CHAPTER VI

BENTHAM'S DOCTRINE

I. FIRST PRINCIPLES

Bentham's position is in one respect unique. There have been many greater thinkers; but there has been hardly any one whose abstract theory has become in the same degree the platform of an active political party. To accept the philosophy was to be also pledged to practical applications of Utilitarianism. What, then, was the revelation made to the Benthamites, and to what did it owe its influence? The central doctrine is expressed in Bentham's famous formula: the test of right and wrong is the 'greatest happiness of the greatest number.' There was nothing new in this assertion. It only expresses the fact that Bentham accepted one of the two alternatives which have commended themselves to conflicting schools ever since ethical speculation was erected into a separate department of thought. Moreover, the side which Bentham took was, we may say, the winning side. The ordinary morality of the time was Utilitarian in substance. Hutcheson had invented the sacred phrase: and Hume had based his moral system upon 'utility.'[355] Bentham had learned much from Helvetius the French freethinker, and had been anticipated by Paley the English divine. The writings in which Bentham deals explicitly with the general principles of Ethics would hardly entitle him to a higher position than that of a disciple of Hume without Hume's subtlety; or of Paley without Paley's singular gift of exposition. Why, then, did Bentham's message come upon his disciples with the force and freshness of a new revelation? Our answer must be in general terms that Bentham founded not a doctrine but a method: and that the doctrine which came to him simply as a general principle was in his hands a potent instrument applied with most fruitful results to questions of immediate practical interest.

Beyond the general principle of utility, therefore, we have to consider the 'organon' constructed by him to give effect to a general principle too vague to be applied in detail. The fullest account of this is contained in the _Introduction to the Principles of Morals and Legislation_. This work unfortunately is a fragment, but it gives his doctrine vigorously and decisively, without losing itself in the minute details which become wearisome in his later writings. Bentham intended it as an introduction to a penal code; and his investigation sent him back to more general problems. He found it necessary to settle the relations of the penal code to the whole body of law; and to settle these he had to consider the principles which underlie legislation in general. He had thus, he says, to 'create a new science,' and then to elaborate one department of the science. The 'introduction' would contain prolegomena not only for the penal code but for the other departments of inquiry which he intended to exhaust.[356] He had to lay down primary truths which should be to this science what the axioms are to mathematical sciences.[357] These truths therefore belong to the sphere of conduct in general, and include his ethical theory.

'Nature has placed mankind' (that is his opening phrase) 'under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do.' There is the unassailable basis. It had been laid down as unequivocally by Locke,[358] and had been embodied in the brilliant couplets of Pope's _Essay on Man_.[359] At the head of the curious table of universal knowledge, given in the _Chrestomathia_, we have Eudaemonics as an all-comprehensive name of which every art is a branch.[360] Eudaemonics, as an art, corresponds to the science 'ontology.' It covers the whole sphere of human thought. It means knowledge in general as related to conduct. Its first principle, again, requires no more proof than the primary axioms of arithmetic or geometry. Once understood, it is by the same act of the mind seen to be true. Some people, indeed, do not see it. Bentham rather ignores than answers some of their arguments. But his mode of treating opponents indicates his own position. 'Happiness,' it is often said, is too vague a word to be the keystone of an ethical system; it varies from man to man: or it is 'subjective,' and therefore gives no absolute or independent ground for morality. A morality of 'eudaemonism' must be an 'empirical' morality, and we can never extort from it that 'categorical imperative,' without which we have instead of a true morality a simple system of 'expediency.' From Bentham's point of view the criticism must be retorted. He regards 'happiness' as precisely the least equivocal of words; and 'happiness' itself as therefore affording the one safe clue to all the intricate problems of human conduct. The authors of the _Federalist_, for example, had said that justice was the 'end of government.' 'Why not happiness?' asks Bentham. 'What happiness is every man knows, because what pleasure is, every man knows, and what pain is, every man knows. But what justice is--this is what on every occasion is the subject-matter of dispute.'[361] That phrase gives his view in a nutshell. Justice is the means, not the end. That is just which produces a maximum of happiness. Omit all reference to Happiness, and Justice becomes a meaningless word prescribing equality, but not telling us equality of what. Happiness, on the other hand, has a substantial and independent meaning from which the meaning of justice can be deduced. It has therefore a logical priority: and to attempt to ignore this is the way to all the labyrinths of hopeless confusion by which legislation has been made a chaos. Bentham's position is indicated by his early conflict with Blackstone, not a very powerful representative of the opposite principle. Blackstone, in fact, had tried to base his defence of that eminently empirical product, the British Constitution, upon some show of a philosophical groundwork. He had used the vague conception of a 'social contract,' frequently invoked for the same purpose at the revolution of 1688, and to eke out his arguments applied the ancient commonplaces about monarchy, aristocracy, and democracy. He thus tried to invest the constitution with the sanctity derived from this mysterious 'contract,' while appealing also to tradition or the incarnate 'wisdom of our ancestors,' as shown by their judicious mixture of the three forms. Bentham had an easy task, though he performed it with remarkable vigour, in exposing the weakness of this heterogeneous aggregate. Look closely, and this fictitious contract can impose no new obligation: for the obligation itself rests upon Utility. Why not appeal to Utility at once? I am bound to obey, not because my great-grandfather may be regarded as having made a bargain, which he did not really make, with the great-grandfather of George III.; but simply because rebellion does more harm than good. The forms of government are abstractions, not names of realities, and their 'mixture' is a pure figment. King, Lords, and Commons are not really incarnations of power, wisdom, and goodness. Their combination forms a system the merits of which must in the last resort be judged by its working. 'It is the principle of utility, accurately apprehended and steadily applied, that affords the only clew to guide a man through these streights.'[362] So much in fact Bentham might learn from Hume; and to defend upon any other ground the congeries of traditional arrangements which passed for the British Constitution was obviously absurd. It was in this warfare against the shifting and ambiguous doctrines of Blackstone that Bentham first showed the superiority of his own method: for, as between the two, Bentham's position is at least the most coherent and intelligible.

Blackstone, however, represents little more than a bit of rhetoric embodying fragments of inconsistent theories. The _Morals and Legislation_ opens by briefly and contemptuously setting aside more philosophical opponents of Utilitarianism. The 'ascetic' principle, for example, is the formal contradiction of the principle of Utility, for it professedly declares pleasure to be evil. Could it be consistently carried out it would turn earth into hell. But in fact it is at bottom an illegitimate corollary from the very principle which it ostensibly denies. It professes to condemn pleasure in general; it really means that certain pleasures can only be bought at an excessive cost of pain. Other theories are contrivances for avoiding the appeal 'to any external standard'; and in substance, therefore, they make the opinion of the individual theorist an ultimate and sufficient reason. Adam Smith by his doctrine of 'sympathy' makes the sentiment of approval itself the ultimate standard. My feeling echoes yours, and reciprocally; each cannot derive authority from the other. Another man (Hutcheson) invents a thing made on purpose to tell him what is right and what is wrong and calls it a 'moral sense.' Beattie substitutes 'common' for 'moral' sense, and his doctrine is attractive because every man supposes himself to possess common sense. Others, like Price, appeal to the Understanding, or, like Clarke, to the 'Fitness of Things,' or they invent such phrases as 'Law of Nature,' or 'Right Reason' or 'Natural Justice,' or what you please. Each really means that whatever he says is infallibly true and self-evident. Wollaston discovers that the only wrong thing is telling a lie; or that when you kill your father, it is a way of saying that he is not your father, and the same method is applicable to any conduct which he happens to dislike. The 'fairest and openest of them all' is the man who says, 'I am of the number of the Elect'; God tells the Elect what is right: therefore if you want to know what is right, you have only to come to me.[363] Bentham is writing here in his pithiest style. His criticism is of course of the rough and ready order; but I think that in a fashion he manages to hit the nail pretty well on the head.

His main point, at any rate, is clear. He argues briefly that the alternative systems are illusory because they refer to no 'external standard.' His opponents, not he, really make morality arbitrary. This, whatever the ultimate truth, is in fact the essential core of all the Utilitarian doctrine descended from or related to Benthamism. Benthamism aims at converting morality into a science. Science, according to him, must rest upon facts. It must apply to real things, and to things which have definite relations and a common measure. Now, if anything be real, pains and pleasures are real. The expectation of pain or pleasure determines conduct; and, if so, it must be the sole determinant of conduct. The attempt to conceal or evade this truth is the fatal source of all equivocation and confusion. Try the experiment. Introduce a 'moral sense.' What is its relation to the desire for happiness? If the dictates of the moral sense be treated as ultimate, an absolutely arbitrary element is introduced; and we have one of the 'innate ideas' exploded by Locke, a belief summarily intruded into the system without definite relations to any other beliefs: a dogmatic assertion which refuses to be tested or to be correlated with other dogmas; a reduction therefore of the whole system to chaos. It is at best an instinctive belief which requires to be justified and corrected by reference to some other criterion. Or resolve morality into 'reason,' that is, into some purely logical truth, and it then remains in the air--a mere nonentity until experience has supplied some material upon which it can work. Deny the principle of utility, in short, as he says in a vigorous passage,[364] and you are involved in a hopeless circle. Sooner or later you appeal to an arbitrary and despotic principle and find that you have substituted words for thoughts.

