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LECTURE VI: The Period of Benthamism or Individualism 1 - 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).
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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.
Benthamite Ideas as to the Reform of the Law
Bentham considered exclusively as a reformer of the law of England achieved two ends.
He determined, in the first place, the principles on which reform should be based.
He determined, in the second place, the method, i.e. the mode of legislation, by which, in England, reform should be carried out.
As to the Principles14 of Law Reform. The ideas which underlie the Benthamite or individualistic scheme of reform may conveniently be summarised under three leading principles and two corollaries.
Legislation is a Science.
English law, as it existed at the end of the eighteenth century, had in truth developed almost haphazard, as the result of customs or modes of thought which had prevailed at different periods. The laws actually in existence had certainly not been enacted with a view to any one guiding principle. They had, indeed, for the most part never been “enacted” (in the strict sense of that word) at all. They were, as they still indeed to a great extent are, the result of judicial legislation built up in the course of deciding particular cases. English law had in fact grown, rather than been made, and the language used by Paley with regard to the constitution might, with the change of one word, be applied to the whole law of England.
The [law] of England, like that of most countries in Europe, hath grown out of occasion and emergency; from the fluctuating policy of different ages; from the contentions, successes, interests, and opportunities of different orders and parties of men in the community. It resembles one of those old mansions, which, instead of being built all at once, after a regular plan, and according to the rules of architecture at present established, has been reared in different ages of the art, has been altered from time to time, and has been continually receiving additions and repairs suited to the taste, fortune, or conveniency of its successive proprietors. In such a building we look in vain for the elegance and proportion, for the just order and correspondence of parts, which we expect in a modern edifice; and which external symmetry, after all, contributes much more perhaps to the amusement of the beholder than the accommodation of the inhabitant.15
But Bentham saw clearly several facts which Paley failed to recognise. The revered mansion was not only antiquated, but in many respects so unsuited to the requirements of the times, that it was to its numerous inhabitants the cause not only of discomfort but even of misery. In order to amend the fabric of the law we must, he insisted, lay down a plan grounded on fixed principles; in many instances not amendment but reconstruction was a necessity; and even gradual improvements, if they were to attain their object, must be made in accordance with fixed rules of art. Legislation, in short, he proclaimed is a science based on the characteristics of human nature, and the art of law-making, if it is to be successful, must be the application of legislative principles. Of these ideas Bentham was not the discoverer but the teacher; he may be described as the prophet who forced the faith in scientific legislation upon the attention of a generation of Englishmen by whom its truth or importance was denied or forgotten.
The right aim of legislation is the carrying out of the principle of utility, or, in other words, the proper end of every law is the promotion of the greatest happiness of the greatest number.
This principle, obtained as we have seen from Priestley, is the formula with which popular memory has most closely connected the name of Bentham.
With the objections to which the principle of utility is open, either as a standard or as a source of morality, any person at all interested in ethical discussions is now well acquainted. In these lectures we are concerned with the utilitarian dogma as an axiom not of morals but of legislation, and one may with confidence assert that the principle of utility is far more easily applicable to law than to morals, and this for at least two reasons:
First. Legislation deals with numbers and with whole classes of men; morality deals with individuals. Now it is obviously easier to determine what are the things which as a general rule constitute, or rather promote, the happiness or well-being of a large number of persons, or of a State, than to form even a conjecture as to what may constitute the happiness of an individual. To ensure the happiness of a single man or woman even for a day is a task impossible of achievement; for the problem wherein may lie the happiness of one human being is, though narrow, so infinitely complex that it admits not of solution. To determine, on the other hand, the general conditions which conduce to the prosperity of the millions who make up a State is a comparatively simple matter. Let it be noted, also, that whilst ethical maxims may aim at directly benefiting or ensuring the welfare of individuals, a law never attempts more than the production of a state of things favourable to the welfare of the citizens of a State. When it is said, in accordance with Benthamite phraseology, that a good law is a law productive of the greatest happiness of the greatest number, what is meant is not that a law really makes men happy, but that it favours the existence of the conditions under which it is likely that the persons subject to it may prosper, and obtain the happiness open to human beings. But here we come across another distinction.
Secondly. Law is concerned primarily with external actions, and is only in a very secondary and indirect manner concerned with motives. Morality, on the other hand, is primarily concerned with motives and feelings, and only secondarily and indirectly with actions. But it is far easier to maintain that the principle of utility is the proper standard or criterion of right action than that it supplies the foundation, or, at any rate, the whole of the foundation, on which rests the conviction that one feeling or motive is right and another wrong.
However this may be, the generality and the externality of law are the circumstances which enable us to test the goodness or the badness, the wisdom or the folly, of a given law by the criterion of utility. Indeed, if once the meaning of this standard be understood, it is hard to see how any one can deny its applicability, without involving himself in something like absurdity or self-contradiction. How can it be maintained that a law which on the whole increases human happiness is a bad law, or that a law which on the whole diminishes it is a good law? But if these questions supply their own answer, the principle of utility is admitted to be a good test, as far as it goes, of the character of a law; and half the plausibilities by which during the age of Blackstone the anomalies or absurdities of English law were defended turn out, when submitted to Bentham’s criterion, to be nothing better than hollow fallacies.
Ideas of happiness, it has been objected, vary in different ages, in different countries, and among different classes or races; a legislator therefore gains no real guidance from the dogma that laws should aim at promoting the greatest happiness of the greatest number.
To this objection, which assumes many different forms, there exist at least two answers.
The first is that, even if the variability of men’s conceptions of happiness be admitted, the concession proves no more than that the application of the principle of utility is conditioned by the ideas of human welfare which prevail at a given time in a given country. Nor, in truth, is there any reason why a convinced utilitarian should refuse to accept this conclusion. It embodies a principle of practical importance. In legislating for any country we must take into account the habits, the feelings, or the prejudices, of its inhabitants, and allow for their ideas of what constitutes happiness. Freedom of testamentary disposition is a right or a privilege which few Englishmen desire to surrender. The compulsory division into more or less equal shares of a deceased person’s property among his heirs is a fundamental principle of the law of France, and one which receives the approval of the French people. But testamentary freedom and the equal division of a deceased person’s property are at bottom inconsistent institutions. Must we therefore say that one or other of them is bad—i.e. is opposed to the principle of utility? Surely not. The reply both of good sense and of sound logic is that the law supporting testamentary freedom may be a good law for Englishmen, and the law supporting the equal division of a dead man’s property may be a good law for Frenchmen. Each law may promote the happiness of the people among whom it exists; the reason is that Englishmen and Frenchmen form in this matter different conceptions of happiness.
The second reply is that, as regards the conditions of public prosperity, the citizens of civilised states have, in modern times, reached a large amount of agreement. Who can seriously doubt—whatever be the idle contentions of paradox-mongers—that a plentiful supply of cheap food, efficient legal protection against violence or fraud, and the freedom of all classes from excessive labour conduce to the public welfare? What man out of Bedlam ever dreamed that a country was the happier for the constant recurrence of pestilence, famine, and war; but who then can deny that laws which promote the cultivation of the soil, ensure the public health, keep the country at peace, and avert invasion, are, as far as they go, good laws? To all these and similar questions the inhabitants of every country which enjoys European civilisation will give one and the same reply. Their general agreement, indeed, goes much further than this. Nowhere is it doubted by men of average intelligence that the reintroduction of torture or the re-establishment of slavery would be the gravest of calamities. We all have learned by this time that every kind of punishment which causes more pain than it averts is an evil. We all admit that the due and regular administration of justice, the promotion of education, the opening of various careers to the majority of the people, the extension of the innocent enjoyments of life among all classes, promote human happiness, and that laws which confer these benefits are good laws. In matters of legislation, in short, subtle refinements as to the nature of happiness are misplaced. The homely saying, that you ought not to weigh butcher’s meat in diamond scales, has a practical weight which is overlooked by paradoxical thinkers. Laws deal with very ordinary matters, and deal with them in a rough and ready manner. The character therefore of a law may well be tested by the rough criterion embodied in the doctrine of utility.
There exists, however, a good reason for examining with care an objection to which it is easy to supply conclusive answers. Bentham and his disciples have displayed a tendency to underestimate the diversity between human beings. Hence they have too easily supposed that the ideas of happiness prevailing at a given time throughout the civilised countries of Europe were entirely uniform; and have fallen into the further error of assuming that the same notion of happiness prevails in all countries, and has more or less prevailed in all ages. This supposition facilitates legislation, but, like all assumptions which are not strictly true, has led both to speculative and to practical mistakes. The weakness of the Benthamites as legislators has been, not their devotion to the principle of utility, but their feeling that laws which in the nineteenth century promoted the happiness of Englishmen must, with rare exceptions, promote at all times the happiness of the inhabitants of all countries.16
The foundation then of legislative utilitarianism is the combination of two convictions. The one is the belief that the end of human existence is the attainment of happiness,17 or in other words, faith in the principle of utility; the other is the assurance that legislation is a science and that the aim of laws is the promotion of human happiness. Neither of these convictions entertained separately will make a man a legislative utilitarian.
A person may be a strict utilitarian and hold that the attainment of happiness is the true end and object of existence, yet if he does not believe that law may do much to produce human happiness, or fails to perceive that law is a science, he will hardly concern himself with the systematic reform of the law. A man, again, who believes that good legislation is conducive to human prosperity, will hardly be a successful law reformer if he does not grasp the connection between legislation and the principle of utility.
Samuel Johnson was in morals a thorough-going utilitarian,18 but he never displayed the remotest interest in the amendment of the laws of England. His nature was conservative, his turn of character, no less than his religious convictions, made him consider as slight the influence of laws on the happiness of mankind.
Paley19 stands in spirit nearer to Bentham. His theology and his moral philosophy are avowedly utilitarian. His writings betray a keen interest in legal problems. He possessed the intellect of an enlightened lawyer. But he probably did not believe that law could be treated as a science; he either had not grasped, or did not care to work out, the idea that the laws of England might be systematically remodelled so as to promote the greatest happiness of the greatest number of Englishmen. His philosophy, utilitarian though it was, is, in so far as he applied it to law, an ingenious defence of things as they stood in 1786. He is neither an innovator nor a reformer, but like Blackstone an apologist.
A man, on the other hand, may have a fervent belief that the laws of a country are radically wrong and may be prepared to advocate their change even at the cost of violence. If, however, he is guided by some idea of abstract right,20 as a thing independent of utility, he may, like Rousseau, popularise ideas which kindle a revolution, but he will hardly become a systematic law reformer. He is not possessed of any definite criterion by which to test the merits or defects of a law; he may perceive that things are wrong; he cannot perceive, as Bentham and his disciples saw, or thought they saw, a definite principle by the application whereof bad laws might in every case be either got rid of or amended. For utilitarianism in the field of legislation, whatever the speculative objections—and they are not small—which lie against it in the sphere of ethics, has one saving virtue. It directs a legislator’s attention to the consequences of any proposed enactment. An innovator who recommends or denounces a law or institution, because of its conformity or opposition to the law of nature or the moral instincts of mankind, is under the greatest temptation to make his own feelings the test of expediency, and is certainly less inclined than a Benthamite, to weigh the actual or probable effects of legislation; and if it be objected that zealots for the law of nature have often advocated or carried out beneficial changes, the best reply is, that the law of nature has often been a name for the dictates of obvious expediency. The privileges, for example, of the nobles under the Ancien Régime were in 1789 palpably opposed to the welfare of the French people. Bentham would have said that they were opposed to the principle of utility. A French reformer would have alleged that they were opposed to the law of nature. But this difference of language was at bottom little more than a different way of describing one and the same fact, viz., that the welfare of France required the establishment of equal civil rights among Frenchmen. Towards the close, indeed, of the eighteenth century, appeals to the doctrine of utility, and appeals to the law of nature were often in reality, though not in words, appeals to one and the same principle. The failure to perceive this led to some strange results. Bentham sometimes came into conflict with men who in reality shared his principles. He dissected with merciless severity the patent fallacies contained in the American Declaration of Independence, with its enumeration as self-evident truths of the dogmas that all men are created equal, that they are endowed by their Creator with certain inalienable rights, and that among these are to be found the right to life, liberty, and the pursuit of happiness. To Bentham all these abstract statements of innate rights were as hateful as to Burke; they presented themselves to his mind as a mere “hodge-podge of confusion and absurdity.”21 But the American Declaration of Independence did, nevertheless, though in a form open to every logical objection, embody that faith in laissez faire which was in practice the most potent and vital principle of Benthamite reform.
