Front Page Titles (by Subject) 15.: JOHN FORREST DILLON, BENTHAM'S INFLUENCE IN THE REFORMS OF THE NINETEENTH CENTURY 1 - Select Essays in Anglo-American Legal History, vol. 1
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15.: JOHN FORREST DILLON, BENTHAM’S INFLUENCE IN THE REFORMS OF THE NINETEENTH CENTURY 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 1 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1907). Vol. 1.
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BENTHAM’S INFLUENCE IN THE REFORMS OF THE NINETEENTH CENTURY1
“BENTHAM’S theories upon legal subjects have had a degree of practical influence upon the legislation of his own and various other countries comparable only to those of Adam Smith and his successors upon commerce.” Such is the opinion of Sir James Stephen concerning the influence and effect of Bentham’s legal writings and labors.3 As late as 1874 Sir Henry Maine went so far as to declare: “I do not know a single law reform effected since Bentham’s day which cannot be traced to his influence; but a still more startling proof of the clearing of the brain produced by this system [the system of Hobbes, Bentham, and Austin], even in an earlier stage, may be found in Hobbes. In his ‘Dialogue of the Common Laws,’ he argues for a fusion of law and equity, a registration of titles to land, and a systematic penal code,—three measures which we are on the eve of seeing carried out at this moment.”4 Opposite views are entertained by others. It is worth while, therefore, to essay to define Bentham’s place in the history of our law, and to attempt an estimate of the character and influence of his writings; and such is the purpose of this hour. Bentham’s fertile and active mind embraced in the scope of its operations many other subjects than those of law and legislation, such as ethics, political economy, political reform, and even practical politics. Nevertheless, his principal attention was given to the English law and to the mode by which its improvement could best be effected; and this lecture will be restricted to his writings and labors concerning English law and the method of reforming or amending it.
It is essential to a correct view of the character and value of Bentham’s labors to bear in mind the period of time covered thereby, and also the condition of the English law especially as it existed when his efforts for its improvement were begun.1 Jeremy Bentham was born in London in 1748. In 1763, at the early age of sixteen, he was graduated with honors at Oxford. He was in due time called to the English bar. His first work, the Fragment on Government, being a criticism on a portion of Blackstone’s Commentaries, was published (anonymously) in 1776; his attack on Usury Laws in 1787; his Panopticon in 1791; his protest against Law Taxes in 1796; his great work (Dumont’s Edition, in Paris) on Legislation, Civil and Criminal, in 1802; on Codification in 1817; on Rewards and Punishments (Dumont’s Edition) in 1818; on Judicial Evidence, in Paris, in 1823, English translation thereof in 1825, and from original English manuscripts, edited by John Stuart Mill, in 1827. I omit in this enumeration, as not essential to my present purpose, some minor works concerning law or legislation, and many important writings relating to education, prison discipline, political reforms, morals, and kindred subjects.
Bentham was, broadly speaking, contemporary with what may be styled the legal reign of Eldon. The common law in its substance and procedure was by everybody in England regarded with a veneration superstitious to the verge of idolatry. It was declared, and generally believed to be, “the perfection of reason.” Lord Eldon and the Court of Chancery, with its suitorcide delays, “pressed heavily on mankind.” Imprisonment for debt, and distress for rent with all its harsh and oppressive incidents, were in unabated force. The criminal law, defective and excessively technical, abounding with capricious and cruel punishments, and which denounced the penalty of death on about two hundred offences, remained in a state which no one any longer hesitates to pronounce outrageous and shocking.1 It was on this system that Bentham, when he was under thirty years of age, solitary and alone, commenced the attack which he incessantly continued until his death in 1832, at the age of eighty-four. He was a multiform man; but it is as a law reformer that he stands the most conspicuous and pre-eminent. He had all the personal qualities of a reformer,—deep-hearted sincerity, unbounded faith in his own powers and self-sufficiency, unwearied zeal, and dauntless moral courage.2
One who should not bear in mind the peculiar aversion of the English people to innovation, the inveterate conservatism of the bar, and the awe and reverence with which they regarded the existing system, might suppose that the work of amendment would readily follow when the defects were pointed out. But Bentham’s voice for nearly fifty years, so far as England was concerned, was like that of one crying in the wilderness. Parliament did not heed it; the bar did not heed it; nobody heeded it. For quite twenty-five years he seems to have had no following beyond Mill, senior, and a few other personal friends. Happily for him he had a competence and was able to give his days and nights to the work to which he had resolved to consecrate his life. Happily, perhaps, also, he had no domestic cares or distractions, being without wife or children. Bowring preserves an affecting letter from which it appears that at one time in his earlier life a lady had engaged his affections and rejected his proposals. In a letter written long, long years afterwards to the lady herself, the Recluse says: “I am alive, more than two months advanced in my eightieth year,—more lively than when you presented me in ceremony with the flower in Green Lane. Since that day not a single one has passed in which you have not engrossed more of my thoughts than I could have wished.” He concludes: “I have a ring with some snow-white hair in it and my profile, which everybody says is like; at my death you will have such another;” and then playfully, perhaps pathetically, adds, “Should you come to want, it will be worth a good sovereign to you.”