The only escape from this circle is the frank admission that happiness is, in fact, the sole aim of man. There are, of course, different kinds of happiness as there are different kinds of physical forces. But the motives to action are, like the physical forces, commensurable. Two courses of conduct can always be compared in respect of the happiness produced, as two motions of a body can be compared in respect of the energy expended. If, then, we take the moral judgment to be simply a judgment of amounts of happiness, the whole theory can be systematised, and its various theorems ranged under a single axiom or consistent set of axioms. Pain and pleasure give the real value of actions; they are the currency with a definite standard into which every general rule may be translated. There is always a common measure applicable in every formula for the estimation of conduct. If you admit your Moral Sense, you profess to settle values by some standard which has no definite relation to the standard which in fact governs the normal transactions. But any such double standard, in which the two measures are absolutely incommensurable, leads straight to chaos. Or, if again you appeal to reason in the abstract, you are attempting to settle an account by pure arithmetic without reference to the units upon which your operation is performed. Two pounds and two pounds will make four pounds whatever a pound may be; but till I know what it is, the result is nugatory. Somewhere I must come upon a basis of fact, if my whole construction is to stand.

This is the fundamental position implied in Bentham's doctrine. The moral judgment is simply one case of the judgment of happiness. Bentham is so much convinced of this that to him there appeared to be in reality no other theory. What passed for theories were mere combinations of words. Having said this, we know where to lay the foundations of the new science. It deals with a vast complicity of facts: it requires 'investigations as severe as mathematical ones, but beyond all comparison more intricate and extensive.'[365] Still it deals with facts, and with facts which have a common measure, and can, therefore, be presented as a coherent system. To present this system, or so much of it as is required for purposes of legislation, is therefore his next task. The partial execution is the chief substance of the _Introduction_. Right and wrong conduct, we may now take for granted, mean simply those classes of conduct which are conducive to or opposed to happiness; or, in the sacred formula, to act rightly means to promote the greatest happiness of the greatest number. The legislator, like every one else, acts rightly in so far as he is guided by the principle (to use one of the phrases coined by Bentham) of 'maximising' happiness. He seeks to affect conduct; and conduct can be affected only by annexing pains or pleasures to given classes of actions. Hence we have a vitally important part of his doctrine--the theory of 'sanctions.' Pains and pleasures as annexed to action are called 'sanctions.' There are 'physical or natural,' 'political, 'moral or popular,' and 'religious' sanctions. The 'physical' sanctions are such pleasures and pains as follow a given course of conduct independently of the interference of any other human or supernatural being; the 'political' those which are annexed by the action of the legislator; the 'moral or popular' those which are annexed by other individuals not acting in a corporate capacity; and the 'religious' those which are annexed by a 'superior invisible being,' or, as he says elsewhere,[366] 'such as are capable of being expected at the hands of an invisible Ruler of the Universe.' The three last sanctions, he remarks, 'operate through the first.' The 'magistrate' or 'men at large' can only operate, and God is supposed only to operate, 'through the powers of nature,' that is, by applying some of the pains and pleasures which may also be natural sanctions. A man is burnt: if by his own imprudence, that is a 'physical' sanction; if by the magistrate, it is a 'political' sanction; if by some neglect of his neighbours, due to their dislike of his 'moral character,' a 'moral' sanction; if by the immediate act of God or by distraction caused by dread of God's displeasure, it is a 'religious' sanction. Of these, as Bentham characteristically observes[367] in a later writing the political is much stronger than the 'moral' or 'religious.' Many men fear the loss of character or the 'wrath of Heaven,' but all men fear the scourge and the gallows.[368] He admits, however, that the religious sanction and the additional sanction of 'benevolence' have the advantage of not requiring that the offender should be found out.[369] But in any case, the 'natural' and religious sanctions are beyond the legislator's power. His problem, therefore, is simply this: what sanctions ought he to annex to conduct, or remembering that 'ought' means simply 'conducive to happiness,' what political sanctions will increase happiness?

To answer this fully will be to give a complete system of legislation; but in order to answer it we require a whole logical and psychological apparatus. Bentham shows this apparatus at work, but does not expound its origin in any separate treatise. Enough information, however, is given as to his method in the curious collection of the fragments connected with the _Chrestomathia_. A logical method upon which he constantly insisted is that of 'bipartition,'[370] called also the 'dichotomous' or 'bifurcate' method, and exemplified by the so-called 'Porphyrian Tree.' The principle is, of course, simple. Take any genus: divide it into two classes, one of which has and the other has not a certain mark. The two classes must be mutually exclusive and together exhaustive. Repeat the operation upon each of the classes and continue the process as long as desired.[371] At every step you thus have a complete enumeration of all the species, varieties, and so on, each of which excludes all the others. No mere logic, indeed, can secure the accuracy and still less the utility of the procedure. The differences may be in themselves ambiguous or irrelevant. If I classify plants as 'trees' and 'not trees,' the logical form is satisfied: but I have still to ask whether 'tree' conveys a determinate meaning, and whether the distinction corresponds to a difference of any importance. A perfect classification, however, could always be stated in this form. Each species, that is, can be marked by the presence or absence of a given difference, whether we are dealing with classes of plants or actions: and Bentham aims at that consummation though he admits that centuries may be required for the construction of an accurate classification in ethical speculations.[372] He exaggerates the efficiency of his method, and overlooks the tendency of tacit assumptions to smuggle themselves into what affects to be a mere enumeration of classes. But in any case, no one could labour more industriously to get every object of his thought arranged and labelled and put into the right pigeon-hole of his mental museum. To codify[373] is to classify, and Bentham might be defined as a codifying animal.

Things thus present themselves to Bentham's mind as already prepared to fit into pigeon-holes. This is a characteristic point, and it appears in what we must call his metaphysical system. 'Metaphysics,' indeed, according to him, is simply 'a sprig,' and that a small one, of the 'branch termed Logic.'[374] It is merely the explanation of certain general terms such as 'existence,' 'necessity,' and so forth.[375] Under this would apparently fall the explanation of 'reality' which leads to a doctrine upon which he often insists, and which is most implicitly given in the fragment called _Ontology_. He there distinguishes 'real' from 'fictitious entities,' a distinction which, as he tells us,[376] he first learned from d'Alembert's phrase _Etres fictifs_ and which he applies in his _Morals and Legislation_. 'Real entities,' according to him,[377] are 'individual perceptions,' 'impressions,' and 'ideas.' In this, of course, he is following Hume, though he applies the Johnsonian argument to Berkeley's immaterialism.[378] A 'fictitious entity' is a name which does note 'raise up in the mind any correspondent images.'[379] Such names owe their existence to the necessities of language. Without employing such fictions, however, 'the language of man could not have risen above the language of brutes';[380] and he emphatically distinguishes them from 'unreal' or 'fabulous entities.' A 'fictitious entity' is not a 'nonentity.'[381] He includes among such entities all Aristotle's 'predicaments' except the first: 'substance.'[382] Quantity, quality, relation, time, place are all 'physical fictitious entities.' This is apparently equivalent to saying that the only 'physical entities' are concrete things--sticks, stones, bodies, and so forth--the 'reality' of which he takes for granted in the ordinary common sense meaning. It is also perfectly true that things are really related, have quantity and quality, and are in time and space. But we cannot really conceive the quality or relation apart from the concrete things so qualified and related. We are forced by language to use substantives which in their nature have only the sense of adjectives. He does not suppose that a body is not really square or round; but he thinks it a fiction to speak of squareness or roundness or space in general as something existing apart from matter and, in some sense, alongside of matter.

This doctrine, which brings us within sight of metaphysical problems beyond our immediate purpose, becomes important to his moral speculation. His special example of a 'fictitious entity' in politics is 'obligation.'[383] Obligations, rights, and similar words are 'fictitious entities.' Obligation in particular implies a metaphor. The statement that a man is 'obliged' to perform an act means simply that he will suffer pain if he does not perform it. The use of the word obligation, as a noun substantive, introduces the 'fictitious entity' which represents nothing really separable from the pain or pleasure. Here, therefore, we have the ground of the doctrine already noticed. 'Pains and pleasures' are real.[384] 'Their existence,' he says,[385] 'is matter of universal and constant experience.' But other various names referring to these: emotion, inclination, vice, virtue, etc., are only 'psychological entities.' 'Take away pleasures and pains, not only happiness but justice and duty and obligation and virtue--all of which have been so elaborately held up to view as independent of them--are so many empty sounds.'[386] The ultimate facts, then, are pains and pleasures. They are the substantives of which these other words are properly the adjectives. A pain or a pleasure may exist by itself, that is without being virtuous or vicious: but virtue and vice can only exist in so far as pain and pleasure exists.

