Jones G.S., Claeys G. The Cambridge History of Nineteenth-Century Political Thought
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Frederick Rosen
successful appearance of the Tra it
´
es to under take one of the topics necessary
for the completion of his vision of a complete code of laws. The Tra i t
´
es was
mainly confined to penal and civil law, and left largely untouched two main
fields: evidence and judicial procedure on the one hand and constitutional
law on the other.
It is not difficult to see how the law of evidence might have a strong
philosophical component. By its very nature evidence and the means by
which it is obtained and used in courts is related to ideas of perception,
induction, theories of motivation, and concepts of proof and truth (see
Twining 1985,pp.16, 26). When Bentham wrote to his brother about the
volume on evidence he was supposedly bringing to completion in 1806,
that ‘Metaphysics, none in this Vol’, he was probably referring to the fact
that much of it was highly critical of lawyers and existing legal practices
(Bentham 1988a, p. 381). Indeed, the test of philosophical success in his
terms would consist of the generation of human happiness through practical
changes in the law. But the philosophical discussion would underpin this
practical effort.
When Bentham began to write in 1806 about the completion of the work
on evidence, Dumont’s name also appeared in connection with it. Bentham
wrote to his brother in 1806 that ‘ . . . about my evidence he [Dumont]
plagues me out of my life’ (Bentham 1988a, p. 342). The old team from the
Lansdowne circle, Romilly and Dumont, paid close attention to Bentham’s
new philosophical venture (see Bentham 1988a, p. 356). But Bentham did
not bring his own work to completion. James Mill worked on the evidence
manuscripts in 1809 (Bentham 1988b, pp. 38, 47–8), and Bentham partly
printed the ‘Introduction to the Rationale of Evidence’ in 1812 (see Lewis
1990,p.209; Bentham 1838–43, vi,pp.1–187). Dumont produced his one-
volume version in 1823 with English translations appearing in 1825 (see
Bentham 1823b, 1825). According to J. S. Mill, Dumont’s work omitted
the material concerned with English practice and made it more suitable for
continental readers (J. Bentham 1827b, i, pp. v–vi). Nevertheless, it would
be J. S. Mill who completed the five-volume Rationale of Judicial Evidence
in 1825–7. Lewis suggests that in undertaking this burdensome chore, on
which James Mill had worked, the young Mill ‘was as much fulfilling a task
of genuine filial duty’ towards his father, ‘as he was undertaking a work of
piety in respect of his intellectual father, Bentham’ (Lewis 1990,p.
216).
Mill’
s brief preface for this massive work somewhat surprisingly focused
less on the nature of Bentham’s achievement (which he probably thought
would speak for itself) and took up several political issues concerned with
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reform. His main argument was that piecemeal reform in a technical legal
system would produce a worse system than reform on what he called ‘a
comprehensive plan’, even if that plan had to be introduced suddenly rather
than gradually (J. Bentham 1827b, i, p. xiv). Mill admitted that ‘the public
mind is not yet entirely prepared’ for so major a reform in its legal system
but that ‘it is rapidly advancing to such a state of preparation’: ‘It is now no
longer considered as a mark of disaffection towards the state, and hostility
to social order and to law in general, to express an opinion that the existing
law is defective, and requires radical reform’ (J. Bentham 1827b, i,p.xv).
Mill pointed to Peel’s recent proposals for law reform, and to the work of
Humphreys, as supplemented by Bentham, on the reform of the law of real
property (see J. Bentham 1827a; Humphreys 1826; Sokol 1992,pp.225–45).
Mill then used these clear developments towards reform in the 1820s to call
attention to a new group of young lawyers who were active in the cause of
reform, even though their pecuniary interests would oppose it (J. Bentham
1827b, i, pp. xv–xvi). This showed, for Mill, that the problem of reform
was not only one of overcoming ‘sinister interests’ (in Bentham’s phrase) but
also one of seriously learning about the possibilities of an alternative system
(J. Bentham 1827b, i, p. xvi). In the field of evidence, Mill declared, the
subject ‘has now for the first time been treated philosophically’ (J. Bentham
1827b, i,p.xvi).
