Utilitarian Philosophy and Politics: Bentham's Later Years

Utilitarian Philosophy and Politics

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Utilitarian Philosophy and Politics Bentham’s Later Years

James E. Crimmins

Continuum International Publishing Group The Tower Building 80 Maiden Lane 11 York Road Suite 704 London SE1 7NX New York NY 10038 © James E. Crimmins, 2011 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-0-8264-7601-2 Library of Congress Cataloging-in-Publication Data Crimmins, James E., 1953— Utilitarian philosophy and politics : Bentham’s later years / James E. Crimmins. p. cm. Includes bibliographical references and index. ISBN 978-0-8264-7601-2 1. Political science—Philosophy. 2. Utilitarianism. I. Title. JA71.C733 2011 320.01—dc22 2010051889

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For Johanne, J.C. and Dylan

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Contents

Preface Abbreviations

viii x

Introduction

1

Chapter 1 Philosophic Radicalism and the Westminster–Edinburgh Debate

25

Chapter 2 History of the Utility Principle and ‘the Latest Improvements’

50

Chapter 3 Contra Hume

67

Chapter 4 The Structure and Application of Utilitarian Theory

92

Chapter 5 Republicanism

117

Chapter 6 Monarchy and Representative Democracy

134

Chapter 7 King of the Radicals

157

Notes Bibliography Index

179 226 237

Preface

It is an established maxim that a philosophical doctrine is not judged at all until it is judged in its final form. Producing Bentham’s writings in an authoritative edition has for long been the task of the Bentham Project based at University College London. Only when the projected seventy volumes of The Collected Works of Jeremy Bentham are complete will scholars be certain they are able to tackle his ideas and their application in their final form. For the time being we must make do with the twenty-seven volumes already published, including twelve volumes of correspondence. At the time of going to press the final volumes of correspondence have yet to appear, including the letters from July 1828 to Bentham’s death (6 June 1832). I have made use of the drafts of these letters compiled at the Bentham Project, for the supply of which I am grateful to Philip Schofield, the Director of the Project. Where possible I have given references for these letters to Bowring’s edition or other printed sources; where correspondence only exists in manuscript, I have simply given the dates of the letters, noting that they will eventually be found in volume 13 of the correspondence. In presenting Bentham’s ideas in this study, I have supplemented the Collected Works volumes with manuscript material drawn from the Bentham Papers held at University College and the British Library, and with texts not in the Collected Works but published by Bentham or an editor working under his supervision or with his approval, many of which are included in Bowring’s edition of The Works of Jeremy Bentham (1838–43). Most notably, this includes Plan of Parliamentary Reform and parts of Constitutional Code. In addition, I have made occasional use of Richard Hildreth’s re-translation from French into English of the first two volumes of Dumont’s redaction Traités de législation civile et pénale, a mix of Bentham’s early writings and hitherto unpublished manuscripts. As a study of Bentham’s philosophy and politics in his later years, the aim of this book is to contribute to an understanding of his life’s work, recognizing that any pretensions to definitive interpretation must rightly be scorned. The book is part intellectual biography, in which the chronology and events of Bentham’s later life are woven together with his intellectual and political engagements, and part history of ideas, in which ideas are situated in their intellectual and political contexts. The chapters are a sequence of related essays on aspects of Bentham’s philosophy and politics over the last twenty

Preface

ix

years of his life, with occasional connections made to writings from earlier parts of his career to indicate where continuities and change occur, or to explicate a later idea or reformulation of an idea. The deployment of fragments, like shards of a shattered mirror, to reflect elements of the man and his ideas leaves us a long way short of the reconstruction of the entire mirror, a task beyond the scope of this study. Nonetheless, the individual fragments – contextualized, analysed and put in their appropriate place – reveal a good deal about Bentham in the later years of a phenomenally productive and absorbing life. The Bentham we see reflected in the shards of the mirror is the architect of a grand and all-encompassing system of philosophy and undisputed head of the ‘sect of utilitarians’, a democratic republican who assumed the title ‘King of the Radicals’, and a codifier of the law who basked in the reputation as ‘Legislator of the World’. For research assistance, I thank Chantal Phillips, Isaac Quinn Dupont and my former students George Hamzo and David Muncaster. The Social Sciences and Humanities Research Council of Canada and Huron University College provided generous funding for the project. Parts of the book have been presented as papers at scholarly venues over the years, including conferences of the International Society for Utilitarian Studies, the Canadian Society for Eighteenth-Century Studies, the Canadian Political Science Association, the Mid-West Political Science Association and the Association for Political Theory. In every instance my ideas benefited from the gracious commentary of scholars attending these meetings. In addition, I have gained immensely from the writings and conversation of many notable Bentham scholars over the years, including Jimmy Burns, Doug Long, Philip Schofield, David Lieberman, Paul Kelly, Michael Quinn and the late John Dinwiddy. As is evident in the following pages, Fred Rosen’s work has played a particularly significant role in shaping my own understanding of Bentham’s ideas. Consequently, the book is part original research and part synthesis of recent scholarship on Bentham and utilitarianism. In certain chapters I have drawn upon previously published work, notably ‘Bentham’s Political Radicalism Reexamined’, Journal of the History of Ideas, 55/2 (1994), pp. 259–81; ‘Jeremy Bentham and Daniel O’Connell: Their Correspondence and Radical Alliance, 1828–31’, The Historical Journal, 40/2 (1997), pp. 359–87; and On Bentham (Belmont, CA: Wadsworth, 2004), Ch. 6. Finally, it virtually goes without saying that this study could not have been completed without the support of my dear companion and partner in life Johanne Lapensée-Crimmins, and our two dazzling sons, JC and Dylan. James E. Crimmins Huron University College The University of Western Ontario 4 September 2010

Abbreviations

AU (LV) AU (SV) BL Add. MSS. Bowr. Code Collected Works Comm. and FG Corr.

CW

Deon. FPP IPML LOW OAM O’Connell Corr. ODNB

RRR

‘Article on Utilitarianism’, long version, in Deontology (CW ). ‘Article on Utilitarianism’, short version, in Deontology (CW ). British Library Series of Additional Manuscripts. The Works of Jeremy Bentham, Published under the superintendence of his executor, John Bowring, 11 vols. (Edinburgh 1838–43). Constitutional Code, vol. 1 (CW ). Collected Works of John Stuart Mill, Gen. Ed. John M. Robson (Toronto: University of Toronto Press, 1963–91). A Comment on the Commentaries and A Fragment on Government (CW ). The Correspondence of Jeremy Bentham (CW ): vols. 1–2, 1752–76, 1777–80, ed. T. L. S. Sprigge (1968); vol. 3, 1781–8, ed. I. R. Christie (1971); vols. 4–5, 1788–93, 1794–7, ed. A. T. Milne (1981); vols. 6–7, 1798–1801, 1802–8, ed. J. R. Dinwiddy (1984, 1988); vols. 8–10, 1809–16, 1817–20, 1820–1, ed. S. R. Conway (1988, 1989); vol. 11, 1822–4, ed. C. Fuller (2000); and vol. 12, 1824–8, eds. L. O’Sullivan and C. Fuller (2006). The Collected Works of Jeremy Bentham, General Editors: J. H. Burns, J. R. Dinwiddy, F. Rosen, T. P. Schofield (London: Athlone Press; Oxford: Clarendon Press, 1968–). Deontology together with A Table of the Springs of Action and the Article on Utilitarianism (CW ). First Principles Preparatory to Constitutional Code (CW ). An Introduction to the Principles of Morals and Legislation (CW ). ‘Legislator of the World’: Writings on codification, law, and education (CW ). Official Aptitude Maximised; Expense Minimized (CW ). The Correspondence of Daniel O’Connell, 8 vols, ed. M. R. O’Connell (Dublin: Irish University Press, 1972–80). Oxford Dictionary of National Biography . . . From the earliest times to the year 2000, 61 vols, ed. H. C. G. Matthew and Brian Harrison (Oxford: Oxford University Press, 2004). Rights, Representation, and Reform: Nonsense upon Stilts and other writings on the French Revolution (CW ).

Abbreviations SAM Stark UC ULP

xi

Securities against Misrule and other Constitutional Writings for Tripoli and Greece (CW ). Jeremy Bentham’s Economic Writings, 3 vols, ed. W. Stark (London 1952–4). Bentham Papers at University College London (UC followed by box and page/folio no.). Jack Lively and John Rees (eds), Utilitarian Logic and Politics: James Mill’s ‘Essay on Government’, Macaulay’s critique and the ensuing debate (Oxford 1978).

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Introduction

For a philosopher so single-mindedly wedded to ‘one simple principle’, to steal John Stuart Mill’s enormously ambiguous phrase, and to an all- encompassing project – to detail a complete code of laws or pannomion (from the Greek, meaning ‘all the laws’) – it is a surprise to find Bentham employing tentative titles to describe his earliest writings, such as preparatory, fragmentary, introductory and so on. Nevertheless, in these writings he established the foundations of a philosophy from which he drew direction for the rest of his life. The way ahead was to be mapped in numerous blueprints over the years, and the inter- connectivity of the elements of the structure refined and repeated many times. Yet at the end of his life the pannomial edifice, detailed in a bewildering range of manuscript drafts and texts, some printed but not published, others produced with the aid of dutiful disciples, remained under construction. There are few other significant philosophers whose work has come down to us in such a muddled and perplexing form. Added to which, a further challenge in piecing together the elements of Bentham’s philosophy is the arresting consideration that its foundational principle is only fully understood once it is contextualized within the framework of the supporting principles he devised to guide its application in practice. Just as it makes sense to situate Mill’s ‘harm principle’ in the context of a mesh of connected liberal principles (individual freedom, equal rights, individuality, toleration, limited government and so on),1 so the utility principle finds its complete meaning in Bentham’s thought in relation to the subsidiary principles, subordinate ends and practical rules that collectively define his utilitarianism. This was a work in progress throughout his life, and several of its dimensions were developed only in his later years. The context of Bentham’s thought also matters a great deal in understanding his ideas and fathoming the intentions that inform his writings. If Voltaire’s eighty-four years were filled with a ferment of ideas and a frenzy of battles against institutions and philosophical enemies, a life of literary fame characterized by polemical action and constant movement in the pursuit of personal freedom, 2 Bentham’s similar life’s span was that of a philosopher who lived a generally quiet, regimented and industrious life, who wrote a great deal of significance on a wide range of topics, albeit nowhere near as much in finished form as the prolific Frenchman he so admired and wished to emulate. On the other hand, however eventful Voltaire’s life may have been, Bentham’s

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years were lived out in relation to a sequence of momentous events virtually unparalleled in the experience of any other modern philosopher. His thought developed in a rapidly changing world, a period of sustained demographic growth and urbanization, major economic and industrial improvements and political upheaval. Throughout the period pressures were building for social reform, embracing penal law and prisons, the poor law, improvements in sanitation and other health matters and the expansion of education. In Britain, the period was marked by industrial unrest, Corn Law protests, the demands of workers for the repeal of the Combination Laws (achieved in 1824–5) and the popular agitation for political reform. Elsewhere, in Europe and South America revolutionary movements were in the business of displacing the old order and erecting new institutions based on liberal principles. Bentham took an ardent interest in all this, but especially kept a weathered eye on the gusting winds of change that stamped their signature on an extended period of political instability in Britain lasting almost his entire lifetime. Following the fight for ‘Wilkes and liberty’ and the revolutions in America and France, demands for parliamentary reform increased dramatically, followed by the repression of radicals and moderate reformers alike in the aftermath of the Reign of Terror and the beginning of war with France. Soon after, with French encouragement the United Irishman rose up in futile revolt, resulting in the abolition of the Dublin parliament and increased tensions in British government over the continuing exclusion of Dissenters and Catholics from public life. The Catholic Question led to Pitt’s resignation in 1801 and Grenville’s in 1807, the latter causing a good deal of sabre rattling among reformers, like Bentham,3 who were warmed by the abolition of the slave trade and bitterly disappointed that further substantial reforms would not be forthcoming from this most unusual ministry of ‘all the talents’. The political stars in this arrangement included Pitt’s reformist bête noire Charles James Fox as Secretary of State for Foreign Affairs, Earl Spencer as Home Secretary, Lord Sidmouth as Lord Privy Seal, Bentham’s intimate friend Samuel Romilly as Solicitor-General and the son of his patron, the young Marquis of Lansdowne, as Chancellor of the Exchequer – an odd mix of Bentham’s friends and foes. Spencer was the main culprit in the Panopticon affair, and Bentham even suspected Grenville of some unspecified act of duplicity, but he nevertheless thought of the administration as ‘our Ministry’ and, with Romilly’s support, had reason to believe it would adopt his proposals for judicial reform. When the King forced Grenville out, an irate Bentham hoped the Commons would insist on an immediate reinstatement to head off the return of Portland and the enemies of reform, but the King held fast.4 Demands for parliamentary reform continued during a prolonged period of political upheaval, characterized by mass meetings, riot, repression, the outrage of Peterloo in 1819, and culminating in the repeal of the Test and Corporation Acts in 1828, the Catholic Relief Act 1829 and the Great Reform Act 1832.

Introduction

3

These events framed the development of Bentham’s ideas and provide the backdrop to the many questions for which he sought answers in the complex dimensions of his philosophy. In this respect the unity of theory and practice, the ‘praxis’ which embraced his philosophical engagement with the world, was central to his thought.5 He offered proposals based on utilitarian principles, frequently addressed to monarchs, politicians and governments at home and abroad, but also at times directed to the public at large, an ill-defined but increasingly crucial arena of debate and information dissemination that was to assume a quasi-constitutional status in his later democratic theory. By this measure Bentham was far from being ‘out of phase with political developments all his life’, as a noted historian claimed,6 and far from the ‘leather-tongued oracle’ of Marx’s myopic judgement. This was the Bentham who issued tracts designed to appeal to those considering reform, who urged his followers to translate his ideas into practice and who built liberal alliances with reformers and revolutionaries across Europe and the New World of the Americas.

1. Early Philosophy and Politics There is a sequence of phases discernible in the progress of Bentham’s political thought, beginning with his discovery of the utility principle and related concepts in the writings of Hume, Helvétius and Beccaria in 1769, and his critique of William Blackstone in A Comment on the Commentaries and A Fragment on Government (1776). An Introduction to the Principles of Morals and Legislation (IPML, largely printed 1780, published 1789) and Of the Limits of the Penal Branch of Jurisprudence followed, and were intended as a statement of first principles and the groundwork for a penal code.7 These writings constituted the first stage in the plan to produce a complete code of laws based on the utility principle. The resultant code was to be ‘all comprehensive’, logically complete in structure, with an ‘interwoven rationale’ or statement of supporting reasons for each enactment. Its core elements would be the sub-codes of penal, civil and procedural law, but also include international law and indirect law, to which Bentham later added the laws describing the form, powers and responsibilities of governmental institutions. In sum, as he was later to say, it was a code designed for all countries ‘professing liberal opinions’.8 The beginning of the second phase can be pegged to Bentham’s introduction to the Shelburne circle in 1781, and encompasses the development of the panopticon plan in Russia 1786–7 and Bentham’s reaction to events in France before and during the Revolution. It was in this context that he applied his pen to a critique of Pitt’s foreign policy towards Russia and France in a series of letters in the Public Advertiser under the nom-de-plume ‘Anti-Machiavel’.9 This was also the context in which he first developed the utilitarian logic of democracy, though he stopped short of publicly advocating parliamentary reform and was

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very far from republicanism. There were a number of reasons why Bentham chose not to pursue the democratization of Britain’s political institutions in the 1790s. In part it was a response to the horrors of the Terror in France, and the fact that Pitt’s security measures in England, including the Treason Act, the Seditious Meeting Act and the suspension of Habeus Corpus, made it precarious to engage in reform activities. Bentham’s decision to remain quiet, to suppress his emerging radicalism, also stemmed from the need to curry favour in official circles for the panopticon penitentiary.10 In the event, the mandate of the Penitentiary Act 1794 was not fulfilled, and the project was effectively abandoned in 1802 and compensation paid to Bentham in 1812. The intervening years, the third phase of Bentham’s political thought, were devoted to poor law reform, economic and financial questions, the rules of evidence and the reform of judicial administration, but the government’s betrayal over the panopticon niggled at him for many years, generating a deep-seated scepticism of the motives of those in positions of power and influence. Added to his own first-hand experience of the maneuvres of aristocratic landowners determined to prevent the erection of a prison in the vicinity of their London estates, there was also a suggestion that the King himself, angered by Bentham’s ‘Anti-Machiavel’ letters and disturbed by rumours of his Jacobinism, may have directly intervened to thwart the project. In Bentham’s mind, such actions were representative of the ‘sinister interests’ ranged against beneficial schemes of reform. The fourth phase of Bentham’s political development began in 1809 when, with the encouragement of James Mill, he returned to his earlier manuscripts on political reform and refined and significantly expanded his critique to encompass the forms of ‘influence’ at work in British political institutions. The 1809–10 drafts provided the outlines for his first public statement in support of representative democracy in Plan of Parliamentary (1817).11 1809 was not a good year to publish such ideas. Following an ancient precedent of Jewish law, it was George III’s jubilee in the 49th year of his reign, and the old King was at the height of his popularity. A government address distributed at the official celebrations taking place across Britain on 25 October 1809, described George as ‘The father of his people’ who had preserved the country from ‘the dreadful evils’ experienced in a Europe ravaged by Napoleon and the French, including the unseating of lawful monarchs from their thrones. The address warned of ‘the efforts that were then made by wicked and designing men, at home and abroad, to introduce . . . [these evils] into England’.12 Reason enough for caution on Bentham’s part, yet it was at precisely this moment he chose to examine the various forms of corruption and political misrule traceable to the ‘sinister influence’ of the monarch and the aristocracy, and developed reform proposals designed to produce a ‘democratical ascendancy’ to counter the abuse of power.13

Introduction

5

The timing of this turn to radicalism seems to have resulted from the convergence of a number of events, the fall of the Grenville administration in March 1807, Bentham’s acquaintance with Mill the following year and the publication of various reports in 1809 by the Commons’ Select Committee on Public Expenditure, detailing the exorbitant amounts of public money disbursed in support of sinecure posts and pensions, providing hard evidence of the extent of corruption in government.14 In the years following, in addition to Plan of Parliamentary Reform, Bentham published a far-reaching indictment of the doctrines and educational practices of the established church and outlined a strategy for its ‘euthanasia’ in Church-of-Englandism and its Catechism Examined (1818),15 the ‘Radical Reform Bill’ (1819) in which he summarized the radical reforms needed in a draft bill,16 and a variety of incomplete and unpublished essays on government and political reform.17 In the fi fth and final phase, Bentham revisited aspects of his utilitarian philosophy and sought to define his pre-eminent place in the utilitarian tradition in the ‘Article on Utilitarianism’ (1829).18 However, more often than not his thoughts were focused on constitutional questions, and his approach to constitutional theory became vastly more expansive, encompassing administrative arrangements and the formal and informal arrangements of a viable democracy – in short, the ways and means of limiting and controlling political authority or, as Bentham termed them, ‘securities against misrule’. Codification Proposal, addressed . . . to all nations professing liberal opinions (1822) was intended to advertise his credentials as a codifier of law to politicians and statesmen around the world, first by setting down the utilitarian principles of an ‘allcomprehensive’ code, and second by providing testimonials to his aptitude for the task of codification.19 The testimonials came from far and wide between the years 1814 and 1822, in the form of extracts from speeches, requests for information, and letters of support, from the likes of Burdett and Brougham in England, government ministers and representatives of the Cortes in Spain and Portugal, Italian and French liberals, state governors and other political representatives in the ‘Anglo-American States’, Alexander ‘Emperor of all the Russias’, and Prince Czartoriski of Poland. In the years following Bentham produced draft upon draft of elements of the Constitutional Code, only the first of three volumes of which was published during his lifetime. In these writings he unequivocally pinned his colours to the republican cause. It was during this period, too, he became politically active, assuming a leadership role in the movement for law reform and political reform, and embroiled in the politics of constructing and holding together a disparate alliance of radicals and Whig reformers, both inside and outside parliament. There are several threads of thought and engagement in the earlier phases of Bentham’s career that help illuminate his later life and work. When he first formulated the basic ideas of his utilitarianism they were not then directed to

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‘all nations professing liberal opinions’. Rather his ambition (in emulation of the French philosophes) was to see his ideas put to use in the hands of Europe’s benevolent monarchs, notably Catherine II of Russia. From February 1786 he spent nearly a year in Russia at his brother Samuel’s side, dreaming of assisting Catherine in her scheme to overhaul the Russian legal system.20 He was effusive in his praise for Catherine’s Instructions (1767), an outline for a new civil and criminal code. Never before had sovereignty appeared before men with such dignity, he enthused. Here was a monarch, he thought, unique in her willingness to restrict her own power by laws setting limits to sovereignty.21 Regrettably, Bentham failed to capitalize on the possibility of an audience with the Empress when the opportunity arose. In reality, he expected too much. Catherine was always more observant of her image as an enlightened ruler than actually determined to put enlightened principles into practice, and after the French Revolution, like other European monarchs, she became far less concerned with the liberty of her subjects and more interested in maintaining order. Still, the impression Catherine made on Bentham as a codifier of the law was difficult to shake, and in 1815 he was still hoping to persuade Catherine’s grandson, the Emperor Alexander, to take on board his ideas for codifying the laws of Russia.22 As was frequently the case, nothing came of the offer, but it underscores the fact that during a time when he was moving further down the path to republicanism he had not given up entirely on the idea of benevolent rulers being cajoled into engaging his services as a codifier of laws. As late as 1827, when his reputation as a democratic republican was widely known, he thought William of the Netherlands might be persuaded to adopt his ideas for reforming the judiciary and freeing it from the dead hand of ‘Judge-made alias Common Law alias Unwritten Law’.23 Bentham’s various attempts to exert an influence at the highest levels of government illustrate his commitment to encouraging and working with politicians and other public figures to achieve reform, regardless of political persuasion or position. His experience dealing with the Pitt administration over the panopticon may have left him deeply sceptical of the motives of politicians, but in his later years he perceived in Robert Peel, Home Secretary in the Liverpool administration, a sincere supporter of law reform who lacked only the appropriate guidance from the premier legal philosopher of the day. From 1825 he was in regular contact with Peel, pressing the Tory minister to take on board his suggestions for reforms to the salaries for police magistrates and judges, the system of legal fees, juries, property law and anatomical research. When he saw an opening he pursued it relentlessly. Early on, however, when he had convinced himself that Europe’s benevolent royalty would be open to the adoption of plans for improvement, he had little confidence this would be the case in Britain. Bentham’s views on the institution of monarchy and on politics in general began to change following his introduction to Lord Shelburne (from 1784

Introduction

7

Lord Lansdowne). Shelburne had served as Secretary of State in the 1760s, was an active member of the opposition 1768–82 (when he opposed the war in America and advocated independence for the colonies), took office under Rockingham in 1782 and succeeded him as Prime Minister from July 1782 to February 1783, one of the shortest terms in the history of that office. Defeated by the Fox–North coalition, this put an end to Shelburne’s ministerial career, though he remained at the centre of British politics for the next ten years. When Bentham entered the Shelburne circle, he entered a world of politics and society he could never have reached on his own, and many of the subsequent contacts he made at home and abroad were a direct result of his connection with the Earl. Shelburne laid great store in men of new ideas, including troublesome dissenters like Richard Price, and counted among his intellectual friends John Horne Tooke, Priestley, Franklin, Turgot, Morellet, Mirabeau, Holbach and Malesherbes. Such a formidable array of intellectual acquaintances could not help but excite Bentham’s interest and ambitions and, if he harboured any political misgivings about allying himself with the political renegade Shelburne had become, it was more than off-set by the prospect of gaining access to the sort of intellectual circles with which he was associated. A less congenial but no less fascinating side of Shelburne’s world were the political figures Bentham encountered at the noble lord’s Bowood estates in Wiltshire. It was there he made the acquaintance of John Dunning (later Baron Ashburton), one of the most brilliant barristers of the age and one of Shelburne’s chief political spokesmen in the House of Commons. In a letter to Ashburton in the summer of 1782 Bentham gave a detailed account of his writings on the law up to this point, hoping the Baron would comment on the proofs of IPML, but disappointingly received no reply.24 He also encountered the young William Pitt, with whom he played chess and was not much impressed. Later, Pitt came to epitomize for Bentham the wilful neglect of the only proper objective of government – the greatest happiness – but he could not then have guessed the troubling presence Pitt was to assume in his life, when the panopticon proposal stumbled from one setback to another. The experience of meeting the Earl of Camden, the former Chief Justice of the Court of Common Pleas and later an ally of Pitt’s, was troubling. The Earl exhibited a snobbish and condescending attitude towards the lowly Bentham, and showed no interest in his writings on the law. He also met Alexander Wedderburn, Baron Loughborough, then Attorney General and later Lord Chancellor in Pitt’s wartime administration, but the haughty lord far from awed Bentham. Nevertheless, he later acknowledged Wedderburn’s shrewdness in condemning the utility principle as ‘dangerous’ to all established governments.25 Initially enthralled in the midst of this superior breeding, Bentham increasingly came to distrust Shelburne’s noble connections, until in later life he declared open hostility towards England’s ruling ranks, the ruling few who prosecuted the ‘sinister interests’ of their class at the cost of the ‘universal interest’.

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Utilitarian Philosophy and Politics

Shelburne’s patronage had a bearing on Bentham’s later career in other ways. First, as their relationship developed, Shelburne urged him to expand his remit and turn his attentions to international law, foreign policy and constitutional law.26 The first products of this encouragement were the ‘AntiMachiavel’ letters and ‘Principles of International Law’, the latter written 1786–9 from the perspective of ‘a citizen of the world’ concerned for the utility of all nations, and containing, as was then in philosophical vogue, ‘A Plan for Perpetual Peace’.27 By ‘constitutional law’ Shelburne meant the fundamental political institutions of the state, but this was not a subject Bentham had entirely overlooked in previous writings. In A Fragment and its parent text A Comment, he had addressed issues related to the foundations of government and the relationship between the individual and the state. In Limits, too, he had commented on the relationship between sovereignty and law. The assumption stated in this text, that the sovereign’s motive in adopting a law based upon the principle of utility, can ‘have been no other than the greatest good of the community’, would appear naïve unless we note the immediately following qualifier: ‘it is only in as far as that is the case that these enquiries are calculated or designed to be of any use to him’.28 The caveat left the door open to the view that if existing rulers were not prepared to support projects of improvement, it would be necessary to establish an alternative system of governance that would direct its actions and laws to the benefit of the people. This thought lay behind Bentham’s political writing in 1788–90, first directed at judicial and constitutional matters in France, then at parliamentary reform in England, several of which have only recently appeared in the Collected Works.29 His contributions to reform in France earned him honorary citizenship in the new republic in 1792, along with Mackintosh, Priestley, Paine, Washington, Wilberforce, Wilberforce’s fellow slavery-abolitionist Thomas Clarkson and the Prussian revolutionary Baron von Cloots. This was not the sort of company likely to endear Bentham to Pitt’s reactionary government or to the King, and thereafter, up to the end of his days, he struggled to find acceptance by successive governments for his various reform projects. Second, in the swirl of political discussion in the Shelburne circle Bentham would have heard the Earl and his allies criticizing the King’s stubbornness in resisting the inevitable in America, the archaic nature of his resistance to Catholic emancipation and the extensive patronage of the King and the exorbitance of the Civil List, the latter encapsulated in Dunning’s famous House of Commons motion condemning the influence of the Crown which, so the motion stated, ‘has increased, is increasing and ought to be diminished’. This was the stuff of high politics, experienced by Bentham at a time of acute national crisis, and the role of the King was a central component in understanding the full dimensions of the situation. Such exposure to the day’s most pressing issues of debate had a major impact on Bentham, so much so that he gave serious thought to seeking a seat in Parliament from which he could

Introduction

9

pursue utilitarian reforms. This was not a new thought. Earlier, in 1776, he briefly entertained the idea of marrying one Sarah Stratton in the expectation it would enable him ‘to come into Parliament’.30 Now, years later, he believed that Lansdowne had promised as much, but it was an understanding not shared by his patron.31 In setting out his complaints to Lansdowne, Bentham spoke of a political ambition and an understanding of party politics hitherto absent from his published writings and correspondence. He explained to Lansdowne that, in opposition and lacking the numbers to manage affairs in Parliament, what he needed was ‘the reputation of having under management a set of men whose sentiments carry weight with them, and draw others on their side’.32 This was the way the Marquis had operated previously, when he could count on men of ‘parliamentary influence’ of the ilk of Dunning, Isaac Barré and James Townshend. These were the men of the ‘Shelburne party’, reformers who constituted ‘a party which by mere weight of reputation told in the ballance [sic] against the great aristocracy of the country: it was as they say at Cricket, Shelburne against England’. But now the party was a ‘rump’ of ‘insignificance’, ‘a great head without any body to sustain it’.33 With Bentham by his side in Parliament, Lansdowne’s position would be enhanced, and ‘new principles’ of justice and government pursued.34 Lansdowne’s response was deflating. He explained that he was done with politics, apologized for any misunderstanding that may have occurred, but promised that should the opportunity arise to bring Bentham into Parliament (‘now that I know your wishes’) he would ‘spare no pains for the purpose’.35 Bentham demurred, satisfied that honour had been upheld, but the exchange underscores the importance he attached to reformers, even philosophers, working within Parliament to achieve their ends. Third, through Shelburne, Bentham met two of the most important figures that were to feature in his life. Samuel Romilly, the future Solicitor-General in Grenville’s ministry of ‘all the talents’ and a Whig dedicated to law reform, became a close friend and confidante upon whom he relied for legal advice when considering the publication of potentially libellous, blasphemous, or seditious writings. In return, Bentham supplied Romilly with material for use in the campaign against the harshness of England’s penal law.36 It was Romilly who introduced him to Étienne Dumont, the Genevan who almost single-handedly built Bentham’s international reputation.37 In the winter of 1788–9, Dumont assisted Bentham in correcting the French versions of several of the draft essays he wrote in response to events in France.38 Soon after, he translated the Panopticon; Or the Inspection-House (1791), which was printed by order of the French National Assembly and distributed to its members. Then, in the Summer of 1792, Dumont embarked upon the formidable task of producing a text that would present Bentham’s legal philosophy in a comprehensive form, Traités de législation civil et penale (1802), a pastiche of writings in three volumes assembled from early manuscript drafts and published works.

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Dumont went on to produce four more publications based on Bentham’s writings: Théorie des peines et des récompenses (1811), Tactiques des assemblée législatives, suivi d’un traité des sophismes politiques (1816), Traité des preuves judiciare (1823) and De l’organisation judiciaire et de la codification (1828).39 None of these texts is a straightforward translation, but are commonly called ‘redactions’ or ‘recensions’, either edited from the original manuscripts or combining manuscript material with extracts from published works, substantially rewritten in plainer language, and often divested of the cumbersome detail characteristic of Bentham’s writing. Three thousand copies of the first edition of Traités de législation were distributed,40 and soon after its publication the Emperor Alexander ordered a Russian translation,41 followed by translations (or partial translations) into Spanish, German, Polish, Portuguese and Hungarian,42 with particularly impressive sales in Spain, Portugal and Latin America.43 It is estimated that by 1830, 50,000 copies of Dumont’s texts, primarily the Traités de législation, were sold in Europe, and 40,000 in Spanish translation in Latin America.44 In later life Bentham was able to use this success as a platform from which to promote himself as a potential codifier of the laws in countries near and far. Several of Bentham’s constitutional writings of the 1820s had their origins in the stimulus provided by revolutionary activity in Europe and the Americas. Ultimately, however, his attempts to fulfil the role assigned him by the Guatemalan politician José del Valle – ‘Legislador del mundo’45 – fell short of their initial promise. Nevertheless, this was not the man described in the Quarterly Review whose litany of failed attempts ‘to become the governor of a prison, the enlightener of the world, the legislator of despotic Russia, of republican America, and lastly the head of a chrestomathic school’, cast ‘a misanthropical gloom over his temper’.46 Rather this was the energized reformer who believed that the most important task he could undertake was to produce a comprehensive code of law based on the greatest happiness principle, and to export it piecemeal or in whole to other parts of the world.47 In the fever of activity associated with the endeavour, this was the constitution-maker who could excitedly declare to Francis Burdett that the completed code would be in force in all nations around the globe by the year 2828!48

2. Legislator of the World Bentham’s fame abroad grew exponentially during his later years, as he made contacts in all parts of the globe, from Ireland to India, Russia to North Africa, Greece to South America. Surprisingly, though he was intensely interested in the world beyond the confines of Westminster, he disliked travelling abroad, perhaps the residue of the arduous months he spent in boats and carriages travelling to Russia to join his brother. As a youth of sixteen his father had

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taken him on a trip to Paris, where he visited the tomb of James II, and he returned again four years later, but found pre-revolutionary France a strangely backward country.49 In later life, his only sojourn abroad occurred in 1825 when he returned to France to obtain treatment for a skin problem. While there he renewed an old friendship with the Marquis de Lafayette, who was with Washington at Yorktown when the first British empire received its mortal blow, 50 though he avoided meeting another old acquaintance, Charles-Maurice de Talleyrand-Périgord, the famed French minister with the celebrated knack for political survival. He first met Talleyrand in exile in London in 1792, 51 but thought him ‘the coldest character I ever met with’.52 Nevertheless, they remained in sporadic contact through the following years, and Talleyrand proved his use in helping Dumont find a publisher for the Traités de legislation, which he declared a work of genius, 53 a sentiment with which Napoleon apparently agreed. 54 Despite his reservations about the natural law constructs of its constitution, early on Bentham developed a strong interest in American political institutions, and later fostered friendships with prominent American politicians, intellectuals and reformers, including John Quincy Adams, Edward Livingston, Frances Wright, a host of state governors and legislators and the utilitarians Thomas Cooper and John Neal.55 Several of these contacts were liberally supplied with copies of his publications on penal law, education, religion, constitutional codification and political reform for distribution in the United States. Neal, who lived with Bentham for eighteen months in 1825–6, styled himself as Bentham’s spokesman in America, and published a series of essays on the philosopher and his ideas in The Yankee, the utilitarian journal he edited in 1828–9.56 In addition to Adams, who became president in 1826, Bentham corresponded with presidents Madison and Jackson, offering to assist in the codification of the laws in the United States, again without success. Bentham’s ideas had been circulating in Spain since the first short-lived liberal or constitutional government of 1808–14, 57 and this interest was renewed during the liberal triennium 1820–3.58 In March 1820, the constitution of 1812, abolished by Ferdinand VII in 1814, was restored. Bentham’s first response was to issue a letter to the Morning Chronicle lambasting the decree of the Spanish Cortes requiring an oath of adherence to the new constitution, 59 employing his stock-in-trade arguments published in Swear Not at All (1817).60 In August, however, a report in the El Español Constitucional suggested the new government might invite him ‘to assist in the business of legislation’.61 Bentham jumped at the opportunity to issue a formal codification offer to the Spanish Envoy in London.62 The matter was taken up in the Cortes, where Bentham found a capable advocate in Antonio Puigblanc, for a time Professor of Hebrew and civil law at the University of Alcalá, and translator of several of Bentham’s writings,63 but the hoped for invitation did not materialize. Puigblanc’s attempt to persuade the Cortes to adopt Bentham’s suggestion that it divest itself of its

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colonies in Latin America, to the benefit of both mother country and dependencies, also fell on deaf years.64 Over the next year Bentham remained in contact with several Spanish politicians, including the Conde de Toreno, then president of the Cortes, who had written asking for advice on the penal code drafted by the Committee of Legislation.65 Parts of Bentham’s critical commentary of the draft – contained in a series of letters to Toreno and accompanied by an offer to provide a code of his own making – were translated into Spanish, but little notice seems to have been taken of them.66 Even so, Bentham’s ideas were circulating in other ways. Edward Blaquiere, a disciple since 1813 and then resident in Madrid, put Bentham in touch with José Joaquín de Mora, the editor of the liberal periodical El Constitucional, and Bentham sent him an essay warning against the establishment of an upper house in the Spanish legislature. De Mora translated and published the essay,67 and Blaquiere reported that it had been read before ‘nearly all the Patriotic Societies of Madrid’.68 Subsequently, Bentham was made an ‘Honorary Associate’ by La Sociedad Patriotica de Amigos de la Constitucion. Another conduit for Bentham’s ideas was Toribio Núñez, librarian at the University of Salamanca, who published a two-volume account of utilitarian legal philosophy in 1820,69 and a work on moral and political philosophy the next year substantially based on Bentham’s ideas.70 Soon after, a colleague of Núñez at Salamanca, the law professor Ramón Salas, produced the first Spanish translation of the Traités de législation (1821–2).71 In the autumn of 1820 the Cortes introduced new protectionist customs tariffs, in the main directed at British trade, and passed a law placing restrictions on political meetings. The former led Bentham to draft Observations on the Restrictive and Prohibitory Commercial System (1821), with the motif ‘Leave us alone’ on the title page.72 The law against political meetings was an unjustified interference with ‘free discussion’, and Bentham concluded that a legislature that could pass such a law was unlikely to extend an invitation to codify its laws to such a well-known advocate of political liberties.73 The arrest and imprisonment of De Mora in December 1820, allegedly for attending two illegal political meetings, and the prosecution of a newspaper editor for critical comments on the Madrid police service underscored the hopelessness of the situation,74 and spurred Bentham to write On the Liberty of the Press, and Public Discussion (1821). The attack on freedom of the press, ‘the almost only remaining check to arbitrary power’, and the law against political meetings were ‘alarming symptoms’ of the tendency to tyrannical government, he wrote.75 With the restoration of absolutist government in 1823 all hope of law reform ended in Spain, and in the new climate of reaction José Vidal, a Dominican theologian at the University of Valencia, launched a scathing attack on Salas’ edition of the Traités de législation.76 By then, however, Bentham’s attention had shifted to other parts of the Spanish world, where the prospects for codification appeared brighter.

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In Chile, Andrés Bello used Salas’ translation of the Traités de législation as the basic text for the course on legislation he taught at the Colegio de Santiago.77 Pedro Alcántara de Somellera, professor of civil law at the University of Buenos Aires, also based his teaching and legal writing on the same work.78 In 1825 Francisco de Paula Santander, the vice-president of Gran Columbia (1821–8, and later president of New Grenada 1832–7), decreed that the work be required reading for all law students in the new republic. Bentham had already been in contact with the revolutionary Bernadino Rivadavia, who was in various places in Europe 1814–20 to solicit support for the emerging Latin American states in their revolt against Spanish rule. When Rivadavia returned to hold ministerial office in Buenos Aires he introduced a number of legal reforms, the Benthamic character of which he vouchsafed in a letter in August 1822. He also sent Bentham a copy of the guidelines governing legislative procedure he put together for the Chamber of Deputies in Buenos Aires, which he based on Dumont’s edition of the Tactiques de assemblée legislatives.79 Rivadavia went on to become the first president of the United Provinces of the Rio de la Plata in 1826, but the expected invitation to Bentham to codify the laws of the new republic was not issued. His disappointment may have been eased when Del Valle, then a member of the provisional government of Central America, wrote requesting his aid in drawing up a civil code for Guatemala.80 An exchange of books between the two followed, but again Bentham was disappointed not to be asked to provide his own version of a code of laws for the new state.81 Simón Bolívar was another promising contact in the former Spanish colonies. During fi fteen years of war, Bolívar liberated much of South America from Spanish rule, territories which now constitute the countries of Venezuela, Columbia, Panama (then part of Columbia), Ecuador, Bolivia and Peru. He became president of the Republic of Columbia (then consisting of Venezuela and New Grenada, to which he later added Bolivia). Lionized as the ‘Liberator’, eloquent in his liberalism and generous to his friends, Bolívar was a ruthless revolutionary, who resorted to cold-blooded slaughter to instil fear in his enemies and demonstrate his strength to potential allies. Despite his declared republicanism, he believed a strong government was necessary to avoid civil war in the newly liberated colonies, and to limit the anarchy that would follow reforms such as the abolition of slavery, a cause to which he committed himself early in his career.82 Bolívar had visited Bentham’s home in Queen Square Place in 1810, where he met James Mill but not Bentham, who regretted the missed opportunity when Bolívar took a leading role in the revolution in South America.83 It was to be another nine years before he wrote to the newly dubbed ‘Liberator’, and three more years before Bolívar replied, declaring himself a disciple of ‘the Geometrician of Legislation’. They continued to correspond, raising Bentham’s hopes that the liberal principles initially established in Columbia would survive under Bolívar’s leadership.84 In a letter of August 1825 Bentham

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wrote summarizing the state of his work on the constitutional code and sent several extracts in manuscript form, together with a Spanish translation of ‘Leading Principles of a Constitutional Code, for any state’, hoping that Bolívar would adopt the code in Columbia.85 It came as a considerable shock in March 1828 to hear that the ‘Liberator’ had banned his writings from the Columbian universities as detrimental to religion, morality and social order.86 Bentham complained to Daniel O’Connell, at that time one of Bolívar’s most outspoken supporters, ‘after trumpeting my works, and declaring that they had given to politics and morals the certainty and precision of mathematics, he has made it a crime in every man to have so much as one of them in his possession. In a word, he has made himself to be, in his part of Spanish–America, what the beloved Ferdinand was – completely absolute; with the single exception of the person of the despot he has re-established the ancien regime’.87 More inclined to resist the influence of the Catholic Church, Santander, who succeeded Bolívar as president in 1832, restored the Spanish version of the Traités de législation to the curriculum of the universities.88 If offers to codify the laws in Spain and her former possessions were not forthcoming; Portugal seemed more promising. Following an uprising in August 1820, a new constitution, based on the Spanish constitution of 1812, was proclaimed in Lisbon in June 1821. Bentham was hard at work on the Codification Proposal, but broke away to provide a critical commentary on the Spanish constitution to the London monthly O Portuguez.89 He followed this, with a direct approach to the Portuguese Cortes offering a complete code of laws, penal, civil and constitutional.90 On this occasion the offer was accepted.91 With the Portuguese offer in his back pocket, he then set to work pulling together the strands of his constitutional ideas, drafting and redrafting the outline of a complete constitutional code, a project that absorbed an enormous amount of his time, though no code was ever delivered to Portugal. Part of the reason for this was the distraction presented by events in Tripoli and Greece, prompting him to spend six months writing a series of essays applying the principles of constitutional law he had so recently drafted in response to the Portuguese invitation. Ultimately, the delay in communicating his ideas to the Portuguese Cortes was to prove fatal, when it fragmented along monarchical–liberal lines and became absorbed with the reassertion of monarchical authority in the spring of 1826. Little of the material Bentham wrote for Tripoli and Greece was published during his lifetime, but once again it shows him grappling with the difficulties of lawmaking by newly established governments.92 The young diplomat, Hassuna D’Ghies, aroused Bentham’s interest in Tripoli. D’Ghies arrived in Britain with diplomatic credentials from Yusuf Karamanli, the Pasha of Tripoli, a position no doubt arranged by his father, the Pasha’s Secretary of State for Foreign Affairs. When they met in July 1822, Bentham was fascinated to learn that Tripoli was in turmoil over the absolutist rule of the Pasha, a

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situation exacerbated by the absence of a fi xed line of succession to the throne. With more enthusiasm than the prospects seemed to warrant, Bentham recommended a constitutional charter and the establishment of representative government, with ‘securities against misrule’. He drafted two addresses for the Pasha to proclaim to the people,93 and an outline of provisions for the projected charter, which he quickly expanded into the full charter by the end of the year.94 He suggested enlisting John Quincy Adams, then US Secretary of State, to intercede with the Pasha to persuade him of the need for constitutional reform, and to effect this he drafted two letters to Adams, one from himself and one ostensibly from D’Ghies.95 Startled by this frenzy of activity by Bentham, D’Ghies thought the idea futile and the letters to Adams were never sent, but when he left England in May 1823 he promised to personally bend the Pasha’s ear. More than likely he let the matter drop, and a few years later became the Pasha’s first minister, more concerned now to resist the influence of Britain and France in Tripoli’s affairs than to reform its political institutions.96 In Greece a new constitution had been promulgated in January 1822, establishing a provisional government, as part of the process of disengaging from the Ottoman empire. After meeting with Andreas Louriottis, a Greek envoy touring Europe to raise funds to continue the war against Turkey, Bentham spent February and early March drafting a commentary on the constitution, as Louriottis had requested. When Louriottis returned to Greece, together with Blaquiere in his capacity as the agent of the London Greek Committee, he took the commentary with him and presented it to the Greek Legislative Senate on 10 May 1823.97 In essence the commentary, titled ‘Observations by an Englishman on a Passage in Raffanel’s [sic] Histoire des événemens de la Grèce’,98 is a comparison between the Greek and Spanish constitutions, concluding with a brief disquisition on ‘Mahometan and Jewish Natives’. In the event, Bentham did not discuss the situation of the Jews, but confined his remarks to counselling a curious mix of tolerance of Muslims by Christians, political equality where it could be introduced without upsetting the dominance of the Christians, and outlawing polygamy.99 Representatives of both arms of the provisional government, the Executive Council and the Legislative Senate, sent responses to Bentham via Ioannis Orlandos, who had been sent to London on the advice of the London Greek Committee to negotiate a loan to support the new government. This elicited a further response from Bentham,100 sent to the National Assembly with Blaquiere, who returned to Greece at the end of March 1824 with the first instalment of the funds lent by the Committee. The following month Leicester Stanhope, representing the Committee, was able to present the Legislative Senate with an early manuscript version of parts of the projected constitutional code.101 By October Blaquiere was back in England with another set of replies from the provisional government.102 Bentham’s final communication of substance with the provisional government

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was sent in January 1825, accompanied by a manuscript version of an extract from the work later published as Official Aptitude Maximised, Expense Minimized (1830).103 Other correspondence was exchanged with Theodoros Negris, the Greek Minister of Justice, but nothing came of it. Another channel for Bentham’s ideas in Greece came through the historian and legal scholar Anastasios Polyzoides, who had a hand in drafting the new constitution in 1822, and accompanied Orlandos and Louriotis to London to raise funds for the liberal government. In 1824, he translated and published an extract from Dumont’s Tactiques de assemblée legislatives, promoting transparency in legislative proceedings and government matters in general, and a year later published a defence of representative government and advocated a judicial system based on utilitarian principles, replete with references to Bentham’s views on these matters.104 But, once again Bentham’s hopes that a new liberal government would adopt his codification plan proved futile, for which he blamed the incessant quarrelling and double dealing of the Greek representatives in London.105 Nevertheless, John Bowring, Bentham’s constant companion during these years, who was heavily involved in the Greek Committee and took a special interest in political events unfolding in the Mediterranean, remarked ‘These were days of boundless happiness to Bentham, when, from every side, testimonials of respect and affection were flowing towards him, and when all events seemed concurring in advancing the great interest to which he was devoted.’106 Westminster was the hub of radical politics in England, and such was the frenzy of activity that John Neal felt compelled to refute the rumour that Queen Square Place, or Q. S. P. as Bentham liked to call it, had become a locus for revolutionary activities, a centre for ‘all the turbulent and fiery spirits of Europe and of the two Americas’.107 Inspired, encouraged, flattered and paid the most gratifying respects, as Bentham was, the truth, nonetheless, is that not a single offer to codify the laws of these several places, Portugal excepted, was received. A mixture of obstacles faced Bentham, including the usual monarchical sympathies that lingered on in several of these places, the opposition of native lawyers who disliked the idea of a foreigner crafting the laws of their nation and the collapse of the short-lived liberal regimes in Spain and Portugal. In short, a grand failure. Yet, not a failure of the ilk of panopticon. Bentham may not have become the Legislator of the World, and there were times, no doubt, when he exaggerated his international influence. On one occasion, referring to Spanish translations of Dumont’s editions of his writings, but without any real evidence to support the claim, he wrote to Lafayette that word had reached his ears from ‘Creole Diplomatists’ in London that in Mexico ‘a young man, of the higher orders there, is not regarded as having received a course of instruction suitable to his condition, unless he has gone through those same works’.108 On the other hand, as we have seen, the thought that utilitarian ideas were permeating through the educational systems of South America was not entirely

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without foundation. More importantly, the news that his ideas were spreading near and far, gave impetus to his resolve to complete the ‘all-comprehensive’ code. Out of his engagement with the new governments in the Mediterranean and Americas came the work that was to most closely fulfil the vision of the pannomion – the Constitutional Code.109 The author of this project was by then an elder statesman in the world of legal philosophy and political radicalism, a man respected internationally as the leader of the utilitarian school and a dedicated democratic republican.