This analysis of 'obligation' is a characteristic doctrine of the Utilitarian school. We are under an 'obligation' so far as we are affected by a 'sanction.' It appeared to Bentham so obvious as to need no demonstration, only an exposition of the emptiness of any verbal contradiction. Such metaphysical basis as he needed is simply the attempt to express the corresponding conception of reality which, in his opinion, only requires to be expressed to carry conviction.

NOTES:

[355] See note under Bentham's life, _ante_, p. 178.

[356] Preface to _Morals and Legislation_.

[357] _Works_, i. ('Morals and Legislation'), ii. _n._

[358] _Essay_, bk. ii. ch. xxi. Sec. 39-Sec. 44. The will, says Locke, is determined by the 'uneasiness of desire.' What moves desire? Happiness, and that alone. Happiness is pleasure, and misery pain. What produces pleasure we call good; and what produces pain we call evil. Locke, however, was not a consistent Utilitarian.

[359] Epistle iv., opening lines.

[360] _Works_, vii. 82.

[361] _Works_ ('Constitutional Code'), ix. 123.

[362] _Works_ ('Fragment'), i. 287.

[363] _Works_ ('Morals and Legislation'), i. 8-10. Mill quotes this passage in his essay on Bentham in the first volume of his _Dissertations_. This essay, excellent in itself must be specially noticed as an exposition by an authoritative disciple.

[364] _Works_ ('Morals and Legislation'), i. 13.

[365] _Works_ ('Morals and Legislation'), i. v.

[366] _Works_ ('Evidence'), vi. 261.

[367] _Works_ ('Evidence'), vii. 116.

[368] _Ibid._ ('Morals and Legislation'), i. 14, etc.; _Ibid._ vi. 260. In _Ibid._ ('Evidence') vii. 116, 'humanity,' and in 'Logical Arrangements,' _Ibid._ ii. 290, 'sympathy' appears as a fifth sanction. Another modification is suggested in _Ibid._ i. 14 _n._

[369] _Ibid._ ('Morals and Legislation'), i. 67.

[370] _Works_ ('Morals and Legislation'), i. 96 _n._

[371] See especially _Ibid._ viii. 104, etc.; 253, etc.; 289, etc.

[372] _Ibid._ viii. 106.

[373] 'Codify' was one of Bentham's successful neologisms.

[374] _Works_ ('Logic'), viii. 220.

[375] Here Bentham coincides with Horne Tooke, to whose 'discoveries' he refers in the _Chrestomathia_ (_Works_, viii. 120, 185, 188).

[376] _Works_, iii. 286; viii. 119.

[377] _Ibid._ ('Ontology') viii. 196 _n._

[378] _Ibid._ viii, 197 _n._

[379] _Ibid._ viii. 263.

[380] _Works_ ('Ontology'), viii. 119.

[381] _Ibid._ viii. 198.

[382] _Ibid._ viii. 199.

[383] _Ibid._ viii. 206, 247.

[384] Helvetius adds to this that the only real pains and pleasures are the physical, but Bentham does not follow him here. See Helvetius, _OEuvres_ (1781), ii. 121, etc.

[385] _Works_, i. 211 ('Springs of Action').

[386] _Ibid._ i. 206.

II. SPRINGS OF ACTION

Our path is now clear. Pains and pleasures give us what mathematicians call the 'independent variable.' Our units are (in Bentham's phrase) 'lots' of pain or pleasure. We have to interpret all the facts in terms of pain or pleasure, and we shall have the materials for what has since been called a 'felicific calculus.' To construct this with a view to legislation is his immediate purpose. The theory will fall into two parts: the 'pathological,' or an account of all the pains and pleasures which are the primary data; and the 'dynamical,' or an account of the various modes of conduct determined by expectations of pain and pleasure. This gives the theory of 'springs of action,' considered in themselves, and of 'motives,' that is, of the springs as influencing conduct.[387] The 'pathology' contains, in the first place, a discussion of the measure of pain and pleasure in general; secondly, a discussion of the various species of pain and pleasure; and thirdly, a discussion of the varying sensibilities of different individuals to pain and pleasure.[388] Thus under the first head, we are told that the value of a pleasure, considered by itself, depends upon its intensity, duration, certainty, and propinquity; and, considered with regard to modes of obtaining it, upon its fecundity (or tendency to produce other pains and pleasures) and its purity (or freedom from admixture of other pains and pleasures). The pain or pleasure is thus regarded as an entity which is capable of being in some sense weighed and measured.[389] The next step is to classify pains and pleasures, which though commensurable as psychological forces, have obviously very different qualities. Bentham gives the result of his classification without the analysis upon which it depends. He assures us that he has obtained an 'exhaustive' list of 'simple pleasures.' It must be confessed that the list does not commend itself either as exhaustive or as composed of 'simple pleasures.' He does not explain the principle of his analysis because he says, it was of 'too metaphysical a cast,'[390] but he thought it so important that he published it, edited with considerable modifications by James Mill, in 1817, as a _Table of the Springs of Action_.[391]

J. S. Mill remarks that this table should be studied by any one who would understand Bentham's philosophy. Such a study would suggest some unfavourable conclusions. Bentham seems to have made out his table without the slightest reference to any previous psychologist. It is simply constructed to meet the requirements of his legislative theories. As psychology it would be clearly absurd, especially if taken as giving the elementary or 'simple' feelings. No one can suppose, for example, that the pleasures of 'wealth' or 'power' are 'simple' pleasures. The classes therefore are not really distinct, and they are as far from being exhaustive. All that can be said for the list is that it gives a sufficiently long enumeration to call attention from his own point of view to most of the ordinary pleasures and pains; and contains as much psychology as he could really turn to account for his purpose.

The omissions with which his greatest disciple charges him are certainly significant. We find, says Mill, no reference to 'Conscience,' 'Principle,' 'Moral Rectitude,' or 'Moral Duty' among the 'springs of action,' unless among the synonyms of a 'love of reputation,' or in so far as 'Conscience' and 'Principle' are sometimes synonymous with the 'religious' motive or the motive of 'sympathy.' So the sense of 'honour,' the love of beauty, and of order, of power (except in the narrow sense of power over our fellows) and of action in general are all omitted. We may conjecture what reply Bentham would have made to this criticism. The omission of the love of beauty and aesthetic pleasures may surprise us when we remember that Bentham loved music, if he cared nothing for poetry. But he apparently regarded these as 'complex pleasures,'[392] and therefore not admissible into his table, if it be understood as an analysis into the simple pleasures alone. The pleasures of action are deliberately omitted, for Bentham pointedly gives the 'pains' of labour as a class without corresponding pleasure; and this, though indicative, I think, of a very serious error, is characteristic rather of his method of analysis than of his real estimate of pleasure. Nobody could have found more pleasure than Bentham in intellectual labour, but he separated the pleasure from the labour. He therefore thought 'labour,' as such, a pure evil, and classified the pleasure as a pleasure of 'curiosity.' But the main criticism is more remarkable. Mill certainly held himself to be a sound Utilitarian; and yet he seems to be condemning Bentham for consistent Utilitarianism. Bentham, by admitting the 'conscience' into his simple springs of action, would have fallen into the very circle from which he was struggling to emerge. If, in fact, the pleasures of conscience are simple pleasures, we have the objectionable 'moral sense' intruded as an ultimate factor of human nature. To get rid of that 'fictitious entity' is precisely Bentham's aim. The moral judgment is to be precisely equivalent to the judgment: 'this or that kind of conduct increases or diminishes the sum of human pains or pleasures.' Once allow that among the pains and pleasures themselves is an ultimate conscience--a faculty not constructed out of independent pains and pleasures--and the system becomes a vicious circle. Conscience on any really Utilitarian scheme must be a derivative, not an ultimate, faculty. If, as Mill seems to say, the omission is a blunder, Bentham's Utilitarianism at least must be an erroneous system.

We have now our list both of pains and pleasures and of the general modes of variation by which their value is to be measured. We must also allow for the varying sensibilities of different persons. Bentham accordingly gives a list of thirty-two 'circumstances influencing sensibility.'[393] Human beings differ in constitution, character, education, sex, race, and so forth, and in their degrees of sensibility to all the various classes of pains and pleasures; the consideration of these varieties is of the highest utility for the purposes of the judge and the legislator.[394] The 'sanctions' will operate differently in different cases. A blow will have different effects upon the sick and upon the healthy; the same fine imposed upon the rich and the poor will cause very different pains; and a law which is beneficent in Europe may be a scourge in America.