Book I of Mill’s edition was devoted to ‘Theoretical Grounds’ and began
with an exploration of the nature of evidence and facts. Bentham took
the view that a concern with evidence was part of all studies, including
those like mathematics and religion, where empirical evidence, at any rate,
did not appear to be directly important. According to Bentham, ‘a great
part of the business of science in general, may be resolved into a research
after evidence’ (J. Bentham 1827b, i,p.21). Mill seemed to accept this view,
though he also sought to distinguish between a purely experimental subject,
like chemistry, on the one hand, where evidence was based on matters of
fact and these in turn were based on sense impressions, and mathematics on
the other hand, where evidence was based on general reasoning. ‘To point
out the peculiar properties of these two kinds of evidence, and to distinguish
them from one another, belongs’, Mill added, ‘rather to a treatise on logic
than to a work like the present’ (J. Bentham 1827b, i,p.20n). Thus, as early
as 1827, Mill set out his stall regarding the study of logic and linked it with
evidence. This link is perhaps reflected in the full title of his own work on
logic, A System of Logic Ratiocinative and Inductive Being a Connected View of
the Principles of Evidence and Methods of Scientific Investigation (1843). As Kubitz
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Frederick Rosen
(1932,p.23) has written, ‘the standpoint of Bentham’s Rationale regarding
evidence may, accordingly, be taken as one of the first circumstances to
influence the development of Mill’s logical doctrines’.
3 Codification
Bentham’s vision of a complete code of laws, accepted by one or more states,
epitomised his conception of the ideal relationship between philosophy and
politics (see Bentham 1998). To draft such a work, governing the public life
of a society, and aiming at increasing human happiness or at least diminishing
unhappiness, and covering all branches of the law, would require all of his
philosophical skill and imagination together with an acceptance of the laws
by the society concerned. As in the analogy with medicine, the ultimate
object was wholly practical, in this case, the happiness of the individual and
society. For Bentham, to attempt to understand human happiness, without
a grasp of how laws impinged upon such happiness and how they might be
changed to increase it, was pointless and self-indulgent.
Bentham never actually wrote a complete code of laws (despite receiving
an acceptance from the Portuguese Cortes in 1822 to an offer to draft penal,
civil and constitutional codes for Portugal) (Bentham 1983b[1830], pp.
xiff., 1998, pp. xxix–xxx). But throughout his life, from his involvement in
the Penitentiary Act of 1779 (for which he wrote a critical commentary on
the proposed bill, entitled A View of the Hard-Labour Bill (1778) (Bentham
1838–43, iv,pp.3–35;seeRosen2003,p.161), to his contribution to the
Anatomy Act of 1830 (see R. Richardson 1986,pp.22–33, 2001,p.112),
he took a keen interest in all forms of legislation and wrote at length on
numerous topics. The philosophical vision was also never abandoned, and
in his later years, his commitment to it intensified.
Bentham turned to codification in a major way in 1811 with a letter
addressed to James Madison, President of the United States of America,
offering to draft a complete code of laws (or Pannomion) to replace the
Common Law (see Bentham 1988b, pp. 182–215, 1998,pp.5–35). The
letter was written in consultation with Dumont (Bentham 1998, pp. xii–
xiii), and, in addition, Bentham was perhaps stimulated to undertake this
second major philosophical project (after evidence) with the appearance
of the second Dumont recension, Th
´
eorie des Peines et des R
´
ecompenses,
which was published in the same year (see Bentham 1811). In the letter to
Madison (and in numerous subsequent letters to leading figures throughout
the world) Bentham referred t o the Tra it
´
es as containing a plan and an
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example of a rationale (‘a mass of reasons accompanying in the shape of a
perpetual commentary’ on the proposed laws) (Bentham 1988b, p. 184).