There is in this a genuine touch of nature! Alike in peasant, prince, poet, and philosopher, the human heart, once truly touched by love, becomes thence like the ocean,—restless and insurgent evermore. Amid all his engrossing pursuits, in which he wholly shut himself out from society, and indeed from every person but a few friends whom he would occasionally meet when the toil of the day was over, the vision and the memory of the giver of the flower in Green Lane, pushing aside for the while Codes, Panopticons, Chrestomathias, Pannomions, and all such, were, he confesses, present to him every day. But although “along the plains, where Passionate Discord rears eternal Babel, the holy stream of wedded happiness glides on,” it glided not on for him, but passed him by irreversibly. One so thoroughly absorbed in work which he regarded as so pressing and so important to the world, would have made, it is to be feared, a poor husband, just in proportion as he was a devoted philosopher. Doubtless she judged wisely. It was well for her, and perhaps well for him, that he never saluted the woman who gave him the flower in Green Lane with the tender and sacred name of wife.
In forming a judgment of Bentham’s work and of the way he did it and of the efficiency of that way, it is almost as essential to see how he regarded the English law as it is to inquire precisely how far his opinions were correct. Bentham’s voluminous writings leave no doubt as to his views concerning English law. There was no health in it. Admitting, as he did, that the legislative enactments and the reports of adjudged cases contained more valuable materials for the construction of a system of laws than any other nation in the world possessed,1 he yet maintained that the existing law, so far from being the perfection of human reason or the product of matured experience, was (to use his own language) but “a fathomless and boundless chaos, made up of fiction, tautology, technicality, and inconsistency, and the administrative part of it a system of exquisitely contrived chicanery, which maximizes delay and denial of justice.” Thus viewing it, he saw no remedy but its overthrow and destruction as a system, and rebuilding it anew, using old materials as far as they were useful and no farther. He regarded the whole system, as I have often thought, with much the same feeling that the French people contemporaneously looked upon the Bastille, as a monument of feudalism, oppression, and injustice, fit only to be destroyed. Blackstone, on the other hand, viewing the system with the optimistic eyes of the age in which he wrote, compared it, in his inimitable style, to “an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls are magnificent and venerable, but useless, and therefore neglected. The inferior apartments, now accommodated to daily use, are cheerful and commodious, though their approaches may be winding and difficult.”1 What could be more charming, what more desirable! All the interest and grandeur that attach to a structure at once imposing, venerable, and historic, combined with the convenience that results from its being already fitted to the amplest modern uses,—the only defect being, if, indeed, it is such, that the approaches may be (he does not feel quite sure that they are) somewhat winding and difficult.
Bentham’s claims upon our regard will not be duly valued unless we keep ever in mind the difficulties which he was called upon to face. He stood alone. For more than twenty-five years he stood absolutely alone. But like Milton (whose London house it was Bentham’s pride to own, although it was one of his peculiarities that he utterly disesteemed poetry),—like Milton in his blindness, through all neglect and discouragements, Bentham “bated not a jot of heart or hope, but still bore up and steered right onward.”
I have not the time, if I had the power, adequately to present a picture of the obstacles Bentham met with. And yet I must not pass these entirely over, as they are the background of any portraiture of the man and his work. There was the traditional, constitutional, ingrained aversion of the English people to innovation, combined with their idolatrous regard for the existing order of things.2 It is worth while to illustrate this. Burke was undoubtedly the most enlightened statesman of his age,—one of the profoundest political thinkers and philosophers of any age. In one of his greatest speeches3 he thus expressed in his felicitous way the traditional and habitual regard of the English mind for the established Constitution and for ancient acts of Parliament:—
“I do not dare to rub off a particle of the venerable rust that rather adorns and preserves than destroys the metal. It would be a profanation to touch with a tool the stones. I would not violate with modern polish the ingenuous and noble roughness of these truly constitutional materials. Tampering is the odious vice of restless and unstable minds. I put my foot in the tracks of our forefathers, where I can neither wander nor stumble. What the law has said, I say. In all things else I am silent. I have no organ but for her words. If this be not ingenious, I am sure it is safe.”
