Front Page Titles (by Subject) (D): Close of the Period of Quiescence - Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.)
Return to Title Page for Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
(D): Close of the Period of Quiescence - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) 
Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, edited and with an Introduction by Richard VandeWetering (Indianapolis: Liberty Fund, 2008).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Close of the Period of Quiescence
From 1815 to 1820, or even to 1825, Toryism was supreme in State and Church, reform was identified with revolution, and legislative reaction, in the judgment of Whigs and Radicals, menaced the hereditary liberties of Englishmen. In 1830 legislative inertia came with apparent suddenness89 to an end. The activity of Parliament, which has lasted, though, with varying force, till the present day, evinced for a short time a feverish energy which alarmed tried reformers. “All gradation and caution,” murmured Sydney Smith, “have been banished since the Reform Bill—rapid high-pressure wisdom is the only agent in public affairs.”90
Whence this sudden outburst of legislative activity?
The answer may be given in one sentence: The English people had at last come to perceive the intolerable incongruity between a rapidly changing social condition and the practical unchangeableness of the law.
This general reply itself needs explanation. We must examine a little further what were the slowly operating causes of a noteworthy revolution in opinion. Our task will be lightened if we bear in mind that men’s beliefs are in the main the result of circumstances91 rather than of arguments, and that a policy, or rather the public opinion from which it derives its authority, is often in the greatest danger of overthrow at the moment of its apparent triumph.92
The conditions which terminated the era of legislative quiescence, or (what is the same thing looked at from another point of view), which promoted the growth of Benthamite liberalism, may be conveniently brought under four heads: First, the rapid change in the social condition of England between 1800 and 1830; secondly, the increasing unsuitability of unchanging institutions for a quickly developing society; thirdly, the lapse of time, which of itself obliterated the memories of the French Revolution; fourthly, the existence of the Benthamite school.
(1) As to the Change in the Social Condition of England. It is somewhat difficult for a student to realise the indisputable fact that a period of legal stagnation was in other respects a period of great moral and intellectual activity.93 The termination, indeed, of the great war opened a season of popular distress, which, however, slowly passed, as the century went on, into a time of mercantile and manufacturing prosperity. It was an era of social change. Population was constantly on the increase. In 1801 the population of England and Wales was, in round numbers, 8,000,000; in 1811 it was 10,000,000; in 1821 it was 12,000,000; and in 1831 it was 13,000,000. There was no reason to suppose that an increase which came very near to 2,000,000 in every decade would be arrested. Sagacious observers might conjecture that, as has already happened, the inhabitants of England and Wales would be quadrupled94 by the end of the century. This increase belonged in the main to the operative or industrial classes. It was stimulated by inventions in machinery, by the making of canals, by the use of steam, by the opening of coal mines and the like. England was in fact changing from an agricultural into a manufacturing country, and in the north at any rate was becoming a vast industrial city. And this increase in the numbers of the people coincided with a shifting of the centres of population. Till towards the end of the eighteenth century the majority of the English people lived in the south and the west of England; Bristol was, next to London, the most important of our cities. From the beginning of the nineteenth century, manufactures, population, and wealth kept flowing from the south to the north of England; new cities sprung up in Lancashire and the northern counties where there had formerly been nothing but wastes dotted with townlets and villages. Towns such as Birmingham, Manchester, and Liverpool acquired a new importance, and with this change the influence of employers of labour begun to overshadow the authority of squires and merchants. The country, moreover, it is perfectly clear, was full of energetic life. The gigantic and lasting effort by which victory was at last secured in the great war with France proved the strength of the nation. It has been well noted that deficient, or rather non-existent, as was any system of national education, “there is probably no period in English history at which a greater number of poor men have risen to distinction,”95 than at the end of the eighteenth and in the earlier part of the nineteenth century.