Every person is in the main and as a general rule the best judge of his own happiness. Hence legislation should aim at the removal of all those restrictions on the free action of an individual which are not necessary for securing the like freedom on the part of his neighbours.22
This dogma of laissez faire is not from a logical point of view an essential article of the utilitarian creed. A benevolent despot of high intelligence, while admitting that the proper end of scientific legislation is to promote the greatest happiness of the greatest number, might contend that the mass of his people, owing to ignorance and prejudice, did not understand their own interests, and might go on to maintain and act on the principle, that as his subjects were neither the best judges of the conditions which constituted happiness, nor understood the means by which these conditions were to be attained, it was his duty to enforce upon them laws which, though they might diminish individual liberty, were likely nevertheless to ensure the well-being of his people. This position is not in itself illogical;23 it was held by the benevolent despots of the eighteenth century, and would have commended itself to so acute a thinker as Voltaire, for we may assume with confidence that he would not have condemned a ruler who by severe legislation overthrew the reign of superstition or intolerance. But, though laissez faire is not an essential part of utilitarianism it was practically the most vital part of Bentham’s legislative doctrine, and in England gave to the movement for the reform of the law, both its power and its character. At the time when Bentham became the preacher of legislative utilitarianism the English people were proud of their freedom, and it was the fashion to assert, that under the English constitution no restraint, which was not requisite for the maintenance of public order, was placed on individual liberty. Bentham saw through this cant, and perceived the undeniable truth, that, under a system of ancient customs modified by haphazard legislation, unnumbered restraints were placed on the action of individuals, and restraints which were in no sense necessary for the safety and good order of the community at large, and he inferred at once that these restraints were evils. Consider for a moment but one fragment of the Benthamite dialogue between Mr. Justice Ashurst (whose charge sums up the platitudes of toryism) and Truth, the defender of human liberty.
Ashurst.The law of this country only lays such restraints on the actions of individuals as are necessary for the safety and good order of the community at large.
Truth. I sow corn: partridges eat it, and if I attempt to defend it against the partridges, I am fined or sent to gaol: all this, for fear a great man, who is above sowing corn, should be in want of partridges.
The trade I was born to is overstocked: hands are wanting in another. If I offer to work at that other, I may be sent to gaol for it. Why? Because I have not been working at it as an apprentice for seven years. What’s the consequence? That, as there is no work for me in my original trade, I must either come upon the parish or starve.
There is no employment for me in my own parish: there is abundance in the next. Yet if I offer to go there, I am driven away. Why? Because I might become unable to work one of these days, and so I must not work while I am able. I am thrown upon one parish now, for fear I should fall upon another, forty or fifty years hence. At this rate how is work ever to get done? If a man is not poor, he won’t work: and if he is poor, the laws won’t let him. How then is it that so much is done as is done? As pockets are picked—by stealth, and because the law is so wicked that it is only here and there that a man can be found wicked enough to think of executing it.
Pray, Mr. Justice, how is the community you speak of the better for any of these restraints? and where is the necessity of them? and how is safety strengthened or good order benefited by them?
But these are three out of this thousand: not one of them exists in France.24
Here we have Bentham’s denunciation of the needless restraints imposed in 1823 upon individual activity. It may be termed the eulogy of laissez faire, but laissez faire, be it noted, was with Bentham and his disciples a totally different thing from easy acquiescence in the existing conditions of life. It was a war-cry. It sounded the attack upon every restriction, not justifiable by some definite and assignable reason of utility, upon the freedom of human existence and the development of individual character. Bentham assaulted restraints imposed by definite laws. John Mill carried the war a step further, and, in his treatise On Liberty, denounced restraints on the action of individuals imposed by social habits or conventions. This struggle for personal liberty, which means much more than mere resistance to obvious oppression, such as could be guarded against by the Habeas Corpus Act, gave to early Benthamism its whole spirit and life as a militant creed.
From these three guiding principles of legislative utilitarianism—the scientific character of sound legislation, the principle of utility, faith in laissez faire—English individualists have in practice deduced the two corollaries, that the law ought to extend the sphere and enforce the obligation of contract, and that, as regards the possession of political power, every man ought to count for one and no man ought to count for more than one. Each of these ideas has been constantly entertained by men who have never reduced it to a formula or carried it out to its full logical result; each of these ideas has profoundly influenced modern legislation; each deserves separate attention.25
(i.) The Extension of the Sphere of Contract. Once admit that A, B, or C can each, as a rule, judge more correctly than can any one else of his own interest, and the conclusion naturally follows that, in the absence of force or fraud, A and B ought to be allowed to bind themselves to one another by any agreement which they each choose to make—i.e. which in the view of each of them promotes his own interest, or, in other words, is conducive to his own happiness.
From one point of view, indeed, a contract between A and B whereby, for example, A agrees to sell and B to buy a horse for £20, places a limit upon the freedom of each of them, since A comes under a legal compulsion to sell, and B comes under a legal compulsion to pay for the horse; but, if the matter be fairly considered, it is easily seen that freedom of contract is an extension of an individual’s power to do what he likes, i.e. of his freedom. As both A and B are at full liberty not to enter into a contract at all, it must be assumed that, at the moment of contracting, A wishes to have £20 instead of the horse, and B wishes to have the horse at the price of £20. For the law to give effect to the agreement by which this result is attained, as also to more complicated contractual engagements, is nothing else than an extension of each individual’s power to get what he wants.26
To these abstract grounds for extending contractual freedom add the consideration that the substitution of relations founded on contract for relations founded on status was for individualists generally,27 and especially for Benthamite liberals, the readiest mode of abolishing a whole body of antiquated institutions, which presented, during the eighteenth century, a serious obstacle to the harmonious development of society. Hence individualistic reformers opposed anything which shook the obligation of contracts, or, what at bottom is the same thing, limited the contractual freedom of individuals. It is no accident that Bentham very early in his career assailed the usury laws, or that freedom of trade in money, in goods, and in labour, has been the watchword of the statesmen who in their policy and their legislation have most closely followed the footsteps of Bentham. To individualism, again, is assuredly due that legalisation of divorce, which is itself a mere extension of the area of contractual freedom.
The very zeal, however, for freedom of contract, which is a note of individualism, raises questions which, on the principles of individualism, do not admit of an easy answer.
Ought a borrower to have the right to obtain a loan, which he urgently requires, by the promise to pay the most usurious interest? Ought a man, to take an extreme instance, to be allowed to make a contract binding himself to be the servant of his neighbour for life?28 To put the matter more generally, ought every person of full age, acting with his eyes open and not the victim of fraud, but who nevertheless is placed in a position in which from the pressure of his needs he can hardly make a fair bargain, to be capable of binding himself by a contract? If these and the like questions be answered in the affirmative an individual’s full contractual capacity is preserved, but he is in danger of parting, by the very contract which he is allowed to make, with all real freedom. If, on the other hand, these questions are answered in the negative, then many men and women are protected against certain forms of hardship or injustice, but contractual freedom is sacrificed and the validity of the belief which underlies individualistic legislation, that men are on the whole the best judges of their own interest, is in effect denied. The difficulty is in all these cases, and in others which might easily be imagined, the same; there is a perpetual danger that unlimited contractual capacity, which is looked upon as an extension of individual freedom, may yet be so used by some individual as to deprive him of the very freedom of which it is assumed to be the exercise. To the particular questions here raised by way of illustration the older Utilitarians, at any rate, would generally have answered that each man being as a rule the best judge of his own interest, his right to bind himself by contract should be left untouched, even though he might sometimes use the right so as to do himself an injury.
This difficulty of fixing the right limit to contractual freedom suggests a theoretical inquiry which always raises, as it did raise in the time of Bentham, a question or problem of great practical importance.
Is it desirable to fix a limit on the right, which, though in England it has not received a technical name, is known in foreign countries as the “right of association”29 —which is nothing else than the right of two or more citizens, X, Y, and Z, to combine together by agreement among themselves for the attainment of a common purpose?
This right has the peculiarity that it presents two different and even opposed aspects, according to the point of view from which it is regarded. It may, on the one hand, be looked upon as the mere extension of each citizen’s individual freedom—that is, of his right to manage his own affairs in his own way so long as he does not trench upon the legal rights of his neighbours, whence it apparently follows that whatever course of action X, or Y, or Z may each lawfully pursue when acting without agreement, that course of action X, Y, and Z may all of them lawfully pursue when acting together under an agreement; but the right of association may, on the other hand, be looked upon as a right to a very special character, in that the exercise thereof may under certain circumstances greatly restrict the freedom of individuals.30 That this is so is due to the fact, which has received far too little notice from English lawyers, that, whenever men act in concert for a common purpose, they tend to create a body which, from no fiction of law, but from the very nature of things, differs from the individuals of whom it is constituted. Esprit de corps is a real and a powerful sentiment which drives men to act either above, or, still more often, below the ordinary moral standard by which they themselves regulate their conduct as individuals. A body, moreover, created by combination—a natural corporation, if the expression may be allowed—whether a political league, a church, or a trade union, by its mere existence limits the freedom of its members, and constantly tends to limit the freedom of outsiders. Its combined power is created by some surrender of individual liberty on the part of each of its members, and a society may from this surrender acquire a strength far greater than could be exercised by the whole of its members acting separately; a disciplined regiment of a thousand men, acting under command, is a far more formidable assailant than a thousand men who, even though armed, act without discipline and combination. An association may in this way constantly acquire powers which curtail the freedom of outsiders. A private citizen has often found it impossible to disobey the commands of a political association or of a church. Hence the right of association has, even when considered from a merely speculative point of view, a paradoxical character. A right which seems a necessary extension of individual freedom may, it would seem, become fatal to the individual freedom which it seems to extend. And this speculative paradox leads to a practical question which has in England perplexed the whole combination law.
May X, Y, and Z lawfully bind themselves by agreement to act together for every purpose which it would be lawful for X, or Y, or Z to pursue if he were acting without concert with others?
If this question be answered in the affirmative then contractual freedom, and therefore individual liberty of action, receives what appears to be a legitimate extension, but thereupon from the very nature of things two results immediately ensue. The free action of X, or Y, or Z is, in virtue of the agreement into which they have entered, placed for the future under strict limits, and their concerted action may grievously interfere with the liberty of some third party, T. Thus if X, Y, and Z, being employers of labour, bind themselves never to employ a workman who has taken part in a strike, or, being workmen, bind themselves never to work with any man who is not a member of a trade union, then both the liberty of the individual X to manage his business or to do his work on such terms as he thinks fit is gone, and the liberty of T, who has been the leader of a strike, or, as the case may be, has refused to join a trade union, may be reduced to nothing, and he may be deprived of the means of earning an honest livelihood. If, on the other hand, the question before us be answered in the negative, and, in the interest of individual freedom, the law forbids X, Y, and Z to combine for purposes which they might each lawfully pursue if acting without concert, then the contractual power of X, Y, and Z, or, in other words, their liberty of action, suffers a serious curtailment.
What, on the principles of individualism, is the true reply to our problem?
To this inquiry Benthamites have never, it is submitted, given a perfectly consistent or satisfactory reply.
In truth they never fully realised the extent and the difficulty of the problems which, during the last fifty or sixty years, have been raised as to the limits which ought to be placed on the right of association. Individualists tacitly assumed that each man if left to himself would in the long run be sure to act for his own true interest, and that the general welfare was sufficiently secured if each man were left free to pursue his own happiness in his own way, either alone or in combination with his fellows. On the application, however, of this doctrine there existed much difference of opinion. Some Benthamites, such as Place, believed that trade unionism would disappear if only the laws against trade combinations were repealed; but, whilst the elder Benthamites were as a rule anxious to extend the right of association as a part of individual freedom, some of them were prepared to cut down rigorously the right of combination whenever it in fact menaced the right of each individual to manage his trade or dispose of his labour on such terms as he himself thought good. From this point of view the report produced by Nassau Senior, a typical economist of 1830, is important. A commission, of which he was the principal member,
recommend that a law should be passed clearly reciting the common law prohibitions of conspiracy and restraint of trade. The law should go on to forbid, under severe penalties, “all attempts or solicitations, combinations, subscriptions, and solicitations to combinations” to threaten masters, to persuade blacklegs, or even simply to ask workmen to join the union. Picketing, however peaceful, was to be comprehensively forbidden and ruthlessly punished. Employers or their assistants were to be authorised themselves to arrest men without summons or warrant, and hale them before any justice of the peace. The encouragement of combinations by masters was to be punished by heavy pecuniary penalties, to be recovered by any common informer. “This,” say the commissioners, “is as much as we should recommend in the first instance. But if it should be proved that the evil of the combination system cannot be subdued at a less price . . . we must recommend the experiment of confiscation”—confiscation, that is, of the funds “subscribed for purposes of combination and deposited in savings banks or otherwise.”31
But if in 1830 some individualists were prepared to cut down the right of combination as stringently as might be required for the absolute protection of each individual’s freedom of action, others have taken a different view.
Turn to the treatise, On Liberty.
“Thirdly,” writes Mill in 1859, “from this liberty of each individual follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived.”32
Unless these words be understood in a very non-natural sense, the Benthamites of 1859, as represented by their most authoritative exponent, were apparently ready, with a view to securing the right of combination, to curtail the free action of individuals.
