Front Page Titles (by Subject) VII.: ANGLO-AMERICAN UNITED STATES. - The Works of Jeremy Bentham, vol. 4
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VII.: ANGLO-AMERICAN UNITED STATES. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 4 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 4.
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ANGLO-AMERICAN UNITED STATES.
Governor Plumer’s Letter to Mr. Bentham, announcing the intended communication of his offer to the Legislature of New Hampshire.
New Hampshire, Epping, October 2, 1817.
A few days since I received a note from my much esteemed friend the Hon. Mr. Adams, now Secretary of State, accompanied with your “Panopticon,” and “Papers relating to Codification;” in the last of which, with a generosity truly honourable not only to you as an individual, but to man in general, you gratuitously propose to devote your time and talents in drawing a code of laws for any State who shall require it, both civil and criminal, to supersede the unwritten law.
I have long considered such a work as a great desideratum in legislation—and that it would, in a great measure, not only correct the numerous errors and gross absurdities, but destroy the great uncertainty of what is called the common law, and render our government, more emphatically, what it has with so little propriety boasted of—a government not of men but of laws. How far it is practicable to establish such a system in New Hampshire, I cannot determine. We have not only a host of prejudices to encounter, but the interests of a body of lawyers, many of whom here, as in all other countries, dread reform, fearing it would diminish their individual profits. Public good is too often sacrificed to private interest. When will the individual learn, that his private interest is most effectually promoted, by permanently securing that of the public?
The Legislature of this State usually hold annually but one short session, and that in June. At their next session, I will, if I live, communicate your “Papers” to our legislature; and I hope they will receive that candid consideration which their high merit demands.
My continuance in office depends on annual elections—and the authority vested in me is restricted. I have no power, as chief magistrate of the State, to request you to draw a code of laws for this State; but, whether I continue in office, or return to private life, whatever communications you may hereafter please to make to me on that subject, I will find means of transmitting to our legislature; and will do everything in my power to effect a thorough investigation of them.
Persevere, my dear Sir, in the great and important work in which you are so disinterestedly engaged. The world, if not now, at some future period, will profit by your labours—and though immediate success may not follow, you yourself will enjoy the noble consciousness of having faithfully served the best interests of society—and a rational prospect that sound principles will eventually prevail.
Should you wish a copy of the laws of New Hampshire, if you will intimate it to me, I will take effectual care to forward them to you.
Be pleased to accept copies of my three last public communications to our legislature—and an address to the clergy of New England, which I wrote during our late war with your nation. These small pamphlets I inclose under the same envelope with this letter.
Accept my grateful acknowledgments for your communications—and believe me to be, with much respect and esteem, Sir, your most obedient humble servant,
Extract from a private Letter to Mr. Bentham, from a distinguished Functionary in the United States, Member of the House of Representatives in his State, and Delegate therefrom to Congress, informing him, how, by the Governor of New Hampshire, Mr. Bentham’s above-mentioned offer had been recommended to the consideration of the House of Representatives; and stating the influence of the fraternity of Lawyers as the cause of the reluctance in the several States as to the acceptance of any such offer: stating, moreover, the adoption which at that time had been given to divers of Mr. Bentham’s ideas in several of the States.—(N. B. Those of Mr. Bentham’s works which were edited by Mr. Dumont, being in French, were not at that time known to the writer, and had scarcely found their way into the United States. October 2, 1818.)
The letter, which the governor of New Hampshire wrote you about a year since, having been published in England, was copied into the newspapers of that state, a short time before the meeting of the legislature, accompanied with many very foolish and absurd remarks, in which your character and designs were ridiculed, and your proposed system of laws abused and misrepresented, in a style and manner not much unlike that which a little earlier appeared in the Quarterly Review of your “Plan of Parliamentary Reform.” It is hardly necessary to add, that the governor came in for a full share of the censure heaped upon you for the approbation which his letter contained of your proposed work. You will perceive, however, from his message at the commencement of the session, that he was not prevented by this circumstance from bringing your proposal fairly before the legislature.