Bentham also pointed out that the Trait
´
es were mentioned in Napoleon’s
Code d’Instruction Criminelle (1807)andCode P
´
enal (1810)aswellasin
the penal code authorised by the King of Bavaria (see Bexon 1807, Pt. i,
pp. lxvi, lxvii, lxx; Pt. ii, pp. iv, lvii, lxxxvii, cxxii, cxxiv; Bk. ii,p.1; see also
Bentham 1998,pp.11–12 and nn). Whatever provided the precise stimulus
for Bentham to take up codification in a major way in 1811, it is clear that
the Tra i t
´
es remained the main anchor and model for his new venture. In
his letter to Simon Snyder, the governor of Pennsylvania, in 1814, when
he turned from the federal government to the state governments to obtain
his commission, he referred to the two Dumont recensions and also back
to IPML, which, he declared, was ‘the forerunner’ of the Tra it
´
es (Bentham
1988b, p. 390, 1998,p.69).
In his efforts at obtaining a commission to produce a complete code of
laws, Bentham did not omit to consider the possibilities for codification
in Britain. In 1812 he approached Henry Addington, Viscount Sidmouth,
who had just become Home Secretary, with a proposal to draft a penal code
(see Bentham 1988b, pp. 247–51). At this time (as elsewhere) he referred
to Bacon and wrote: ‘Since the days of Lord Bacon, the sort of offer I am
making to your lordship is what has never, from that time to this, been
made to any public man’ (Bentham 1988b, p. 249). This reference was not
to Bacon in his role as a philosopher, but to his proposal to James I to make a
digest of the laws (see Lieberman 1985,pp.7–20, 1989,pp.183–4, 241–51,
254–6).
In explaining to Sidmouth what he expected from him with regard
to such a proposed code, Bentham did not envisage anything so grand as
the actual acceptance of the code. He thought instead that ‘it should be
received, and employed, and made of use in the character of a subject of
comparison – a subject or object of comparison, capable, on occasion, of
being referred to – referred to for good provision or for bad provision,
for good argument or for bad argument, for approbation or for censure’
(Bentham 1988b, p. 248). One might see here Bentham’s distinction
between the expositor and the censor in comparing law as it is with that as
it ought to be (Bentham 1988c, pp. 7–8). The proposed penal code might,
in his view, be accepted to play this role of standing alongside the existing
law and generating the truth through a detailed comparison between the
two versions of the law.
Bentham was continually engaged at this time in making proposals for
reform, for example, from an attack on the evils surrounding transportation,
267
Frederick Rosen
to a critique of sodomy in the hulks, from opposition to capital punishment
to proposals for tattoos for identifying prisoners. These diverse proposals
appeared in his writings and correspondence at the same time as he under-
took his philosophical projects that equally aimed at the reform of existing
practices. One cannot distinguish between his philosophical and other pro-
posals for reform in terms of what objects he sought to accomplish, as
both had as objects the relief of pain and the enhancement of pleasure and
happiness. The difference was more in the completeness of the vision of
human life and motivation involved in the philosophical works alongside
a method for achieving an understanding of them in their application to
practice. The method also required a vision – a vision he associated with
Bacon and Newton – which could establish the study of law, politics and
ethics as practical sciences in their own right and as complete and rigorous as
medicine, botany and engineering. Such an achievement would sweep away
the vast but supposedly useless body of existing philosophical commentary
in these fields.
In Bentham’s writings on codification one is provided with the princi-
ples on which such codification would be based and examples of Bentham’s
method of logical division and organisation that would guide his work (see
Bentham 1998). He was well aware that progress in the field of codifica-
tion, particularly in the attempt to provide a complete code of laws, faced
formidable obstacles. First, those lawyers and politicians who would have to
approve such a venture had most to lose by giving such approval and little
incentive to do so. Bentham noted that no government or nation had ever
attempted to survey all of its laws, let alone proceed towards comprehensive
codification, and much codification thus far consisted simply of digests of
existing customary law and statutes, with similar defects as that which they
replaced or supplemented (Bentham 1998,p.139). Second, the work of
codification, for Bentham, was highly complex and even technical. Not
only was it necessary that the final product should be easily accessible to the
average person, but underlying such work were complex logical operations
and the development of a new technical language to express the process
of logical division and distinction. The two goals were difficult to recon-
cile, and one basis for the widespread criticism of Bentham in these later
writings was his need to adopt a difficult technical vocabulary to express
the logic of the important distinctions he sought to make (see James Mill
1835,pp.127–8). While some critics during his lifetime and at the present
time see this use of language as a stylistic defect (see Hazlitt 1969,pp.33–4;
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Thomas 1979,p.23), for Bentham, it was par t of his philosophical attempt
to apply logic to the law, a logic that he saw analogous to the use of algebra
in science.
