CHAPTER VIII.
Law Reform—Jeremy Bentham—His Opinion of the Common Law—His "Felicity" Principle—His Universal Code—His Works—The Fruits of his Labors—His Talents and Character.
The father of Modern Law Reform was Jeremy Bentham. This singular person has been often sneered at by Americans, who knew nothing of him or his writings, except that he lived somewhere in Europe, and was called "a visionary foreign philosopher" by the North American Review. He was the constant theme of ridicule for a large class of Englishmen, who only cared to know that he was said to be an eccentric old man, who shunned the world, admitted his guests to dine one at a time, wore an uncouth garb, was an abominable sloven, turned wooden bowls on a lathe and run in his garden for exercise, relieved the tedium of study by playing now on a fiddle and then on an organ, heated his house by steam, slept in a sack, looked very much like Ben. Franklin, did not believe in rotten boroughs or rotten creeds, did believe in free trade in corn and money, thought the common law the perfection of absurdity, Lord Eldon's court a libel on equity, and wrote codes for all creation to use in the twenty-ninth century.
Mr. Bentham was one of the most remarkable men that has appeared in our age. He was born in 1747, and was descended from a race of attorneys. At the age of five, the family called him "the philosopher;" at eight he played well on the violin, on which he afterwards became a proficient; and at thirteen went to Oxford, where he excited admiration and wonder by his acute observations, logical skill, and precision of language. When he took his degree, he was esteemed the first reasoner and philosophical critic in the University. He was at Oxford when Wesley and the "Methodists" were expelled, and his generous soul took up arms against this tyranny. This induced him to examine the thirty-nine articles of the Church, one by one; and when it became necessary for him to subscribe them, long was the struggle before Bentham could bring his hand to do it. He has left on record a rebuke of this test, which ought to consign it to universal condemnation. At Oxford, he attended the law lectures of Blackstone, (being the substance of his Commentaries,) and his clear mind detected the fallacies in his reasoning, and his humane and honest spirit revolted at many of his eulogiums on the Common Law of England.
The Bar, to which he was admitted in 1772, opened a brilliant prospect before him. His precise and acute method of drafting equity and law pleadings was much extolled, and his refusal to receive the usual fees excited no less attention. A sharp solicitor swelled a swindling bill of costs in a case in which Bentham had succeeded—he protested—"Quirk" told him it was made up according to the rules, and he would lose caste if he altered it. Bentham was disgusted, resolved to quit the profession, and spend his life in "endeavoring," as he expressed it, "to put an end to the system, rather than profit by it." To the grasping pertinacity of this solicitor, the world is indebted for the sixty years' labor of Jeremy Bentham in the cause of law reform. Soon after this, he published his first work, "A Fragment on Government; being an examination of what is delivered on that subject in Blackstone's Commentaries." He then visited Paris, where he became intimate with Brissot, through whose agency, and without his knowledge, he was subsequently made a citizen of the French Republic, and elected a member of the second National Assembly.
His father died in 1792, leaving him a moderate fortune, which enabled him entirely to abandon his profession, and devote himself to the preparation of those works on Law and Government which have celebrated his name in the Four Quarters of the Globe. During the truce of Amiens, he again visited Paris, accompanied by Sir Samuel Romilly, where he found himself famous. M. Dumont was then publishing his works in French. Of his "Traites de Legislation Civile et Penale," in 3 vols., about 4,000 copies were sold in Paris. At this time, there happened to be three vacancies in the French Institute, one of which was reserved for Bonaparte. Bentham was chosen to fill one of the vacancies. From elective affinity, no less than through the agency of Romilly, he soon after became intimate with the young men, known as "the Edinburgh Reviewers," Brougham, Jeffrey, Smith, Horner, Mackintosh, and their associates, and from that time was the Mentor of that galaxy of talent on the subject of Law Reform.