We have thus our 'pathology' or theory of the passive sensibilities of man. We know what are the 'springs of action,' how they vary in general, and how they vary from one man to another. We can therefore pass to the dynamics.[395] We have described the machinery in rest, and can now consider it in motion. We proceed as before by first considering action in general: which leads to consideration of the 'intention' and the 'motive' implied by any conscious action: and hence of the relation of these to the 'springs of action' as already described. The discussion is minute and elaborate; and Bentham improves as he comes nearer to the actual problems of legislation and further from the ostensible bases of psychology. The analysis of conduct, and of the sanctions by which conduct is modified, involves a view of morals and of the relations between the spheres of morality and legislation which is of critical importance for the whole Utilitarian creed. 'Moral laws' and a 'Positive law' both affect human action. How do they differ? Bentham's treatment of the problem shows, I think, a clearer appreciation of some difficulties than might be inferred from his later utterances. In any case, it brings into clear relief a moral doctrine which deeply affected his successors.

NOTES:

[387] _Works_, i. 205; and Dumont's _Traites_ (1820), i. xxv, xxvi. The word 'springs of action' perhaps comes from the marginal note to the above-mentioned passage of Locke (bk. ii. chap. xxvi, Sec. 41, 42).

[388] _Morals and Legislation_, chaps. iv., v., vi.

[389] See 'Codification Proposal' (_Works_, iv. 540), where Bentham takes money as representing pleasure, and shows how the present value may be calculated like that of a sum put out to interest. The same assumption is often made by Political Economists in regard to 'utilities.'

[390] _Works_ ('Morals and Legislation'), i. 17 _n._

[391] It is not worth while to consider this at length; but I give the following conjectural account of the list as it appears in the _Morals and Legislation_ above. In classifying pain or pleasures, Bentham is, I think, following the clue suggested by his 'sanctions.' He is really classifying according to their causes or the way in which they are 'annexed.' Thus pleasures may or may not be dependent upon other persons, or if upon other persons, may be indirectly or directly caused by their pleasures or pains. Pleasures not caused by persons correspond to the 'physical sanction,' and are those (1) of the 'senses,' (2) of wealth, _i.e._ caused by the possession of things, and (3) of 'skill,' _i.e._ caused by our ability to use things. Pleasures caused by persons indirectly correspond first to the 'popular or moral sanction,' and are pleasures (4) of 'amity,' caused by the goodwill of individuals, and (5) of a 'good name,' caused by the goodwill of people in general; secondly, to 'political sanction,' namely (6) pleasures of 'power'; and thirdly, to the 'religious sanction,' or (7) pleasures of 'piety.' All these are 'self-regarding pleasures.' The pleasures caused directly by the pleasure of others are those (8) of 'benevolence,' and (9) of malevolence. We then have what is really a cross division by classes of 'derivative' pleasures; these being due to (10) memory, (11) imagination, (12) expectation, (13) association. To each class of pleasures corresponds a class of pains, except that there are no pains corresponding to the pleasures of wealth or power. We have, however, a general class of pains of 'privation,' which might include pains of poverty or weakness: and to these are opposed (14) pleasures of 'relief,' _i.e._ of the privation of pains. In the _Table_, as separately published, Bentham modified this by dividing pleasures of sense into three classes, the last of which includes the two first; by substituting pleasures of 'curiosity' for pleasures of 'skill' by suppressing pleasures of relief and pains of privation; and by adding, as a class of 'pains' without corresponding pleasures, pains (1) of labour, (2) of 'death, and bodily pains in general.' These changes seem to have been introduced in the course of writing his _Introduction_, where they are partly assumed. Another class is added to include all classes of 'self-regarding pleasures or pains.' He is trying to give a list of all 'synonyms' for various pains and pleasures, and has therefore to admit classes corresponding to general names which include other classes.

[392] _Works_ i. 210, where he speaks of pleasures of the 'ball-room,' the 'theatre,' and the 'fine arts' as derivable from the 'simple and elementary' pleasures.

[393] _Works_ ('Morals and Legislation'), i. 22 etc.

[394] _Ibid._ i. 33.

[395] _Morals and Legislation_, ch. vii. to xi.

III. THE SANCTIONS

Let us first take his definitions of the fundamental conceptions. All action of reasonable beings implies the expectation of consequences. The agent's 'intention' is defined by the consequences actually contemplated. The cause of action is the hope of the consequent pleasures or the dread of the consequent pains. This anticipated pleasure or pain constitutes the 'internal motive' (a phrase used by Bentham to exclude the 'external motive' or event which causes the anticipation).[396] The motive, or 'internal motive,' is the anticipation of pain to be avoided or pleasure to be gained. Actions are good or bad simply and solely as they are on the whole 'productive of a balance of pleasure or pain.' The problem of the legislator is how to regulate actions so as to incline the balance to the right side. His weapons are 'sanctions' which modify 'motives.' What motives, then, should be strengthened or checked? Here we must be guided by a principle which is, in fact, the logical result of the doctrines already laid down. We are bound to apply our 'felicific calculus' with absolute impartiality. We must therefore assign equal value to all motives. 'No motives,' he says,[397] are 'constantly good or constantly bad.' Pleasure is itself a good; pain itself an evil: nay, they are 'the only good and the only evil.' This is true of every sort of pain and pleasure, even of the pains and pleasures of illwill. The pleasures of 'malevolence' are placed in his 'table' by the side of pleasures of 'benevolence.' Hence it 'follows immediately and incontestably, that there is no such thing as any sort of motive that is in itself a bad one.' The doctrine is no doubt a logical deduction from Bentham's assumptions, and he proceeds to illustrate its meaning. A 'motive' corresponds to one of his 'springs of action.' He shows how every one of the motives included in his table may lead either to good or to bad consequences. The desire of wealth may lead me to kill a man's enemy or to plough his field for him; the fear of God may prompt to fanaticism or to charity; illwill may lead to malicious conduct or may take the form of proper 'resentment,' as, for example, when I secure the punishment of my father's murderer. Though one act, he says, is approved and the other condemned, they spring from the same motive, namely, illwill.[398] He admits, however, that some motives are more likely than others to lead to 'useful' conduct; and thus arranges them in a certain 'order of pre-eminence.'[399] It is obvious that 'goodwill,' 'love of reputation,' and the 'desire of amity' are more likely than others to promote general happiness. 'The dictates of utility,' as he observes, are simply the 'dictates of the most extensive and enlightened (that is, _well advised_) benevolence.' It would, therefore, seem more appropriate to call the 'motive' good; though no one doubts that when directed by an erroneous judgment it may incidentally be mischievous.

The doctrine that morality depends upon 'consequences' and not upon 'motives' became a characteristic Utilitarian dogma, and I shall have to return to the question. Meanwhile, it was both a natural and, I think, in some senses, a correct view, when strictly confined to the province of legislation. For reasons too obvious to expand, the legislator must often be indifferent to the question of motives. He cannot know with certainty what are a man's motives. He must enforce the law whatever may be the motives for breaking it; and punish rebellion, for example, even if he attributes it to misguided philanthropy. He can, in any case, punish only such crimes as are found out; and must define crimes by palpable 'external' marks. He must punish by such coarse means as the gallows and the gaol: for his threats must appeal to the good and the bad alike. He depends, therefore, upon 'external' sanctions, sanctions, that is, which work mainly upon the fears of physical pain; and even if his punishments affect the wicked alone, they clearly cannot reach the wicked as wicked, nor in proportion to their wickedness. That is quite enough to show why in positive law motives are noticed indirectly or not at all. It shows also that the analogy between the positive and the moral law is treacherous. The exclusion of motive justifiable in law may take all meaning out of morality. The Utilitarians, as we shall see, were too much disposed to overlook the difference, and attempt to apply purely legal doctrine in the totally uncongenial sphere of ethical speculation. To accept the legal classification of actions by their external characteristics is, in fact, to beg the question in advance. Any outward criterion must group together actions springing from different 'motives' and therefore, as other moralists would say, ethically different.