4 Ford Abbey
Bentham’s sojourn at Ford Abbey in Devon from 1814 to 1818 enabled
him to concentrate on numerous aspects of his new philosophical projects,
even though he had begun some of these years earlier (see Bentham 1932,
pp. xxxii–xxxiii). The first reference to his manuscript for Chrestomathia
(meaning ‘useful learning’ – printed in 1815, published in 1816 and 1817),
his major work on knowledge and education, appeared in his correspon-
dence in 1814 (see Bentham 1983a, 1988b, p. 403 and n). This much-
neglected work is of considerable philosophical importance, containing a
series of appendices and tables dealing with classification, logic, language
and mathematics, as well as the details of the proposed Chrestomathic
School. In the work on codification where he was providing an example of
the application of his method to different codes of law, he referred to his
‘Encyclopedical Table, or Art and Science Table’ in Chrestomathia, where he
provided a classification of all branches of the arts and sciences (see Bentham
1983a, pp. 178–9, 1998,pp.139–40). Here was proof of how one might set
about classifying vast topics, such as law, and possess at a glance a complete
view of the various elements that made up the totality of knowledge. Not
all commentators have found much of value in Bentham’s achievement.
Bain, for example, in referring to the tables in Chrestomathia, recognised
a connection with the earlier French Encyclopaedia, but concluded that
‘very little attaches to this now; and I doubt if it was of much use at the
time’ (Bain 1882a, p. 143). George Bentham (1800–84), on the other hand,
called attention to Bentham’s achievement in rejecting the scholastic view
that there can be a science without an art or an art without a science, and
linked it with Whately’s argument, developed slightly later, that logic could
not be only an art, as the Schoolmen had believed (G. Bentham 1827,p.12;
see also Mill 1974, CWM, vii,p.4). For Bentham, science accompanied
art, as truth accompanied logic and classification.
One might trace from Chrestomathia the development of Bentham’s writ-
ings on logic and language. The first reference to the work on logic occurred
in 1814 in a letter to his brother, Samuel (Bentham 1988b, pp. 410–
11). Within a year Bentham was printing A Table of the Springs of Action
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Frederick Rosen
(published in 1817), his work on motivation, and, more particularly, on the
language used in describing motivation (see Bentham 1983c, pp. 1–115).
His work on fallacies in debate, The Book of Fallacies (1824), first appeared,
in part, in a French edition, produced by Dumont, Tactique des Assembl
´
ees
L
´
egislatives, suivie d’un Trait
´
e des Sophismes Politiques (1816). Furthermore,
when one adds to this significant corpus of work, the material on ethics,
much of which was written at this time (see Bentham 1983c, pp. 119–
281), and the massive material on religion, such as Church-of-Englandism
(1818), the period at Ford Abbey may be seen to be highly productive, and
philosophically significant.
In what ways did Bentham produce a philosophical legacy? Pringle-
Pattison, reflecting the Idealist reaction to utilitarianism, quotes Leslie
Stephen’s remark that Bentham ‘got on very well without philosophy’
(Pringle-Pattison 1907,p.18). On the other hand, Bain compares
Bentham’s ‘extraordinarily ambitious mind’ with Aristotle’s – both of
whom sought to ‘remodel the whole of human knowledge’ (Bain 1882a,
p. 144). J. S. Mill seemed ambivalent about Bentham’s legacy in philosophy.
Anyone with a tolerable acquaintance with Bentham’s major writings will
see reflections on many pages of Mill’s writing both in the language and
ideas employed. Moreover, it should be appreciated that Mill and George
Bentham, Bentham’s nephew and the future distinguished botanist, were
working on Bentham’s evidence and logic manuscripts respectively at the
same time, and both works were published within a few months of each
other by the same publisher. Nevertheless, there seems to have been little
contact between them, except on the theme of botany, even though Mill
lived with t he Bentham family in France for many months just seven
years earlier, and was then often in the company of George Bentham (see
Mill 1988, CWM, xxvi,pp.1–143). While in France Mill attended the
lectures of M. Gergonne at l’Acad
´
emie de Montpelier, took extensive
notes (see Mill 1988, CWM, xxvi,pp.191–253), and even drafted a ‘Trait
´
e
de Logique’ (1820–1) in French (Mill 1988, CWM, xxvi,pp.145–90).
