Chapter XV: Bentham. 1749-1832

This great legal reformer was educated at Westminster, and at the age of thirteen proceeded to Queen’s College, Oxford. At the age of sixteen he took his first degree in Arts. The mental uneasiness with which he signed the obligatory test of the “Thirty-nine Articles” he vividly recorded in after years. At the Bar, which he soon afterwards entered, his prospects were unusually promising; but unable to reconcile his standard of ethics with the recognised morality of the Profession, he soon withdrew from it. His first publication,--_A Fragment on Government_, 1776--which appeared without his name, was assigned to some of the most distinguished men of the day. His next, and principal work, was his _Introduction to the Principles of Morals and Legislation_ (1780), not published until 1789. At this period he travelled extensively in the East of Europe. _Panopticon: or the Inspection-House_ (on prison discipline), appeared in 1791. The _Book of Fallacies_ (reviewed by Sidney Smith, in the _Edinburgh_), in which the “wisdom of our ancestors” delusion was, mercilessly exposed (1824), is the best known, and is the most lively of all his writings. _Rationale of Judicial Procedure_, and the _Constitutional Code_, are those which have had most influence in effecting legislative and judicial reform.

Bentham stands in the front rank of legal reformers; and as a fearless and consistent opponent of the iniquities of the English Criminal Law, in particular, he has deserved the gratitude and respect of all thoughtful minds. Yet, during some sixty years, he was constantly held up to obloquy and ridicule by the enemies of Reform, in the Press and on the Platform; and his name was a sort of synonym for _utopianism_, and revolutionary doctrine. In his own country his writings were long in little esteem; but elsewhere, and in France especially, by the interpretation of Dumont, his opinions had a wider dissemination. In _Morals_, the foundation of his teaching is the principle of the greatest Happiness of the Greatest Number; that other things are good or evil in proportion as they advance or oppose the general Happiness, which ought to be the end of all morals and legislation.

Not the least of his merits as a moralist is his assertion of the rights of other animals than man to the protection of Law, and his protest against the culpable selfishness of the lawmakers in wholly abandoning them to the capricious cruelty of their human tyrants. The most eminent of the disciples of Bentham, John Stuart Mill (who found himself forced to defend the teaching of his master, in this respect, against the sneers of Whately, Archbishop of Dublin, and others), repeats this protest, and declares that--

“The reasons for legal intervention in favour of children apply not
less strongly to the case of those unfortunate slaves and victims
of the most brutal part of mankind, the lower animals. It is by
the grossest misunderstanding of the principles of Liberty, that
the infliction of exemplary punishment on ruffianism practised
towards these defenceless beings has been treated as a meddling by
Government with things beyond its province--an interference with
domestic life. The domestic life of domestic tyrants is one of the
things which it _is the most imperative on the Law to interfere
with_. And it is to be regretted that metaphysical scruples,
respecting the nature and source of the authority of governments,
should induce many warm supporters of laws against cruelty to
the lower animals to seek for justification of such laws in the
incidental consequences of the indulgence of ferocious habits
to the interest of human beings, _rather than in the intrinsic
merits of the thing itself_. What it would be the duty of a human
being, possessed of the requisite physical strength, to prevent by
force, if attempted in his presence, it cannot be less incumbent
on society generally to repress. The existing laws of England are
chiefly defective in the trifling--often almost nominal--maximum
to which the penalty, even in the worst cases, is limited.”
(_Principles of Political Economy_, ed. 1873.)

The observations both of Bentham and of Mill upon this subject, slighted though they are, are pregnant with consequences. It is thus that the former authority expresses his opinion:--

“What other agents are those who, at the same time that they
are under the influence of man’s direction, are susceptible of
Happiness? They are of two sorts: (1) Other Human beings, who
are styled _Persons_. (2) Other Animals who, on account of their
interests having been neglected by the insensibility of the ancient
Jurists, stand degraded into the class of _Things_. Under the
Gentoo and Mahometan religions, the interests of the rest of the
animal kingdom seem to have met with _some_ attention. Why have
they not, universally, with as much as those of human beings,
allowance made for the differences in point of sensibility?
_Because the Laws that are have been the work of mutual fear_--a
sentiment which the less rational animals have not had the same
means, as men have, of turning to account. Why _ought_ they not [to
have the same allowance made]? No reason can be given....

“The day has been (and it is not yet past) in which the greater
part of the Species, under the denomination of _Slaves_, have been
treated by the Laws exactly upon the same footing--as in England,
for example, the inferior races of beings are still. The day _may_
come, when other Animals may obtain those rights _which never could
have been withholden from them but by the hand of Tyranny_. The
French have already (1790) recognised that the blackness of the
skin is no reason why a human being should be abandoned, without
redress, to the caprice of a tormentor.

“It may come one day to be recognised that the number of the legs,
the villosity of the skin, or the termination of the _os sacrum_,
are reasons equally insufficient for abandoning a sensitive being
to the same fate. What else is it should fix the insuperable
line? Is it the faculty of reason, or, perhaps, the faculty of
discourse? But a full-grown Horse or Dog is, beyond comparison, a
more rational, as well as more conversable animal, than an infant
of a day, or a week, or even of a month old. But suppose the case
were otherwise, what would it avail? The question is not, can they
reason? Nor is it, can they talk? But, _can they suffer_?”[315]