There is, however, another meaning in this doctrine which is more to the purpose here. Bentham was aiming at a principle which, true or false, is implied in all ethical systems based upon experience instead of pure logic or _a priori_ 'intuitions.' Such systems must accept human nature as a fact, and as the basis of a scientific theory. They do not aim at creating angels but at developing the existing constitution of mankind. So far as an action springs from one of the primitive or essential instincts of mankind, it simply proves the agent to be human, not to be vicious or virtuous, and therefore is no ground for any moral judgment. If Bentham's analysis could be accepted, this would be true of his 'springs of action.' The natural appetites have not in themselves a moral quality: they are simply necessary and original data in the problem. The perplexity is introduced by Bentham's assumption that conduct can be analysed so that the 'motive' is a separate entity which can be regarded as the sole cause of a corresponding action. That involves an irrelevant abstraction. There is no such thing as a single 'motive.' One of his cases is a mother who lets her child die for love of 'ease.' We do not condemn her because she loves ease, which is a motive common to all men and therefore unmoral, not immoral. But neither do we condemn her merely for the bad consequences of a particular action. We condemn her because she loves ease better than she loves her child: that is, because her whole character is 'unnatural' or ill-balanced, not on account of a particular element taken by itself. Morality is concerned with concrete human beings, and not with 'motives' running about by themselves. Bentham's meaning, if we make the necessary correction, would thus be expressed by saying that we don't blame a man because he has the 'natural' passions, but because they are somehow wrongly proportioned or the man himself wrongly constituted. Passions which may make a man vicious may also be essential to the highest virtue. That is quite true; but the passion is not a separate agent, only one constituent of the character.

Bentham admits this in his own fashion. If 'motives' cannot be properly called good or bad, is there, he asks, nothing good or bad in the man who on a given occasion obeys a certain motive? 'Yes, certainly,' he replies, 'his disposition.'[400] The disposition, he adds, is a 'fictitious entity, and designed for the convenience of discourse in order to express what there is supposed to be permanent in a man's frame of mind.' By 'fictitious,' as we have seen, he means not 'unreal' but simply not tangible, weighable, or measurable--like sticks and stones, or like pains and pleasures. 'Fictitious' as they may be, therefore, the fiction enables us to express real truths, and to state facts which are of the highest importance to the moralist and the legislator. Bentham discusses some cases of casuistry in order to show the relation between the tendency of an action and the intention and motives of the agent. Ravaillac murders a good king; Ravaillac's son enables his father to escape punishment, or conveys poison to his father to enable him to avoid torture by suicide.[401] What is the inference as to the son's disposition in either case? The solution (as he substantially and, I think, rightly suggests) will have to be reached by considering whether the facts indicate that the son's disposition was mischievous or otherwise; whether it indicates political disloyalty or filial affection, and so forth, and in what proportions. The most interesting case perhaps is that of religious persecution, where the religious motive is taken to be good, and the action to which it leads is yet admitted to be mischievous. The problem is often puzzling, but we are virtually making an inference as to the goodness or badness of the 'disposition' implied by the given action under all the supposed circumstances. This gives what Bentham calls the 'meritoriousness'[402] of the disposition. The 'intention' is caused by the 'motive.' The 'disposition' is the 'sum of the intentions'; that is to say, it expresses the agent's sensibility to various classes of motives; and the merit therefore will be in proportion to the total goodness or badness of the disposition thus indicated. The question of merit leads to interesting moral problems. Bentham, however, observes that he is not here speaking from the point of view of the moralist but of the legislator. Still, as a legislator he has to consider what is the 'depravity' of disposition indicated by different kinds of conduct. This consideration is of great importance. The 'disposition' includes sensibility to what he calls 'tutelary motives'--motives, that is, which deter a man from such conduct as generally produces mischievous consequences. No motive can be invariably, though some, especially the motive of goodwill, and in a minor degree those of 'amity' and a 'love of reputation,' are generally, on the right side. The legislator has to reinforce these 'tutelary motives' by 'artificial tutelary motives,' and mainly by appealing to the 'love of ease,' that is, by making mischievous conduct more difficult, and to 'self-preservation,' that is, by making it more dangerous.[403] He has therefore to measure the force by which these motives will be opposed; or, in other words, the 'strength of the temptation.' Now the more depraved a man's disposition, the weaker the temptation which will seduce him to crime. Consequently if an act shows depravity, it will require a stronger counter-motive or a more severe punishment, as the disposition indicated is more mischievous. An act, for example, which implies deliberation proves a greater insensibility to these social motives which, as Bentham remarks,[404] determine the 'general tenor of a man's life,' however depraved he may be. The legislator is guided solely by 'utility,' or aims at maximising happiness without reference to its quality. Still, so far as action implies disposition, he has to consider the depravity as a source of mischief. The legislator who looks solely at the moral quality implied is wrong; and, if guided solely by his sympathies, has no measure for the amount of punishment to be inflicted. These considerations will enable us to see what is the proper measure of resentment.[405]

The doctrine of the neutrality or 'unmorality' of motive is thus sufficiently clear. Bentham's whole aim is to urge that the criterion of morality is given by the consequences of actions. To say the conduct is good or bad is to say in other words that it produces a balance of pleasure or pain. To make the criterion independent, or escape the vicious circle, we must admit the pleasures and pains to be in themselves neutral; to have, that is, the same value, if equally strong, whatever their source. In our final balance-sheet we must set down pains of illwill and of goodwill, of sense and of intellect with absolute impartiality, and compare them simply in respect of intensity. We must not admit a 'conscience' or 'moral sense' which would be autocratic; nor, indeed, allow moral to have any meaning as applied to the separate passions. But it is quite consistent with this to admit that some motives, goodwill in particular, generally tend to bring out the desirable result, that is, a balance of pleasure for the greatest number. The pains and pleasures are the ultimate facts, and the 'disposition' is a 'fictitious entity' or a name for the sum of sensibilities. It represents the fact that some men are more inclined than others to increase the total of good or bad.

NOTES:

[396] _Works_ ('Morals and Legislation'), i. 46.

[397] _Ibid._ i. 48.

[398] _Works_ ('Morals and Legislation'), i. 56.

[399] _Ibid._ i. 56.

[400] _Works_ ('Morals and Legislation'), i. 60.

[401] _Ibid._ i. 62.

[402] _Ibid._ i. 65.

[403] These are the two classes of 'springs of action' omitted in the _Table_.

[404] _Works_ ('Morals and Legislation'), i. 68.

[405] Here Bentham lays down the rule that punishment should rise with the strength of the temptation, a theory which leads to some curious casuistical problems. He does not fully discuss, and I cannot here consider, them. I will only note that it may conceivably be necessary to increase the severity of punishment, instead of removing the temptation or strengthening the preventive action. If so, the law becomes immoral in the sense of punishing more severely as the crime has more moral excuse. This was often true of the old criminal law, which punished offences cruelly because it had no effective system of police. Bentham would of course have agreed that the principle in this case was a bad one.

IV. CRIMINAL LAW

We have now, after a long analysis, reached the point at which the principles can be applied to penal law. The legislator has to discourage certain classes of conduct by annexing 'tutelary motives.' The classes to be suppressed are of course those which diminish happiness. Pursuing the same method, and applying results already reached, we must in the first place consider how the 'mischief of an act' is to be measured.[406] Acts are mischievous as their 'consequences' are mischievous; and the consequences may be 'primary' or 'secondary.' Robbery causes pain to the loser of the money. That is a primary evil. It alarms the holders of money; it suggests the facility of robbery to others; and it weakens the 'tutelary motive' of respect for property. These are secondary evils. The 'secondary' evil may be at times the most important. The non-payment of a tax may do no appreciable harm in a particular case. But its secondary effects in injuring the whole political fabric may be disastrous and fruitful beyond calculation. Bentham proceeds to show carefully how the 'intentions' and 'motives' of the evildoer are of the greatest importance, especially in determining these secondary consequences, and must therefore be taken into account by the legislator. A homicide may cause the same primary evil, whether accidental or malignant; but accidental homicide may cause no alarm, whereas the intentional and malignant homicide may cause any quantity of alarm and shock to the general sense of security. In this way, therefore, the legislator has again indirectly to take into account the moral quality which is itself dependent upon utility.