When Bentham was admitted to the bar, he found the English law, its principles and its practice, entrenched behind the interests of powerful classes, and embedded in the prejudices of all. Though called the perfection of reason, to his penetrating eye it was the offspring of a barbarous age, and, though a noble production for the times that gave it birth, had obtruded into the light of an infinitely milder and more liberal civilization the harsh features which stamped its origin. To him it was the patchwork of fifteen centuries—a chaos of good and evil—an edifice exhibiting the architecture of the ancient Briton, the Gaul, the Goth, the Dane, the Saxon, and the Norman, all jumbled together, and to which, in order to render it tenantable, modern hands had made numerous additions and improvements, till the whole had become a huge, shapeless, and bewildering pile. He saw that it contained masses of material to aid in the erection of a new edifice, adapted to the enlarged wants and cultivated tastes of the present age. And he entered upon the elucidation of his plans for a judicial structure worthy of the noon of the nineteenth century. He was the first man who sat down to the task of exposing the defects of the English law. Heretofore, its students and ministers had been content to sift its principles from a chaotic mass of statutes and decisions, and collect and arrange the perplexing details of its form of procedure. Commencing at the bottom, he worked up through all its ramifications, bringing everything to the test of expediency, and inquiring whether the parts were homogeneous with the whole, and whether the whole was suited to the wants of existing society, and the promotion of human well-being. Probably not intending, when he started, to do more than improve the system by amending it, he soon aimed at its complete reconstruction, branching out into an exhausting discussion of the principles on which all human laws should be based, nor stopping till he had surveyed the nature of Government in its widest relations.
The test-principle of his system may be explained briefly thus: The only proper end of the social union is, the attainment of the maximum of the aggregate of happiness; and the attainment of this maximum of the aggregate of happiness is by the attainment of the maximum of individual happiness. The standard for determining whether a law is right or wrong, is its conduciveness to the maximum of the aggregate of happiness, by conducing to the maximum of individual happiness. This was known in his day, and in ours, as "the greatest-happiness principle," or "the principle of felicity"—which latter term he much preferred to that by which it is more commonly known, "the doctrine of utility." This was the keystone of Bentham's system. With this principle in his hand, he traversed the entire field of legislation, dividing it into two great parts—internal law, and international law. Internal law included the legislation which concerns a single State or community; international, that which regulates the intercourse of different States with each other. His chief attention was devoted to preparing a code of internal law under the Greek name of Pannomion, (the whole law.) This he divided into four parts—the constitutional, the civil, the penal, and the administrative. The constitutional defined the supreme authority, and the mode of executing its will. The civil defined the rights of persons and of property, and was termed the "right-conferring code." The penal defined offenses and their punishments, and was termed "the wrong-repressing code." The administrative defined the mode of executing the whole body of the laws, and was termed "the code of procedure." Some of these codes he run out into details. Others he left unfinished. They all bore the stamp of great research, learning, and symmetry, and were supported by vigorous reasoning, and elucidated by a comprehensive genius. Many a codifier of our day has been indebted, directly or indirectly, to these labors of Jeremy Bentham, to an extent of which he was perhaps not aware.
His system struck at the very root of the English law. Of course, such a "wild enthusiast," such a "reckless innovator," was laughed at, misrepresented, and abused. Not a single tile or crumbling pillar of "the perfection of reason" must be touched. The rubbish that blocked up the avenues leading to it, the dust which choked its passages, must not be removed. Venerable for its age, hallowed as the legacy of our ancestors, the work of wise men and dead men, it must be worshiped at a distance and let alone. All classes deified it, and denounced such as would sneeze at its consecrated dust. The king as he placed the golden round on his anointed head, and the noble as he gazed on his stars and ribbons—the fat bishop as he pocketed his tithes, and the lean dissenter as he paid them—the judge in his scarlet robes, and the barrister in his wig of horsehair—the merchant as he paid his onerous duties to the government, and the yeoman as he liquidated the ruinous rents of his landlord—the clodhopper as he took his shilling for twelve hours of exhausting toil, and the culprit as he hung on a cross-tree for killing the hare which poached on his beans—all, high-born and low-born, patrician and plebeian, rich and poor, wise and foolish, were ready to make oath that the common law of England was the perfection of reason, and to swear at Jeremy Bentham for doubting it. If Bentham had done nothing more than dispel this delusion, he would deserve the thanks of the millions in both hemispheres who submit to the sway of the common law; and this he did most effectually.