3. Philosophical and Political Connections at Home The most well-known portrait of Bentham in later life is by the London artist Henry William Pickersgill, painted in 1829.110 Pickersgill was England’s most sought after portraitist of the day, famous for his paintings of the period’s great and good, celebrities such as William Godwin, Hannah Moore, George Crabbe, William Wordsworth, Elizabeth Barrett-Browning, Robert Peel, Edward Bulwer-Lytton and many others. His style is formal and his subjects are invariably seated in stiff poses, often looking directly out from the canvas, occasionally pictured with the accoutrements of office in church or state, or the trappings of the subject’s profession. The portrait of Bentham shows him seated in an armchair, dressed in a white-collared shirt, a dark brown dress coat, breeches and stockings. His silver hair hangs long to the shoulders, reminiscent of Benjamin Franklin to whom he is often likened, and if he is eighty-one years of age his ruddied cheeks convey the veneer of robust health. He does not at all seem to be the man of ‘puritanical expression’ and ‘irritable temperament corrected by habit and discipline’ of Hazlitt’s description. What Hazlitt saw with a sharper eye was Bentham’s ‘boyish simplicity’ mixed with ‘the venerableness of old age’.111 His playfulness, his sly humour and the rambunctiousness he indulged in the company of the young, provided a surprising note in the register of the high seriousness and disciplined manner of his normal activities. If at times he appeared the ‘one-eyed’ utilitarian philosopher in John Mill’s re-evaluation of his intellectual inheritance, or the Gradgrind of Dickens’s imagination – the archetypal ‘man of facts and calculations’ – and times when he displayed an astounding capacity for disloyalty, he nevertheless commanded the respect of nearly everyone who penetrated the band of intimates at Q. S. P. It is a credit to Picksergill’s artistry that he captured on canvas the air of a man who had very nearly completed, albeit in scattered form, the grand pannonion. Like the legal colossus he had become, Bentham’s manner is that of a man who has arrived at his seat in the republic of letters, sure of the legitimacy of his place, keen to appraise the transcendent company of posterity’s anointed.112 His deportment betrays little of the political radical who desired to

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abolish the monarchy in Britain and elsewhere and institute a world of republics, but there is more than the suggestion of the philanthropic devotion to social improvement, the patron of the London Mutual Improvement Society and London Mechanics Institution, and just a hint of the tenacity he brought to his Herculean ambitions. Byron might cast doubt about the balance of his mind, and Hazlitt might depict him as a venerable anchorite in the quiet of his cell reducing law to a system and the mind of man to a machine, but the likes of Talleyrand, Bolívar and O’Connell knew the true weight of his achievements. Bentham’s collaborators, secretaries and editorial assistants in later life included the Mills, George Grote, John Herbert Koe, Peregrine Bingham, his nephew George Bentham, Richard Smith, Richard Doane, Edwin Chadwick and Francis Place, all of whom worked with him in one or more of these capacities, copying, arranging manuscripts, rewriting and editing the works that bear his name. Without this network of support, what came to pass as Bentham’s corpus would have been deprived of many of the publications that bear his name. Among his treasured acquaintances were the reformist MP Joseph Hume, who was instrumental in the repeal of the Combination Acts and took it upon himself to supply Bentham with parliamentary papers and information on other government business, and the Whigs Henry Brougham, later 1st Baron Brougham and Vaux and Lord Chancellor in Grey’s administration, and Joseph Parkes, an extremely useful intermediary between the Whigs and radical reformers during the months leading up to the passage of the Great Reform Act. There were times when Bentham was bitter about his lot in life, let down by Shelburne from whom he expected a seat in the Commons, humiliated by a government that failed to keep its word to build a panopticon prison, and his philosophical contributions to understanding and reforming law for many years ignored by his own countrymen. He struck a note of despondency when he related how well his work had been received in France: ‘Greater – far greater – is the honour bestowed upon him in that foreign country than in his own’, he wrote.113 What he owed to England, he pointed out with heavy irony, is the fact that he was never prosecuted for publishing his subversive views.114 Even those unconvinced by the merits of utilitarianism recognized the irony of the situation. Hazlitt, who was for a time a tenant of Bentham’s,115 with only a little extravagance opened an 1824 essay on his former landlord with the declaration: ‘Mr. Bentham is one of those persons who verify the old adage, that “A prophet has most honour out of his own country.” His reputation lies at the circumference; and the lights of his understanding are reflected, with increasing lustre, on the other side of the globe. His name is little known in England, better in Europe, best of all in the plains of Chili [sic] and the mines of Mexico.’116 Hazlitt was only half right – in the 1820s Bentham’s reputation in his own country was on the rise. He accumulated an impressive list of public figures prepared to attach themselves in some way to the great law reformer of the age.

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It was a time when the likes of Burdett, Brougham, Mackintosh and O’Connell, among others, were inclined to cite the authority of Bentham to enhance the credibility of their positions and arguments in Parliament. But rhetoric is not a certain guide to discipleship, and politicians elected under their own steam are notably reluctant to part with their political autonomy. Nevertheless, his extensive network of connections with radical and moderate reformers reveal a vital part of the story of his role in the reform movement – his perception of himself as orchestrator of the movement, ever ready to supply the fruit of his thoughts on the substance of reform and the tactics to achieve the desired ends. However, his attempts to maintain unity among the radical reformers were rarely successful. With William Cobbett and Henry Hunt, for example, Bentham found himself frequently at odds over the way forward, and his volatile, if fruitful alliance with O’Connell is a fascinating tale of the philosophical master attempting to tutor the brilliant and unpredictable voice of Irish liberation. These were men with their own political supporters and agendas, and they did not often see eye to eye, and could not be expected to work harmoniously with the kind of reformers with whom Bentham liked to dine and discuss the issues of the day – the likes of Romilly, Hume and Brougham. Even Mackintosh, along with Macaulay one of the strongest Whig critics of the political reforms advocated by the philosophic radicals, was welcome at Q. S. P. Understandably, there were bound to be moments of tension and dispute between Bentham and his Whig friends. His intimacy with Romilly was sorely tested by the latter’s moderate position on political reform, and Bentham’s decision to enter into a pact with Burdett to prevent Romilly’s election for Westminster in 1818 was egregious. Brougham was another who frustrated Bentham by his half-hearted support for reform. A regular visitor to Q. S. P. in the years 1827–8, he once announced in the Commons that, ‘The age of law reform and the age of Jeremy Bentham are one and the same.’117 But this did not prevent Bentham from attacking the Lord Chancellor in Lord Brougham Displayed (1832), a criticism of Brougham’s plan to absorb the courts of the Vice-Chancellor and the Master of the Rolls into the Chancery Court, a plan which fell far short of the reform of the judiciary Bentham advocated.118 Writing this as ‘an enemy’ to Brougham, he remarked in the preface, he could not help but hear ‘the exclamation “Et tu, Brute!” all the while sounding, as it were, in my ears’.119 These differences aside, Bentham occasionally treated his Whig friend with a degree of playfulness not seen with others outside the circle based at Q. S. P. On this occasion he scolded the Lord Chancellor for his tepid efforts at law reform: Master Henry Brougham! Naughty, naughty boy! ‘Pap’ for you!120 Oh no! no more of that – you would only puke it up again. ‘Pap’ for you? No: – that is not what you are in want of – you have outgrown it: – what you are in want of is another dose or two of jalap to purge off your

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bad humours and a touch, every now and then of the tickle-toby which I keep in pickle for you. . . . When will you have learnt your primer? when will you be able to spell ‘Greatest happiness principle’ ‘Non-disappointment principle’ ‘Ends of justice – main end giving execution and effect to laws substantive: collateral ends avoidance of delay, expense, and vexation – evils producible by the adjective.’ When you have got that by heart, you may then be fit to be breeched and sent to a grammar School. So no more at present from your still loving though so highly offended grandpapa, You know who!121 Brougham was over fi fty years old at the time, but took the admonition in his stride, well used to the child-like intimacy of Bentham’s rapport. However, like everyone’s favourite ‘grandpapa’, in old age Bentham could also exhibit childishness unworthy of the man. The fit of peak that led him to turn against his faithful ally James Mill and send his nephew George surreptitiously to reclaim the hundreds of books lent to his former friend and political lieutenant, laid bare a side to Bentham’s character that could stun by its peevishness. When Mill first encountered Bentham in the winter of 1808, the two quickly forged an alliance based on a reform agenda that encompassed law, penal policy, education, and judicial, religious and parliamentary institutions. To this was added, for a time, a close friendship that involved considerable generosity on Bentham’s side. Initially, he housed Mill and his growing family in Milton’s house in his garden at Q. S. P., and from 1809 to 1818 the Mills spent the summer months with Bentham, first at Barrow Green House, near Godstone in Oxted, and then, from 1814, at Forde Abbey in Dorset, a former Cistercian monastery secularized by Henry VIII. Bentham joked he was the latest abbot of this ‘most holy place’, and in the summer of 1817 he invited Dumont to join himself and Mill at the abbey where they would be ‘a Sub-Trinity in Unity’, implying that with himself as God the Father, Dumont would be ‘the second person in the Sub-Trinity’ and Mill the Holy Ghost.122 It was at Forde Abbey that Mill and Bentham took evening walks together ‘to digest what we have written’, including, not without irony, Bentham’s anti-religious writings of the period.123 Soon after the first summer in Dorset, Bentham arranged for the Mills to take over the house adjacent to his own in Queen Square Place, where the two radicals remained on good terms at least until the mid-1820s when Bowring came to dominate Bentham’s affections. Mill attended Bentham’s dinner table once a week for consultations on everything from household matters and philosophical questions, to relations between the radicals and strategies in the reform campaign. On occasion Bentham deferred to Mill in matters about which he was less well informed, relayed Mill’s opinion to others when he felt the need to impress the weight of an argument, and frequently recommended Mill’s writings, especially The History of British India (1817) and Elements of

Introduction

21

Political Economy (1821). In every respect, until Bowring launched his campaign of ingratiation, Mill was understood to be, and acted as if he was, Bentham’s second in command. Bentham’s liking for the serially sycophantic Bowring rankled with Mill, whose dismay was compounded when Bowring became the editor of the Westminster Review, established in late 1823 as the voice of philosophic radicalism with funds provided by Bentham. When Bowring engineered Perronet Thompson’s purchase of the review behind Mill’s back a few years later, both Mills withdrew their labour from the periodical while Bowring remained as co-editor.124 This was followed by the battle of the books, which put an end to Mill’s working relationship with Bentham. His opposition to Bowring’s candidacy for the professorship of literature at London University, understandable as it may have been, was not designed to heal the rift.125 Bentham made overtures to mend the break, beseeching Mill to become a member of the Law Reform Association in 1829, and sending copies of writings on law reform and invitations to dine.126 By then, however, Mill was in the process of severing his final link with Bentham by vacating the property he rented from his old friend, and Place was forced to intercede in a dispute over outstanding costs of repairs.127 Many years had passed since Mill was proud to call himself Bentham’s ‘favourite disciple’.128 The younger Mill shared his father’s intense dislike for Bowring, but this did not estrange him from the old philosopher.129 He agreed with Bentham’s disapproval of his father’s exclusion of women from the franchise in the essay ‘On Government’, convened meetings of the Utilitarian Society at Q. S. P., led for the utilitarian faction in the debates in the Co-operative Society and London Debating Society, and edited and published the five volumes of Bentham’s Rationale of Judicial Evidence (1827).130 It is quite possible the stress caused by Mill’s work on the latter contributed to the onset of his emotional crisis in 1826–7. Emerging out of this crisis, he began to reappraise his intellectual inheritance and the utilitarian philosophy that had been so much a part of his education,131 but it neither prevented him from conducting a spirited defence of Bentham’s politics in the London Debating Society in the Spring of 1829,132 nor from writing a eulogistic obituary in the Examiner when Bentham died.133 Right up until the end of his life, even when he was critical of Bentham’s philosophy, he always gave him his due for the great contributions he made to legal, jurisprudential, and political reform, and to the methods of intellectual enquiry, acknowledging him in a letter of 1868 as ‘the father of enlightened Radicalism’.134 Of Bowring, he had nothing good to say.135 Francis Place was another dependable friend in Bentham’s later years who also resented the insipid Bowring. A tailor by trade, he was introduced to Bentham by Mill in 1812, and they struck an immediate rapport on nearly every subject. It is thought Place may have assisted Bentham in arranging his manuscripts for a number of publications, including Plan of Parliamentary

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Reform, Chrestomathia (1815–17) and the Book of Fallacies (1824). That he had a hand in the production of Not Paul, but Jesus (1823) is not disputed. For a time, Bentham considered Place for the task of organizing and publishing a complete edition of his writings, but ultimately chose Bowring.136 In 1817 Place spent two months at Forde Abbey, in the company of the Romillys and the Mills, and thereafter was a frequent visitor to Q. S. P., often walking with his host about London.137 Bentham never baulked at introducing ‘Place the tailor’ to his acquaintances high and low, which greatly endeared him to his friend, but he was also sensitive to the fact that some among his more genteel connections might take exception to mixing with a tradesman.138 In later life, Place, who referred to Bentham as ‘my dear old master’, considered writing his biography, commenting ‘I owe a vast debt for what is good and of high value to him, and I hope I shall not die without doing my best towards discharging that honourable debt’.139 The promised biography was never written, probably because Bentham’s papers ended up in the hands of the detested Bowring. Bentham’s relationship with Bowring is truly puzzling. He was a leading London Unitarian when Blaquiere introduced him to Bentham in 1820, in the belief he might be useful in making connections in Spain.140 From that moment on, if Bowring is to be believed, the intimacy between the two men ‘strengthened from day to day’, such that for the last ten years of Bentham’s life ‘not a thought – not a feeling of his was concealed from me’. He enjoyed the philosopher’s total confidence, regularly frequented his dinner table, took possession of Bentham’s correspondence and other papers and enjoyed ‘blessings, benefits, benignities, courtesies, in every shape . . . at his hands’.141 In return, Bowring proffered advice on Bentham’s affairs, mostly bad, and generally cheered the philosopher with news of the world, the London gossip, who was talking about him in the press and political circles, and generally engaging in a degree of flattery that made Bentham’s long-standing associates wince. Clearly, their friendship went beyond the forms of acquaintance Bentham shared with other disciples and intimates among the philosophic radicals, and Bowring was grateful for the support and financial assistance given him by a man considerably older than himself. ‘No son’, he wrote, ‘was ever honoured by an affectionate father with more evidence of fondness, esteem, and confidence. And to me his friendship was that of a guardian angel. His house was an asylum – his purse a treasury – his heart an Eden – his mind a fortress to me.’142 Bentham used similar terms to describe his relationship with his new friend: ‘Bowring is in Elysium: he and I are son and father. He is one of the most extraordinary, if not the most extraordinary man, I ever saw in my life. . . . He is the most loving creature God Almighty ever made – I scold him for loving his wife and child as he does. Yet he never leaves me he says but in better health as well as spirits.’143 Bentham’s support for Bowring took various forms. He paid him a salary as editor of the Westminster; he made a recommendation to Brougham, a member

Introduction

23

of the board of the new University of London, that he be offered a professorship, from which Brougham wisely demurred;144 and he printed an address on Bowring’s behalf advising the ‘future electors of Blackburn’ of his virtues as a member of parliament.145 Worst of all, Bentham made Bowring the executor of his final will and testament, and left at his disposal the writings he was charged with publishing in a multi-volume collection of works, with funds provided to see the project through to completion. He executed the role of general editor so poorly that generations of scholars have bemoaned the fact that Bentham, so acute of mind in other ways, should have been taken in by a man so clearly bent on his own self-promotion. Neal initially took a liking for Bowring, but later thought him ‘the busiest of busy-bodies, and the slipperiest’.146 Place dismissed him as a ‘toad eater’ and a ‘fool’, though he believed the reason for his place in Bentham’s affections was the philosopher’s need to receive such attention.147 Brougham evinced ‘the most utter contempt’ for the man.148 Bowring seems to have been largely oblivious to the animosity directed towards him, only realizing its full extent and how much he owed to Bentham’s loyalty when he perused the dead philosopher’s papers.149 It was Bowring who introduced Bentham to another leading Unitarian, who was to occupy a central place in the story of his final days and the events following his death – the physician and sanitary reformer, Thomas Southwood Smith.150 Later, Southwood Smith edited Bentham’s Chrestomathia for Bowring’s edition of the works, as well as a series of important short essays on ontology, logic, language and grammar.151 But, it was a shared concern with the medical benefits derived from the regular supply of cadavers for anatomical research and efforts to persuade Parliament to act on the issue that bound him to Bentham. He published two essays on the topic in the Westminster, presenting cogent arguments to justify the state acquiring unclaimed bodies from the gallows, hospital and poorhouse, and permitting private persons to donate their bodies for medical research.152 Bentham was in complete agreement with the strategies proposed, and made a concerted effort to convince Peel to introduce the required legislation. His personal commitment to the issue reached its denouement in the public dissection of his corpse at the Webb Street School of Anatomy and Medicine, where Southwood Smith gave a public oration over the philosopher’s remains. It was Bentham’s wish that the good doctor be present at his death bed to relieve him of any suffering that may be difficult to bear, ‘to render death easy’ to himself and others. Southwood Smith held euthanasia to be ‘no unimportant part of the duty of the physician’,153 a view approved by Bentham, but he was not able to render this favour to his friend. Bentham died of ‘natural causes’, as coroners used to say when there were no obvious signs of disease or physical harm, at 5.30 pm on 6 June 1832 at Q. S. P., attended by his nephew George, Bowring, Chadwick and his trusted former secretary Richard Doane,154 having lived his entire span of years a bachelor, and the last two decades at the centre of British intellectual and political

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life. Serendipity determined that the previous day he received word that the Reform Bill had been passed in the Lords, and though ‘quite speechless and powerless’ he was sufficiently cognizant to take pleasure at the news.155 A few months later, the Anatomy Act was passed.156 Fitting epitaphs for an uncompromising life devoted to the greatest happiness principle, and its application to legal and political reform, but a life that had promised, and which Bentham had hoped would achieve, far more before his years were done. *

*

*

It is beyond the scope of this study to provide a complete biography of the man whose name is synonymous with the utilitarian philosophy, but perhaps enough has been said in this introduction about the man, his political thought and dedication to codification to make sense of the subject-matter of the body of the text. The following chapters are structured around two focal points: (1) Bentham’s re-engagement with his philosophy, and (2) his interest and role in political reform. In Chapter 1, I discuss the origin and context of Bentham’s ‘Article on Utilitarianism’, in which he set out to account for the discovery of the ‘greatest happiness principle’ and his subsequent journey theorizing and applying the concepts and ideas he learnt from Locke, Hume, Helvétius and others. Chapters 2–3 are devoted to an examination of Bentham’s reflections on utilitarian theory, his later revisions to the doctrine, and critique of Hume. In Chapter 4, I reconstruct the complex dimensions of utilitarian theory as it would have appeared at the end of Bentham’s life, and draw comparisons with Mill’s political thought. Chapter 5 locates Bentham’s later political positions in the republican tradition in England, while Chapter 6 focuses on the origins and development of his critique of monarchy and theory of representative democracy. The final chapter details Bentham’s attempts to unify the reformers in England behind a common political agenda, one which he hoped would lead to substantive reforms based on utilitarian principles. More generally, these chapters explore a period in Bentham’s life that has yet to receive the attention it deserves.157 The Bentham that emerges is a philosopher whose defence of the utility principle against critics and alternative principles is secondary to the more pressing need to operationalize the principle in relation to law, political institutions, economic arrangements and social improvements in general. Moreover, we see Bentham as an egalitarian republican, who held monarchy in contempt and who invested democratic institutions with the power to restrain the ‘sinister interests’ of political representatives and public officials, and to direct the resources of the state to implementing, directly and indirectly, the greatest happiness.

Chapter 1

Philosophic Radicalism and the Westminster–Edinburgh Debate

The context in which Bentham conceived the ‘Article on Utilitarianism’ was the quarrel between the philosophic radicals centred on Q. S. P. and the reformist Whigs over constitutional reform. The origins of the debate lay in Bentham’s Plan of Parliamentary Reform (1817) and Mill’s ‘On Government’ (1820), and can be traced in a sequence of writings from both sides of the divide. Neither side acquitted itself well when the debate reached its crescendo in six articles in the Edinburgh Review and Westminster Review in 1829–30, respectively the vehicles for the opinions of the Whigs and radicals. Macaulay’s initial attack on Mill stands out as particularly harmful to the public perception of utilitarianism. Two more articles from Macaulay and three from Perronet Thompson defending the position of the philosophic radicals followed, the substance and tone of which illustrate just how much was at stake in the debate.1 The philosophic radicals may have hoped that winning the war in the periodicals would translate into greater influence in the shaping of a reform bill, but it is doubtful it would have been sufficient to make a real difference. In the event, the modest reforms introduced in the Great Reform Act 1832 were a practical victory for the Whigs, though the philosophic radicals took heart in the belief that the thin edge of a wedge had been inserted into the constitution, making further democratic reforms inevitable. In the ‘Article on Utilitarianism’, only parts of which were used by Perronet Thompson in his first article in defence of Mill, Bentham set out to give an account of the principles (and where they came from) that substantiate the political positions taken by the philosophic radicals. In this sense, it was intended as a philosophical defence of utilitarianism, not an explicit defence of the democratic reforms advocated by the radicals. The objective of this chapter is to delineate the origins of the debate with the Whigs, its salient dimensions and points at issue, as a preliminary to discussing the significance of Bentham’s draft article in the next chapter.

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1. Origins of the Debate For the reasons stated in the Introduction, in 1809 Bentham resumed consideration of constitutional matters and embarked upon a sustained period of democratic theorizing. In unpublished manuscripts on parliamentary reform from 1809–10 he explored the nature of ‘influence’ and the relation between abuses in the law and abuses in parliaments: the beneficiaries of the law and the beneficiaries of the corrupt parliament were united in one ‘confederated sinister interest’, he concluded.2 Bentham intended to publish a portion of these writings under the title ‘Parliamentary Reform Catechism’, and sent it to Cobbett’s Political Register but was declined publication, on what grounds is not known.3 Disappointed, he put off publication until 1817 when he formally announced the tenets of his radical democratic politics in Plan of Parliamentary Reform: the elimination of royal patronage, a substantial extension of the franchise, annual elections by secret ballot, the election of intellectually qualified independent members of parliament (with a system of fines to ensure regular attendance) and the accurate and regular publication of parliamentary debates. Without a serious movement in the direction of these reforms Bentham warned the country risked revolution. From this point on he became widely recognized as the pre-eminent theorist of political radicalism. Tory defenders of the ‘mixed and balanced’ constitution were not difficult to find. The Quarterly Review disparaged Bentham’s deconstruction of the foundations of the constitution, but without stooping to examine the merits of the reforms proposed.4 Instead, the reviewer chose to ridicule Bentham’s ‘innovations in philological science’. Having scattered ‘all existing civil rights, and franchises, and institutions of Englishmen with one hand, with the other he implants into the English tongue, annuality, trienniality, beneficialness, interestcomprehension, pleasurably-operating, potential-impermanence, competition-excluding, undangerousness, deceptiously-evidential, knowable, non-spuriousness, maximization, and minimization, and various other simples and compounds of equal significance, which it may require no ordinary degree of “appropriate intellectual aptitude” to understand’.5 In sum, ‘the language of Babel’ is adopted ‘as the proper vehicle for the doctrines of political confusion’.6 The stiffest opposition to Bentham’s proposals came from elements within the ranks of the Whigs, whom he frequently chastised for their half-hearted efforts at reform. The initial criticisms came from the pen of that most refined and eloquent of Scots, Sir James Mackintosh, in the pages of the Edinburgh Review.7 Mackintosh’s career has often been misunderstood, largely due to his political apostasy after the terrifying effects of the French Revolution became known in Britain. A decade before the Reign of Terror, he was a Foxite Whig, and supported Fox’s call for the appointment of the Prince of Wales as regent in the belief that George III was irretrievably insane.8 He edited and partly owned the reformist Morning Chronicle, and associated with radicals like Thomas

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27

Brand Hollis and John Horne Tooke. In 1791 he published Vindiciæ Gallicæ, his defence of the Revolution in response to Burke’s Reflections on the Revolution in France (1790), arguing that revolution in Britain could be averted by moderate democratic reform, justified on the grounds of equal natural rights.9 When the Pitt government introduced the Libel Act 1792, Mackintosh helped found the Friends to the Liberty of the Press, and in the same year, together with Hollis, Charles Grey, Richard Sheridan and Samuel Whitbread, joined the Society of the Friends of the People, devoted to agitation for an extension of the franchise and more frequent parliaments. In the same year he issued Letter to the Right Honourable William Pitt, in which he roundly condemned the government’s repressive legislation limiting free speech and the right of association, predicting that such laws would be counterproductive, assisting the republican cause rather than silencing it.10 Samuel Parr, much admired by Bentham, was among those who praised Mackintosh’s defence of the rights of the people against oppressive government.11 The French revolutionary government recognized Mackintosh’s support by making him an honorary citizen, just as it did Bentham. Evidently, then, Mackintosh’s reformist credentials were well known and justly earned. However, like so many others who initially supported the Revolution (including Bentham), he was shocked by the blood bath of the Terror. So much so, that in January 1795 he joined the Whig Club, favourably reviewed Burke’s Letters on a Regicide Peace in the Monthly Review in 1796, thereafter befriending the man he had not long before attacked as an apologist for the ancien regime, and gave a course of public lectures in 1799 in which he made clear his new found opposition to the revolution and its English supporters.12 This apparent change in political outlook did not go unnoticed by the Tory government, and resulted in Mackintosh’s appointment as a judge in Bombay, which brought with it a knighthood. For some time Bentham’s Scottish friend, George Wilson, had been hopeful of introducing his fellow countryman to Bentham, but he would not hear of it, put off by Mackintosh’s espousal of the virtues of the French constitution and his continuing belief in natural law and the law of nations, which Bentham described as ‘teaching the anatomy and physiology of two chimeras’.13 However, hearing of Mackintosh’s judicial appointment and considering there might be a prospect of doing some good in India, Bentham relented and agreed to a meeting in early January 1804. Mackintosh, who had praised the Traités de legislation when it was first published,14 immediately put Bentham’s doubts at rest by enthusiastically expressing his agreement with his host’s critical views on English criminal law, and topped this by stating his willingness to apply Bentham’s ideas in India in any way he could.15 True to his word, once settled in his new position as recorder for Bombay, Mackintosh embarked on an ambitious plan to modernize the administration of penal law, the prison system and the police, opposed the death penalty, and gave serious consideration to replacing the local prison with a panopticon.16 Criminal law aside, however,

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Mackintosh rarely had anything positive to say about Bentham’s other reform initiatives, with the notable exception of the Chrestomathic school project, for which he became a trustee.17 Upon reading Bentham’s Scotch Reform in 1808, for example, Mackintosh dismissed it as ‘Profound, – original, – useless! unintelligible to common readers’.18 And later, when Bentham planned to publish Swear Not at All, his provocative critique of the use of oaths in public life, the universities and the courts, he joined Romilly in urging Bentham to shelve the tract.19 When Mackintosh returned to England in 1811, despite overtures made by the Tories, he was drawn into the Whig circle centred on Holland House, and after he was elected to Parliament in 1813 became a leading spokesman for the Whigs, writing regularly for the Edinburgh. In the Commons, Mackintosh championed reform of the criminal law, was at the forefront of efforts to restrict the use of the death penalty, 20 and later spoke in support of Latin American claims for independence from Spain and Portugal, a more sympathetic approach to the treatment of animals, and Catholic emancipation, all causes to which Bentham ascribed. Irony bids us relate that Mackintosh died only days before Bentham, on 30 May 1832, following his last major parliamentary intervention in support of Lord Russell’s moderate reform bill. In the pages of the Edinburgh Mackintosh announced that Bentham’s agenda for reform was too radical, went too far in extending the franchise – a plan which would endanger the liberties of the people, he thought – and placed unfounded faith in the beneficial effects of the secret ballot and annual parliaments. He believed the extension of the franchise should be gradual and limited, with attention focused, initially at least, on the disfranchisement of rotten boroughs. Most importantly for Mackintosh, the variety of franchises that ensured that different sections of the populace would be represented in Parliament must be respected.21 Irked as he must have been by this attack from a man he had been persuaded to accept as a fellow-reformer, Bentham maintained a studied indifference to Mackintosh’s review, ever sensitive to the demands of political strategy, and made efforts to dispel the notion that Mackintosh’s critique heralded a rift between himself and his Whig friends, an alliance he believed was the best hope for reform.22 To his brother he merely noted the existence of the Edinburgh article, while seeming far more troubled by the ‘bigots’ who were then attacking Church-of-Englandism, 23 his equally trenchant critique of the ‘spiritual’ part of the constitution. In the turbulence surrounding the Westminster election in February 1819, instigated by Romilly’s suicide, the Whig reticence to support universal suffrage came under steady fire. John Cam Hobhouse, the radical candidate, erstwhile member of the Holland House set, and friend of Byron and Bentham, castigated Mackintosh’s review in a speech on the hustings. Mackintosh had criticized the advocates of universal suffrage as reformers with ‘extravagant

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opinions’, to which Hobhouse replied that he was happy to be counted among the ‘extravagant Reformers’, though he refrained from stating how extensive he thought the franchise should be and the electors remained blissfully ignorant how extravagant he might be if elected.24 James Mill, often the most belligerent of the philosophic radicals, also poured scorn on Bentham’s critic (it has been said his ‘extreme contempt’ for Mackintosh stems from the review of Bentham).25 Before this, Mill had made some flattering remarks on Mackintosh’s tenure in India in the pages of his History of British India, but after the attack on Bentham, his correspondence contains nothing but disdain whenever Mackintosh came to mind.26 Soon after publishing ‘On Government’, which we will come to presently, Mill enlisted the young George Grote to provide a more succinct account of the position of the philosophic radicals in Statement of the Reform Question (1821). Grote had been introduced to Mill by Ricardo in the spring of 1819, 27 and was rapidly converted to utilitarianism, democratic reform and scepticism in religion.28 Thereafter Grote made the acquaintance of other Benthamites, including John Mill, John and Charles Austin, Charles Buller, Arthur Roebuck and John Black, the editor of the Morning Chronicle. Together with some of these, he formed a reading group that met at his home in the family bank in Threadneedle Street to discuss political economy, law, philosophy and parliamentary reform. Policy fields were divvied up among the young and energetic reformers: Grote took on electoral reform; Roebuck and William Prescott, Grote’s bank partner, focused on the Corn Laws, to which Roebuck added education and colonies; the latter file was later inherited by William Molesworth, a future co-editor with John Mill of the Westminster and London Review (the successor to the Westminster), who also monitored public works for the group.29 Following the 1832 act, Grote was elected MP for the City of London in the reformed parliament, and later enjoyed a much-vaunted reputation as a historian of Greece.30 Mill was keen to introduce Grote to the man whose politics he had so vigorously defended, and Bentham took an instant liking to him. Their shared view of religion led him, at Mill’s urging, to entrust Grote with editing and reworking his extensive manuscripts on the utility of religion, from which, with substantial rewriting, Grote manufactured An Analysis of the Influence of Natural Religion on the Temporal Happiness of Mankind (1822). Against Mackintosh, Grote drew sustenance from Mill’s ‘On Government’. Based on the assumption that human nature is essentially self-interested, he argued that in the absence of a greatly enlarged electorate governments could not be prevented from abusing their power and ruling in the interests of the few and not the many. He denounced as ‘visionary and chimerical’ all the ‘disastrous consequences’ imputed to universal suffrage, but allowed that it was not absolutely necessary for such a large extension of the vote, ‘because a majority of the population will unquestionably be sufficient for the purposes of good government’.31 To this he added the need for balloting to be conducted

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in secret, in order to avoid intimidation of voters and to counter the use of bribery, and for frequent, preferably annual, elections. In sum, Statement of the Reform Question was a perfectly workable response to Mackintosh, but one that suffered from the same disabilities as Mill’s essay.32

2. Mill ‘On Government’ There was an impression abroad at the time, and it has not entirely lost its resonance since, that Mill was the more radical and politically astute of the two senior utilitarians. This is not a wholly accurate view of the matter.33 As already noted, the manuscripts on which Plan of Parliamentary Reform is partly based were written in 1809–10, and Bentham published the Plan in 1817, several years before Mill’s ‘On Government’. It is also notable that the positions stated in Bentham’s earlier manuscripts and the Plan are far more critical of existing political institutions, including the role of the monarchy and aristocracy, and far more radical on the issue of the suffrage. In this sense, Bentham’s leadership role in theorizing the utilitarian political position cannot be doubted. Nevertheless, Mill’s importance to Bentham should not be underestimated. He was partly responsible for shifting Bentham’s focus from law reform to political reform soon after they first met in late 1808, and when Bentham’s tendency to leave no stone unturned and no avenue unexplored threatened to indefinitely delay the publication of the Plan, it was Mill who impressed upon Bentham the need to complete the work and get it into print.34 Nor should we play down the importance of Mill to Bentham in other ways. Their respective writings on education and religion were in complete accord.35 They sought reforms not only to Parliament and the electoral system, but also to open up and improve the education available to the middle ranks, and to free the people from the psychological and institutional burdens of established religion. For both utilitarians a general improvement in the conditions of life was necessary for the ultimate success of representative democracy. ‘On Government’ has been discussed in detail by other commentators.36 However, a brief overview is necessary in order to understand the nature of Macaulay’s critique, and why Bentham felt the need to contribute to the debate.37 Mill’s purpose was to lay out a theory of government that implied the necessity of political reform in England. He grounded his principal arguments on utilitarian theory and, in particular, what he took to be the ‘science’ of human nature, which he reduced to the following logic: ‘that the acts of men follow their will; that their will follows their desires; and that their desires are generated by their apprehensions of good and evil; in other words, by their interests’.38 A man’s interests are constituted of pleasures and pains, either immediate or in prospect, and therefore his desires are ‘directed to pleasure and relief from pain as ends, and to wealth and power as the principal

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31

means’.39 In stressing the relationship between political conduct and interest, Mill believed he was stating in more succinct fashion Bentham’s position in the Plan of Parliamentary Reform. To understand how a man will conduct himself in public life one must not be swayed by ‘professions or protestations’, but rather look to the direction of his interests, a fact of considerable consequence when viewing the movements of large bodies of men.40 However, in the eagerness to press on to his political conclusions, Mill was not as careful as his fellow utilitarian in distinguishing between how a man is expected to act in public as opposed to private, an oversight which he would have to rectify later when responding to his critics. Nor was Mill alert to another minor slip in argument. The problem he wished to clarify and address is that without restraints the pursuit of pleasure would invariably bring men into conflict with one another. Government, the principal aim of which ought to be the prevention of this eventuality, provides the solution. Mill took this a step further when he restated his position, to state that the proper end of government is ‘to increase to the utmost the pleasures, and to diminish to the utmost the pains, which men derive from one another’.41 The slippage in argument here is from the Hobbesian stance that government is required for security of the person and the avoidance of conflict, to the utilitarian position that stipulates the additional requirement, that the purpose of government is to enhance the ‘public good’ or ‘the greatest happiness of the greatest number’ by increasing pleasures and reducing pains.42 When Bentham spoke of these matters he was clear that the first was a necessary foundation for producing the second. Mill simply conflates the two. In Mill’s account, one of the principal obstacles to enhancing the public good is the fact that government is constituted of men who, like all other men, are also concerned to pursue their own interests and, left unchecked, the ruling few will do this at the cost of the interests of the subject many. They will, in short, serve the interests of the ruling few, not the interests of the broader community. This means that all forms of government in which the interests of the rulers are not identical to those of the people will be oppressive.43 Democracies in which there are insufficient checks on the power of legislators are not immune to this defect. Following Bentham, Mill maintained that in order to ensure a correspondence or ‘identity’ of interests between rulers and ruled, the community’s representatives must in some measure be under the control of the people, their power must be dependent on the support of the people. In short, only the ‘representative system’ can provide the securities necessary for good government, by setting limits on the duration of office and instituting an electoral franchise broad enough to represent the will of the people. In determining the extent of the suffrage an element of caution entered Mill’s argument unwarranted by his initial premises, and which exposed him to the criticisms of the more progressive among his fellow radicals. The

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franchise, he argued, might be limited according to the following formula: ‘all those individuals whose interests are indisputably included in those of other individuals’ may be excluded.44 According to this logic, those who could be excluded are children ‘up to a certain age’, since their ‘interests are involved in those of their parents’; women ‘the interest of almost all of whom is involved either in that of their fathers or in that of their husbands’; and men under the age of forty, on the grounds that older males could be counted on to possess ‘a deep interest in the welfare of the younger men’. Mill goes on to consider that a property qualification might be added to the age qualification, set at a level that encompasses the majority of men forty and over and sufficient, therefore, to provide ‘a tolerable security’ to good government.45 In Mill’s defence it could be said that he was not necessarily recommending these restrictions on the franchise. The aim was to achieve an identification of interests between governors and the governed, and Mill acknowledged at the outset that ‘it is very evident, that if the [entire] community itself were the choosing body, the interest of the community and that of the choosing body would be the same’.46 The question is not how far the extension of the franchise could go without posing a risk to the security of the community, but rather how far it might be restricted without jeopardizing the principal security of good government – the identification of interests between government and the people. This is how John Mill understood his father’s restrictions on the suffrage, and though he took exception to the exclusion of women he maintained that the elder Mill ‘denied having intended to affirm that women should be excluded [from the franchise], any more than men under the age of forty, . . . He was, as he truly said, not discussing whether the suffrage had better be restricted, but only (assuming that it is to be restricted) what is the utmost limit of restriction, which does not necessarily involve a sacrifice of the securities of good government’.47 Nonetheless, the younger Mill thought that even this revised, and perhaps overly generous, understanding of his father’s position could not avoid acknowledging that the interests of the excluded (women and men under forty) were not the same as, and could not be assumed under or represented by, the interests of older males.48 Two final issues raised by Mill’s essay should be mentioned. First, against the presumed critics of his position he pointed out that establishing a representative democracy would not lead to the abolition of the monarchy or House of Lords. However, this reply to the opponents of democratic reform is stated in such equivocal language that Mill could hardly be said to settle the matter: ‘It is demonstrably certain that a Representative body, the interests of which were identified with those of the nation, would have no motive to abolish them, if they were not causes of bad government.’49 Second, to the presumed charge that the people are not capable of acting in accord with their interests, thereby making the identification of interests between governors and governed improbable, Mill responds by making a distinction between ‘real interests’ and ‘a false

