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CHAPTER XXIV.: 1829—30. Æt. 81—2. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 11 (Memoirs of Bentham Part II and Analytical Index) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 11.
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1829—30. Æt. 81—2.
Law Reform Association.—Apprehension of Blindness.—Sale of Offices.—O’Connell.—Mordvinoff.—Jabez Henry.—Livingston.—Codification.—Brougham.—Peel.—O’Connell.—J. Smith, M. P.—Letter to President Jackson; Law Reform in America; French Politics.—Humann of Brussels.—Rev. Humphrey Price.
Bentham was desirous of organizing an association of influential persons, for expediting, cheapening, and popularizing the administration of justice, and for advancing Law Reforms in their various shapes. He thought, that many who would hesitate about lending their aid to the obtainment of Constitutional Reform, might not be unwilling to cooperate for the purpose of making justice more accessible to the whole community. For this purpose, he obtained the promised coöperation of many distinguished men: but the purpose never ripened into an efficient vitality. Names to ornament—reputations to attract, were easily found; but not so hands and heads to work. So the plan was abandoned, or deferred sine die; and justice remains as it was, a luxury purchasable by the opulent, but wholly beyond the reach of the poor: its pursuit vexatious—the results of that pursuit unascertainable—wearisome from delay—burthensome from cost—and oppressive from uncertainty.
The apprehension of blindness gave Mr Bentham, at this time, no little anxiety; yet he talked of the probable calamity with great composure. “I shall be cheerful,” he said; “blind people are cheerful: and I shall escape many annoyances.” It was thus that, in his own case, he applied his maxim to look on the bright—on the brightest side of things. “The public may lose something by my blindness,—so I want to get my generalia and my generalissima despatched. If I come to dictate, my style will change. Look at that table, ‘(a board covered with a green curtain, on which Bentham was accustomed to pin the fragments which represented the leading principles of his writings.)’ There are the texts for my sermons.”
But his sleep was often disturbed by gloomy dreams. These are the words in which he described one of them, no doubt the consequence of indigestion, from which he sometimes suffered severely: “I have been dreaming that I lived near the Thames—I walked through streets more and more gloomy. I saw lugubrious houses inhabited by lugubrious people, and heard lugubrious discourses. I tried to escape, and found all the streets into which I entered had no outlet. It was always a cul de sac.”
In 1830, Bentham wrote some letters on the sale of public offices, which he deemed a valuable means for maximizing aptitude and minimizing expense. In answer to the objection that their sale would open the door to abuse, he says, with particular reference to the election of a Secondary by the Common Council of London:—
Accident having put the documents out of my reach, I must cast myself upon your indulgence for any little unintended misrepresentation or repetition it may happen to me to fall into.
“What I am ready to admit is—that, suppose the office to be sold, and nothing done for the purpose of obviating abuse,—abuse in all possible shapes, and to the highest possible amount, will be a more or less probable consequence: what, in that view, I would propose should be done, I will mention presently.
“On the other hand, I am a plain man, and nothing I have seen has been able to extinguish my conception that, under the patronage system abuse in all its shapes would be still more abundant, to a certainty, than under the sale system.
“How it should happen that any man, who proposed to purchase the office, should place any serious reliance on the plea in question, as if it were capable of lessening the probability of his suffering in any way in the event of his misconduct in the office,—in any shape whatsoever, extortion, oppression, peculation, or negligence—passes my comprehension.
“ ‘I have purchased the place: therefore I have purchased the right of doing whatever wrong I can contrive to do by means of it:’ such is the defence which the supporters of the patronage system put into the mouths of extortioners and peculators, stating it at the same time as being an unanswerable one. Here it stands in all its simplicity: and now, in any company, let any man who has nerve enough, stand up, and after repeating it, declare it to be his belief that any man, by whom extortion or peculation had ever been practised, could have thought that, in the faculty of making an observation to this effect, he really possessed either a justification, or so much as the slightest shadow of an excuse.
“ ‘The pistol I killed the man with I bought:’ exactly as good an apology would this observation be for murder, as that other for extortion or peculation.
“Now, Sir, what is the assumption made by the opponents of sale, when they profess to regard an observation to this effect as rendering it probable that extortion and peculation will have place to a greater extent if the place be sold for the benefit of the public, than if given for the joint benefit of giver and receiver? What is it but that the means of committing a crime, and the right of committing it, are the same thing? And not only that criminals themselves are persuaded of its being so, but that so are people in general likewise: or, at any rate, that by those by whom it is not regarded as a justification, it is at least regarded as an excuse.
“No absurdity so gross, but that when once it has obtained a certain degree of currency, it is capable of passing for argument, nay, even for conclusive argument, and even upon the most intelligent minds, where the leisure or the motive for scrutinizing into it has been wanting. In the present instance, for example, upon minds even of this character, who can say to what extent the delusion here in question may not have had place? But now, it is hoped, the fallacy has been displayed in its genuine colours; and if so, those who, without any particular and sinister interest, have been in the habit of accepting and passing it in the character of an argument in favour of patronage in preference to sale, will have to consider whether they would not do well to separate themselves from bad company; in a word, to declare themselves undeceived, and thus leave the corruptionists to stand by themselves, singing out this their fallacy to deaf ears and scorning countenances.
“But now suppose that, spite of everything that can be said to the contrary, there are people who will think, that the purchaser of the office will rely upon the sort of epigram in question, as a thing that will purchase impunity for him. So far as this notion has place, so much the less probable will be his misbehaviour. Why? Because so many as there are of them, so many spies on his conduct will he have; whereas, under the patronage system, this cause of public suspicion and public vigilance has no place.
