So, again, when Mr Bentham comes to the discussion of “International Law,” after pointing out, very properly, that whereas internal laws have always a super-ordinate authority to enforce them, “that when nations fall into disputes there is no such super-ordinate impartial authority to bind them to conformity with any fixed rules,” Mr Bentham goes on to say, “though there is no distinct official authority capable of enforcing right principles of international law, there is a power bearing with more or less influence on the conduct of all nations, as of all individuals, however transcendently potent they may be, this is the power of public opinion.” Public opinion! not then of public opinion threatening coercion, for in that case we should have “a super-ordinate impartial authority binding to conformity with fixed rules,” but public opinion as a moral expression. If, however, you take from it the expression of right and wrong, of natural justice, and of the eternal and immutable law; if its expression is not reprobation, and, so to speak, a fore-judgment of the retribution of the Most High, but only dissatisfaction or the mere pronouncement of the inutility of the action, whatever it may be, what even with Benthamites can be its efficacy and worth? The vanquished say to their conqueror, the multitudes to their oppressor, this oppression is not according to utility. Utility! he replies, useful to whom? To you! Fancy the look of Prince Bismarck as he would reply to such an address. What are men if you take away the notion of right and wrong but “the flies of a summer?” How different was the expression of Napoleon after his ill-usage of Pius VII., “J’ai frissonè les nations.” Napoleon had a conscience,[11] and in his moments of calm reflection felt in its full force the reprobation of mankind.
When Bentham, still speaking of public opinion, adds:—
“The power in question has, it is true, various degrees of influence. The strong are better able to put it at defiance than the weak. Countries which, being the most populous, are likely also to be the strongest, carry a certain support of public opinion with all their acts whatever they may be. But still it is the only power which can be moved to good purposes in this case; and, however high some may appear to be above it, there are in reality none who are not more or less subject to its influence.”
Here Bentham is again in imagination gathering men together like the flies of a summer,—the force of their opinion depending on their numbers. But what, again, is the force of all this buzzing if it is the mere expression of “pleasure,” or “pain,” of satisfaction or dissatisfaction in the masses? Conquerors may not always be relentless, they may at times exhibit some sympathy with their fellow men; but as a rule they are so dominated by some one idea or passion, or at best are so absorbed in the interests of their own people, as to be deaf to such appeals. Prince Bismarck’s sentiments towards France during the late war are pretty well known; but it is said that after the conflict was over, and when France was in the throes of its terrible internecine conflict, he was asked, “What is your Excellency’s opinion of the present state of France?” he replied, “Das ist mit ganz wurst,” which is equivalent to “I don’t care two straws about it.”[12] How are men of this stamp to be affected by any exclamations of pleasure or pain? If on the contrary it is the voice of reprobation which they hear, and if in their case the saying “vox populi vox Dei” is felt to have its full application, there is then a public opinion expressed which is calculated to strike the conscience and inspire terror, and that is quite another matter.
De Tocqueville, from his own point of view, puts the argument in favour of natural justice very forcibly, and in a certain construction would express the identical truth for which I contend.
“I hold it to be an impious and an execrable maxim that, politically speaking, a people has a right to do whatever it pleases; and yet I have asserted that all authority originates in the will of the majority. Am I, then, in contradiction with myself? A general law which bears the name of Justice has been made and sanctioned, not only by a majority of this or that people, but by a majority of mankind. The rights of every people are consequently confined within the limits of what is just. A nation may be considered in the light of a jury which is empowered to represent society at large, and to apply the great general law of justice. Ought such a jury, which represents society, to have more power than the society in which the laws it applies originate.”—M. de Tocqueville’s “Democracy in America”, ii. 151.
Although M. de Tocqueville’s view does not go to the full length of the argument, still, regarded in this light, the voice of the majority of mankind, or of any large masses of mankind, has a very different significance from what it bears in the writings of Bentham.
Let us now consider the doctrines of Bentham in their more recent exposition.
The Pall Mall Gazette, Oct. 6, 1870, says:—
“Laws have been described as definitions of pre-existing rights, relations between man and man, reflections of divine ordinances, anything but what they really are,—forms of organised constraint. It says little for the assumed clear-headedness of Englishmen, that they have very generally preferred the ornate jargon of Hooker, to the accurate and intelligible account of law and government which forms the basis of Bentham’s juridical system.”