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(B): The Acceptance of Benthamism - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) [1917]

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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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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


(B)

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

[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.

“German philosophers, indeed, have neglected Bentham. Even Robert von Mohl, who alone appreciates his genius, thinks Hill Burton’s eulogy absurdly exaggerated, because Hill Burton declares that nearly all the great reforms of the first half of nineteenth-century England were originated by Bentham. The opinion of Sir Henry Maine might be quoted in support of Hill Burton’s proposition, which is indeed strengthened by publications of a later date. But the best and most conclusive evidence of all is to be drawn from a comparison of Bentham’s teaching with the legislation which followed it.”—Redlich and Hirst, Local Government in England, i. p. 97.

[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.