man makes a certain statement may still be a help to the ascertainment of truth. Why should that help be rejected? Bentham scarcely admits of any exception to the general rule of taking any evidence you can get--one exception being the rather curious one of confession to a Catholic priest; secrecy in such cases is on the whole, he thinks, useful. He exposes the confusion implied in an exclusion of evidence because it is not fully trustworthy, which is equivalent to working in the dark because a partial light may deceive. But this is only a part of a whole system of arbitrary, inconsistent, and technical rules worked out by the ingenuity of lawyers. Besides the direct injury they gave endless opportunity for skilful manoeuvring to exclude or admit evidence by adopting different forms of procedure. Rules had been made by judges as they were wanted and precedents established of contradictory tendency and uncertain application. Bentham contrasts the simplicity of the rules deducible from 'utility' with the amazing complexity of the traditional code of technical rules. Under the 'natural' system, that of utility, you have to deal with a quarrel between your servants or children. You send at once for the disputants, confront them, take any relevant evidence, and make up your mind as to the rights of the dispute. In certain cases this 'natural' procedure has been retained, as, for example, in courts-martial, where rapid decision was necessary. Had the technical system prevailed, the country would have been ruined in six weeks.[421] But the exposure of the technical system requires an elaborate display of intricate methods involving at every step vexation, delay, and injustice. Bentham reckons up nineteen separate devices employed by the courts. He describes the elaborate processes which had to be gone through before a hearing could be obtained; the distance of courts from the litigants; the bandying of cases from court to court; the chicaneries about giving notice; the frequent nullification of all that had been done on account of some technical flaw; the unintelligible jargon of Latin and Law-French which veiled the proceedings from the public; the elaborate mysteries of 'special pleading'; the conflict of jurisdictions, and the manufacture of new 'pleas' and new technical rules; the 'entanglement of jurisdictions,' and especially the distinction between law and equity, which had made confusion doubly confounded. English law had become a mere jungle of unintelligible distinctions, contradictions, and cumbrous methods through which no man could find his way without the guidance of the initiated, and in which a long purse and unscrupulous trickery gave the advantage over the poor to the rich, and to the knave over the honest man. One fruitful source of all these evils was the 'judge-made' law, which Bentham henceforth never ceased to denounce. His ideal was a distinct code which, when change was required, should be changed by an avowed and intelligible process. The chaos which had grown up was the natural result of the gradual development of a traditional body of law, in which new cases were met under cover of applying precedents from previous decisions, with the help of reference to the vague body of unwritten or 'common law,' and of legal fictions permitting some non-natural interpretation of the old formulae. It is the judges, he had already said in 1792,[422] 'that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it and then beat him. This is the way you make laws for your dog, and this is the way the judges make laws for you and me.' The 'tyranny of judge-made law' is 'the most all-comprehensive, most grinding, and most crying of all grievances,'[423] and is scarcely less bad than 'priest-made religion.'[424] Legal fictions, according to him, are simply lies. The permission to use them is a 'mendacity licence.' In 'Rome-bred law ... fiction' is a 'wart which here and there disfigures the face of justice. In English law fiction is a syphilis which runs into every vein and carries into every part of the system the principle of rottenness.'[425]

The evils denounced by Bentham were monstrous. The completeness of the exposure was his great merit; and his reputation has suffered, as we are told on competent authority, by the very efficiency of his attack. The worst evils are so much things of the past, that we forget the extent of the evil and the merits of its assailant. Bentham's diagnosis of the evil explains his later attitude. He attributes all the abuses to consciously corrupt motives even where a sufficient explanation can be found in the human stupidity and honest incapacity to look outside of traditional ways of thought. He admits, indeed, the personal purity of English judges. No English judge had ever received a bribe within living memory.[426] But this, he urges, is only because the judges find it more profitable as well as safer to carry out a radically corrupt system. A synonym for 'technical' is 'fee-gathering.' Lawyers of all classes had a common interest in multiplying suits and complicating procedure: and thus a tacit partnership had grown up which he describes as 'Judge and Co.' He gives statistics showing that in the year 1797 five hundred and forty-three out of five hundred and fifty 'writs of error' were 'shams,' or simply vexatious contrivances for delay, and brought a profit to the Chief Justice of over L1400.[427] Lord Eldon was always before him as the typical representative of obstruction and obscurantism. In his _Indications respecting Lord Eldon_ (1825) he goes into details which it must have required some courage to publish. Under Eldon, he says, 'equity has become an instrument of fraud and extortion.'[428] He details the proceedings by which Eldon obtained the sanction of parliament for a system of fee-taking, which he had admitted to be illegal, and which had been denounced by an eminent solicitor as leading to gross corruption. Bentham intimates that the Masters in Chancery were 'swindlers,'[429] and that Eldon was knowingly the protector and sharer of their profits. Romilly, who had called the Court of Chancery 'a disgrace to a civilised nation,' had said that Eldon was the cause of many of the abuses, and could have reformed most of the others. Erskine had declared that if there was a hell, the Court of Chancery was hell.[430] Eldon, as Bentham himself thought, was worse than Jeffreys. Eldon's victims had died a lingering death, and the persecutor had made money out of their sufferings. Jeffreys was openly brutal; while Eldon covered his tyranny under the 'most accomplished indifference.'[431]

Yet Eldon was but the head of a band. Judges, barristers, and solicitors were alike. The most hopeless of reforms would be to raise a 'thorough-paced English lawyer' to the moral level of an average man.[432] To attack legal abuses was to attack a class combined under its chiefs, capable of hoodwinking parliament and suppressing open criticism. The slave-traders whom Wilberforce attacked were comparatively a powerless excrescence. The legal profession was in the closest relations to the monarchy, the aristocracy, and the whole privileged and wealthy class. They were welded into a solid 'ring.' The king, and his ministers who distributed places and pensions; the borough-mongers who sold votes for power; the clergy who looked for bishoprics; the monied men who aspired to rank and power, were all parts of a league. It was easy enough to talk of law reform. Romilly had proposed and even carried a 'reformatiuncle' or two;[433] but to achieve a serious success required not victory in a skirmish or two, not the exposure of some abuse too palpable to be openly defended even by an Eldon, but a prolonged war against an organised army fortified and entrenched in the very heart of the country.

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.