I must, however, pass lightly over a very clear and interesting discussion to reach a further point of primary importance to the Utilitarian theory, as to the distinction between the moral and legal spheres.[407] Bentham has now 'made an analysis of evil.' He has, that is, classified the mischiefs produced by conduct, measured simply by their effect upon pleasures or pains, independently of any consideration as to virtue and vice. The next problem is: what conduct should be criminal?--a subject which is virtually discussed in two chapters (xv. and xix.) 'on cases unmeet for punishment' and on 'the limits between Private Ethics and the act of legislation.' We must, of course, follow the one clue to the labyrinth. We must count all the 'lots' of pain and pleasure indifferently. It is clear, on the one hand, that the pains suffered by criminals are far less than the pains which would be suffered were no such sanctions applied. On the other hand, all punishment is an evil, because punishment means pain, and it is therefore only to be inflicted when it excludes greater pain. It must, therefore, not be inflicted when it is 'groundless,' 'inefficacious,' 'unprofitable,' or 'needless.' 'Needless' includes all the cases in which the end may be attained 'as effectually at a cheaper rate.'[408] This applies to all 'dissemination of pernicious principles'; for in this case reason and not force is the appropriate remedy. The sword inflicts more pain, and is less efficient than the pen. The argument raises the wider question, What are the true limits of legislative interference? Bentham, in his last chapter, endeavours to answer this problem. 'Private ethics,' he says, and 'legislation' aim at the same end, namely, happiness, and the 'acts with which they are conversant are _in great measure_ the same.' Why, then, should they have different spheres? Simply because the acts 'are not _perfectly and throughout_ the same.'[409] How, then, are we to draw the line? By following the invariable clue of 'utility.' We simply have to apply an analysis to determine the cases in which punishment does more harm than good. He insists especially upon the cases in which punishment is 'unprofitable'; upon such offences as drunkenness and sexual immorality, where the law could only be enforced by a mischievous or impossible system of minute supervision, and such offences as ingratitude or rudeness, where the definition is so vague that the judge could not safely be entrusted with the power to punish.'[410] He endeavours to give a rather more precise distinction by subdividing 'ethics in general' into three classes. Duty may be to oneself, that is 'prudence'; or to one's neighbour negatively, that is 'probity'; or to one's neighbour positively, that is 'benevolence.'[411] Duties of the first class must be left chiefly to the individual, because he is the best judge of his own interest. Duties of the third class again are generally too vague to be enforced by the legislator, though a man ought perhaps to be punished for failing to help as well as for actually injuring. The second department of ethics, that of 'probity,' is the main field for legislative activity.[412] As a general principle, 'private ethics' teach a man how to pursue his own happiness, and the art of legislation how to pursue the greatest happiness of the community. It must be noticed, for the point is one of importance, that Bentham's purely empirical method draws no definite line. It implies that no definite line can be drawn. It does not suggest that any kind of conduct whatever is outside the proper province of legislator except in so far as the legislative machinery may happen to be inadequate or inappropriate.

Our analysis has now been carried so far that we can proceed to consider the principles by which we should be guided in punishing. What are the desirable properties of a 'lot of punishment'? This occupies two interesting chapters. Chapter xvi., 'on the proportion between punishments and offences,' gives twelve rules. The punishment, he urges, must outweigh the profit of the offence; it must be such as to make a man prefer a less offence to a greater--simple theft, for example, to violent robbery; it must be such that the punishment must be adaptable to the varying sensibility of the offender; it must be greater in 'value' as it falls short of certainty; and, when the offence indicates a habit, it must outweigh not only the profit of the particular offence, but of the undetected offences. In chapter xvii. Bentham considers the properties which fit a punishment to fulfil these conditions. Eleven properties are given. The punishment must be (1) 'variable,' that is, capable of adjustment to particular cases; and (2) equable, or inflicting equal pain by equal sentences. Thus the 'proportion' between punishment and crimes of a given class can be secured. In order that the punishments of different classes of crime may be proportional, the punishments should (3) be commensurable. To make punishments efficacious they should be (4) 'characteristical' or impressive to the imagination; and that they may not be excessive they should be (5) exemplary or likely to impress others, and (6) frugal. To secure minor ends they should be (7) reformatory; (8) disabling, _i.e._ from future offences; and (9) compensatory to the sufferer. Finally, to avoid collateral disadvantages they should be (10) popular, and (11) remittable. A twelfth property, simplicity, was added in Dumont's redaction. Dumont calls attention here to the value of Bentham's method.[413] Montesquieu and Beccaria had spoken in general terms of the desirable qualities of punishment. They had spoken of 'proportionality,' for example, but without that precise or definite meaning which appears in Bentham's Calculus. In fact, Bentham's statement, compared to the vaguer utterances of his predecessors, but still more when compared to the haphazard brutalities and inconsistencies of English criminal law, gives the best impression of the value of his method.

Bentham's next step is an elaborate classification of offences, worked out by a further application of his bifurcatory method.[414] This would form the groundwork of the projected code. I cannot, however, speak of this classification, or of many interesting remarks contained in the _Principles of Penal Law_, where some further details are considered. An analysis scarcely does justice to Bentham, for it has to omit his illustrations and his flashes of real vivacity. The mere dry logical framework is not appetising. I have gone so far in order to illustrate the characteristic of Bentham's teaching. It was not the bare appeal to utility, but the attempt to follow the clue of utility systematically and unflinchingly into every part of the subject. This one doctrine gives the touchstone by which every proposed measure is to be tested; and which will give to his system not such unity as arises from the development of an abstract logical principle, but such as is introduced into the physical sciences when we are able to range all the indefinitely complex phenomena which arise under some simple law of force. If Bentham's aim could have been achieved, 'utility' would have been in legislative theories what gravitation is in astronomical theories. All human conduct being ruled by pain and pleasure, we could compare all motives and actions, and trace out the consequences of any given law. I shall have hereafter to consider how this conception worked in different minds and was applied to different problems: what were the tenable results to which it led, and what were the errors caused by the implied oversight of some essential considerations.

Certain weaknesses are almost too obvious to be specified. He claimed to be constructing a science, comparable to the physical sciences. The attempt was obviously chimerical if we are to take it seriously. The makeshift doctrine which he substitutes for psychology would be a sufficient proof of the incapacity for his task. He had probably not read such writers as Hartley or Condillac, who might have suggested some ostensibly systematic theory. If he had little psychology he had not even a conception of 'sociology.' The 'felicific calculus' is enough to show the inadequacy of his method. The purpose is to enable us to calculate the effects of a proposed law. You propose to send robbers to the gallows or the gaol. You must, says Bentham, reckon up all the evils prevented: the suffering to the robbed, and to those who expect to be robbed, on the one hand; and, on the other, the evils caused, the suffering to the robber, and to the tax-payer who keeps the constable; then strike your balance and make your law if the evils prevented exceed the evils caused. Some such calculation is demanded by plain common sense. It points to the line of inquiry desirable. But can it be adequate? To estimate the utility of a law we must take into account all its 'effects.' What are the 'effects' of a law against robbery? They are all that is implied in the security of property. They correspond to the difference between England in the eighteenth century and England in the time of Hengist and Horsa; between a country where the supremacy of law is established, and a country still under the rule of the strong hand. Bentham's method may be applicable at a given moment, when the social structure is already consolidated and uniform. It would represent the practical arguments for establishing the police-force demanded by Colquhoun, and show the disadvantages of the old constables and watchmen. Bentham, that is, gives an admirable method for settling details of administrative and legislative machinery, and dealing with particular cases when once the main principles of law and order are established. Those principles, too, may depend upon 'utility,' but utility must be taken in a wider sense when we have to deal with the fundamental questions. We must consider the 'utility' of the whole organisation, not the fitness of separate details. Finally, if Bentham is weak in psychology and in sociology, he is clearly not satisfactory in ethics. Morality is, according to him, on the same plane with law. The difference is not in the sphere to which they apply, or in the end to which they are directed; but solely in the 'sanction.' The legislator uses threats of physical suffering; the moralist threats of 'popular' disapproval. Either 'sanction' may be most applicable to a given case; but the question is merely between different means to the same end under varying conditions. This implies the 'external' character of Bentham's morality, and explains his insistence upon the neutrality of motives. He takes the average man to be a compound of certain instincts, and merely seeks to regulate their action by supplying 'artificial tutelary motives.' The 'man' is given; the play of his instincts, separately neutral, makes his conduct more or less favourable to general happiness; and the moralist and the legislator have both to correct his deviations by supplying appropriate 'sanctions.' Bentham, therefore, is inclined to ignore the intrinsic character of morality, or the dependence of a man's morality upon the essential structure of his nature. He thinks of the superficial play of forces, not of their intimate constitution. The man is not to be changed in either case; only his circumstances. Such defects no doubt diminish the value of Bentham's work. Yet, after all, in his own sphere they are trifles. He did very well without philosophy. However imperfect his system might be considered as a science or an ultimate explanation of society and human nature, it was very much to the point as an expression of downright common sense. Dumont's eulogy seems to be fully deserved, when we contrast Bentham's theory of punishment with the theories (if they deserve the name) of contemporary legislators. His method involved a thoroughgoing examination of the whole body of laws, and a resolution to apply a searching test to every law. If that test was not so unequivocal or ultimate as he fancied, it yet implied the constant application of such considerations as must always carry weight, and, perhaps, be always the dominant considerations, with the actual legislator or jurist. What is the use of you? is a question which may fairly be put to every institution and to every law; and it concerns legislators to find some answer, even though the meaning of the word 'use' is not so clear as we could wish.

NOTES:

[406] _Morals and Legislation_, ch. xii.

[407] _Morals and Legislation_, ch. xiv. (a chapter inserted from Dumont's _Traites_).

[408] _Works_ ('Morals and Legislation'), i. p. 86.

[409] _Ibid._ i. 144.

[410] _Ibid._ i. 145.

[411] _Works_ ('Morals and Legislation'), i. 143.