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supposition of interest’.50 In order for the people, including their representatives, to correctly ascertain their interest and to act in accordance with it, what is required is a proper understanding of that interest, which actions are likely to further it and which to be detrimental to it.51 This leads Mill to his famous pæan of praise for the middle ranks, among whom he detects the required understanding and who can be relied upon by the electorate to govern in accordance with the general interest of the community. It is ‘the middle rank, which gives to science, to art, and to legislation itself, their most distinguished ornaments, and is the chief source of all that has exalted and refined human nature’, and ‘if the basis of Representation were ever so far extended’ it is the opinion of that part of the community that would invariably decide matters. Moreover, the ‘vast majority’ of ‘the people beneath them . . . would be sure to be guided by their advice and example’.52 It perhaps goes without saying that this assumption is impervious to empirical test, save in the event that the reforms Mill proposed were implemented. When ‘On Government’ first appeared it was taken to be the official utilitarian position authored by one of its foremost advocates. Inevitably, it was criticized for going too far along the road to democracy.53 Even F. D. Maurice, a Christian socialist who shared Mill’s animosity towards the dominance of the aristocracy, demurred from his recommended reforms, employing arguments much like Mill’s Whig opponents.54 More surprising were the criticisms from within the ranks of the more radical among the reformers, who were less than content with the cogency of Mill’s premises and objected to the exceptions he made to the extension of the franchise. There has been considerable discussion of this rift in the radical camp, and much speculation about the logic and sincerity of Mill’s arguments.55 William Thompson, an Irish aristocrat and a socialist utilitarian long before the Fabians (in a form closer to the Guild Socialism of G. D. H. Cole), 56 was among those most disappointed by Mill’s exclusion of the vote for women. 57 Thompson had been in communication with Bentham earlier over educational matters, and had a notion to build a Chrestomathic school in Ireland.58 He was a guest at Q. S. P. through the winter months of 1822–3, where he made the acquaintance of Mill, Bowring, Hume, Black and other members of the Bentham circle.59 When John Mill encountered Thompson in the co-operative debates he attended in Chancery Lane in 1825 he acknowledged him an able defender of socialism, and was in no sense offended by the criticisms of his father’s position on female suffrage. Indeed, he later acknowledged Thompson as an influence on his own critical perspective on the treatment of women under English law.60 Thompson’s commitment to egalitarianism was absolute, and he believed this was perfectly compatible with the greatest happiness principle. In An Inquiry into the Principles of the Distribution of Wealth (1824) he based his analysis of the rights of distribution on the utility principle, understood in terms of the four subordinate ends of utilitarian civil law: security, subsistence, abundance and

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equality.61 However, Thompson’s primary concern was for the security of the worker (not the property owner) and, therefore, he could more easily equate substantive equality with security than was possible within Bentham’s theory, and not surprisingly placed added stress on the theory of diminishing marginal utility to support redistributive policies.62 On these grounds, he argued for collective ownership and co-operatives as the best way to maximize happiness. In 1825, Thompson published Appeal of One Half of the Human Race Women against the Pretensions of the other Half Men, a lengthy and well-structured tract in which he supported the position of the philosophic radicals on political reform, but offered a considered if at times intemperate, critique of Mill’s exclusion of women from the vote.63 The work drips with irony, and has been described by Thompson’s biographer, with good reason, as ‘the most significant work [on this topic] in the seventy odd years between the publication of Mary Wollstonecraft’s Vindication of the Rights of Women of 1792 and John Mill’s Subjection of Women of 1869’.64 The elder Mill could not help but be shocked by the forthright manner in which he was criticized by a fellow advocate of the principle of utility as the foundation of morals, law and government. But there is more to this story. Thompson had no wish to embarrass a fellow radical reformer and, believing Mill could be persuaded to amend the offending parts of his essay in a new edition, he implored Bentham to convince him to make the needed changes. Bentham, who had not read Mill’s essay previously, drafted two pages of notes on the proposed limitations on the franchise, which in all probability he either presented to Mill or explained to him in conversation.65 He opposed both the arbitrary age qualification on the suffrage and the right to elected office, and the argument for excluding women. In responding to the first, he pointed out that excluding so many young males would diminish the development of their ‘moral aptitude’ and ‘active aptitude’, and ‘deprives them proportionably of the inducement to engage in any course of study in the use of fitting them for that situation [voting and holding public office]: it thus diminishes intellectual aptitude.’ Since an age restriction is required, it might be thought reasonable to set it at twenty-one, the age at which a man is generally ‘admitted to the management of his private concerns’, but Bentham went further to suggest eighteen might be preferable, and extended this to include eligibility for public office. Whether others would elect such a young man to represent them would depend on their judgement of his aptitude for such a position. If he has such an aptitude, then he deserves their support, and in instances where no such aptitude is demonstrated he should not expect it. However, an ‘exclusionist’, such as Mill, decides the issue a priori without any knowledge of the capabilities of the individual, insisting ‘that without any evil results, he may be set aside on the ground of his being utterly unapt’.66 To bolster his argument Bentham appealed to an example of ‘extraordinary aptitude’ that Mill could not help but be sympathetic to – his own son. How impressed Mill

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may have been with the force of this flattering illustration we can only surmise. He seems not to have been impressed at all by Bentham’s arguments regarding female voters, and may have resented this criticism from his former collaborator. Bentham’s objection is an obvious one: In the . . . situation in question, a selfish and tyrannical husband, how eagerly will he be apt to catch at it, and make out of it a pretence for aggravating the already universally existing tyranny of the male sex over the female. A selfish and severe father, how eagerly will he be apt to catch at it, and make out of it a pretence for converting into puppets, the wires of which are in his hands, the minds as well as bodies of his children of both sexes!67 Faced with Bentham’s objection, Thompson expected Mill to give way, but noted to Anna Doyle Wheeler, a fellow agitator for the rights of women, that Mill ‘refused to omit or modify the offensive antisocial paragraph . . . , though requested to do so by one whose lightest suggestion on such a subject ought to have been a command’.68 Mill’s obstinacy on the question is perhaps surprising, but during these years his relations with Bentham were by no means as close as formerly, in part the result of Bowring’s sycophantic manoeuvring at Q. S. P. Moreover, not all the philosophical radicals shared Bentham’s objections to Mill’s position. Dumont, for example, agreed wholeheartedly with the exclusion of women,69 while others opted for tactical silence, ready to plump for half a cake rather than none at all. Thompson thought otherwise, and when Mill published the new edition of ‘On Government’ in 1825 he saw no reason to hold back from issuing the Appeal. So incensed was he by Mill’s exclusion of women, he used it to demonstrate the defects in the logic of his entire position on the suffrage, which he denounced as a ‘disgrace [to] the principle of utility’.70 If Mill had assumed that each man was naturally benevolent, then ‘the inference, that power over others might be safely placed in his hands, would at least be fairly drawn from the premises’. But this was plainly not the assumption upon which Mill’s theory of government rested. Rather he supposed ‘that all men are necessarily inclined to use for their own exclusive advantage whatever power they can acquire over the actions of their fellowmen, and that the more knowledge they happen to possess, with the more skill will they use this power to promote such exclusive interest, at the expense of those over whom their power extends’.71 From this starting point Mill could not conclude that ‘this grand governing law of human nature’ is suspended in the instance of one half of the human race,72 that there is a ready-made ‘identity of interest’ between men and women. Most married women were akin to household slaves, existing purely for the benefit of their husbands, a plight that the euphemistic idea of the ‘marriage contract’ could do nothing to ameliorate.73 Moreover, in those instances when women are no longer daughters in their father’s household or

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married, there exists no male with whom their interests could be identified.74 According to the logic of Mill’s argument, those whose interests are not identified with others must be permitted to represent themselves, but he made no exceptions for females in this predicament.75 In arguing this way, Thompson brought into question the Hobbesian assumption on which Mill based his theory of government – that all men are inclined to use power for their own exclusive benefit. The assumption is unwarranted by the available evidence; whether a particular individual’s inclinations are of the benevolent sort or selfish depend entirely upon ‘particular conditions’.76 On this issue Thompson found a willing fellow critic in Macaulay, then on the lower rungs of a career that saw him become the period’s most prominent historian and essayist.

3. Macaulay’s Critique Place, Mill and Bentham frequently bemoaned the fact that the philosophic radicals did not have a journal of the stature of the Edinburgh or the Quarterly with which to join the battle with the Whigs and Tories on a regular basis. Readers interested in politics could consult other weeklies and periodicals, like Blackwood’s Edinburgh Magazine, London Magazine, Gentleman’s Magazine, Monthly Magazine, Cobbett’s Political Register and Leigh Hunt’s Examiner, but none were more popular than the organs of the two leading political alignments in Parliament.77 Unlike the Quarterly, the Edinburgh was not always opposed to all things Bentham. Sympathetic responses to his legal philosophy were not infrequent among Whig reformers like Romilly, Brougham and Mackintosh, and William Empson, a regular contributor to the Edinburgh, rarely took the easy path of wholesale criticism.78 On political issues, however, the Edinburgh consistently voiced the Whig line on the virtues of moderate reform and the risks associated with radicalism. Launched in late 1823 with Bowring installed as editor, the Westminster took as its primary objective the dissemination of utilitarian ideas for social, legal, economic and political improvements, but also contained articles on literature, travel and the arts – as Bentham put it ‘One-half consecrated to politics and morals, the other half left to literary insignificancies’.79 John Neal, only half in jest, stated the principal aim of the review was to combat the regular reports in the Quarterly and Edinburgh that Bentham was ‘the head of a dangerous and powerful party, who gather together by deputation at his house from every part of the globe – holding a sort of congress, where all the turbulent and fiery spirits of Europe and of the two Americas are literally present’.80 Among the utilitarian contributors were the Mills, Place, Hobhouse, William Tooke, who assisted in the founding of University College London and the Society for the Diffusion of Useful Knowledge, the economist William Ellis

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and a slew of young and keen disciples of Bentham, including Roebuck, Grote, the Austin brothers, Buller, Fonblanque, Chadwick and Perronet Thompson, who took over ownership of the journal from Bentham in 1828 and became its co-editor with Bowring. Other contributors came to the journal through Bowring’s Unitarian connections, including Southwood Smith, the literary critics Henry Crabb Robinson and Henry Southern, who also served as literary editor, and William Johnson Fox, the editor of the Monthly Repositor and author of Christian Morality (1833), in which he presented a form of religious utilitarianism. As planned, the first issue contained a vigorous attack on the Edinburgh by James Mill, and Peregrine Bingham, another of Bentham’s editors, took on the Quarterly.81 Mill’s uncompromising flagship article defined the politics of the Westminster, and in the years following its several contributors continued to hammer away at the ignorance of the Tories and the milk-and-water reformism of the Whigs, dismissing the attempts of opponents to tar the philosophic radicals as anything other than the rational utilitarians they claimed to be. In the face of repeated attacks, the Edinburgh found a capable, if largely then unknown, defender in Thomas Babington Macaulay, who crafted a penetrating critique of the theory upon which Mill based his prescriptions for reform. A few years before, Macaulay could be found in the company of the Cambridge faction of the utilitarians centred on John and Charles Austin and the London Debating Society.82 He was then studying for the bar and began writing for the Edinburgh in 1825, first authoring a respected challenge to slavery and later that year making his name with a celebrated essay on Milton. His early political outlook has been described as ‘a mixture of Burkean toryism with its high regard for tradition and the historic constitution, and utilitarianism, with its critique of aristocratic government, the established church and the law’.83 Though repelled by some of the more pretentious attitudes he detected among the supporters of Bentham, like Mackintosh, Macaulay remained sympathetic to the critical intent of utilitarian legal philosophy, while objecting to the narrow assumptions that underpinned the doctrine. Later, he regretted the tone of his critique of Mill’s essay, acknowledging that he might have ‘abstained from using contemptuous language respecting the historian of British India’. The History of British India he thought, ‘on the whole, the greatest historical work which has appeared in our language since that of Gibbon’.84 Nor was he averse to consulting Mill when drafting a penal code for India, and his position on education has been described as ‘James Mill’s philosophy expressed in Macaulayese’.85 Nevertheless, following the 1825 reprinting of ‘On Government’ he had cause to reassess his adherence to utilitarian ideas in dramatic fashion. Politically, the central issue for Macaulay, as it was for many Whigs, was how to maintain support for moderate parliamentary reform while dismissing the position on manhood suffrage taken by the philosophic radicals. However, as the subtitle to Macaulay’s essay underscores – ‘Utilitarian

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Logic and Politics’ – it was also conceived as an attack on the foundations of utilitarian philosophy itself. As is well known, Macaulay’s main criticism of Mill is that his way of proceeding is entirely a priori, by which he means that ‘certain propensities of human nature are assumed’ by Mill and ‘from these premises the whole science of politics is synthetically deduced’, a deduction which it is logically ‘utterly impossible’ to draw. Added to this, the claim that men always act out of self-interest is either a truism and, therefore, a trivial proposition incapable of supporting empirical statements about political life and government, or it is false.86 Macaulay argued that it was the latter, charging that Mill accounted for only ‘one-half of human nature’ (a criticism the younger Mill was later to direct at Bentham),87 and supposed that ‘the motives which impel men to oppress and despoil others’ were the only motives influencing their actions.88 On the basis of this false assertion Mill derived doctrines which are also false,89 including the need for democratic checks on self-interested politicians, the justification for excluding women from the franchise (Macaulay agreed with the exclusion but for different reasons),90 and the implicit faith that only with the establishment of representative democracy could the public good be served. If Mill’s view of human nature was correct then so much the worse, since the newly enfranchised following their own interests would use their newfound political power to plunder the rich.91 As the debate continued in the pages of the Westminster and the Edinburgh it became increasingly obvious that what was at stake was not simply the difference in political perspective between the philosophic radicals and their Whig critics, but the viability of utilitarian theory itself. How could the principle of utility become operable if men conduct themselves only on the basis of selfinterest? How are self-interested individuals capable of acting in accordance with the principle of utility? If legislation is the primary means of constraining individuals, as Mill implied, and the legislators act only out of self-interest, as it is supposed do all men, then the attempt to produce an identification of interests between rulers and people through democratic institutions is futile: the principle of utility would only be operable by a happy coincidence. It was only in the Westminster’s second response to Macaulay that Perronet Thompson found a response to this last point, when he claimed that Bentham’s position implied ‘that the greatest happiness of one individual was in the long run to be obtained by pursuing the greatest happiness of the aggregate’. The answer to Macaulay, therefore, came to this: ‘Pursue the rule which is best for the general happiness; because, in the long run . . . it is most likely to increase your own,’ or to put it another way, ‘Pursue your own happiness aright,’ meaning pursue your true or ‘real’ interest rather than your apparent interest.92 The distinction between ‘real’ and ‘apparent’ interest was a commonplace among the utilitarians, though it is one that is not always properly understood.93 Writ large on the public canvas, the task is to ensure that the interests

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of individuals are made commensurable not only with their own happiness but with the happiness of the community. For Mill (and Bentham), moral education is the key to men discerning their real interests, being persuaded to follow it and thereby happily serving the public good.94 In effect, the subjectivism of psychological egoism is overlaid by the determinations of a person’s interests by the moralist and the lawmaker. Macaulay saw little in this distinction; ultimately, a man is motivated by what he takes his interest to be, and nothing is altered by the objective analysis of what might count as his ‘real’ interest by others. He gave no credence to the view that men could be educated to see their interests more clearly or in a different light, to better understand the long term rather than the short. A man’s interest is what he believes is his interest, and on this he acts accordingly. Much of Macaulay’s line of attack on Mill was reiterated by Mackintosh a year later in ‘Dissertation on the Progress of Ethical Philosophy’ (1830), an extended essay prefixed to the Encyclopædia Britannica, in which, contrary to Paley and Bentham, he stipulated that ethics rested on the primacy of conscience, and was particularly harsh in his observations on Mill.95 Mill’s response is contained in A Fragment on Mackintosh (1835), in which he targeted Macaulay as well as Mackintosh but reserved his most biting ripostes for the latter.96 The irascible tone of Mill’s remarks betrays the general frustration he felt under attack, frequently pointing out that he has not been properly understood, his opponents have not read carefully enough his premises and arguments, or that his meaning has been willfully distorted. He restated the principal parts of his original position in ‘On Government’, warts and all one might say, insisted that institutions designed to produce the ‘identity of interests between the governors and the governed’ are ‘the only security for good government’, laws and policies aimed at the public good, leaving his original exceptions to the ballot intact.97 If Mill were truly committed to universal adult suffrage, then this was the opportunity to correct any misperception of his radical credentials. He did not. Where there was movement, it was slight and, Mill maintained, affected not one iota his central arguments. Concerning the psychology that lay at the root of his analysis, that each man is governed by the pursuit of his own advantage and the fulfilment of his own desires, he allowed that there would be exceptions, just as there are to any general law.98 In his private life a man can be expected to show honesty and benevolence to his kith and kin, to his friends and even on occasion to complete strangers, but in public life, when a man acts as a member of a considerable body of men, the constraints of honour are countered by the approval of his party and ‘he soon learns to despise the clamours of adversaries’. Craftily citing Berkeley and Blackstone in support of the view that it is self-interest that principally motivates men, and Hume in support of the proposition that in public life ‘every man ought to be supposed knave, and to have no other end, in all his actions, than private interest’,99 Mill wondered why Mackintosh should object, and more especially

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why he would demure from the conclusion that if ‘separate interests be not checked, and be not directed to the public, we ought to look for nothing but faction, disorder, and tyranny, from such a government’.100 The objective of ‘On Government’ was to assert that mechanisms are needed to produce the necessary identity of interests between governors and governed, and this could be achieved only by a broadened electorate, with frequent opportunities for the people to choose their political representatives – a conclusion Mill refused to countenance as anything other than the logical outcome of his initial assumption about human nature.

4. The Westminster Response It fell to Perronet Thompson, possibly with assistance from Bowring, to answer Macaulay in the pages of the Westminster.101 Mistakenly thinking this reply came from the hand of Bentham, Macaulay contributed a second essay to the debate, again answered by Thompson, and a third, which also occasioned a response from the Westminster. However, the view of Thompson’s biographer that both he and Macaulay ‘proved [themselves] brilliant in the scintillating style of the period’,102 is not borne out from a reading of these articles, and nor did the more discerning philosophic radicals share this view. When Thompson took over as proprietor of the Westminster in late 1828 he was only recently retired from the army, after twenty-six years of service in South America, France and India, including a brief and unsatisfactory interlude as Governor of Sierra Leone (1808–10), the colony for freed black slaves formerly in the possession of Wilberforce and the Saints.103 He fancied himself as a political journalist, but also wrote on topics as diverse as mathematics, music and economics. He made the acquaintance of Bowring through their mutual activities in support of the Greek and Spanish liberals, and Bowring introduced him to Bentham and the circle of philosophic radicals.104 Thompson contributed an article on political economy to the first issue of the Westminster,105 and later assisted Bentham with a chapter on military matters for the Constitutional Code.106 On the strength of his most well-known pamphlet, Catechism on the Corn Laws (1827),107 in which he laid out a spirited argument for repeal, he was elected a Fellow of the Royal Society. Later, he enjoyed an active parliamentary career and was a consistent supporter of religious toleration, free trade and radical political reform. With an inheritance from his father, Thompson was able to bail out the financially troubled Westminster and became its co-editor with Bowring; Thompson was one of the few in the Bentham circle who remained on good terms with the man most dismissed as an interfering lightweight. Thereafter Thompson was a regular contributor to the periodical, writing on Catholic emancipation, political reform and

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economic issues, including the articles in which he debated utilitarian theory and politics with Macaulay in 1829–30.108 With Mill in high dungeon over Bowring’s role in the sale of the Westminster to a man he rightly considered incompetent (proof of this was not long coming), Perronet Thompson attempted to persuade Bentham to reply to Macaulay. Since it was Mill who bore the brunt of the Whig onslaught, Bentham might have demurred, but recognizing that the utilitarian doctrine itself was under attack he agreed to contribute to a response to Macaulay, though the final article would have to be composed by someone else. Thompson, who may not have expected quite so much of the burden to fall on his shoulders, advertised the reply to Macaulay in the Westminster with the title ‘Greatest Happiness Principle Developed – With Mr. Bentham’s latest improvements, now published for the first time: and an Answer to the attacks of the Edinburgh Review’.109 Of course, the discerning reader might have noted that Thompson did not say that the essay was by Bentham, but Macaulay could be forgiven the misperception, since the Examiner also reported that the reply would come from the hand of Bentham.110 Based on the assumption the Westminster rebuttal came from the fountainhead of the theory, Macaulay took it as ‘the greatest compliment’ that Bentham had personally engaged in the debate, and was determined to afford him ‘the respect to which his venerable age, his genius, and his public services entitle him’. Though Bentham’s reasoning might be ‘feeble and sophistical’ at times and his choice of language ‘extraordinary’, still ‘we can never be weary of admiring the amplitude of his comprehension, the keenness of his penetration, the exuberant fertility with which his mind pours forth arguments and illustrations’. Bentham (in reality Thompson) might have responded sharply to the arguments directed at him, but ‘we can never cease to revere in him the father of the philosophy of Jurisprudence’. Nevertheless, in undertaking this defence of Mill, Macaulay charged that Bentham ‘has utterly mistaken our object and meaning’.111 Bentham must have been bemused by this outcome to Thompson’s defence of Mill. However, the way he reacted proved troublesome to his supporters. Only a few weeks after the publication of Thompson’s article and Macaulay’s rejoinder, he wrote a letter to the Examiner to dispel the misunderstanding that he was the author of the reply to Macaulay, but in a fashion designed to put a considerable distance between himself as the supposed subject of Macaulay’s second article and between himself and Thompson’s attempt to defend the utilitarian position. First, after noting that he had heard ‘in general terms, that in an article in an Edinburgh Review, the Greatest Happiness Principle had been hardly dealt with’, Bentham states that he ‘either offered or consented (I forget which) to furnish, and did accordingly furnish, a few pages composed of memorandums, forming a sort of history of that principle from its birth to the present time’. Then, referring to the articles published by Thompson

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and Macaulay, he claimed ‘Neither of the one article nor of the other has time as yet permitted me to take cognizance, . . . nor is its ever doing so very probable’.112 This was not strictly true. Bentham may not have personally read Macaulay’s article, but he knew its substance. Likely he had it read to him by one of the ‘reprobates’, nephew George or John Colls perhaps. The real problem, however, was not whether Bentham had read Macaulay’s article. What is disconcerting about the letter to the Examiner, and must have appeared doubly so to Thompson, was the fact that Bentham had been consulted by Thompson and Bowring and agreed that one or the other should undertake the response to Macaulay, and that he would supply material for it. If Thompson viewed Bentham’s letter as an act of betrayal, it is understandable. The tone of his reprimand is evidence of his genial demeanour, but under the circumstances he might have said something far more severe. Jovially, he likened Bentham to ‘A beau chef de conspiration, who after encouraging unhappy men to risk their lives and fortunes in an attack upon the Edinburgh, is found crying out “c’est lui, ce n’est pas moi.” . . . Nevertheless I am placable; and only want some of what the Tories call “security for the future,” to go on’. Bentham replied just as amicably the next day, reporting on the stir caused by his letter in the Inner Temple and the press, which he believed would work to the benefit of the Westminster, though it is not obvious why this would be the case.113 This sort of distancing by Bentham from the work of his associates, including editors responsible for producing publications out of his ill-arranged manuscripts, is reminiscent of his occasional less than charitable remarks on Dumont’s interpretations of his ideas. But this has to be balanced against the obvious delight he took in witnessing the lustre added to his reputation by such efforts. So, on this occasion, after arranging for Bowring to send O’Connell a copy of the Westminster containing Thompson’s article, he happily informed his correspondent ‘the greatest part of it – the matter was supplied by me: the form by others’.114 This was sent to O’Connell only a few months after Bentham’s letter to the Examiner practically disowning the essay altogether. Thompson’s response to Macaulay begins with a restatement of the main points of Mill’s theory of government, though the arguments he employs against Macaulay’s criticisms are poorly crafted, and amount to an ineffectual defence of Mill. First, to the criticism that Mill’s view of human nature is false and therefore an unsound basis from which to deduce conclusions about politics, Thompson acknowledges that not all individuals are motivated solely by their own advantage, but that exceptions to the rule are not a solid foundation upon which to construct an alternative theory of government.115 What Thompson failed to realize was that this effectively undermined the notion that Mill based his theory on a ‘science of human nature’, on irrefutable principles, to assert merely a rule of prudence – it may be best to assume that men are knaves, even if they are not. Mill would not have been at all happy with this

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concession on his behalf (which went further than his own later amendment to his position in A Fragment on Mackintosh). Moreover, Thompson’s rebuttal did not effectively answer Macaulay’s assertion that human nature is more complex, usually characterized by an amalgam of desires, some of which ‘impel them to injure their neighbours’ and some of which ‘impel them to benefit their neighbours’.116 Second, Thompson allowed that ‘a government not under the control of the community’ would not necessarily act contrary to the interests of the many, again abandoning the precision of Mill’s position.117 On the other hand, and third, Macaulay’s argument that the desire of the good opinion of others is a sufficient check on the propensity to deprive men of their possessions, is not persuasive, since ‘no man cares for the good opinion of those he has been accustomed to wrong’.118 If the contrary were true, then the planter and the slave driver could be counted upon to care about ‘negro opinion’, and ‘the desire of reputation’ could be counted upon in place of law to restrain those inclined to theft.119 Here again, however, Thompson’s rebuttal fails to hit its mark, since Macaulay clearly meant that consideration for reputation constitutes one of the constraints on human conduct (akin to Bentham’s view of the operations of the moral sanction), not the entire body of constraints. Fourth, to the suggestion that it is the poor who must be restrained and not the rich, that it is the threat of the poor dispossessing the rich that mitigates against the introduction of an extensive suffrage, Thompson appeals ‘to history and the evidence of facts’ to assert that it is the rich not the poor ‘that have a propensity to take the property of other people’. Those who cite the French Revolution in support of such arguments (Macaulay did not) misrepresent history, he claims. The revolution occurred because the poor were robbed ‘to support the hotels and banquets of their oppressors’, and it is incorrect to depict the revolution as a ‘scramble for property or a general confiscation’.120 It is certain that neither Mill nor Bentham would have agreed with this view of events in France. Both were highly critical of the violation of the security of property by the revolutionary government, and both were careful to argue that once democratic institutions were established it would not be in the long-term (the ‘real’) interests of the people to dispossess the rich of their property. At this point in the reply to Macaulay Thompson switched tack to make use of Bentham’s notes on the history of the greatest happiness principle, and the ‘latest improvements’ (discussed in Chapter 2). Having done this, he added several pages containing his own contribution to the utilitarian theory of government, though elements are necessarily derivative from Mill’s essay and from positions taken by Bentham in various writings. In following Thompson’s argument from this point we are necessarily drawn into a consideration of points made later on in the engagement between Macaulay and the Westminster. Thompson began this part of his reply to Macaulay promisingly enough by asking ‘why the production of the maximum of happiness ought to be the

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object of government’,121 a question fundamental to the utilitarian theory of government. Unfortunately, he could only profess it a mystery why governments do what they do, and states that he is more concerned with why it is that men allow governments to act as they will. It is not at all apparent why he attempted to address the issue in this manner, and introducing two possible rivals to the principle of utility – ‘moral sense’ and ‘original contract’ – only confused the issue further.122 In the second of his three articles Macaulay interpreted Thompson (though at the time he thought he was responding to Bentham) to be making the argument that men ‘ought to act so as to produce their greatest happiness’, and that the term ‘ought’ only has meaning in relation to ‘interest’.123 His response to this went well beyond Thompson’s woeful remarks to question whether the utility principle means anything at all. Macaulay did not think there was anything amiss with the claim that ‘the end of government was to produce the greatest happiness of mankind’,124 but offered three objections against what he took to be Bentham’s rendering of the utility principle. First, to say that men ‘ought to act so as to produce their greatest happiness’ is a meaningless statement, since ‘the interest of a man is synonymous with his greatest happiness’. As such ‘it is an utterly useless principle’.125 The second objection follows from the first: Bentham’s theory contains ‘no means of persuading those whose happiness is not identical with the general happiness, to act upon his principle’.126 In other words, there is no motive adequate enough to persuade a man whose interest is opposed to the general happiness to make that end the objective of his conduct. Here Macaulay believed he was plumbing to the depths of the utilitarian position. Only if a man’s pursuit of his own happiness coincides with the happiness of the community will he attempt to produce the greatest happiness of the community, but where his own happiness is at odds with the community’s happiness he will not pursue it and there is nothing in the utility principle that will make him wish otherwise. Ultimately, ‘when reduced to one plain imperative proposition’, the operative principle comes to no more than the superfluous maxim ‘pursue your own happiness’.127 Based on these two objections, Macaulay believed the ‘greatest happiness principle’ could be written off as merely a ‘fashionable phrase’ liable to be appealed to and interpreted in decidedly conflicting ways by both supporters and opponents on a particular issue. In a rhetorical flourish, at which Macaulay excelled, he declared: It will mean cheap bread, dear bread, free trade, protecting duties, annual parliaments, septennial parliaments, universal suffrage, Old Sarum, trial by jury, martial law – every thing, in short, good, bad, or indifferent, of which any person, from rapacity or from benevolence, chooses to undertake the defence. It will mean six and eight-pence with the attorney, tithes at the rectory, and game laws at the manor house.128

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A phrase for orators to wield in support of their case then, but in reality a concept empty of meaning, and the philosophy that takes this principle as its foundation is ‘frivolous’ and ‘useless’. 129 No doubt Bentham would have been more than a little irritated by this blanket dismissal of the utility principle, but also recognized that Macaulay’s criticisms, in so far as they were directed at himself, were based on a limited understanding of his ideas. Macaulay did not dispute the supposition that individuals are motivated by personal interest, what they ascertain will bring them pleasure or result in the avoidance of pain and thereby add to their happiness. Rather the objection is that the principle of utility says no more than individuals ought to act so as to enhance their greatest happiness, on the grounds that if it meant that individuals ought to act to enhance the greatest happiness of others it would be impractical and absurd. As impractical and absurd as it may seem, this is precisely what the principle of utility meant for Bentham, though it need not entail an objective that excluded or diminished the happiness of the agent. How is this possible? To the injunction ‘pursue the greatest happiness’ Bentham usually added ‘of those affected by the action’ or ‘of the community in question’ or some other such words. His intention was that we should not consider only our own interests exclusively when contemplating action, nor that we should always bear in mind the happiness of the whole of humanity. Rather his intention was that when a person considers the utility of an action she should take into account the impact of the action on the interests or well-being of those she knew would be affected by that action, as well as her own. Where the action concerns only the individual, then that is the only interest to be considered. When the action impacts upon others, such as the decision whether or not to quit one’s employment and what this means for a person’s family, then the interests of those dependants matter. When the legislature enacts laws governing permissible pollution levels in a society’s air and water it has a larger community in mind, up to and including the inhabitants of an entire community, and quite possibly the inhabitants of other communities. At his most universal Bentham, who was responsible for introducing the word ‘international’ into both the French and English languages, held that the object of international law is ‘the greatest happiness of all nations taken together’.130 The utility principle then, as Bentham understood it, is operable across the entire range of private and public decision making. The number and range of ‘interests’ involved depends on the actions considered, the issues addressed, the modes of implementation selected (of special concern in the area of legislation and the sanctions applied for disobedience) and the potential agents affected. Bentham’s theory of ‘private ethics’ is also important here. In Deontology, he pointed out that the instruction an individual derived from private ethics concerns itself with ‘the happiness of others, no farther than in so far as his

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happiness is promoted by promoting theirs’.131 From this perspective private ethics consists in offering advice to people as to how they should seek their own happiness. What, then, of the principle of utility as the standard of right and wrong? Isn’t this what an individual ought to do, not merely to serve his own interests? The task of parents, teachers and the moralist is to bring a person’s duty (public utility) into line with his interest, by pointing out the ways his interest will be served (at least, for the most part) by fulfilling his duty. In this sense, education is conceived as a branch of the art of government, available to the legislator to influence people through the force of instruction and opinion to pursue the greatest happiness, derive pleasure from benevolence and divert them from inclinations damaging to themselves and others. Nor did Bentham consider this a sinister mode of operation. As he explained in one of his economic writings: that the ‘uncoerced and unenlightened propensities and powers of individuals are not adequate to the end without the controul and guidance of the legislator is a matter of fact of which the evidence of history, the nature of man, and the existence of political society are so many proofs’.132 The aim of private ethics, then, is the same as legislation – to bring duty and interest into line with each other. However, since it rests on the persuasion of words rather than the power of punishment, it cannot be relied upon to the same extent to bring about the desired outcome. It serves only to fill in some of the gaps left by law. Nevertheless, in an enlightened ‘liberal’ society, a society in which a ‘community of sympathy’ has developed,133 individuals more readily empathize with the plight of their fellows.134 This indicates a developmental view of society in Bentham’s thought, characterized by a shifting borderline between political and private deontology.135 In less-developed societies in which self-regarding motives are dominant the legislator has more to do to bring people to do their duty; in more advanced societies less is required of the legislator and more is left to the operations of the moral sanction. Of the Limits of the Penal Branch of Jurisprudence provides further background to this position. In this work, Bentham employed a military metaphor to explain the function of law and the different forms it may take. The legislator is styled as ‘the commander’ who, with the moral and religious sanctions as ‘his allies’, employs the ‘forces’ of punishment and reward in the form of ‘direct’ and ‘indirect’ legislation, to achieve the goal of the greatest happiness. The legislator resorts to direct legislation as ‘a formal attack made with the main body of his forces in the open field’. By contrast, indirect legislation is ‘a secret plan of connected and long-concerted operations, to be executed in the way of stratagem or petite guerre’,136 designed not only to tell individuals what they should not do, but also to provide them with motives (pleasures and pains in prospect) sufficient to divert their desires into channels best designed to serve the public good. In this respect, law indirectly shapes the climate of opinion in which the community formulates its beliefs and commitments and provides

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a facilitative framework for the pursuit of happiness.137 Clearly, Macaulay’s account takes no cognizance of this aspect of Bentham’s theory but, contrary to his own misunderstanding, he was responding to Thompson’s defence of Mill, not Bentham’s. Macaulay’s third objection to the utility principle is that its mandate is more than adequately summarized in the moral teachings of Christianity, and in fact ‘is there exhibited in an infinitely more sound and philosophical form, than in the Utilitarian speculations’.138 In making this point Macaulay joined hands with the Anglican advocates of utility, John Gay, John Brown, William Paley and others, to argue: (1) that the precepts of Jesus Christ, such as ‘Do as you would be done by: Love your neighbour as yourself’, when ‘understood in an enlarged sense’, are ‘in fact a direction to every man to promote the greatest happiness of the greatest number’; and (2) the direction to pursue the greatest happiness in Christianity ‘is accompanied by a sanction of immense force’, such that to a man who finds his interest running contrary to ‘the greatest happiness of the greatest number, is held out the prospect of an infinite happiness hereafter, from which he excludes himself by wronging his fellowcreatures here’. In Macaulay’s account, then, ‘Mr. Bentham’s principle is at best no more than the golden rule of the Gospel without its sanction’.139 Bentham’s animosity to this form of reasoning is an abiding theme in his thought throughout his life, beginning with the manuscripts he wrote in 1773 attacking the requirement that university students at Oxford and Cambridge subscribe to the Thirty-Nine Articles of the Anglican creed,140 and continuing in IPML and through to his later vitriolic dissections of the established church, its catechism of faith and the fundamental beliefs of the Judeo–Christian religion.141 Had he taken the opportunity, no doubt Bentham would have dealt harshly with Macaulay’s preference for the greatest happiness principle dressed in the garb of Christianity. Repelled by what he perceived as the ascetic and complacent implications of the religious version of utilitarian ethics, nowhere did he acknowledge any necessity for the intercession of religion in moral life. ‘The principle of utility’, he wrote, ‘neither requires nor admits of any other regulator than itself’.142 Quite apart from his epistemological difficulties regarding the existence of God, Bentham’s position was that ‘God is not good, if he prohibits our possessing the least atom of clear happiness which he has given us the physical capacity of attaining’.143 In short, if God does not support utility this proves not that utility is not good, but that God is not good.

Conclusion There are times in Thompson’s response to Macaulay when he demonstrated a bewildering capacity to stray from the utilitarianism he purported to defend. When he discussed concepts like ‘morality’, ‘ justice’, ‘liberty’, ‘rights’, ‘equality’,

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‘sovereignty’ and ‘legitimacy’, he employed explanatory terms decidedly at odds with Benthamite orthodoxy. For example, ignorant of Bentham’s lifelong animosity to natural law reasoning, Thompson writes that ‘Natural and Imprescriptible rights’ are the rights ‘men ought to have – that is, what it is for the advancement of the aggregate happiness that they should have – [which] depends neither on lawyers nor on kings, but on the constitution of things imprinted by the Maker; and is consequently immutable like that’. For the utilitarian, he states, equality means ‘equality in the safety of such rights as the rule of the greatest happiness assigned’, and stresses that in relation to ‘the most important rights, the assignment was uniform to all mankind’.144 Presumably, the rights Thompson has in mind are the ‘securities which individuals could not be unprovided with, without a diminution of the aggregate of happiness’. But, he conflates ‘ought’ with ‘is’ when he implies these rights already exist in the sense that natural law is immutable, existing but not yet implemented in positive law. Neither the allusion to natural rights nor the theological claim that matters have been so ordered by a divine creator could be expected to sit well with Bentham or Mill, whose metaphysics so manifestly abjured the notion that there exists either natural or divine law. On the concepts of ‘sovereignty’, ‘government’ and ‘legitimacy’ Thompson fares no better. By the sovereignty of the people the utilitarian is said to mean ‘the essential right of the community to obtain its own happiness in its own way’, and a ‘constitution’ refers to the rules ‘which in the exercise of this sovereignty it was not committed to the delegated rulers to infringe’. A ‘legitimate government’, according to this reasoning, is ‘a government as was established or assented to by the community, in the uncontrolled exercise of its last-mentioned right’ (to obtain its happiness in its own way). Such statements do little justice to Bentham’s views on these matters. For Bentham a ‘community’ does not exist in the form of a body or other sort of persona; it is a fictitious entity employed as a shorthand reference in ordinary language. As such, the community has no rights; the community is constituted of its individual members, and only these individual persons may possess rights. Further, to base the idea of ‘legitimacy’ solely on the free exercise of the people’s will, suggests that very few existing governments should be considered ‘legitimate’, including the British government of 1829. The distinction between ‘legitimate’ and ‘free’ is lost in this democratic muddle. Worse still, Thompson’s understanding of a constitution merely in terms of what it prevents rulers from doing, washes out the complexities of Bentham’s position on the purpose of a constitution, which lays down the positive rules of conduct, stipulates the public officials required and their responsibilities and provides the fundamental principles upon which administration is based, and upon which the government institutes procedural, penal and civil law. With this degree of ineptitude on the Westminster side of the debate, it is no surprise the contest with the Edinburgh was generally thought to have gone

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in the latter’s favour.145 Thompson’s articles did nothing to erase the popular view of utilitarianism, a view which Hazlitt had done so much to disseminate in the periodicals of the day, as a mechanical doctrine, divorced from the life of spirit, imagination, passion and sentiments of love, a philosophy ‘fit neither for man nor beast’.146 Initially, John Mill thought his father hard done by in the debate, and dissented only from his position on women. Once he had absorbed Macaulay’s criticism, however, he recognized that the premises underpinning his father’s arguments were really too narrow to bear the weight of his conclusions, and this led him to develop his own ideas about method, logic and evidence.147 Ever the dutiful son, however, he believed his father needed only to answer that he ‘was not writing a scientific treatise on politics’ but rather ‘an argument for parliamentary reform’.148 That the elder Mill refrained from such a response was to be expected. He had made a point of insisting on the ‘science of human nature’ as the only valid foundation upon which to base a comprehensive theory of government. To dismiss that grounding in the face of Macaulay’s criticisms risked making him appear absurd. The philosophic radicals were left to regret that Bentham did not personally undertake to defend the utilitarian cause, including the political ramifications of its principles, notably the various ‘securities against misrule’ that featured substantially in his constitutional writings of the period, and would be necessary even in a representative democracy, including the procedures of appointment to ensure the requisite aptitude in public officials, the application of the principles of economy, transparency and accountability, the operations of the Public Opinion Tribunal, the essential core of which is an independent press, and so on. At least then the battle lines would have been more clearly understood, and both the political and philosophical dimensions of the debate would have received their due consideration. What Bentham actually contributed was far from what was needed in the debate, but had Thompson used his draft material in the manner intended, it would have served to explain elements of the utilitarian philosophy that escaped Macaulay’s attention.

Chapter 2

History of the Utility Principle and ‘the Latest Improvements’

Macaulay’s criticisms of the ‘logic’ of the greatest happiness principle prompted Bentham to pen ‘a sort of history of that principle from its birth to the present time’, including the development of utilitarian ideas in the writings of authors he had read in the early phase of his philosophical career, especially Hume, Helvétius, Hartley and Priestley, and his own refinements and clarifications of the theory, with particular reference to the application of the utility principle to penal and civil law. The motivation behind the project was twofold. First, Bentham wished to make it clear that he was responsible for giving currency to the utility principle as the standard of right and wrong, and who had demonstrated its value as the only sound guide to government, administration, policy and law. Second, he set out to provide an explanation of the principle in its final mature form, most notably its reformulation as the ‘greatest happiness principle’ with the vital addendum of the ‘non-disappointment principle’. He made no effort to defend the utilitarian position on government, leaving James Mill to suffer the ineffective defence supplied by Thompson. The ‘Article on Utilitarianism’ exists in two versions: a long version written 2–9 June, and a shorter version written 9–11 June 1829.1 It is certain that Bentham had publication in the Westminster in mind, stating in the opening section of the long version that the utility principle ‘has on this occasion amongst others attracted so much public attention and become an object of such importance that a short history of its adventures, so to speak, may perhaps be not altogether unacceptable to our readers’.2 There then follow the fourteen sections (§§2–15) used by Thompson as the basis for a part of his reply to Macaulay,3 in which Bentham presents a brief and selective history of the utility principle in relation to his philosophical progenitors, traces the elaboration of the theory of utilitarianism in his own writings and provides an etymology of the nomenclature of the utility principle, especially with regard to the key concepts pleasure, pain, happiness, interests, virtue, vice, and justice and the problems associated with these concepts. There are significant differences between the two versions of the article. The short version proceeds in a coherent but schematic fashion, while the long

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version is haphazardly arranged, with Bentham frequently abandoning a topic to pursue a tangential point only to return to it later, though often without reference to the flow of his argument or discussion. On the other hand, the long version is much more than a sequence of notes, and it is possible to rearrange the substance of the sections to make fairly sustained arguments. The short version is a more concise if fanciful chronology in the form of eleven ‘epochs’ in the development of utilitarian theory, the first six marked by the work of others, while ‘epochs’ 7–11 mark the occasions of Bentham’s own contributions. Both versions contain a selective recounting by Bentham of his pivotal place in the development of utilitarian thought. The two versions are interesting not only for what they tell us about the character of Bentham’s utilitarianism in the mature phase of his thinking, but also for what they leave out. For example, the religious utilitarian William Paley is entirely omitted from the long version of the article, and is included in the short version only as an after-thought, with Bentham taking the opportunity to underscore Paley’s insignificance rather than finding a place for him within the context of the utilitarian tradition as a distinctly religious proponent of the theory. Other notable figures in the utilitarian tradition that he might have mentioned, but did not, are Hobbes, Hutcheson, the religious utilitarian John Gay and Cesare Beccaria. In the long version, David Hume is noticed only in a brief section, while in the short version he is the main target of Bentham’s comments. Since these comments reveal a perspective on the utilitarian tradition that finds a context in the debates of modern commentators on Hume’s thought and its utilitarian elements, I leave this part of the discussion to the next chapter. In the present chapter I employ Bentham’s epochal framework from the short version of the article as a guide to the discussion of his personal perspective on the core conceptual components of utilitarian theory, and discuss his ‘latest improvements’ to the doctrine.