The greatest beyond comparison of self-taught poets was Burns (1759–1796). The political writer who was at the time producing the most marked effect was Thomas Paine (1737–1809), son of a small tradesman. His successor in influence was William Cobbett (1762–1835), son of an agricultural labourer, and one of the pithiest of all English writers. William Gifford (1756–1826), son of a small tradesman in Devonshire, was already known as a satirist and was to lead Conservatives as editor of The Quarterly Review. John Dalton (1766–1842), son of a poor weaver, was one of the most distinguished men of science. Porson (1759–1808), the greatest Greek scholar of his time, was son of a Norfolk parish clerk, though sagacious patrons had sent him to Eton in his fifteenth year. The Oxford professor of Arabic, Joseph White (1746–1814), was son of a poor weaver in the country, and a man of reputation for learning, although now remembered only for a rather disreputable literary squabble. Robert Owen and Joseph Lancaster, both sprung from the ranks, were leaders in social movements.”96
This was in literature the age of Coleridge (1772–1834), of Sir Walter Scott (1771–1832), of Wordsworth (1770–1850), of Charles Lamb (1775–1834), of Hazlitt (1778–1830), of Miss Austen (1775–1817), of Miss Edgeworth (1767–1849), of Byron (1788–1824), of Shelley (1792–1822), of Sydney Smith (1771–1845), of Jeffrey (1773–1850), and of the whole body of Edinburgh Reviewers.97 Add to this, that between 1800 and 1832 a younger body of writers, such as Macaulay (1800–1859), John Mill (1806–1873), Arnold of Rugby (1795–1842), J. H. Newman (1801–1890), Tennyson (1809–1892), who belong in influence to a somewhat later generation, were coming to manhood. Consider, at the same time, the existence of men of science such as Sir Humphrey Davy (1778–1829), or Sir John Herschell (1792–1871), and note the appearance of inventors such as Watt (1736–1819), and Stephenson (1781–1848). Imperfect and irregular as this list is, it affords irresistible evidence that, at a time when from special causes public opinion is opposed to legal or political innovation, a country may be full of vigour and of life.
(2) As to the incongruity between the social condition and the legal institutions of England. At any date after 1815 thoughtful men must have perceived the existence of a want of harmony between changing social conditions and unchanged laws. Year by year theoretical anomalies were by the mere course of events transformed into practical grievances.
Our system of parliamentary representation had long been full of absurdities. The House of Commons, before the Union with Ireland, consisted of 548 members, of whom 200 were elected by 7000 constituents.98 A majority of this 7000 might therefore decide a question against the opinion of many millions. The political power which a man possessed varied in the most capricious manner; if his estate is situate in one part of the kingdom he might possess a ten-thousandth part of a single representative; if in another a thousandth; if in a particular district he might be one of twenty who chose two representatives; if in a more favoured spot he might possess the right of appointing two members himself; if he lived in one town he might have no representative at all, and might, as was remarked by Paley, take no more part in electing the persons who made the law by which he was governed than if he had been a subject of the Grand Signior; whilst forty-two members were lavished upon Cornwall, neither Birmingham nor Manchester had any representative whatever; and whilst about one-half of the House of Commons obtained their seats in that assembly by something like popular election, the other half obtained them by purchase, or by the nomination of single proprietors of great estates. Boroughs, or, in other words, seats in the House of Commons, were bought and sold as openly as any article of commerce, and the King was at times himself the great purchaser of boroughs. “This flagrant incongruity in the constitution,” to use the words of Paley, had existed for centuries, and continued to exist up to 1832. The objections to it were patent, and had often been pointed out. They were already felt in the time of the Commonwealth, and were more or less remedied by the constitution of 1654.99 But, though the existence of members of Parliament nominated by borough owners had towards the end of the eighteenth century provoked theoretical censure, it was not apparently felt by the mass of the people to be a pressing grievance. In 1825, and still more in 1830, the incongruities of an unreformed Parliament had become in the eyes of many Englishmen an intolerable abuse. The reason for this change of feeling is easy enough to discover. As long as the power of the State was centred in the south and west of England, a system which denied representatives to Birmingham or Manchester or Sheffield, whilst it showered representatives on petty Cornish boroughs, might be defended on grounds of expediency by ingenious thinkers such as Paley, or by practical statesmen such as Lord Liverpool or Peel; any constitution which gives real representation, in however strange a manner, to the classes which are powerful in the State, achieves one main end of representative government. But when population, wealth, trade, and power shifted towards the north, apologies for the vices of our representative system, even from the mouths of eminent statesmen, began to sound like dishonest pleas suggested by antiquated prejudice, and put forward to preserve the predominance of the Tory party. No doubt Sir Walter Scott, with all his sound judgment, and others who possessed his good sense without his genius, defended institutions struck with decay, on the true plea that under these institutions the English had become the freest and the most wealthy among the nations of the earth; but apology came perilously near to condemnation when it was, in effect, the admission that aged institutions had not been modified in accordance with the growth and development of England. The best defence for the unreformed Parliament—namely, that it represented all that was most powerful in the State—became weaker year by year. The manufacturers and the artisans of the towns had become a power in the land, but they manifestly received no adequate recognition in Parliament.