However this may be, the utilitarians, whether in 1830 or 1859, had not given sufficient attention to the difficulty of combining the contractual freedom of each individual when acting alone with that unlimited right of association which, from one point of view, is a main element of individual freedom.
This gap in the Benthamite creed is of untold importance. It is closely connected with the tendency of all individualists to neglect the social aspect of human nature. In the sphere of legislation, as elsewhere, confusion of thought has led, as it always will lead, to confusion of action.
(ii.) Every Man to count for one and no Man for more than one. This deduction from the axioms of utilitarianism forms the intellectual link between Benthamism and democracy.
The idea that each man ought to receive the same share of political power stands manifestly in close connection both with the assumption that the differences which divide man from man are insignificant in comparison with the characteristics which all men have in common, and with the conviction that every man is on the whole the best judge of his own interest. These conceptions, which receive their embodiment in the maxim that every man should count for one and no man for more than one, led Bentham (in later life33 at least) and most of his immediate disciples to the practical conclusion that the best form of government is a democracy. “Every man,” as they argued,
follows his own interest as he understands it, and the part of the community which has political power will use it for its own objects. The remedy is to transfer political power to the entire community. It is impossible that they should abuse it, for the interest which they will try to promote is the interest of all, and the interest of all is the proper end and object of all legislation.34
Nor, on strict utilitarian principles, was it to be expected than [sic] any other government than a democracy would legislate with a view to the happiness of the whole community; a true monarch would look to his own interest, an oligarchy would administer public affairs with a view to the interests not of all but of a part of the citizens, viz. of the oligarchy. Force, moreover, was added to these logical considerations by the actual condition of the European world, and especially of England. That the reformers of Bentham’s day were unfair and one-sided critics of English institutions is past denial, but it is equally certain that England did at the moment suffer greatly from the predominance of particular classes and from the influence of sinister interests. There was scarcely a department of the law, whether public or private, the state of which did not prove the truth of this assertion.35 The Benthamites, therefore, were as a rule democrats, and the English democrats36 of 1830 were as a rule Benthamites, yet for all this there was no necessary connection between Benthamism and the democratic creed.37 The doctrine, in short, that beneficial legislation was impossible38 under any form of government except a democracy, was no fundamental article of utilitarianism. It was in truth a practical conclusion drawn from the actual condition of the European world, but was capable of modification.
It might be modified by at least two considerations. A sound utilitarian might, in the first place, hold that, under a constitution which was not a democracy, power might be placed in the hands of a class so wide that the interests of that class would, in general, coincide with the interest of the whole people. Under such a condition of things there was no necessity for insisting upon the constitution being made strictly democratic. This was substantially the attitude of the philosophic Radicals with regard to the Reform Act of 1832. The Act, they believed, would transfer political supremacy to the middle classes, and the English middle classes they thought were so numerous and so varied in character as to share the feelings and, what to a utilitarian was of more consequence, pursue the true interest, of the majority of the nation; a Parliament elected by the ten-pound householders would study to promote the greatest happiness of the greatest number, i.e. of the whole community.
A sound utilitarian might in the second place doubt whether the citizens of a given country were sufficiently enlightened to understand their own interest, and entertaining this doubt might, with the utmost consistency, prefer for such a country the rule of an intelligent despot or of an intelligent minority to the rule of an unintelligent democracy.
As to the capacity of the people to recognise their own interest, there was among the Benthamites themselves a division of opinion.
The predominant belief of the school was represented by the democratic utilitarianism of James Mill.
In politics, an almost unbounded confidence in the efficacy of two things: representative government, and complete freedom of discussion. So complete was my father’s reliance on the influence of reason over the minds of mankind, whenever it is allowed to reach them, that he felt as if all would be gained if the whole population were taught to read, if all sorts of opinions were allowed to be addressed to them by word and in writing, and if by means of the suffrage they could nominate a legislature to give effect to the opinions they adopted. He thought that when the legislature no longer represented a class interest, it would aim at the general interest, honestly and with adequate wisdom; since the people would be sufficiently under the guidance of educated intelligence, to make in general a good choice of persons to represent them, and having done so, to leave to those whom they had chosen a liberal discretion. Accordingly aristocratic rule, the government of the Few in any of its shapes, being in his eyes the only thing which stood between mankind and an administration of their affairs by the best wisdom to be found among them, was the object of his sternest disapprobation, and a democratic suffrage the principal article of his political creed, not on the ground of liberty, rights of man, or any of the phrases, more or less significant, by which, up to that time, democracy had usually been defended, but as the most essential of “securities for good government.” In this, too, he held fast only to what he deemed essentials; he was comparatively indifferent to monarchical or republican forms—far more so than Bentham, to whom a king, in the character of “corruptor-general,” appeared necessarily very noxious.39
The other aspect of the relation between utilitarianism and democracy was represented by John Austin.
He attached much less importance than formerly to outward changes; unless accompanied by a better cultivation of the inward nature. He had a strong distaste for the general meanness of English life, the absence of enlarged thoughts and unselfish desires, the low objects on which the faculties of all classes of the English are intent. Even the kind of public interests which Englishmen care for, he held in very little esteem. He thought that there was more practical good government, and (which is true enough) infinitely more care for the education and mental improvement of all ranks of the people, under the Prussian monarchy, than under the English representative government; and he held, with the French Economistes, that the real security for good government is “un peuple éclairé,” which is not always the fruit of popular institutions, and which if it could be had without them, would do their work better than they. Though he approved of the Reform Bill, he predicted, what in fact occurred, that it would not produce the great immediate improvements in government which many expected from it. The men, he said, who could do these great things, did not exist in the country. There were many points of sympathy between him and me, both in the new opinions he had adopted and in the old ones which he retained. Like me, he never ceased to be an utilitarian, and with all his love of the Germans, and enjoyment of their literature, never became in the smallest degree reconciled to the innate-principle metaphysics. He cultivated more and more a kind of German religion, a religion of poetry and feeling with little, if anything, of positive dogma; while in politics (and here it was that I most differed with him) he acquired an indifference, bordering on contempt, for the progress of popular institutions; though he rejoiced in that of Socialism, as the most effectual means of compelling the powerful classes to educate the people, and to impress on them the only real means of permanently improving their material condition, a limitation of their numbers. Neither was he, at this time, fundamentally opposed to Socialism in itself as an ultimate result of improvement. He professed great disrespect for what he called “the universal principles of human nature of the political economists,” and insisted on the evidence which history and daily experience afford of the “extraordinary pliability of human nature” (a phrase which I have somewhere borrowed from him); nor did he think it possible to set any positive bounds to the moral capabilities which might unfold themselves in mankind, under an enlightened direction of social and educational influences. Whether he retained all these opinions to the end of life I know not. Certainly the modes of thinking of his later years, and especially of his last publication, were much more Tory in their general character than those which he held at this time.40
In this passage we have the explanation of the curious historical phenomenon that after the middle of the nineteenth century Austin, Bowring, W. R. Greg, Robert Lowe, and other rigid utilitarians adopted, without any fundamental change of principles, a peculiar type of conservatism. They felt that a Parliament constituted under the Reform Act of 1832 was more likely to legislate in accordance with utilitarian principles than would be any more democratic assembly. Their forecast of the future has been justified by subsequent events. A House of Commons representing the householders of the United Kingdom has shown far less inclination than did a House elected by the £10 householders to respect either the dogmas or the sentiment of Benthamism.
As to the Method of Law Reform. Bentham’s influence in setting before reformers an ideal to be attained by the amendment of the law has received general and due acknowledgment;41 his influence in determining the method, i.e. the legislative means, by which the amendment of the law might be best affected, deserves equal acknowledgment, but has received less notice.
To appreciate the effect of his authority in this matter we must bear in mind that laws are with us created and changed in two different ways—that is, either by Act of Parliament, or by judicial legislation arising from the action of the Courts in deciding the particular cases which come before them. Even at the present day the greater part and the most important of the laws by which Englishmen are governed are in reality judge-made law, and this was much more obviously the case at the beginning of the nineteenth century.42 When, therefore, in the latter part of the eighteenth century jurists and philanthropists perceived that the law of England stood in need of amendment and expansion, it was apparent that this end might conceivably be attained either by the free use of judicial authority or by the employment of parliamentary sovereignty. Two reformers arose of equal though of different genius. The one was Lord Mansfield, the other Bentham. The Chief-Justice adopted the judicial, the utilitarian philosopher advocated and adopted the parliamentary, method of legislation and reform.
Lord Mansfield,43 as Chief-Justice of England, presided over the King’s Bench for twenty-four years; he was not only in name but in reality the head of the English common law; he was a jurist of genius; he filled a position of unrivalled authority; he achieved as much in the way of reform as was achievable by the means at his disposal. Yet his labours, taken as a whole, were not crowned with success. In some of his innovations he distinctly failed—as notably in the endeavour to reduce within narrow limits the rule that a promise not under seal needed a consideration for its validity—and even where he was to a certain extent successful, successors, who did not inherit his spirit, limited the operation of the principles which he had introduced into the law. Lord Mansfield lived at least two centuries too late. If the body of English law was to be remodelled or amended the work could be done by Parliament, and by Parliament alone.
Bentham learned the lesson of Lord Mansfield’s career; he learned it the more easily because the element of fiction, which is an almost essential feature of judicial innovation, shocked his logical understanding, and was in his eyes little better than a fraud by which judges usurped authority, which, when they had wrongfully obtained it, they had not the intelligence to use with wisdom. The importance, moreover, which he attached to the publication of law increased his enthusiasm for codification, and an English code, it was clear, must be the work of Parliament. He determined or assumed that the law must be reformed, if at all, by parliamentary enactment. His determination, justified by the circumstances of the age, was decisive. It has been followed by every man, whether a utilitarian or not, who since Bentham’s time has wished to change systematically the law of the land.
But, if the legislature was the only body which possessed the power to carry through a utilitarian reformation of the law, it became before Bentham’s death apparent both to himself and his disciples—the philosophic Radicals—that the unreformed Parliament, just because it mainly represented the interests and feelings of landowners and merchants, would not sanction fundamental improvements in the law of England. Benthamism thus led to the demand for such a reform in the constitution of Parliament as should make it a fit instrument for carrying out Benthamite ideas.
The Acceptance of Benthamism
The existence of a school of thinkers bent on the reform of the law in accordance with utilitarian principles was, as already pointed out,44 one of the causes which brought the era of quiescence to its close.
Two questions remain for consideration, which to a student of opinion are of profound interest—First. Why did the Benthamite creed obtain ready acceptance? Secondly. What was the extent of that acceptance?
To the inquiry why the teaching of Bentham obtained from, say, 1825 onwards, ready acceptance among thoughtful Englishmen, the right reply, put in the most general terms, is, that when it became obvious to men of common sense and of public spirit that the law required thorough-going amendment, the reformers of the day felt the need of an ideal and of a programme.45 Both were provided by Bentham and his school. The ideal was the attainment of the greatest happiness for the greatest number, the programme was to be found in the suggestions for the amendment of the law on utilitarian principles which, during a period of forty years, had been elaborated by Bentham and his disciples. Note, however, that the men who as legislators or writers actually guided the course of legislation were in many instances not avowed Benthamites, and that some of them would have certainly repudiated the name of utilitarians.46 The law reformers, whether in or out of Parliament—Mackintosh, Brougham, Romilly, Joseph Hume, Grote, Roebuck, Macaulay, O’Connell, Peel, the body of Edinburgh Reviewers, with their ablest representative Sydney Smith—were all at bottom individualists. They were all, consciously or unconsciously, profoundly influenced by utilitarian ideas. But these men were men of the world; they were, even when avowed Benthamites, occupied with and used to the transaction of public affairs; they were most of them members of Parliament; they loved practical compromises as much as Bentham loved logical deductions from strict principles; they were utilitarians, but they accepted not the rigid dogmas of utilitarianism, but that Benthamism of common sense which, under the name of liberalism, was to be for thirty or forty years a main factor in the development of English law. This liberalism was the utilitarianism not of the study but of the House of Commons or of the Stock Exchange. It modified the doctrines of Bentham, so that, when they were introduced into Acts of Parliament, they were not really carried out to their full extent,47 and were thus made the more acceptable to the English people. The general answer, then, to the question why Benthamism obtained ready acceptance is that it gave to reformers, and indeed to educated Englishmen, the guidance of which they were in need; it fell in with the spirit of the time.48
This answer, however, is very general, not to say indefinite. To state that a creed falls in with the spirit of the time is, after all, nothing but a vague way of asserting that its propagation is aided by favourable conditions. If we are to obtain anything like a definite answer to our inquiry we must ascertain the specific conditions which, say from 1825 onwards, favoured the reception of Benthamite doctrine. They were in part the transitory circumstances of a particular era, and in part certain permanent tendencies of English thought.
Benthamism exactly answered to the immediate want of the day.