1. Epochs in a History Throughout Bentham’s life his writings exhibit a remarkable memory for the striking aphorisms and maxims he imbibed as a boy reading Greek and Roman authors. In the drafts of the ‘Article on Utilitarianism’, however, his recollection of the influence of classical authors on his intellectual development allowed few to be worthy of comment. In this regard John Mill’s sensitivity to his intellectual heritage demonstrated a more thoughtful embrace of Greek and Roman philosophy.4 Passing over Plato completely, disparaging Aristotle, recalling his boyhood futility translating the ‘nonsense’ of Cicero, 5 Bentham’s reconstruction of the history of the utility principle begins not with the ‘epoch’ of Epicurus, as we might expect,6 but with Horace, whom he frequently quoted over the years.7

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Bentham had acknowledged the Epicurean foundations of his philosophy in Dumont’s edition of the Traités de législation, writing ‘Epicurus alone of all the ancients had the merit of having known the true source of morals, but to suppose that his doctrine leads to the consequences that have been imputed to it, is to suppose that happiness may become the enemy of happiness.’ The prudent man will follow Epicurus (and Seneca) in so ordering his life that he will ‘use present pleasure as not to lessen those which are to come’, and ‘what more can morality ask than the retrenchment of every pleasure injurious to one’s self or to others?’ In this, states Bentham, we see ‘the very principle of utility.’8 Nevertheless, it is to Horace, not Epicurus, that he bestowed the laurel for being the first to fathom the relationship between utility and justice. Bentham quotes Horace’s remark in opposition to the doctrine of the Stoics, ‘sensus moresque repugnant Atque ipsa utilitas jiusti prope mater et æqui’, translated to mean ‘in a state of repugnancy to this doctrine are men’s feelings, their customs, and utility herself, mother as she may in a manner be said to be of justice and equity’.9 From this he extrapolated the idea that ‘the source from which our ideas of justice and equity will, if clear and correct, have been deduced’ is utility, and the conclusion ‘there is but one end, namely, that to which justice and equity tend and are subservient – that is to say happiness’.10 However, on one score, at least, Bentham distanced himself from the moral teaching of the poet. When Horace suggested that a wise man would not be persuaded that pleasure could be derived from pain – ‘Sperne voluptates, nocet empta dolore voluptas’, that is ‘Despise pleasures: pleasure bought with pain is noxious’11 – Bentham thought this silly. Pleasure cannot be both esteemed and treated with contempt in the manner Horace thought. To despise pleasure is ‘asceticism tout pure’,12 and ‘the sort of trash’ taught by the Stoics.13 At bottom, pleasure purchased by pain is still pleasure, though the mixture of pain with pleasure lends ‘impurity’ to the pleasure.14 There are two fundamental Benthamic principles at work behind the scenes here: (1) the idea that motives, invisible to the eye of the observer, are neutral, and do not themselves determine the virtue or viciousness of an action; and (2) the pragmatic injunction that each person ought generally to be considered the best judge of his or her own interests. ‘Epoch the second’ heralds a surprising source of inspiration for the young Bentham – the Fables of Phaedrus, a younger contemporary of Horace. Unlike with Horace, however, we do not find any other references to Phaedrus in Bentham’s published writings, and in the ‘Article on Utilitarianism’ his contribution to the history of the utility principle is encompassed in one line: ‘Nisi utile est quod feceris, stulta est gloria’, meaning ‘unless there is something of usefulness in that mode of conduct for which glory is assumed by you, the assumption is a foolish one’.15 Without developing the thought further (Bentham appears to have hoped Bowring would supply some additional material from the Fables),16 he merely comments that in neither Horace nor Phaedrus did the

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idea of utility present itself as ‘a full-grown principle capable of being adopted and worshipped by a house of votaries’.17 Leaping over seventeen centuries of the history of moral thought, ‘Epoch the third’ brings us to David Hume and ‘the first moment at which it [utility] came out in the garb and with the style and note of a principle’.18 In the long version of the article Hume’s contribution to the development of the utility principle is summarily dismissed. Bentham considered the idea attached to it by Hume ‘altogether vague: the general idea not being followed up and by the means of any particular ideas exhibited as representative of so many species contained in the genus denominated, liquidated as it were and applied to practical use’.19 It did not take Bentham long to reconsider this hasty appraisal, and when he came to revise his text for the short version of the article he recognized the need to give Hume a more detailed treatment (discussed in Chapter 3). The unseemly leap from Phaedrus to Hume underscores the personal scope of Bentham’s ‘history’, written with one eye on the debate with the Edinburgh and, perhaps, reflective of the selective memory of the aging philosopher. Bentham’s cursory treatment of Aristotle, Cicero and Locke suggests how little he was interested in constructing an objective history of the utility principle. It does not appear he had read Hutcheson’s An Inquiry into the Original of our Ideas of Beauty and Virtue (1729) or Gay’s short dissertation ‘Concerning the fundamental principle of virtue or morality’ (1731). In the first he would have seen a version of the utilitarian formula and consideration given to the mathematical computation of the moral tendencies of actions, and in the second a succinct statement of the four sanctions of morality similar to his own in IPML, but which are probably an adaptation from Locke.20 Bentham was certainly familiar with Hobbes, with whom he shared the aspiration to produce a ‘science’ of morals and law based on a similar understanding of the mechanics of human motivation, and whom he emulated in developing a positivist theory of law based on a considered contempt for common law.21 We might have expected some commentary to this effect in the ‘Article on Utilitarianism’. Locke is entirely omitted from the short version of the article, while in the long version it is his theories of property, justice and the ‘original contract’ that are discussed. The influence of Locke’s metaphysics and epistemology, including the important distinction between simple and complex ideas, the inductive method and stress on the importance of clarity in the terminology of ideas and principles, are reduced to a single acknowledgement of ‘the prodigious obligations which mankind are under to the herculean mind and beneficent labours of John Locke’22 In the Essay Concerning Human Understanding (1690) Locke may have written that ‘good and evil . . . are nothing but pleasure or pain’ or that which ‘occasions or procures pleasure or pain to us’,23 but he left the proposition undeveloped – ‘the result of the narrow and not sufficiently attentive view taken of the subject-matter of the principle of utility’, in which Locke’s preference for the idea of ‘uneasiness’ to indicate what he took to

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be the efficient cause of human action is a poor substitute for pleasure and pain.24 That the latter error is reiterated by the despised Blackstone, added to its reprehensibility.25 Indeed, it is the Lockean cast of Blackstone’s defence of the English constitution – a feature of Bentham’s commentary on Locke from his first writings on Blackstone in the 1770s26 – that brought him to dissect the ‘misconceptions’ he perceived in the Second Treatise of Government (1690) in the long version of the article. The first of these ‘misconceptions’ is ‘the supposition that, by indication made of the relation of the import of one word to that of another, the foundation of morals or politics could be laid’.27 What Bentham had in mind is Locke’s association of property rights with justice as an axiomatic truth, 28 a fallacious move he thought designed to shift the disapprobation generally attached to the idea of ‘injustice’ to the violation of property rights. From this Locke deduced the ‘property-trumpeting principle’, which declares that property is ‘the only thing entitled to be the object of care to government’ and, perhaps with a sideways glance at Mill, that the ‘possessors of property’ are ‘the only persons entitled to be represented in and by a representative body forming part and parcel of the sovereign’.29 By making property the focus of government, and property qualifications the basis of representation, Locke would make slaves of the poor to the rich. Finally, the theory of the ‘original contract’ (criticized by Bentham in similar terms to Hume from the very beginning of his campaign against Blackstone) taught men ‘to look for the proper end of government, not in the conduciveness of its forms and arrangements to the greatest happiness of the community, but to the observance of a fiction which, even if it had been a reality, would have wanted much of being an adequate substitute to the greatest happiness principle’.30 Based on these ‘misconceptions’ the Locke of the Second Treatise stands as ‘the properest of all Gods which, within the sphere of politics, can be found for the idolatry of the Whigs, for the worshippers of the matchless and all perfect Constitution, for the Glorious Revolution of 1688, with the slavery of the Roman Catholics under all Protestants, which forms so prominent an article in the list of blessings that have been discovered flowing from it’.31 Foremost among the worshippers was Blackstone. Blackstone was the legal behemoth that shadowed Bentham’s thoughts on the law virtually from start to finish,32 and on this score might have found a more prominent place in Bentham’s reflections. The critic William Empson believed that Bentham’s reaction against Blackstone’s constitutional optimism drove him to ‘the opposite extreme, – whatever is, is wrong’.33 There is some truth in this, for rarely did Bentham perceive anything about English legal theory and practice that he thought good enough not to need improvement, elimination or replacement, and this vigorously critical attitude came to be applied to nearly every corner of social and political life. The Lockean fictions of natural law and contract theory upon which Blackstone based his account of the English constitution led Bentham to a ceaseless campaign against the

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abstractions of law, philosophy and politics. If the works of Plato were ‘the grand original mint of moral unintelligibles’,34 radicals like Thomas Paine were the purveyors of political fictions, and Blackstone was pre-eminent among the ‘dealers of fiction’ in the field of law.35 ‘Epoch the fourth’ is associated with Bentham’s reading of David Hartley’s Observations on Man (1749). Hartley is an important figure in the development of utilitarian theory. He was acquainted with Gay at Cambridge, and tells us that Gay inspired him to examine ‘the power of Association’ and ‘the Possibility of deducing all our intellectual Pleasures and Pains from Association’.36 It was Hartley’s more sophisticated and generalized version of the association theory that came into philosophical currency in the second half of the eighteenth century, and its influence can be seen in Bentham’s account of ‘habit’ in IPML.37 In the ‘Article on Utilitarianism’, however, Bentham remembered Hartley’s Observations on Man for a different reason: ‘In that work, for the first time, an intimation is given of the connection of the import of the word “happiness” with that of the word “pain” and that of the word “pleasure”; and a translation is thereby made of the language (so to speak) of happiness into the language of pain and pleasure’.38 In addition, Hartley provided a list of types of pleasures and pains, though for Bentham it was far from comprehensive,39 a defect he sought to rectify himself in IPML and ‘A Table of the Springs of Action’ (1817).40 Bentham might also have noted that Hartley provided rudimentary estimates of different ‘pleasures’ and ‘pains’ in accordance with their moral value: the pleasures and pains of sensation (eating, drinking, diet, commerce between the sexes), honour, imagination, ambition, self-interest, sympathy and theopathy (religious sensibilities). What Hartley, like Hume, did not do to Bentham’s satisfaction was to develop a principle (i.e. principle of utility) ‘in the character of an all-directing guide in the walks of public as well as private life’.41 Bentham found the beginnings of this approach in Helvétius’ De l’esprit (1758), which constitutes ‘epoch the fi fth’. For Bentham the impact of De l’esprit on the field of morals and legislation could not be overstated.42 There are many eulogistic mentions of the ‘oracle’ or ‘divine Helvétius’ in Bentham’s correspondence and other unpublished manuscripts from early in his career.43 In later life he recalled it was Helvétius more than anyone else who ‘set me on the principle of utility’,44 and in a typical rhetorical flourish marked the reputation he had achieved (with Dumont’s help) in terms of surpassing the Frenchman.45 Helvétius clearly saw the potential for utility as a guide to human conduct by following Hartley in making the necessary connection between happiness and the ideas attached to the words ‘pleasure’ and ‘pain’. This meant that ‘attached to the words “utility” and “principle of utility” were now ideas in abundance’,46 sufficient ‘to inspire the legislator with the resolution to force the people to submit’ to laws grounded in the ‘simple principle’ of ‘utility of the public, that is to say, of the greatest number of men’.47 The primary means to achieve this outcome is by

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effecting an alignment between personal interest and the public interest.48 In this respect, the ‘true doctors of morality’ are not the priests but the magistrates, since only ‘sagacious laws’ can produce ‘universal felicity’.49 For all his accomplishments, however, Helvétius left more to be done to bring the science of morality and law to perfection: ‘having done enough for one man and more than had been done by any other man, he stopt then, leaving the superstructure to be raised by other hands’. 50 ‘Epoch the sixth’ summons upon the stage the dissenting theologian and natural philosopher Joseph Priestley, a radical in politics attached to the Shelburne circle some years before Bentham was introduced into that august company, 51 a fellow-critic of Blackstone, 52 and, with Bentham, Mackintosh and others, made an honorary French citizen by the National Assembly in 1792. The introduction of Priestley into the history signals a puzzling feature of Bentham’s memory of his discovery of the phrase the ‘greatest happiness of the greatest number’. He says he came by Priestley’s Essay on the First Principles of Government (1768) in ‘a circulating library belonging to a little coffee-house called Harper’s Coffee-house, attached as it were to Queen’s College Oxford’, when he visited his alma mater to cast a vote in the 1768 parliamentary election.53 This part of Bentham’s recollection is accurate; the record shows he cast a vote in Oxford on 23 March 1768 in the parliamentary election. He believed it was in the last page of Priestley’s tract that he saw the utilitarian formula expressed, or words closely resembling it, the virtue of which ‘is the substituting to the equivocal word “utility” the unequivocal phrase of which happiness is the principal and sole characteristic ingredient’.54 Added to this, it was presented by Priestley in ‘the character of a principle constituting not only a rational foundation, but the only rational foundation, of all enactments of legislation and all rules and precepts destined for the direction of human conduct in private life’.55 Bentham reports the impact this had on him: ‘it was by that pamphlet and this phrase in it that his [Bentham’s] principles on the subject of morality, public and private together, were determined . . . that he drew that phrase, the words and import of which have by his writings been so widely diffused over the civilized world. At sight of it he cried out as it were in an inward ecstasy like Archimedes on the discovery of the fundamental principle of Hydrostatics, EÛDηκα’.56 This strident commentary on the impression made on the young Bentham by Priestley’s essay, embellished with a detailed memory of the circumstances in which he encountered the greatest happiness edict in its last page, has for long diverted Bentham scholars. Stated so confidently, it is difficult to doubt the veracity of his remarks. Moreover, he repeated the claim on several other occasions, 57 and just a year before writing the ‘Article on Utilitarianism’ expressly asserted that the phrase the ‘greatest happiness of the greatest number’ was ‘copied’ from Priestley.58 Nevertheless, doubt the veracity of such remarks we must, because Priestley did not author the phrase attributed to

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him. There are numerous references to the ‘public good’, the ‘good of the whole’, the ‘good of the community’, the ‘interest of the people’, 59 and the like in Priestley’s essay, but the closest he came to the directive rule of utilitarianism is the statement ‘the happiness of the whole community is the ultimate end of government’. More plausible than Bentham’s claim to have first seen the utilitarian formula in Priestley are his occasional attributions to the Italian law reformer Cesare Beccaria,60 though he is not mentioned in either draft of the article.61 In a Commonplace Book jotting from 1783 Bentham indicated how shaky his memory was, even at this early date, where he originally saw the phrase: ‘Priestley was the first (unless it was Beccaria) who taught my lips to pronounce this sacred truth: – That the greatest happiness of the greatest number is the foundation of morals and legislation.’62 There are numerous other occasions in Bentham’s writings and letters in which he acknowledged his debt to Beccaria, dating back to the 1770s, not the least in A Fragment where he is styled ‘the father of Censorial Jurisprudence’, a philosopher not afraid to challenge the foundations of the established legal systems of the day.63 Focusing his critical faculties upon the ‘established conventions’ of moral and political life, Beccaria’s aim was to apply systematically the principles enunciated by Helvétius, specifically those regarding the nature of motivation and the role of punishment. The objective is to harmonize self-interest with social well-being by constructing a system of laws and punishments ‘upon the foundation of self-love’, making ‘the general interest . . . the result of the interests of each’.64 This led Beccaria to express almost word for word, the utilitarian formula – ‘la messima felicità divisa nel maggior numero’ – as the only valid criterion for evaluating the merits of law.65 What particularly struck Bentham, however, was the attempt to introduce ‘the precision and clearness and incontestableness of mathematical calculation’ into the fields of morals and legislation,66 an approach that had a profound impact on Bentham’s own speculations on quasi-mathematical modes of measuring pleasures and pains, and in determining the appropriate proportions of punishment. Surprising to find, therefore, Beccaria’s omission from Bentham’s ‘history’ (perhaps the consequence of writing under the pressure of a publishing deadline, something entirely alien to Bentham’s habit). Paley’s omission from the original long version of the article is less surprising, even though Bentham had engaged in a lengthy dialogue with his theological counterpart in writings stretching from his critique of oaths in the early 1770s to the later writings on religion.67 In fact, he once confided to Dumont that Paley had in fact used the utility principle ‘in the sense I used it in’, meaning that unlike Hume, Paley used the principle to demonstrate what ought to be rather than to account for that which is.68 At bottom, however, Bentham was repulsed by the ascetic implications of Paley’s religious variant of utilitarian moral theory and did not read his Principles of Moral and Political Philosophy when

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it was first published in 1785. At the end of his life it was only as an after-thought that he remembered Paley’s work and added a final section to the short version of the article, in which he dismissed the manner in which Paley employed the utility principle on the grounds that the words ‘pleasure’ and ‘pain’ were not explicitly attached to it.69 Behind this, however, lurked Bentham’s antagonism towards the religious adherents of utility, and his jealous regard for his own historical place, if not as the founder of the theory at least as the philosopher who had done most to clarify the meaning of the principle of utility and its related concepts, who was its most consistent and systematic expositor, and who had demonstrated the practical value of its application across an expansive range of social, economic, legal, judicial and political issues. To illustrate the veracity of these claims Bentham directed attention to a selection of his most important works, corresponding to epochs 7–11 in the short version of the article: A Fragment on Government (1776), IPML (1789), Chrestomathia (1816–17), ‘A Table of the Springs of Action’ (1817) and Codification Proposal 1822). Much of what he has to say is little more than a highlighting of the theoretical advances associated with each text. So, for example, in A Fragment the concepts ‘happiness’ and ‘utility’ are ‘represented as interconvertible’, but neither concept is broken down or related to the ideas of ‘pain’ and ‘pleasure’.70 The purpose of the work was to procure for the utility principle ‘reception in the character of a fundamental principle of government in preference to the fiction stiled “the original contract”.’71 In IPML he stated the fundamental principles and basic concepts of utilitarian philosophy, listed the several forms of pains and pleasures matched with corresponding motives, and ‘the idea associated with the word “motive” is . . . rendered clear and determinate’, with an ‘inventory list’ of the several forms of motives.72 One of the aims of Chrestomathia was to illustrate in the form of tables ‘the conduciveness of the several branches of art and science to the maximum of happiness, and, by means of that common property, exhibiting their relations to each other’.73 ‘A Table of the Springs of Action’, in which Bentham rectified some of the defects and omissions in IPML, filled out the analysis of motives under the categories ‘eulogistic’, ‘dyslogistic’ and ‘neutral’, and to pains, pleasures and motives are added the corresponding ‘desires’ and ‘interests’.74 In IPML each motive is explained by its connection with the correspondent pain or pleasure; in ‘A Table of Springs of Action’ ‘each interest is explained by its connection with the correspondent pain or pleasure, as also with the correspondent motive’.75 Other ‘psychological entities’ – such as ‘affections’, ‘passions’, ‘virtues’, ‘vices’, ‘moral good’, ‘moral evil’, etc. – are also explained and their relations to pains and pleasures clarified.76 Though Bentham incorrectly equated the Codification Proposal with his first use of the terms ‘greatest happiness of the greatest number’, in this text, he says, the several arrangements proposed are each related to this end, and the ideas of utility, happiness, pain and pleasure are ‘thoroughly explained by each other’. Moreover, it is there shown how the

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‘exemption from pains – from particular pains – the happiness of all will be augmented by the all-beneficent, means there proposed’.77 Thompson made a free use of these passages in the long version of the article corresponding to the epochs in Bentham’s ‘history’, at times summarizing his statements and elsewhere expanding on the points made, though he omitted all mention of the Codification Proposal.78 Bentham then turned to the ‘latest improvements’ to the greatest happiness principle. There are two such improvements: (1) the substitution of the ‘greatest happiness principle’ for the ‘greatest happiness of the greatest number’ formula, and (2) the introduction of the ‘non-disappointment principle’ as a constituent end of utilitarian legislation. The significance of these advances in utilitarian theory was barely grasped by Thompson. He used parts of Bentham’s demonstration of the misleading character of the ‘greatest number’ portion of the greatest happiness principle, and other related points,79 but seems not to have understood the egalitarian implications of this change in nomenclature, and omitted altogether mention of the ‘non-disappointment principle’.

2. The Greatest Happiness Principle Bentham explains that his initial preference for the term ‘utility principle’ rather than ‘greatest happiness principle’ to describe the idea upon which his ‘doctrine’ is founded was encouraged by ‘the stock of conjugates’ that could be derived from it: ‘ “utilitarian” for the class of persons by whom the principle is embraced and recognized as the source of right and wrong; “utilitarianism” for the system embraced in the doctrine taught by those same persons. From the locution, or say denomination, “greatest happiness principle”, no word to answer these two purposes can be deduced’.80 However, the problem encountered in this usage, as Macaulay maintained, is that the term ‘utility’ could mean different things or imply different ends to different people, and this resulted in ‘the drawing down to a correspondent extent the sentiment of disapprobation upon the opinion on the reception of which all the good that could be produced by the dissemination of the principle depended’.81 The mistake was to suppose that by the principle of utility anything could be meant other than the approbation of measures that contribute to ‘human happiness taken in the aggregate, to the maximum of the happiness enjoyed by the aggregate composed of the several members of which the community in question is composed’. As such, all pleasures of whatever sort and without distinction that contribute to the aggregate of happiness, so long as pain or loss of pleasure to a greater amount are not produced, are due the sentiment of approbation.82 It was in the summer of 1822 that Bentham first acknowledged the susceptibility of the phrase ‘utility principle’ to an interpretation at odds with the

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intention of his philosophy, when he added a footnote to the 1823 edition of IPML to clarify his meaning: The word utility does not so clearly point to the ideas of pleasure and pain as the words happiness and felicity do: nor does it lead us to the consideration of the number, of the interests affected: to the number, as being the circumstance which contributes, in the largest proportion, to the formation of the standard here in question; the standard of right and wrong, . . . This want of a sufficiently manifest connexion between the ideas of happiness and pleasure on the one hand, and the idea of utility on the other, I have every now and then found operating, and with but too much efficiency, as a bar to the acceptance, that might otherwise have been given, to this principle.83 It is clear from the reasons Bentham gave for making the change (in a letter to Dumont), that by the new terminology he had in mind, at least at this juncture, the formula the ‘greatest happiness of the greatest number’.84 His reasoning is reiterated in another footnote, this time to the 1823 edition of A Fragment, opting he says for the phrase ‘greatest happiness principle’ for the sake of shortness, ‘instead of saying at length that principle which states the greatest happiness of all those whose interest is in question, as being the right and proper, and only right and proper and universally desirable, end of human action’.85 Bentham’s last known use of the phrase ‘greatest happiness of the greatest number’ is in a letter to Robert Peel, then Home Secretary, on 1 April 1826, in the context of an exchange of correspondence discussing the possibility of a new law governing the circumstances in which corpses might be made available to the anatomy schools.86 But it was not long before he detected a serious and potentially debilitating problem caused by this phrasing – a justification for inordinate sacrifices by the minority, however a minority might be composed, in the interests of enhancing the happiness of the majority. Bentham considered this a false conclusion. ‘Be the community in question what it may’, he writes in the long version of the article, ‘divide it into two unequal parts, call one of them the majority, the other the minority, lay out of the account the feelings of the minority, include in the account no feelings but those of the majority, the result you will find is that to the aggregate stock of the happiness of the community, loss, not profit, is the result of the operation’. The less the numerical difference between the minority and the majority, ‘the less the difference between the two unequal parts’, the more obvious the error in the calculation of aggregate happiness will be.87 Logically then, the closer we approximate the happiness of all the members of the community, the greater the aggregate of happiness. Bentham offered a mathematical demonstration of the truth of this proposition. Suppose the majority of any given community numbers 2,001 and the minority 2,000, and that the stock of happiness is divided equally between all 4,001.

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If each of the 2,000 in the minority is deprived of his/her happiness and this is redistributed among the majority of 2,001, whatever way it is redistributed ‘instead of augmentation, vast is the diminution’ that will result. The reason is this: ‘The feelings of the minority being by the supposition laid entirely out of the account (for such in the enlarged form is the import of the proposition), the vacuum thus left may, instead of remaining a vacuum, be filled with unhappiness, positive suffering – magnitude, intensity, duration taken together, the greatest which it is in the power of human nature to endure.’ The net result is that the ‘profit’ in happiness made by the majority is more than outweighed by the ‘loss’ in happiness suffered by the minority. This calculation involves more than the counter-intuitive supposition that measure for measure quantities of unhappiness/pain outweigh quantities of happiness/pleasure.88 Rather, Bentham’s analysis depends on the intuitively sound assumption regarding ‘the nature of the receptacle’ and its capacity to suffer pain or unhappiness, which ‘during any given portion of time’ is greater than its capacity to absorb quantities of happiness. Any calculation of the net happiness following the dispossession of the minority of their wealth or their property, happiness or freedom, will arrive at the same conclusion – a net loss in the aggregate happiness of the community.89 There is more to be said in defence of Bentham against critics who construe utilitarianism as requiring intolerable sacrifices, and we will return to this in Chapter 4. For the present, it needs to be said that Bentham’s mathematical demonstration is offered to explain why he abandoned the ‘greatest happiness of the greatest number’ formula and replaced it with the ‘greatest happiness principle’ as a more accurate reflection of the intent of the utilitarian doctrine. As we have seen, by 1823 Bentham was already in the habit of employing this version of the utilitarian principle, even while he believed the longer formula correctly indicated the appropriate end of government.90 But it had yet to take on the meaning he was later to impart to it as the solution to the misconception caused by the strictly aggregative implications of the ‘greatest happiness of the greatest number’. Until at least the spring of 1826 it functioned only as an abridgement of the longer formula. Sometime after this, and before he put pen to paper in the ‘Article on Utilitarianism’, the greatest happiness principle assumed the mantle of the utilitarian principle. Why did Bentham not twig to this defect in the utilitarian formula earlier? One possible explanation is that from around 1809 forwards he tended to associate the ‘greatest happiness of the greatest number’ with the ‘subject many’, the majority in need of assistance. This can be seen in the marginals he penned for ‘A Table of the Springs of Action’, where he commented with regard to the ‘only justifiable end’ of constitutional law (the greatest happiness of the greatest number) that a man, ‘according to his situation and frame of mind, . . . will take for his actual object or end, the happiness of the subject many or ditto of the ruling few’. But whatever is his situation ‘he ought to prefer

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ditto of the subject many to the ruling few’.91 This reading is also apparent in the new preface to the 1823 edition of A Fragment, where he explained the circumstances of the original publication of the book in 1776 and the reaction to it from the likes of Blackstone, Mansfield, Camden, Wedderburn and others associated with Lord Shelburne.92 According to Bentham, Wedderburn, Attorney General from 1778, and thereafter Chief Justice and Lord Chancellor, correctly identified the greatest happiness as a ‘dangerous principle’, a danger to established interests, ‘the sinister interest of all those functionaries, himself included, whose interest it was to maximize delay, vexation, and expence, in judicial and other modes of procedure, for the sake of the profit extractible out of the expence’.93 Here again Bentham associated the ‘greatest happiness of the greatest number’ with the ‘subject-many’. The presumption is that the ruling few – ‘the fee-fed lawyer, and the tax-fed or rent-fed priest, all prostrate at the foot of the throne’ – are in no special need of the assistance of government. It is this confederacy of ruling interests that stands opposed to the interest of the greater number, the dominant interests that require ‘that the quantity of power, wealth, and factitious dignity, in the possession and at the disposal of the ruling few, should be at all times as great as possible’. Manifestly, it is therefore the interest of the ‘subject many’ that the opposite be the case, ‘that the quantity of power and wealth at the disposal of the ruling few should at all times be as small as possible’.94 The solution lay in a radical reform of government, whereby those whose particular interests have been brought into ‘coincidence’ with the universal interest replace rulers opposed to the universal interest.95 From this it is plain that at this time Bentham’s political convictions led him to associate the ‘greatest happiness of the greatest number’ with the subject-many, the majority and he little detected the inherent threat the formula contained for minorities, whether defined by profession, social rank, religion or (as we would add today) ethnicity and language. By the time Bentham came to associate utilitarianism with the ‘greatest happiness principle’ in the ‘Article on Utilitarianism’ it was no longer a mere shorthand substitute for the longer formula, but was intended as a replacement in order to dispel any possible misreading of his intentions. Of itself this would be insufficient to dispel the charge frequently made against the Benthamic form of utilitarianism, that it cannot avoid the sacrifice of individual interests or the interests of minorities to those of the majority. The short answer, most recently stated by Philip Schofield, is that Bentham accepted the need to sacrifice the interests of some if it is justified by an increase in overall happiness.96 If he did not hold this position then he could not argue that the interests of the ruling few should give way to the interests of the subject many. However, this did not mean that every sacrifice was acceptable according to the utility principle, and it was never acceptable that the interests of the minority could simply be ignored. At the very least, the need to avoid the disappointment of expectations meant that the utilitarian legislator would uphold certain protections for persons and their property. Moreover,

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even if occasional sacrifices were still warranted, even if there were times when the only possible utilitarian outcome of an issue required that a portion of the happiness of a few be sacrificed to the quantifiably greater happiness of the many, to truly maximize a community’s happiness Bentham held that ideally each individual ought to enjoy an equal quantity of happiness.

3. The Non-Disappointment Principle The ‘non-disappointment principle’ was intended by Bentham to serve as a practical guide in the fashioning of legislation, particularly when it treated of property. The principle appeared for the first time in print in this precise form in A Commentary on Mr Humphrey’s Real Property Code (1826).97 However, its existence in Bentham’s theory of civil law can be seen in rudimentary form in his earliest writings on the subject in the 1780s,98 though it is ill-defined in the version of the civil law writings produced from these manuscripts by Dumont.99 A version of the principle made an appearance as the uti possidetis principle (in Roman law ‘as you possess, so you may possess’ or colloquially ‘what you have you hold’) in two other texts a decade before the commentary on Humphrey. In Plan of Parliamentary Reform it was enlisted to justify leaving the monarchy and aristocracy in possession of their land, titles and offices,100 while in Church-of-Englandism it took on a form closer to the full dimensions of the ‘non-disappointment principle’, where it is introduced, rather optimistically, as a guide to the strategies by which the reform and eventual ‘euthanasia’ of the established church might be accomplished.101 In the latter instance it embraced the idea of compensation for disappointments brought about through legislative means: where there was a legitimate expectation of possession or of continuing possession of church properties and offices, the pain that would result from the disappointment of such expectations should be adequately compensated. This is a core feature of Bentham’s final adumbration of the theory of civil law, a vital addition to its ‘subordinate ends’, namely security, subsistence, abundance and equality, each of which is intended to guide the legislator in the development of policy and law to enhance ‘the sum of social happiness’.102 The significance Bentham attached to the `non-disappointment principle’ is indicated by the terms he employed to describe it. It is, he says, the ‘one all-comprehensive rule’ upon which all property arrangements ought to be based.103 By this principle, ‘the first application, or say emanation, of the greatest happiness principle’, all the arrangements of the law of property ‘in its most extensive sense’, meaning ‘all objects of general desire’, are ordered.104 However, it is in relation to property in the material sense and the expectations to which it gives rise that the principle earns its keep. Property is a creature of law, not an a priori claim rooted in natural right, and without law there is no ‘right’ to one’s possessions. The law functions both to create and protect

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the expectations associated with property, thus it would be contradictory for the law to threaten the security of expectation that it has itself created, and when the legislator does not contradict it ‘he does what is essential to the happiness of society; when he disturbs it, he always produces a proportionate sum of evil’.105 Every attack upon such expectations ‘produces a distinct and special evil, which may be called a pain of disappointment’.106 Therefore, the first duty of the law is to maintain the established distribution of property by conferring the ‘rights of personal security’ and the ‘rights of property’, and to punish infringements of these rights.107 The priority Bentham gave to security in this analysis can be further explained in relation to another of the subordinate ends of utility – equality. There are three forms of equality implicit in Bentham’s formulation of the practical application of the utility principle. First, it takes the form of basic legal equalities, such as equal protection of the laws in terms of the security of the person, his liberty and property. Second, it involves political equality in terms of democratic institutions to ensure that the public interest is the only goal of government. Third, it implies that where possible the equalizing of possessions ought to guide economic policy. In these ways equality is designed to promote the greatest happiness. However, equality in the third sense has the potential to run contrary to equality in the first sense (hence the conditional where possible), and this is why Bentham recommended that caution be observed when recommending policies to equalize the distribution of property. Such caution is necessitated by utility, but as he explained in Supply without Burthern (1795) ‘all inequality that has no special utility to justify it is injustice’,108 a position restated over twenty-five years later in Leading Principles of a Constitutional Code: ‘In proportion as equality is departed from, inequality has place: and in proportion as inequality has place, evil has place.’109 Further, in the Constitutional Code he explained that the ‘universal interest requires, that, in regard to subsistence, abundance, security, and equality, the aggregate mass in the community in question, be maximized; and that in particular the shares, which are the result of the three first, be as near to equality as consistently with security in all other shapes they can be’.110 Accordingly, Bentham argued that in the first instance the existing property distribution is to be retained, since the legitimate possession of property is a fundamental security that each person ought to possess – it is, in other words, a fundamental constitutive element of the happiness of each and every person. Security is maximized by being made universal (and hence afforded to each equally), and the same is true of subsistence. The aim of legislation is to ‘maximize’ each of the four subordinate ends of utility – especially subsistence and security – ‘in so far as is compatible with the maximization of the rest’.111 The caveat is crucial for understanding both the extent to which equality is implicit in Bentham’s understanding of the utility principle, and the limitations placed upon equality as a goal of legislation.

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Equality is a fundamental characteristic of the ends of security and subsistence, since these ends apply to everyone. However, as a goal of economic policy the priority given each person’s security puts effective limitations on what governments ought to undertake. But here again a conditional is required. Security cannot be absolute if this means sacrificing the means of subsistence, and there may arise situations – for example, situations in which food shortages adversely affect the poorer members of the community – when government is required to intervene to breach the security of property of some, the well-off, in order to ensure the subsistence of the rest by taking action to redistribute goods. For the most part, however, it is security that trumps equalizing policies when subsistence is not at issue, and is a fundamental feature of the practical application of the utility principle, according to which disappointment prevention is given a high priority. Even so, it is not meant as a bulwark against all reform in the distribution of property. Slavery should be abolished, Bentham thought, but not in a manner that might reduce to poverty those legally involved in the trade; compensation from public funds would make up for the disappointed expectations of slave traders.112 Moreover, government could intervene to redistribute wealth on those occasions when legitimate expectations would not be thwarted, for example when a man dies leaving to his heirs a vast inheritance or if he should die without an immediate heir. On such occasions the law may intervene, albeit cautiously, ‘either by limiting in certain respects the testamentary power, in order to prevent too great an accumulation of wealth in the hands of an individual; or by regulating the succession in favour of equality in cases where the deceased has left no consort, nor relation in the direct line, and has made no will’. In the latter circumstances ‘equality may do what is best for all without disappointing any’.113 In the situation where a man dies leaving no immediate heirs Bentham proposed that the state should take possession of half the estate, leaving the other half to be disposed in any manner decided by the deceased. The reason for limiting the state’s right to only half of the total value of the property is to dissuade the owner from acting in a profligate manner when nearing the end of his life.114 Bentham also viewed the imposition of taxes as tending towards equality. Though it could be seen as an unjustified violation of the rights of ownership and the security of expectation of those forced to pay taxes, he argued that moderate rates of taxation should be considered a ‘defalcation’, that is ‘a fi xed, regular, and necessary deduction, which is expected; which produces only an evil of the first order; but no danger, no alarm, no discouragement to industry’.115 On this basis, supplied with sufficient resources, the law could intervene to ensure that the state provides necessary services such as education and basic health care and, where other options are not available, to assist the indigent.116 Such intervention would clearly be justified in terms of the long-term benefits to the people, an enhancement of the greatest happiness.

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The theory of diminishing marginal utility also plays an important role in this analysis. The relationship between amounts of wealth and quantities of happiness is an issue that engaged Bentham on several occasions, nearly always in a way that underscores the limitations of additional wealth as a means of happiness in the hands of those who were already comparatively wealthy. As he put it, ‘The effect of wealth in the production of happiness goes on diminishing, as the quantity by which the wealth of one man exceeds that of another goes on increasing: in other words, the quantity of happiness produced by a particle of wealth (each particle being of the same magnitude) will be less and less at every particle’.117 The undercard of the discussion, however, is that the same amount of money distributed to those of meagre means would produce a far greater quantity of happiness. This suggests that the greater the equalization of wealth, the greater the quantity of happiness. However, as we have seen, this ought not to be the absolute determinant of an authoritative redistribution of wealth, since even the smallest dispossession of property that is rightfully owned could be viewed as an attack on the general security of all, cause undue alarm and undermine the confidence of the people that their property will be protected.118 It was on these grounds Bentham opposed all general schemes for the equalization of wealth, and argued that policies to enhance equality must be incremental, at all times respecting existing expectations, and proceeding strictly in accord with the compensatory requirements of the ‘non-disappointment principle’.119

Conclusion Thompson’s failure to grasp the significance of the equalizing tendencies implicit in Bentham’s replacement of the ‘greatest happiness of the greatest number’ by the ‘greatest happiness principle’, and his egregious omission of any discussion of the ‘non-disappointment principle’, robbed the debate with the Edinburgh of important aspects of the defence of the utility principle. Moreover, it is Bentham’s essentially conservative disposition towards property that constitutes the utilitarian answer to the protests of the Whigs, that a too extensive broadening of the suffrage would lead the newly enfranchised to use their power to overturn existing property relations. It would not be in the public interest (constituted of the individual interests of each person) to undermine property rights in toto. Regrettably, this was a response that eluded Thompson in the exchange with Macaulay. Related to this, it is also important to note that it is in the analysis of the utilitarian value of establishing security of property and expectations that Bentham most closely approximates Hume’s theory of justice, though the censorial and practical turn of his mind when it came to the maximization of utility is not evident in Hume’s approach.