“If a man purchases the place of the public, nobody will have any interest in screening him in case of abuse; if he receives it from patronage, he has the patron or patrons, who share with him in the benefit of the abuse, and are little less sure to support him in it, than he is to practise it.
“The owner of an advowson—has he not an interest in the increase of tithes? Oh, but the Church patron is but one, and nobody knows who he is. Here the patrons are many; all known men—all honourable men. True: but were they even Right Honourable, it would make no difference. In a multitude of this sort, on every occasion, some one there must be, or some very few, that take the lead; and, in so far as this is the case, distinguish it if you can from that of the Church patron.
“So much for the anti-venality argument. Now for the anti-guzzling argument. It sticks in my throat, along with the other. I cannot swallow it. The money, if received by the persons in question, will be spent in guzzling; therefore it ought not to be received by them. Such is the argument: please, good Sir, to observe what it is it leads to. It leads to this: namely, that on account of the trust in question, to wit, that exercised by the Common Council, neither by these same persons, nor by any other persons in this same trust, should any money at all be ever received from any source at all—from this, or from any other; such must be the notion, unless it be that money received from this source will be sure to be spent in guzzling, while monies received from other sources will be sure to be applied to their proper purposes, or will at any rate take, all of them, the same chance.
“Now for the proposed Remedies. 1. Let the election to the office be annual. Why not to this office as well as to the office of Common Councilman itself? Why not in the case of the protégé as well as in that of the patron?
“2. Let the bills of costs, in the suits from which the functionary in question—the Secondary—derives his fees or other benefits, be not merely accessible on demand, or accessible to none but a few,—or to none but on payment of a fee, be all of them printed and published, for the inspection of everybody that chooses to look at them. Among the places in which copies would be kept, would of course be that in which the Common Council have their meetings; and in that place at least, to invite attention and facilitate examination, abstracts and indexes, in the tabular form, might be kept hung up.
“One thing more. By the House of Commons, petitions against abuse in all its shapes, on the part of office in all its shapes, are not only received from all hands, but, with admirable universality and promptitude, printed and published. If in all cases by the legislature of the empire, why not in this case by the legislature of the metropolis?
Bentham to O’Connell.
“Q. S. P., 17th January, 1830.
“Thanks, my dear O’Connell—thanks in abundance—thanks in abundance—they cannot be too many—for your long, efficient, delightful public letter.
“For this same Association rediviva of yours—I forget the name of it, and have it not before me—I will contribute either £5 or £10, which you please, if you think it would contribute anything over and above the money, to the great cause. Advance the money: I will pay you on your arrival. You would have more—much more—if my means were in any degree commensurate to my wishes; but I have almost run myself dry, by my long-continued and persevering libations to the public service. You see the cancelling line: my eyes are waxing every day dimmer and dimmer, and my mind more and more oscillatory, or say tottering, or toddling, like my walk. I neither see what I am writing, nor remember one moment what I had just been writing the moment before. But this does not in any material degree diminish my cheerfulness—nor, if the spontaneous and unanimous declaration of all my visiters as well as inmates is to be believed, in any degree deteriorate my looks.”
The character of Santander, the late President of Venezuela, is given in a letter of Bentham to Admiral Mordvinoff:—
Bentham to Admiral Mordvinoff.
“My dear Admiral,—
I am alive; though turned of eighty-two, still in good health and spirits, codifying like any dragon. I hope to hear the like of you; but the hearing it from you being, under the engagements with which you complain of being overloaded, hopeless, I have commissioned my friend, General Santander, who (I hope) will be the bearer of this, to endeavour to collect satisfactory evidence of the fact—that fact so highly desirable for the benefit of the Russian Empire—and make report to me.
“Now, for a short account of him, in justification of the liberty I am thus taking with you in his behalf. In the State of Colombia, in late Spanish America, in the military line, he is among the heroes who have had none above them but Bolivar: in the civil line, under Bolivar’s presidency, he has been vice-president: but, in company with your humble servant, having fallen into the disgrace of the arch-hero, has been made to share the same fate, being expelled from his country, as well as that work of mine, which had the honour of receiving (so I was told) two different translations into the language of yours. General Santander, so I hear from himself, as also from other quarters—General Santander, when in office, did what depended on him towards the diffusion of my works throughout the territory of the State, of which he was so distinguished a member; and such was the part, if any, which, till t’other day, was taken, in relation to them, by Bolivar. But, of late, Bolivar, as is natural to man, and even, in a greater or less degree, unavoidable, has been spoilt by power: and having for so many years deserved—so well deserved—his assumed title of Liberator—is now (alas!) become the tyrant of his country. At one time, he and I had something of a correspondence; and, in consequence of a recommendation from me, he had raised to a colonelcy a talented man of the name of Hall, an Englishman, who had been lieutenant in the English service. But, in the course of the opposition made to him from various quarters, some person or other had made reference to some or other of my works; and such was the cause for which, under I know not what penalties, he thought fit, t’other day, to issue an edict, having for its declared object the preventing every one of them from being read by anybody. This is what I flatter myself will not be quite so easy to effect as to ordain; for I have from a bookseller’s partnership in Paris, (Bossange Frères,) an account of 40,000 volumes of my works, (namely, those edited by Dumont in French,) translated into Spanish, and sold by them for the Spanish American trade.