Bentham brought to his work reasoning faculties which did not so much probe subjects to the bottom as begin there, and work upwards to their surface—a patience which no amount of drudgery could weary—a taste whose light reading was Bacon and Beccaria—a memory retentive as tablets of brass—a boldness which shrunk from looking no institution in the face, and questioning its pretensions to utility and its claims to homage—an honesty which never averted the eye from conclusions legitimately born of sound premises—a conscience which followed truth wherever it led. Lord Brougham, who knew him intimately, has happily said: "In him were blended, to a degree perhaps unequaled in any other philosopher, the love and appreciation of general principles, with the avidity for minute details; the power of embracing and following out general views, with the capacity for pursuing each one of numberless particular facts." He was an adept in numerous modern languages, as French, Italian, Spanish, and German, and he extended his linguistical knowledge into the Swedish, Russian, and other northern tongues. These acquisitions facilitated his study of the history of all countries and times, with whose philosophy, legislation and jurisprudence he was acquainted beyond most men.
His numerous writings all bore some relation to his "Felicity" principle, and the topics discussed were almost as multifarious as human exigency and action. Including his larger pamphlets, they must number some fifty volumes. They chiefly relate to Government, law, and jurisprudence; but he also wrote extensively on morals, politics, and ecclesiastical establishments. Nor did science wholly escape his searching pen, for he treated of chemistry and anatomy. He wrote against Blackstone's Commentaries, and attacked Burke's plan for economical reform. He wrote on prison discipline and penal colonies, and illustrated the anti-Christian tendency of oaths. He advocated free schools, and denounced church establishments. He attacked rotten boroughs, and drafted plans for work-houses. He vindicated free trade, and showed the impolicy of the usury laws. He prepared a constitutional code to be used by any State, and drew up a reform bill for the House of Commons. He wrote separate volumes or pamphlets on bankruptcy, poor laws, primogeniture, escheats, taxation, jails, Scotch reform, the French judiciary, the criminal code of Spain, juries, evidence, rewards and punishments, oaths, parliamentary law, English reform, education, Church-of-Englandism, &c., &c., &c. He wrote for or offered codes to France, Spain, Greece, Russia, and the South American States—sent a letter to each Governor of the United States, proposing to prepare for them an entire code of laws—was intimate personally or by correspondence with Howard, Lafayette, Wilberforce, the Emperor Alexander, Napoleon, Brissot, Mirabeau, Neckar, Benezet, Franklin, Jefferson, Bolivar, Jean Baptiste Say, Toussaint L'Ouverture, and in fact with most of the men of his times, who were celebrated in any part of the world for their services in the cause of liberty, humanity and reform.
Of course no man, unless endowed with all the wisdom of the ancients and the moderns, could write so much on such a variety of subjects, without committing to paper a good deal of nonsense. Yet he wrote no page but contains some profound thoughts, whilst many of his volumes are replete with wisdom. And if any one mortal man could have written codes for all the nations on earth, that man was Jeremy Bentham.
His defects were partly the result of his peculiar mind, and partly of those idiosyncrasies which germinate in all speculators who mingle little with men and things. Bold and original to a fault, he rather suspected that an old thing was necessarily a bad thing. His exhaustless patience, and fondness for abstractions and theorizing, which grew by what they fed on, led him to carry everything out, out, out, till he sometimes trenched on absurdity or sunk in obscurity. In vulgar phrase, he was prone to "run a thing into the ground." He mixed so little with the world, and had such limited experience in the every-day business of life, that he often forgot that his codes must be executed by and upon mortal men. He lived fifty years in the house immortalized as the dwelling-place of Milton, in the very heart of London; and yet nine-tenths of the inhabitants, about whom he was thinking, and writing, and printing for half a century, never knew that he lived at all. Habits induced by this recluse life, were not improved by his being the head and oracle of a school, whose immoderate puffings, which he must hear, were not counterbalanced by denunciations from without, to which he never listened. He tried to reduce everything to a system, and wrote as if the human mind were a curious little wheel, to be put into a vast engine, which, when regulated according to his system, would run without jarring or friction. He made too little allowance for the individualities, eccentricities, crooked-stickednesses of mankind. But in this he did not differ from many other philosophers—men wiser and better than their generation—men so far beyond and above their times, that they look like dwarfs to their cotemporaries.
Then, he undertook so much that he left a great deal incomplete; so that, in many of his works, while he has finished one side of a subject, he seems not to have touched or seen the other side. His style, especially in his latter years, was rough, involved, uncongenial; often obscure from its very verbosity; and, when clear, fatiguing the reader by so thoroughly exhausting the subject as to leave nothing for him to do but read. He called his style of reasoning "the exhaustive mode," and he crowded it full of crabbed words of his own invention. He wrote many of his works in French, and they were given to the world by Dumont, a Genevan. Hazlitt has wittily said: "His works have been translated into French; they ought to be translated into English." Sydney Smith, when reviewing his "Book of Fallacies," remarks, in his quaint way, "Whether it is necessary there should be a middleman between the cultivator and the possessor, learned economists have doubted; but neither gods, men, nor booksellers, can doubt the necessity of a middleman between Mr. Bentham and the public.* * The mass of readers will choose to become acquainted with him through the medium of Reviews, after that eminent philosopher has been washed, trimmed, shaved, and forced into clean linen."