Again, in 1791, speaking of the English Constitution, Burke says:—
“We ought to understand this admired Constitution (of England) according to our measure, combining admiration with knowledge if we can, and to venerate even where we are not able presently to comprehend.”1
Than this nothing can be more opposed to Bentham’s mode of thought, since he would take nothing for granted, and would not, he said, admit murder or arson or any other act to be wrong unless it could be shown by reasoning to be so. I find in Henry Crabb Robinson’s Diary2 another contemporary illustration of the difficulty of attacking things established, so pertinent that it will excuse its irreverence. He relates that in 1788 a deputation of distinguished men waited on Lord Chancellor Thurlow to secure his support in their attempt to obtain the repeal of the Corporation and Test Act. The Chancellor received them very civilly, and then said: “Gentlemen, I’m against you, by G—. I am for the Established Church, d—me! Not that I have any more regard for the Established Church than for any other church, but because it is established. And if you can get your d—d religion established, I’ll be for that too!” This national peculiarity, as well as the natural conservatism of the bar, had been greatly intensified by the French Revolution. As late as 1808 Sir Samuel Romilly, speaking of his own parliamentary labors and discouraging experience, says: “If any person be desirous of having an adequate idea of the mischievous effects which have been produced in this country by the French Revolution and all its attendant horrors, he should attempt some legislative reform on humane and liberal principles. He will then find, not only what a stupid dread of innovation, but what a savage spirit it has infused into the minds of many of his countrymen.”1
Eldon was for a quarter of a century Lord Chancellor. It is certain that he never originated a reform act; and if he ever favored an act which could be fairly said to have been intended to amend the law, I do not recall it. It was difficult and almost impossible to pass any act which Eldon disapproved. He considered the existing system as perfect; or if not, that if the least innovation were favored or allowed no one could tell where it would stop, and therefore the true course was to destroy all innovation in the egg. He was “accused by Bentham of nipping in the bud the spread of improvement over the habitable globe.”2 And yet I love old Eldon. He could not help his impenetrable and incorrigible conservatism. He was sincere and immovable in his sincerity. If he was true to his party and “never ratted,” he was also true to his heart and conscience and sense of duty. No breath of suspicion ever rested upon him or the absolute purity of his court. What a great advance had been made from the time of Bacon to the time of Eldon. Eldon had, moreover, the qualities of a great judge. He loved right. He hated wrong. He appreciated arguments of counsel and freely heard them. He was deeply learned in his profession. His judgment was sure-footed. His love of justice was so great, his sense of the fearful responsibility attaching to the exercise of judicial power so keen, that he habitually hesitated and doubted; but his doubts and hesitations all had their origin in the dread of doing injustice, and a noble anxiety to know and to do the right. If he vigorously resisted amendment or change in our law, he as vigorously protected and conserved existing excellences and merits. Again I say I love old Eldon! With all his ultra-conservatism and dubitations,—his only defects,—I love his sturdy, genuine, honest nature. I have said this that you might not conceive an undue bias against Eldon from what Sydney Smith, Bentham and other Whigs have said of him and his court.
The libel laws even were in Bentham’s way. Not to mention other instances, as late as 1811 there was difficulty in obtaining a publisher for the “Introduction to the Rationale of Evidence.” More than one bookseller declined, giving as a reason that the book was libellous. The “Elements of the Art of Packing,” which lay six years printed but unpublished, had alarmed the “trade,” and it never was fully published until after Bentham’s death. But Bentham kept right on. At length he began to attract the attention of a few gifted minds. One of the earliest of these was Sir Samuel Romilly, who of all English lawyers is, as I think, the one that nearest approaches a perfect model.1
Romilly excepted, no persons in England of distinction or official influence acknowledged adhesion to Bentham’s doctrines until the early part of the present century. Among the most eminent of these was Mill, senior, the father of the still more eminent John Stuart Mill. Mill, the father, and his family were for years members of Bentham’s household; and Mill was one of the ablest exponents and advocates of Bentham’s doctrines. Afterwards came Bickersteth (subsequently Lord Langdale, Master of the Rolls), who was the well-beloved disciple; for not long before the master’s death he received his benediction in these words: “Of all my friends, Bickersteth was the most cordial to law reform to its utmost extent.” Then came Brougham and Sir James Mackintosh, and at a later period others. Romilly, Langdale, Brougham, and Mackintosh each held seats in Parliament; and their efforts for the reform of the laws, civil and criminal, and the slow, tedious, and piecemeal process by which such reforms were accomplished, are known to history, and need not be related here, even if time there were. Lord Brougham thus excellently states the grounds of Bentham’s title to distinction and to our regard:
“The age of law reform and the age of Jeremy Bentham are one and the same. No one before him had ever seriously thought of exposing the defects in our English system of jurisprudence. He it was who first made the mighty step of trying the whole provisions of our jurisprudence by the test of expediency, fearlessly examining how far each part was connected with the rest, and with a yet more undaunted courage inquiring how far even its most consistent and symmetrical arrangements were framed according to the principles which should pervade a code of laws, their adaptation to the circumstances of society, to the wants of men, and to the promotion of human happiness. Not only was he pre-eminently original among the lawyers and legal philosophers of his own country; he might be said to be the first legal philosopher who had appeared in the world. None of the great men before him had attempted to reduce the whole system of jurisprudence under the dominion of fixed and general rules; none ever before Mr. Bentham took in the whole departments of legislation; none before him can be said to have treated it as a science, and by so treating made it one. This is his pre-eminent distinction. To this praise he is justly entitled; and it is as proud a title to fame as any philosopher ever possessed.”1
Bowring once remarked to Talleyrand, “Of all modern writers, Bentham was the one from which most had been stolen, and stolen without acknowledgement.” “True,” replied Talleyrand; “et pillé de tout le monde, il est toujours “riche,”—“and robbed by everybody, he is always rich.”