“As to General Santander’s object in his visit to your capital, as far as I can comprehend, it has nothing political in it. Our Thames he has not, as yet at least, set on fire, or (I verily believe) so much as attempted it: and I do not think the Neva has anything more to fear from him. Being in easy circumstances, (the tyrant not daring to confiscate his property,) his object is, I believe, neither more nor less than to amuse himself, by the observation of a state of society which forms a contrast with that to which he has been most accustomed: travelling about till tidings arrive of the tyrant-usurper’s having shared the fate of Iturbide of Pseudo-Imperial memory.”
Bentham to Brougham.
“Jeremy Bentham to Henry Poltroon, Esq., M.P.—
Decline my challenge, you will be posted all over the civilized world.
“Copy of your bill, with the abstract of it, are come to me, of course, with the other Parliamentary papers. Enactive matter—yes. But, the Rationale, where is it, or can it be? Answer—nowhere: nor dares it even make its appearance. Return,—in Parliamentary style, nil; in Common Law style, non est inventus, add non inveniendum. Come, if you dare, to this Hermitage; and the hermit—hermit and octogenarian as he is, ‘will hang a calveskin on those recreant limbs.’ ”
Bentham to Jabez Henry.
“Q. S. P., 15th January, 1830.
“My dear Sir,—
International law as it ought to be,—leading principle, the greatest-happiness principle. No small satisfaction would it be to see this subject treated of by the light of this same principle before I die,—as a moribund man such as myself, is apt to go on and dream, as if he were to see things in this wicked world afterwards. If I knew any man likely to treat it more to my satisfaction than yourself, I should propose it to him; but as I do not, I take the liberty of hereby proposing it to you. It is by your work intituled ‘Foreign Law,’ that this wish has been suggested to me, although, of course, the law there in question, is law as it is, including what it is supposed to be. Of international law as it is, the principal part of the matter is composed of treaties between State and State; of what it is supposed to be, the matter is composed of deductions from these written instruments, and from the operation of the several States in relation to one another. But this is not all,—other matters belonging to the subject are the variations: the demand for which is presented to the Government of every State, by these circumstances,—that the individual thing which, or person on whom, or in favour of whom, or at the charge of whom, it has it in contemplation to exercise its several powers for its several purposes, on the several occasions in question, is not a thing or person belonging in ordinary, and for the most part to this same Government itself, but one belonging to some other Government.
“Between sleeping and waking, I am thus insensibly running over a ground which, I believe, I have touched upon already, and on which, therefore, there was little use, overwhelmed as I am with the urgent business of the day, in my setting my foot. The first thing a man has to do in building, is to see and settle in its whole dimensions, the ground he has to build upon. To my own purpose, at any rate, perhaps these few hints, broken as they are, may be not altogether without their use. What I should have been, and should still be glad to do, is to circumscribe it in every direction,—but this is not yet done.
“As to the matter of Prisons, it is with unfeigned regret I have to say to you, that it is not in my power to do that which you do me the honour to wish to see done by me. I have not time sufficient, for a load of business of my own that presses upon me; and this subject is, by a particular circumstance, rendered distressing and hateful to me, especially despairing as I do of seeing anything that to me seems fit to be done, put to use.”
O’Connell, in writing to Mr C. S. Cullen, gives the following confirmation of his testimony, in favour of Bentham’s Judicial Reforms.
O’Connell to C. S. Cullen.
16th Feb., 1830.
“My dear Cullen,—
You may assure your friend, Stanhope, that he mistakes me much, if he thinks me at all doubtful on ‘the fee-gathering system,’ or that I fall short of the full measure of relief which Bentham contemplates. Indeed, if it were possible to go further than Bentham does, and at the same time to be right, I would do so; because I know practically that the mischiefs of the present system exceed, not fall short, of any notions which may be entertained by those who are not practically engaged in its workings.
“I adopt the ‘spirit of the petition for justice.’ That petition is my legal creed. I do not believe it to be infallible; but I really and seriously think it as nearly infallible as any purely human project can be.
“The fee-gathering system has been attacked in Ireland thus far—the fees are all now paid to the Government. The pecuniary emoluments of the judges are fixed, and are not affected by the amount of the fees, directly or indirectly. Even the officers, whom the judges appoint, are now paid by fixed salaries. We are therefore suffering from the odious effects of ‘fee-gathering’ in former times, although that source of increase of mischief is slackened. In attacking the fee-gathering system, I must not forget that this is the existing state of facts; but I dislike the system itself. I am, and ever will be, its enemy—its implacable enemy.
“In fine, there never lived a more complete, entire, unchangeable enemy to law abuses as they exist,—a more determined advocate for the domestic, instead of the factitious,—the summary in contradistinction to the technical form of procedure, than yours, very sincerely.”
Bentham to Edward Livingston.*
“Queen’s Square Place, Westminster,London, 23d Feb., 1830.
The honour done me by the communication you have been pleased to make to me of the proposed codes, and the papers relative to them, has called forth my sincere gratitude. At the same time, it is my misfortune to be obliged to say, and it is with no small regret that I do so, that the circumstances in which I am placed do not admit of my complying with the wish expressed in the obliging letter by which they are introduced. I feel myself beyond all hope of being able to spin out the thread of my own ideas, on the subjects in question, and others intimately connected and intertwined with them; and that thread once broken, it is regarded as being in no small degree questionable whether there be any other hand by which it could be gathered up and carried on exactly in the same line. What depends upon me towards rendering the honour which is so justly due to you, shall, however, not be neglected: it will be not the least pleasant of my cares to look out for and place these papers in such as appear to me to be the most competent hands to which they can be confided, for the purpose of rendering some account of them, and laying before the public any such useful observations as it may have happened to them to have elicited.
