XII

BENTHAM'S 'THEORY OF LEGISLATION ’1

1

MR. HILDRETH'S translation of Dumont's translation of Bentham's great work, is satisfactory as a proof of the interest which the work itself still excites. Mr. Mill has observed that Coleridge and Bentham represent, in this country and in the present generation, the two lines of thought between which speculation continually oscillates, and that, in order to understand fully the course of opinion for the last fifty years, it would be necessary to reach a point of view from which the principles of each could be contemplated in an easy and natural manner.

We should doubt whether this remark did not attach too much importance to Coleridge, and whether it was not rather for want of a more conspicuous writer on that side, than on account of his inherent power, that Mr. Mill attached so much importance to his writings. In one qualification of a great writer

1 Theory of Legislation. By Jeremy Bentham. Translated from the French of Etienne Dumont by R. Hildreth. Trübner: 1864.

he certainly failed. He left behind him no one great book, and his disciples are compelled to elicit his doctrines, by laborious examinations and comparisons, from a vast mass of disjecta membra, instead of being able to point to any single work as a standard exposition of his characteristic views.

The same observation applies, to some extent, to Bentham. Many, if not most, of his books are more or less fragmentary and unfinished, for he was both laborious and idle. He seems to have delighted in pondering over a subject, and laying out any amount of labour in inventing schemes and classifications about it, but the task of throwing what he had thus thought out, into a shape in which it might become acceptable to the rest of the world, was barely tolerable to him. Hence, with the exception of a few minor works, like the fragment on Government, and the tract on Usury, such of his books as were not manipulated by Dumont, still remain in their original chaos. Elaborate works, such as the Rationale of Judicial Evidence, are left in a state so disorderly and vexatious, that they remind the reader of houses which have fallen into ruin without having been ever inhabited-the speculation of an unlucky builder. The scaffolding is not removed. The walls have never been painted or papered, and in many places the rafters and joists have not even been concealed by plaster.

The work which M. Dumont cleaned, washed, and translated into French, and which Mr. Hildreth has

retranslated into English, is the great exception to this. It represents Bentham's cardinal doctrines in a manner at once complete and authentic, and it applies them, with precision and detail, to the most important of the subjects to which they relate. Its general drift may be thus summed up. The test of the morality of all actions is their tendency to produce pain or pleasure. A benevolent legislator will make his laws with a view to the promotion of pleasure and the diminution of pain, and careful analysis shows that no other object for laws can be distinctly enounced and avowed, which will command the assent of any considerable body of men, sufficiently well instructed to understand their own interests and to know their own strength.

Having laid this foundation, with a power of thought and a humorous force of language which are considerably diminished by translation, Bentham proceeds to analyse pleasure and pain. There are fifteen kinds of pleasure-namely, pleasures of-1, The Senses; 2, Riches; 3, Address, i.e. skill; 4, Friendship; 5, Reputation; 6, Power; 7, Piety; 8, Benevolence; 9, Malevolence; 10, Intelligence; 11, Memory; 12, Imagination; 13, Hope; 14, Association; 15, Comfort. There are eleven sorts of pain, which for the most part are the converse of the fifteen pleasures. These pains and pleasures are connected with particular actions, so as to constitute rewards or punishments in four ways—namely, physically, the pain of a cut or burn; morally, the

pain of being blamed; politically, the pain of being imprisoned; religiously, the pain of fearing future punishments. Thus we get four sanctions — the physical, the moral or popular, the political, and the religious. This is the groundwork both of morality and legislation, which differ from each other, not by their centre, but by their circumference.'

Legislation, however, has in fact been much misunderstood, and laws have been continually made upon false principles. In a chapter which was afterwards expanded into the well-known volume on Fallacies, Bentham exposes these false assumptions, with that air of crushing self-confidence which was one of his most characteristic gifts, and which, it must be owned, was often very well founded.

He next proceeds to describe the principles of a civil and criminal code. The object of the legislator is to produce the happiness of society, and this happiness may be divided into four principal headssubsistence, abundance, equality, and security. The discussion of this subject is admirable. As for subsistence and abundance, they can be favoured by the legislator only indirectly, that is to say, by securing to every one the fruits of his labour, or the property which he actually possesses under the existing state of things; but equality is a substantial advantage.

Bentham's account of it is one of the most characteristic parts of his book. Almost all the common speculations on this subject run at once into

declamation. They are all amplifications of the commonplaces that men are 'born equal,' or are 'equal in the sight of God.' Bentham has the merit of reducing what has been generally used as a mere rhetorical falsehood, to almost mathematical precision. Wealth (taken in the widest sense) produces happiness, but not in the direct ratio of its amount. It is so much subdivided, or so much accumulated, as to be almost worthless to its possessors.

From this principle he proves, by a sort of maximum and minimum problem, that equality ought to be favoured, and kept in sight, in laws which affect the distribution of property. This end, however, is always to be subordinated to the principle that the existing state of things is taken as the starting-point, and that the maintenance of individual security in that state of things, is the principal object of the legislator. Equality, therefore, can be favoured only by degrees -by regulating successions, preventing monopoly, and the like. As for security itself, it is provided for simply by the protection of person and property, and by abstaining from invasions of them which are not productive of some benefit greater than the suffering which they produce.

Such being the general objects of the legislator, how is he to attain them? He must, in the first place, remember that he will have to make laws in, and for, a state of things already existing, and that the popularity of his laws, their goodness in relation to the nation for which they are made, will depend