IV. BLACKSTONE, BENTHAM, AND THE LAW

A learned jurist thought “the publication of Blackstone’s Commentaries … in some ways the most notable event in the history of the law.”53 This is patriotic, but it serves to point the reverential awe with which English-speaking students, till our time, approached the Commentaries on the Laws of England which William Blackstone published in four volumes and two thousand pages in 1765-69. Despite or because of its size it was acclaimed as a monument of learning and wisdom; every lord had it in his library, and George III took it to his heart as the apotheosis of kings.

Blackstone was the son of a London tradesman rich enough to send him through Oxford and the Middle Temple to the practice of law. His lectures at Oxford (1753-63) reduced the contradictions and absurdities of the statutes to some order and logic, and expounded the result with clarity and charm. In 1761 he was elected to Parliament; in 1763 he was appointed solicitor general to Queen Charlotte; in 1770 he began service as judge in the Court of Common Pleas. Addicted to study and hating locomotion, he sank into a gentle but premature decomposition, and died in 1780 at the age of fifty-seven.

His opus maximum had the virtues of his lectures: logical arrangement, lucid exposition, and a gracious style. Jeremy Bentham, his passionate opponent, praised him as the man who had “taught jurisprudence to speak the language of the scholar and the gentleman, put polish on that rugged science, cleansed her from the dust and cobwebs of the office.”54 Blackstone defined law as “a rule of action dictated by some superior being”;55 he had an ideal and static conception of law as serving in a society the same function that the laws of nature served in the world, and he tended to think of the laws of England as rivaling the laws of gravitation in their majesty and eternity.

He loved England and Christianity just as he found them, and would hardly admit any flaw in either. He was more orthodox than Bishop Warburton, and more royalist than George III. “The King of England is not only the chief, but properly the sole, magistrate of the nation. … He may reject what bills, may make what treaties, … may pardon what offenses he pleases, unless the Constitution hath expressly, or by evident consequence, laid down some exception or boundary.”56 Blackstone placed the king above Parliament and above the law; the king “is not only incapable of doing wrong, but even of thinking wrong”—by which, however, Blackstone meant that there was no law above the king by which the king could be judged. But he warmed the pride of all England when he defined “the absolute rights of every Englishman: the right of personal security, the right of personal liberty, and the right of private property.”57

Blackstone’s conception of English law as a system permanently valid because ultimately grounded on the Bible as the word of God eminently pleased his time, but it discouraged the growth of English jurisprudence and the reform of penology and prisons; it is to his credit, however, that he applauded the efforts of John Howard to ameliorate the conditions in British jails.58

Howard took Christianity not as a system of law but as an appeal to the heart. Appointed sheriff at Bedford (1773), he was appalled by conditions in the local prison. The jailer and his aides received no salary; they lived on fees exacted from the prisoners. No man was released, after serving his term, until he had paid all fees required of him; many men remained incarcerated for months after the court had found them innocent. Traveling from county to county, Howard found similar abuses, or worse. Defaulting debtors and first offenders were thrown in with hardened criminals. Most prisoners wore chains, heavy or light according to the fee they paid. Each prisoner was allowed one- or twopenceworth of bread daily; for additional food he had to pay, or rely on relatives or friends. Three pints of water were allowed to each inmate daily for drinking and washing. No heat was provided in winter, and there was little ventilation in summer. The stench in these dungeons was so strong that it clung to Howard’s clothes long after he emerged. “Prison fever” and other diseases killed many prisoners; some died of slow starvation.59 At Newgate Gaol in London fifteen to twenty men lived in a room twenty-three by twenty-five feet.

In 1774 Howard presented to Parliament his report on fifty prisons visited; the House of Commons passed an act requiring hygienic reforms in the jails, providing salaries for the jailers, and freeing all prisoners against whom the grand jury had failed to find a true bill. In 1775-76 Howard visited Continental prisons. He found those of Holland best equipped and relatively humane; among the worst were those in Hanover, ruled by George III. The publication of Howard’s book The State of the Prisons in England and Wales , … and an Account of Some Foreign Prisons (1777) stirred the sleeping conscience of the nation. Parliament voted funds for two “penitentiary houses,” in which an attempt was made to redeem prisoners by individual treatment, supervised labor, and religious instruction. Howard resumed his travels, and reported his findings in new editions of his book. In 1789 he toured Russia; at Kherson he caught camp fever, and died (1790). His efforts for reform produced only modest results. The act of 1774 was ignored by most jailers and justices. Descriptions of London prisons in 1804 and 1817 showed no improvement since Howard’s time; “perhaps the condition of things had become worse instead of better.”60 Reform had to wait for Dickens’ account of the New Marshalsea Prison in Little Dorrit (1855).

Jeremy Bentham’s diverse labors for reform in law, government, and education fall mostly after this period, but his Fragment on Government (1776) belongs here, as being principally a criticism of Blackstone. He scorned the jurist’s worship of tradition; he pointed out that “whatever now is established, once was innovation”;61 present conservatism is reverence of past radicalism; consequently those who advocate reforms are quite as patriotic as those who tremble at the thought of change. “Under a government of laws, what is the motto of a good citizen? To obey punctually, to censure freely .”62 Bentham rejected Blackstone’s view of royal sovereignty; a good government will distribute powers, encourage each of these to check the others, and allow freedom of the press, of peaceable assemblage and opposition. In the last resort, revolution may do less damage to the state than a dulling submission to tyranny.63 This little book was published in the year of the American Declaration of Independence.

In the same essay Bentham expounded that “greatest-happiness principle” to which John Stuart Mill in 1863 gave the name “utilitarianism.” “It is the greatest happiness of the greatest number that is the measure of right and wrong.”64 By this “principle of utility” all moral and political proposals and practices should be judged, for “the business of government is to promote the happiness of society.”65 Bentham derived this “principle of happiness” from Helvétius, Hume, Priestley, and Beccaria,66 and his general viewpoint was formed from reading the philosophes .67

In 1780 he wrote, and in 1789 he published, An Introduction to the Principles of Morals and Legislation , giving a more detailed and philosophical exposition of his ideas. He reduced all conscious action to the desire for pleasure or the fear of pain, and he defined happiness as “the enjoyment of pleasure, security from pain.”68 This seemed to justify complete selfishness, but Bentham applied the happiness principle to individuals as well as states: did the individual’s action make for his greatest happiness? In the long run, he thought, the individual obtains most pleasure or least pain by being just to his fellow men.

Bentham practiced what he preached, for he devoted his life to a long series of reform proposals: universal literate male adult suffrage, secret ballot, annual Parliaments, free trade, public sanitation, the amelioration of prisons, the cleansing of the judiciary, the abolition of the House of Lords, the modernization and codification of the law in terms intelligible to laymen, and the extension of international law (Bentham invented this term69). Many of these reforms were effected in the nineteenth century, largely through the efforts of “utilitarians” and “philosophical radicals” like James and John Stuart Mill, David Ricardo, and George Grote.

Bentham was the last voice of the Enlightenment, the bridge between the liberating thought of the eighteenth century and the reforms of the nineteenth. Even more than the philosophes he trusted to reason. He remained a bachelor to the end of his life, though he was one of the most lovable of men. When he died (June 6, 1832), aged eighty-four, he willed that his body should be dissected in the presence of his friends. It was, and the skeleton is still preserved in University College, London, wearing Bentham’s habitual dress.70 On the day after his death the historic Reform Bill that embodied many of his proposals was signed by the King.

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