I have thus sought to give a notion of Bentham’s intellectual qualities, of his times, and of the general character of his writings respecting law and legislation. This has been necessarily an outline view only. It remains to attempt, by way of summing up, a critical estimate of the value of his labors, and the nature and extent of the actual influence upon our laws and jurisprudence of his doctrines and writings.
If we are to form a sound judgment on this subject, we must not mistake the point of view from which to look at him. To be truly appreciated, Bentham must, as I have already said, be regarded primarily and essentially as a law reformer generally, and specially as a reformer of the then existing law of England. He was bold, courageous, and original. He was the first to expose its defects and to suggest the remedies required. He destroyed with his own force the professional and general superstition that the law was perfect, and by his labors and writings he was the means of at length awakening the public mind from its stupor and inertia on this subject. His merits as a critic and censor of the law as he found it in his day and in his country, it is difficult to overvalue. Blackstone, the type of the professional mind of his age, regarded the English law as almost perfection itself; and he found his pleasurable function to be to defend, to exalt, to glorify it.1 Bentham held precisely opposite views. To him the English law, instead of a model of excellence, was a system full of delays, frauds, snares, and uncertainties; and the lawyers were its unthinking or interested defenders. His remedy was not to stop leaks in the roof, put in new panes of glass, and otherwise repair the rotten and dilapidated structure, but to demolish it and rebuild anew. By many he was regarded for the greater part of his life as an iconoclast, and by others as a dreamer who labored under the harmless delusion that he was a benefactor of his race, while in reality he was passing his life uselessly in Utopia.1
It does not essentially detract from Bentham’s merits, or the regard in which posterity should hold him, that he exaggerated, as he doubtless did, the absurdities and defects of the system that he assailed, or that his invectives against lawyers, who as a body supported it and resisted all attempts to reform it, were extravagant and unjust. All this may well be pardoned to his honest convictions, to his lifelong labors and his disinterested zeal for the public good. Nor does it essentially detract from his just estimation that he is an illustration of Bacon’s observation that “there is a superstition in avoiding superstition, when men think to do best if they go farthest from the superstition formerly received.” Nor does it materially diminish his fame that we cannot accept all of his doctrines as sound, or all of his conclusions from doctrines whose general soundness are no longer questioned.
The following which I give in John Stuart Mill’s own words, seems to me to set forth with judicial fairness Bentham’s chief merits and the nature of the obligations of the world to him:—
“Bentham,” he says, “is one of the great seminal minds in England of his age.” “He is the teacher of teachers.” “To him it was given to discern more particularly those truths with which existing doctrines were at variance.” “Bentham has been in this age and country the great questioner of things established. It is by the influence of the modes of thought with which his writings inoculated a considerable number of thinking men, that the yoke of authority has been broken, and innumerable opinions, formerly received on tradition as incontestable, are put upon their defence and required to give an account of themselves. Who, before Bentham, dared to speak disrespectfully, in express terms, of the British Constitution or the English law? . . . Bentham broke the spell. It was not Bentham by his own writings; it was Bentham through the minds and pens which those writings fed,—through the men in more direct contact with the world, into whom his spirit passed. If the superstition about ancestorial wisdom; if the hardiest innovation is no longer scouted because it is an innovation,—establishments no longer considered sacred because they are establishments,—it will be found that those who have accustomed the public mind to these ideas have learned them in Bentham’s school, and that the assault on ancient institutions has been, and is, carried on for the most part with his weapons.”1
If time permitted, it would be easy to trace Bentham’s influence through other minds, and in the way here pointed out, in England and in this country,1 not only in modifications and changes in specific legislation and in modes of judicial procedure, but upon existing notions in respect of legal education, the necessity for and the methods of legal reform. It would be interesting, for example, to draw the parallel between Bentham and Austin, one of Bentham’s most eminent disciples, and to show the partial reaction of Austin against some of Bentham’s extreme views, and the extent to which the questions thus raised are profoundly agitating at this moment not only a few thinking minds but the body of the profession,—and this not only in England, but in every country which speaks the language and which has adopted the institutions of England. This would lead to a consideration of the controversies between the analytical and the historical schools of jurisprudence, which their respective advocates yet debate with much of their original warmth, tending to the result, however, that there is, after all, truth in each; that properly understood the two schools are not antagonistic but complementary; and that the true course is to combine the logical or analytical with the historical and experimental, the former mainly supplying data for scientific arrangement, the latter mainly supplying the matter for a revised, improved, and systematic jurisprudence. I must content myself with mentioning, without dwelling upon, these interesting subjects.