To give it a better chance of success, a son of his, who is a member, at the same time caused the greater part of an article on this subject, in a late Edinburgh Review, to be republished in the leading republican newspaper of that state, and to be put into the hands of the members of the legislature. When, however, that part of the message was taken up in the house of representatives, on report of a committee it appeared, that, except that gentleman, all the lawyers of both parties (twelve or fifteen, the most influential members of the house) were decidedly opposed to passing any other resolve on the subject than a general one—that it was inexpedient to accept your proposal.
Of the members of the bar who were thus unfriendly to this design, some were no doubt influenced by a belief (not unnatural with those who have made the common law their study during life, and who for twenty years have heard and repeated its eulogium, as the perfection of human reason, without once suspecting that it admitted of any improvement) that little or no alteration was necessary, and least of all, so entire and radical a change as that proposed by you. To those somewhat advanced in years, the thought of commencing a new system, and of becoming learners when they had been long accustomed to teach, was an idea certainly not very pleasant, and one which they did not choose to adopt, for the uncertain prospect which it presented to their minds of some remote and doubtful advantage to the community. Others were perhaps swayed by the persuasion, that the new system would prove injurious to the profession, by rendering the law more clear and explicit, and thus diminishing the profits which are at present derived from its uncertainty and obscurity. From these, or other motives, they pronounced the project visionary, impracticable, unnecessary—unworthy of attention, because presented by a person who must be ignorant of our situation, and unacquainted with our wants;—with many other similar objections, all addressed to the ignorance, the prejudices, and the pride, of men whose sober judgment was prevented, by every artifice, from applying itself to this important subject with candour and impartiality. While, therefore, those who were supposed to know the most in relation to our legal establishments and the means of their improvement, were all opposed to the introduction of a new system, and those who were willing to give it a fair trial were in general but little acquainted with its merits,—you will readily perceive the disadvantages under which it laboured. It was not indeed difficult, in my opinion at least, to return satisfactory answers to all these objections. But you have, I think, yourself remarked, that it is not always by the most rational arguments that the strongest impression is made. The motives, therefore, which I have mentioned, with others of a like nature, added to the novelty of the subject and the pressure of other business, induced the house finally to accept the report of their committee, which was, that the further consideration of this subject be postponed to the next session of the legislature, which is in June 1819. Your proposition was therefore, strictly speaking, neither adopted nor rejected, but postponed. It will next June be reported among the unfinished business of the last session. Whether anything further will be at that time effected, I am unable to say, but I am afraid there is very little hopes of any favourable result.
I have taken some pains to ascertain whether your proposal has met with a more just reception in any other of the United States; but I am inclined to think that it has not. I do not find it mentioned in the speeches or messages of any of the governors to the several state legislatures which I have seen.
Under these circumstances, permit me, with deference, to suggest the following views for your consideration:—
What may be called the philosophy of law—that is, the general principles of civil and criminal jurisprudence, founded on the broad basis of utility, and adapted to the wants of a civilized and enlightened people, engaged in the ordinary pursuits of agriculture, manufactures, and commerce—has never yet, so far as I am acquainted with books, been justly and correctly treated, in all its bearings, and in the amplitude of its details, by any author who has written upon the subject of law. We have indeed systems of the Roman law, of the Feudal law, and of the English law, and other national systems: and Montesquieu has given us “L’Esprit des Loix”—an excellent title, and in truth an excellent book, but not exactly such a one as I wish to see written. We still want a work, unfolding the true principles of law in the abstract, as derived from the nature of man, and the necessary structure of society—the beau-ideal of law, such as it never yet has been in any state, such as it never will be, but such as every state ought, as near as possible, in its own case, to make it. We have now no general standard of legal perfection, in all its various branches—no model of acknowledged excellence, with which to compare our different systems. You, Sir, are eminently qualified to provide such a model, to raise such a standard, to mark out the boundaries, and prescribe the form of a truly wise and enlightened system of jurisprudence. You have expended a vast fund of original thought, and devoted years of patient examination to every part of this extensive subject. Permit me, then, to request, that you would enrich the public with the important results of these laborious studies.
Two modes occur to me as the only ones in which this service could be rendered to mankind. The first is—by the publication of a work in the didactic form, in which the general principles of law should be unfolded and explained—as, for example, those of political economy are, in Smith’s Wealth of Nations. Perhaps this has already been done in your “Introduction to the Principles of Morals and Legislation,” or in the works published from your papers by M. Dumont. I have sent to London for these books, but have not yet obtained them.