“This enormous delay has had for its cause my desire to give you definitive information of the steps that have been taken for the giving publicity to your Penal Code in this its latest form. An article on it will appear in The Jurist,—a periodical designed to be quarterly, in imitation of the so-called Quarterly, Edinburgh, and Westminster reviews, but not very regular as to time. It has Law Reform and Improvement for its object, and pursues that object with the best intentions, and distinguished talent. The article will be written by Dr Southwood Smith, by profession a physician; but a man of genius, philanthropical affections, and eminently-extensive knowledge. Here a natural question is,—Why and whence this physician? Answer.—You know, or do not know, that your code, in its first state, has been republished here in London; the act of publication was a spontaneous act of philanthropy on the part of this physician. He was, and is, far from rich; he has no patrimony, no source of subsistence but his professional practice, which is not by any means adequate to his merits. This act of self-sacrifice found its way to the ears of John Smith, Member of Parliament, president or chairman (I forget which they call it) of the Company of London Bankers; one of four brothers, three of whom are in the House of Commons, and the other raised to the peerage, with the title of Lord Carrington, by Pitt the Second,—besides two nephews of the same name, also in that same House. John Smith took the expense out of the hands of his namesake. I say the expense; for under this our aristocracy-ridden and lawyer-ridden constitution, (in royal and ministerial language, yclept, ‘matchless constitution,’) expense of editing works of this nature stands no chance for reimbursement. On the present occasion I wrote to Southwood Smith, and he has consented to write: I made application to the editors of the Jurist, and they have consented to accept and publish: the Jurist, I am told, pays no money for the articles it accepts and inserts.
“It is matter of no small satisfaction to me to learn, from Mr M‘Lane, that the Senate of Congress is about to receive the benefit of your services. I look forward with pleasure to the chance of seeing (small as at my age the best chance of seeing it can be) some proof that, under your auspices, the Cacoethes Codificandi, to speak in the language of the adversary, is become contagious.
“By reputation at any rate, if not personally, Mr Lawrence, late Chargé d’Affaires at this Court, can hardly, I think, be altogether unknown to you. I have the honour and pleasure of a considerable degree of intimacy with him. He looked eventually to a seat in the House of Representatives: should that prospect be realized, Codification, I dare venture to hope, will receive in him a powerful support.
“Another friend I had the good fortune to make among your diplomatic functionaries, was Mr Wheaton, with whose function at New York you cannot be unacquainted, and who, on his way to his mission to the Court of Copenhagen, passed some months in this metropolis.
“An objection that is constantly made, and strongly insisted upon by the adversaries of Codification, is, that when your Code, even supposing it to be an all-comprehensive one, is prepared, whatever good was expected from it, would ere long be extinguished by its being clouded and covered over by an overgrowth of judge-made law. In proof of this position, reference is made to Buonaparte’s Code, which, by its deficiency, has certainly given rise to more of this matter than could be wished; but were this really-existing law ever so much more imperfect than it is, the rule of action composed of it will never be nearly so inadequate and unapt as that is, which is composed of the imaginary sort of law distilled from decisions made in particular cases by judges; and you or I having Buonaparte’s Code before us—and if he is a giant, and we dwarfs, being accordingly mounted upon his shoulders,—might reasonably be expected, in the ordinary course of things, either of us, to make a Code less imperfect than his. But a method has occurred to me, which will render to all really-existing law the same sort of service as that which by copper-sheathing is rendered to ships, and make it as impossible for judges and commentators to defile the work of the legislator by their deductions, as it is for—the barnacles, I think they call the sea-worms in question,—to fasten their progeny upon the hulks so protected by the smooth metal. Of the principle of this contrivance of mine, some conception may be formed from Section 29, Members’ Motions, in Ch. vi. Legislature.* In Ch. xii. Judiciary Collectively, Sections 19, 20, 21, and 22, you will see the same principle applied to the decrees of judges. I give to judges the power and the duty to frame amendments in terminis to the Code, when once made, wherever they see reason,—whether for the purpose of interpretation, correction, addition, or defalcation: these I require to be certified and transmitted to the legislation minister, of whose duties a description is given in the Section designated by his name, Ch. xi. Ministers collectively. The details are explained at length in those several sections of those several chapters: but I stake whatever little reputation may be my lot upon my fulfilment of this assurance, and I flatter myself that this account, short and inadequate as it cannot but be, will not be found an altogether unintelligible one.”
Bentham to Brougham.
“March 30, 1830.
“To Master Henry Brougham!—Naughty, Naughty Boy!—
Pap for you? Oh no! no more of that—you would only puke it up again. Pap for you? No! that is not what you are in want of—you have outgrown it; what you are in want of is another dose or two of jalap to purge off your bad humours, and a touch, every now and then, of the tickle-Toby, which I keep in pickle for you. Ay! there they are,—the hot-buttered Rolls, and there are you, with your mouth watering for them, and your chops longing to be slobbered over with the butter you are so fond of, that you think you can never have enough of it. Rich as it is in itself, the butter is not rich enough for you, unless it has fees—yes, fees upon fees melted into it,—and then, too, naughty madcap!—never can you have enough of them. Yes! there you are—I have you, screaming like mad in the middle of the nursery,—throat hoarse,—eyes running—‘Pray, nurse! dear nurse! fees for Henry—more fees—more fees!’ These words you can speak plain enough already. When will you have learnt your primer? When will you be able to spell ‘greatest-happiness principle; non-disappointment principle; ends of justice—main end, giving execution and effect to the substantive branch of law; collateral ends, avoidance of delay, expense, and vexation—evils produced by the adjective branch? When you have got that by heart, you may then be fit to be breeched and sent to a grammar-school.