Passing from these general considerations, I proceed to notice specifically two other subjects. One is Bentham’s reforms in the Law of Evidence. Here the direct fruits of Bentham’s labors are plainly to be seen. In some respects his “Judicial Evidence,” before mentioned, is the most important of all his censorial writings on English law. In this work he exposed the absurdity and perniciousness of many of the established technical rules of evidence. “In certain cases,” he says, “jurisprudence may be defined, the art of “being methodically ignorant of what everybody knows.” Among the rules combated were those relating to the competency of witnesses and the exclusion of evidence on various grounds, including that of pecuniary interest. He insisted that these rules frequently caused the miscarriage of justice, and that in the interest of justice they ought to be swept away. His reasoning fairly embraces the doctrine that parties ought to be allowed and even required to testify. This work appeared in Paris in 1802, and in England in 1825 and 1827; but it produced no immediate effect on the professional mind. It was generally regarded as the speculations of a visionary. As I write I have before me Starkie’s Evidence, the third edition of which appeared in 1842, and the wisdom of the exclusionary rules of evidence is not so much as criticised or questioned.
But Bentham had set a few men thinking. He had scattered the seeds of truth. Though they fell on stony ground they did not all perish. But verily reform is a plant of slow growth in the sterile gardens of the practising and practical lawyer. Bentham lived till 1832, and these exclusionary rules still held sway. But in 1843, by Lord Denman’s Act, interest in actions at common law ceased, as a rule, to disqualify; and in 1846 and 1851, by Lord Brougham’s Acts, parties in civil actions were as a rule made competent and compellable to testify. I believe I speak the universal judgment of the profession when I say that changes more beneficial in the administration of justice have rarely taken place in our law, and that it is a matter of profound amazement, as we look back upon it, that these exclusionary rules ever had a place therein, and especially that they were able to retain it until within the last fifty years.
Let us be just. The credit of originating this great improvement is due not to Denman and Brougham, but it essentially belongs to Bentham, although he was in his grave before it was actually effected.1 Lord Justice Stephen forcibly remarks of Bentham’s assault on the system of judicial evidence that “it was like the bursting of a shell in the “powder magazine of a fortress, the fragments of the shell “being lost in the ruin which it has wrought.”2 The moral is obvious. The philosophic student of our laws may often have a keener and juster insight into their vices and imperfections than the practising lawyer, whose life and studies are exclusively confined to the ascertainment and application of the law as it is, and who rarely vexes himself with the question of what it ought to be, or makes any serious effort to reform it. But let me not be misunderstood. While the philosophic student is able to point out defects in the laws, yet the history of the law shows that only practical lawyers are capable of satisfactorily executing the work of reform. Bentham’s failure in directly realizing greater practical results grew out of his mistaken notion that the work of actual amendment could be accomplished without experts,—that is, without the aid of the bar and without its active support.
The last matter to which I shall refer is that to which Bentham gave the name by which it is now universally known,—codification.
With a view to ascertain with exactness Bentham’s views, I have recently gone over anew his writings relating to this subject. Very different ideas in our day are, as I have heretofore said, attached to what is meant or implied by a code, and much of the dispute concerning codification is after all one over words, or one arising from the want of a previous definition of the subject-matter of the disputation.1 What Bentham meant by codification, however, is plain enough. He meant that a code should embrace all general legislation, not simply as it exists, but as it ought to be amended and made to exist,—that is, all legislation except local and special statutes; that it also should embody all the principles of the common law which it were expedient to adopt,—these to be expressed in words by legislative enactment, the gaps or lacunæ to be filled up in like manner by the legislature; the whole to be systematically arranged, so that all possible cases would be expressly provided for by written rules; that the function of the courts to make “judge-made law” as he is fond of stigmatizing it, should cease, and that thereafter all changes or additions to this complete and authoritative body of law should be made by the law-making body, and by it alone.