Several years later in 1823 George Bentham published a French translation
of Bentham’s most important appendix to Chrestomathia
(Essai
sur la
Nomenclature et la Classification des Principales Branches d’Art-et-Science) (see
Bentham 1823a, 1983a, pp. 139–276). Furthermore, when he first discussed
the preparation of a major work on logic with Bentham in 1826, George
Bentham learned that James and J. S. Mill had supposedly studied the
papers on logic and that James Mill was planning to write a work on logic
based partly on Bentham’s manuscripts (G. Bentham 1997,p.244).
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George Bentham had first hoped to produce an edition in French, as he
was more comfortable in that language and did not want to compete with
the Mills. But Bentham was enthusiastic about George Bentham making
his fortune and reputation through editorial work on logic, and he began
to work on this project, while at the same time being forced by lack of
funds to begin the study of law (G. Bentham 1997,p.247). Unfortunately,
while Bentham decried the study of law and even though George Bentham
and his sisters would inherit the bulk of Bentham’s estate in 1832, Bentham
would not provide his nephew with sufficient funds so that he would not
need to enter the legal profession. Due to these circumstances the volume
on logic had to be somewhat hastily produced. Nevertheless, it was received
enthusiastically by Bentham: ‘My uncle is much pleased with my work; he
says that in Logic, I have already gone beyond him’ (G. Bentham 1997,p.270).
If one compares Mill’s Rationale of Judicial Evidence with George Bentham’s
Outline of a New System of Logic, they will strike one as very different works.
Mill’s five volumes are a major testament to Bentham’s achievement. Mill
deferentially kept his own ideas out of the text and expressed them only
occasionally in editorial notes (see Mill 1963, CWM, xii,pp.18–19). George
Bentham provided a fair summary of Bentham’s ideas, together with ideas
of his own, and a critical reading of Whately’s Elements of Logic (see Whately
1826).
When Mill was asked to review the Outline in the Westminster Review,
he declined the offer, even though he had already published an article
on Whately in the same journal a few months earlier. In his letter to
John Bowring (1792–1872), the editor, he was highly critical of George
Bentham’s work. While recognising his talent, Mill thought that the critique
of Whately failed to show a superior grasp of the subject and contained
arguments that were at times ‘altogether groundless’ (Mill 1963, CWM, xii,
pp. 23–4).
What Mill omitted from this letter (and from his own A System of Logic)
was any reference not only to Bentham’s ideas in the Outline, but also
to Bentham’s writings on logic and language, which first appeared in the
Bowring edition of the Works (Bentham 1838–43, viii,pp.192–357), and
nearly a century later achieved wide circulation through C. K. Ogden’s
edition, Bentham’s Theory of Fictions (1932). Furthermore, George Bentham
had stated his object clearly to justify his early publication of the Outline.
He was writing a preliminary work, that is to say, an outline, following
the order of Whately’s logic, and comparing Whately’s position with that
of Bentham’s on the topics Bentham considered. At the same time, he
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would add his own ideas on subjects which Bentham did not cover (see
G. Bentham 1827, p. vii). Such a procedure was not overly ambitious for
someone fairly new to the subject. George Bentham also alluded to the fact
that his circumstances, probably his pecuniary circumstances, were such that
a full study of logic would have to be delayed. It should be noted that his
later botanical studies, involving complex classifications, amply fulfilled his
early promise in logic. Fur thermore, the later recognition of the importance
of his chapters identifying the ‘quantification of the predicate’ for the first
time in modern logic earned for him a significant, if minor, footnote in the
history of log ic (see G. Bentham 1997,pp.271, 484–6).