Chapter 3

Contra Hume

There is abundant textual evidence of Bentham’s familiarity with virtually the entire range of Hume’s writings, including the History of England (1754–62), which he read as a youth, the Treatise on Human Nature (1739–40), Essays, Moral and Political (1741–2), generally those pertaining to politics and economics, the two Enquiries (1748, 1751), the second containing Hume’s short commentary ‘Why Utility Pleases’,1 and his writings on religion.2 Bentham was fascinated by the author of these path-breaking works,3 and understood he was following in the Scotsman’s footsteps in significant ways. As is well known, Hume was convinced that moral philosophy like natural science must begin with empirical observation, that the techniques of the one are equally applicable in the case of the other. Bentham’s adoption of the principles of the new science, his broad sympathy with the Lockean epistemology, and alignment with modernism and its rejection of the uncritical reliance on ‘authorities’, together with his impatience with all forms of superstition, are obvious similarities with Hume. On one occasion he described Hume as a genius on a par with Locke, Newton and Adam Smith,4 but most often his praise was qualified. From the very beginning, in nearly every reference Bentham made to Hume’s moral philosophy there is a stated ambivalence as to its value, occasionally a regret that Hume did not push his arguments to their ‘logical’ conclusions, and he was frequently at pains to distinguish his own precision in reasoning from Hume’s.5 He may have pictured himself in competition with Hume in providing a viable and systematic science of morals and legislation, and this may have led to a degree of exaggeration in marking the differences between his ideas and those of his Scottish progenitor.6 But, on the key issues this is not the case. He genuinely saw the ramifications of his intellectual project as fundamentally different from Hume’s. The nature of Hume’s influence on Bentham has long exercised historians of utilitarianism. The issue has been approached in a variety of ways: by (1) indicating Hume’s formative impact on Bentham, an endeavour dogged by the slippery nature of ‘influence’ as an explanatory tool in the history of ideas;7 (2) recasting Bentham’s thought to reveal its affinities with Hume’s; or (3) reconstructing Hume’s moral theory to draw out its similarities to classical

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utilitarianism. Among an older generation of scholars, Hume was viewed as a crucial contributor to the developing utilitarian tradition.8 Various nuanced phrases have been employed since to capture this perspective – quasi-utilitarian, proto-utilitarian, implicit utilitarian and the like. In recent times two contending perspectives have come to dominate the interpretive landscape. Hume scholarship tends to relegate his connections to utilitarianism to the margins of his thought in favour of its compelling links with the defining elements of the Scottish Enlightenment, so much so that if Bentham thought of Hume as a foundational thinker in the utilitarian tradition, this was based on a misreading. Aryeh Botwinick, for example, outlines the discontinuities separating the two philosophers, and between Hume and utilitarian thought in general.9 He describes Hume’s definition of utility as ‘fairly vacuous’, identified with the tendency of an action ‘to the good of mankind’, but with no clear connection made between utility on the one hand, and pleasure and happiness on the other. And, nor does the concept of pleasure play ‘a balancing function’ in assessing the relevant value of action, as it does for utilitarians; Hume’s theory does not contain a process whereby one might sum the pleasures and pains of a particular course of action. If there is an implicit ‘doctrine of sympathy’ in the utilitarians, by contrast there is ‘a fully elaborated and coherent notion’ in Hume, but it is not one that can be made to underpin the utilitarian conception of the good.10 In these respects, Professor Botwinick captures several aspects of Bentham’s own reaction to Hume. By contrast, recent Bentham scholarship has launched a determined effort to establish important connections with Hume, and concluded that whatever differences remain, Bentham’s dependence on Hume is more substantial than is commonly thought. Gerald Postema refers to ‘the important influence of David Hume on Bentham’s legal thought’,11 though he acknowledges that textual evidence is not of the direct kind, but turns around the striking similarity in their respective ideas.12 As Postema puts it, Bentham’s ‘formulation of problems regarding the foundations, nature, and basic tasks of law, as well as strategies for solving them, are silently shaped by Hume’. His legal philosophy ‘is uniquely his own, but he could not have developed it without Hume’s help’.13 In a similar vein, in a discussion of Bentham’s view of justice, Paul Kelly follows Postema,14 arguing that Bentham thought of law and institutions primarily in terms of a facilitative framework in which the expectations of individuals are formed and protected, and thereby the source of all utilities, and that this looks remarkably similar to Hume in the Treatise.15 Moreover, he argues that in Hume’s thought we perceive the makings of Bentham’s utilitarian theory, concluding ‘without Hume there would have been no Bentham’.16 Fred Rosen notes Bentham’s dismissive approach to the idea of justice in IPML,17 where it is simply reduced to utility and virtually banned from the Benthamic lexicon as redundant and apt to mislead, but nevertheless joins with Postema and Kelly in arguing that there exists a stronger dependence by Bentham on Hume than

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Hume scholars and a good number of Bentham scholars have been willing to allow. To substantiate the connection Rosen engages in an imaginative exercise in the reconstruction of political thought, reading Hume ‘backwards’ from Bentham to reveal the philosophical affinities between the two. He concludes they belong to a ‘common intellectual tradition’, Epicurean in character and involving ‘numerous points of agreement’. These include a shared understanding of pleasure and pain and the desirability of the former and abnormality of the latter, the idea that utility is a primary source of pleasure, and the rejection of the Platonic notion that pleasures could be hierarchically differentiated.18 Moreover, Bentham shared with Hume the same starting point – the empir ical aspiration of individuals to enhance happiness – and if his later radicalism made his utilitarianism appear distinct from Hume’s by being reformist, it is the ‘grounding of his various proposals in an understanding of society and its well-being that linked Bentham with Hume’.19 Rosen acknowledged that there are differences between the two, namely the manner in which Bentham, contra Hume, disengaged justice from the security of property, and the distance Bentham put between his own critical examination of the nature of the traditional virtues and the purely descriptive characterization by Hume. But, he argues that ‘these differences are ones of emphasis or style rather than substance’.20 Impressed by Rosen’s account, Elizabeth Ashford, in the quaintly titled ‘Utilitarianism with a Humean Face’, reverses the perspective to draw attention to the utilitarian dimensions of Hume’s moral theory, which she claims resembles the classical form of the theory (in its revisionist guise) expressed by Bentham and Mill.21 Her objective is to establish Hume’s credentials as a ‘non-maximizing utilitarian’, and to substantiate the affinities with the nonmaximizing elements of Bentham’s utilitarianism. Ashford claims Hume is not far removed from some key passages in Bentham that are directly concerned with the issue of welfare, in which she finds ‘an alternative and more appealing account of the general good’ – an account perfectly consistent with the ‘impartial point of view’ at the heart of Hume’s moral theory.22 In Hume it is the sympathetic spectator who adopts the moral point of view when considering the welfare of others. This is the person whose sentiments are sufficiently advanced and whose imagination is sufficiently refined to enable her to empathize with the experiences of others, based on how she herself would feel if similarly placed. This underscores the egalitarian character of the moral point of view in Hume’s theory – how each person fares matters equally to the sympathetic spectator, and has an equal claim on her attentions from the moral point of view. Further, Ashford sees in Hume progressive elements based on his pragmatic understanding of social change as resulting from the tension between existing customs, practices and institutions, and new ideas and improvements – a dynamic relationship between is and ought, between what presently exists and what ought to exist when measured against

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the standard of public utility. In Ashford’s account of Hume, the rules of justice ought to promote well-being as much as possible, and this requires that the rules be improved gradually as circumstances allow. The key element in Ashford’s view of Bentham, which she shares with Postema and Kelly, turns around the idea that he was an ‘indirect’ utilitarian, much like Mill, who was less interested in utility as a maximizing principle than in its subordinate principles as the basis for the distribution of welfare. In support of this view she quotes Bentham’s Parliamentary Candidate’s Proposed Declaration of Principles (1831): I recognize, as the all-comprehensive, and only right and proper end of Government, the greatest happiness of the members of the community in question: the greatest happiness of all of them, without exception, in so far as possible: the greatest happiness of the greatest number of them, on every occasion on which the nature of the case renders the provision of an equal quantity of happiness for every one of them impossible: it being rendered so, by its being a matter or necessity, to make sacrifice of a portion of happiness of a few, to the greater happiness of the rest.23 As Ashford suggests, here Bentham states an ‘ideal’ objective: the end of government is the greatest happiness of every member of the community. However, when this is not possible, when necessity requires a sacrifice of a portion of the happiness of some, then the default position is ‘the greatest happiness of the greatest number’. Reasonably enough, Ashford takes this to mean that only when it is impossible for government to contrive policies that serve the ‘universal interest’ is a distribution of happiness that is less than universal and less than equal justified. On these grounds she claims Bentham’s concern for ‘the greatest happiness of all, without exception, in so far as possible’ and that the ideal outcome is an equal quantity of happiness for everyone, finds a parallel in Hume’s declaration that the sole purpose of virtue is ‘to make her votaries and all mankind, during every instant of their existence, if possible, cheerful and happy’.24 The ideal goal is for every person to enjoy a life of happiness, and hardships for particular individuals can only be justified when the ideal goal is not possible. In Hume’s phrasing, where hardships for some cannot be avoided, ‘the balance of good’ ought to be chosen as the next best alternative according to the standard of public utility.25 We might quibble with some selective quoting on Ashford’s part – rarely are aspects of Hume’s writings that pose an obstacle to her utilitarian reading of his moral theory considered, and she makes far more of the reformist implications of the moral point of view of the impartial spectator than textual evidence can support – but she presents an important argument for reconsidering Hume’s place in the utilitarian tradition. Where her discussion of Hume and Bentham is clearly deficient, however, is in not coming to grips with

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Bentham’s own criticisms of Hume’s moral theory, and this is a general problem in the scholarship on the issue, and must figure in any claims of ‘influence’ that one may be tempted to make on the grounds of similarity in doctrine. Keenly aware of the debt he owed to Hume, Bentham was equally conscious of his differences from his predecessor, and these are epitomized in the periodic pronouncements he made on Hume’s moral philosophy. Reflecting on the differences between his own speculations in the realm of morals and those of Hume, in the last few years of his life Bentham went so far as to convince himself he gained little from his reading of Hume’s Treatise and Enquiries, and in exasperation declared ‘I would like to conjure up David Hume just to have a level conversation with him.’26 Such a conversation could be expected to follow the arguments presented in ‘Hume’s Virtues and J. Be.’s Intellectual Faculties’, an essay drafted in June 1828, 27 and the ‘Article on Utilitarianism’ a year later. This marked the culmination of virtually a lifelong engagement with Hume, beginning with the ‘Preparatory Principles’ manuscripts, when he first recorded his reservations about Hume’s ‘metaphysics’, 28 and A Fragment on Government in 1776, in which he says he learnt from Hume ‘that the obligation to minister to general happiness’ is ‘an obligation paramount to and inclusive of every other’, 29 and continuing in vacillating fashion in IPML, ‘A Table of the Springs of Action’, Deontology and other works. When Bentham recast his thoughts for the short version of the ‘Article on Utilitarianism’, he realized he had not dealt effectively with Hume in the previous draft, where he mentioned only that Hume was the first to discuss the utility principle as a ‘principle’ and as ‘the foundation or corner-stone’ of a moral system, adding that his understanding of the principle was ‘altogether vague’ and consequently of little practical use.30 In making this observation Bentham sought to distance his own systematic presentation of the utility principle from Hume’s, but without presenting detailed arguments. In the short version of the article Hume’s contributions constitute ‘epoch the third’, and it is here Bentham spelled out his particular criticisms.31 First, he reiterated his view of the ‘ambiguous’ character of Hume’s understanding of the utility principle, in particular the fact he did not always associate it with happiness.32 Second, Hume does not present the ideas of pleasure and pain as the constituent elements of happiness.33 Third, Hume did not adequately classify virtues, and says nothing to explain how virtues may be conducive to happiness.34 Fourth, Hume’s moral theory frequently confounds what ought to be with what is. Fifth, when he posited that ‘reason’ and ‘sentiment’ are the foundations of morals, the proposition constitutes ‘a tissue of vague generalities’ without reference to particular pleasures and pains. Finally, Hume’s discussion of good and evil, like his discussion of utility, is merely speculative and no attempt is made to apply what is said to practice.35 Several of these criticisms overlap, and not all warrant our attention. The thrust of what Bentham had to say comes to this: Hume’s empirical and

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naturalist approach to moral philosophy is worthy of emulation, but there are defects in his thought, especially his ambiguous stance on utility, the vagueness of his account of the virtues, a general failure to recognize that it is consequences and not motives or ‘character’ that determine the virtue of actions, and his inexplicable recourse to ‘moral sense’ and other subjective ideas to explain the foundation of morals. In addition, the several non-utilitarian elements Bentham singled out help explain the political reticence he detected in Hume, his failure to move from what is to what ought to be. It will be helpful to begin this discussion with a statement of the distinctly non-utilitarian features of Hume’s theory, followed by the specific elements of Bentham’s critique. The conclusion I draw from this comparative examination is that Bentham’s criticisms of Hume, while at times over-zealously stated (and on occasion misdirected), stem from the non-utilitarian components of Hume’s theory and convincingly mark off the differences between the two philosophers.

1. The Non-Utilitarian Elements in Hume’s Theory There are three distinctly non-utilitarian elements in Hume’s theory, each of which Bentham would have first seen expressed in the Treatise, though they are also evident in the Enquiry Concerning the Principles of Morals. First, like Hutcheson, Hume held that it is not the action or its consequences but the agent’s motive that is the proper focus of our moral approbation and disapprobation. ‘The external performance has not merit’, he declared, since actions are only the ‘external sign’ of the disposition of the agent. Actions may assist us in determining the ‘moral quality’ of the motives that lie behind actions, but ‘the ultimate object of our praise and approbation is the motive, that produc’d them’.36 Hume illustrated the proposition by supposing a man responsible for many benevolent actions, by which he ‘relieves the distress’d, comforts the afflicted, and extends his bounty even to the greatest strangers’. Such actions are ‘proofs of the greatest humanity’ which bestows ‘a merit on the actions’, but a regard for this merit is ‘a secondary consideration, . . . deriv’d from the antecedent principle of humanity, which is meretricious and laudable’.37 From this Hume concluded that it is ‘an undoubted maxim’, that ‘no action can be virtuous or morally good, unless there be in human nature some motive to produce it, distinct from the sense of its morality’.38 For Bentham, on the other hand, an act is right only if its consequences are beneficial, and the goodness or badness of the motivation behind the act is irrelevant. Indeed, the motive may not be known by anyone other than the agent acting. This raises the question whether Bentham misread Hume when he tells us he learnt from the Treatise ‘that utility was the test and measure of all virtue’?39 Stephen Darwall offers a plausible explanation of Hume’s position.40 On the

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one hand, when Hume argued that an act is only good if caused by a virtuous motive and that what makes the motive virtuous is that the contemplation of it produces a sentiment of approbation in the observer, his moral theory resembles Hutcheson’s. On the other hand, Hume also stated that the observer’s sentiment of approbation does not arise merely from the contemplation of the motive, but is in part a response to the type of act (the ‘external sign’) the motive causes. The witness to a benevolent action feels a sympathetic pleasure and is thereby brought to contemplate and approve the motive behind it and to recognize its virtuousness. In this account what makes a motive virtuous for Hume, but not for Hutcheson, is its pleasurable effects, and this is why Bentham believed that Hume was on the right track and why he says ‘the scales fell from my eyes’ when he first read the Treatise.41 However, it is equally true that Bentham went beyond Hume to evaluate acts exclusively in terms of their consequences and this, as Darwall recognized, was a necessary step to take for a utilitarian reformer like Bentham. For Bentham then, if not for Hume, ‘the test and measure of all virtue’ are the beneficial consequences of all private and public action. Second, in the Enquiry Hume dismissed the idea that self-interest is invariably the source of all passions or affections, and offered a nuanced account of motivation. To the proposition whether the obligation to engage in virtuous conduct lies in a man’s regard for his own happiness and welfare,42 he replied it is superfluous to prove that the virtues which are immediately ‘useful or agreeable to the person possessed of them, are desirable in a view to selfinterest’.43 Why should we doubt ‘that the enlarged virtues of humanity, generosity, beneficence, are desirable with a view of happiness and self-interest’? Just as there must be ‘an original propensity of some kind, in order to be a basis to self-love, by giving a relish to the objects of its pursuit’, so ‘none [is] more fit for this purpose than benevolence or humanity’.44 This suggests a convergence between self-interest and benevolence in Hume’s theory: self-interest motivates a man to acts of generosity and beneficence, but that self-interest in turn is spawned by ‘an original propensity’ to benevolence or humanity. It is tempting to say that within the complexity of this position lurks a disingenuous attempt to have it both ways. But, Hume has at his disposal a better response – the rejection of the view that all motives are ultimately self-interested. Though he professed never to respond to critics, in the Enquiry Hume integrated responses to criticisms directed at the Treatise, including a reply to the objection made by the religious utilitarian John Brown that there is no passion or affection that is disinterested. Brown questioned the need for Hume’s distinction between the affection or the passion and the pleasure connected with the performance of an action. In no way are the passion and the pleasure causally related, he argued, but rather the same thing under different expressions: ‘ “To love my Friend is to feel a Pleasure in doing him Good:” And conversely; “to feel a Pleasure in doing Good to my Friend, is to love him” ’. Hence in the exercise

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of the benevolent passions, the agent’s happiness ‘is essentially concomitant with the Passion itself’, and cannot be separated from it and considered as a distinct end.45 Since the only motive which can oblige men to practise benevolence is the sense of present or the prospect of future happiness or pleasure, for Brown any desire a person may feel to increase the happiness of others must include this prior consideration. Hume construed the point of Brown’s criticism to mean that even ‘the most generous friendship, however sincere, is a modification of self-love’, and even when engaged in schemes to enhance the happiness of mankind a person seeks only his own gratification whether or not the person could be said to be aware of this motivation. His reply turns on the observation that the proposition ‘is contrary to common feeling and our most unprejudiced notions’, and even ‘the most careless observer’ would have to admit the existence of such dispositions as benevolence and generosity and such affections as love, friendship, compassion and gratitude. Moreover, these sentiments are reflected in common language in which they are plainly distinguished from the ‘selfish passions’. To suppose that such sentiments are simply reducible to the latter or merely modifications is based entirely on ‘that love of simplicity which has been the source of much false reasoning in philosophy’.46 If any further proof of this were needed, Hume offers the instances of ‘love between the sexes’, ‘tenderness’ towards one’s own children – the latter ‘commonly able alone to counterbalance the strongest motives of self-love, and has no manner of dependence on that affection’ – and feelings of gratitude. ‘These and a thousand instances are marks of a general benevolence in human nature, where no real interest binds us to the object.’47 Third, and related to the foregoing, Hume maintained in the Treatise that it is ‘sympathy’ for others that cause us to approve or disapprove moral conduct, to take pleasure in the fortune of others and to feel pain when they suffer. Sympathy is the chief source of ‘our sentiment of morals’, and gives rise to all the other social virtues, each of which elicits our approbation due to ‘their tendency to the good of mankind’. We can have no extensive concern for social good but from sympathy, which works by imagining the effect of circumstances on others ‘as if they had a tendency to our own advantage or loss’.48 The act of empathetic imagining extends even to the ‘trivial uneasiness’ experienced by another, such as when a person stutters or has some other natural impediment.49 More importantly, justice and all the other virtues that have a tendency to the public good are ‘indifferent to us, except in so far as sympathy interests us in it’.50 Hume acknowledged in the Treatise that ‘there is no such passion in human minds, as the love of mankind, merely as such, independent of personal qualities, of services, or of relation to oneself’, but it is sympathy for the happiness or misery of others, ‘when brought near us, and represented in lively colours’, that affects us.51 It weakens the more distant we are from our immediate

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circle of family and friends, hence in public life it is necessary that we ‘form some general unalterable standard, by which we may approve or disapprove of characters and manners’. Since private connections will generally prevail over ‘universal views and considerations’, small kindnesses performed for our friends ‘excites more lively sentiments of love and approbation than a great benefit done to a distant commonwealth’. At the same time ‘we know . . . to correct these inequalities by reflection, and retain a general standard of vice and virtue, founded chiefly on general usefulness.’52 It is in this respect that our ‘universal’ moral sentiments demand the assistance of reason, 53 and it is in this domain that Hume sees the value of rules based on the ‘principle of public utility’.54 Consequently, it is in this aspect of his moral philosophy that he explicitly looks like a utilitarian of the stamp that appealed to Bentham. But, as far as ‘sympathy’ is concerned in the matter, Bentham found it an unreliable ‘sanction’ for morality.

2. Hume’s Virtues Bentham complained that though Hume named virtues ‘in great abundance’ and ‘distributed them into classes’, he did not consistently distinguish them one from another or demonstrate ‘in what different ways or proportions they are conducive to happiness’. 55 There is some truth to this. Part of the problem with Hume’s account of the virtues is his tendency to introduce ever more expansive lists without clearly demarcating the forms and distinctions his initial framework suggests. It is also true that Hume rarely went beyond pronouncements on the beneficial tendencies of the virtues to work out in what specific manner they are of benefit, to whom and to what degree. Nevertheless, his account of the virtues is based on the sorts of classificatory distinctions we might have expected to elicit Bentham’s approval. Hume defines a virtue as ‘whatever mental action or quality gives to a spectator the pleasing sentiment of approbation. Vice is the contrary’.56 Virtues could be either strictly ‘personal’ in character or ‘social’ in their orientation; the former have no tendency to public merit, such as personal qualities that are ‘agreeable’ to others, and the latter are admired and respected because they benefit others.57 In the main, the virtues Hume concerned himself with were the ‘social virtues’, those virtues which tend towards the ‘happiness of mankind, the order of society, the harmony of families, the mutual support of friends’ and the like. Virtues of this order are ‘never regarded without their beneficial tendencies’, and ‘are always considered as the result of their gentle dominion over the breasts of men’.58 Certain social virtues, such as humanity and benevolence, ‘exert their influence by a direct tendency or instinct, which chiefly keeps in view the simple object, moving affections, and comprehends not any scheme or system, nor the consequences resulting from the concurrence, imitation, or

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example of others’. This is not true of fidelity and justice, both of which are highly useful to mankind. The benefits of these virtues are not the result of every single act, but rather ‘arises from the whole scheme or system concurred in by the whole, or the greater part of society’. 59 Hume further divides virtues into ‘natural’ and ‘artificial’ virtues, though he acknowledged the difficulty in the distinction. Natural virtues are inherent features of human nature, motives that generally produce good, and generate the sentiment of approbation in those witnessing the actions to which they give rise; such are the virtues of meekness, charity, generosity, clemency, moderation, humanity, love of children, friendship and equity.60 However, Hume also points out that many ‘natural’ virtues are commonly denominated ‘social’ virtues ‘to mark their tendency to the good of society’.61 Complicating Hume’s account is the fact that artificial virtues also have their source in human nature, in natural self-interest. In this attenuated sense of ‘natural’, artificial virtues are acquired over time, influenced by social institutions, modified by circumstances and necessity, and in general are constitutive of a system of rules or conventions to which conformity is required in the public interest. Once established, the exercise of the artificial virtues naturally produces sentiments of approval, on account of our sympathy with the interests of society.62 Taking a page from Aristotle, what Hume means by this is that our inclinations are largely a result of living in society with others, and ‘what necessarily arises from the exertion of [man’s] intellectual faculties may justly be esteemed natural’.63 Chief among the ‘artificial’ virtues is ‘ justice’. To suppose that just ice ‘arises from a simple original instinct in the human breast’ implanted there by nature is an absurd notion; the error lies in confusing ‘instinct’ with habit and education, on the basis of which we frequently act and judge without further reflection.64 The disposition to be just is the quality in a person to consistently adhere to the rules of justice – the system of rules governing property, trade, contracts. It is evident that Hume did not consistently sort out virtues in terms of their relative impact on the greatest happiness, even though he was clear that the particular merit of the social virtues is their beneficial consequence for society. So animated was Bentham in recalling Hume’s ‘errors’ in this regard, that he drafted detailed comments on ‘Hume’s Virtues and J. Be.’s Intellectual Faculties’. As the title implies, Bentham set out to compare Hume’s discussion of virtues in the Enquiry with his own account of intellectual qualities and their relation to morality. With minor variations, he took as his starting point the virtues listed and discussed by Hume in Sects. II and VI of the Enquiry. The first list is constituted of the following: sociable, good-natured, humane, merciful, grateful, friendly, generous and beneficent.65 To these Bentham added ‘ just ice’ but only to eliminate its pretensions as a virtue. Properly understood in civil matters ‘ justice is only the application of the “non-disappointment principle” ’, and in penal matters it is ‘the most appropriate application of the

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remedies against the evils of maleficence’.66 Bentham makes no appeal to the disposition ‘to be just’ with respect to such rules, rather this is determined on the grounds of calculated interest. The second, third and fourth of Hume’s lists contain: honesty, fidelity and truth; discretion, caution, enterprise, industry, assiduity, frugality, economy, good-sense, prudence and discernment; and temperance, sobriety, patience, constancy, perseverance, forethought, considerateness, secrecy, order, insinuation, address, presence of mind, quickness of conception and facility of expression.67 In Sect. VII of the Enquiry Hume discussed ‘qualities immediately agreeable to ourselves’, such as cheerfulness, dignity, courage, tranquility, benevolence, chastity, modesty and allegiance, and in Sect. VIII ‘qualities immediately agreeable to others’, such as politeness, wit, decency, delicacy, indecorum and cleanliness.68 It would not pay a high dividend to follow Bentham through the details of his analysis of the items in these various lists. In general he had two complaints. First, Hume failed to consistently connect these virtues with pleasures and pains, and thereby, from a utilitarian perspective, frequently made distinctions without a difference. According to Hume, we may take pleasure in ‘virtues’ such as perseverance or chastity, for example, but they may not be productive of beneficial consequences either to the person possessed of these qualities or to those immediately connected with him. Second, many of what Hume termed ‘virtues’ were not virtues at all, but rather intellectual faculties (or faculties of the understanding), such as ‘enterprise’, ‘presence of mind’, ‘quickness of conception’, facility of expression’ and ‘wit’, which could be applied by a person to ends that may or may not be beneficial. Clearly, at bottom Hume’s view of what constituted a virtue was not Bentham’s, who consistently characterized virtues in relation to the will: Every virtue is a moral quality in contradistinction to an intellectual; i.e. a quality that belongs to the volitional, not to the intellectual department of the human frame: a quality which is the result of the exercise given to the will, not of the state and condition of the understanding, except in so far as the beneficial state of the understanding is itself the result of exercise given to the will.69 For Bentham, then, moral attributes relate to the intention to produce beneficial effects, while the utility of actions is determined by the good consequences produced. As he put it in Deontology, the test of virtue is ‘conduciveness to happiness’ either of the agent himself (prudence) or others (benevolence); all other virtues, properly understood, ‘are but so many modifications of prudence or benevolence or both together’. The whole of what is meant by virtue, according to Bentham, can be divided ‘into these two branches, forming together a test’, and ‘those which are without value, condemned and discarded: and of those which have value, the value proved and the quantum measured’.70

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This approach to virtues went significantly beyond the attempt to change the terminology to bring clarity to it.71

3. Justice In the Treatise Hume located the initial origins of justice in self-interest and the desire to secure property, and explained its maintenance in terms of the sympathy for the public interest that men come to feel for the rules of justice.72 In the Enquiry he stressed that public utility is ‘the sole origin of justice’.73 To demonstrate this, Hume posits a hypothetical utopia in which ‘every individual finds himself fully provided with whatever his most voracious appetites can want, or luxurious imagination wish or desire’. In this situation there is no need of ‘property’ in the sense of the exclusive ownership of objects, since regardless of the voraciousness of others I have no need to call anything ‘mine’. This makes justice ‘totally useless’ and, therefore, it ‘could never possibly have place in the catalogue of virtues’.74 Similarly, were mankind to live in a situation of ‘extensive benevolence’, the ‘divisions of property and obligation’ would be superfluous and would not be contemplated for a second. In such a situation every man would be ‘a second self to another, would trust all his interests to the discretion of every man; without jealousy, without partition, without distinction’.75 Justice would be entirely unnecessary, and this demonstrates ‘that this virtue derives its existence entirely from its necessary use to the intercourse and social state of mankind’. Only in the ‘common situation of society’, in which we are ‘naturally’ partial to ourselves, family and friends, but capable of learning the advantages that accrue to ‘a more equitable conduct’ towards others, does justice comes into its own, and the obligation to adhere to its dictates, to all laws and regulations that govern the separation of possessions, arises.76 Unlike the merit ascribed to benevolence, which is derived from an original propensity as well as from its usefulness to society, the merit ascribed to justice is solely based upon its utility.77 This view of justice is one of the reasons Hume is sometimes styled a utilitarian much like Bentham: it is in the need for security for possessions, exchange and contract, that Hume locates the first development of the rules of justice, and for Bentham security is the chief objective of civil law. However, if Bentham agreed that justice made sense only in relation to utility, he was less inclined to employ the language of justice, and when he did use it he did so cautiously, and always in a manner that eschewed the subjectivism with which others infused its meaning.78 Simply put, the dictates of the greatest happiness principle are properly understood as dictates of justice.79 Where Bentham differs from Hume, as Kelly points out, is in embracing within his theory of civil law a reformist position vis-à-vis property distribution.80 As Kelly explains,

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the utilitarian legislator must ‘strike a delicate balance between respect for the existing pattern of expectations which entails a certain degree of wellbeing, and the movement to a distribution which enables a greater degree of well-being’.81 In general, however, Bentham sought to banish from moral discourse the confusions that arise from the protean idea of ‘ justice’,82 to shift the grounding of morals and law to the utility principle.

4. The Utility Principle Bentham claims he found virtue equated with utility in Hume’s Treatise, though Hume introduced ‘a few exceptions’ that we will come to in the following section.83 However, the reference is doubtfully correct. Certainly, the idea that it was in the Treatise that ‘the foundations of all virtue are laid in utility’ was not the instruction Hume wanted to convey. In the Treatise Bentham would have read phrases suggestive of the utility principle (such as ‘the good of mankind’, ‘the interest of society’, ‘the public good’ and the like), but he would have found but a sparse use of the term ‘utility’, and then only as a source of pleasure.84 It was clearly only of secondary interest to the capacity for sympathy in explaining the moral sentiments, including the approval of conduct and actions that benefit others. By contrast, Bentham seems to be closer to the Hume of the Enquiry Concerning the Principles of Morals, where it is readily allowed that ‘in common life we have every moment recourse to the principle of public utility’,85 and it is likely here he first saw utility expressed in the form of a principle. That said, his main criticism of Hume’s understanding of the principle is the failure to properly associate it with happiness, pleasure and pain. In Hume, Bentham claims, ‘no where are pleasures and exemptions from pain presented to view as the elements of which the aggregate designated by the word “happiness” is composed’. For Bentham, pleasure and pain are the ‘elementary component parts of every mass of good and evil’, but Hume gave no account of them in the determination of what is right and wrong, and offered ‘no answer to the question, “What ought to be done and what ought to be left undone?” ’86 This part of Bentham’s critique, it must be said, is not wellfounded. Contrary to the impression left by Bentham,87 Hume argued that the pleasure we derive from a ‘machine, a piece of furniture, a vestment, a house well contrived for use and conveniency’, causes us to approve such inanimate objects. The same response is elicited by our witnessing the conduct and activities of our fellowmen: ‘Can anything stronger be said in praise of a profession, such as merchandize or manufacture, than to observe the advantages which it procures to society . . . ?’88 The same can be said of other forms of social activity. The ‘origin of all religious worship’ and ‘the deification of eminent

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heroes and legislators’ are based on their perceived utility. Likewise, ‘all determinations of morality’ have public utility ‘principally in view’, and all disputes ‘concerning the bounds of duty . . . cannot, by any means, be decided with greater certainty, than by ascertaining . . . the true interests of mankind’.89 Like Bentham, Hume argued that the utility of an action depends upon the manner in which it impacts on the interests of those affected by the action, including the interest of the agent.90 Usefulness is agreeable, and engages our approbation. This is a matter of fact, confirmed by daily observation. But, useful? For what? For somebody’s interest, surely. Whose interest then? Not our own only: For our approbation frequently extends farther. It must, therefore, be the interest of those, who are served by the character or action approved of; and these we may conclude, however remote, are not totally indifferent to us.91 With these similarities in mind, in his illuminating introduction to the 1996 reprint of IPML Rosen argues that Bentham follows Hume more closely than is generally thought in describing the function of the utility principle. In the Enquiry Hume explained utility as follows: It appears to be a matter of fact, that the circumstance of utility, in all subjects, is a source of praise and approbation: That it is constantly appealed to in all moral decisions concerning the merit and demerit of actions: That it is the sole source of that high regard paid to justice, fidelity, honour, allegiance, and chastity: That it is inseparable from all the other social virtues, humanity, generosity, charity, affability, lenity, mercy, and moderation: And, in a word, that it is a foundation of the chief part of morals, which has a reference to mankind and our fellow creatures.92 In this statement utility is both foundational to morality and encompasses the sentiment of approbation, and surely Bentham says no more in the pages of IPML when he defined the utility principle as ‘an act of the mind; a sentiment; a sentiment of approbation; a sentiment which, when applied to an action, approves of its utility, as that quality of it by which the measure of approbation or disapprobation bestowed upon it ought to be governed’.93 Rosen’s point is that for Bentham, as for Hume, utility is not here proposed as an external critical standard, but rather is described as a ‘sentiment of approbation’ generally shared by individuals when they appraise actions, laws and institutions. The conclusion he draws is that ‘Bentham’s analysis seems to assume that the principle of utility does not provide on its own a clear guide to what ought to be done’.94 We can extrapolate from what Rosen argues to conclude the following. The utilitarian legislator must begin the process of drafting law by fathoming the

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public interest, and this requires recognizing the interests of all the individuals under his jurisdiction. It is not the legislator’s responsibility to shape those interests only to discover what they are. Once he has come to an adequate understanding of the interests in question, he is to fashion policies and laws which best serve those interests, and in this way he enhances public utility. If this view is correct, it posits an essentially ‘conservative’ role for the legislator, who is not expected to test the value of interests against an objective critical principle (a standard that requires that utility ought to be maximized). He cannot in any sense know what is in the public interest apart from what constitutes the actually existing interests of the individual members of the community. Clearly, in a community in which the legislator is either ill-informed, negligent or malevolent the public interest will not be served, and this partly explains why Bentham later came to advocate democratic institutions. In a democratic community the interests of its members stand the best chance of being properly and adequately recognized by the legislator. Moreover, a democratic community provides the most efficient panoply of checks against the legislator acting to pursue his own interests rather than the public interest. It is reasonable, I think, to assume that Rosen would subscribe to something like this as an interpretation of what Bentham intended in the relationship between the legislator and the public. Rosen’s interpretation has much to recommend it – not because his interpretation is unquestionably correct, but rather because it points to a fluctuation in how Bentham (though not Hume) made use of the utility principle. Certainly in IPML he often relied on an empirical account of what was for or against an individual’s interest, argued that the public interest is defined in terms of the aggregate of individual interests, and did not always apply the utility principle as a critical standard of judgement. To this extent he stands closer to Hume’s position than he was willing to credit. However, as important as these dimensions of Bentham’s theory undoubtedly are, they do not afford an adequate summary of his position. In fact, we do not have to look too far in IPML to find him referring to the utility principle both as the only viable critical standard of moral appraisal, designed to guide individuals and governments in what they ought to do, and as a maximizing principle. I pass over the ‘metaphor and declamation’ with which Bentham opens the first chapter of IPML, and which contains a series of striking phrases suggestive of the normative thrust of his project.95 Instead, I draw the reader’s attention to the studied note to the chapter’s opening paragraph, added by Bentham to the 1823 edition of IPML, in which he explains that by substituting the ‘greatest happiness or greatest felicity principle’ for the utility principle his intention is to refer to ‘the greatest happiness of all those whose interest is in question, as being the right and proper, and only right and proper and universally desirable, end of human action: of human action in every situation, and in particular in that of a functionary or set of functionaries exercising the

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powers of Government’.96 The prescriptive force of this statement is echoed in the body of the original text of 1789, when Bentham states: Of an action that is conformable to the principle of utility, one may always say either that it is one that ought to be done, or at least that it is not one that ought not to be done. One may say also, that it is right that it should be done; at least that it is not wrong it should be done: that it is a right action; at least that it is not a wrong action. When thus interpreted, the words ought, and right and wrong, and others of that stamp, have a meaning: when otherwise, they have none.97 Clearly, Bentham was sensitive to the is/ought lesson taught by Hume, but it did not deter him from employing a conditional use of the imperative. Individuals generally act the way they do because it is in their interest, it brings them pleasure and/or avoids pain, and it is right that they should act in this way – this is what they ought to do. When we apply the same view of the relationship between utility and action in the instance of another person, we draw the same conclusion – we approve of their actions based on the consequent (or expected) utility and say that it is right that they act in this way and this is what they ought to do. When generalized at the level of the legislator Bentham is equally clear about the task at hand: pleasures and the avoidance of pains, are the ends of legislation, and this requires that the legislator understand their value, but pleasures and pains are also ‘the instruments he has to work with’98. Later in IPML he put this in a more direct fashion when he stated: ‘The business of government is to promote the happiness of the society, by punishing and rewarding.’99 What this suggests, of course, is a positive role for government in maximizing happiness, the chief method of which is legislation, and in the first instance through the enactment of penal laws to exclude mischief.100 Which specific mischiefs should be tackled by legislation is determined by the calculation of the benefits and costs of applying sufficient punishment to deter individuals from committing the offences specified. But it should be noted that Bentham’s empiricism did not extend, at least at this juncture in his reasoning, to providing guidelines for the legislator to ascertain which activities the members of the community assessed as detrimental to their interests. Rather, he busied himself with the apparatus of determination to be used by the legislator in deciding what constituted an offence and in what manner and to what degree it should be punished.101 The ‘best judge’ injunction – which states that ‘no man can be so good a judge as the man himself, what it is gives him pleasure or displeasure’102 – is set aside in this reasoning. It is not left entirely to the individual members of the community to decide what is or is not in their interest. In effect, Bentham settles for the reasonable position that lowering the crimerate will enhance the general happiness of the community, without expecting

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the legislator to be dependent on the members of the community to indicate what they considered or did not consider a mischief worthy of punishment. Far from simply recognizing the interests of individuals and reflecting that in laws, the legislator depends on his own calculations of the public interest in terms of their ‘real interests’ (which mischiefs are genuinely detrimental to their happiness), before determining the appropriate strategies to reduce the instances of such mischiefs. Further evidence that Bentham conceived the utility principle as a maximizing principle is available in IPML, where he delineates the individualist premises of his system but also specifies that ‘the art of legislation . . . teaches how a multitude of men, composing a community, may be disposed to pursue that course which upon the whole is the most conducive to the happiness of the whole community, by means of motives to be applied by the legislator’.103 At the very least this indicates a tension between the effort to create the conditions in which the individual’s rational judgement is given the scope to pursue what she takes to be her interests, and the emphasis on expanding the role of the legislator in changing the social environment within which individuals function.104 Acknowledging that these are the tasks of the legislator indicates the distance between Bentham’s utilitarian activism and the strictly empirical stance adopted by Hume. Maximizing happiness is the objective of government – it is what ought to be done. This relationship between utility and law takes us beyond Hume’s analysis of the grounding of the rules of justice in the Enquiry. It is an astounding irony that Bentham, who had earlier praised Hume for properly distinguishing between ‘what is’ from ‘what ought to be’, should complain in the ‘Article on Utilitarianism’ that in Hume’s moral theory the two are ‘confounded at every turn’.105 Bentham considered the is/ought distinction among Hume’s most rewarding philosophical discoveries; it provides the key to unlock the confusions that riddle moral philosophy (including, it would seem, Hume’s). For those moralists who fail to separate what has been done from what ought to be done, Bentham concluded, ‘the whole field of Ethics . . . must ever have been, – yea, and ever will be, – a labyrinth without a clue’.106 It was a complaint he frequently made against the ‘obscure phantom’ of the natural law and its exponents, such as Grotius, Puffendorf, and the Swiss jurist JeanJacques Burlamaqui, who vacillate in their writings between what the law ought to be and what it is, without recognizing their error.107 More especially, however, it was the primary source of the manifold confusions Bentham detected in Blackstone’s Commentaries, the conflation of expository with censorial jurisprudence, against which he railed all his life. That Hume should have fallen foul of his own cautionary analysis is the point Bentham wished to drive home. More realistically, however, his complaint is that Hume failed to move from the strictly empirical appraisal of the existing state of things to proposals for institutional improvement, philosophically a

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less damning criticism, though politically important nonetheless. For example, in a letter to Dumont in 1822 he points out, with deliberate irony one feels, the difference between his own understanding of the utility principle and Hume’s: ‘the use he made of it, was to account for that which is, I to shew what ought to be’.108 Here Bentham underscored the difference between his own utilitarian politics and Hume’s complacency, as he saw it, a complacency that tended to examine social phenomena with a view to explaining why they came into being and what services they supplied, rather than to question whether existing institutions and practices actually serve the public interest, and beyond this ‘to shew what ought to be.’ This is what Bentham believed made his understanding of the utility principle a major advance upon the descriptive function Hume assigned to it. Nor would it settle matters to style Hume a ‘rule utilitarian’. Certainly, he stressed the importance of the observation of rules in ensuring social order, but it cannot be said he advocated a coherent or systematic approach to the development of rules that conform to utilitarian objectives. What currently exists is the product of men’s interactions with each other over time. Whatever developments or changes the future may bring will be dependent on men’s experience and reasoning, on the basis of which they will be led to ‘ juster notions of human affairs’ and make adjustments to ‘the boundaries of moral good and evil’.109 As we have seen, Ashford describes Hume’s approach differently, stressing his commitment to exploring new ideas and improvements to existing customs, practices and institutions. And, it is true Bentham seems not to have grasped entirely the direction of Hume’s science of politics, which was in certain respects more conducive to his own thoughts than he appreciated. For example, in the essay ‘That Politics may be reduced to a Science’, Hume asserts that the task of the legislator is to draw up plans to balance the interests that are advanced among the people for the general good of the community. This being the case the nation’s capacity to survive in an orderly and virtuous condition depends upon its laws and institutions. Just as the ‘tumultuous governments’ of Athens were due to ‘defects in the original constitution’, so the stability of modern Venice is grounded on the orderly form of its government.110 Constitutions, government institutions and legislation are for Hume the structural arrangements which give the state order and upon which the comfort and well-being of its citizens depend. On the basis that there exists regularity between causes and effects, ‘wise regulations in any commonwealth, are the most valuable legacy that can be left to future ages’.111 This is a proposition with which Bentham could not disagree. However, where Bentham is correct in his reading of Hume is in concluding that whatever commitments to improvement we might find in his work, he refrained from systematically deploying the utility principle to critically analyse existing constitutions, institutions and laws as the grounds for suggesting better arrangements to maximize happiness. Hume’s descriptive theory seeks to explain what J. J. C

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Smart calls ‘the common moral consciousness’ or ‘the ordinary man’s moral beliefs’; Bentham’s theory offers a prescriptive guide to conduct and especially legislation.112 In this regard, the purpose of a moral theory is not merely to understand the world, in the sense of correctly describing it, but to introduce improvements based on utilitarian principles, a view that resonates in Marx’s famous declaration: ‘The philosophers have only interpreted the world, in various ways; the point is to change it.’113

5. ‘Ipse Dixitism’ and the Foundation of Morals Bentham complains that when Hume speaks of ‘reason’ and ‘sentiment’ as the only ‘foundation’ of morals, ‘the whole composition’ is ‘a tissue of vague generalities’ lacking any reference to particular pains and pleasures, leaving the question ‘in a state of confusion little if any thing less thick than that in which he found it’.114 The vagueness of which Bentham complains is, I think, understandable, since Hume employs varying terminology to explain the foundation of morals. The ‘principle of humanity’ or ‘fellow-feeling’, ‘moral sentiments’, sentiments of pain and pleasure, and ‘sympathy’, are among the alternative terminology expressed in the Treatise and Enquiry. What is not evident in Hume’s theory is that ‘reason’ performs a fundamental role in the approval or disapproval of actions. In this respect Bentham’s criticism is clearly off base.115 His criticism also seems to miss the mark with regard to the relation between moral sentiments and pain and pleasure in Hume’s theory, though he is correct to point out that Hume did not descend to specific distinctions between kinds of pains and pleasures. Again, there are occasions in the Treatise when Hume’s position is not far from Bentham’s. He allowed that the ‘chief spring or actuating principle’ of the mind is pleasure or pain, and ‘when these sensations are remov’d both from our thought and feeling, we are, in a great measure, incapable of passion or action, of desire or volition’.116 An action or character is virtuous or vicious because it is seen to cause a pleasure or uneasiness of a particular kind, and in supplying the reason for the pleasure or uneasiness we thereby explain the virtue or vice. Just as with judgements regarding the beauty of an object or a place, so in moral actions our approbation ‘is imply’d in the immediate pleasure they convey to us.’117 As we have seen, Bentham’s analysis of the source of approbation in IPML is not very different. However, if his criticisms on this score were unwarranted, there is still a valid reason to distinguish Bentham’s reasoning from Hume’s. Hume argues that the implicit relationship between our moral sentiments and our personal experience of pain and pleasure is evident when we witness the tendencies of certain conduct. For example, were we to ask a man why he engages in regular physical exercise, he will undoubtedly answer ‘because he desires to keep his health’. And, if you enquire further why he regards his health

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as so important ‘he will readily reply, because sickness is painful’. But if you push your questioning to ask why he dislikes pain, he can give no further response. The pain he dislikes ‘is an ultimate end, and is never referred to any other object’. The same will follow in the explanation for any other conduct; it culminates in the experience of pleasure or avoidance of pain, and it is absurd to ask for another reason – at bottom, there must be something that is ‘desirable on its own account, and because of its immediate accord or agreement with human sentiment or affection’.118 Bentham agreed that the ultimate grounds of action lie in pains and pleasures, but whereas he would maintain this as a sufficient explanation that accords with what we know of human experience, Hume treated virtuous action as unlike other modes of conduct. For Hume virtue is an end ‘desirable on its own account’ without reward, desirable ‘merely for the immediate satisfaction it conveys’.119 It could be argued against this that the correlative experience of ‘satisfaction’ is itself a form of pleasure, but the point for Hume is that something is deemed virtuous, not because of the pleasure it brings. Rather ‘it is requisite that there should be some sentiment which it touches, some internal taste or feeling, or whatever you may please to call it, which distinguishes moral good and evil, and which embraces the one and rejects the other’.120 It is the insertion of the principle of humanity, fellowfeeling, taste, moral sense, call it what you will, to which Bentham objected as an unnecessary and troublesome element in the explanation of moral judgement and human motivation. What matters are the feelings of specific pleasures and pains, or feelings of pleasures and pains in prospect, that motivate us to act in particular ways, and which are the pivotal ingredient in the explanation of moral judgement, why we approve certain actions and disapprove of others. Talk of internal sentiments means nothing at all unless they refer to our feelings of pleasure and pain. The subjectivism Bentham associated with the idea of the moral sentiments and its variants is central to his position on ‘sympathy’. In ‘A Table of the Springs of Action’ he styled it the ‘ipse dixit’ principle to underscore its subjective character and capricious tendencies,121 and defined it as the ‘setting up sense or feeling, real or pretended, as a sufficient reason for . . . obligation to act in opposition to utilitarianism: discarding calculation, disregarding consequences in respect of pleasure and pain’.122 The ipsedixit principle, he explained, ‘does not make reference either to happiness or unhappiness, as the end in view or standard of right and wrong in human conduct: but either tacitly or expressly and avowedly the opinion – the declared opinion – of either the writer or speaker himself or some other individual named or unnamed’.123 The sorts of ‘dogmas’ voiced by the ‘ipsedixitist’ include: 1. That happiness is not composed of pleasures and exemptions [from pain]; 2. that there exists duty independent of all regard for happiness; 3. That there exists a justice independent of utility – of happiness – of pains and

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pleasures; 4. That man ought not to be governed by the consideration of his own interest, i.e. of his own happiness, pleasures, etc.; 5. That in general he is not [governed by his own interest] – at any rate that an honourable man is not; 6. That the greatest happiness of the greatest number is not the proper end of the legislator or the moralist . . . ; 7. That if matters were so arranged, that in general each man should have more regard to his own happiness, pleasure, etc., than to that of any other creature or creatures, it would be a bad arrangement.124 In IPML Bentham describes multiple forms of this protean principle – ‘moral sense’, ‘common sense’, ‘understanding’ ‘rule of right’, ‘fitness of things’, ‘law of nature’, ‘law of reason’ (including ‘right reason’, ‘natural justice’, ‘natural equity’ and ‘good order’), ‘truth’, and ‘doctrine of election’. All of this ‘Genius of Nonsense’ he subsumed under the ipsedixit principle.125 In effect, such principles of ‘caprice’ include ‘every principle other than the greatest happiness principle and the ascetic principle’, the latter dismissed on the grounds that it prefers pain to pleasure, unhappiness to happiness.126 Among those ‘to whom ipsedixitism is commodious’ he listed ‘1. Despotic Monarchs; 2. Oligarchists and Aristocrats; 3. Religionists; 4. Teachers of the alreadyreceived systems’, and coupled Hume with ‘Hutchinson [sic] of Glasgow’ among the latter.127 Neither Scot would have been pleased to find himself in this sort of company. Notwithstanding this blanket dismissal of ipse dixit principles, in tabulating the ‘springs of action’ Bentham elaborated upon ‘the pleasures and pains of sympathy’, but underscored the fact that sympathy may be misdirected and, indeed, may be a source of mischief when directed towards those whose conduct produces misery for others.128 However, he did not consistently maintain this critical attitude towards sympathy. In the Deontology, he qualified his dismissal of sympathy as a moral principle opposed to utility, and moved closer to the position taken by Hume. Here Bentham discussed sympathy in the form of an effective sanction in support of utility, added to the list of sanctions (the physical, moral, political and religious) he had previously mapped out in IPML. The reasoning behind this sounds similar to Hume’s: Few men can contemplate altogether without uneasiness – at any rate, if brought home in a close and particular manner to their perception or imagination – pain suffered or supposed to be suffered by a fellow creature: of such uneasiness the nominal seat is in the sympathetic affections, and the name of it, ‘pain of sympathy’. In the idea of this pain is composed the force with which the sympathetic sanction tends on every occasion to restrain the person in question from engaging in any act the tendency of which appears to him to be the giving birth to the sense of pain in the breast of a fellow creature.