I must say that in my judgment this in its full extent is not only an impracticable scheme, but one founded in part upon wrong principles. In a refined and complex civilization no legislative foresight, no finite intelligence, can anticipate, define, catalogue, and formulate in advance rules applicable to the infinite number and the infinite variety of cases that will inevitably arise. This view of a code also exaggerates, or, to use Bentham’s language, maximizes, the evils of case-law, and underrates or minimizes its advantages. It overlooks the fact that case-law is a permanent necessity. The judicial office will, at all times, under any possible code, have to deal with and determine questions and cases not possible to be provided for by any express statutory provision.1 A well-constructed code may, and doubtless will, lessen the number of such questions and cases; but no code can do more. The rest must be left to the courts. M. Portalis, in a well-known paper relating to the French Civil Code, expresses this truth with clearness and force. “It is to jurisprudence [using the term in distinction from statute or positive law] that the legislator must abandon those rare and extraordinary cases which cannot enter into the scheme of a rational legislation; the variable, unaccountable details which ought never to occupy the attention of the legislator, and all of those objects which it would be in vain to attempt to foresee, and dangerous prematurely to define.”
We have now, and for centuries have had, two wholly independent manufactories, so to speak, of law,—the legislature professedly making statute law, the courts silently making case-law; and this without any unity of conception, plan, or action. Statutes are piled upon statutes, and the law reports of Great Britain and America may be roundly put at eight thousand volumes, and are constantly multiplying.2 This colossal body of case-law is wholly unorganized and even unarranged, except so far as digests and elementary treatises may be considered as an arrangement, which scientifically viewed they are not. The infinite details of this mountainous mass in its existing shape—bear me witness, ye who hear me!—no industry can master and no memory retain. The English portion of it has been aptly likened to “chaos tempered by Fisher’s Digest.” The American portion already exceeds in size and complexity the English portion, and as we attempt to survey it we are reminded of the dread and illimitable region described by Milton, where
I do not believe that it is practicable to codify it all, in the sense that the resulting code shall supersede for all purposes the law reports; but on many subjects, and to a very large extent in respect of all, codification is practicable, and so far as it is practicable, it is, if well done, desirable. Mark the qualification, if well done, not otherwise.
Any code that is made, whatever may be its scope, must be based upon the fundamental principle that the existing body of our law as it has been developed in the workings of our institutions and tested by our experience is in substance the law that is best fitted to our condition and wants; for all true law has its root in the life, spirit, ideas, usages, instincts, and institutions of the people. It springs from within; it is not something alien to the people, to be imposed on them from without. If a metaphor will not mislead, true law is a native, independent, natural growth, and not an exotic. Bentham did not deny this in principle, but he was too much inclined to look at laws logically rather than historically. It follows that a code must not be one imitated from or servilely fashioned after Roman or foreign models. On this subject Bentham had correct notions. His bold, original mind and his self-sufficient powers saw as little to admire in the Roman as in the English law. I repeat it as my judgment that our code must not pre-suppose that the Roman law as it anciently existed, or as it exists in the modern adaptations of it in the States of Continental Europe, is superior in matter, substance, or value, to the native, natural, indigenous product. It must assume precisely the contrary. Freeman puts a general truth epigrammatically when he says “that we, the English people, are ourselves and not somebody else. . . . Englishmen after all are Englishmen.”1
This is equally true of the American people. And both Englishmen and Americans want their own laws, and not those of some other people. It would be as impossible radically to change their legal systems as to change the nature of the people. The materials for such a code already exist. A period of development is at some time reached in the legal history of every people when it is necessary to restate and reconstruct their laws. It seems to me that we have reached that period. Our materials for such restatement and reconstruction, which we may, if you please, call a code, are ample. They surpass in extent, in abundance, in variety, in richness, and above all, in adaptation to our wants, any supply that can come from foreign sources.2
What Sir Henry Maine aptly calls “tacit codification” is a process which is in constant operation, through the labors of judges and text-writers. In this work elementary writers of learning and experience take an important part. In the scattered condition of our case-law their works are indispensable. When judges and text-writers deduce from the cases a principle and formulate it, and that formula is stamped with authority, either by long usage or judicial sanction, so that the courts do not go behind it to the cases from which it was deduced, there you have to this extent codification. This “stereotyping, as it were, of certain legal rules, is,” says Maine, “at this moment proceeding with unusual rapidity, and is indeed one of the chief agencies which save us from being altogether overwhelmed by the enormous growth of our case-law.”3
What is needed is the constructive genius and practical wisdom that can take these truly rich, invaluable, native but scattered materials,—using with a wise and generous eclecticism foreign materials only when the native do not exist or the foreign are manifestly superior,—and out of all these build an edifice of law, primarily designed and adapted to daily use, which shall be at once symmetrical, harmonious, simple, and commodious. There is here room and need for all. The institutional writer, the law teacher, the philosophic student, the scientific jurist, the experienced lawyer, the learned judge, the practical legislator, has each his place. They are not repellent and antagonistic agencies, but allies and co-laborers in the noblest work that can engage the attention, and draw forth and exemplify the highest powers of the human intellect. Toward the realization of this ideal let us press on with generous ardor, guided not by the motto of Ihering, prescribed for Continental action,—“Through the Roman law, but beyond it,”—but rather by this other motto: “Through our own law, and beyond it wherever it is plainly defective or incomplete.”