Bentham invented the words Codify and Codification, now in such general use. But let it not be supposed that he was guilty of the absurdity of imagining that the entire laws of a Commonwealth could be compressed into a single volume; nor of that other absurdity, that the laws can be written so plain that the meanest capacity can understand them fully, and apply them, without mistakes, to all the varieties of human rights and wrongs, and the ever-shifting vagaries and exigencies of society. He never had wit enough to see how it was, that what never could be true in regard to any other science or species of writing, must be true in regard to jurisprudence and legislation. He left that discovery for penny-a-liners, who believe all the law the world needs can be printed between the yellow covers of a twenty-page pamphlet.
Bentham labored without any apparent success at home for years. He was famous in France, and appreciated in Russia, before he was known in England. At length, his reiterated blows made an impression. He won converts in high places, and they became his "middlemen" with the public. Brougham and Smith spread out his great ideas in attractive colors on the pages of the Edinburgh, and they sparkled in brilliant speeches from Romilly and Mackintosh on the floor of Parliament. One after another, the champions for the inviolability of the ancient system were prostrated, till reasonable men admitted that, whether or not Jeremy Bentham was right, the common law was certainly wrong, and must be materially altered. Though he took no part in actual legislation, his was the master mind that set other minds in motion; his genius, the secret spring that operated a vast reformatory machine. He did not live to see his whole system adopted, (and would not, had he lived till the millennium,) but he saw parts of it incorporated into the jurisprudence of his country, whilst other parts were postponed rather than rejected. He saw the fruits of his labors in the amelioration of a sanguinary criminal code, and especially in the abridgment of the death penalty—in the improvement of the poor laws and penitentiaries, and the kindlier treatment of prisoners—in the softening of the harsher features of imprisonment for debt, of the bankrupt laws, and the general law of debtor and creditor—in lopping off some excrescences in chancery, and cutting down costs and simplifying the modes of procedure in other courts—in the abolition of tests, and the emancipation of the Catholics—in the greater freedom of trade, the enlargement of the suffrage, and the partial equalization of representation in Parliament—in the appointment of commissioners to revise the whole mass of statute law, and reduce it to a uniform code—and, more than all, in the conviction, penetrating a multitude of intelligent minds, that a large portion of the English law, as administered, so far from being the perfection of reason, was a disgrace to the human understanding, and the homage paid to it a degrading idolatry.
Nor did he see these fruits in England alone. As he labored for the world, so he saw the products of his toil in both hemispheres. France and Russia published his writings, and they were read in Germany and Switzerland. His works were circulated at Calcutta and the Cape of Good Hope; at New York, and New South Wales; in the Canadas, and the Republics of South America. This country profits by his culture in the simplification of its laws, and their revision and codification in many of its States—in the comparative humanity of its criminal codes and prison discipline—and especially in the recent sweeping reforms in the practice of its courts in three or four States, and the abolition of the monopoly of the legal profession—a monopoly worthless to those whom it protected, and galling to those whom it excluded. By no means do I intend to say, that to him we are solely indebted for these reforms. But his hand planted the tree whose fruit is now being gathered. His chief glory is the emancipation of the Anglo-Saxon mind from a blind idolatry of the English common law; and for this he deserves unmeasured praise.
Mr. Bentham was kind, cheerful, simple-hearted, witty, and greatly beloved by his friends. Frank, so frank that he was bluff, he refused a costly present from the Emperor of Russia, lest he should be tempted to praise when he ought to blame. A great husbander of moments, he took air and exercise while entertaining ordinary visitors; and, when conversing on his favorite themes with such as Romilly and Brougham, kept his secretaries busy in noting down their remarks. The ridicule and abuse of which he was the subject rarely reached its aim, for he avoided personal controversies, discussing principles, and not men. He died in 1832, in the 85th year of his age; and gave a singular evidence of his attachment to his principles, by bequeathing his body to the surgeon's knife, for the advancement of medical science.