The defects, moreover, of parliamentary representation were not compensated for by the activity or flourishing condition of local authorities. No part of the administrative system had suffered so complete a collapse as municipal government. On this point the report of the Commission of 1834 is absolutely decisive. The municipal corporations of England were marked by almost every defect which such bodies could exhibit. They did not represent the inhabitants of the towns whose affairs they were supposed to administer. They were inefficient: they were corrupt. Duties which ought to have been discharged by a corporation were, if discharged at all, placed in the hands of separate bodies—e.g. improvement commissioners—created to perform some special service. The following facts are significant. The prosperity of Birmingham was attributed by observers to that rising town being still in theory a village and free from the disadvantage of being a corporation;100 the general distrust of corporate government led the authors of the Municipal Reform Act, 1836, to bestow astonishingly narrow powers even upon the reformed corporations. The counties, with the affairs whereof their inhabitants had for the most part little to do, were in reality governed by the justices of the peace. The rule of the justices had its defects, but it was not marred by corruption, and was better than the government of the towns under the old municipal system.
Consider, again, in the most general way, the position of the Established Church, or rather the way in which, as the first quarter of the nineteenth century was drawing to its close, the Established Church came to be regarded by thousands of Englishmen.
In 1825, when the evangelical movement was at its height, and Simeon was reputed to have more authority than any bishop, the clergy were assuredly a more zealous and more devoted body of men than were their predecessors of 1725, and (though eminently pious clergymen occasionally acquiesced in arrangements as to the holding of pluralities and the like which every one would now condemn as scandals) some real, though ineffectual, efforts had been made towards the reform of patent ecclesiastical abuses. Nobody in short can doubt that the character and moral weight of the clergy had risen with the advance of the nineteenth century. Yet the defects of the Establishment met in 1825 with severer censure than in 1725, or even in 1800. Here, again, we see the effect of the obvious want of harmony between the institutions and the needs of the time. In 1725 a clergyman might possibly minister to the spiritual and moral wants of a large northern parish, which, though extensive in size, contained a scanty and scattered population of yeomen and farmers. But how could a clergyman by anything short of a miracle discharge his duties in the same parish when it was turned into a huge town, crowded with miners or manufacturing hands? In truth, the very face of the country had changed; northern villages were being transformed into cities. Yet, in an altering world, the Church establishment remained much what it had been in 1689.
If the course of trade and the growth of manufactures altered the position without altering the arrangements of the Established Church, it also revolutionised, without in any way improving, the relation of masters and workmen. This fact was visible to observers who detested Jacobinical principles.
“The unhappy dislocation,” writes Sir Walter Scott,
which has taken place betwixt the employer and those in his employment has been attended with very fatal consequences. Much of this is owing to the steam-engine. When the machinery was driven by water, the manufacturer had to seek out some sequestered spot where he could obtain a suitable fall of water, and then his workmen formed the inhabitants of a village around him, and he necessarily bestowed some attention, less or more, on their morals and on their necessities, had knowledge of their persons and characters, and exercised over them a salutary influence as over men depending on and intimately connected with him and his prospects. This is now quite changed; the manufacturers are transferred to great towns, where a man may assemble five hundred workmen one week and dismiss them next, without having any further connection with them than to receive a week’s work for a week’s wages, nor any further solicitude about their future fate than if they were so many old shuttles. A superintendence of the workers considered as moral and rational beings is thus a matter totally unconnected with the employer’s usual thoughts and cares. They have now seen the danger of suffering a great population to be thus entirely separated from the influence of their employers, and given over to the management of their own societies, in which the cleverest and most impudent fellows always get the management of the others, and become bell-wethers in every sort of mischief. Some resolutions have been adopted respecting the employing only such men as have been either uniformly of loyal character or acknowledge their errors and withdraw from all treasonable meetings, associations, and committees.
The banks and monied men should use their influence, which is omnipotent with the manufacturers, to enforce the observance of these resolutions, so necessary for the general quiet. That such regulations would secure tranquillity is quite certain, for notwithstanding the general influence of example, the workmen in some of the greatest manufactures did not furnish a single recruit to Radicalism.101
This want of harmony between the needs and the institutions of the time reappears in matters which, though of less importance than the condition of the working-classes, affected the comfort of thousands of Englishmen.