[1 ]These passages are taken from “The Laws and Jurisprudence of England and America,” 1894, being lectures delivered at Yale University; (Boston: Little, Brown, & Co.), Lecture XII, pp. 316-347; the author has revised them for this Collection.
[2 ]Member of the New York Bar. M. D. Iowa University; admitted to the Iowa Bar, 1852; judge of the seventh judicial circuit of Iowa, 1858-1863; judge of the Supreme Court of Iowa, 1863-1869; judge of the United States Circuit Court for the eighth judicial district, 1869-1879; professor of law in Columbia University, 1879-1882; former President of the American Bar Association.
[3 ]Sir James FitzJames Stephen, “History of Criminal Law of England,” London, 1883, vol. ii., chap. xxi., p. 216.
[4 ]Early History of Institutions, Lecture XIII. Others also, well qualified to judge, have assigned to Bentham a place in the foremost rank of men of extraordinary intellectual endowments. I subjoin an extract giving Macaulay’s judgment. He is by no means a partial witness: he was a Whig of the Whigs; Bentham, a Radical of the Radicals. If there was anything that a Whig hated more than a Tory, it was a Radical. Macaulay had in Bentham’s lifetime attacked with fierceness and rancor the Benthamic notions of politics. Yet within a few months after the death of Bentham, in reviewing (July, 1832) Dumont’s “Mirabeau,” Macaulay thus expresses his opinion of Bentham’s character and labors: “Of Mr. Bentham,” he says, “we would at all times speak with the reverence which is due to a great original thinker and to a sincere and ardent friend of the human race. In some of the highest departments in which the human intellect can exert itself he has not left his equal or his second behind him. From his contemporaries he has had, according to the usual lot, more or less than justice. He has had blind flatterers and blind detractors,—flatterers who could see nothing but perfection in his style; detractors who could see nothing but nonsense in his matter. He will now have his judges. Posterity will pronounce its calm and impartial decision; and that decision will, we firmly believe, place in the same rank with Galileo and with Locke the man who found jurisprudence a gibberish and left it a science.” (A general truth, rather too strongly expressed.) See below for opinions of Brougham and others concerning Bentham’s writings and labors.
[1 ]See ante Lecture XI.
[1 ]See post Lecture XIII.
[2 ]See ante Lecture VI., p. 180.
[1 ]See ante Lecture VI., p. 174; Lecture X., p. 270.
[1 ]3 Black. Com., 268; 2 Dillon, “Municipal Corporations” (4th ed.) § 934, a, and note.
[2 ]See ante Lecture XI.
[3 ]Conciliation with America, 1775.
[1 ]Appeal from the New to the Old Whigs. Burke’s Works, vol. iv., p. 213 (Little, Brown, & Co.’s Ed.).
[2 ]Vol. i., chap. xv., American Ed., p. 243.
[1 ]“Life of Sir Samuel Romilly,” edited by his sons, vol. i., Diary, June, 1808. See also his beautifully written Letters to C., letter iii., September, 1807, in same volume, 3d ed., London, 1842, p. 537.
[2 ]Townsend, “Lives of Twelve Eminent Judges,” vol. ii., chap. x., p. 455, London, 1846. Bowring says that Bentham hated Eldon as much as it was possible to his benevolent nature to hate,—considered him the mightiest and most mischievous of all the opponents of law reform; and he calls him, in another place, the Lord of Doubts. Defective as the laws were, they were doubtless in a vastly better condition than they would have been if Bentham could have subjected them to the full operation of his radical, and to a large extent impracticable views, which, however, were never favored in their full scope and details by such conservative reformers as Brougham, Romilly, and Bickersteth.