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On this view, where there is no counter motive to thwart the force of the restraint of sympathy, ‘it will always be an effective one’.129 In this form Bentham considered that whenever the sympathetic affection arises ‘its tendency can not but be to minister, in the first instance at least, to the well-being of some individual or individuals other than the individual whose breast is the seat of it’. In addition, there is the prospect of others being similarly moved by witnessing its ‘value’ and ‘usefulness’, such that ‘each man’s sympathy finds itself excited and brought into action, as it were, by contagion, by the observation or supposition of the operation of the sympathetic affection in the breast of others’.130 Having made these observations, however, Bentham was quick to remind himself that sympathy could not always be relied upon to function in support of utility. That the sympathy excited in favour of a person ‘should be strong in proportion to its conduciveness to the happiness of the whole community’ is always to be desired, but in too many instances it has been ‘excited not by acts conducive, but by acts detrimental – and that in the highest degree to human happiness’. Moreover, even when beneficial consequences for the community follow acts by which sympathy is excited, in other respects the result may be pernicious – ‘the good produced being neither pure nor preponderant’.131 Rosen’s view of the relationship between sympathy and utility in Hume’s Enquiry is crucial to his attempt to demonstrate Bentham’s similarities with Hume.132 In Rosen’s account of Hume, the sympathy we feel for others, and more generally for humanity, is not the source of pleasure, rather our feelings of pleasure when we witness and approve of utility is the source of our humanity. If we did not experience pleasure when we witnessed or became informed of the great deeds and useful actions performed by others, we could not have developed the sympathy we feel with humanity. The pleasure utility imparts to us is primarily social in nature; it is not only because we benefit from useful practices, events, laws and institutions that we take pleasure, but also because the pleasure others draw from these pleases us. In this way utility and humanity ‘go hand in hand creating a force for morality in society’, prevailing over selfishness and cruelty due to the opportunities for pleasure and happiness they provide.133 It is this developed sense of humanity that enables us to express, in Hume’s words, ‘a general approbation of what is useful to society, and blame of what is dangerous or pernicious’.134 In this manner Rosen re-presents Hume’s position as an interactive relationship between pleasure and pain, on the one hand, and sympathy and ‘the sense of humanity’ on the other, and maintains this closely approximates Bentham’s theory. However, the persuasiveness of this understanding of their respective moral theories is sorely tested by Bentham’s own view of Hume, particularly his criticisms of the subjective character of Hume’s account of sympathy and other manifestations of an ‘original propensity’ in human nature towards benevolence. Bentham thought like Helvétius that there was no reason for Hume’s exceptions to equating virtue with utility, and that the ‘exceptions’ are indicative of

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what he took to be Hume’s commitment to a ‘moral sense’ account of obligations, a theory he shared with Hutcheson, among other moralists Bentham damned as ‘half proselytes to Utility’.135 When Hume strayed from the principle of utility to evoke ‘the benevolent principles of our frame’ as the source of our approbation and disapprobation as to what is right and wrong, he moved from the objective to the murky waters of the subjective. More import antly for Bentham, it is illustrative of a method of ethics just as capable of producing bigotry, prejudice and misery, as it is of producing benevolence and happiness. An ethical system that appeals to intuitions and feelings can be generous and enlightened, but it may also be a cloak for ignorance and oppression. The near total subordination of women to men and the enslavement of black Africans seemed utterly natural to many people in Bentham’s day, but that did not make such attitudes ethical. The subjective ‘moral sense’, like appeals to what is ‘natural’ or in accordance with ‘nature’, is a dubious guide to what ought to be and what ought to be done, particularly when such appeals are made by the religious, in our own time as in Bentham’s. This is the potential for ‘despotism’ Bentham saw lurking within Hume’s account of morals, as he did in all subjective accounts whatever their conceptual framework. The main philosophical point he wished to make, however, is that this leads to inconsistency, and such a disregard for uniformity in first principles seemed guaranteed to undermine the effort to place ethics upon a scientific footing. His disappointment with Hume on this count is forcefully stated in ‘added observations’ to ‘A Table of the Springs of Action’: ‘Hume acknowledges the dominion of utility, but so he does of the moral sense: which is nothing more than a fiction of ipse dixitism. . . . Here then is a compromise of incompatible contradictions – necessary result inconsistency.’136

Conclusion When John Mill was in the frame of mind to credit Bentham’s critique of the principles opposing utility, what he appreciated is the clinical way Bentham demonstrated their subjective character.137 He describes Bentham as a ‘negative philosopher’, someone whose chief value lies in the clearing away of the myths, fallacies and confusions that present themselves as standing obstacles to social improvement in the fields in question. Mill’s comparison between Hume and Bentham on this score is a famous one. If France had Voltaire, he wrote, Britain ‘had the profoundest negative thinker on record, David Hume: a man, the peculiarities of whose mind qualified him to detect failure of proof, and want of logical consistency, at a depth which French skeptics, with their comparatively feeble powers of analysis and abstraction, stopt [sic] far short of’. And what of Bentham? ‘If Bentham had merely continued the work of Hume in this field, he would scarcely have been heard of in philosophy; for

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he was far inferior to Hume in Hume’s qualities. And was in no respect fitted to excel as a metaphysician.’138 The admirable qualities Mill associated with Hume were ‘subtlety’, in which ‘few great thinkers have ever been so deficient’ as Bentham, and ‘the power of recondite analysis’, a capacity possessed in considerable measure by his father but not Bentham. Yet, he allowed that even as a merely ‘negative philosopher’ Bentham filled ‘to an unprecedented extent’ the gaps left by Hume in ‘the field of practical abuses’. This was ‘Bentham’s peculiar province’, to which ‘he was called by the whole bent of his disposition: to carry the warfare against absurdity into things practical’, especially when he turned his attentions to the law. Had he done nothing else, Mill concluded, he ‘would have earned an important place in the history of intellect’, as ‘the chief subversive thinker’ of the age.139 This is an important insight into the raison d’être of Bentham’s project, but it begs amendment to admit the significance of the positive dimensions of his utilitarianism. Certainly, as a critical principle of morality, utility is the standard against which the merits of existing arrangements must be assessed, but more significantly it is the foundation upon which new arrangements must be erected. In this regard, and contrary to Ashford’s view of the reformist implications embedded in Hume’s account of the impartial point of view, Bentham went far beyond Hume’s empirical and descriptive account of the function of utility in shaping law and institutions. The most obvious conclusion to draw from Bentham’s criticisms of Hume, particularly when set within the context of his earlier reflections stretching back over the previous fi fty years, is that Bentham – generally perceived as the founder of the doctrine of utilitarianism in its secular form – did not recognize Hume as a fellow-traveller in the utilitarian tradition. And, more pointedly, he had a good deal to say about Hume’s understanding and employment of the key concepts of the doctrine right from the outset that clearly distanced his own moral and political thought from Hume’s. If at times he misread Hume or pushed his criticisms too far, on the crucial questions he was far from being confused. Rather, he correctly weighed the factors that discount the notion that Hume was a utilitarian, while recognizing in his thought several protean ideas that were of use in fashioning his own theory. However, if Hume’s moral thought can be reconstructed to make it look more like Bentham’s, or Bentham’s utilitarianism reconfigured to make it look more like Hume’s moral philosophy, what cannot be argued away is the fact that Bentham would not have entertained either one of these perspectives. It is arguable that Bentham did not properly understand the utilitarian elements of Hume’s thought. It might also be suggested, though with less purchase one suspects, that Bentham did not correctly understand his own theory and its similarities to Hume’s. In both cases the door is opened up to the possibility that Bentham did not recognize the

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ways in which Hume had ‘silently shaped’ the development of his utilitarianism. However, to interpret Bentham’s utilitarianism, including its connections to Hume, in ways that are evidently inconsistent with Bentham’s own stated views on the matter, is an interpretive track with insuperable hurdles to overcome. On these grounds, it is appropriate to think of Hume as Bentham thought of him, not as a utilitarian but as a ‘moral sense’ philosopher who found a significant, if less critical and expansive, place for the utility principle in his account of morality.

Chapter 4

The Structure and Application of Utilitarian Theory

Having laid down the overarching goal of the greatest happiness early on his career, it was the operationalization of the utility principle that absorbed most of Bentham’s energies through a long and highly productive working life. With occasional exceptions, defending the principle against critics, overcoming objections, and revealing the defects of alternative foundational principles, usually took second place to the goal of translating the utility principle into practice, in the belief that improving the quality of life through strategies to enhance happiness was the goal of moral and legal theory. Richard Layard, a popular advocate of governments focusing their attention on producing the greatest happiness, argues that only the overarching scale of human happiness will do as a measure; only this criterion, he argues, ‘will give us an empirically defensible system of weights’ by which to conduct our personal lives and the operations of government.1 Bentham would applaud Layard’s expression of these utilitarian sentiments, but also recognize the limited use of such pronouncements in practice. A direct application of the greatest happiness principle to justify conduct, law and policy, can be seen at times in Bentham’s recommendations for improvements, where no reference is made to other principles or values, such as the proposal to reform the law governing the donation of corpses for medical research. However, the more complex the issue, such as the functioning of an efficient economy, the more the need for further guidelines to make concrete the practical application of the principle. The unity of theory and practice is central to the way Bentham conceived the principle. Accordingly, in the ‘Article on Utilitarianism’ he states that his purpose in adopting and developing the principle was to provide a practical ‘instrument of direction . . . for pointing out the path most proper to be pursued, on every occasion in public as private life; to be pursued by every individual, whether acting in his private and individual capacity, as a member of the whole community, for his own benefit alone, or in his public capacity acting for the benefit of others in the character of a member of the governing part of the community, in the exercise of the powers belonging to him in that

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same character’. In this sense it was ‘the oracle’ to which, on every occasion, he applied for instruction, and which validated the ‘arrangements’ it suggested in all the fields of ‘thought and action’. It rendered service in three distinguishable ways: ‘1. as end in view; 2. as a storehouse of means employable for the attainment of that end; 3. as a storehouse furnishing motives by the force of which, on several occasions, men may be induced to act in ways conducive to that end’. The ‘end in view’ is the greatest happiness; the ‘means’ for the attainment of the end are properly constructed rules, derivative precepts, maxims and subordinate principles; and the ‘motives’ by which men may be induced by the moralist, educator or legislator to act in ways conducive to the greatest happiness are ‘the several pleasures and pains of which man’s nature is susceptible’.2 In this way, the greatest happiness principle ‘gives character and direction to the details of Morals and Politics, . . . Government and Legislation and International Law: each of them considered as it is, for the hope of seeing it rendered what it ought to be’.3 The operationalization of the utility principle, then, took for granted that the end of government is the greatest happiness, but this alone would not suffice to guide the legislator. First, all the primary elements of law – constitutional, penal, civil and procedural law – should be codified, and the resulting body of law made clear in its principles and certain in its execution. Second, the realization of utilitarian objectives in practice requires the translation of the utility principle into elements amenable to implementation in a way that the philosophically abstract utility principle on its own. In this respect Bentham emulated Beccaria who, he says, ‘established . . . for . . . censorial Jurisprudence . . . an all commanding principle [–] the principle of utility’, to which ‘all other . . . principles that . . . can be proposed, if legitimate . . . stand in subordination: [and] any one . . . which cannot is to be . . . cast out as spurious’.4 Following this lead, in founding a codified system of law upon the principle of utility, Bentham announced near the beginning of his career as a legal philosopher, ‘I do no more than found it upon a set of rules’.5 However, as discussed in the previous chapter, this was more than the Humean observation that utility was embedded in customary rules which had evolved over time. The maximization of utility required that the jurist cast a ‘censorial’ eye on existing practices and rules to test their capacity to enhance the greatest happiness, and where deficiencies are detected new precepts and rules must be developed that demonstrably accord with the utility principle. The purpose of this chapter is to delineate the crucial elements of the structure of Bentham’s utilitarianism in its final form, with particular reference to the subordinate or secondary ends, principles, precepts and rules and the egalitarian dimensions of the utility principle. A comparison with Mill’s approach to moral and political equality will demonstrate both the significance of equality in the theory of the classical utilitarians and the subtleties of Mill’s departure from the radical position on equal voting rights.

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1. Operationalizing the Utility Principle It is now standard in studies of classical utilitarianism to maintain that neither Bentham nor Mill espoused a crude maximizing version of utilitarian theory.6 Nor should they be considered ‘act utilitarians’ who simply defined right action as that action which produced the greatest amount of happiness or pleasure based on a first-order calculation. Rather, they recommended intermediary rules as the guide for what is morally right in most situations, and these were more than merely ‘rules of thumb’. It is also the case that neither Bentham nor Mill believed that utilitarianism required individuals to always conduct assessments of the consequences of their actions prior to undertaking those actions – most often it was perfectly reasonable to adhere to past practice and extant rules. Bentham offered a guide to the calculation of the respective weighting to be afforded pleasures and pains as a means to assess the merits of alternative actions, sometimes referred to as the ‘felicific calculus’, though he did not personally employ this nomenclature. The component parts of the calculus that determine the dimensions of pleasures and pains are: ‘intensity’, ‘duration’, ‘certainty or uncertainty’, ‘propinquity or remoteness’, ‘fecundity’, ‘purity’ and ‘extent’.7 Bentham believed there was nothing in what he had proposed ‘but what the practice of mankind, wheresoever they have a clear view of their own interest, is perfectly conformable to’, that in a certain sense in all men the passions which motivate are a form of calculation.8 At the same time, however, he recognized that while calculation is in principle desirable, most particularly by the legislator when considering the appropriate law or policy, neither the individual agent nor the legislator could strictly follow the process he described. The pleasure/pain calculus is presented as a model of an ideal calculation, and ‘as near as the process actually pursued . . . approaches to it, so near will such process approach to the character of an exact one’.9 When a person addresses a decision, such as whether to attend university, what sort of car to purchase, whether to embark upon a fitness programme and of what sort, or whether to pursue a career in business or in education, clearly they are involved in a calculation, more or less, of the consequences of their decision. But, in the conduct of their day-to-day lives decisions are most often made in conformity with past behaviour and consistent with acceptable practice and existing rules. In short, both Bentham and Mill recognized the absurdity of expecting individuals to function as rational calculators before engaging in everyday action, and held that rules based on utilitarian considerations ought to be the guide of a person’s conduct in most situations. Where new evidence suggests that the rules are ineffective, improperly constructed or produce outcomes inconsistent with utility, then the agent must engage in a first- order calculation. This is something judges attempt when the law is confused, inapplicable in the specific case or obviously runs contrary to utility, though Bentham was concerned to put in place rules to limit the discretion for judges

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to interpret law. It is frequently a matter for legislators when they address new areas of jurisdiction, and in general all codes of conduct are the result of fi rstorder calculations made at some point in the history of the institutions or situations in which they are in effect. In the ordinary run of things, however, we must rely on rules of conduct to guide us. Further, the bedrock of the utilitarian theory expressed by Bentham and Mill is that the interests of each and all must count, and count equally, in the aggregation of utilities. This is not to say that maximizing utility is not the goal, only to stress that the maximization of utility will be more likely achieved where there is an approximate equality in the distribution of the basic requirements of happiness. Critics have frequently noted the implications of an aggregative approach in situations in which unpalatable sacrifices appear to be determined by simple calculations of optimal utility.10 In an indiscriminate calculation, in which only the sum total of happiness matters, minorities are especially vulnerable to risk. As discussed in Chapter 2, Bentham was aware of the problem and consequently amended the utility principle to omit ‘of the greatest number’ from the formulation, and Mill followed suit in consistently employing the ‘greatest happiness principle’ as the appropriate nomenclature. Moreover, both Bentham and Mill were clear that basic securities must be afforded to each and every member of the community, and that violations of these interests are not justified, whether they be perpetrated by other individuals or government. To this extent, at the very least, each person’s happiness must count. The neglect of this aspect of classical utilitarian theory has led the ‘punishment of the innocent’ or ‘scape-goat’ objection to gain undeserved prominence in the attacks of critics.11 If deterrence can be achieved by punishing an innocent bystander when the real culprit cannot be caught or brought to justice, then why not? If public utility would be maximized by making an example of an innocent bystander just as much as by punishing the person who was actually guilty of the offence, then the utilitarian ought to support it. But this is not only intuitively wrong, it is also wrong according to utilitarian theory as Bentham and Mill understood it. Mill dismissed the proposition as unworthy of serious consideration.12 The nearest Bentham came to defending the theory against the objection (in the manuscripts Dumont edited for Traités de législation) centres on the slippery slope of such violations of security: The altar of the public good demands barbarous sacrifices as little as the altar of Divinity. . . . The interest of individuals, it is said, ought to yield to the public interest. But what does that mean? Is not one individual as much a part of the public as another? This public interest, which you introduce as a person, is only an abstract term; it represents nothing but the mass of individual interests. It is necessary to take them all into account, instead of considering some as all, and the others as nothing. If it is a good thing to

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sacrifice the fortune of one individual to augment that of others, it will be yet better to sacrifice a second, a third, a hundred, a thousand, . . . ; for whatever may be the number of those you have sacrificed, you will always have the same reason to add one more. In one word, the interest of everybody is sacred, or the interest of nobody.13 In this passage, the implicit egalitarianism of the protection of the security that utility requires frames the utilitarian response to the ‘scape-goat’ objection. Punishing the innocent clearly contravenes the distributive elements of utilitarian theory, in which the basic interests (Mill would say the ‘permanent interests’) of each person require protection as the most important means to the enhancement of individual and communal happiness. It might be said there is no necessary connection between utility and security, but as Postema intimates Bentham is persuasive on this score (as is Mill).14 The constituent elements of the greatest happiness are the pleasures and pains, happiness and misery, experienced by each individual. In order to weight the balance in favour of happiness it is necessary that each individual possesses the means to happiness, and first and foremost among these is the protection that only an ordered state can provide. Construed as security of the person, possessions and expectations, this is a vital means to enhancing happiness. If the guarantee of security is not extended equally to every member of the community, then not only is this a loss in terms of public good, but it also means that uncertainty will attend the protection of the interests of those who presently fall under the law’s protection. It fosters anxiety and quite possibly alarm that those discriminated against may take action outside the law to rectify the situation, or that at some point in the future the government may itself withdraw the protection the privileged presently enjoy. The ‘securityproviding principle’ guarantees the security of the basic interests and legitimate expectations of everyone, and neither Bentham nor Mill would allow that such securities might be breached based on short-term calculations. This implicit equality provision is an essential ingredient in the utilitarian theory expounded by Bentham and Mill. While it does not prevent utilitarians from supporting utility-optimizing policies that produce an unequal distribution of benefits, this ought to be sanctioned only so long as the protection of the basic interests of each person is not infringed. Clearly, there are indirect means to maximization. Translating the utility principle into practice means in the first instance guaranteeing security for all, and it is hard to think how an alternative approach could offer a better ground for individual happiness and thereby the maximization of the greatest happiness. This consideration stands at the heart of Bentham’s approach to civil law, and the application of the utility principle in other policy areas also reveals a similar regard for intermediary operative principles.

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Civil and penal law are inextricably connected in Bentham’s legal theory. Just as the primary purpose of civil law is economic security and national prosperity, so it draws powerful support from the protection afforded persons, property and expectations by the threat of punishment. As Bentham explained in a chapter on political economy in ‘A General View of a Complete Code of Laws’,15 laws regarding political economy cannot be conceived as separate from other codes of law.16 Achieving the ends of political economy is almost entirely dependent on the effectiveness of the penal law in providing security. To this end, utilitarian penal law is framed in terms of the principal objective of deterrence, but also embraces the secondary ends of disablement, moral reformation and compensation. In settling the required proportions of punishment to satisfy these objectives, Bentham recognized he had burdened the legislator with a vastly complex task – the calculation of the correct quantity and quality of pain needed to achieve the desired ends, in particular the object ive of deterrence. To guide the legislator in proportioning punishments to offences (and the judge in assessing appropriate penalties where latitude was permitted in particular cases), he stipulated thirteen rules or ‘canons’ to determine the proportion of punishments. We need not dwell upon these – they are a series of common sense maxims, easily apprehended once the utilitarian objective of achieving economy in proportionality is understood, such as the punishment must outweigh the profit of the offence, venture more against a great offence than a small one, punish for each particle of the mischief, and the like.17 The delineation of such guidelines to protect against ‘unfrugal’ or excessive punishments is indicative of the attempt to be as comprehensive and as exact as possible while attending to practicalities. As sensible as such guidelines might be, however, they hardly fulfilled the mathematical ambitions with which Bentham set out to develop utilitarian theory. It is the apparatus of the utilitarian calculus that seemed to hold the key to precision in quantifying pleasures and pains, benefits and costs, for the legislator, even if such calculations could not fulfil the ideal. As with civil and penal law, Bentham delineated subsidiary principles to govern the operationalization of the utility principle in other areas of law and governance. The key elements of procedural law are elaborated in terms of rules and precepts governing evidence and adjudication. Bentham laid down practical guidelines on the admissibility of evidence, favouring ‘natural’ over ‘technical’ procedures as most apt to produce truth in courts of law and to rid the system of vexation, expense and delay, which he attributed to the vested interest of lawyers in maintaining an arrangement designed to maximize legal fees. The judges were to be charged with following basic principles that would allow for the most complete and accurate testimony available.18 The theory of adjudication – a product of his general critique of common law – did not allow for anything other than a strict application of the utilitarian codes of law.

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The overriding consideration was the subordination of the judge to the lawmaker; the judge may (if empowered) suspend the execution of the law where utility (or its deputy, the ‘non-disappointment principle’) demanded, but only pending a final decision by the legislature.19 The commonly misunderstood panopticon prison was also designed with specific guidelines in mind, such as security and severity, tempered by humanity, economy, transparency and accountability. The last three rubrics were equally important in Bentham’s utilitarian account of administration, as were devices to ensure the maximization of ‘intellectual’, ‘moral’ and ‘active’ aptitude in public officials. Finally, in the theory of government utilitarian outcomes required democratic procedures which functioned as ‘securities against misrule’: ‘virtual’ universal suffrage, annual parliaments, the secret ballot, and provisions for transparency, publicity and unconstrained public debate. Much of what Bentham recommended in relation to political institutions is governed by ‘the interest-junction-prescribing principle’, designed to ensure that the interests of those with power would be reconciled with the public interest.20 This idea was evident from the first, when he argued in A Fragment that effective government was not to be had on the foundation of abstract formulas, but required institutions and practices that enabled ‘the frequent and easy changes of condition between governors and governed; whereby the interests of one class are more or less indistinguishably blended with those of the other’.21 In the later constitutional writings Bentham added many more administrative devices to ensure aptitude, transparency and accountability, none more important than the ‘Public Opinion Tribunal’, the open court of public opinion founded on the freedom of the press, by which government actions could be held up to public scrutiny.22 And, just as the panopticon was to be monitored by the publication of regular reports, so reports of government activity were required to keep the democratic polity informed and facilitate the accountability of public officials. The panopticon, which bedevilled Bentham for so many years, has occasioned a good deal of controversy in the literature.23 Despite the failure of the project to reach fruition, it offers an impressive illustration of Bentham’s approach to operationalizing the utility principle. Appalled by the inefficiency and existing inhumane conditions in Britain’s prisons and use of naval hulks for incarceration, and by the policy of transportation, Bentham developed the idea of the panopticon penitentiary as a substitute penal system, in which convicted criminals would be subject to a disciplinary regime based on the maxim that ‘the more strictly we are watched, the better we behave’.24 The circular architecture of the prison left each cell visible to the watchtower at its centre, from which the unseen warden might observe the activities of prisoners day and night. Michel Foucault famously took the perspective that ‘panopticism’ defined a ‘new physics of power’, an experimental ‘laboratory of power’ in which behaviour could be modified, and viewed the panopticon – that ‘cruel,

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ingenious cage’ – as a symbol of the repressive, disciplinary society, the modern ‘society of surveillance’.25 This view of the panopticon has opened some interesting lines of discourse related to the encroaching methods of control and surveillance in contemporary societies. However, as a critique of Bentham’s proposals it is less impressive. The panopticon prison was to be organized according to a range of principles: security, in order to protect the community from convicted criminals, but also to effect the safety of the inmate from cruel treatment; economy, since the prison should be a private self-sustaining operation not requiring financial assistance from the public purse; severity, because it is necessary for the offender to suffer to serve the ends of deterrence and reformation; and humanity, demonstrated by the fact that prisoners should be deprived only of liberty not of health or life. In contrast with the cesspits of the existing gaols and hulks, and the horrific experiment with the penal colony at Botany Bay, Bentham’s prisoners were to be kept clean and their labour made product ive and profitable, and serve to develop skills that might be useful to them when released and assist in their moral reformation. In support of these objectives, he invoked several devices to effect transparency and accountability in prison government. The chief mechanism intended to bring the interest of the manager-warden in line with his duty to be humane – to give effect to the ‘duty and interest junction principle’ – was publicity, described as ‘the most effectual means of applying the force of moral motives, in a direction tending to strengthen the union between his interest and the humane branch of his duty; by bringing to light, and thus exposing to the censure of the law and of public opinion . . . every instance of contravention’.26 In the panopticon the observation function worked in two directions: the seemingly ‘constant’ but unseen surveillance of the inmates by the warden, and the periodic observation of the warden and his subordinates by the public. Interested members of the public and members of parliament were to be guaranteed free access to the prison, making the panopticon subject to ‘the great open committee of the tribunal of the world’27 – the prototype for Bentham’s later ruminations on the benefits to democracy of the Public Opinion Tribunal. The aim was to prevent abuses of power by prison officers and to enhance the security of the inmate. Once the significance of the principles that gave shape to the panopticon and the various devices built into its management are understood, the arguments of critics who view it merely as a punitive and repressive institution are far less persuasive. What is really of interest about the project is the care Bentham took in relating its structure and management to the principles of his theory of punishment, and the manner in which he later applied certain of its principles (economy, transparency, and accountability) to the functioning of the democratic polity (discussed in Chapter 6 below). Following the work of Rosen, Guyora Binder argues that in utilitarian political thought ‘process values take precedence over substantive values’.28 For

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Bentham (and Mill) ‘the greatest portion of the happiness humans seek is security’, and specifically the ‘security of expectations’. This means that utilitarianism is not only interested in the beneficial consequences of particular actions, events, situations, but also, and most especially, ‘in the stability of the institutional means by which we might pursue these consequences’. Binder concludes that Bentham (and, by extension, Mill) was ‘less interested in advocating particular policies as utility-maximizing than he was in advocating a policy process that would guarantee to the public that policy would systematically serve public utility’.29 To give effect to this, Bentham proposed ‘a complex institutional process for making and implementing policy’, involving ‘a uniform discourse of policy analysis’, in which the utility principle was a central part but ‘was not prior to or more fundamental than the institutions necessary to render such a policy discourse a useful instrument of the public welfare’.30 In this respect, the ‘utilitarian imperative’ is not that individuals seek to maximize the greatest happiness of society as they see it, rather this is ‘exclusively the job of a democratically-controlled, publicly monitored legislature, in its role of enacting clear, stable, legal rules of general application’.31 These institutional conditions ensure ‘freedom from fear and anxiety, and the secure foreknowledge that one had the means to meet one’s future needs’; only a ‘democratically controlled and rule-bound welfare state’ will be adequate to the task, ‘involving bureaucratic investigation, democratic oversight and participation, legislative supremacy, and a clear and common language of policy analysis and legislation’.32 Binder’s approach is consistent in several respects with my own understanding of classical utilitarian theory. He is unquestionably correct in stating that for Bentham (and Mill) judicial institutions must be respected if the basic interests of the people are to be secure. He is also correct to stress the importance of procedure in the operationalization of the utility principle. Nevertheless, Binder’s account does not sufficiently relate the complexities of the interactive nature of the relationship between the utility principle and its subordinate ends and subsidiary principles. The justification for the latter is located in their manifest utility, while they in turn produce the practical benefits that give concreteness to the philosophically abstract end of the greatest happiness. Every subordinate end, supportive principle and subset of rules is grounded in its capacity to contribute to substantive utilitarian outcomes. If their capacity to achieve this goal is brought into question, the utilitarian is called upon to justify their legitimacy on the grounds that they are the best means to enhance the greatest happiness, which can only be done on the grounds of utility itself. The principle of utility constitutes the core of the theory. It lays down the overarching objective, it is the critical standard against which existing practices ought to be judged, and stands ever ready to be summoned forth whenever new guidelines are needed or existing laws require amendment, refinement or further elaboration.

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2. Utility, Equality and ‘Bentham’s Dictum’33 Most comparisons of Bentham and Mill centre on Mill’s distinction between higher and lower pleasures, which is usually taken to be an important development from Bentham’s position.34 However, in this section and the one following I want to draw attention to an entirely different issue that could be said to divide Mill from Bentham – his rendering of ‘Bentham’s dictum’: ‘everybody to count for one, nobody for more than one’. Mill did not believe his understanding of its meaning was very different from Bentham’s, but there is reason to think he may have been mistaken. In Ch. V of Utilitarianism (1861) Mill discussed the connection between utility and justice. By the latter he meant fundamental rights founded on general utility, and maintained that the notion of just deserts, and principles of equality and impartiality were ‘corollaries’ of this understanding of justice. Justice grounded on utility is ‘the chief part, and incomparably the most sacred and binding part, of all morality’. In this respect, it ‘is a name for certain classes of moral rules, which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life’.35 We can understand the ‘essence of the idea of justice’, then, in terms of the basic interests that in a liberal society require the support of law and reinforcement in moral practices. When formulated in the form of rights, punishment is necessary for violations of these rights, meted out on the basis of the notion of just deserts and in strict accordance with the principles of impartiality and equality.36 Mill justifies all of this in relation to utility. In this context Bentham’s dictum, he says, implied all individuals ‘have a right to equality of treatment, except when some recognised social expediency requires the reverse’, adding however that mistaken notions of expediency in the past in the form of customary social inequalities – ‘the distinctions of slaves and freemen, nobles and serfs, patricians and plebeians’ – have produced injustices.37 For Mill this was ‘the highest abstract standard of social and distributive justice’, and the duty to implement the standard directly emanates from utility and, indeed, ‘is involved in the very meaning of Utility, or the Greatest Happiness Principle’. To this he added: ‘That principle is a mere form of words without rational signification, unless one person’s happiness, supposed equal in degree (with the proper allowance made for kind),38 is counted for exactly as much as another’s.’ In this respect, he concluded, Bentham’s dictum ‘might be written under the principle of utility as an explanatory commentary’.39 Mill’s rendering of the dictum is important on two counts. First, it occupies a central place in his account of utilitarian moral theory. Second, in this form it passed into the common understanding of Bentham’s utilitarianism, and has been repeated over and over again in discussions of the theory from Mill’s day up to the present.40 There are several puzzling features to this. Given the central place Mill afforded the ‘dictum’ in explaining utilitarian theory, we might

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wonder why he omitted all mention of it in his prior writings on Bentham – the obituary notice of Bentham in the Examiner (1832), ‘Remarks on Bentham’s Philosophy’ published as an appendix to Edward Bulwer-Lytton’s England and the English (1833), the famous essay on ‘Bentham’ (1838), and the treatise Whewell and Moral Philosophy (1852) in which he defended Bentham against Whewell – leaving it to the comparatively late Utilitarianism. Moreover, not only does it appear belatedly in Mill’s evolving perspective on Bentham, when he came to assert its importance in Utilitarianism he inserted it in his discussion of justice as if it were a commonplace in Bentham’s writings, which turns out not to be the case. Certainly, it is not found in any of Bentham’s major writings on moral and legal philosophy, where we might expect it to be located, though the quote from Hildreth’s translation of the Traités de législation given in the previous section is suggestive of the dictum. Rather, we encounter a phrase resembling the dictum in a work not directly devoted to the elucidation of utilitarian principles, but to a field in which Bentham sought the application of those principles, the Rationale of Judicial Evidence, a work edited by Mill and published in five volumes in 1827. In the context of an invective against the legal establishment, and judges in particular, Bentham states the maxim as follows: based on ‘the system of arithmetic, which, as long as I remember, I have been in the habit of employing on all political occasions: every individual in the country tells for one; no individual for more than one’.41 In the context in which the maxim is given, the egalitarian dimension of what Bentham says comes to this: ‘arithmetically’ everyone ‘tells’ for one, and no one enjoys a qualitative distinction superior to another on the basis of rank, status or employment. The implication is that each individual ought to be treated equally by law and by those who apply the law. Given the Rationale of Judicial Evidence was edited by Mill, two questions immediately arise. First, is the wording of the dictum really Bentham’s? Second, is Mill’s understanding of the ‘dictum’ the same as Bentham’s? Unfortunately, since the original manuscripts are no longer extant, we have no direct evidence that the wording originated with Bentham. What we do know is that the part of the text where the dictum is found is not included in the supplementary passages and notes Mill authored to fill in the gaps he found when editing the work, and which are reproduced in the final volume of Mill’s Collected Works.42 It seems reasonable to conclude, therefore, that the phrasing is Bentham’s.43 For the moment, we are content that Mill identifies the dictum as Bentham’s. In order to address the second question – whether Mill’s understanding of the ‘dictum’ is the same as Bentham’s – two other sources will assist us. The first is Bentham’s Plan of Parliamentary Reform. Here we find not the dictum itself, but the base-line utilitarian claim that each person desires his/her own happiness and, accordingly, acts to fulfil their desires in so far as they are able. Following this Bentham asks rhetorically: ‘The happiness and unhappiness of any one member of the community – high or low, rich or poor – what

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greater or less part is it of the universal happiness and unhappiness, than that of any other?’44 Mill’s editor saw in this the rationale for the dictum in the way Mill expressed it, as implying equality of treatment.45 However, in the Plan Bentham used the claim quoted as a part of the argument for ‘virtual universality of suffrage’, to make the case why each person, with certain exceptions, should be allowed to choose their own political representatives. With the interests of politicians dependent on the votes of the people, individuals might realistically expect their interests to be factored into law and policy and the prospect of being subject to misrule, to being governed by ‘sinister interests’, would be lessened.46 The second source is a quotation sometimes used to illustrate the meaning of Bentham’s dictum taken from Richard Doane’s edition of the Constitutional Code (1830). Here Bentham writes, again in the context of justifying ‘virtual universality of suffrage’, ‘The happiness of the most helpless pauper constitutes as large a portion of the universal happiness, as does that of the most powerful, the most opulent member of the community. Therefore the happiness of the most helpless and indigent has as much title to regard at the hands of the legislator, as that of the most powerful and opulent.’47 Bentham goes on to say that possessing ‘a share in the supreme constitutive power’ – having the vote – is a means of providing a security against misrule and therefore a means of happiness, and there is every reason why it should be in the hands of ‘the most helpless and the most indigent’ as in the hands of ‘the most powerful and the most opulent’.48 He thought of this as an abiding adjunct to his utilitarianism ‘on all political occasions’, as the phrase goes in the Rationale of Judicial Evidence. To return to Mill’s understanding of the dictum, it is clear that he did not mean that it functioned in the capacity of a secondary principle to assist in guiding the legislator, but rather that it is by definition at the core of such judgements regarding the greatest happiness. To see how far this correlates with Bentham’s understanding of the practical functioning of the utility principle we need look no further than the ‘subordinate ends’ of the civil law: security, subsistence, abundance and equality. ‘The more perfect enjoyment is in all these respects’, he wrote, ‘the greater is the sum of social happiness: and especially of that happiness which depends upon the laws’.49 Where there is abundance and legislative intervention is conducted in accordance with the ‘non-disappointment principle’ – such as when the state takes ownership of an estate for which there is no legitimate heir, 50 or when a tax on property can be introduced without materially detracting from a person’s expectations – then a degree of equalization may be achieved by the redistribution of wealth.51 This is entirely consistent with the view that properly understood the utility principle entails a presumption in favour of an equal distribution, unless there is compelling empirical evidence that utility would not be served by such a policy. As Bentham put it in Leading Principles of a Constitutional Code, ‘the more

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remote from equality are the shares . . . the less is the sum of felicity produced by the sum of those shares’. 52 As we have seen, the theory of diminishing marginal utility also implies equalization policies, dictating that decreases to the wealth of a rich man cause less pain than similar decreases to a poor man, while additions to the wealth of the poor man bring happiness in a greater amount than they would to a rich man.53 In First Principles Preparatory to Constitutional Code Bentham went further, to postulate the greatest happiness of the people ‘requires that the external instruments of felicity, whatsoever they may be, be shared by the whole number in a proportion so near to equality as is consistent with universal security’.54 However, he refused to countenance the idea that policies to redistribute wealth at the cost of security would be beneficial either to social prosperity or individual well-being. Proposals to alter the distribution of wealth in line with diminishing marginal utility must, therefore, be conducted in accordance with the ‘non-disappointment principle’. On the other hand, Bentham believed that a system of laws based on the utility principle would gradually and ‘indirectly’ evolve towards greater equality in the distribution of goods, and pointed to the historical evidence of post-feudal Europe in support of his position. In the long run the key to enhancing a more equal distribution of property lay in abundance: ‘in a nation prosperous in its agriculture, its manufactures and its commerce, there is a continual progress towards equality’.55 The important caveat Bentham introduced to justify this optimism is the proviso that government must not impede this tendency by allowing monopolies, putting ‘shackles’ on trade and industry, or placing obstacles in the path of the division of property on inheritance. We might note in passing that the absence of these impediments would doubtfully suffice – it is the sort of claim Marx and other critics of unfettered liberalism were quick to expose as a false promise of capitalism – but Bentham was on firmer ground when he claimed the equalization of wealth produced greater happiness. A recent study of the issue compares statistics bearing on health and social problems with income levels in twenty of the world’s richest nations, including all fi fty states of the United States. The findings confirm that in countries where the gap between the incomes of the rich and poor is greatest the rates of mental illness, drug and alcohol abuse, obesity, teenage pregnancies and homicide rates are higher, life expectancy is shorter and literacy rates lower. Nor are these afflictions confined to lower income levels. Britain and the United States, for example, two societies with the greatest inequality in income levels, experience higher incidences of mental illness, heart disease, drug addiction and infections across the entire population. By comparison, societies such as Japan and the Scandinavian countries, where there are far lower income differentials, people are more secure, experience lower rates of crime and spend far less on prisons and far more on education and welfare.56 There is reason, therefore, to say Bentham is correct in positing the notion that happiness is

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increased in societies with a greater equality in material goods and the comforts of life. Having said this, he was far from being an egalitarian socialist. Bentham’s economic writings include A Protest Against Law Taxes (1793), A Manual of Political Economy (1793–5), Supply without Burthen (1795), The True Alarm (1801), Institute of Political Economy (1800–1), Defence of a Maximum (1801) and the ‘Annuity Note’ plan, a proposal to introduce interest-bearing notes as currency, written 1800.57 Few of these were published during Bentham’s lifetime. In addition, in 1796–7, partly stimulated by rising food prices and the resultant debate about the treatment of the poor, Bentham produced several essays on reform of the poor law, including an ‘Outline of a Work entitled Pauper Management Improved’, the purpose of which was to detail a system of ‘industry houses’ run by a joint-stock company to house the indigent and provide them with gainful employment, and supply welfare services for the working poor.58 With few exceptions the economic theory mapped out in these writings derived from Bentham’s reading of Adam Smith, but is also expressly based on the principles of his theory of civil law.59 Facilitating individuals in the pursuit of their interests in a free market is what government should do, because this is the proven best way to maximize the public good. Where laissezfaire does not produce the best result, the legislator must act in other direct and indirect ways to produce the optimal outcome. The question, as Bentham explained in Manual of Political Economy, ‘is to know what ought and what ought not to be done by government. It is in this view, and in this view only that the knowledge of what is done and takes place without the interference of government can be of any practical use’.60 In the Institute of Political Economy, he argued that past experience provided sufficient evidence to convince us that governments should not act in the economic realm as much as they often do, hence the motto ‘Be quiet’ and the lists of ‘non-agenda’ items. Where departures from this general rule are required – such as when vital subsistence goods would be priced beyond the reach of many – they become ‘agenda’ items for government.61 This seems to point to a political economy that is ‘liberal’ in a distinctly modern sense, one in which laissez-faire holds general sway, the basic rules of which are maintained by government, with a taxation regime and other exceptions justified on the grounds of utility (or the subordinate ends of civil law). Mill gave expression to similar sentiments in Principles of Political Economy (1848) and other writings. Governmental strategies to redistribute property and wealth may only be conducted consistent with respect for existing interests and expectations.62 For example, in dismissing the means adopted by socialists to redistribute property in France in 1848, he argued that Bentham’s approach was the right one. Equality may not be the primary objective of government, but ‘a system of institutions which does not make the scale turn in favour of equality, whenever this can be done without impairing the security of the property which is the product and reward of personal exertion, is essentially

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a bad government – a government for the few, to the injury of the many’.63 In the Principles, while arguing that redistributive policies must always respect the dictates of justice in order to preserve incentives and efficiency,64 nevertheless Mill made the case for limited welfare rights on the grounds that state assistance for the indigent will help develop their ability to become contributing members of society. The same rationale for public assistance was applied by Mill to justify the ‘effective national education of the labouring class’; the improved skills that result would increase productivity and enhance economic growth, thereby reducing poverty and inequality.65 Generally opposed to the redistribution of wealth through taxation, Mill agreed with Bentham where interests and expectations would not be violated the state should intervene to enhance equality based on tax-funded public services. In line with this, he echoed the view expressed by Bentham that the state ought to take possession of intestate property,66 and saw ‘no reason why collateral inheritance should exist at all’.67 However, Mill appeared to go further than Bentham when he proposed that inheritances ‘exceeding a certain amount, are highly proper subjects for taxation’, and the revenue raised ‘should be as great as it can be made without giving rise to evasions, by donation inter vivos or concealment of property such as it would be impossible adequately to check’.68 We might conclude from the evidence that Bentham’s position was very much as Mill understood it. Neither advocated radical schemes for property redistribution, but both held that the axiomatic requirement that each be treated equally, that the happiness of each be counted, justified policies to equalize the distribution of goods where this could be achieved without disappointing legitimate expectations. Redistributive policies must respect distributive rights: since each person’s happiness counts or should be counted equally by the legislator, one of the basic ways in which it counts is when the state affords its protection, when it maintains the security of person and property of each and every member of the community. Mill’s explanation in On Liberty (1859) is instructive here. In that seminal essay he explains that ‘social utility’ should be understood as ‘grounded in the permanent interests of man as a progressive being’.69 Permanent interests ought to be formulated in the form of equal ‘constituted rights’, by which he means in the first instance the rights to life, liberty and property. Among the important liberties that ought to be guaranteed to everyone are freedom of conscience, expression, association and individuality. It follows, therefore, that we have a permanent interest in the social arrangements, laws and institutions that maintain and protect these liberties equally. In short, we have a permanent interest in equal justice. Moreover, in addition to the benefits to individual and social well-being, one of the crucial benefits of a society so constituted is its openness to progress in ways of living and the search for truth. A properly constituted ‘liberal’ society therefore, will be based on ‘constituted rights’ that reflect and protect ‘permanent interests’. This provides

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Mill with a critical perspective on existing arrangements. So, for example, in The Subjection of Women (1869) he criticized the fact that English law did not allow full property rights to married women. As he explains in Utilitarianism, the possession of such a basic right means that each person has ‘a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion’. If an objector asks why society ought to perform this task ‘I can give him no other reason than general utility’, which is no more or less than the interest each person has in security, ‘the most vital of all interests’. Therefore, it is ‘indispensable’ that the ‘machinery’ for providing security ‘is kept unintermittedly [sic] in active play’. On it depends ‘the very groundwork of our existence’.70 Rights, then, cannot depend on the analysis of costs and benefits in particular cases, but rather constituted rights are intended to make it unnecessary to calculate utilities in the ordinary way of things. Save in rare instances when utility gains and losses clearly mandate the abrogation of a right, such as in times of national emergency, war and food shortages (requiring the sacrifice of a measure of individual security in the interests of collective security), the security afforded by basic rights would be put at risk if it became commonplace that rights could be violated on the grounds of a calculation of an immediate gain to an individual. Utility in the long run and for the whole society overrides such immediate gains in particular instances. The difference between Bentham and Mill here is one of phrasing and emphasis. For Mill the rights that protect the permanent interests of each member of the community stand at the core of the meaning of justice, the most important element of what he means by ‘social utility’. While for Bentham the security which is basic to the individual’s capacity to formulate and pursue his interests remains a principle subordinate to the master principle of utility. The differences between Bentham and Mill in the manner in which they conceptually position security in relation to the core of their respective theories are not significant, I believe. If Mill placed the egalitarian component of the greatest happiness up front, as it were, in Bentham’s account of the civil law it appeared to stand relatively low in the list of priorities, at the apex of which stands the security of the person, his possessions and legitimate expectations. However, in both Bentham’s theory and Mill’s these securities necessitate formal equality rights and, while both men justify redistributive policies in accordance with the subordinate ends of subsistence and equality, they implicitly accept substantial inequalities in the distribution of wealth, while looking forward to the day social development would lead to a reduction in such inequalities. In this respect, we might say that for Mill security of the person, his possessions and expectations is a part of how we define the principle of utility, while for Bentham it is the most vital element in any attempt to apply the principle in a practical and public manner. In this way, Mill’s understanding of ‘Bentham’s dictum’ is correct.