Why was Mill so scornful of the Outline and apparently so dismissive of
the logical studies of both Benthams? An answer to this question would
require a full study of Mill’s System of Logic, which cannot be undertaken
here (see, for example, Ryan 1987). Nevertheless, while Bentham’s ideas
were ubiquitous in Mill’s System of Logic and while both were attempting
to establish inductive systems, Mill seemed to draw on other sources and
different strategies. This is due in part to the development of his early
study of logic in France, his studies with his father, debates with friends at
meetings at the home of George Grote (see Mill 1981, CWM, i,p.125),
and his reading of Bentham through Dumont, as well as the simple fact that
he worked on Bentham’s papers on evidence rather than on the papers on
logic. Nevertheless, even though no full version of Bentham’s writings on
logic and language was available until 1843, one would have thought that
he might have explored some of Bentham’s ideas either through George
Bentham’s Outline or through the manuscripts themselves. Even where he
discussed the quantification of the predicate in An Examination of Sir William
Hamilton’s Philosophy, no reference to George Bentham, negative or positive,
appeared (Mill 1979, CWM, ix,pp.385ff.).
Although Mill’s standing as a logician was generally high throughout
the nineteenth century, and Bentham was mainly neglected, it would be
wrong to assume that Mill’s neglect of Bentham’s ideas was based solely or
even partially on their being defective. William Stanley Jevons (1835–82),
for example, not only defended Bentham’s utilitarian philosophy in general
and intervened over the issue of the quantification of the predicate (see G.
Bentham 1997,pp.271, 485–6), but he also criticised Mill as a log ician, as
in a letter written in 1876: ‘Great as my respect for Mill’s straightforward
and zealous character is, I fear that his intellect if good originally was
ruined in youth. At any rate I find after long study that his Logic is an
extraordinary tissue of self-contradictions’ (Jevons 1972–81, iv,p.167;see
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also iv,pp.101–2, 116, v,p.24). These contradictions, in Jevons’ view, were
mainly in the sphere of the methods of geometry as well as in his account of
utility.
The revival of interest in Bentham, stimulated by the republication of
the writings on language and logic by C. K. Ogden also testifies to the
importance of his logical thought (Bentham 1932; Ogden 1932). As Hart has
noted, ‘Bentham anticipated the ideas of Logical Constructions, Incomplete
Symbols, and Definition in Use which are a marked feature of Bertrand
Russell’s philosophy and the forms of analytical philosophy which stem
from it’ (Hart 1982,p.43, see also pp. 128–31; see also Har rison 1983,
pp. 47–76). For Harrison (1983,p.64), Bentham also made an important
discovery in his theory of fictions – leading on to the work of Russell and
Carnap. According to Quine, Bentham developed the thesis ‘that to explain
a term we do not need to compose a synonymous phrase. We need only
explain all sentences in which we propose to use the term’ (Quine 1995,
pp. 6–7). Quine calls this procedure ‘contextual definition’ and links it with
developments made by Boole.
The point of making these observations is not to establish Bentham or
his nephew, George, as great logicians, but to suggest that the work being
done by Bentham at Ford Abbey was both serious and philosophical. Its
importance has been obscured by the fact that however much it might have
contributed to analytical philosophy in the twentieth century, analytical
philosophy itself turned away from its roots in the wider Epicurean tradi-
tion to provide a narrower conception of philosophy, and perhaps one more
focused on logic. Thus, while Ogden could see a wider application for Ben-
tham’s philosophy in linguistics and in psychology, analytical philosophers
were content simply to acknowledge Bentham as an important but distant
ancestor (see Wisdom 1931).
Within the broad tradition in which Bentham was working, he provided
an important philosophical legacy for James and J. S. Mill, but it was not
taken up by them and certainly not by J. S. Mill. As we shall see, the only
reason for this explicit neglect, when the signs of his acceptance of many
of Bentham’s views are everywhere, may well be based on his loyalty to his
father and to his father’s reputation as a philosopher. James Mill became an
important figure in Bentham’s life at this time, and the presence of father
and son may have compensated for the departure of Samuel Bentham to
make his home in France (see M. S. Bentham 1862,pp.308ff.). Bentham
would not see him until 1827, and given their ages in 1814 (Jeremy was 66
and Samuel was 57), they might never have met again.
273