The second mode of communicating to the public the result of your labours in jurisprudence—a measure not inconsistent with the former—would be to publish a complete code of laws drawn up in terminis:—a Pannomion—founded upon correct principles, and extending, if such a thing be possible, so as to embrace the whole mass of human transactions, cognizable by human laws. In such a work you would be at no pains to accommodate your enactments to what is already law in Europe or in America,—but to what ought to be law in the most improved state of society—to the true principles of general utility, on which alone all just legislation rests. Yet, supposing such a work once completed, and further, that each of its provisions was in itself the best that could possibly be imagined, it would still be doubtful, whether any state or nation could be found to whose circumstances it would exactly apply: and it is, I think, very certain—such is the temper of deliberative assemblies—that there is no state which would at once, and by a single act, adopt all its provisions. But, if executed with half the ability which you would bring to the undertaking, an immense advantage would result to mankind from the publication of such a work. A standard would thenceforth exist, by which we in the United States, at least, might estimate the true value of our legal systems, improve them where they admitted of improvement, reject such parts as are injurious or imperfect, and incorporate such new principles, or new applications of old principles, as are suited to our situation; and in a word, perfect our legal, as we have endeavoured to do our political establishments, by calling to our aid the wisdom and the philosophy, the speculations and the experience, of all ages and of all countries. The utility of such a work would be acknowledged in every part of the civilized world, because in every country the improvement of the law is an object of primary and permanent importance. Instead, then, of waiting for the previous sanction of some legislative body, if you were to publish your proposed code of laws, as soon as it is completed, or such parts of it as admit of being separately exhibited, there is very little doubt, that the beneficial effects which you anticipate from its entire adoption would in a very considerable degree be ultimately obtained.
The influence of your writings has already been extensively felt in the United States. Your work on usury has passed through several editions in this country; and its principles begin to be pretty generally adopted by men of enlarged views and liberal minds amongst us. In the constitution of the new State of Mississippi, which was formed in 1817, it is provided that the legislature of that state shall “pass no law impairing the obligation of contracts, prior to 1821, on account of the rate of interest, fairly agreed on in writing, between the contracting parties, for a bona fide loan of money; but they shall have power to regulate the rate of interest, where no special contract exists in relation thereto.” This provision of the constitution of Mississippi, being limited to four years, was no doubt intended as an experiment; but, having once felt the advantages of unrestrained liberty, and a free competition in this branch of trade, there is little danger of a return to the absurd restrictions which prevail in other States of the Union.
In the Alabama territory, an act has this year been passed, repealing all the laws against usury, and allowing the parties in all cases to fix their own rate of interest.
A similar law, introduced by Mr. Hayes in the Virginia house of delegates, was rejected by a majority of six or eight votes only, out of two or three hundred.
In New Hampshire, the same subject was agitated in the house of representatives, at their last session; but they are not yet prepared to renounce their old prejudices.
On the subject of state prisons, or penitentiaries, many of your suggestions have also been reduced to practice, though no building has, I believe, been erected on the plan of the panopticon in any of the states. The contract-principle, so strongly recommended by you, has been adopted, with great advantage, though not to its full extent, in some of our state prisons.*
*∗* For other testimonials from the United States, also from Russia and Poland, see List of Testimonials in Contents, Nos. X. XI. and XII.
[* ]The following paper exhibits the proportion, between the number of lawyers, and the number of men of all other professions, in the Congress of the Anglo-American United States, anno 1820. It is an exact reprint of a slip of printed paper, sent without explanation, to Mr. Bentham, by a diplomatic functionary:—
“CONGRESSIONAL ‘COMPOSITION.’ “A Statement of the Professions of the Members of the present Congress, made out by a Member.
“In House of Representatives.—100 lawyers; 13 physicians; 62 planters and farmers: 9 merchants; and 2 mechanics.
“188 Representatives, 2 Delegates, 44 Senators. Whole number of Members of Congress, 233. From New England and New York, in the house of representatives, 40 lawyers. Whole number of representatives from do. 68: deduct lawyers, 40; other professions, 28.”—(Western Journal.)