[1 ]Romilly was the means of rendering Bentham what turned out to be a most signal service. About 1788, when Bentham was forty years of age, Romilly sent to Genevese Dumont some of Bentham’s writings. They greatly impressed this gifted man with their originality and value. Dumont gave a large portion of his life to the redaction and translating into French some of the most important of Bentham’s works. But this required years. On April 5, 1791, Romilly writes to Dumont: “Bentham leads the same kind of life as usual at Hendon,—seeing nobody, reading nothing, and writing books which nobody reads.” In 1802 Dumont’s French edition of Bentham’s treatise on “Legislation Civil and Criminal” appeared, and was translated into Spanish, Russian and Italian; in 1811 “Rewards and Punishments,” and in 1823 “Judicial Evidence,” thus treated and translated by Dumont, were published in Paris. This gave Bentham a European reputation, and quickened his tardy appreciation at home. In the history of letters there is nothing more remarkable than the relation between Dumont and Bentham. Macaulay’s account of the services rendered by Dumont is as interesting as it is, generally speaking, accurate. Of the character and value of Dumont’s labors the great reviewer remarks:—
[1 ]Lord Brougham’s Speeches, Edinburgh, 1838, vol. ii., p. 288, Black’s Edition. Brougham and Bentham were well acquainted. In a sense Brougham was one of Bentham’s disciples. Both aspired to be law reformers. Indeed, Brougham’s most useful labors in Parliament were directed towards law reform. There were, however, radical differences of opinion between Bentham and Brougham as to the best method of effecting the desired improvement. These differences naturally arose out of the difference in the situation and surroundings of the two men. Bentham, though he was regularly bred to the law and called to the bar, never pursued the profession. Bentham thus summarized his own career as a practising lawyer: “I never pleaded in public. On my being called to the bar, I found a cause or two at nurse for me. My first thought was how to put them to death; and the endeavors were not, I believe, altogether without success. Not long after a case was brought to me for my opinion. I ransacked all the codes. My opinion was right according to the codes; but it was wrong according to a manuscript unseen by me and inaccessible to me,—a manuscript containing the report of I know not what opinion, said to have been delivered before I was born, and locked up, as usual, for the purpose of being kept back or produced according as occasion served.”
[1 ]See ante Lecture XI.
[1 ]Sir Samuel Romilly gives this interesting account of a visit which he made in 1817 to Bentham:—
[1 ]Essay on Bentham, “Dissertations and Discussions” (Am. Ed.), vol. i., pp. 355-358. John Stuart Mill in his Autobiography says: “During the winter of 1821-22, Mr. John Austin, with whom at the time of my visit to France my father had but lately become acquainted; kindly allowed me to read Roman law with him. [John Stuart Mill was then in his seventeenth year.] My father, notwithstanding his abhorrence of the chaos of barbarism called English law, had turned his thoughts towards the bar as on the whole less ineligible for me than any other profession; and these readings with Mr. Austin, who had made Bentham’s best ideas his own, and added much to them from other sources and from his own mind, were not only a valuable introduction to legal studies, but an important portion of general education. With Mr. Austin I read Heineccius on the Institutes, his Roman Antiquities, and part of his exposition of the Pandects, to which was added a considerable portion of Blackstone. It was at the commencement of these studies that my father, as a needful accompaniment to them, put into my hands Bentham’s principal speculations, as interpreted to the Continent, and indeed to all the world, by Dumont, in the ‘Traité de Législation.’ The reading of this book was an epoch in my life, one of the turningpoints in my mental history” (chap. iii.).
[1 ]The influence of Bentham in America, not only in respect of the emendations of the Law of Evidence, but through the efforts of other men who had caught his spirit, is directly seen in the extent to which codification has been adopted. See ante Lecture IX., p. 260, note. The labors of the celebrated Edward Livingston afford another interesting illustration of Bentham’s influence in this country. In the prime of his life misfortunes led Livingston in 1804 to quit the home of his ancestors in New York and to make a new home in New Orleans, then recently acquired by the United States. The question whether the procedure in Louisiana should be according to the common law or continue upon the basis of the civil and Spanish law having been judicially determined in favor of the latter, Livingston drew up what is in effect a Code of Procedure, which was adopted by the Legislature in 1805, consisting of twenty sections and of about twenty-five printed pages. In its essential features it anticipated the codes of nearly half a century later. Under an act of the General Assembly of Louisiana, approved February 10, 1820, which provided that a person learned in the law shall be appointed to prepare a Code of Criminal Law, Evidence, and Procedure, Livingston was on February 13, 1821, elected by the joint ballot of the Legislature to discharge this duty. He reported his plan to the next Assembly, which “earnestly solicited him to prosecute this work according to his report.”
[1 ]See post Lecture XIII.
[2 ]“General View of the Criminal Law of England,” p. 206; also Introduction to his Digest of Evidence.
[1 ]See ante Lecture VI., p. 180.
[1 ]See ante Lecture X., p. 268; Dillon, Munic. Corp. (4th ed.), vol. ii., § 934, a; Amos, “Science of Law,” chap. v.
[2 ]See ante Lectures VIII., IX, X., passim.
[1 ]Preface to lecture, “Chief Periods of European History.”
[2 ]See ante Lecture VI., p. 174; Lecture X.
[3 ]Village Communities” (Am. Ed.), pp. 368, 369. The subject of text-books as one of the literary authorities of our law, their office and use, the functions of text-book writers, and the nature of text-book law, I have seen nowhere so fully or well presented as in Professor Clarke’s “Practical Jurisprudence,” part ii., chaps. vii.-xii., inclusive.