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3. Political Equality Largely in agreement on the sorts of strategies that are permissible and, indeed, desirable to enhance economic equalization, where Mill and Bentham differ is on the subject of political equality. Perhaps it does not need saying that Mill did not draw any direct political conclusions from ‘Bentham’s dictum’ beyond the utilitarian assumption that equal amounts of happiness are equally valuable, regardless of who enjoys them. Understood in this way, for Mill the dictum clarifies what it means to maximize utility. By contrast, as the quotations given above from Plan of Parliamentary Reform and Constitutional Code illustrate, the political implications of the equality dictum, if I might term it, occupy an important place in Bentham’s political thought, the basic principles of which were expressed in one form or another when he first addressed constitutional questions at the time of the French Revolution. At that time he laid down a utilitarian rationale for equal political rights in the form of three assumptions: (1) each individual has an equal right to all the happiness he is capable of experiencing; (2) individuals possess an equal capacity to experience happiness; and (3) individuals possess an equal desire for happiness.71 Though it could be said that different individuals have different capacities for happiness, and that there are differences in the desires experienced by individuals, Bentham held that equality in these respects was a reasonable assumption, since differences in capacities for happiness and differences in desires between persons are impossible to measure. These assumptions lead to the conclusion that it is reasonable for each adult to possess the vote. However, Bentham introduced a further consideration that led to a significant qualification to his commitment to democracy: real political equality is only justified if individuals possess an equal capacity to judge the extent to which different actions enhance happiness. Here, unlike the differences that might exist in the capacity to experience happiness and in the desire for happiness, it is possible to determine differences between the capacities of individuals to judge the likely consequences of actions. This consideration entailed that the suffrage be less than universal. Along with minors and the insane, though it ran contrary to his own inclinations, he was prepared to exclude women.72 Further, at this time he thought a small property qualification advisable to avoid the prospect of non-proprietors voting for wholesale property redistribution, and also recommended the exclusion of non-readers. The assumptions that underpinned the qualified commitment to political equality in 1788–9, were reiterated in Plan of Parliamentary Reform, but with this difference – the claim that the happiness of each individual is as much a part of the universal happiness and that each person’s happiness must therefore be taken into account, led Bentham to advocate what he now termed ‘virtual universality of suffrage’. In both the Plan and Constitutional Code he explained in detail the rationale for manhood suffrage (including non-proprietors), clearly

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demonstrating an explicit relationship between the moral injunction that each person must count, that is be counted, and the political argument that the best way to ensure this outcome is when each person ‘tells for one’ in the electoral process. I do not want to say that this relationship is in any sense strictly logical, but rather that in Bentham’s mature political thought it is positioned as a practical necessity, without which government will function in favour of the interests of the few to the cost of the disenfranchised many. We need not explain here the details of the mechanisms Bentham envisaged to give effect to a government that can be relied upon to act in ways designed to enhance the greatest happiness (we will come to these in Chapter 6). Suffice to say at this juncture, the most fundamental protection against misrule available to the people, the subject-many, is the vote, which must be as broadly based as is necessary to check the natural tendency towards partial or sinister interests in the actions of those who rule. The question now is: How does this compare with Mill’s political convictions expressed in Thoughts on Parliamentary Reform (1859) and Considerations on Representative Government (1861)? In the latter text Mill took seriously Bentham’s analysis of the detrimental effects of the operations of ‘sinister interest’ and echoed the sentiment that it is the addition of power to selfish interest in an aristocratic and monarchical government that democratic institutions are intended to combat.73 Like Bentham, too, Mill considered that a majoritarian government without safeguards against misrule would invariably fail to eradicate the operation of sinister interests in public institutions. Sectional or class interests in a representative democracy posed no less a threat to the good of the whole community, since it is inevitable that those who attain power would pursue their personal interest at the cost of the interest of the people.74 One is reminded, as Mill may have been, of Plato’s account of Thrasymachus’s view of justice in Bk I of The Republic, where it is said that justice is always construed as the ‘advantage of the stronger’, and in a democracy, just as in an aristocracy or monarchy, those with political power will make laws which favour themselves. In a representative democracy without adequate safeguards combinations of men pursuing their collective interests would be little better than kings, aristocrats or oligarchs using their position of power to serve their own interests.75 What is needed, Mill argued, are ‘efficacious securities’ to prevent this evil: ‘the desirable object would be that no class, and no combination of classes likely to combine “should” be able to exercise a preponderant influence in the government’.76 The solution involved establishing an electoral system that preserves a ‘balance’ among sectional interests so that the success of any measures would require support across the contending sections of society. The required balance is possible, he thought, because within each section of the public, say the class of manual labourers and the class of employers of labour, there is a minority in whom class interest will ‘be subordinate to reason, justice, and the good of the whole; and this minority of either, joining with the whole of the

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other, would turn the scale against any demands of their own majority which were not such as ought to prevail’. In stating this view Mill was not appealing to the benevolent good-will towards the people that might exist in the hearts of a sufficient number of political representatives, but arguing the very reasonable supposition that in any ‘tolerably constituted society’ the general interest will be supported by some men because their private interest happens to be ‘on the side of what is right.’77 The task, therefore, was to devise a means whereby a balance of sectional interests could be produced. Mill concluded that only an electoral process based on proportional representation could ensure ‘the true type of democracy’, a democracy characterized by real political equality in which minorities would not be routinely marginalized, arguing in words reminiscent of Bentham, ‘there is not equal suffrage where every single individual does not count for as much as any other single individual in the community’.78 The only justifiable exclusions from the ballot were on the basis of a literacy and numeracy qualification (hence the need to promote education among the poor and labouring classes), and the payment of taxes (on the grounds that men will always be lavish with other people’s money).79 Beyond the extension of the suffrage, Mill took inspiration from Thomas Hare’s scheme for ‘personal representation’ in which a preferential voting system would permit electors to cast ballots for candidates outside their local constituencies, whom they felt would better represent their interests in the legislature.80 This would ensure that ‘minorities’, by which Mill meant broadly conceived social minorities, would be able to locate and support candidates of the required intellectual aptitude unconstrained by political parties competing for support in their local constituencies. This is the protopluralist egalitarian strategy that Mill believed would produce a proportional representation of all sectors of society. However, his proposals for electoral reform did not stop there. For Mill, the educated had a special claim in a ‘tolerably constituted society’ – it is their influence on policy and law that he was most desirous to see exerted. In finding a mechanism for this, he moved away from the strict requirements of proportionate equality in the balance of interests. Plural voting was designed to further diminish the possibilities that political decision making would be dominated by or made subservient to the interests of the uneducated labouring and poorer classes. In On Liberty, following De Tocqueville, he expressed his deep-felt dismay at the limitations on freedom and individuality and the consequent loss of individual and social utility that resulted from the tyranny of opinion. In the Thoughts and Considerations he was concerned about the ramifications of the tyranny of the majority in political institutions. He was not persuaded that each adult, male and female, counting for one in the electoral process would best advance public utility. Rather, the count should be weighted. In the ‘ideal conception of a perfect representative government’,81 Mill argues for universal suffrage but asks ‘ought every one to have an equal

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voice’ in the suffrage?82 In answering this question Mill, as he says himself, parts company with the democratic reformers who argue that equal weight be given to the vote of every individual, to advocate instead a system in which the possession of votes would be on a sliding scale from one to six depending on educational qualifications and professional occupation.83 To see how radical a departure this is from the position of those philosophic radicals, like Bentham, who insisted that the suffrage be ‘virtually’ universal and equal, consider Mill’s justification for giving the ordinary unskilled labourer one vote, while a professional – ‘a lawyer, a physician or surgeon, a clergyman of any denomination, a literary man, an artist, a public functionary’ – should have five or six votes.84 He says that it ‘can in no sort be admitted that all persons have an equal claim to power over others’, and that the basis upon which different people lay claim to such a power differs widely just as do ‘their qualifications for exercising it beneficially’. Further, against the assertion that ‘all persons ought to be equal in every description of right recognized by society’, he replies ‘not until all are equal in worth as human beings’. In Mill’s reasoning ‘one person is not as good as another; and it is reversing all the rules of rational conduct, to attempt to raise a political fabric on a supposition which is at variance with fact’. Setting aside ‘moral worth’, for which Mill says ‘it is not so easy to find an available test’, the focus is on ‘intellectual worth’, a quality more readily amenable to measurement. Thus, says Mill, ‘a person who cannot read, is not as good, for the purpose of human life, as one who can’, and the person who can read but cannot write or calculate ‘is not as good as a person who can do both’, and so on through a scale of knowledge capabilities that by implication should be matched by a comparative scale of votes.85 It needs to be said that Mill’s preference for plural voting was based on the supposition that it was likely to produce better outcomes than if each adult possessed one vote – a utilitarian calculation, therefore. Nor is it the case that he believed that the interests of intellectuals ought to count for more because they are naturally of higher intellect than the ordinary citizen, but rather as a consequence of the advantages of their class and station in life they are better able to make decisions that are conducive to the general happiness. And, nor did he think that the privileged in this process should be able to use their votes to outweigh the rest of the community; the distribution of votes ‘must stop short of enabling [them] to practise class legislation on their own account’.86 Combined with preferential voting, Mill intended that plural voting would produce a balance of power between the educated and the uneducated, and thereby ensure that the representatives of neither could dominate the legislature. To achieve the support of a majority a proposal would have to appeal across class lines, and purely class-driven measures could be vetoed by the opposing class representatives, thereby producing outcomes aimed at the good of the whole community.87 We must also acknowledge that Mill favoured educational reforms that would eventually narrow the differences between

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individuals in terms of their capacity for political decision making, as well as a system of testing that would allow people to establish their intellectual credentials quite apart from their occupation or training. In the absence of universal suffrage, a limited electorate such as existed in mid-nineteenth-century Britain had no need of plural voting. But Mill was committed to universal suffrage, and it is only within this electoral framework, when votes are in the hands of the educated and uneducated alike, that plural voting makes sense (there is no need to be fearful of the workers using the electoral process to bring about legislation that favoured their class interests, when they do not possess the vote). Ideally, an education system that enabled every person to read, write and perform rudimentary arithmetic would close the gap between those at the upper end of the plural voting scale and those at the bottom. Political equality would be enhanced by equal access to education. At the end of the day, however, Mill never abandoned the notion that in a system of universal suffrage, even one harnessed to proportional representation, plural voting would be an advisable adjunct, promising to produce the best outcomes for all concerned. However much the differences in capacity for public decision making might be narrowed in the future, there will always be those better able to make a contribution in this role, and this justified the retention of a system of plural voting even in an advanced democratic society.88 Mill’s position then comes to this: if the community is an educated one in which the people exhibit similar levels of moral and intellectual development, then equal voting would in principle be right, but to the degree the people fall short of this ideal plural voting is justified. Evidently, this was a long-standing difference between Bentham and Mill, as is plain from Mill’s 1838 essay on Bentham. There he states what he took to be the defects of Bentham’s politics and, anticipating the critique made in substantial detail in the later On Liberty, aired a deeply felt fear of the dangers for the individual in a political system ‘under the despotism of Public Opinion’. The identity of interests, fundamental to the theory of government stated by his father in ‘On Government’ which engendered such harsh criticism from the Whig pens of Mackintosh and Macaulay, to the younger Mill’s mind threatened to produce an identity of ‘partialities, passions, and prejudices’ amounting to ‘absolute power’, without a ‘counter-balance from partialities, passions, and prejudices of a different sort’.89 In a truly democratic polity what is needed is ‘a perpetual and standing Opposition to the will of the majority’, and not as Bentham recommended so many ingenious schemes for ‘riveting the yoke of public opinion closer and closer round the necks of all public functionaries, . . . excluding every possibility of the exercise of the slightest or most temporary influence either by a minority, or by the functionary’s own notions of right’.90 Marking the gulf between himself and Bentham, Mill concluded that had Bentham demonstrated how democratic institutions would respect ‘the personality of the individual’ and ensure ‘deference to superiority

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of cultivated intelligence’, his political reasoning ‘would have done something more permanently valuable, and more worthy of his great intellect’.91 What does this say about Mill’s understanding of ‘Bentham’s dictum’? As Mill renders the dictum in the Rationale of Judicial Evidence, ‘every individual in the country tells for one; no individual for more than one’. It was assumed by Mill and, I think, every commentator since, that there is no material difference between the words ‘tell’ and ‘count’ in the phrasing of this maxim, and that even if Bentham chose to use the rather quaint, even archaic, term ‘tell’ what in fact he meant was ‘count’, that the structure of the sentence and its context clearly indicate that what is meant is the enumeration of the happiness of each person in the calculations of the legislator. However, the usual understanding of the word ‘tell’ is as a speech act, as referring to the person who ‘tells’, such as in the telling of a tale, or in making a statement or in giving an account of something. In the ‘Radical Reform Bill’, in response to the objection to secret voting that a person may be made to ‘tell’ how he has cast his ballot, Bentham offered this comment: ‘To tell how he has given it! The deception lies in the word tell. What matters it what a man has told, when by nothing that a man has told, or ever can tell, can he cause any other man to know?’92 This does not sound like the words of a man who would employ the term ‘tell’ inadvertently, to mean something else. Bentham, who we know chose his words carefully and made a point of precision in the terminology he employed to express the elements of his philosophy – at times to the point of tedium – could have employed the word ‘count’ in the phrasing of the dictum if this is in fact what he meant to say. So why use the word ‘tell’? Could it be that it was not accidental, that he deliberately opted for ‘tell’ because it better indicated his meaning? Think of it this way: if we couple the enumerative meaning of the word (‘tell’ as in count) with its meaning as a speech act (to tell or to give an account), we might conclude that in the enumerative process (by which the interests of each person is counted) each person must speak for himself or herself. Recall that Bentham says in the Rationale of Judicial Evidence that the equality dictum is one he was ‘in the habit of employing on all political occasions’. There is more than a hint here that a complete understanding of the dictum involves the idea that in the political context each person speaking for himself/herself requires that each person have a voice. True, in a system of universal suffrage in a mass democracy not everyone can truly have a voice, since there are far too many people to allow an opportunity to speak. However, in the system of representative democracy detailed by Bentham each person has a vote, and voting is the obvious method, indeed the only way for most people, to ensure that their voices are heard and their interests counted. And this is entirely consistent with another of Bentham’s dictums, also voiced by Mill, the ‘best judge’ maxim, that the individual is the best judge of his or her own interests.93 Finally, it is of more than a little interest to note that Mill also used the term ‘tell’ in precisely this way in Thoughts on Parliamentary Reform and Considerations

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on Representative Government, in both cases in the context of discussing the dangers the majority posed to minorities if the suffrage were to be universal and equal. In the first he writes, ‘Even the government of mere numbers requires that every number should tell in proportion to its amount.’94 In the second, after arguing that in a strictly majoritarian electoral system it is rarely the case the majority of electors determine the outcome, thereby thwarting the majoritarian ideal (in effect only a majority of the majority decide issues), he states that the only means of ensuring that the majority are in fact in the ascendant is ‘by allowing every individual to tell equally in the summing up’.95 In both instances Mill is concerned that minorities should have a representative voice in the political process, which they would doubtfully have in a system of universal and equal suffrage such as advocated by Bentham. Perhaps, then, the wording of the dictum is Mill’s after all. However, even if this were the case what is clear is that Mill wholeheartedly embraced only one side of the equality implications of the dictum, the social and economic, but not the political, at least not to the same degree as Bentham – the equality of output, to use the lingua franca of modern political science, but not the equality of input. For Mill each person tells for one, but some tell more than others.

Conclusion The pronounced egalitarianism of Bentham’s final version of utilitarian theory is illustrated in the ‘Legislator’s Inaugural Declaration’ in the Constitutional Code,96 which stipulates that only when it is impossible for government to contrive policies intended to serve the ‘universal interest’ is a distribution of happiness that is less than universal and less than equal justified. However, to stress the ideal over the practical as the objective of government risks distracting us from the underlying rationale of Bentham’s project.97 As he states in Plan of Parliamentary Reform, the ‘universal interest’ properly conceived is calculated to produce the ‘maximum . . . of comfort and security’, and in this calculation ‘with exceptions to as small an extent as possible, interests all to be advanced: without any exception, all to be considered’.98 It is evident from this that consideration of an interest does not necessarily mean it will be advanced, but it is also important to recognize that the interests to which Bentham refers here are those that pertain to ‘comfort and security’ and as we have seen the equality provision requires that such interests must be protected, save in times of emergency. Interests which are not of this basic sort may be sacrificed when the greatest happiness is served by doing so. As the rest of the passage makes clear where there is a ‘repugnancy’ between particular interests this necessarily requires a ‘defalcation’ consistent with producing the ‘maximum’ of happiness possible not the ‘universal interest’. We might say, therefore, that in practice the ‘universal interest’ relates in the first instance to basic interests,

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and only contingently to other interests. The number of decisions made by governments that are genuinely of universal reach are relatively few, and may be limited to issues of national security and the structure of distributive justice. Redistributive decisions are more likely to involve unequal sacrifices, and when this occurs it is the ‘greatest happiness of the greatest number’ that is employed. This is the standard against which most decisions are measured. Where sacrifices are incurred pain is involved, and pain is a less bearable emotion to one individual than a notionally equivalent increase in pleasure is enjoyable to another person. In the legislator’s utilitarian calculation, the pain experienced by the few must be reduced to the lowest level possible in all public decisions that produce benefits for the many. Only on this basis are pleasures summed and pains subtracted to produce the rationale that justifies the policy. This decision-making framework is used when it is impossible to serve the universal interest, a dilemma which is clearly not the case when the legislator settles the basic social and political rights of the people, but potentially this is as far as the ‘ideal’ of the universal interest can take us. This is signalled in the legislator’s declaration, when Bentham reiterates the ‘uncontrovertible ends of all good government’ and omits the objective of the ‘universal interest’ from his summary: ‘Greatest happiness of greatest number maximised; national subsistence, abundance, security, and equality maximized; official aptitude maximized: expense, in all shapes, minimized’.99 The surprising part of this summary is the inclusion of ‘equality maximized’, which is not often stressed in interpret ations of Bentham. In recent times Fred Rosen has been foremost among scholars in promoting the Millian idea that equality is not only not incompatible with utility, as is conventionally and commonly thought, but is part of the meaning of the utility principle. As he phrased it in one essay, ‘it is important that the presence of equality within the utility principle itself is recognized as an important starting point’.100 As I trust this chapter has demonstrated, there is much to be said in support of this interpretation of Bentham’s understanding of the utility principle, since there are many occasions when he argues that the maximization of utility is best achieved when the distribution of happiness correlates as closely as possible to equality. This is certainly the case with respect to the security of life, property and expectations, and it is also evident in an attenuated form in Bentham’s arguments for democratic institutions. Political equality is not an end in itself, but rather the means to enhance the happiness of the people. The logic of this position is explained in First Principles Preparatory to Constitutional Code, where inequality is denounced as ‘a source of evil’.101 There are two reasons for this. First, in a situation of abundance Bentham believed that the optimum distribution of material goods is an equal one, and justified this in terms of the principle of diminishing marginal utility. Second, were material goods to be so unevenly distributed that the few possessed the lion’s share, then the correlative enhancement of their power would

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enable them to pursue their own interests at the cost of the interests of the many who are impoverished.102 Universal suffrage is a means to combat this inequality in power, though it could not eradicate it altogether. In this sense the distribution of political rights was an important means by which the poor could achieve a measure of security against the undue influence of the rich and oppression by those in positions of power. As we have seen, however, other substantive attempts to realize economic equality would be limited by the priority afforded to the general need for the security of property and expectations, since these were necessary both for individual well-being and to the production of abundance. Moreover, Bentham recognized that other forms of inequality produced benefits. For example, equality in the ‘scale of power’ is not in the interests of social well-being, since social and political institutions cannot function to their optimum effect if decision-making positions are held by those ill-equipped to handle the relevant responsibilities. The tendentious aspect of this position is the underpinning argument that inequality in moral accomplishments and intellectual and active acquirements are the inevitable result of competition, which again is to the benefit of society,103 though it can be allowed that competition for office is more likely to produce a beneficial result than the socially closed network of privilege that was the usual path to office in Bentham’s day. So long as inequalities in power do not work solely in the interests of the ‘superior’ and do not bring about a loss in happiness to the ‘inferior’, then they are a positive benefit. This suggests that the claim that equality is part and parcel of the meaning of the utility principle requires qualification. As central as it may have been to Bentham’s thinking about civil and political rights, there are justifiable limits to the extent of equality based on utilitarian calculations of what is in the best interests of the community. In this sense, utility retains its status as the governing principle of Bentham’s utilitarianism.

Chapter 5

Republicanism

The elimination of monarchy has long been the goal of republicanism in Britain, proponents of which argue that popular democracy can only function in its most complete form, and liberty be optimized, if the monarchy is removed from the equation, the powers of the Crown codified and the exercise of those powers by public officials made accountable to the representatives of the people. Adam Tomkins, one of Britain’s most respected contemporary republicans, puts it this way: ‘the existence of the Crown is straightforwardly incompatible with the core republican requirement of freedom as non- domination’, and ‘the Crown simply gets in the way of the constitutional project of trying to find ways of holding the government to account’.1 The idea of freedom as non- domination, can be traced to Rousseau’s Discourse on Inequality, where he explains the psychological sources of the compliance by the masses with hierarchical social and political arrangements, and the concomitant rejection of ‘independence’, in terms of the seductions of a hierarchy of domination in which subjection to those above is made palatable by dominating those below.2 In recent times, this view of freedom has been given currency by Philip Petit, in opposition to the usual views of ‘negative’ and ‘positive’ liberty. His explanation is much like Rousseau’s: ‘One agent dominates another agent if and only if they exercise a certain power over that of another, in particular a power of interference on an arbitrary basis.’3 Pettit proposes two methods to combat social and political domination: a ‘strategy of reciprocal power’, and a ‘strategy of constitutional provision’. The first strategy requires that the resources of the ‘dominator’ and the ‘dominated’ be made more equal, ‘so that, ideally, a previously dominated person can come to defend themselves against any interference on the part of the dominator’. The second strategy is aimed at reducing domination ‘by introducing a constitutional authority to the situation’.4 In other words, legislation is required to limit the power of those in positions of authority. This, in essence, is Bentham’s approach in his later political and constitutional writings. Individual freedom is not a privileged concept in his political theory, but is rather the concomitant of the equal provision of security, the invariable consequence of a properly structured system of securities, at the level of the individual and society at large. In political terms it requires

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‘securities against misrule’ – a phrase employed in the titles of several constitutional tracts he wrote for Tripoli and Greece 1822–35 – which are necessary for the preservation of freedom and are dependent on that freedom, understood as the freedom of thought and expression, and the exercise of political rights free from the constraints of undue influence. Ultimately, however, like the Chartists of the following generation of political radicals, Bentham could not imagine a fully functioning democracy in Britain without the abolition of monarchy, which he viewed as the personification of corruption in the existing political arrangements. The way forward was to combine democratic institutions with an agenda of reform designed to incrementally legislate monarchy and the institutional embodiment of aristocracy out of existence. In simple terms, utility required democracy, and democracy required the abolition of monarchy. But this is not to say that Bentham was unsympathetic to the democratic objectives of republicanism. His admiration for the American republic – the ‘Anglo–American’ republic, he called it – developed over time. Initially, he opposed the American revolutionaries (and subsequently their French counterparts) not because they were inherently evil, but because they had been led astray by the metaphysics of inalienable natural rights – an insecure foundation for a new state (even if he later acknowledged that the success of the United States stood as a counterfactual to this analysis). The attack on natural rights theory was rooted in Bentham’s ontology, whereby ‘fictions’ and ‘fictitious entities’ must be reducible to ‘real entities’ (and thereby explained) or dismissed as misleading dogma unrelated to the facts of human experience. Once exposed as hollow and dangerous rhetoric, utilitarian doctrine demands that the ‘nonsense’ of natural law and natural rights be set aside in favour of the greatest happiness principle as the correct foundation for law and government.6 Nevertheless, Bentham’s later writings are replete with illustrations from American government that testify to the superiority of its republican institutions, which he frequently recommended to his revolutionary contacts overseas as the example to follow.7 The republican character of Bentham’s political thought has received little attention in the literature, frequently mentioned but little examined.8 In the present chapter I intend to situate Bentham’s political thought in the context of the republican tradition in England, and in relation to his enthusiasm for the American republic. The two following chapters build on this by focusing on the details of Bentham’s critique of monarchy, the principal elements of his democratic theory and his role in the reform movement in Britain.

1. Modern Republicanism Though he claimed that the object of the Constitutional Code was ‘the bettering of this wicked world, by covering it over with Republics’,9 Bentham used

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the term sparingly, ever sensitive to its Jacobin associations in the mind of the authorities. In a letter to Jean-Baptiste Say he referred to it jokingly as a ‘vile title’ when used by Richard Carlile for his reformist journal The Republican,10 a periodical frequently read in the Bentham circle and to which Francis Place was a regular contributor. Certainly he could not countenance the vague talk of ‘republican virtues’ and ‘public spirit’ that characterized the classical republican tradition inaugurated in Italy by Marsiglio of Padua and elaborated by Nicolò Machiavelli, and which found further expression in England in the writings of the Levellers, Harrington, Milton, Sydney, Halifax, the eighteenthcentury ‘Commonwealthmen’ and elsewhere in the writings of Rousseau, Jefferson and Kant, among others. In Machiavelli’s classic statement of the theory in Discourses on the First Decade of Titus Livius (1531),11 a theory that had a powerful influence on seventeenthcentury political thought, unchecked power is the cause of instability, dispute and conflict, and this leads to the political corruption of the state and the moral corruption of the people, making government susceptible to internal collapse and the nation vulnerable to external conquest. Either way, the consequence is the loss of liberty. There are two components to solving this problem. First, the exercise of sovereignty ought to be based on a clear separation of power between the monarch, nobles and representatives of the people. The people’s representatives were to be men of property and independence, able to devote themselves to public life and capable of the required virtù. Second, the stability of the system depends on a balancing mechanism, whereby the possibility of one of the elements becoming dominant and functioning in an arbitrary manner is eliminated by the checking function performed by the other two elements acting in concert. With an equal amount of power in the hands of the nobles, the people and the prince, the resultant balance will preserve the liberty of all. What was important for Machiavelli and later republicans influenced by him were the conditions necessary for the establishment and maintenance of selfgovernment, the abiding principle of the republican tradition, though it was a principle that need not be universalized to be operational. They argued that the capacity to function as independent citizens with a heightened sense of civic virtue depended on the ownership of sufficient property, the absence of considerable differences in social rank and wealth and the existence of a common and deliberative political culture, including a shared language, religion and education. For these and later republicans such virtues could not be expected to flourish when government was dominated by monarchy, but they were not all convinced of the need to dismantle the institution entirely. What they feared was a strong executive, and what they hoped to establish was the rule of law. Few thought that introducing democratic institutions was necessary to achieve this, and when they spoke of ‘the people’ they had in mind the propertied, educated and responsible members of society who could be

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trusted to regulate its affairs and hold the executive accountable. With the notable exception of the most radical of the Levellers, those who argued for the ‘sovereignty of the people’ focused their attention on a recalibration of power and responsibilities. The powers of the legislature and executive (and eventually the judiciary) should be separate and independent, with neither encroaching on the responsibilities of the other. It is these characteristics that define the early republican tradition in England.12 The Levellers stand out in this tradition as determinedly hostile to monarchy. Disappointed by Cromwell’s failure to transform the existing hierarchical social order in which wealth conferred privileges according to rank and birth, in 1646, Edward Ludlow, John Lilburne, William Walwyn, Thomas Prince and Richard Overton, banded together with an array of craftsmen, peasant farmers, small property owners and radicals in the parliamentary army, to pursue an explicitly republican political agenda. The poor were oppressed by heavy taxes and burdensome rents imposed by the rich, the harshness of the criminal code and laws that inhibited fair economic competition. The situation required a ‘levelling’ of status and political rights, and an egalitarian redistribution of land. As we have seen, Bentham deemed the latter a policy dangerous to all property rights, but would have found much else to agree with in the Leveller programme. When Cromwell imprisoned their leaders in the Tower of London they issued An Agreement of the Free People of England (1649) calling for abolition of the monarchy and House of Lords, annual parliaments based on a broad suffrage, equal political and civil rights (including complete religious toleration), government limited to the defence of the commonwealth and the preservation of the ‘lives, limbes, liberties, properties, and estates’ of the people and the devolution of authority to local communities (public officials, parish priests and juries elected by the people).13 Colonel Thomas Rainsborough, one of the more outspoken Levellers, denounced the institution of monarchy as a tyranny on the grounds the King could arbitrarily create peers, who would then be beholden to him, and decide which ‘corporations’ have the right to elect burgesses, thereby exerting a controlling influence in the Commons as well,14 complaints that retained their vibrancy among political reformers over the next two hundred years. Drawing upon this vein of republican criticism, the Act for Abolishing the Kingly Office 1649 states, in words that Bentham would have appreciated: It has been found by experience that the office of a king in this nation and Ireland, and to have the power thereof in any single person, is unnecessary, burdensome and dangerous to the liberty, safety and public interest of the people, and that for the most part use has been made of the regal power and prerogative to oppress and impoverish and enslave the subject, and that usually and naturally any one person in such power makes it his interest to encroach upon the just freedom and liberty of the people, and to promote

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the setting up of their own will and power above the laws, that so they might enslave these kingdoms to their own lust . . . . 15 The tendency of the King to put his ‘own will and power above the laws’, the opposition between the King’s interest and the ‘public interest’, and the risks to the ‘liberty’ and ‘safety’ of the people, are sentiments Bentham similarly expounded in his own critique of monarchy. The year 1649 marks the moment when government without a king or aristocracy in Britain settled into the language of republicanism in Britain, though the term ‘republic’ was still employed to refer to what became known as constitutional monarchy, based on the idea of checks and balances, or a ‘republican monarchy’ (or even more dubiously a ‘monarchical republic’).16 So, for example, other seventeenth-century republicans, including more conservative Levellers like General Henry Ireton and Colonel Nathaniel Rich, were less convinced of the necessity of abolishing the institution of monarchy, though few objected to the removal of Charles I. James Harrington, the author of The Commonwealth of Oceana (1656) and other republican tracts, Algernon Sydney, who wrote in opposition to Filmer’s defence of the divine right of kings and was a conspirator in the Rye House Plot, and Henry Neville, the Harringtonian editor of Machiavelli’s works, each stopped short of recommending the complete removal of monarchy. Harrington articulated the classical principles of mixed government ‘consisting of the senate proposing, the people resolving and the magistracy executing’, and allowed that the latter function could be served by a monarch, either based on the hereditary principle or elected for life or a set term ‘as shall best suit the occasion’.17 Also, he recommended regular elections and a system of representation, with representatives rotating in office to avoid the accumulation of too much power and as a device to promote public virtue among citizens who stood ready to take their turn as political representatives. Sydney acknowledged ‘there was never a good government in the world that did not consist of the three simple species of monarchy, aristocracy and democracy’,18 and Neville took a similar position. Though he had earlier sponsored ‘The Humble Petition’ in 1659 – a rearguard action imploring Parliament to resist the restoration of the monarchy and institute a new and stable settlement based on the identification of the interests of the ruler with the ruled19 – in Plato Redivivus (1781), in arguing for the exclusion of James II from the throne, he opted for statutory limitations on the monarchy designed to produce the sort of constitutional monarchy that evolved a hundred years later.20 Nor did the early-eighteenth-century ‘Real Whigs’ or ‘Commonwealthmen’, radicals like Walter Moyle, John Trenchard, Thomas Gordon and John Toland, recommend the abolition of monarchy, settling for limitations on kingly power as a way of purifying Parliament of corruption.21 It is characteristic of many of these early republicans that they sought to integrate Machiavelli’s republican thesis into the prevailing natural law tradition

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in England, epitomized in Locke’s Second Treatise on Government (1690). Written in the context of the final revolutionary showdown with the Stuart dynasty in England, the absolutist tendencies of which had already precipitated a civil war, Locke described a division of political authority between a monarchical executive and a legislature in which the nobles in the Lords and representatives of the people in the Commons bore primary responsibility for enacting law, though the judiciary was not afforded the independence later thought necessary by the American founding fathers. Locke justified these political arrangements on the basis of his accounts of the state of nature and its imperfections, natural law and natural rights, and the idea of a social contract, elements absent from the earliest forms of classical republicanism. However, like earlier republican writers, he viewed property as a requirement for involvement in public life and hence for political rights, and found little to criticize in this aspect of England’s constitution. The theory of the ‘mixed’ constitution received its archetypal statement in England in Blackstone’s Commentaries on the Laws of England (1765–9), in which it is couched in Locke’s political terminology. Blackstone believed the theory provided an accurate depiction of England’s ‘matchless constitution’. The King, Lords and Commons, representing the monarchy or executive, aristocracy and people respectively, are three branches of government whose only objective is the good of the people. So long as the ‘balance of power’ between these elements is maintained, in particular the independence of the executive, then the liberties of British subjects will be secure. ‘The constitutional government of this island’, Blackstone intoned, ‘is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest’.22 Should one element achieve dominance over the other elements the English constitution would be at an end, and the liberty of the people lost.23 The ‘true excellence’ of this form of government consists in the fact that ‘all the parts of it form a mutual check upon each other’: the people are a check on the nobility, the nobility are a check on the people in the legislature ‘by the mutual privilege of rejecting what the other has resolved’, and the monarch is a check on both the people and the nobles, ‘which preserves the executive power from encroachments’. By turns the executive power is ‘kept within due bounds by the two houses, through the privilege they have of enquiring into, impeaching, and punishing the conduct (not indeed of the king, which would destroy his constitutional independence; but, which is more beneficial to the public) of his evil and pernicious counsellors’.24 The consequence is a stable government that functions in the interests of the people and, above all, is the guarantee of their liberty. Blackstone’s account of the English constitution was destined to remain the standard view long into the nineteenth century, but found a formidable critic in Bentham, who vigorously dissected the theory in his earliest constitutional

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and legal writings of the 1770s.25 The young Bentham had heard Blackstone lecture on law at Oxford, and detected the fallacies in his natural law reasoning that prompted a lifetime’s critical engagement with the legal philosophy of the ‘every-thing-as-it-should-be’ school he embodied.26 Following Hume, the thrust of Bentham’s critique was to expose the emptiness of the contractual foundations on which Blackstone’s influential theory rested. To this he added a challenge to its central idea that the constitution was maintained by a stable balance between each of its independent parts – a claim unsupported by the facts. In taking this tack, he rejected both natural law and the republicanism of the ‘mixed’ and ‘balanced’ constitution. Bentham argued that in practice what is patently obvious is the distinct lack of ‘equilibrium’ between the various parts of British government. The cause of this is the corruption he detected at its center, and which permeated its several branches. Whatever the terms used, the ‘balance’ presumed by Blackstone is a myth, and the capacity of the aristocracy and the people’s representatives to function in an independent manner is non-existent in the face of the ubiquitous influence of the monarch. Offices, including sinecure posts in the state, church, judiciary and military are at the monarch’s disposal, as are state pensions, all paid for out of the public purse and used to bind their recipients, and those who hoped to be recipients, to the monarch’s will. Moreover, attempts to hold office-holders to account by bringing forth facts prejudicial to their reputation are met by restraints on the liberty of public discussion. In an echo of Dunning’s condemnation of the growing influence of the Crown, Bentham argued that under a mixed government ‘the power of the Monarch is perpetually on the increase until the mixt Monarchy becomes a pure and absolute one’. The power of the monarch is continuously increasing ‘from the fountain of corruptive influence’, and whatever power is possessed by the people is continually made to flow into the hands of the monarch ‘by the pressure by which the liberty of public discussion is forced out’. In addition, by its alliance with the monarch ‘there is not any branch of the Aristocratical interest that is not capable of receiving advancement at the expence of the universal interest’.27 All those who possess offices in the ‘official establishment’ are ‘corrupted by possession’, and to this can be added all those ‘corrupted by expectancy’. All such individuals are ‘the source of an atmosphere of corruptive influence’.28 In effect, the conduct of both Houses of Parliament is determined by the King’s influence. A majority of the seats in the Commons ‘are located by individuals who have seats in the Lords House’, and a majority of the peers are dependent on the largesse and support of the monarch.29 Ministers serve only at his will, and they in turn bind a majority of the seats in the Commons to do their bidding. With few exceptions everything that is undertaken by the Commons is done in conformity with the monarch’s will. Even those who oppose the King’s administration are rarely motivated by the pursuit of the greatest happiness of the people; rather their goal is simply

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to replace those in office with themselves.30 This is the system of government defended by Blackstone. The theme of corruption is an important element in Machiavelli’s republican discourse. It is the blight of all governments, threatening the capacity of the state to remain true to its original principles and to respect and protect the liberty of the people. These ideas were taken up in England by John Brown, among others, in his popular An Estimate of the Manners and Principles of the Times (1757), in which he gave impressive voice to the public outrage over the legacy of corruption generated by Walpole’s influence peddling. He held the constitution established following the Glorious Revolution to be nigh perfect in the balance, separation and harmony of its powers, but these principles had been subverted since. Political corruption had fostered moral degeneracy among England’s upper ranks and their dissipation in luxuries was infecting the middle ranks as well. The consequence is that the stability of the nation’s political institutions is under threat and England risked a disastrous defeat at the hands of the French. The only hope for the reversal of this process of decay, Brown thought, is the immediate appointment of ‘a great Minister’ at the head of government – by whom he meant William Pitt the Elder – a man who, like Bolingbroke’s idealized ‘patriot king’, could be counted on to return the constitution to the principles of the revolutionary settlement.31 The theme of corruption was just as important an element in Bentham’s critique of England’s political arrangements, but unlike Brown and other apocalyptic critics of corruption, he focused on corruption not as the disease that leads to political instability and constitutional crisis, but as the glue which held the rotten edifice together. Thus he borrowed from classical republicanism the concern with ‘corruption’, but gave it a different spin: corruption, in the form of the methods used to enhance ‘influence’, was the primary means of maintaining a system of government manifestly adverse to the interests of the people. It is a government which, ‘in substance and effect’, is ‘a compound of Monarchy and Aristocracy . . . with a thin coat of Democracy remaining on the surface, sufficient for the delusion, but not sufficient for the protection, of the people’.32