[412] _Ibid._ i. 147-48.

[413] _Works_ ('Morals and Legislation'), i 406 _n._

[414] _Works_ ('Morals and Legislation'), i. 96 _n._

V. ENGLISH LAW

The practical value of Bentham's method is perhaps best illustrated by his _Rationale of Evidence_. The composition of the papers ultimately put together by J. S. Mill had occupied Bentham from 1802 to 1812. The changed style is significant. Nobody could write more pointedly, or with happier illustrations, than Bentham in his earlier years. He afterwards came to think that a didactic treatise should sacrifice every other virtue to fulness and precision. To make a sentence precise, every qualifying clause must be somehow forced into the original formula. Still more characteristic is his application of what he calls the 'substantive-preferring principle.'[415] He would rather say, 'I give extension to an object,' than 'I extend an object.' Where a substantive is employed, the idea is 'stationed upon a rock'; if only a verb, the idea is 'like a leaf floating on a stream.' A verb, he said,[416] 'slips through your fingers like an eel.' The principle corresponds to his 'metaphysics.' The universe of thought is made up of a number of separate 'entities' corresponding to nouns-substantive, and when these bundles are distinctly isolated by appropriate nouns, the process of arranging and codifying according to the simple relations indicated by the copula is greatly facilitated. The ideal language would resemble algebra, in which symbols, each representing a given numerical value, are connected by the smallest possible number of symbols of operation, +, -, =, and so forth. To set two such statements side by side, or to modify them by inserting different constants, is then a comparatively easy process, capable of being regulated by simple general rules. Bentham's style becomes tiresome, and was often improperly called obscure. It requires attention, but the meaning is never doubtful--and to the end we have frequent flashes of the old vivacity.

The _Rationale of Evidence_, as Mill remarks,[417] is 'one of the richest in matter of all Bentham's productions.' It contains, too, many passages in Bentham's earlier style, judiciously preserved by his young editor; indeed, so many that I am tempted even to call the book amusing. In spite of the wearisome effort to say everything, and to force language into the mould presented by his theory, Bentham attracts us by his obvious sincerity. The arguments may be unsatisfactory, but they are genuine arguments. They represent conviction; they are given because they have convinced; and no reader can deny that they really tend to convince. We may complain that there are too many words, and that the sentences are cumbrous; but the substance is always to the point. The main purpose may be very briefly indicated. Bentham begins by general considerations upon evidence, in which he and his youthful editor indicate their general adherence to the doctrines of Hume.[418] This leads to an application of the methods expounded in the 'Introduction,' in order to show how the various motives or 'springs of action' and the 'sanctions' based upon them may affect the trustworthiness of evidence. Any motive whatever may incidentally cause 'mendacity.' The second book, therefore, considers what securities may be taken for 'securing trustworthiness.' We have, for example, a discussion of the value of oaths (he thinks them valueless), of the advantages and disadvantages of reducing evidence to writing, of interrogating witnesses, and of the publicity or privacy of evidence. Book iii. deals with the 'extraction of evidence.' We have to compare the relative advantages of oral and written evidence, the rules for cross-examining witnesses and for taking evidence as to their character. Book iv. deals with 'pre-appointed evidence,' the cases, that is, in which events are recorded at the time of occurrence with a view to their subsequent use as evidence. We have under this head to consider the formalities which should be required in regard to contracts and wills; and the mode of recording judicial and other official decisions and registering births, deaths, and marriages. In Books v. and vi. we consider two kinds of evidence which is in one way or other of inferior cogency, namely, 'circumstantial evidence,' in which the evidence if accepted still leaves room for a process of more or less doubtful inference; and 'makeshift evidence,' such evidence as must sometimes be accepted for want of the best, of which the most conspicuous instance is 'hearsay evidence.' Book vii. deals with the 'authentication' of evidence. Book viii. is a consideration of the 'technical' system, that namely which was accepted by English lawyers; and finally Book ix. deals with a special point, namely, the exclusion of evidence. Bentham announces at starting[419] that he shall establish 'one theorem' and consider two problems. The problems are: 'what securities can be taken for the truth of evidence?' and 'what rules can be given for estimating the value of evidence?' The 'theorem' is that no evidence should be excluded with the professed intention of obtaining a right decision; though some must be excluded to avoid expense, vexation, and delay. This, therefore, as his most distinct moral, is fully treated in the last book.

Had Bentham confined himself to a pithy statement of his leading doctrines, and confirmed them by a few typical cases, he would have been more effective in a literary sense. His passion for 'codification,' for tabulating and arranging facts in all their complexity, and for applying his doctrine at full length to every case that he can imagine, makes him terribly prolix. On the other hand, this process no doubt strengthened his own conviction and the conviction of his disciples as to the value of his process. Follow this clue of utility throughout the whole labyrinth, see what a clear answer it offers at every point, and you cannot doubt that you are in possession of the true compass for such a navigation. Indeed, it seems to be indisputable that Bentham's arguments are the really relevant and important arguments. How can we decide any of the points which come up for discussion? Should a witness be cross-examined? Should his evidence be recorded? Should a wife be allowed to give evidence against her husband? or the defendant to give evidence about his own case? These and innumerable other points can only be decided by reference to what Bentham understood by 'utility.' This or that arrangement is 'useful' because it enables us to get quickly and easily at the evidence, to take effective securities for its truthfulness, to estimate its relevance and importance, to leave the decision to the most qualified persons, and so forth. These points, again, can only be decided by a careful appeal to experience, and by endeavouring to understand the ordinary play of 'motives' and 'sanctions.' What generally makes a man lie, and how is lying to be made unpleasant? By rigorously fixing our minds at every point on such issues, we find that many questions admit of very plain answers, and are surprised to discover what a mass of obscurity has been dispelled. It is, however, true that although the value of the method can hardly be denied unless we deny the value of all experience and common sense, we may dispute the degree in which it confirms the general principle. Every step seems to Bentham to reflect additional light upon his primary axiom. Yet it is possible to hold that witnesses should be encouraged to speak the truth, and that experience may help us to discover the best means to that end without, therefore, admitting the unique validity of the 'greatest happiness' principle. That principle, so far as true, may be itself a deduction from some higher principle; and no philosopher of any school would deny that 'utility' should be in some way consulted by the legislator.

The book illustrates the next critical point in Bentham's system--the transition from law to politics. He was writing the book at the period when the failure of the Panopticon was calling his attention to the wickedness of George III. and Lord Eldon, and when the English demand for parliamentary reform was reviving and supplying him with a sympathetic audience. Now, in examining the theory of evidence upon the plan described, Bentham found himself at every stage in conflict with the existing system, or rather the existing chaos of unintelligible rules. English lawyers, he discovered, had worked out a system of rules for excluding evidence. Sometimes the cause was pure indolence. 'This man, were I to hear him,' says the English judge, 'would come out with a parcel of lies. It would be a plague to hear him: I have heard enough already; shut the door in his face.'[420] But, as Bentham shows with elaborate detail, a reason for suspecting evidence is not a reason for excluding it. A convicted perjurer gives evidence, and has a pecuniary interest in the result. That is excellent ground for caution; but the fact that the man makes a certain statement may still be a help to the ascertainment of truth. Why should that help be rejected? Bentham scarcely admits of any exception to the general rule of taking any evidence you can get--one exception being the rather curious one of confession to a Catholic priest; secrecy in such cases is on the whole, he thinks, useful. He exposes the confusion implied in an exclusion of evidence because it is not fully trustworthy, which is equivalent to working in the dark because a partial light may deceive. But this is only a part of a whole system of arbitrary, inconsistent, and technical rules worked out by the ingenuity of lawyers. Besides the direct injury they gave endless opportunity for skilful manoeuvring to exclude or admit evidence by adopting different forms of procedure. Rules had been made by judges as they were wanted and precedents established of contradictory tendency and uncertain application. Bentham contrasts the simplicity of the rules deducible from 'utility' with the amazing complexity of the traditional code of technical rules. Under the 'natural' system, that of utility, you have to deal with a quarrel between your servants or children. You send at once for the disputants, confront them, take any relevant evidence, and make up your mind as to the rights of the dispute. In certain cases this 'natural' procedure has been retained, as, for example, in courts-martial, where rapid decision was necessary. Had the technical system prevailed, the country would have been ruined in six weeks.[421] But the exposure of the technical system requires an elaborate display of intricate methods involving at every step vexation, delay, and injustice. Bentham reckons up nineteen separate devices employed by the courts. He describes the elaborate processes which had to be gone through before a hearing could be obtained; the distance of courts from the litigants; the bandying of cases from court to court; the chicaneries about giving notice; the frequent nullification of all that had been done on account of some technical flaw; the unintelligible jargon of Latin and Law-French which veiled the proceedings from the public; the elaborate mysteries of 'special pleading'; the conflict of jurisdictions, and the manufacture of new 'pleas' and new technical rules; the 'entanglement of jurisdictions,' and especially the distinction between law and equity, which had made confusion doubly confounded. English law had become a mere jungle of unintelligible distinctions, contradictions, and cumbrous methods through which no man could find his way without the guidance of the initiated, and in which a long purse and unscrupulous trickery gave the advantage over the poor to the rich, and to the knave over the honest man. One fruitful source of all these evils was the 'judge-made' law, which Bentham henceforth never ceased to denounce. His ideal was a distinct code which, when change was required, should be changed by an avowed and intelligible process. The chaos which had grown up was the natural result of the gradual development of a traditional body of law, in which new cases were met under cover of applying precedents from previous decisions, with the help of reference to the vague body of unwritten or 'common law,' and of legal fictions permitting some non-natural interpretation of the old formulae. It is the judges, he had already said in 1792,[422] 'that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it and then beat him. This is the way you make laws for your dog, and this is the way the judges make laws for you and me.' The 'tyranny of judge-made law' is 'the most all-comprehensive, most grinding, and most crying of all grievances,'[423] and is scarcely less bad than 'priest-made religion.'[424] Legal fictions, according to him, are simply lies. The permission to use them is a 'mendacity licence.' In 'Rome-bred law ... fiction' is a 'wart which here and there disfigures the face of justice. In English law fiction is a syphilis which runs into every vein and carries into every part of the system the principle of rottenness.'[425]