Nothing can be more necessary for the happiness of ordinary citizens than protection against robbery and physical violence. Yet even in London the protection was not adequately supplied. Until 1829 the capital of England did not possess a regular body of police.102 The welfare, again, of a mercantile community is dependent on the existence of a fair and effective law of bankruptcy, yet the state of the bankruptcy law shocked every man versed in business. There was an absolute opposition on this matter between the law of the land and the feelings of the mercantile world. The state of things as late as the beginning of the reign of Victoria (1837) is thus described by Lord Bowen:
The great commercial world, alienated and scared by the divergence of the English bankruptcy law from their own habits and notions of right and wrong, avoided the court of bankruptcy as they would the plague. The important insolvencies which have been brought about by pure mercantile misfortune were administered to a large extent under private deeds and voluntary compositions, which, since they might be disturbed by the caprice or malice of a single outstanding creditor, were always liable to be made the instruments of extortion. “To the honest insolvent the bankruptcy court was a terror.” To the evil-doer it afforded means of endlessly delaying his creditors, while the enormous expenses of bankruptcy administrations rendered it the interest of few to resort to the remedy, except with the object of punishing the fraudulent or vexing the unfortunate.103
From whatever direction then we examine the condition of England between 1800 and 1830, and especially between 1815 and 1830, we can perceive the discord between a changing social condition and unchanging laws.
(3) As to the lapse of time. Before the outbreak of the French Revolution intelligent Englishmen of all classes were prepared to welcome natural and gradual reforms. Blackstone, though an optimist, was not opposed to reasonable changes; Pitt, Burke, and Fox were all of them in different ways reformers; and the men we have named are representatives of that large class of Englishmen who at most times have been quite willing to abolish abuses or grievances of a practical character. In the ordinary course of things the law of England would have been amended before the end of the eighteenth, or soon after the beginning of the nineteenth century. The obstacle to reasonable reform is to be found in the revolutionary excesses of France. In England the French Revolution worked nothing but evil; it delayed salutary changes for forty years, and rendered reforms, when at last they came, less beneficial than they might have been if gradually carried out as the natural result of the undisturbed development of ideas suggested by English good sense and English love of justice.104 But to the men who began to take part in public life, or to take an interest in national affairs, between 1815 and 1830, the horrors of the Reign of Terror were mere traditions. They knew by experience the narrow-mindedness of the Tories who had governed England since the beginning of the century, and toryism had by a strange fatality grown less reasonable and more reactionary from the very time when Waterloo, and the permanent peace which it established, had deprived the resistance to all innovation and restrictions on individual liberty of such justification as was afforded by a life and death struggle for national independence. In 1819 or 1820 the Six Acts, the so-called Manchester massacre, the sordid scandals of the quarrel between George IV. and his Queen were present realities. The horrors of a Regicide Peace105 were ancient history. Sensible men perceived that the state of England would soon necessitate a choice between revolution and reform.
(4) As to the existence of Benthamism. The work of Bentham and his school forms the subject of the next lecture; thus much may here be said: reformers who had escaped from the panic caused by revolutionary excesses, and prolonged by Napoleonic aggression, had inherited the distrust of Jacobinical principles. The need of the day was, they felt, thorough-going but temperate reform, thought out by teachers who, without being revolutionists, had studied the faults of English law, and elaborated schemes for its practical amendment. Such teachers were found in Bentham and his disciples; they provided for reformers an acceptable programme. Utilitarian individualism, which for many years under the name of liberalism, determined the trend of English legislation, was nothing but Benthamism modified by the experience, the prudence, or the timidity of practical politicians. The creation of this liberalism was the death-blow to old toryism, and closed the era of legislative stagnation.
The Period of Benthamism or Individualism1
individualism as regards legislation is popularly, and not without reason, connected with the name and the principles of Bentham. The name of one man, it is true, can never adequately summarise a whole school of thought, but from 1825 onwards the teaching of Bentham exercised so potent an influence that to him is fairly ascribed that thorough-going though gradual amendment of the law of England which was one of the main results of the Reform Act.2
Bentham’s genius and position were fully understood by his contemporaries.