“Meantime, there is Master Peel: look at him there—a real good boy for you—take lesson by him. No more fees—law-fees at any rate, for him; he has done with fees: he isn’t cramming his playfellows with them as he used to do: he is now sick at the very thought of them. He goes about saying to everybody that will hear him,—‘No more law-fees for me—I won’t have no more of them. Instead of eating them, or giving them to other boys to eat, I shall fling them all into the fire. Them boys as can’t eat their bread and butter without them, let them go without—that’s what I say.’ In short, Master Peel is growing a better and better boy every day: he says, and he will have learnt to say his book like a man, before I have done with him. If he continue to behave himself well, he shall have some nice Parliament gingerbread to munch: that he shall. So no more at present from your still-loving, though sadly offended grandpapa,
“You know who.”
Bentham to O’Connell.
“Q. S. P., 15th March, 1830.
Comes into my head just now an idea which I lose no time in communicating to you.
“On the occasion of your motion for printing Codification matter for use of Honourable House, what say you to another for the printing of Livingston’s Louisiana Codification matter for that same purpose—I say on the occasion; not at the same time: for it would add a drag to a wheel which quite drags enough without it.
“Cases sufficiently apposite, not to say in point, you would have in plenty. Under the name of Regulations, Codes printed by order of Honourable House. From do., enacted and published in various parts in British India: the like from other distant dependencies of the British empire, in particular the West Indies: a complete list might, if needful, be collected for this purpose.
“Objection 1. This is matter of course and of obligation: for, over these subordinate communities we legislate; and to legislate well appropriate information is necessary; but over Louisiana we do not legislate. Answer—True; but unless we are omniscient, something in the way of appropriate information upon a much larger scale than in these cases may be not altogether without its use.
“On the subject of the quondam Nabob of Arcot’s debts, real and pretended, to British individuals, Honourable House has already in print, folio volumes twenty-six, and the series not completed; on the funds belonging to English charities, about as many: this last communication in consequence of the Commission moved for and obtained by Mr Brougham. This Codification-matter of the State of Louisiana would not occupy so much space as is occupied by this or that one of the above-mentioned fifty-two.
“Objection 2. Louisiana is a republic,—a commonwealth. ‘Matchless Constitution’ is a monarchy: it becomes us not to take for a model the laws of a commonwealth.—Answer. True: not the constitutional branch; but on no part of the constitutional branch have these Louisiana codes any bearing. Penal and Procedure,—these are the only branches comprised in the assemblage.
“N. B. For Louisiana there exists, and I believe already in a binding state, moreover, a civil code: but in relation to this, prudence, if my ears deceive me not, commands silence: for Louisiana being a commonwealth, landed property will, of course, be divided among all children, Gavel-kind fashion: of all heresies the most damnable—the most damnable in the eyes of the worshippers of the Dæmon of Oligarchy.
“For his own information, in his quality of Legislator of the French nation, Buonaparte gave publicity in French to the code, a widely comprehensive code, civil or criminal, or both, of another nation,—I believe civil, and that alone: but upon occasion, this matter could be stated with the requisite correctness.
“Should Mr Peel, or any of his lawyers,—should the worthy offspring of the Scarlet Whore, whose sins are red as scarlet, dare to make opposition, remind them of the civil wars of ancient Rome, between the Patricians and the Plebeians: main cause of them, the original policy, inexorably adhered to, of keeping the rule of action in a state of uncognoscibility: the lamp of the law hidden for ever within the impenetrable, light-denying, darkness-securing bushel.
“Apropos of Mr Peel. On Saturday I sent to him a copy of the argument against fee-gathering in judiciary offices of both grades, in the state in which I sent it to you: accompaniment to it, letter, in and by which was holden out a hand, which, if so disposed, he may regard as a ‘right hand of fellowship,’ and take hold of accordingly: occasion, the symptoms manifested in a late speech or two of his, in which he is coming round and attacking the army of Chicane in flank, at any rate, not to say in front, and, moreover, issuing a direct declaration of war against ‘Technicalities.’ I even offer to look at those bills of his, if he will send them to me as he did some former ones. To these advances should he oppose a refusal, expressly, or by silence virtually, they will heap coals of fire on his head: for which purpose I have, moreover, some glorious matter, in a letter which he therein gives me leave to publish.”
Bentham to John Smith, M. P.
“Q. S. P., 21st April, 1830.
“My dear Sir,—
On every account, private as well as public, high is the gratification afforded me by your most obliging letter.
“Sorry I am, that by the mention made of Denman in mine, to which yours is an answer, a sensation of an unpleasant kind has been made in one of your heartstrings.
“With Denman I never had more than one interview, and that a casual one, nor more than half-an-hour’s conversation: the result of which was, on my part, as towards him, a sentiment composed of esteem and affection, and the satisfaction of standing assured of the existence of a sentiment of the same nature on his part as towards me.
“Accordingly, it is chiefly through the medium of general report that my conception of his character has been formed. He is, as far as I ever heard, of the number of those few of whom everybody speaks well. But high as he stands above par in the intellectual scale, what I have generally heard said is, that he does not in that scale stand quite so high as in the moral scale.