In 1825 Englishmen had come to feel that the institutions of the country required thorough-going amendment; but Englishmen of all classes, Whigs and reformers, no less than Tories, distrusted the whole theory of natural rights, and shunned any adoption of Jacobinical principles. The dogmatism and the rhetoric of the French Revolution had even among Radicals lost their charm. The Jacobins or Terrorists,49 some of whom were still living, had been apostles of the social contract, but the Jacobins were to Englishmen objects of horror—Robespierre was the confutation of Rousseau. The teacher who could lead England in the path of reform must not talk of the social contract, of natural rights, of rights of man, or of liberty, fraternity, and equality. Bentham and his disciples precisely satisfied this requirement; they despised and derided vague generalities, sentiments, and rhetoric; they thoroughly disbelieved in the social contract;50 nowhere can you find a more trenchant exposure of revolutionary dogmatism than in Bentham’s dissection of the “Declaration of the Rights of Man and the Citizen.”
“The things,” he writes, “that people stand most in need of being reminded of are, one would think, their duties; for their rights, whatever they may be, they are apt enough to attend to themselves . . . the great enemies of public peace are the selfish and dissocial passions. . . . What has been the object, the perpetual and palpable object, of this declaration of pretended rights? To add as much force as possible to those passions, already but too strong, to burst the cords that hold them in; to say to the selfish passions—There, everywhere is your prey! to the angry passions, There, everywhere is your enemy!”51
True it is that modern critics might attack Bentham’s own teaching as a form of political metaphysics; but his practical ingenuity,52 his reliance on argument, and his contempt for oratory, concealed from the English world no less than from Bentham himself, the a priori and abstract element which lies hid under Benthamite utilitarianism. Even the prosaic side of Bentham’s doctrines, which checks the sympathy of modern readers, reassured sensible Englishmen who in 1830 had come to long for reform but dreaded revolution. Bentham and his friends might be laughed at as pedants, but were clearly not Jacobins; and, after all, whatever were the defects of Bentham as a jurist, critics who really understood his life and work knew that the first of legal philosophers was no agitator, but a systematic thinker of extraordinary power, and a thinker who kept his eyes fixed, not upon vague and indefinite ideals, but upon definite plans for the practical amendment of the law of England. Where could a teacher be found so acceptable to men of common sense as a lawyer who had studied the law of England more profoundly than had many Lord Chancellors, and had studied it only with a view to removing its defects? He was a teacher of a totally different stamp from a thinker like Godwin, whose revolutionary creed was already out of date; it had been confuted by Malthus, and the theories of Malthus were accepted with fervour by the utilitarians. Bentham was a guide whose speculations lawyers could take seriously, and on whose labours intelligent Englishmen could look with a respect which could not be accorded to the sincere but childish radicalism of Cartwright, to the theatrical bluster of Burdett, to the oratory and egotism of Hunt, or to the inconsistent doctrine and dubious character of Cobbett. Bentham, in short, was a man of wealth and of genius, who had worked out with the greatest logical acumen plans for law reform which corresponded to the best ideas of the English middle class.
About 1830 utilitarianism was, as the expression goes, “in the air.”
Dr. Johnson, the moralist of the preceding generation, had admitted, and Paley, still the accepted English theologian of the day, had advocated, the fundamental dogma of Benthamism, that the aim of existence was the attainment of happiness. The religious teachers who touched the conscience of Englishmen tacitly accepted this doctrine. The true strength of Evangelicalism did not, indeed, lie in the fervour with which its preachers appealed, as they often did, to the terrors of hell as a sanction for the practice of virtue on earth, but the appeal was in fact a recognition of the principle of utility. When Bentham applied this principle to the amendment of the law he was in thorough harmony with the sentiment of the time; he gave no alarm to moderate reformers by applying to the appropriate sphere of legislation that greatest happiness principle which the public had long accepted as something like a dictate of common sense.
The essential strength, however, of utilitarianism lay far less in the transitory circumstances of a particular time than in its correspondence with tendencies of English thought and feeling which have exhibited a character of permanence.
Benthamism fell in with the habitual conservatism of Englishmen.
The Benthamites were, indeed, for the most part democrats, but the most democratic of the utilitarians did not attack any foundation of the English social system.53 They entertained the prevalent conceptions of individual happiness and of national well-being. To socialism of any kind they were thoroughly opposed; they looked with disfavour on State intervention; they felt no sympathy with those Spencean philanthropists who alarmed the Government in the days of the Six Acts, and the Cato Street Conspiracy; they were more adverse to measures of latent socialism than the Tory philanthropists, represented in literature by Southey, and in the world of practical benevolence by Lord Shaftesbury. The philosophical Radicals proposed to reform the law of England, not by any root and branch revolution, but by securing for all Englishmen the rights of property and of individual liberty which all Englishmen in theory enjoyed, but which, through defects in the law, were in fact denied to large classes.54 The English public then came to perceive that Benthamism meant nothing more than the attempt to realise by means of effective legislation the political and social ideals set before himself by every intelligent merchant, tradesman, or artisan. The architect who proposes to repair an existing edifice intends to keep it standing: he cannot long be confused with the visionary projector who proposes to pull down an ancient mansion and erect in its stead a new building of unknown design.
Legislative utilitarianism is nothing else than systematised individualism, and individualism has always found its natural home in England.55
During the long conflicts which have made up the constitutional history of England, individualism has meant hatred of the arbitrary prerogative of the Crown, or, in other words, of the collective and autocratic authority of the State, and has fostered the instinctive and strenuous effort to secure for the humblest Englishman the rule of law. Benthamism was, and was ultimately felt to be, little else than the logical and systematic development of those individual rights, and especially of that individual freedom which has always been dear to the common law of England. The faith indeed of the utilitarians in the supreme value of individual liberty, and the assumption on which that faith rests, owe far more to the traditions of the common law than thinkers such as John Mill, who was no lawyer, are prepared to acknowledge. Bentham is heavily indebted to Coke, and utilitarianism has inherited some of its most valuable ideas from Puritanism. This combination of innovation with essential conservatism gave to the utilitarian reformers the peculiar power which attaches to teachers who, whilst appearing to oppose, really express the sentiment of their time.
The strength of Benthamism lay then far less in its originality than in its being the response to the needs of a particular era, and in its harmony with the general tendencies of English thought. This consideration does not detract from the merit of Bentham and his disciples. That in 1830 the demand for reform should arise was a necessity, but a demand does not of itself create the means for its satisfaction. Had not Benthamism provided reformers with an ideal and a programme, it is more than possible that the effort to amend the law of England might, like many other endeavours to promote the progress of mankind, have missed its mark.
What then was the extent56 to which the Benthamism of common sense or individualism, obtained acceptance?
The answer may be given with certainty and decision. From 1832 onwards the supremacy of individualism among the classes then capable of influencing legislation was for many years incontestable and patent.
This undoubted fact ought not to be concealed from modern students, either by the important consideration (to which attention is drawn in the next lecture), that there has always existed a minority who protested against the dogmas of dominant individualism, or by the comparatively unimportant fact that divisions between political parties constantly fail to correspond with real differences of opinion, and that after 1832 Conservatives were often as much imbued with individualism as were Whigs or Liberals. On the passing of the Reform Act, at any rate, the political movement of the day was under the guidance of leaders who, by whatever party name they were known, were in essence individualists and utilitarians. The philosophic Radicals, Grote, Roebuck, and Molesworth, were ardent disciples of Bentham. Brougham, Russell, and Macaulay, and other Whig statesmen, whether they disclaimed or not the name of Benthamites, were firm believers in common-sense utilitarianism. Nothing is more noteworthy in this matter than the attitude of O’Connell; it would be sufficient of itself to prove the immense authority possessed between 1830 and 1845 by Benthamite liberalism. O’Connell stands apart from English party leaders. His sincere Roman Catholicism, his alliance with the priests, and the revolutionary character of the Repeal movement, separate him in the eyes of most Englishmen from the philosophic Radicals. He stands out as an agitator rather than a thoughtful statesman. But for all this he might well be numbered among the Benthamites. He was certainly a more ardent admirer and a more genuine disciple of Bentham than were many Whigs. On most matters, except the policy of Repeal, he agreed with the philosophic Radicals.
He was one of the most prominent advocates of parliamentary reform of the most radical description, going as far as universal suffrage, the ballot, and an elective House of Lords. He was an early and steady supporter of the emancipation of the Jews. He spoke with great force and knowledge on questions of legal reform; on the importance of cheapening, simplifying, and codifying the law, of multiplying local tribunals, of abolishing obsolete forms and phraseology. He was an ardent advocate of the abolition of capital punishment. He wished to change the law of bequest, so as to make it obligatory on parents to leave at least half their property among their children. He supported the abolition of the Usury Acts, and agreed with Bentham about the folly of attempting to regulate the rate of interest by law. He spoke in favour of the abolition of flogging in the army; of the abolition of the taxes on knowledge; of the complete abolition of the game laws.57
He was a vehement opponent of slavery when his opposition cost him the sympathy of Americans. He withstood trade unionism, and denounced outrages committed by trade unionists, though his denunciations aroused the hostility of the Dublin workmen. He was as enthusiastic a free trader as Bright; he opposed the corn laws as in themselves immoral, and used language on this point which Cobden possibly might have deemed exaggerated.58 His enthusiasm for free trade is the more remarkable because of the belief certainly held by some patriotic and liberal Irishmen, that protection has been a benefit to Ireland.
The leaders of the Manchester school, again, were not philosophic Radicals nor philosophers of any kind; they were enlightened men of business who desired reforms which were rather commercial than political or social. Yet in the world of politics they followed out the ideas of Bentham more nearly than did any other body of English Liberals.
Benthamism was not in reality the monopoly of Liberals. The Conservatives who followed Peel59 would have derided the idea of being utilitarians, but in common with the men of their generation they had accepted to a great extent the doctrines of Bentham. They joined with the older Tories in resistance to further and large constitutional changes, but under the guidance of Peel they believed that the gradual removal of abuses, and the skilful administration of public affairs at home, combined with the preservation of peace abroad, would secure national prosperity. The men who in later years were known as Peelites were convinced individualists, no less than the Radicals of the Manchester school, and stood far nearer in their way of looking at politics to the older Benthamites than did a Whig such as Lord John Russell, or a nominally Liberal leader such as Palmerston. No Liberal and no Conservative betrayed, at any rate, the remotest leaning towards socialism. Lord Melbourne’s “Why can’t you let it alone?” was the expression not so much of indolence as of trust in laissez faire.
The guides, lastly, of the working classes were, in some cases, at any rate, Benthamites. Francis Place disbelieved in trade unionism, but believed heart and soul in Malthusianism, and in the saving virtues of the New Poor Law, if only it were administered with sufficient severity.60 Trade unionists themselves adopted the formulas, if not the principles of the political economists, and hoped that laissez faire, if rightly interpreted, would give to wage-earners adequate means for working out their own social and political salvation.61 Among the Chartists might be found some devotees of socialistic ideals, but Chartism was not socialism. The People’s Charter, formulated in 1838,62 was a strictly political programme which conformed to the doctrine of democratic Benthamism.
Liberalism, indeed, of the Benthamite type was not only dominant during what may be termed the era of reform, but betrayed, in Parliament at least, little sign of weakening authority till the nineteenth century had run more than half its course. Consider for a moment the general condition of opinion say in 1850 and 1852. The philosophic Radicals (whose fate it was to advocate the cause of the people, and yet never to command the people’s confidence or affection) had almost ceased as a party to exist, but practical individualism was the predominant sentiment of the time. It [sic] there remained few ardent disciples of Bentham, such as were John Mill and his friends, when twenty or thirty years earlier they were the fervent propagandists of utilitarianism, Bentham had, in fact, triumphed, and moderate utilitarianism was the accepted and orthodox political faith. The optimism of Macaulay, the first two volumes of whose History appeared in 1849, expressed the tone of the day in the vigorous rhetoric of genius. At about the same date (1849–50) the lucid dogmatism of Miss Martineau demonstrated that the progress of England during the Thirty Years’ Peace was due to liberalism of the Benthamite type; the learning of George Grote (1846–56) was used, or misused, to deduce from the annals of the Athenian democracy conclusions in support of philosophic radicalism. The Exhibition of 1851 had a significance which is hardly understood by the present generation. To wise and patriotic contemporaries it represented the universal faith that freedom of trade would remove the main cause of discord among nations, and open an era of industrial prosperity and unbroken peace. The ideas of the political economists, and above all the dogma of laissez faire, had, it was thought, achieved a final victory. The Reformed Parliament, though its legislation did not satisfy all the aspirations of philosophic radicalism, proved to be a suitable instrument for the gradual carrying out of utilitarian reform. Great political changes seemed to be at an end. Chartism had expired on the 10th April 1848, and the working classes had ceased to press for democratic innovations. Reform Bills were suggested or brought forward in deference to the pledges of statesmen, or the exigencies of party warfare, in 1852, 1854, 1859, and 1860, but excited no general interest. In 1859 Bright attempted an agitation in favour of household suffrage. His eloquence collected crowded audiences, but did not kindle popular emotion, and the orator is said to have compared his labours to the futile work of “flogging a dead horse.” In truth the events of 1848 and of the years which immediately followed 1848 had discredited republicanism, and had in England checked the advance of democracy. They had done more than this; they had in the eyes of English common sense convicted socialism not only of wickedness but of absurdity.63 Buckle in 1857 sounded forth throughout all England sonorous periods which embodied the principles or the platitudes of the then prevalent liberalism; whilst John Mill, the hereditary representative of Benthamism, published two years later that treatise On Liberty, which appeared, to thousands of admiring disciples, to provide the final and conclusive demonstration of the absolute truth of individualism, and to establish on firm ground the doctrine that the protection of freedom was the one great object of wise law and sound policy.64 As a sign of the state of opinion it is noticeable that the only considerable legislative achievement which can be ascribed to Palmerston is the Divorce Act of 1857. And this measure, if opposed to the convictions of High Churchmen, was in perfect harmony with Benthamism. Add to all these facts which lie on the very surface of recent history, the immense moral and intellectual effect produced by the uninterrupted course of Benthamite legislation, and above all by the repeal of the corn laws, and the subsequent prosperity of which this repeal was held to be the cause. This continuance, indeed, of Benthamite legislation is the main proof, as well as from one point of view a chief cause,65 of the dominance of individualism throughout pretty nearly the whole existence of the reformed Parliament.