The age of law reform and the age of Jeremy Bentham are one and the same. He is the father of the most important of all the branches of reform, the leading and ruling department of human improvement. No one before him had ever seriously thought of exposing the defects in our English system of jurisprudence. All former students had confined themselves to learn its principles—to make themselves masters of its eminently technical and artificial rules; and all former writers had but expounded the doctrines handed down from age to age. . . . 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 principle 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 thus eminently original among the lawyers and the legal philosophers of his own country; he might be said to be the first legal philosopher that had appeared in the world.3
These are the words of Brougham, published in 1838; they strike the right note. Bentham was primarily neither a utilitarian moralist nor a philanthropist: he was a legal philosopher and a reformer of the law. The object of his lifelong labours was to remodel the law of England in accordance with utilitarian principles. These labours were crowned by extraordinary success, though the success was most manifest after the end of Bentham’s life. This is Bentham’s title to fame. His life cannot here be told, but it is well to insist upon the circumstances or conditions which favoured his success as a law reformer.
Both the date and the length of Bentham’s life are important.
He was born in 1748, two years after the failure of the last attempt to restore the Stuarts; he died immediately before the passing of the Reform Act, 1832. The eighty-four years of his life thus span over the period which divides the last endeavour to establish in England the real supremacy of the Crown from the commencement in England of modern democratic government. This era stretched indeed beyond the limits of the eighteenth century, but though Bentham lived till the first third of the nineteenth century had nearly come to an end, he was in spirit entirely a child of the eighteenth century, and in England was the best representative of the humanitarianism and enlightenment of that age. Length of days was no small aid in the performance of his life’s work. Bentham, like Voltaire,4 ultimately owed much of his authority to the many years for which he was able to press his doctrines upon the world. Iteration and reiteration are a great force; when employed by a teacher of genius they may become an irresistible power. For well nigh sixty years, that is to say to two generations, Bentham preached the necessity, and explained the principles, of law reform. He began his career as an unknown youth whose ideas were scouted by men of the world as dangerous paradoxes: he ended it as a revered teacher who numbered among his disciples lawyers and statesmen of eminence, and had won over to his leading ideas the most sensible and influential of English reformers.
Bentham was the son of a wealthy London attorney.
He thus formed one of that body of tradesmen, merchants, and professional men who, as the “middle class,” had at the beginning of the nineteenth century long exercised great influence in public life, and at the moment of his death were about to become the true sovereign of England. And Bentham, though distinguished among his fellows by his genius, his enlightenment, and his zeal for the public good, belonged, to a far greater extent than he or his opponents perceived, in spirit no less than in position, to the middle classes. He shared their best ideals. When he taught that the aim of law as of life was to promote the greatest happiness of the greatest number, he meant by happiness no far-fetched conception of well-being, but that combination of an honest and industrious life with the enjoyment of modest wealth and material comfort, which is felt to be an object of desire by an ordinary Englishman. He spoke the language of his countrymen, and the men of the middle class whom he addressed understood his meaning. The character and the wealth of Bentham’s father are circumstances not to be overlooked. The elder Bentham recognised his son’s extraordinary gifts and set his heart on seeing him rise to the position of Mansfield or of Eldon. This commonplace ambition was the torment of Jeremy’s youth, but it had one good effect. It induced or compelled Bentham to study with care the actual law of England; he was saved from being one of those jurists who know a little of every law but their own. His father’s wealth even more profoundly affected Bentham’s career. He never had to rely upon fees for his support. At his father’s death he became possessed of ample means. Thus he was able to follow, as he did follow through life, the bent of his own genius.5
His genius was of the rarest quality.
In Bentham’s intellect were united talents seldom found in combination; a jurist’s capacity for the grasp of general principles and the acumen of a natural born logician were blended with the resourcefulness of a mechanical inventor. In studying Bentham’s intellectual character we are reminded that, if he was the follower of Hobbes and of Locke, he was the contemporary of Arkwright6 and of Watt.7 How near Bentham’s turn of mind lay to that of men renowned for mechanical inventions may be seen from a transaction which has perplexed and sometimes amused his admirers. He devoted trouble, money, thought, and time to the creation of the “Panopticon” or “Inspection-house”—that is, a model prison so planned that from one point in the building could be seen all that was going on in every other portion of the establishment. Of the mixed ingenuity and weakness of Bentham’s plan nothing need here be said; the point to be noticed is the light which the scheme throws on the nature of Bentham’s intellect. The Panopticon was a mechanical contrivance from which, if rightly used, he, after the manner of ingenious projectors, expected untold benefits for mankind; “morals reformed, health preserved, industry invigorated, instruction diffused, public burdens lightened, economy seated as it were upon a rock, the Gordian knot of the poor-law not cut but untied—all by a simple idea in architecture!”8 He was in truth created to be the inventor and patentee of legal reforms. It is in this inventiveness that he differs from and excels his best known disciples. Austin may have equalled him in the capacity for analysing legal conceptions, James Mill may have surpassed him in metaphysical subtlety, John Mill had acquired under a course of elaborate training a more complete philosophical equipment, and was endowed by nature with wider sympathies than Bentham; but neither Austin, nor James Mill, nor John Mill, possessed any touch of Bentham’s inventive genius, nor in fact made any suggestion, which was at once original and valuable, for the amendment of the law of England.