“In regard to law reform, I am indebted to his kindness for a copy of a pamphlet of his on that subject. If my conception on that subject, together with the unanimous voice of all who are acting with me, is correct, his suggestions, taking them all together, do not go to the root of the evil: if adopted and carried into effect, they would cut off no more than a comparatively minute portion of it, and give stability to the remainder.
“Be this as it may, no call will on this occasion be made to him to declare himself. It is unanimously agreed, that partly for their own sakes, partly for that of the public, no such call shall be made to any man of the lawyer class, official or professional, for this purpose. Not even Bickersteth, who is a most cordial friend to law reform, to its utmost extent, (excuse the blunders my sinking frame is continually falling into,) and has hitherto acceded without reserve to the letter as well as spirit of everything proposed by me. By him has been revised and approved of, everything that he has seen of my proposed Equity Despatch Court Bill, and what he has seen comprehends the principal part of it. But the newspapers and private report speak of him as likely to be one of the new judges upon the Chancellor’s sham-reform plan; in which situation I should rejoice to see him placed, and I will not place him in any such embarrassing situation as that of being obliged either to give, or to decline giving his accession to a measure necessarily so displeasing to the higher powers.
“As to the apprehended difference between Denman and myself, a few words will suffice for presenting some conception of it. In regard to procedure, I am for the complete substitution of the summary to the regular on every part whatsoever of the field of law: he, not. In regard to evidence, I am for a complete exclusion of the practice of excluding evidence on any such ground as that of preventing deception, or that of saving a man who has done a punishable act, from the need of contributing to cause it to be believed that he has done so,—namely, either by stating what it is that he has done, or by declining so to do. Denman, on the other hand, by the opinion which, in common with the generality of the fraternity, he maintains, or at any rate did maintain, stands entangled in the inconsistency alluded to in my former letter.*
“Should it ever happen to you to hold any conversation with him in relation to either of those points, you will observe whether he comes to close quarters, or confines himself to vague generalities, from which no trust-worthy conclusion can be derived.
“In my five large volumes on the subject of Evidence, (the Rationale of Evidence,—the whole running counter to the current—the united current of sinister interest, interest-begotten prejudice, and authority-begotten prejudice,) the subject of the exclusions put on Evidence occupies more than a whole volume. By what inducements can the perseverance of a lawyer, who either is or wishes to be in full practice, (rare exceptions excepted!) be reasonably expected to carry him through a volume filled with matter, the object of which is to prove, that he and all men whose feelings, interests, and opinions are in unison with his own, are in the wrong? and this with such effect, and to such a degree, as to be hostile to the interests, and detrimental to the happiness of all the rest of mankind?”
Bentham to President Jackson.
“26th April, 1830.
“Jeremy Bentham, London—To Andrew Jackson, President of the Anglo-American United States.
When your last predecessor in your high office was in this country, in the character of Minister Plenipotentiary, towards the close of his residence here, it happened to me to commence with him an acquaintance which ripened into an intimacy, which, in my capacity of legislator’s draughtsman for any political community which should feel inclined to accept of my services, was of very essential use to me. Besides some labours of a private nature, he condescended to take charge, and became the bearer of a packet of circular letters to the several Governors of the United States, as then constituted; from several of whom I had the honour of receiving favourable answers. By candid and authentic information on several topics of high importance, he was of use to me in more ways than you have time to read of, or I to write. Days, sometimes more than one in a week, he used to call upon me at my Hermitage as above, and to accompany me to the Royal Gardens at Kensington, in my neighbourhood, where, after a walk of two or three hours, we used to return to a tête-à-tête dinner. What gave occasion to our first meeting, was a letter, of which he was the bearer, from the President Maddison. A letter of introduction which I took the liberty of addressing to Mr Adams, in favour of an intellectual character, a relation of my friend, Joseph Hume, M.P., experienced that reception which I could not but anticipate.
“You will not be at a loss, Sir, to conceive what must have been my disappointment upon my learning of his failing to receive the customary additions to his term of service. Judge, Sir, of the consolation,—of the more than consolation which I experienced, when, upon reading your Presidential Message, I found that, upon the whole, your sentiments were not only as fully in accordance with mine as his had been, (and in politics and legislation, I do not think there was a single topic on which we appeared to differ,) but that they were so, and I trust remain so, in a still more extensive degree, embracing several topics which, between him and me, had never been touched upon.
“With Mr Rush I was also upon such a footing, that, in a letter of his, which I still have, he had the kindness to offer himself as my agent and factotum, (these are his words,) upon his return to the United States. Notwithstanding which, several weeks before his departure, for some cause which I never heard, nor can form so much as the slightest guess at, he dropt my acquaintance, and took his departure without so much as a farewell message. Since his retreat from office, I have, however, been favoured by him with the copy of a pamphlet of his. Without further explanation, I might mention, in a like manner, my friendship with Mr Lawrence, late Chargé d’Affaires from your country to this, and Mr Wheaton, Minister to Denmark, to whom I have been obliged for various important services. But of this (you will say) more than enough.
“I now look back to a letter I had begun dictating between three and four months ago. Cause of the long interval, how deservedly regretted by me, not worth troubling you with. What now follows had been completely forgotten, when what you have seen above was communicated. This oblivion, years of age more than 82, render but too natural.”
J. B. to U. S. President, Jackson.
“January 10, 1830.
“I have this moment finished the hearing of your message: I say the hearing; for at my age (as above-mentioned) I am reduced to read mostly by my ears. Intense is the admiration it has excited in me—correspondent the sentiments of all around me.
