XI. to read the "Commentaries on the Laws of Eng- Lecture "land, by Sir William Blackstone, Kt., one of the "Justices of His Majesty's Court of Common Pleas," you will thank me as often as you shall complete the reading for the advice I have thus ventured to give.1 and his I now turn your attention to Blackstone's critic Bentham and assailant, Jeremy Bentham, to the end that we labors. may form a judgment of the value and influence of his labors. This is the more necessary because it even yet rests uncertain in some minds whether Bentham sowed the field of the law with wheat or thistles. This subject leads, as we shall see in our next lecture, to the consideration of questions of vital and practical interest to our law. Bentham was the pronounced enemy of what we Enemy of call case-law, of what he styled, somewhat con 1 If it were not ungracious toward an author who has done so much for his profession as Blackstone, we might indeed wish that Blackstone had possessed more fully the quality that Stuart Mill ascribes to Coleridge; namely, “the spirit of philosophy within the bounds of traditional opinions. Coleridge has been, almost as truly as Bentham, the great questioner of things established;' for a questioner needs not necessarily be an enemy. . . . With Coleridge the very fact that any doctrine had been believed by thoughtful men and received by whole nations or generations of mankind, was part of the problem to be solved; was one of the phenomena to be accounted for. . . . It was to be expected that Bentham should continually miss the truth which is in the traditional opinions, and Coleridge that which is out of them and at variance with them.” "Dissertations and Discussions by John Stuart Mill: Essay on Coleridge," vol. ii., pp. 6, 7, American reprint, Boston, 1868. The contemporary and earlier opinions of Blackstone's Commentaries, including those of Fox, Sir William Jones, Gibbon, Mansfield, Story, Mackintosh, and others, are collected in the Preface of Paterson's "Liberty of the Subject" (MacMillan & Company), 1877. case-law. XI. Vast size of case-law threatens revolu tionary changes in English jurispru dence. 66 66 Lecture temptuously, "judge-made law." "The frightful accumulation of case-law," says Sir Henry Maine, conveys to English jurisprudence a menace of "revolution far more serious than any popular murmurs, and which, if it does nothing else, is giving to mere tenacity of memory a disgraceful advantage over all the finer qualities of the legal "intellect." Evidently the doctrine of precedent and its direct fruits—namely, the colossal and evergrowing mass of reported cases are to-day, even more than in Bentham's time, subjects of vast and living moment, whose depths none of us has fully sounded. 1 The story of Bentham's life and labors shows, to use Carlyle's phrase, that "no great man lives in vain." It also lends color to Carlyle's favorite dictum, that "the history of the world is but the biography of great men." It shows, moreover, that if a man has" that last infirmity of noble mind," is willing "to scorn delights and live laborious days" that he may gain the fair guerdon of a lasting fame, he must become connected with, and his labors must become incorporate in, institutions which have the quality of living, although the individual members successively perish. "Wise or fortunate," says Gibbon in his famous chapter on Roman Jurisprudence, speaking of Justinian, "is the prince who "connects his own reputation with the honor and "interests of a perpetual body of men." Bentham did this. Although he was the inveterate assailant 1 Sir Henry Maine, "Village Communities,” paper on Roman Law and Legal Education (American Ed.), p. 347. See ante Lecture VI., p. 176 et seq., Lecture VIII., p. 231; Lecture IX., passim; Lecture X. XI. disin labors. and critic of the lawyers as well as of the English Lecture system of law in his day; often, indeed usually, carrying his assaults and criticisms beyond the line Bentham's of fairness, nevertheless his lifelong and disinter- terested ested labors were inspired by a desire and ambition, free of the least taint or alloy, to promote (and time has demonstrated that they did promote and are promoting) the true interests of the profession, thus connecting himself in name and memory with it, and giving him the only reward he either sought or would prize, namely, that which springs from his labors in behalf of its true and permanent welfare. Bentham's place in our law, and the nature and influence of his labors for its improvement, will be the subject of the next lecture. Lecture XII. place in our legal history. LECTURE XII. OUR LAW: BLACKSTONE AND BENTHAM AS TYPES AND B ENTHAM'S theories upon legal subjects have "had a degree of practical influence upon Bentham's "the legislation of his own and various other coun"tries comparable only to those of Adam Smith and his successors upon commerce." Such is the opinion of Sir James Stephen concerning the influence and effect of Bentham's legal writings and labors.1 As late as 1874 Sir Henry Maine went so far as to declare: "I do not know a single law reform effected "since Bentham's day which cannot be traced to "his influence; but a still more startling proof of "the clearing of the brain produced by this system "[the system of Hobbes, Bentham, and Austin], "even in an earlier stage, may be found in Hobbes. "In his 'Dialogue of the Common Laws,' he argues "for a fusion of law and equity, a registration of 1 Sir James FitzJames Stephen, "History of Criminal Law of England," London, 1883, vol. ii., chap. xxi., p. 216. Lecture "titles to land, and a systematic penal code, "three measures which we are on the eve of seeing "carried out at this moment." Opposite views are entertained by others. It is worth while, therefore, to essay to define Bentham's place in the history of Bentham's our law, and to attempt an estimate of the character place in our legal and influence of his writings; and such is the history. purpose of this hour. Bentham's fertile and active mind embraced in the scope of its operations many other subjects than those of law and legislation, such as ethics, political economy, political reform, and even practical politics. Nevertheless, his principal attention was given to the English law and to the mode by which its improvement could best be 66 we 1 Early History of Institutions, Lecture XIII. Others also, well qualified to judge, have assigned to Bentham a place in the foremost rank of men of extraordinary intellectual endowments. I subjoin an extract giving Macaulay's judgment. He is by no means a partial witness he was a Whig of the Whigs; Bentham, a Radical of the Radicals. If there was anything that a Whig hated more than a Tory, it was a Radical. Macaulay had in Bentham's lifetime attacked with fierceness and rancor the Benthamic notions of politics. Yet within a few months after the death of Bentham, in reviewing (July, 1832) Dumont's "Mirabeau," Macaulay thus expresses his opinion of Bentham's character and labors: "Of Mr. Bentham," he says, would at all times speak with the reverence which is due to a great original thinker and to a sincere and ardent friend of the human race. In some of the highest departments in which the human intellect can exert itself he has not left his equal or his second behind him. From his contemporaries he has had, according to the usual lot, more or less than justice. He has had blind flatterers and blind detractors, — flatterers who could see nothing but perfection in his style; detractors who could see nothing but nonsense in his matter. He will now have his judges. Posterity will pronounce its calm and impartial decision; and that decision will, we firmly believe, place in the same rank with Galileo and with Locke the man who found jurisprudence a gibberish and left it a science." (A general truth, rather too strongly expressed.) See below for opinions of Brougham and others concerning Bentham's writings and labors. |