The course of Bentham’s life was, however, finally determined, neither by the opportuneness of circumstances, nor by the possession of wealth, nor even by the peculiarity of his intellectual gifts, but by the nature and the development of his moral character.
In early manhood he was “converted”9 —I use the term deliberately, as it better gives my meaning than does any other expression—to an unshakeable faith in that form of utilitarianism which places the object of life in the promotion of “the greatest happiness of the greatest number.” When about twenty years of age he found this formula in a pamphlet of Priestley’s10 and accepted it as the guide of his life.
“It was by that pamphlet and this phrase in it,” writes Bentham,
that my principles on the subject of morality, public and private, were determined. It was from that pamphlet and that page of it that I drew the phrase, the words and import of which have been so widely diffused over the civilised world. At the sight of it, I cried out as it were in an inward ecstasy, like Archimedes on the discovery of the fundamental principle of hydrostatics, Εὕρηκα. Little did I think of the corrections which within a few years on a closer scrutiny I found myself under the necessity of applying to it.11
With this combine the following expressions taken from Bentham’s note-books.
“Would you appear actuated by generous passion? be so.—You need then but show yourself as you are.”
“I would have the dearest friend I have to know, that his interests, if they come in competition with those of the public, are as nothing to me. Thus I will serve my friends—thus would I be served by them.”
“Has a man talents? he owes them to his country in every way in which they can be serviceable.”12
This creed, however, which we should now term the enthusiasm of humanity, need not have impelled Bentham to labour at the reform of the law. That his passion for the furtherance of human happiness took this particular form, arose from his becoming possessed by the two convictions that legislation was the most important of human pursuits, and that Jeremy Bentham was born with a genius for legislation.
“Have I,” he asked, “a genius for anything? What can I produce?” That was the first inquiry he made of himself. Then came another. “What of all earthly pursuits is the most important?” “Legislation,” was the answer Helvetius gave. “Have I a genius for legislation?” Again and again was the question put to himself. He turned it over in his thoughts; he sought every symptom he could discover in his natural disposition or acquired habits. “And have I indeed a genius for legislation?” I gave myself the answer, fearfully and tremblingly, “Yes.”13
Of these convictions the first was shared by the best thinkers of the eighteenth century, and contained an immense amount of relative truth; the need of the time was the reform of the institutions of Europe. The second was absolutely true, and its truth has been recognised by the wisest men of the generations which have followed Bentham; he was in very truth the first and greatest of legal philosophers.
My objects in this lecture are, first, to sketch in the merest outline the ideas of Benthamism or individualism, in so far as when applied by practical statesmen they have affected the growth of English law; next to explain and describe the general acceptance of Benthamism as the dominant legislative opinion of a particular era; and, lastly, to illustrate by examples the general trend of Benthamite or individualistic legislation.
[89. ]See pp. 23–24, ante.
[90. ]Sydney Smith, Works (ed. 1879), p. 340 (n.).
[91. ]See pp. 20, 21, ante.
[92. ]See p. 17, ante.
[93. ]The introduction of fast coaches towards the end of the eighteenth and the beginning of the nineteenth century is analogous to the introduction of railways at a later date. [Editor’s note: This footnote was added in the second edition.]
[94. ]Statesman’s Year-Book, 1904, p. 16.
[95. ]Leslie Stephen, English Utilitarians, i. pp. 111, 112.
[96. ]Ibid. p. 112. This list, to which might be added Francis Place and many others, reminds us of the difference between the extension of knowledge and the extension of education. Receptivity of information which is cultivated and rewarded in schools and also in Universities, is a totally different thing from the education, sometimes conferred even by adverse circumstances, which trains a man to seize opportunities either of learning or of advancement. It has been well said that failures in life arise far less often from mere want of knowledge than from want of skill in the seizing of such favourable opportunities.