“ ’Tis not without a mixture of surprise and pleasure, that I observe the coincidence between your ideas and my own on the field of legislation. The coincidence of mine with those of Dr Livingston, the Louisiana senator, are, perhaps, not unknown to you.
“The flattering manner in which he is pleased to speak of my labours in that field, is, in the highest degree, encouraging to me. The herewith transmitted publication, entitled “Codification Proposal,” &c., may serve to bring it to view. These circumstances combined, concur in flattering me with the hope, that the present communication will not be altogether unacceptable to you. Annexed is a list of some of my works, which solicit the honour of your acceptance.
“Here follow a few observations, which I take the liberty of submitting to you, on some of the topics touched upon in your above-mentioned message.
“1st, Navy Board.—In this sub-department of the Defensive Force Department, you find, I perceive, many-seatedness established—by you, single-seatedness, I see, is preferred: so is it by me—for this preference, your reason is responsibility:—so is it for mine. But in my account, though the principal reason, it is but one among several. This may be seen in the accompanying copy of the 1st part of my Constitutional Code, ch. ix., section 3.
“2d, After that you come to the Judiciary. If I do not misrecollect, in your superior Judicatories the bench is single seated. In my leading chapter on the Judiciary, to all the reasons which apply to the Administration Department in all its sub-departments, twelve or thirteen in number, several which are peculiar to the Judiciary are added.
“3d, Utter inaptitude of Common Law for its professed purpose—guidance of human action. Places in which you may find this topic worked: 1. ‘Papers on Codification and Education.’—2. ‘Codification Proposal,’—and 3. ‘Petition for Codification’ in the volume of ‘Petitions.’
“4th, Superfluous functionaries.—In this number my researches have led me to reckon the whole of your Senate—not merely the whole expense thrown away, but the whole authority, much worse than useless. Responsibility in greatest part destroyed by a single functionary, what must it be by a multitude so numerous? Functions legislative and administrative thus united in the same body; thus the same men are judges over themselves. In my view of the matter, the administrative and the judiciary are two authorities employed to give execution and effect to the will of the legislative, and which, accordingly, ought to be, in the instance of every member of each, at all times distinct: the legislative being, by means of the power of location and dislocation though not by that of imperation, subordinate to the people at large—the constitutive.
“Knowing nothing of the facts, my theory leads me to expect to find, that the sort of relation that has place between the President and the Senate, is, that each of these functionaries, the President included, locates, within his field of patronage, a protégé of his own, without any check from the authority of the rest.
“This is nothing more than a faint, imperfect, and inaccurate outline, drawn momentarily by a broken memory from the recollection of a short paper written several years ago. Should it afford any prospect of being of any use, and you will favour me with a line to let me know as much, I will get it copied and transmitted to you: possibly I may even not wait for such your commands.
“It occurs to me, that should our opinions agree on this subject, there might be a use in the ideas being delivered, as coming from me or anybody else rather than yourself: seeing the opposition it would be sure to meet with from those who are satisfied with things as they are—the wound that such an opposition might give to your popularity, which is as much as to say, to the interests of the State.
“5th, Defensive Force—by sea and land: its organization. Tactics, (of course,) neither in land nor water service, am I, who know nothing of the matter, absurd enough to have comprised in it: but the part that I have undertaken has undergone the minute examination, and received the considerate approbation of leading minds of the first order, distinguished not only by talent, but by experience and splendid success; and who, indeed, though without having published on the subject, had in great part anticipated me.
“An intelligent man, who is in the confidence of the Duke of Orleans, and bears the whimsical name of Le Dieu, has been here in London for some time, publishing a periodical in French, under the title of ‘Le Représentant des Peuples.’ He is thought to be the author of an address to the French army, that, after having been written here, and either printed or lithographized, has been transmitted to, and circulated in France. It has for its object the engaging the army, should matters come to a crisis, to act, not against, but for the people. The above-mentioned periodical I have not had time to look into; but I am told that it advocates monarchy, which, considering the connexion of the author with a family so near to the throne as that of the Duke of Orleans is, he could not choose but do. Thinking you might possibly have the curiosity to look into it, I send you a copy of such of the numbers of it as have appeared. La Fayette is a dear friend, and occasional correspondent of mine; but unless it be for some special purpose, we have neither of us any time to write.
“Forgive the liberty I take of suggesting the idea of your putting in for a copy of our House of Commons’ Votes and Proceedings. The annual sum I pay for them is between £16 and £17, included in which is a copy of our Acts of Parliament.* Infinite is the variety of the political information which they afford; for scarcely any document that is asked for is ever refused. As to the price, scarcely would six, eight, or ten times (I believe I might go further) the money, procure the same quantity of letterpress from the booksellers. Trash, relatively speaking of course, is, by far the greatest part; but if in the bushel of chaff a grain of wheat were to be found, the above-mentioned price you will, perhaps, think not ill bestowed on the purchase of it. Dr Livingston, if either of the packets I have endeavoured to transmit to him through the same official channel have reached their destination, will be able to show you a few articles of the above-mentioned stock.