The evils denounced by Bentham were monstrous. The completeness of the exposure was his great merit; and his reputation has suffered, as we are told on competent authority, by the very efficiency of his attack. The worst evils are so much things of the past, that we forget the extent of the evil and the merits of its assailant. Bentham's diagnosis of the evil explains his later attitude. He attributes all the abuses to consciously corrupt motives even where a sufficient explanation can be found in the human stupidity and honest incapacity to look outside of traditional ways of thought. He admits, indeed, the personal purity of English judges. No English judge had ever received a bribe within living memory.[426] But this, he urges, is only because the judges find it more profitable as well as safer to carry out a radically corrupt system. A synonym for 'technical' is 'fee-gathering.' Lawyers of all classes had a common interest in multiplying suits and complicating procedure: and thus a tacit partnership had grown up which he describes as 'Judge and Co.' He gives statistics showing that in the year 1797 five hundred and forty-three out of five hundred and fifty 'writs of error' were 'shams,' or simply vexatious contrivances for delay, and brought a profit to the Chief Justice of over L1400.[427] Lord Eldon was always before him as the typical representative of obstruction and obscurantism. In his _Indications respecting Lord Eldon_ (1825) he goes into details which it must have required some courage to publish. Under Eldon, he says, 'equity has become an instrument of fraud and extortion.'[428] He details the proceedings by which Eldon obtained the sanction of parliament for a system of fee-taking, which he had admitted to be illegal, and which had been denounced by an eminent solicitor as leading to gross corruption. Bentham intimates that the Masters in Chancery were 'swindlers,'[429] and that Eldon was knowingly the protector and sharer of their profits. Romilly, who had called the Court of Chancery 'a disgrace to a civilised nation,' had said that Eldon was the cause of many of the abuses, and could have reformed most of the others. Erskine had declared that if there was a hell, the Court of Chancery was hell.[430] Eldon, as Bentham himself thought, was worse than Jeffreys. Eldon's victims had died a lingering death, and the persecutor had made money out of their sufferings. Jeffreys was openly brutal; while Eldon covered his tyranny under the 'most accomplished indifference.'[431]

Yet Eldon was but the head of a band. Judges, barristers, and solicitors were alike. The most hopeless of reforms would be to raise a 'thorough-paced English lawyer' to the moral level of an average man.[432] To attack legal abuses was to attack a class combined under its chiefs, capable of hoodwinking parliament and suppressing open criticism. The slave-traders whom Wilberforce attacked were comparatively a powerless excrescence. The legal profession was in the closest relations to the monarchy, the aristocracy, and the whole privileged and wealthy class. They were welded into a solid 'ring.' The king, and his ministers who distributed places and pensions; the borough-mongers who sold votes for power; the clergy who looked for bishoprics; the monied men who aspired to rank and power, were all parts of a league. It was easy enough to talk of law reform. Romilly had proposed and even carried a 'reformatiuncle' or two;[433] but to achieve a serious success required not victory in a skirmish or two, not the exposure of some abuse too palpable to be openly defended even by an Eldon, but a prolonged war against an organised army fortified and entrenched in the very heart of the country.

NOTES:

[415] _Works_, iii. 267.

[416] _Ibid._ x. 569

[417] _Autobiography_, p. 116.

[418] The subject is again treated in Book v. on 'Circumstantial Evidence.'

[419] _Works_, vi. 204.

[420] _Works_, vii. 391.

[421] _Works_, vii. 321-25. Court-martials are hardly a happy example now.

[422] 'Truth _v._ Ashhurst' (1792), _Works_, v. 235.

[423] _Works_ ('Codification Petition'), v. 442.

[424] _Ibid._ vi. 11.

[425] _Ibid._ v. 92.

[426] _Works_, vii. 204, 331; ix. 143.

[427] _Ibid._ vii. 214.

[428] _Ibid._ v. 349.

[429] _Ibid._ v. 364.

[430] _Works_, v. 371.

[431] _Ibid._ v. 375.

[432] _Ibid._ vii. 188.

[433] _Ibid._ v. 370.

VI. RADICALISM

Thus Bentham, as his eyes were opened, became a Radical. The political purpose became dominant, although we always see that the legal abuses are uppermost in his mind; and that what he really seeks is a fulcrum for the machinery which is to overthrow Lord Eldon. Some of the pamphlets deal directly with the special instruments of corruption. The _Elements of the Art of Packing_ shows how the crown managed to have a permanent body of special 'jurors' at its disposal. The 'grand and paramount use'[434] of this system was to crush the liberty of the press. The obscure law of libel, worked by judges in the interest of the government, enabled them to punish any rash Radical for 'hurting the feelings' of the ruling classes, and to evade responsibility by help of a 'covertly pensioned' and servile jury. The pamphlet, though tiresomely minute and long-winded, contained too much pointed truth to be published at the time. The _Official Aptitude minimised_ contains a series of attacks upon the system of patronage and pensions by which the machinery of government was practically worked. In the _Catechism_ of reformers, written in 1809, Bentham began the direct application of his theories to the constitution; and the final and most elaborate exposition of these forms the _Constitutional Code_, which was the main work of his later years. This book excited the warmest admiration of Bentham's disciples.[435] J. S. Mill speaks of its 'extraordinary power ... of at once seizing comprehensive principles and scheming out minute details,' and of its 'surpassing intellectual vigour.' Nor, indeed, will any one be disposed to deny that it is a singular proof of intellectual activity, when we remember that it was begun when the author was over seventy, and that he was still working at eighty-four.[436] In this book Bentham's peculiarities of style reach their highest development, and it cannot be recommended as light reading. Had Bentham been a mystical philosopher, he would, we may conjecture, have achieved a masterpiece of unintelligibility which all his followers would have extolled as containing the very essence of his teaching. His method condemned him to be always intelligible, however crabbed and elaborate. Perhaps, however, the point which strikes one most is the amazing simple-mindedness of the whole proceeding. Bentham's light-hearted indifference to the distinction between paper constitutions and operative rules of conduct becomes almost pathetic.

Bentham was clearly the victim of a common delusion. If a system will work, the minutest details can be exhibited. Therefore, it is inferred, an exhibition of minute detail proves that it will work. Unfortunately, the philosophers of Laputa would have had no more difficulty in filling up details than the legislators of England or the United States. When Bentham had settled in his 'Radical Reform Bill'[437] that the 'voting-box' was to be a double cube of cast-iron, with a slit in the lid, into which cards two inches by one, white on one side and black on the other, could be inserted, he must have felt that he had got very near to actual application: he can picture the whole operation and nobody can say that the scheme is impracticable for want of working plans of the machinery. There will, doubtless, be no difficulty in settling the shape of the boxes, when we have once agreed to have the ballot. But a discussion of such remote details of Utopia is of incomparably less real interest than the discussion in the _Rationale of Evidence_ of points, which, however minute, were occurring every day, and which were really in urgent need of the light of common sense.

Bentham's general principles may be very simply stated. They are, in fact, such as were suggested by his view of legal grievances. Why, when he had demonstrated that certain measures would contribute to the 'greatest happiness of the greatest number,' were they not at once adopted? Because the rulers did not desire the greatest happiness of the greatest number. This, in Bentham's language, is to say that they were governed by a 'sinister interest.' Their interest was that of their class, not that of the nation; they aimed at t