But here we pass to
The Trend and Tendency of Benthamite Legislation
Benthamite individualism possessed, as already noted,66 one peculiar characteristic. It was a movement which, under the influence of a teacher born with the genius of a law-maker, was immediately and intentionally directed towards the amendment of the law of England.
Hence a singular congruity or harmony in the whole trend of Benthamite legislation67 which, if we look not at the gradual steps by which it was carried out, but at the nature of the objects which it systematically pursued, might seem to be dictated by the will of a despotic sovereign inspired with the spirit of Bentham. For this legislation has, speaking broadly, aimed at, and in England to a great extent attained, four objects—and four objects alone—the transference of political power into the hands of a class which it was supposed was large and intelligent enough to identify its own interest with the interest of the greatest number—the promotion of humanitarianism—the extension of individual liberty—the creation of adequate legal machinery for the protection of the equal rights of all citizens.
Transference of Political Power. The Reform Act of 1832 was actively supported by Bentham’s disciples.68 It was not, judged by a modern standard, a very democratic measure.69 Its aim was to diminish the power of the gentry, and to transfer predominant authority to the middle classes. This characteristic of the Reform Act was at the very crisis of the movement for reform—7th October 1831—pressed by Brougham on the House of Lords. It is the people who are to be admitted to political power. He scorns the “mob.” He identifies the people with the middle classes.
“If there is the mob,” he says,
there is the people also. I speak now of the middle classes—of those hundreds of thousands of respectable persons—the most numerous, and by far the most wealthy order in the community; for if all your lordships’ castles, manors, rights of warren and rights of chase, with all your broad acres, were brought to the hammer, and sold at fifty years’ purchase, the price would fly up and kick the beam when counterpoised by the vast and solid riches of those middle classes, who are also the genuine depositaries of sober, rational, intelligent, and honest English feeling.70
“By the people, I repeat, I mean the middle classes, the wealth and intelligence of the country, the glory of the British name.”71 These are the men on whose political wisdom and conservatism Brougham, who at that moment was the popular hero, and was also closely connected with the Benthamites, relies.
Unable though they be to round a period, or point an epigram, they are solid, right-judging men, and, above all, not given to change. If they have a fault, it is that error on the right side—a suspicion of State quacks, a dogged love of existing institutions, a perfect contempt of all political nostrums. . . . Grave, intelligent, rational, fond of thinking for themselves, they consider a subject long before they make up their minds on it; and the opinions they are thus slow to form they are not swift to abandon.72
The Reform Act achieved its end and gave predominant authority to the middle class. Why, we ask, did Benthamite democrats so zealously support a law which went such a little way on the path of democracy? A partial answer is, that the Whigs had neither the wish nor the power to advance farther than they did in the democratic direction. The more complete answer is, as already suggested, that the Reform Act went very near to satisfying the desires and the sentiment of Benthamite liberalism. Benthamism was fundamentally a middle class creed,73 and the middle classes were more likely to give effect to the aspirations of utilitarianism than any other part of the community. James Mill more or less distinctly perceived that this was so. The great Reform Act was not the handiwork of the Benthamites, but it was in the truest sense the outcome of political utilitarianism.
The Municipal Reform Act, 1836, was a further step in the development of democratic Benthamism; it abolished the mass of practical abuses which were specially hateful to utilitarians. It also gave to the middle class, and even to inhabitants of boroughs who fell below the middle rank, the government and management of the cities in which they lived. It is noteworthy, however, that the reform of local government, as carried out during the era of Benthamism, did nothing for the country labourers. The administration of the counties was left in the hands of the magistrates. Yet it must be remembered that the New Poor Law reformed the social condition of the labourers and placed poor relief under the supervision of the State.
Humanitarianism. The promotion of humanity—that is, the protection of human beings from unnecessary pain and suffering—was in accordance with the fundamental principle of Benthamite philosophy. Hence the attack by utilitarians on the infliction by law of any kind of pain74 which appeared to be needless. To this source is due the mitigation of the criminal law which abolished the whipping of women,75 the pillory,76 and hanging in chains,77 which between 182778 and 186179 reduced the number of crimes punishable with death till in effect capital punishment has been limited to cases of murder, which reformed our prisons, which at one time all but did away with whipping as a punishment for crime, and which, towards the end of the specially Benthamite period forbade the public execution of murderers.80 From the same humanitarian movement sprung the various enactments for the protection of children, of which a good example is afforded by the laws prohibiting their employment as chimney sweeps,81 and a whole series of Acts beginning in 1828,82 and at last forming something like a complete code for the protection of lunatics, and for guarding sane men from the risk (under the old law or want of law not inconsiderable) of imprisonment in madhouses. Nor did Bentham and his school interest themselves solely in diminishing the sufferings of their fellow-men; their humanity extended to the lower animals. From 1822 onwards, laws for the prevention of cruelty to animals prohibited bull-baiting, cock-fighting, and ultimately cruelty to animals generally.83 It has been well remarked that the introduction into our legislation of a principle which had hardly received recognition, namely, that it was part of humanity to diminish as far as possible the pains inflicted by man on the lower animals, was, in the earlier legislation on the subject excused, so to speak, in the eyes of the public by the plea that the cruelties prohibited, e.g. bull-baiting or cock-fighting, promoted idleness and disorder, or otherwise demoralised the people.84 Under the head of humanitarianism might be well brought the emancipation of the negroes, for the palpable cruelty of negro slavery assuredly excited the indignation of the English people as much as, if not more than the injustice of holding human beings in bondage. But negro emancipation properly belongs to another head of individualistic legislation, namely—
Extension of Individual Liberty. The term “individual liberty” or “personal freedom” must here be taken in a very wide sense. The extension of individual liberty as an object of Benthamite legislation includes, no doubt, that freedom of person or, in other words, that right of unimpeded physical movement which is protected by the Habeas Corpus Acts, and by an action, or it may be a prosecution, for assault or false imprisonment, but it includes also the striking off of every unnecessary fetter which law or custom imposes upon the free action of an individual citizen. The aim of Benthamite reformers was, in short, to secure to every person as much liberty as is consistent with giving the same amount of liberty to every other citizen.85 In order to attain this end the men who guided English legislation for the forty years which followed the great Reform Act, introduced modifications into every branch of the law.
In the name of freedom of contract the crimes of forestalling and regrating (1844, 7 & 8 Vict. c. 24) and of usury (1833–1854) ceased to exist; in 1846 and in 1849 the Navigation Laws were repealed. By the Marriage Act, 1835, and succeeding legislation which reached for the moment its conclusion in 1898,86 marriage has been treated as a contract in which the Church has no special concern, and by the Divorce Act of 1857, has been made, like other contracts, legally dissolvable, though from its peculiar character dissolvable only under special circumstances, and by the action of the High Court.
To the desire to extend contractual freedom belongs the reform87 in the Combination Law, effected under the direct influence of the Benthamite school in accordance with the principles of individualism by means of the two Combination Acts of 1824–1825.
In 1824 the Act 5 Geo. IV. c. 95 placed the whole Combination Law on a new basis. Its provisions have thus been summarised by Sir Robert Wright:
In 1824 the Act of 5 Geo. IV. c. 95 repealed all the then existing Acts relating to combinations of workmen, and provided that workmen should not by reason of combinations as to hours, wages, or conditions of labour, or for inducing others to refuse work or to depart from work, or for regulating “the mode of carrying on any manufacture, trade, or business, or the management thereof,” be liable to any criminal proceeding or punishment for conspiracy or otherwise under the statute or common law. By another section it extended a similar immunity to combinations of masters. On the other hand it enacted a penalty of two months’ imprisonment for violence, threats, intimidation, and malicious mischief.88
This Act was repealed after a year’s trial and was replaced by the Combination Act, 1825, 6 Geo. IV. c. 129, which also has been thus summarised by Wright:
This Act again repealed the older statutes, but without mention of common law. It provided summary penalties for the use of violence, threats, intimidation, molestation, or obstruction by any person for the purpose of forcing a master to alter his mode of business, or a workman to refuse or leave work, or of forcing any person to belong or subscribe or to conform to the rules of any club or association. It did not expressly penalize any combination or conspiracy, and it exempted from all liability to punishment the mere meeting of masters or workmen for settling the conditions as to wages and hours on which the persons present at the meeting would consent to employ or serve.89
Even a trained lawyer may fail at first sight to perceive wherein lies the difference between the two statutes, or to conjecture why the one was substituted for the other, yet it will be found that the similarity and the difference between the two enactments are equally important, and that, whilst the repeal of the earlier Act is perfectly explainable, the singular course of legislation in 1824 and 1825 is the exact reflection of the current of opinion.
As to the Points of Similarity. Both Acts aim at the same object; they both reverse the policy of 1800, and are intended to establish free trade in labour; they both, as a part of such freedom of trade, concede, to men and to masters alike, the right to discuss and agree together as to the terms on which they will sell or purchase labour; both give expression to the idea that the sale or purchase of labour should be as entirely a matter of free contract as the sale or purchase of boots and shoes. Both Acts therefore repeal the great Combination Act and all earlier legislation against trade combinations. Both Acts, lastly, impose severe penalties90 on the use of violence, threats, or intimidation whereby the contractual freedom of an individual workman or an individual master may be curtailed, and both Acts provide the machinery whereby these penalties may be summarily enforced. The labour contract under each Act is intended to be perfectly free. Combinations to raise or lower wages and the like are no longer forbidden, but neither individuals nor combinations are to interfere with the right of each person freely to enter into any labour contract which may suit the contracting parties.
As to the Points of Difference. The Act of 1824 allows freedom of combination for trade purposes, both to men and to masters, in the very widest terms,91 and (which is the matter specially to be noted) exempts trade combinations from the operation of the law of conspiracy. It then imposes penalties upon the use of violence, threats, or intimidation for certain definite purposes, e.g. the compelling a workman to depart from his work.
The Act of 1825, on the other hand, in the first place, imposes penalties upon the use of violence, threats, or intimidation for almost any purpose which could conceivably interfere with individual freedom of contract on the part of an individual workman or with the right of a master to manage his business in the way he thought fit. The Act, in the next place, confers indirectly92 upon workmen and masters a limited right to meet together and come to agreements for settling the rate of wages, and the terms, which the persons persent at the meeting will accept or give. The Act, lastly, revives the law of conspiracy in regard to trade combinations.
The result, therefore, of the Combination Act, 1825 (at any rate, as interpreted by the courts), was this:
Any trade combination was a conspiracy, unless it fell within the limited right of combination given by the Act of 1825.93
A strike, though not necessarily a conspiracy, certainly might be so, and a trade union, as being a combination in restraint of trade, was at best a nonlawful society,94i.e. a society which, though membership in it was not a crime, yet could not claim the protection of the law.
The course of parliamentary legislation with regard to the Combination Law in 1824 and 1825 was singular, but in all its features it exactly represents the Benthamite individualism of the day. The Act of 1824 was the work of known Benthamites. McCulloch advocated its principles in the Edinburgh Review; Joseph Hume brought it as a Bill into Parliament; the astuteness of Francis Place, in whose hands Hume was a puppet, passed into law a Bill, of which the full import was not perceived, either by its advocates or by its opponents. The Act gives expression in the simplest and most direct form to two convictions pre-eminently characteristic of the Benthamites and the political economists. The one is the belief that trade in labour ought to be as free as any other kind of trade; the other is the well-grounded conviction that there ought to be one and the same law for men as for masters; Adam Smith had, about fifty years earlier, pointed out that trade combinations on the part of workmen were blamed and punished, whilst trade combinations on the part of masters were neither punished nor indeed noticed.95 Liberty and equality, each of which represent the best aspect of laissez faire, were the fundamental ideas embodied in the Benthamite reform.
