Lecture In this passage we have the explanation of the curious historical phenomenon that after the middle of the nineteenth century Austin, Bowring, W. R. Greg, Robert Lowe, and other rigid utilitarians adopted, without any fundamental change of principles, a peculiar type of conservatism. They felt that a Parliament constituted under the Reform Act of 1832 was more likely to legislate in accordance with utilitarian principles than would be any more democratic assembly. Their forecast of the future has been justified by subsequent events. A House of Commons representing the householders of the United Kingdom has shown far less inclination than did a House elected by the £10 householders to respect either the dogmas or the sentiment of Benthamism. 1 As to the Method of Law Reform.-Bentham's influence in setting before reformers an ideal to be attained by the amendment of the law has received general and due acknowledgment; his influence in determining the method, i.e. the legislative means, by which the amendment of the law might be best affected, deserves equal acknowledgment, but has received less notice. To appreciate the effect of his authority in this matter we must bear in mind that laws are with us created and changed in two different ways-that is, either by Act of Parliament, or by judicial legislation arising from the action of the Courts in deciding the particular cases which come before them. Even at the present day the greater part and the most important of the laws by which Englishmen are governed are in reality judge-made law, and this 1 See Maine, Ancient Law, pp. 78, 79. VI. was much more obviously the case at the beginning Lecture of the nineteenth century.' When, therefore, in the latter part of the eighteenth century jurists and philanthropists perceived that the law of England stood in need of amendment and expansion, it was apparent that this end might conceivably be attained either by the free use of judicial authority or by the employment of parliamentary sovereignty. Two reformers arose of equal though of different genius. The one was Lord Mansfield, the other Bentham. The Chief-Justice adopted the judicial, the utilitarian philosopher advocated and adopted the parliamentary, method of legislation and reform. Lord Mansfield, as Chief-Justice of England, presided over the King's Bench for twenty-four years; he was not only in name but in reality the head of the English common law; he was a jurist of genius; he filled a position of unrivalled authority; he achieved as much in the way of reform as was achievable by the means at his disposal. Yet his labours, taken as a whole, were not crowned with success. In some of his innovations he distinctly failed, -as notably in the endeavour to reduce within narrow limits the rule that a promise not under seal needed a consideration for its validity, and even where he was to a certain extent successful, successors, who did not inherit his spirit, limited the operation of the principles which he had introduced into the law. 1 An intelligent reader of Blackstone's Commentaries is astonished at the slightness of the reference made by the commentator to statutes. Contrast on this matter the first edition of the Commentaries, completed in 1765, with the last edition of Stephen's Commentaries (based as they are on Blackstone's work), edited by Mr. Jenks in 1903. VI. Lecture Lord Mansfield lived at least two centuries too late. If the body of English law was to be remodelled or amended the work could be done by Parliament, and by Parliament alone. Bentham learned the lesson of Lord Mansfield's career; he learned it the more easily because the element of fiction, which is an almost essential feature of judicial innovation, shocked his logical understanding, and was in his eyes little better than a fraud by which judges usurped authority, which, when they had wrongfully obtained it, they had not the intelligence to use with wisdom. The importance, moreover, which he attached to the publication of law increased his enthusiasm for codification, and an English code, it was clear, must be the work of Parliament. He determined or assumed that the law must be reformed, if at all, by parliamentary enactment. His determination, justified by the circumstances of the age, was decisive. It has been followed by every man, whether a utilitarian or not, who since Bentham's time has wished to change systematically the law of the land. But, if the legislature was the only body which possessed the power to carry through a utilitarian reformation of the law, it became before Bentham's death apparent both to himself and his disciples-the philosophic Radicals-that the unreformed Parliament, just because it mainly represented the interests and feelings of landowners and merchants, would not sanction fundamental improvements in the law of England. Benthamism thus led to the demand for such a reform in the constitution of Parliament as should make it a fit instrument for carrying out Benthamite ideas. (B) The acceptance of Benthamism. The existence of a school of thinkers bent on the Lecture VI. reform of the law in accordance with utilitarian principles was, as already pointed out,' 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. Both were provided by Bentham and 66 2 1 See p. 124 ante. 2"It is impossible to overrate the importance to a nation or profes"sion of having a distinct object to aim at in the pursuit of improve"ment. 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. 66 "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 nineteenthcentury England were originated by Bentham. The opinion of Sir Lecture his school. VI. 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.1 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 Henry Maine might be quoted in support of Hill Burton's proposi"tion, 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. 1 This is certainly true of Sydney Smith. See Holland's Memoir and Letters of Sydney Smith (4th ed.), p. 386. |