“If I do not mistake you, you are embarked, or about to embark, in a civil enterprise, which Cromwell, notwithstanding all his military power, failed in,—I mean the delivery of the people from the thraldom in which, everywhere, from the earliest recorded days, they have been held by the harpies of the law. Having yourself officiated in the character of judge, you are in possession of an appropriate experience, which in his instance had no place; but will you be able to resist their influence over the people? In opposition to you, so long as you are engaged, or believed to be engaged, in any such design, it were blindness not to look to see their utmost influence employed. The interest of the lawyers, and that of their fellow-citizens, in the character of clients, need it be said? is utterly irreconcileable. You cannot assuage the torments of the client, but you diminish in proportion the comforts of the lawyer. If these be really of the number of your generous designs, I cannot but flatter myself with the prospect of being for that purpose an instrument in your hands. The contents of the accompanying packet will, in so far as you have time to look at them, show you on what grounds.—With the most heartfelt esteem and respect, I subscribe myself,” &c.
Bentham to M. Humann (of Brussels.)
“27th April, 1830.
“As to the particulars of my own life, Dr Bowring has for this long time been occasionally occupied in minuting them down from my own lips. Under the circumstances above alluded to,—from my own pen, you will, I am sure, neither expect, nor so much as wish to receive them. A friend of mine, whom you saw, is kind enough, at my request, to give me reason to hope, that in this view, he will look over some papers that are in print, and make a short extract from them, by purging them of some errors, repetitions, and other superfluities,—which done, endeavours will be used to convey it to you through the same channel as these presents. For your amusement, rather than for any present serious purpose, I may perhaps add to the above papers the greatest part of a pasticcio, which is now passing through the press, under the all-comprehensive title of ‘Official Aptitude,’ &c. You will forbear to have them bound up, till what remains still unprinted follows them. It will not be more than four or five sheets.
“As to the most eligible order in which the matter of my works can make its appearance in a new edition, I can think of none better than the chronological order of the impressions,—for such is the variety of the subjects treated of, and such is the multitude of those which remain uncompleted, and thence unprinted, that the whole power of logical arrangement is set by them at defiance; and, in several instances, this or that paper which has been in print in this or that year, has remained on my shelves for a number of years before it has been made public. When, after my death, the friend, by whose hand the last published, whatever it may be, of my scraps, is destined to see the light, in fixing upon the order in which the matters of the first complete edition shall make their appearance, he will perhaps do not amiss, if, in that view, he casts his eyes on my Encyclopedical tree, or table—call it which you please.”
In 1830, Bentham entered into correspondence with the Reverend Humphrey Price, who, under the influence of a highly excited sympathy for the suffering carpet-weavers of Kidderminster, had published some matter which was condemned as libellous, and was sent to prison. He thus tells his story to Bentham:—
Rev. Humphrey Price to Bentham.
“County Prison, Stafford,
I am a clergyman of the Established Church of England. Some eighteen years ago, another clergyman, to whom I had been for eleven years a curate, built a small country church in the heart of the lately enclosed forest of Needwood. The king endowed it with one hundred and sixty acres of forest land, and I was the first person presented to it. There I lived laboriously, and ever in mywork, silent, and little known beyond the immediate sphere of my own duties, eking out a livelihood for my wife and four children by pupil-taking, till March 1829; at which time, the carpet manufacturers in my native town of Kidderminster suddenly dropped the prices of weaving, and the weavers as instantaneously struck. From my dear mother, who had never quitted the town, I first heard of the turn-out of the weavers in about a month from its commencement—of their most exemplary conduct. I had been born and reared among the poor men, with none other expectations as to the future than the rest of them. Without patronage or aid of any sort beyond a common free school, however, I became a clergyman, settled in another neighbourhood forty miles distant from Kidderminster, but always keeping up my connexion with my native town by means before alluded to. My heart had always yearned after the poor weavers, whom I had known for many years to be gradually sinking into a state of poverty, degradation, and want: and when I heard the particulars of the strike, I instantly decided to aid the poor dear fellows to the utmost of my power of purse and pen. I did so; and if I were at this moment to be conveyed to the gallows for doing so, I think it would be impossible for me to repent my act. But being ignorant of law, and unconscious of breaking it as an infant, here I find myself imprisoned (after the entire breaking up of my family by the expenses, &c.) for libel against six-and-twenty carpet manufacturers.
“Now for the express purpose of this letter. I am writing a letter addressed to all the operatives of England upon their present state and duties. This said letter, as far as it is written, I have read to my jailor, (a very respectable man;) but he says he dares not suffer such letter to be published without the sanction of the visiting magistrates. Of their permission to publish I despair. Nevertheless, the term of my imprisonment will end in time, when I shall be, pro tempore at least, independent of the arbitrary will of magistrates. I would not, however, (though altogether regardless of consequences, when conscious of right,) I would not, however, violate any law knowingly, unless I saw that it was a law I ought to violate,—as, for instance, a law which should command me to throw salt into the fire of a heathen sacrifice, &c.
“Will you, then, Sir, permit me to send my letter (above alluded to) to you for your advice as to the legality of it? I will thankfully send with it the requisite fee when known.
“Your answer, though only one word, (Yes or No,) will oblige,” &c.
He said he had been attached to Bentham by the phrase, “Young Antiquity,” which was in itself full of instruction. His letter interested Bentham deeply, and he thus answers it:—
Bentham to Mr Price.
“Queen’s Square Place,Westminster,
Your letter, this instant received, has called forth my sincere sympathy. Your mention of the word fee shows how completely unknown I am to you otherwise than by the works you allude to.
“Have the goodness to send me this same statement of yours, and I will procure for it attention more valuable than any which it is in my power to bestow.
“I could wish to know what that work of mine is to which you allude; and by what accident and through what channel it fell into your hands.
“A libel is any writing for which any man who has power has the will to inflict punishment. I am myself the most egregious and offensive libeller men in power in this country ever saw.
“I am, Sir,