Why, then, was the Act of 1824 repealed and replaced by the Act of 1825?
Something—even a good deal—was due to accidental circumstances. In spite of the sagacious advice of Francis Place, workmen, who for the first time enjoyed the right of combination, used their newly acquired power with imprudence, not to say unfairness. A large number of strikes took place, and these strikes were accompanied by violence and oppression. The artisans of Glasgow “boycotted,” as we should now say, and tried to ruin an unpopular manufacturer. The classes whose voices were heard in Parliament were panic-struck, and their alarm was not unreasonable. Hence the demand for the repeal of the Combination Act, 1824. Place, after his manner, attributes the success of this demand to the baseness of parliamentary statesmen, to the bad faith of Huskisson, and, above all, to the machinations of one politician, who “lied so openly, so grossly, so repeatedly, and so shamelessly” as to astonish even the critic, who had always considered this individual “a pitiful shuffling fellow.”96 This pitiful, shuffling fellow was the well-known Sir Robert Peel.97 He had, at any rate, as we might expect, something which was worth hearing to urge in support of his conduct. Peel has left on record the ground of his opposition to the Act of 1824. It is that “sufficient precautions were not taken in [that Act] . . . to prevent that species of annoyance which numbers can exercise towards individuals, short of personal violence and actual threat, but nearly as effectual for its object.”98
Here we pass from the transitory events of a particular year and touch the true, if unperceived, cause of the reaction against the Combination Act of 1824. The right of combination which was meant to extend personal freedom was so used as to menace the personal freedom both of men and of masters. By the legislation of 1824 Benthamites and economists—that is, enlightened individualists—had extended the right of combination in order to enlarge the area of individual freedom; by the Act of 1825 sincere individualists, among whom Peel may assuredly be numbered, limited the right of trade combination in order to preserve the contractual freedom of workmen and of masters. The men who passed the Act of 1824 meant to establish free trade in labour; they did not mean to curtail the contractual capacity of persons who preferred not to join, or resisted the policy of, trade unions. The two Acts which seem contradictory are in reality different applications of that laissez faire which was a vital article of the utilitarian creed. The Liberals who in 1824 had begun to guide legislative opinion were the sincerest and most enthusiastic of individualists. It is hard for the men of 1905 to realise how earnest eighty years ago was the faith of the best Englishmen in individual energy and in the wisdom of leaving every one free to pursue his own course of action, so long as he did not trench upon the like liberty or the rights of his fellows. To such reformers oppression exercised by the State was not more detestable than oppression exercised by trade unions. Place was a Benthamite fanatic. His finest characteristic was passionate zeal for the interest of the working class whence he sprung. He knew workmen well: he had no love for employers. Yet Place, and we may be sure many wiser men with him, believed and hoped that the repeal of the Combination Law of 1800 would put an end to trade unions.
“The combinations of the men are but defensive measures resorted to for the purpose of counteracting the offensive ones of their masters. . . . When every man knew that he could carry his labour to the highest bidder, there would be less motive for those combinations which now exist, and which exist because such combinations are the only means of redress that they have.”99
So Place in 1825. Eighteen years later thus writes Richard Cobden:
“Depend upon it nothing can be got by fraternising with trades unions. They are founded upon principles of brutal tyranny and monopoly. I would rather live under a Dey of Algiers than a trades committee.”100
In 1849 Miss Martineau is well assured that the Act of 1825 was a necessary and salutary measure:
By this Act [i.e. the Combination Act, 1825] combinations of masters and workmen to settle terms about wages and hours of labour are made legal; but combinations for controlling employers by moral violence were again put under the operation of the common law. By this as much was done for the freedom and security of both parties as can be done by legislation, which, in this matter, as in all others, is an inferior safeguard to that of personal intelligence.101
What is of even more consequence, the best and wisest of the judges who administered the law of England during the fifty years which followed 1825 were thoroughly imbued with Benthamite liberalism. They believed that the attempt of trade unions to raise the rate of wages was something like an attempt to oppose a law of nature. They were convinced—and here it is difficult to assert that they erred—that trade unionism was opposed to individual freedom, that picketing, for example, was simply a form of intimidation, and that, though a strike might in theory be legal, a strike could in practice hardly be carried out with effect without the employment of some form of intimidation either towards masters or non-unionists. No judges have ever deserved or earned more respect than Erle and Bramwell, yet Erle deliberately maintained that under the Act of 1825 any combination might be a conspiracy that interfered with “the free course of trade,” whilst Bramwell enounced the doctrine that “the liberty of a man’s mind and will to say how he should bestow himself and his means, his talents and his industry, is as much a subject of the law’s protection as that of his body.” His language is as wide as possible:
Generally speaking, the way in which people have endeavoured to control the operation of the minds of men is by putting restraints on their bodies, and therefore we have not so many instances in which the liberty of the mind is vindicated as that of the body. Still, if any set of men agreed amongst themselves to coerce that liberty of mind and thought by compulsion and restraint, they would be guilty of a criminal offence, namely, that of conspiring against the liberty of mind and freedom of will of those towards whom they so conducted themselves. I am referring to coercion and compulsion—something that is unpleasant and annoying to the mind operated upon; and I lay it down as clear and undoubted law that, if two or more persons agree that they will by such means co-operate together against that liberty, they are guilty of an indictable offence.102
Bramwell’s doctrine, moreover, laid down in 1867, harmonises with the general spirit of Mill’s On Liberty, which was the final and authoritative apology for the Benthamite faith in individual freedom.
We may feel, therefore, assured that the legislation of 1824–1825 was not intentionally unjust. It represented even in its fluctuation the best and most liberal opinion of the time. The experiment of trying to establish absolute free trade in labour was a wise one. Whether reformers who were prepared to try this experiment would not have done wisely if they had left the Act of 1824 unrepealed, admits of discussion. The Act of 1825 remained in force for well-nigh fifty years. Two things are certain. The Act excited much dissatisfaction among artisans; the Benthamite Liberals, just because they were prone to neglect the social aspect of human nature, and had therefore hardly considered the characteristics of combined action, found it difficult to provide any consistent principle for the amendment of the combination law.103
Among the efforts of Benthamism to increase the sphere of contractual freedom stands the creation (1856–1862) of companies with limited liability. Here we have in reality an extension of freedom of contract, though at this point individualistic and collectivist currents of opinion blend together, for while the power of individuals to trade without at the same time exposing all their property to the risk of loss, does assuredly give them the opportunity to make contracts which the common law of England would not sanction, yet, the transference of business from individuals to corporate bodies favours the growth of collectivism.
Freedom in dealing with property, and especially property in land, forms an essential part of the Benthamite conception of individual liberty. To extend this freedom in one way or another is the aim and effect of legislation such as the Prescription Act, 1832, 2 & 3 Will. IV. c. 71; the Inheritance Act, 1833, 3 & 4 Will. IV. c. 106; the Fines and Recoveries Act, 1833, 3 & 4 Will. IV. c. 74; the Wills Act, 1837, 1 Vict. c. 26; the Real Property Act, 1845, 8 & 9 Vict. c. 106; and all the statutes, none of them successful, by which it has been attempted to introduce a system of land registry104 which should facilitate the transfer of land; the enactments for doing away with copyhold tenure or for diminishing the inconvenience arising from its peculiarities, which begin with the Copyhold Act, 1841, 4 & 5 Vict. c. 35, and have ended for the present with the Copyhold Act, 1894, 57 & 58 Vict. c. 46, and the Inclosure Acts between 1801, 41 Geo. III. c. 109, and the general Inclosure Act, 1845, 8 & 9 Vict. c. 118.105 The same end is aimed at from another side by the whole series of Settled Estates Acts from 1856, 19 & 20 Vict. c. 120, to 1876, 39 & 40 Vict. c. 30, all of which, together with other enactments, increase the power of tenants for life and others to deal with land of which they are not the absolute owners. It is here worth noting that individualism in legislation, since it has for its object to free from unnecessary trammels the action of individuals who, at any given moment, are in existence, will tend, on the one hand, to liberate each generation from the control of the past, and on the other hand to restrain the attempt of each generation to fix the devolution of property in the future, and thus diminish the individual liberty of its successors.
It may appear to be a straining of terms if we bring under the head of freedom in dealing with property the most celebrated piece of legislation which can be attributed to the philosophic Radicals. The Poor Law of 1834 does not, on the face of it, aim at securing freedom of any kind; in popular imagination its chief result was the erection of workhouses, which, as prisons for the poor, were nicknamed Bastilles. Yet the object of the statute was in reality to save the property of hardworking men from destruction by putting an end to the monstrous system under which laggards who would not toil for their own support lived at the expense of their industrious neighbours, and enjoyed sometimes as much comfort as or even more comfort than fell to the lot of hardworking labourers. Whether a poor law of any kind is consistent with the principles of thorough-going individualism is open to question. In England, however, the system of poor relief had existed for centuries. Instant abolition was an impossibility: all that reformers could do—and that at the cost of deep unpopularity—the reformers of 1834 achieved; they prevented an institution which was intended to save from starvation labourers who could not obtain work, from continuing to be a tremendous tax upon industry for the maintenance of indolence. This was the aim, and to a great extent the effect, of the New Poor Law.
Freedom of discussion, popularly, though inaccurately, called freedom of opinion, and religious liberty, which means the right of every man to avow and advocate any form of religious or non-religious belief without thereby exposing himself to legal penalties or disabilities, had long before 1830 become, under the name of civil and religious liberty, articles of the Whig creed;106 but to these articles of faith Whig legislators had in practice given most imperfect application. The Benthamites aimed at carrying out their faith in freedom of opinion to its full logical results. Of this effort may be found ample illustrations in the extension of the Toleration Act to Unitarians (1813); in the Test and Corporation Act, 1828, 8 & 9 Geo. IV. c. 17; in the Roman Catholic Relief Act, 1829, 10 Geo. IV. c. 7; in the Nonconformists’ Chapels Act, 1844, 7 & 8 Vict. c. 45; in the Marriage Acts extending from the Marriage Act, 1835, 5 & 6 Will. IV. c. 54, to the Marriage Act, 1898, 61 & 62 Vict. c. 58; and above all, in the long series of Oaths Acts, which have had the twofold effect of opening Parliament to any person otherwise eligible without any reference to his religious belief, and of enabling even avowed atheists to give evidence, and therefore enforce their rights, in a Court of Justice. Parliament has not, indeed, as yet established religious equality, but modern liberalism, which has in this matter inherited the ideas of the school of Bentham, had by the middle of the last century removed nearly all effective legal restraints on free discussion, and has since that date practically established a liberty of opinion almost as wide as that demanded in 1859 by Mill in his treatise On Liberty.