[97. ]The Edinburgh Review was started in 1802.
[98. ]As to the state of parliamentary representation in 1799, see Paley, Moral Philosophy, ii. (12th ed.) pp. 217, 218.
[99. ]This reform excited no enthusiasm: it did not last even till the Restoration. The Parliament summoned by Richard Cromwell was elected in England by the old constituencies.
[100. ]See Leslie Stephen, English Utilitarians, i. pp. 99, 100.
[101. ]Scott’s Familiar Letters, vol. ii., Letter to Morritt, 19th May 1820.
[102. ]The slowness with which necessary reforms have been carried out in England is curiously illustrated by the history of the police force during the nineteenth century. The creation of the Metropolitan police in 1829 (10 Geo. IV. c. 14) is due to Peel’s administrative genius; it was a stroke of intensely unpopular but very beneficent statesmanship; but even in the metropolis the police force was not put on a satisfactory basis till 1839 (2 & 3 Vict. c. 47). In the boroughs reform went on slowly, and was not anything like complete until 1839. In the counties reform progressed at even a slower pace. The so-called Permissive Act of 1839 (2 & 3 Vict. c. 93) made the organisation of a good county police possible. In 1842 an attempt was made to infuse new life into the decrepit system of parish constables. Fourteen years later the County and Borough Police Act, 1856 (19 & 20 Vict. c. 69), known as the Obligatory Act, for the first time provided every part of England with stipendiary police, and thus completed a police system for the whole country. See Melville, History of Police in England, chaps. xiii.–xv.
[103. ]Bowen, Reign of Queen Victoria, i. p. 315.
[104. ]The delay, however, in reform by Eldon and his school conferred some benefit on the country. It postponed action until in 1832 it took the shape of reform instead of revolution. [Editor’s note: This footnote was added in the second edition.]
[105. ]The very title of Burke’s celebrated Three Letters on the Proposals for Peace with the Regicide Directory of France, 1796, is a curious example of the difference between the feelings of his times and of our own. Would suggestions of peace with France (or for that matter with any other civilised country) now excite horror simply on the ground that the French Government had put their king to death? The Directory, by the way, had not as a government executed Louis XVI. Would Burke, one wonders, have blamed Louis XIV. for recognising Cromwell, who was in the strictest sense a regicide?
[1. ]See Bentham, “Memoirs and Correspondence,” Works, x. xi.; Montague, Bentham’s Fragment on Government; L. Stephen, English Utilitarians, i., especially chaps. i.–iii.; Elie Halévy, La formation du radicalisme philosophique; G. Wallas, Life of Francis Place, ch. iii.; Bowen on “Administration of the Law, from 1837–1887,” Reign of Queen Victoria, i. 281.
[2. ]The influence even on law reform of Adam Smith and his disciples ought, of course, not to be forgotten, but in 1830 the economists and the Benthamites formed one school.
[3. ]Brougham’s Speeches, ii. pp. 287, 288.
[4. ]Voltaire, born 1694, died 1778. Each lived to the age of eighty-four.
[5. ]Bentham in this matter resembled Darwin. Each of these eminent men owed to inherited wealth the possibility of wholly dedicating his whole life to its appropriate work.
[6. ]b. 1732, d. 1792.
[7. ]b. 1736, d. 1819.
[8. ]Bentham, Works, iv. p. 39.
[9. ]“The name of Jeremy Bentham, one of the few who have wholly lived for what they held to be the good of the human race, has become even among educated men a byword for what is called his ‘low view’ of human nature. The fact is that, under its most important aspect, he greatly overrated human nature. He overestimated its intelligence.”—Maine, Popular Government, pp. 85, 86. These sentences contain an appreciation which is rare, not only of Bentham’s virtues but of his enthusiasm.
[10. ]Apparently the formula was originally derived not from Priestley, but from Beccaria (see Crimes and Punishments, Introduction, p. 2, where the expression is found. “This sole end the greatest happiness of the greatest number”).
[11. ]Montague, Bentham’s Fragment on Government, p. 34.
[12. ]Bentham’s Works, x. (“Extracts from Bentham’s Commonplace Book”), p. 73.
[13. ]Sir Roland Knyvet Wilson, Bart., History of Modern English Law (ed. 1875), p. 136.