The Adequate Protection of Rights. The labours of Bentham and of the lawyers who have followed in his steps, have been incessantly directed towards securing for every person the power to enforce his rights—that is, towards the amendment of everything which can be brought under the head of legal procedure, if that term be used in its very widest sense, so as to cover everything connected with the actual enforcement of a citizen’s substantive rights, and thus to include the regulation of judicial evidence, the constitution and the jurisdiction of the courts, and all the steps in an action which English lawyers call practice, the reduction of the cost of legal proceedings, and a lot of other topics as dull and technical as any part of the law. Procedure, dreary though the matter seems, was the favourite object of Bentham’s intense attention and prolonged study. Why, a student asks himself, was a legal philosopher so deeply concerned with a matter which seems to possess little speculative interest? The answer is, that in nothing did Bentham more markedly display his logical consistency and his sagacity as a reformer, than in the supreme importance which he attached to providing the means for the easy enforcement of every man’s rights. A right which an individual cannot enforce is to him no right at all; the dilatoriness of legal proceedings, and their exorbitant cost, or the want of an easily accessible Court, work greater and far more frequent injustice than the formal denial of a man’s due rights. The passion for amending procedure was only one side of Bentham’s desire to protect individual freedom, and this passion, stirred up by Bentham, has now for more than seventy years led to constant attempts at improving the machinery of the law which have on the whole been crowned with marked success.107
Let us take a few typical examples of the scores of enactments which during the nineteenth century have reformed that system of legal procedure which, when Bentham made himself its critic, was full of patent faults. The Evidence Acts, beginning in 1833 with Denman’s Act, 6 & 7 Vict. c. 85, and ending with the Act of 1898, which allows persons accused of crime to give evidence on their own behalf, have rationalised the whole of our law with regard to the competence of witnesses. The County Courts Acts from 1846108 to 1888109 have provided tribunals in every part of the country, to which persons may have recourse for the recovery of small debts which before 1846 were often in practice not recoverable because of the expense and difficulty of proceeding in the superior Courts. The Court of Chancery, which towards the middle of the nineteenth century was still a byword for dilatoriness and technicality, was, even before the passing of the Judicature Act, 1873, reformed to a great extent, though in a partial and fragmentary manner, by legislation subsequent to 1850.110 Almost hand in hand with the reform of the Court of Chancery the procedure of the Common Law Courts was simplified, and everything which could be deemed useless in the technicality of pleadings was abolished by the Common Law Procedure Acts, 1852,111 1854,112 and 1860.113 At last that fundamental reform of procedure both in the Court of Chancery and in the Courts of Common Law, which had been the constant aim of Bentham and of every man imbued with his spirit, was with more or less completeness attained by the so-called fusion of law and equity under the Judicature Act of 1873,114 which, taken together with the subsequent enactments which have amended it, has at last created an omni-competent Court in every Division of which every kind of right known to the law of England is recognised, and where every kind of remedy for the enforcement of rights may be obtained. Nor ought we to omit reference to the experiment of the new Commercial Court which in its absence of forms, in the wide discretion given to the judge, and in the rapidity of its proceedings, almost realises Bentham’s ideal of a perfect tribunal. Compare now the defectiveness of English procedure in 1800115 with the masterly picture of the actual administration of our law drawn in 1887 by one of the ablest and most enlightened of our judges. Thus writes the late Lord Bowen:
A complete body of rules—which possesses the great merit of elasticity, and which (subject to the veto of Parliament) is altered from time to time by the judges to meet defects as they appear—governs the procedure of the Supreme Court and all its branches. In every cause, whatever its character, every possible relief can be given with or without pleadings, with or without a formal trial, with or without discovery of documents and interrogatories, as the nature of the case prescribes—upon oral evidence or upon affidavits, as is most convenient. Every amendment can be made at all times and all stages in any record, pleading, or proceeding that is requisite for the purpose of deciding the real matter in controversy. It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation. The expenses of the law are still too heavy, and have not diminished pari passu with other abuses. But law has ceased to be a scientific game that may be won or lost by playing some particular move.116
Any critic who dispassionately weighs these sentences, notes their full meaning, and remembers that they are even more true in 1905 than in 1887, will partially understand the immensity of the achievement performed by Bentham and his school in the amendment of procedure—that is, in giving reality to the legal rights of individuals.
Nor is it irrelevant to note that the more closely the renovation of English institutions under the influence of Bentham is studied, the more remarkably does it illustrate the influence of public opinion upon law. Nothing is effected by violence; every change takes place, and every change is delayed or arrested by the influence, as it may seem the irresistible influence, of an unseen power. The efforts of obstructionists or reactionists come to nothing, the toryism of Eldon, the military rigidity of the Duke of Wellington, the intelligent conservatism of Peel, at a later period the far less intelligent conservatism of Lord Palmerston, all appear, though the appearance is in some respects delusive, not in reality to delay for more than periods which are mere moments in the life of nations, the progress of change. On the other hand, the violence of democrats or the fervour of enthusiasts achieves little in hurrying on innovation. In the eighteenth century a duke was ready to recommend universal suffrage. It was demanded by the Chartists, who between 1830 and 1848 seemed destined to carry parliamentary reform to its logical conclusion. Yet now that England is far more democratic than in the middle of the nineteenth century, the electors, who could easily obtain any change which they eagerly desired, acquiesce in arrangements far less democratic than even unqualified household suffrage; and it is arguable (though, be it remembered, many things are arguable which turn out not to be true) that the reforms or changes of the last sixty years have considerably increased the popularity of the Crown, the Peerage, and the Church. If we look then to the changes which have been effected, and what is equally important, to the changes which have not been effected, in the law of the land, we trace everywhere the action of opinion, and feel as if we were in the hands of some mysterious influence which works with the certainty of fate. But this feeling or superstition is checked by the recollection that public opinion is nothing but the opinion of the public—that is, the predominant convictions of an indefinite number of Englishmen.
[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.
[14. ]These principles, it should be remembered, are not so much the dogmas to be found in Bentham’s Works as ideas due in the main to Bentham, which were ultimately, though often in a very modified form, accepted by the reformers or legislators who practically applied utilitarian conceptions to the amendment of the law of England.
[15. ]Paley (“Of the Constitution”), Moral Philosophy, ii. (12th ed. 1799), pp. 193, 194.
[16. ]Bentham almost certainly held that laws against usury were always bad; yet strong reasons have been produced by Grote—a most zealous utilitarian—for the belief that in ancient Athens and Rome such laws were beneficial. Sir J. F. Stephen, though a pronounced utilitarian, appears to incline towards the opinion that laws placing a check on usury might occasionally be useful as a means of preventing fraud. See Stephen, Hist. iii. pp. 195, 196.
[17. ]See Principle No. 2, p. 98, ante.
[18. ]“Review of a Free Enquiry,” Johnson’s Works, viii. p. 37.
[19. ]“Virtue is, ‘the doing good to mankind, in obedience to the will of God, and for the sake of everlasting happiness.’[”]
[20. ]On the whole a priori systems of ethics will in general produce conservatism. “I suspect,” writes Paley, “that a system of morality, built upon instincts, will only find out reasons and excuses for opinions and practices already established—will seldom correct or reform either.”—Paley, Moral Philosophy, i. bk. i. ch. v.
[21. ]Bentham, x. p. 63. So he deplored the publication in France of the Declaration of Rights. “I am sorry,” he writes to Brissot, “you have undertaken to publish a Declaration of Rights. It is a metaphysical work—the ne plus ultra of metaphysics. It may have been a necessary evil, but it is nevertheless an evil. Political science is not far enough advanced for such a declaration.”—Cited Kent, English Radicals, p. 184. Compare Halévy, La Formation du Radicalisme Philosophique, ii. pp. 38–43, and pp. 47–51.
[22. ]See, e.g. Truth against Ashurst, Bentham, v. p. 234, and generally Mill, On Liberty, which is throughout a defence, though not at bottom quite a consistent one, of this principle.
[23. ]“Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one” (Mill, On Liberty, p. 23). This concession goes further than Mill seems to perceive. Its principle seems to apply to every case where a government is far more intelligent than the governed.
[24. ]Truth against Ashurst, Bentham, v. p. 234.
[25. ]See Sidgwick, Elements of Politics, ch. iv.
[26. ]A contractual incapacity, such, for example, as the incapacity of an infant to bind himself by a contract to pay for things which are not necessaries, may be a desirable protection, but it assuredly, as far as it goes, limits an infant’s power of obtaining luxuries on credit. The point is elementary, but it is worth insisting upon, since there is a constant tendency on the part both of theorists and of so-called practical men, to forget that protection invariably involves disability, i.e. limitations on the individual liberty of the protected person.
[27. ]Respect for the obligation of contracts is embodied in the Constitution of the United States. The revolutionary, no less than the Napoleonic legislation of France is systematically hostile to the existence of guilds, corporations, or associations which might in any way limit the freedom of contract between individuals. Compare Hauriou, Précis de Droit Administratif (5th ed.), p. 100; Pic, Traité Elémentaire de Législation Industrielle (2nd ed.), ss. 336–343.
[28. ]A contract of service for life is legal (Wallis v. Day (1837), 2 M. & W. 273). But though damages might be recovered for the breach of the contract, the specific performance thereof would not be enforced. Compare Macdonell, Law of Master and Servant, pp. 31, 197.
[29. ]See Appendix, Note I., Right of Association.
[30. ]And also may menace the authority of the State.
[31. ]Webb, History of Trade Unionism (1894), p. 125.
[32. ]Mill, On Liberty, p. 27. Compare pp. 157, 158, and 176–180.
[33. ]See Halévy, ii. pp. 34–51, as to Bentham’s want of sympathy with the democratic aspect of the Revolution.
[34. ]Maine, Popular Government, p. 83, and see pp. 82–86.
[35. ]Lect. V., ante. Compare Creevy Papers, edited by the Rt. Hon. Sir Herbert Maxwell, for illustrations of the worst side of English government between 1800 and 1832.
[36. ]Even if not Benthamites they were with rare exceptions imbued with individualism.
[37. ]Whether the precept that every one should count for one included women, was in 1830 a question outside the sphere of practical politics, but it divided the Benthamites. The language of Bentham himself was somewhat uncertain. James Mill condemned the government of women as decisively, if not as consistently, as in an earlier age did John Knox. John Mill was throughout his life the ardent advocate of the political equality of the sexes, but John Mill, though honestly basing all his political views on the principle of utility, entertained, though unconsciously, a sentiment in favour of equality which belongs to the school rather of Rousseau than of Bentham.
[38. ]James Mill’s Essay on Government aims apparently at establishing this conclusion, but a student who reads between the lines will see that James Mill in reality advocates the political supremacy of the middle class. See Government, pp. 31, 32.
[39. ]J. S. Mill, Autobiography, pp. 106, 107. It is arguable that many utilitarians were in their estimate of the “people” more influenced than they were aware of by the teaching of Rousseau, or rather by the prevalent sentiment to which this teaching gave expression.
[40. ]Mill, Autobiography, pp. 177, 178, 179. “This time” apparently means from about 1830 to 1840.
[41. ]See Maine, Ancient Law, pp. 78, 79.
[42. ]An intelligent reader of Blackstone’s Commentaries is astonished at the slightness of the reference made by the commentator to statutes. Contrast on this matter the first edition of the Commentaries, completed in 1765, with the last edition of Stephen’s Commentaries (based as they are on Blackstone’s work), edited by Mr. Jenks in 1903.
[43. ]For Lord Mansfield’s attempted reform by way of introduction of equitable principles into the common law, and the way in which the attempt was afterwards rendered abortive by Kenyon, see Ashburner, Principles of Equity, pp. 15, 16. [Editor’s note: This footnote was added in the second edition.]
[44. ]See pp. 89, 90, ante.
[45. ]“It is impossible to overrate the importance to a nation or profession of having a distinct object to aim at in the pursuit of improvement. The secret of Bentham’s immense influence in England during the past thirty years is his success in placing such an object before the country. He gave us a clear rule of reform. English lawyers of the last century were probably too acute to be blinded by the paradoxical commonplace that English law was the perfection of human reason, but they acted as if they believed it for want of any other principle to proceed upon. Bentham made the good of the community take precedence of every other object, and thus gave escape to a current which had long been trying to find its way outwards.”—Maine, Ancient Law, pp. 78, 79. These words were published in 1861.
[46. ]This is certainly true of Sydney Smith. See Holland’s Memoir and Letters of Sydney Smith (4th ed.), p. 386.
[47. ]For an illustration of the difference between systematic Benthamism and utilitarian liberalism contrast Bentham’s Book of Fallacies with Sydney Smith’s review thereof, containing the celebrated “Noodle’s Oration,” or James Mill’s “Essay on Government,” with Macaulay’s articles on the utilitarian philosophy which appeared in the Edinburgh Review of 1829. With these articles should be read Macaulay’s review of “Gladstone on Church and State.”
[48. ]To Benthamism it is owing that the pacific revolution of which the Reform Act, 1832, was the visible sign, did not, like many other pacific or violent attempts at improvement, fail in attaining its end. Puritanism, it has been well said, missed its mark. In no sphere is this more obviously true than in the sphere of legislation. Many Puritans perceived that the law needed reform, yet the Puritan revolution achieved but little for the amendment of the law. Chief-Justice Rolle could perfect the fictions on which rested the action of ejectment, and in so far he facilitated the recovery of land (Blackstone, Comm. iii. p. 202); but the Puritans did not perceive that the fictions which complicated the proceedings in ejectment ought to be abolished. The Puritan worship of the common law barred the path which might lead to its amendment. Their rightful dread of arbitrary power blinded them to the necessity for the changes which were gradually and awkwardly introduced by the development of equity through the Court of Chancery. A party who adored Coke could not possibly produce a reformer such as Bentham, or have understood him had he lived in the seventeenth century.
[49. ]Many of them had become the most servile of Napoleon’s servants.
[50. ]See for Bentham’s criticisms on the theory of a social contract, Halévy, vol. i., appendix iii., p. 416.
[51. ]Bentham, “Anarchical Fallacies,” cited Kent, English Radicals, p. 184.
[52. ]See pp. 93–94, ante.
[53. ]Francis Place was even in later life well described by an admirer as “an old firebrand,” but fanatic as he was, he does not express the least hatred to English institutions. The moderation, again, of Bentham’s objects may be inferred from this sentence in a letter to O’Connell: “Parliamentary Reform, Law Reform, Codification—all these agenda crowned with your approbation—nothing can be more satisfactory, nothing more glorious to me—nothing more beneficial to the so unhappily United Kingdom, from thence to the rest of the civilised world, and from thence, in God Almighty’s good time, to the uncivilised.”—Bentham, Works, x. p. 598.
[54. ]Every man, for example, had a right to be paid the debts owing to him, but until the creation of the County Courts it was often difficult, if not impossible, for any poor man to obtain payment of even an admitted debt.
[55. ]See as to the relation between Evangelicalism and Benthamism, Lect. XII., post.
[56. ]See p. 119, ante.
[57. ]Lecky, Leaders of Public Opinion in Ireland, ii. (ed. 1903), p. 91.
[58. ]“He was also an uncompromising advocate of free trade in all its forms, including the complete abolition of the Corn Laws. His policy on this question is very remarkable, for Ireland had a special interest in the question, which O’Connell seems never to have understood. Nothing was more contrary to his desire than that her population should be greatly diminished and that she should be turned into a great pastoral country, yet nothing is more clear than that the abolition of the Corn Laws, depriving her of her preferential position in the corn market of England, made such a change inevitable. O’Connell argued the question on the crudest and also the most extreme lines, treating any tax on food as simply immoral. In his letter to Lord Shrewsbury he accused that Catholic nobleman of having ‘stained Catholicity itself with the guilt of that sordid monopoly.’ ‘The provision tax,’ he wrote, ‘is in its nature most criminal. It is murderous. It is the most direct violation of the first principles of justice. . . . It is in itself so radically oppressive and unjust, that it is incapable of moral mitigation. . . . The protected person, by the voice of the Corn Laws, addresses the workmen: “You shall not buy your breakfast, though you have your own hard-earned money to buy it with, until you have first paid me a heavy tax for liberty to purchase.”’”—Lecky, Leaders of Public Opinion in Ireland, ii. pp. 92, 93.
[59. ]Between 1835 and 1844 agricultural training schools and model farms were established in Ireland, but “a strong opposition to State-paid agricultural education arose among the English free-traders and greatly influenced the Government. They objected to training farmers at public cost; to the State paying for, and taking a part in agricultural operations. Peel and Cardwell sympathised with these views; the model farms were nearly all given up and the teaching of agriculture was almost restricted to mere book knowledge. In accordance with ideas that were then widely diffused, the inspectors positively discouraged practical agricultural instruction as not really education.”—Lecky, Leaders of Public Opinion in Ireland, ii. pp. 125, 126. This illustrates both the laissez faire of the day and the attitude of Peel and the Peelites.
[60. ]See generally Wallas, Life of Francis Place, and especially as to the reforms still desirable in 1832, pp. 326, 327. As to transitory character of trade combinations, pp. 217, 218; as to desire for the strict enforcement of the poor law, pp. 332–334; as to Malthusianism, pp. 174, 175.
[61. ]See Webb, History of Trade Unionism, pp. 277–283; and 265, 266. I do not, of course, forget that many artisans were deeply influenced by the principles of Robert Owen.
[62. ]Walpole, Hist., iv. p. 49.
[63. ]Note the violence of the language of the Quarterly in reference to Christian Socialists such as Maurice and Kingsley (see Life of Maurice, ii. pp. 71–73), and the protest against a sermon by Kingsley (supposed to contain socialist doctrine), uttered immediately after its delivery before the very congregation who heard it, by the Rector at whose request Kingsley had delivered the sermon (Kingsley, Dictionary of National Biography, xxxi. p. 177).
[64. ]Notice Buckle’s denunciation of everything which savoured of protection. As to John Mill’s influence and also as to the relation between evangelicalism and individualism, see Lect. XII., post.
[65. ]See pp. 30–34, ante.
[66. ]See p. 46, ante.
[67. ]This unity is concealed from casual observers by the gradual and fragmentary character of English legislation.
[68. ]Notably by the utilitarian fanatic F[r]ancis Place, whose action, of an almost revolutionary nature, was countenanced by men richer and apparently more moderate than the Westminster tailor and wire-puller.
[69. ]As to the relation between Benthamism and democracy, see pp. 113–117, ante.
[70. ]Brougham’s Speeches, ii. p. 600.
[71. ]Ibid. p. 617.
[72. ]Ibid. p. 600.
[73. ]“Another proposition may be stated, with a perfect confidence of the concurrence of all those men who have attentively considered the formation of opinions in the great body of society, or, indeed, the principles of human nature in general. It is, that the opinions of that class of the people, who are below the middle rank, are formed, and their minds are directed by that intelligent, that virtuous rank, who come the most immediately in contact with them, who are in the constant habit of intimate communication with them, to whom they fly for advice and assistance in all their numerous difficulties, upon whom they feel an immediate and daily dependence, in health and in sickness, in infancy and in old age; to whom their children look up as models for their imitation, whose opinions they hear daily repeated, and account it their honour to adopt. There can be no doubt that the middle rank, which gives to science, to art, and to legislation itself, their most distinguished ornaments, the chief source of all that has exalted and refined human nature, is that portion of the community of which, if the basis of representation were ever so far extended, the opinion would ultimately decide. Of the people beneath them, a vast majority would be sure to be guided by their advice and example.”—James Mill, “Government,” p. 32, reprinted from supplement to Encyclopaedia Britannica.
[74. ]Utilitarianism on this point coincided with, and was reinforced by Evangelicalism.
[75. ]1820, 1 Geo. IV. c. 57.
[76. ]1816, 56 Geo. III. c. 138; 1837, 7 Will. IV. & 1 Vict. c. 23.
[77. ]1834, 4 & 5 Will. IV. c. 26.
[78. ]7 & 8 Geo. IV. cc. 29, 30.
[79. ]24 & 25 Vict. cc. 96–100.
[80. ]1868, 31 & 32 Vict. c. 24.
[81. ]1840, 3 & 4 Vict. c. 85; 1864, 27 & 28 Vict. c. 37.
[82. ]9 Geo. IV. cc. 40, 41.
[83. ]As to improper treatment of cattle, etc., 3 Geo. IV. c. 71 (1822), as to bull-baiting and cock-fighting, 3 & 4 Will. IV. c. 19 (1833): 5 & 6 Will. IV. c. 59 (1835), as to cruelty to domestic animals generally 12 & 13 Vict. c. 92 (1849): as to prohibition of use of dogs for draught, 17 & 18 Vict. c. 60 (1854); as to prohibition of vivisection, see Cruelty to Animals Act, 1876, 39 & 40 Vict. c. 77, and as to protection from cruelty of wild animals in confinement, see 63 & 64 Vict. c. 63, Wild Animals in Captivity Protection Act, 1900, and on whole subject compare Wilson, Modern English Law, 234, 235, and Stephen, Comm. iv. (14th ed.), 213–215.
[84. ]Wilson, ibid.
[85. ]See Mill, On Liberty, p. 21.
[86. ]61 & 62 Vict. c. 58.
[87. ]The Combination Act, 1824, 5 Geo. IV. c. 95, and the Combination Act, 1825, 6 Geo. IV. c. 129. See Steph. Hist. iii. 221; Wright, 13.
[88. ]Wright, 13.
[89. ]Wright, 13.
[90. ]“It is difficult,” it has been said, “to see how, in the case of a conflict of interests, it is possible to separate the two objects of benefiting yourself and injuring your antagonist. Every strike is in the nature of an act of war. Gain on one side implies loss on the other; and to say that it is lawful to combine to protect your own interests, but unlawful to combine to injure your antagonist, is taking away with one hand a right given with the other.”—Stephen, Hist. iii. 218, 219.
[91. ]Sect. 2 exempts from liability to any indictment or prosecution for conspiracy, or to any other criminal information or punishment whatever, under the common or the statute law, “journeymen, workmen, or other persons who shall enter into any combination to obtain an advance, or to fix the rate of wages, or to lessen or alter the hours or duration of the time of working, or to decrease the quantity of work, or to induce another to depart from his service before the end of the time or term for which he is hired, or to quit or return his work before the same shall be finished, or, not being hired, to refuse to enter into work or employment, or to regulate the mode of carrying on any manufacture, trade, or business, or the management thereof.” Under this section a combination of X, Y, and Z to induce a workman to break a contract of work or to induce a master to dismiss all workmen who were not trade unionists, would semble, not have been a conspiracy. Sect. 3 gives an analogous exemption to masters.
[92. ]Sect. 4. “Provided always . . . that this Act shall not extend to subject any persons to punishment, who shall meet together for the sole purpose of consulting upon and determining the rate of wages or prices, which the persons present at such meeting, or any of them, shall require or demand for his or their work, or the hours or time for which he or they shall work in any manufacture, trade, or business, or who shall enter into any agreement, verbal or written, among themselves, for the purpose of fixing the rate of wages or prices which the parties entering into such agreement, or any of them, shall require or demand for his or their work, or the hours of time for which he or they will work, in any manufacture, trade, or business, and that persons so meeting for the purposes aforesaid, or entering into any such agreement as aforesaid, shall not be liable to any prosecution or penalty for so doing; any law or statute to the contrary notwithstanding.” Section 5 provides an analogous exemption for meetings of masters to settle the rate of wages, etc.
[93. ]This Act “left the common law of conspiracy in force against all combinations in restraint of trade, the combinations exempted from penalty under ss. 4 and 5 alone excepted.”—Erle, 58. This is, it is submitted, the right view of the law. Contrast, however, Stephen, Hist. iii. 223.
[94. ]Farrer v. Close (1869), L. R. 4 Q.B. 602.
[95. ]See Wealth of Nations, ch. viii. pp. 97–102 (6th ed. 1791).
[96. ]Life of F. Place, 236.
[97. ]Then Mr. Peel.
[98. ]Peel’s Private Correspondence, 379 (London, 1891).
[99. ]Life of F. Place, p. 217, and see further p. 218.
[100. ]Morley, Cobden, i. ch. xiii. p. 299.
[101. ]H. Martineau’s Thirty Years’ Peace (ed. 1877), i. 474.
[102. ]R. v. Druitt (1867), 10 Cox, 600, per Bramwell, B., cited Steph. Hist. iii. 221, 222.
[103. ]See pp. 111–113, ante.
[104. ]Williams, Real Property (19th ed.), p. 616; Pollock, Land Laws (3rd ed.), pp. 171–178.
[105. ]Compare Pollock, Land Laws, 3rd ed. pp. 180–186, and note particularly the change in policy as to the mode of dealing with commons from 1865 to 1876, which year is marked by the Commons Act, 1876, 39 & 40 Vict. c. 56.
[106. ]See Paley, Moral Philosophy, ii. Bk. vi. c. x., with which contrast, on the one hand, Blackstone, Comm., iv. p. 440, and on the other hand, the general tone of Macaulay’s Essays and Sydney Smith’s Works passim. The older Whigs justified the imposition of political disabilities upon Roman Catholics on the ground that in the case of Roman Catholics religious tenets were, for a time at least, the sign of political disloyalty.
[107. ]The ardent wish to amend legal procedure connects Bentham more closely than he perceived with the greatest English judges. Our lawyers in and out of Parliament have instinctively felt that a right which cannot be enforced is no right at all. It is unfortunate for Bentham’s reputation that the writers who in England have been the chief representatives of utilitarianism have either possessed little knowledge of law or else have lacked sympathy with Bentham’s enthusiasm for law reform. Neither James nor John Mill was either a lawyer or a jurist. Austin had a firm grasp of a few most important legal conceptions, but nothing in his writings betrays anything like systematic study of the laws of England. Sir J. F. Stephen was a considerable criminalist, but he hardly claimed to be, in the Benthamite sense of the term, a reformer of the law. Sir Leslie Stephen, who is by far the ablest of Bentham’s critics, was not a lawyer, and did not pay as much attention as the matter deserved to Bentham’s claim to be a legal philosopher.
[108. ]9 & 10 Vict. c. 95.
[109. ]51 & 52 Vict. c. 43, with which now read the County Courts Act, 1903, 3 Edw. VII. c. 42.
[110. ]Ashburner, Principles of Equity, pp. 17, 18; Holdsworth, History of English Law, i. pp. 231–235; 14 & 15 Vict. c. 4 (1851); The Court of Chancery Acts, 1852 (15 & 16 Vict. cc. 80, 87); The Chancery Procedure Act, 1852 (15 & 16 Vict. c. 86); The Chancery Amendment Act, 1858 (21 & 22 Vict. c. 27); The Chancery Regulation Act, 1862 (25 & 26 Vict. c. 42); and see for earlier legislation of a reforming character, 53 Geo. III. c. 24 (1813), 3 & 4 Will. IV. c. 94 (1833); the Court of Chancery Acts, 1841, 1842 (5 Vict. c. 5; 5 & 6 Vict. c. 103).
[111. ]15 & 16 Vict. c. 76.
[112. ]17 & 18 Vict. c. 125.
[113. ]23 & 24 Vict. c. 126.
[114. ]36 & 37 Vict. c. 66. To understand the full extent of the change introduced under the Judicature Acts a student should read the fifteen Acts which make up the Judicature Acts, 1873–1899, and the Rules and Orders made thereunder. See Stephen, Comm. iii. (14th ed.), p. 352.
[115. ]See pp. 62–68, ante.
[116. ]Bowen, The Administration of the Law, The Reign of Queen Victoria, i. pp. 309, 310.