2. The American Republic If Bentham saw himself as an outrider in the republican tradition in England, matters were quite otherwise when he cast his eyes across the Atlantic to the United States. His praise for the achievements of the new republic became ever more exuberant as time passed. During the last twenty years of his life his contacts with American presidents, congressmen, governors, lawyers and other public figures were numerous, as his correspondence reveals, often cultivated in the attempt to gain currency for his utilitarian ideas.33 In December 1817

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he described himself as ‘a Philo-Yankee’ in a letter to John Adams Smith, the secretary to the American Legation in London and nephew of John Quincy Adams,34 and to President Jackson he declared himself ‘at heart more of a United-States-man than an Englishman’.35 He avidly absorbed American travel literature, geography, history and writings on law and economic matters,36 and regularly solicited Joseph Hume to supply information about the discussion of American affairs in Parliament.37 He knew the constitution of the republic well, took a particular interest in the amended constitution of New York (1821),38 and probably had seen other state constitutions.39 He made detailed enquiries of John Quincy Adams how atheists and blasphemers fared under the common law in the United States,40 and applauded the efforts in Virginia to establish a public education system which would be for the benefit of all instead of serving the ‘sinister interest of the few’, as happened in England at the hands of the established church.41 Bentham’s interest in American politics began at the time of the war of independence, when he collaborated with his friend John Lind in producing pamphlets criticizing the arguments employed on behalf of the thirteen colonies. He later explained to Bowring that ‘by the badness of the arguments used on behalf of the Americans on that side of the water as well as on this, my judgment, unwarped by connection or hope, . . . was ranked on the government-side’.42 He exculpated himself on the grounds that he had not yet seriously studied government or yet investigated the disutility of colonies,43 a consideration he detailed for the French Convention in 1793 and later recycled in relation to the Spanish empire in 1820–2.44 When he published IPML in 1789 he again lamented the shoddy metaphysical arguments used to support the political actions of the American revolutionaries, but praised the United States as ‘that newly-created nation, one of the most enlightened, if not the most enlightened, at this day on the globe’.45 This was to be a refrain in Bentham’s political and legal writings for the rest of his days. However, his frequent praise of the American republic as the only true democracy then existing, it must be said, was not always based on a precise understanding of the federal system and the political arrangements of the several states of the union.46 Mackintosh, in his review of the Plan of Parliamentary Reform, commented on certain inaccuracies in Bentham’s view of American institutions, in particular noting that something far short of universal manhood suffrage was evident in the slave states, while in nearly all states of the union there were property qualifications for the vote.47 Further, the ballot may well be held in secret in some states, but it was also true that party committees instructed their members how they should vote.48 And, when Bentham wrote to President Madison in 1811 to offer his services as a codifier of American law, he revealed his ignorance of the steps already taken in this direction and appeared not to understand the jealousy the several states could be counted on to exude over their hard-won

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jurisdiction vis-à-vis central government.49 Due to the war with Britain, Madison did not reply to Bentham until 8 May 1816, when he explained that it ‘would not be within the scope of my proper functions’ to accept such an offer to codify the laws, and casting doubt on whether the common law could be entirely encompassed in statute law in the manner proposed.50 Nonetheless, Bentham found reason to be pleased with Madison’s response, perceiving in it ‘a recommendation to the several states’, and instructed his secretary John Herbert Koe to print Madison’s letter to add to the exchange of letters with Alexander I and his envoy Prince Czartoryski and other similar letters, for distribution to the several states in the union.51 The Genevan Albert Gallatin, secretary to the treasury in Madison’s administration and one of the peace negotiators in London in the spring of 1814, assisted Bentham’s overtures by writing to Simon Snyder, the Governor of Pennsylvania,52 in the belief that he would be the most likely of the state governors to support the idea of codification. Soon after Snyder submitted Bentham’s offer to the state legislature, but no further action was taken.53 Not long after, Bentham made the acquaintance of John Quincy Adams, then US Minister in London, and subsequently secretary of state (1817–25) and president (1825–9). Through Adams, Bentham sought to reach the governors of the other states in the union, supplying him with numerous tracts to distribute upon his return to America. When Adams became president in 1826, he sent him another batch of his writings, 54 and in the summer of 1830 he did the same with Andrew Jackson, Adams’ presidential successor. Only one of the governors who received the first batch of these materials from Adams in 1817 seems to have been interested enough to pursue the matter. William Plumer, Governor of New Hampshire, published an open letter to Bentham in the Morning Chronicle announcing his intention to present his codification offer to the state legislature, 55 which he did on 4 June 1818, urging the legislators to give serious consideration to the proposal. The next day the New Hampshire House of Representatives established a legislative committee to do just that but, as was the case in Pennsylvania, without pursuing the matter further. The opposition of local lawyers to an outsider crafting the state’s laws seems to have been the reason.56 Bentham’s codification campaign was premised on the reasonable assumption that democracies are more likely to engage in policies of improvement, and he rarely missed an opportunity to point out that the United States was the most advanced democracy of the age. However, the only real success he achieved was the influence he had on the codification proposals for the state of Louisiana drafted by Edward Livingston, who also worked on a code of penal law for the federal government.57 Livingston, a serving United States senator for Louisiana when Jackson was elected president in 1829, was appointed secretary of state by the new president. He wrote several important speeches for Jackson, and it is likely Livingston who penned the Benthamic sounding peons

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to democracy and attack on corruption in Jackson’s first ‘annual message’ in December 1829, which inspired Bentham to open a correspondence with the new president the following summer.58 He sent Jackson twenty-eight tracts, including writings on constitutions, law and judicial procedure, government and the panopticon. In Jackson, Bentham perceived an ally in the cause of political improvement, though he totally misjudged the support he was likely to receive from this quarter for the abolition of the Senate. Bentham’s accounting of the institutional make-up of the republic is impregnated with its impressive democratic achievements, but there were elements of its institutional framework he was less happy about. In addition, to the abhorred Senate (and upper chambers in several of the state legislatures), which he believed an unnecessary expense, productive of vexing delays in the legislative process, and a reprehensible restriction on the popular will,59 Bentham was also critical of the federal system of government. First, federalism created unnecessary difficulties for central government in raising taxes from the several states in a ‘punctual and truly proportioned’ fashion when national emergency, war or economic depression, required it. Second, federalism required not just a dual political structure but also a dual judiciary, with the increased expense this entailed and, more seriously, the abiding potential for conflict between the two jurisdictions.60 The growth in the vast ‘tribe’ of lawyers could be traced to this, though Bentham’s criticisms were partly assuaged by the fact that justice was cheap in America – the $4,000 salary of the Chief Justice (‘not so much as pounds 1,000’) paled in comparison with the £23,000 annual fee paid to Lord Eldon.61 Nor was Bentham impressed by the rhetoric of republicans like John Adams, who extolled the ‘mixed’ and ‘balanced’ features of American government as a method for limiting its democratic character by guaranteeing the rich a forceful presence in the legislature. Like De Tocqueville, Bentham believed that whatever mixture existed, it was a mixture of democratic institutions without any taint of monarchy or aristocracy.62 Rather such formal and informal checks on government were better understood as devices enabling the identification of the interests of the governors with the interests of the governed. If Bentham disapproved of the form of certain of these devices, he recognized that the objective was to make official tyranny impossible. Unaware of the potential vagaries in the role of the Electoral College in determining the presidency, Bentham believed that the Americans had managed to give concrete form to the ‘ junction-of-interests-prescribing principle’ – the identification of the interests of rulers with the interests of the people – in their presidential and congressional electoral systems, and in the political arrangements of the states of the union.63 It was the electoral system that anchored democracy in America – the extent of the suffrage, frequency of elections at all levels (presidential, gubernatorial, congressional and state), and the innovation of elected judges.64 As a result, Bentham believed it was only

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in the United States that the problem of the disjunction of interests between rulers and ruled had been solved.65 Moreover, he believed that this was a major factor in producing the prosperity enjoyed by the American people. In the United States, he writes, ‘all is regularity, tranquility, prosperity, security, continual security, and with it continually increasing, though with practical equality divided, opulence’.66 In this respect, the ‘maximisation of subsistence, abundance, security and equality’ is the result of the identification of interests upon which its ‘matchless good government’ is based.67 Signs of further improvement could be detected elsewhere in the political fabric. The gradual extension of the suffrage that marked the early history of the new republic encouraged Bentham to think that defects in American political arrangements were only ‘imperfections of detail’ that would be eradicated in the course of time.68 Secrecy in voting, for example, a vital plank in the radical platform in Britain, had already been adopted in New York and there were intimations it would soon be introduced in the other states of the union.69 What especially struck Bentham, though his view of the matter was ill-informed, is what he took to be the total absence of bribery, patronage and corruption from American political institutions,70 which he attributed principally to the fact that the people had dispensed with ‘the yoke of English monarchy – the yoke of English aristocracy – the yoke of English prelacy – all these galling yokes’.71 American government, he believed, was ‘without so much as a single useless place, needless place, overpaid place, unmerited pension – not to speak of sinecures – no not so much as a peerage, to settle or a borough to buy off a country gentleman’.72 Further, the Bill of Rights, despite the defective metaphysical reasoning on which it is based, provides safeguards for civil and political rights, not the least of which is the freedom of expression that is one of the most valuable securities against misrule. On information received from John Quincy Adams, Bentham was happy to report that in republican America ‘there are no dungeoning acts, no gagging acts, no riot acts; accordingly there are no riots . . . there is no punishment for free enquiry, on pretence of punishing seditious meetings and blasphemy: there is, therefore, no sedition there; and there is more religion than in England’.73 The separation of church and state, the elimination of tithes and doctrinal tests, produced a positive encouragement to religion in a land where all religions were tolerated.74 The importance of the issue had been made plain in the first number of the Westminster Review in 1824, when it reinforced the argument for disestablishment of the church in England by citing statistics on the healthy number of churches, clergymen and church attendance in America under the separation of church and state. Moreover, the Westminster argued that standards of morality in no way suffered from the lack of an established church: ‘Without a splendidly endowed establishment – without a law against blasphemy . . . without state prosecution for libel . . . religious observances obtain in the United

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States to an extent, and with a degree of rigour, of which Europe can furnish few examples’.75 Recommending this approach to Count Toreno in Spain, Bentham assured his correspondent that ‘the liberty of publishing whatsoever they please on the subject of religion’ is embraced as a manifestation of the general freedom enjoyed by Americans, and did not produce mischief in any shape or form of the sort commonly claimed as bound to result in European countries.76 Had Bentham been more familiar with American political life, he may have seen that other informal limitations on power were significant, such as the geographic size of the states which fostered legal and religious diversity and the habit of compromise, the safety valve of geographic and social mobility and immigration that worked to erode class distinctions, and the proliferation of voluntary associations which created interest groups.77 Government regulation over these features of American political life was virtually impossible and, the slavery issue aside, the cause of freedom was thereby advanced and the prospect of oppressive government nullified. De Tocqueville was one of the first to understand these dimensions of the American republic, though his prophetic fear of the stultifying effects of public opinion tempered his praise.78 The power of the majority is irresistible, he wrote in his classic work Democracy in America (1835, 1840), ‘surpassing all the powers with which we are acquainted in Europe’, so much so he thought that freedom of opinion did not truly exist.79 There were no obstacles capable of impeding the might of the majority, ‘or which can induce it to heed the complaints of those whom it crushes upon its path’.80 While an issue is under discussion contradicting views are permitted, but as soon as the majority make up its collective mind its decision is ‘irrevocably pronounced’ and ‘a submissive silence’ follows.81 These were characterizations of the exercise of public opinion in American political life that Bentham would not have recognized. John Mill, who initially rejected De Tocqueville’s pessimistic warnings,82 later came to believe that constraints were warranted on the insidious tyranny of opinion in England no less than in America, and extracted the idea of the need for a ‘balance of interests’ from the Whig theory of the mixed constitution as the basis for electoral prescriptions designed to ensure that no one class could dominate the policy process in democracies. By comparison, Bentham countenanced no such limitations on opinions or equality in a democratic republic based on utilitarian principles.

3. Conversion to Republicanism The instrumental view of Bentham’s commitment to representative democracy, that it was indispensable to the production of the greatest happiness, is not debated, though it would be incorrect to conclude that Bentham was

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a reluctant democrat.83 It would also be incorrect to conclude that the democratic ‘means’ were based on a different set of premises than the ‘end’ of the greatest happiness.84 Where there remains room for discussion is on the timing of this development in his political thought.85 Bentham’s critique of monarchy in the 1809–10 manuscripts on parliamentary reform focused on the system of sinecures, places and pensions through which the King exerted influence. As we have seen, this was a theme he first explored over thirty years previously, long before his first consideration of the utility of democratic reform at the time of the French Revolution. What was different about Bentham’s animadversions on the same theme from 1809 forwards was the extent of the network of corruption he traced to the King’s influence, and the radical remedies that would be required to redress the situation. The King stood at the apex of a system of ‘sinister influence’, in which placemen, sinecurists and other dependents were ‘conspirators’ with the King in sacrificing the public interest to private interest (presiding over ‘an allpervading and constantly pursued system of breach of trust and misrule’).86 This network of corruption, included government officials, MPs, lawyers and magistrates, the propertied gentry and clergy of the established church. The methods used include bribery and patronage in the form of the Crown’s disposal of the profitable offices, honours, pensions, preferential contracts and sinecures, and the private influence based on property and wealth exerted by the aristocracy and the gentry, including the manipulation of elections and debates and votes in the House of Commons. This influence is also exerted in less direct ways in the shape of beliefs and emotions, encompassing religious faith and the imposition of religious tests, feelings of gratitude, fear and loyalty, all of which tend to foster ‘habitual dependence’ which interferes with the free play of the intellect, and also by ‘enslavement of the press’ whereby the search and respect for truth is curtailed.87 By 1817, when the fervour for political reform was widespread and moving in an ever more radical direction, it is arguable that Bentham was ready to ford the republican waters and openly declare that the monarch had no place in a properly arranged democratic government. However, as noted in Chapter 2, in the Plan of Parliamentary Reform he held back from this conclusion, justifying his reticence on the grounds of the uti possidetis principle, the earlier form of what became the ‘non-disappointment principle’. It may have been rooted, too, in his continuing fear of being denounced as a Jacobin, still an effective silencer of political criticism in Britain, and the consideration that the call for a full-scale republic might attract the sort of condemnation that would impede the prospect for the success of other reforms, including democratic reforms that would in the long run work to persuade the people that monarchy was no longer necessary. He recognized that the last serious attempt to create a republic occurred in the twilight of a bloody civil war, and the

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inevitable mischief created by a new attempt would mean a net loss of utility when compared with the mischiefs of the existing regime. On these grounds he begrudgingly allowed that it would be best that monarchy and the House of Lords be permitted to continue, but only under the ‘democratic ascendancy’ of the people. In effect, a constitutional monarchy, such as has existed in Britain since the reign of Victoria, would be the result, with the political authority of the King restricted to enacting the decisions of the representatives of the people. In neither the ‘Radical Reform Bill’ nor ‘Radicalism not Dangerous’ (written 1819–20) did Bentham move from this position. Even so, in the political writings of this period his critical perspective on the institution of monarchy distinguished him from the general body of reformers. In particular, Whig apologists for moderate reform, like Mackintosh, might acknowledge the historical danger to liberty posed by England’s monarchs and counsel prudence – ‘to watch, very often to resist’ – but there would never be a reason to destroy the ‘necessary power of the Crown’.88 In the final phase of his political development, Bentham threw off all restraint – no longer did he think it workable, even in a reformed Parliament and electoral system based on ‘virtual universality of suffrage’, to suffer the monarchy to persist. At this point his focus switched to the task of crafting a completely codified constitution, embracing the sub-codes of penal law, civil law and judicial procedure, as well as detailing the political and administrative institutions of a liberal republic. The intensity of the debate over the need for reform, coupled with Bentham’s growing interest in constitutional developments elsewhere in the world, provide the context for the series of writings on constitutions, still not published in full, which were the conclusion to a lifetime’s commitment to reforming law, judicial practice, public institutions and policy, as prescribed by the greatest happiness principle and its subordinate ends and subsidiary principles. In the Constitutional Code and its various preparatory texts and off-shoots from 1822 forwards, we see the final statement of Bentham’s republican politics, including the abolition of monarchy: only a republican and unicameral system of government with a democratically elected legislature based on ‘virtual universality of suffrage’, annual elections and a secret ballot, together with a responsive and accountable administration based on the principles of economy and efficiency, and a free press – collectively styled ‘securities against misrule’ – could ensure that the greatest happiness would consistently be the objective of government. In making this case Bentham was conscious he was operating within a tradition of English republicanism about which he had grave misgivings, particularly its association with the idea of the ‘mixed’ and ‘balanced’ constitution he so much abhorred. Nor would he have derived any satisfaction from the notion that in advocating the end of monarchy he joined the unsavoury ranks of republicans like Paine and the French ‘Pandemonians’, against whose politics he had raised fundamental objections.

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Conclusion For all his admiration for the American republic, in one very important respect Bentham demurred from following in the footsteps of its founding fathers – the necessity of a revolution to bring about political change. He stopped short of ‘red republicanism’, but only just. Generally, revolution could not be justified on utilitarian grounds – the risks of widespread and lasting damage to security is too great. The threat of revolution had been in the air during the closing years of the Napoleonic Wars and culminated in the Peterloo Massacre in the summer of 1819 and the passage of Sidmouth’s ‘Six Acts’ to stamp out the perceived ‘conspiracy’ threatening England’s government. If the philosophic radicals were not averse to playing the revolution card to press the urgency of their case, Bentham, like Hume, believed the first purpose of government was to secure society from disorder and ‘convulsions’.89 Even Hume, however, had recognized that insurrection against tyranny was sometimes justified, as was the case in England in 1688–9, though he counselled a prudential weighing of ‘the advantages, which we reap from authority against the disadvantages’ which attend revolutions, and the potential for the passions associated with revolutions to take hold elsewhere ‘causing a universal anarchy and confusion among mankind’.90 Bentham expressed similar sentiments, but linked his discussion directly to the institution of monarchy. He argued that revolution was undesirable on two counts. First, a revolution that removed the person of the king to replace him with another, as in 1689, supposes that the evil lies within an individual rather than the species. The pursuit of personal interest has its root in ‘the nature of all man, not in the one man who is king’. It is the monarchical system that turns this particular personal interest into sinister interest. Second, he believed that the quantity of evil produced by a revolution would outweigh any good that might be produced, and could not guarantee that the corruption attendant on monarchy might not re-establish itself incrementally in the future, as happened in post-Napoleonic France.91 Nevertheless, in Plan of Parliamentary Reform he warned that resistance to political reform by those in power would put an end to ‘quiet sense’ and fuel exasperation, ‘and as to what exasperation may say or do, who is there that can undertake to measure it?’92 There were times when Bentham’s scepticism about the motives of legislators included even those who were ostensibly on the side of reform, and times, too, when he doubted that those, like himself, who were sincerely convinced of the need for the most extensive political reform, could effect significant change. Insincere reformers create ‘a misplaced confidence’ among the people that they are doing something worthwhile, when in fact their real objective is to induce the people’s acquiescence in the continuance of corrupt government ‘under the notion of its being an irremediable’.93 This frustration increasingly took hold among the philosophic radicals in the face of stubborn

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Tory resistance to reform in the debates over the reform bills 1831–2, and Bentham himself thought on one occasion that parliamentary reform ‘if carried at all, could not be carried for this dozen or score years’.94 And even if it were achieved, a radical reform that left the monarch in possession of ‘the whole or any considerable portion of the Corruption Fund’, would not succeed in preventing misrule and the promotion of sinister interest.95 This pessimism found expression in the October 1831 issue of the Westminster, which portentously declared that: ‘The question of Reform or Revolution is rapidly approaching its solution in Great Britain.’ The radicals have diligently sought change through rational argument on the merits of reform, but they remain ‘ready to take their part in [revolution] . . . whenever it shall please the powers that be, to turn over that leaf in the nation’s history’.96 Bentham would not have approved of such a dangerous call to arms, and continued to believe that the reformers would succeed through constitutional means, even though the achievement of a complete democratization of Britain’s institutions faced formidable obstacles, not the least of which being the constitutional veto retained by the monarch and House of Lords. As long as the power and influence of the monarchy and aristocracy remained, a truly representative democracy could not be established.97 ‘No such Reform’, he declared, ‘can be carried into effect but by a power sufficient to go further, and abolish the Office of him with whose means of happiness the greatest happiness of the greatest number is incompatible, and the power of that unelected fraction of the Sovereign Assembly whose particular and [sinister] interest is not less at variance with the universal interest than the particular and sinister interest of the Monarch’.98 Clearly, the reformers faced an uphill task, as the slow incremental democratization of Britain’s political institutions over the next century came to bear witness.

Chapter 6

Monarchy and Representative Democracy

If Bentham’s republicanism has received little attention from scholars of his political thought, his critique of monarchy has received still less.1 Convinced that it is the source of all that is corrupt in British government, during his later years the institution of monarchy became ‘an object of contempt’.2 When the reformers opportunistically rose in defence of the adulterous Princess Caroline in the summer of 1820 against George IV’s attempt to divorce her prior to his coronation, Bentham was appalled by the display. It had been a disastrous marriage from the first, and the new King was keen to rid himself of his scandal-plagued Consort. Compliant elements in the House of Lords drew up A Bill of Pains and Penalties to dissolve the marriage. Outraged by the King’s conduct, popular sympathy rallied behind the beleaguered Princess. Caroline’s defence in the Lords was arranged by her long-time agent, Henry Brougham, but few peers of the realm relished probing the intimate details of her private life, and the ministry, fearing that riots would result, quietly let the matter rest.3 Bentham’s interest in the affair dates from the Spring of 1813, when he wrote three articles for the Examiner, signed ‘An Ex-Lawyer’, arguing that the commissioners of inquiry into Caroline’s conduct in 1806 were in error in not recording the questions the Princess was required to answer.4 Though he could not divest himself of a share in the general fascination with Caroline’s plight, Bentham was nonetheless sorely exercised at the attention the events in the Lords received in the press, while other serious public matters were neglected. Not that this prevented him from allowing his portrait to be included in a painting of a fictional group of noteworthy spectators in the Lords observing the second reading of the Bill of Pains and Penalties in August 1820.5 Nor did he share Place’s view that the situation was ripe for embarrassing the royal family by encouraging protest meetings, and in particular publicizing the £40,000 p.a. Caroline received and wasted.6 Soon after the affair ended with Caroline’s death in August 1821 Bentham returned to the matter of constitutional politics in several essays: ‘Economy as applied to Office’, ‘Identification of Interests’, ‘Supreme Operative’ and ‘Constitutional Code Rationale’.7 It is in the third of these essays, ‘Supreme Operative’, that we find his most extensive critical account of monarchy. The

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outline of this critique is apparent in Plan of Parliamentary Reform and other writings on political reform, and there exist many passages in ‘Supreme Operative’ later integrated into the Constitutional Code, underscoring the thematic relationship between the political writings of 1809–21 and the later constitutional writings. The key difference between the two bodies of work, however, is that in the later writings he abandoned the idea that representative democracy could function in the public interest while the monarchy and House of Lords remained in place. In order to demonstrate this, Bentham challenged the idea that England’s limited or ‘mixed’ monarchy was in any sense an advance on ‘pure’ or ‘despotic’ monarchy, arguing that while the machinery of government may be different the effects are equally disastrous for the people. The existence of a representative body in the form of the Commons alters not at all the tendency of limited monarchy towards absolutism of the ‘pure’ form, and nor does it make the monarch any less ‘an enemy of the people’.8 The antidote to this prospect lay in ‘securities against misrule’, which would be required even in a republic freed from the corrupting influence of monarchy and aristocracy. These securities encompassed the formal institutional arrangements of democratic government, and informal methods to optimize the efficiency of those institutions, involving the free flow of information in an independent press, scrutinizing the conduct of political representatives and public officials and censoring where appropriate, and a willingness among the people to deliberate openly on matters of policy. In this chapter I focus on Bentham’s critique of monarchy and the main elements of his democratic theory, and draw connections with recent theorizing on the role of the public in liberal democracies.

1. From Enthusiasm to Scepticism to Outrage Born in the reign of George II, Bentham lived through the reigns of George III and George IV, and died in the reign of William IV. Over this time his view of monarchy evolved from uncritical enthusiasm, to scepticism in early adulthood, and finally outright disdain. The ‘unbounded reverence’ he felt for the kings of England as a youth, when he caught a glimpse of George II as he paraded by, and cheered his successor as he made his way to Westminster Abbey to be crowned, was destined not to last far into adulthood and was of an entirely opposite caste in later life, particularly when he had George III in his sights. As a boy he read Clarendon’s History of the Rebellion and Civil Wars in England (1702–4), from which he learnt that Charles I was martyred by the rebels, that the sacred writings supported monarchic government and that ‘passive obedience’ was ‘deep stamped with the seal of the Christian Virtues of humility and self-denial’.9 As a youth he saw no reason to question these doctrines. Nor was he ready to tolerate the slurs against King George made by John Wilkes in the

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North Briton (no. 45), and in response defended the royal prerogative to appoint and remove government ministers.10 However, this did not prevent him soon after from developing a critical standpoint on Blackstone’s rosy account of the majesty of the constitution and the beneficence of the common law. In this context his attitude towards the institution of monarchy exhibited a jocular irreverence. ‘A monarch’, he wrote, in either 1773 or 1774, ‘is a sort of a creature that unites the properties of the Grand Lama and the Pope of Rome, not to mention an odd attribute or two that remains unclaimed by any other created being. Like the first of these, he is immortal: like the last infallible: as if this were not enough, he is omnipresent: no perfection that is imaginable is wanting to this god of our idolatry’. And, in a vein suggestive of his later critical perspective, he adds: ‘Greedy of incense without caring to deserve it: fond of any principle of awe that could serve to screen his person against attack . . . content to draw on his office for a perpetual tribute of respect, without ever thinking of deserving it. Such is the condition of a King’.11 In A Fragment on Government he ridiculed Blackstone’s rhetorical description of the attributes of the King as ‘childish paradoxes . . . that serve but to dazzle and confound, by giving Reality the air of Fable’,12 and in A Comment on the Commentaries asked: Will anyone call the King ‘immortal’? our Author will call the king ‘immortal’. Will anyone say the King is everywhere? our Author will hail him omnipresent. Will any one, or will no one say ‘he is all-perfect’. All this he will say and think it ornament; and draw conclusions from it and think it reasoning. Will any one say ‘the King is God’? I will not be charitable: I do suppose he would find means to say, ‘the King is God’.13 Against this strain of criticism, however, when war broke out between Britain and the colonies Bentham evidently believed that the people should be unified in their support for the King and his ministers. In the context of a draft proposal for a government newspaper, he suggested strategies for promoting the King’s popularity, then suffering from the public perception of him as a ‘foreign’ king and from his reputation as an arch-conservative and political meddler. The primary objective of the proposed organ was to alter this image to reflect the commendable aspects of the King’s private life, ‘his attention to business, his unremitting industry, his extensive knowledge [and] his domestic felicity’. ‘Nothing’, Bentham avowed, ‘could contribute more powerfully to conciliate by degrees the affections of the people, and dissipate those prejudices against his Majesty’s conduct which have been instilled with such malignant industry’.14 Bentham’s attitude towards George III is an important factor in the development of his political thought. In general, when speaking of monarchy he distinguished between the institution and its failings, on the one hand, and the faults of particular monarchs, on the other (the latter served as a reservoir

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of examples to illustrate what he thought wrong with the whole monarchical system). In reality, however, his increasing doubts about George III were never far from the surface, fueling the vitriol he later poured on the institution. His scepticism is evident in the letter he drafted to the King in the Spring of 1780, intended to accompany a presentation copy of IPML: ‘If it were pardonable in me to suppose your Majesty might have prejudices I should fear they would not be in favour of this book. Accordingly though I have taken the boldness to offer it to your Majesty, I must confess it is not with any very sanguine expectations of its being well received.’15 The letter was not sent, but the plan to put a copy of IPML in the King’s hands lingered in Bentham’s mind. A year later, he recalled a ‘dream’ in which he imagined himself presenting George, ‘who had been afflicted with an incurable blindness and deafness for many years’, with IPML, though the result was disturbing. Evoking the Revelation of St John the Divine (x: 1–11), he explained that given a page to read ‘and inwardly digest’, the King ‘struggled a good deal at first: and made a good many faces as much as to say this is some of the nastiest stuff I ever tasted in my life: but no sooner was it down than . . . came out of his bosom seven devils’.16 The portents, it seems, were not good for expecting George’s support for projects of improvement. In May 1791, Bentham drafted a letter informing the King of the benefits of his brother’s design for an amphibious vehicle and, ironically, also recommending the panopticon as worthy of support.17 Again, it is unlikely the letter was sent,18 but the thought was consistent with Bentham’s view at the time that monarchs were in a position to do much good, were they counselled wisely and encouraged to pursue projects in the public interest. Accordingly, he was suitably impressed when the Duke of York arrived unannounced to view the panopticon model at Q. S. P., and was given reason to think the King himself would come, though Samuel’s request that the palace provide a day’s notice posed an obstacle.19 With George on his side Bentham had good reason to anticipate success; without the King’s support his prospects might be diminished, but were still viable. What he did not count on was the King’s animosity. Bowring recalled that Bentham’s later opinion of George III ‘was as low, as mean, as one human being could well have of another. He called him treacherous, selfish, deceitful, tyrannical, vehemently attached to all abuses – violently opposed to all reforms – a hypocrite and a liar’.20 Behind this deeply personal condemnation stands the conviction that George III, supported by a nefarious network of aristocrats and government officials, was instrumental in preventing the building of a panopticon penitentiary. In piecing together the royal conspiracy against him, Bentham claimed that the King’s opposition was also responsible for the government’s failure to support his proposal for a national system of ‘pauper panopticons’ to replace the existing parish-based poor laws.21 If the evidence for the ‘conspiracy’ barely qualifies as circumstantial, it was startling enough to inflame Bentham’s paranoia over the fate of the project. He was convinced on the basis of information from two noble

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connections – Baron St Helens, an old friend who had a distinguished diplomatic career and who was well-connected at court, and Lord Lansdowne who, despite falling out with the King over the peace treaty with the colonies, regularly received news from court in the form of a journal supplied by sources in the Queen’s household. In the summer of 1789, under the nom-de-plume ‘Anti-Machiavel’, Bentham published three articles in the Public Advertiser dissecting the ministry’s ‘Machiavellian’ policy towards Russia and France. The articles were written in reply to a defence of the ministry by a government hack employing the pseudonym ‘Partizan’.22 Bentham was troubled, like many other critics, that the King’s connection to Hanover was a drain on national resources and a major distraction from Britain’s national interests in its relations with the continental powers. As he explained in a manuscript of the time, conflicts of interest in public officials are rightly avoided; hence under English law no man is permitted to be both an attorney and a judge. For an even more cogent reason ‘No man ought to be at once King of his country and Elector of Hanover’, for the simple reason that he ought to be prevented from engaging the nation in a war that is not in its interests. Regrettably, this did not ‘prevent Hanover from being paved with British gold and fertilized with English blood by the first Pitt’ (in the Seven Years War), and ‘it will as little prevent its being paved and fertilized in the same manner by the second’.23 Bentham’s sympathies lay with Russia and Catherine, who he then viewed as Europe’s leading hope for enlightened rule, 24 and with France, which he believed was on the cusp of significant political change. He sent a copy of the first ‘Anti-Machiavel’ letter to Pitt in the hope that ‘the subject of continental connections and commercial preferences has not yet had the benefit of your maturest thoughts’.25 However, what hopes he held for a change of heart by the government were not high, as he explained to André Morellet the same day: ‘I have just sent a copy [of the letter] to Pitt, offering him a quiet memorial to convert him. This is only to heap coals of fire on his head, for you may be sure he is inconvertible.’26 In fact, the government did change course and war with Russia was averted, but Lansdowne’s news that the ‘Partizan’ letter was written at the direction of George III left Bentham convinced for the rest of his days that royal umbrage over his criticisms of ministerial foreign policy prompted the King’s treachery over the panopticon.27 Bentham’s suspicions were reinforced when St. Helens shared the news that he had been vilified at court as a ‘Jacobin’.28 There may have been more truth to this part of the story. St Helens was Lord of the Bedchamber to King George at the time, and well placed to hear the court gossip. It must also be said, if there were rumours of Bentham’s reformist inclinations reaching the ears of the King, they were not entirely unfounded. In A Fragment he had already mounted a short sharp attack on Blackstone’s apology for the ‘matchless constitution’ with its reverence for the pivotal role of the monarch. This was the

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work in which Bentham first announced that the purpose of government was to produce the greatest happiness of the greatest number, denounced at the time by Wedderburn, who went on to serve as Lord Chancellor in Pitt’s wartime administration, as a ‘dangerous’ doctrine.29 Lansdowne, who introduced Bentham to Wedderburn at Bowood, took a different view, and encouraged him to delve deeper in his analysis of constitutional law.30 By the time of the French Revolution, Lansdowne had fallen out with Pitt completely and moved closer to the Foxite ‘Jacobin’ party,31 which did nothing to alter Bentham’s attachment to the noble lord. Nor would it have helped matters with the court when Bentham accepted honorary citizenship from the French National Assembly. Further, the essays he wrote at the time on French constitutional affairs, inevitably led him to reflect on the deficiencies of his own country’s constitution in several draft essays which have only recently been published.32 In an unfinished essay on the ‘Division of Power’ (1789), Bentham wrote in opposition to the idea that liberty could only be secured by maintaining a balance between different elements in the legislative process, such as the Blackstonian theory maintained of the British constitution. The monarch’s role in legislation, in particular, should be limited. In a ‘well-ordered Constitution, no one person under the name of King, or any other, nor any body of persons unaccountable to the body of the people, ought to have any efficient share in legislation’, though a purely nominal role ‘can do no harm’.33 Nor should the King have a role in the judiciary or ‘any thing to do with any power that can properly be termed executive’. 34 The means to protect liberty lay in a different set of political arrangements: ‘The true efficient cause and measure of constitutional liberty or rather security is the dependence of the possessors of efficient political power upon the originative power of the body of the people.’ The degree of the inclination of the possessors of power to provide good government, he argued, ‘will be in exact proportion to the dependence of the governors on the governed: to the dependence of the persons intrusted with the power, on the persons by whose obedience the power is constituted’.35 Thus, he concluded ‘the whole sovereign power ought to rest in the hands of persons placed and displaceable by the body of the people’.36 Symptomatic of Bentham’s reservations about monarchical power, in a further incomplete work, titled ‘On the Influence of the Administrative Power over the Legislative’, he maintained ‘the King ought to have no means whatever of influencing Parliament which it is possible to keep out of his hands’.37 And, in another set of jottings on ‘Parliamentary Reform’ he highlighted the ‘inconveniences’ and ‘mischiefs’ of Britain’s electoral system and suggested suitable remedies: voting by ballot in each parish all on one day, the prohibition of canvassing, shorter parliaments and a literacy qualification for the vote in place of pecuniary qualifications.38 These early political writings give the outlines of the democratizing tendencies in Bentham’s thinking during these years, and had they been known beyond a few intimates with whom he

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discussed such issues, certainly would have warranted his being labelled a radical. Bet ween them, Lansdowne and St. Helens had unw ittingly prov ided Bentham with a focus for his frustrations over the panopticon. How extremely difficult it was for him to set aside the humiliations he suffered can be gauged by the incomplete ‘History of the War between Jeremy Bentham and George III, By one of the Belligerents’ written over thirty years later.39 The subject of this history, Bentham acrimoniously announced, is the ‘history of the wrath of one man and its baneful effects – a counterpart to the Iliad – among the innumerable baneful effects are instances of individual depravity springing from matchless constitution and corruption’.40 Written in a disjointed sequence of notes between 1827 and 1831, the purpose of this speculative rendition of the reasons why the government failed to fulfil its commitment to support the building of a panopticon penitentiary, was to document the royal conspiracy, including the role of several devious nobles who had no wish to see a prison constructed on or anywhere near their estates, and who prevailed on Pitt to abandon the plan. Bentham told Bowring, ‘After keeping me in hot water [over the panopticon scheme], more years than the siege of Troy lasted, he [George III] broke the faith of Parliament to me. But for him all the Paupers in the country, as well as all the Prisoners in the country, would have been in my hands.’41 In 1828 and again in 1830 Bentham thought of issuing a new edition of Pauper Management Improved (1798)42 with a new subtitle indicating the ‘acceptance’ given the proposal by ‘Pitt IId and the VETO put upon it by George IIId’, and in the draft preface he reiterated the allegation that ‘but for one man, for the last 20 or [so] years all the paupers in England would have been under the management of the Author of these pages. That one man was George the Third’.43 In this account, the system of political corruption, rooted in the ‘matchless constitution’, produced the King’s malevolence towards farreaching proposals based on utilitarian principles that would have produced demonstrable efficiencies in the treatment of criminals and paupers. Neither the utilitarian philosopher who sought to adapt the techniques and introduce the rigour of natural science into political inquiry, nor the analytic legal philosopher who made it his life’s work to produce a pannomion, is easily reconciled with the conspiracy theorist represented in ‘History of the War’. Simply, there is no evidence of the King’s involvement in the panopticon affair – not in Bentham’s correspondence or his published or unpublished writings, and not in the parliamentary papers or the royal archives.44 However, true or not, what the panopticon experience illustrated for Bentham was the sinister influence exercised at the highest levels of government to oppose schemes for social improvement. The phrase ‘sinister interest’ first appeared in Bentham’s writings on pauper management in 1797,45 and came into regular use in 1804 in the context of his work on judicial evidence and procedure. In these writings Bentham accused

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‘Judge & Co.’ of deliberately maintaining a judicial system based on the pursuit of sinister interests. The relationship between ‘power’ and ‘interest’ determined this outcome, that is the ‘will’ on behalf of the legal profession ‘to produce as bad a system as the people, with the legislature at their head, could in their primeval, and as yet but little ameliorated, state of relative ignorance and helplessness, be brought, by the utmost stretch of artifice, to endure’.46 In Bentham’s account, the irresponsible use of the power entrusted to the legal profession, unchecked by the legislature, would inevitably be employed to pursue its own interests rather than the public interest. This understanding of the workings of ‘sinister interest’ has its roots in Bentham’s psychological theory, according to which all individuals are capable of pursuing their own interest, in ways that are contrary to the public interest, but that the desire to do so is lessened by the absence of a corresponding expectation of success. This suggests that ‘the existence, not only of gratification, but even of desire itself, may depend upon a union with power’.47 Legislators and others in a position of authority are able to pursue such interests most vigorously because they are able to make use of their privileged position of power.48 The result is that the interests of the many are sacrificed to the interests of the few.49 Bentham’s understanding of this phenomenon was codified in his political lexicon, and became an important element in the language of his political radicalism. However, the innovation in terminology is usually a way of signalling ideas already formed, and is not itself the origin of those ideas.50 Bentham’s awareness of the obscurities, complexities, delays and outrageous costs of English legal practice, and of the inherent reluctance of the legal profession to consider improvements was not a new discovery in 1804. Many years previously, he had already put together a fairly sophisticated account of the role of establishment interests in opposing improvements. Among a large batch of ‘raw materials’ related to legislation from the 1770s there are some 450 sheets headed ‘Obstacles to a perfect system of legislation’.51 Here, Bentham explored the insidious role played by parliamentary privilege, party interests and the prejudice of lawyers, as well as the endemic indolence among legislators, that prevented enlightened reform. He divided ‘obstacles’ into ‘interests’ and ‘prejudices’, but realized that the latter was often the result of the former. In relation to the first, he mentioned the ‘professional’ interests of lawyers, divines, authors and booksellers. Prejudices included the ‘professional’ prejudices of divines, inhibited by their ‘prostration to authority’, lawyers who maintain ‘an extravagant idea of the excellence of the law’ and legislators who exhibit ‘indifference to evil’ which, in the Upper House, is compounded by ‘Aristocraticall’ prejudices.52 Bentham paid particular attention to the psychology of mass complacency when he analysed the professional prejudices of the clergy. Under the heading ‘Obstacles Divine’ he explained that the opposition of the church to new ideas was not always direct and openly avowed, but rested on the doctrines of belief espoused by its clergy, which

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produced a ‘state of prepared imbecility’ in the minds of the people and readied them for ‘the tranquil reception’ of other sorts of ‘nonsense’. 53 The consequence is a docile deference to all established authority – clerical, judicial, political and legislative. In the unpublished manuscripts of 1809–10, Bentham took this analysis further when he examined in detail the agencies used by these elites to exert their influence, including educational institutions and the press, an analysis in the words of Dinwiddy that ‘foreshadowed the Marxist notion of cultural hegemony’. 54 The lawyers and politicians, in particular, were united in one ‘confederated sinister interest’. 55 MPs might not benefit directly from the abuses that served the interests of the lawyers, but they traditionally deferred to the lawyers in their ranks whenever law reform was moved in Parliament. As Bentham saw it, protecting abuses in the one domain ultimately reinforced the means by which abuses in the other domain are sustained, hence the unholy alliance of sinister interests. The politicians acted to preserve the abuses of the lawyers both ‘on account of the mischief done in the way of precedent to their interest in any instance in which abuse in any shape receives correction, and in consideration of the assistance they may expect to secure in return, for the eventual protection of abuse in that special shape in which they possess their special interest’.56 In this way the alliance of sinister interests between the lawyers and politicians is constructed and maintained, and received further support from the nobility and clergy, whose serried ranks also had a vested interest in maintaining the existing legal and political arrangements for precisely the same reason – the mutual support to be derived in return. In Plan of Parliamentary Reform, Bentham published his first detailed examination of the relationship between monarchy, aristocracy and the defects of the constitution, and mapped out the institutional reforms that would establish a ‘democratic ascendancy’ in Britain. The baseline claim is that the system of corruption is personified in the monarch and this stands opposed to ‘the universal, the democratical interest . . . that all-comprehensive interest’.57 All lines of corruption led to the monarch: ‘here we have one partial, one sinister interest, the monarchical – the interest of the ruling one – with which the universal, the democratical interest has to antagonize, and to which that all-comprehensive interest has all along been – and unless the only possible remedy – even parliamentary reform, and that a radical one, should be applied – is destined to be for ever made a sacrifice’.58 Monetary sacrifices by the people are one dimension of this situation. The King and aristocracy – ‘Corrupter–General & Co.’ – were partnered in the business of ‘draining the contents of all pockets into its own’.59 Aware that to bleed the subject many of their meagre resources all at once would inevitably lead to resistance, a ‘set of drains’ has been constructed to facilitate the gradual flow of money from ‘the pockets of the blinded, deluded, unsuspicious, uninquisitive, and ever too patient people’.60 The ostensible reason for the financial flow from the many

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to the few is to support the wars in which Britain engaged, but without grasping that such wars were invariably waged to defend the King’s Hanoverian protectorate, for the acquisition of colonies, to dispute other nations’ claims to various tracts of sea and thereby to fund the ‘splendour’ and ‘dignity’ of the monarch.61 But, the monarch could not effect this alone. The approval of Parliament would not be given without ‘the concurrence of the richest men in the country, . . . peers, great landholding, and as yet uncoroneted commoners, styled country gentlemen’, who together constitute ‘another partial, separate, and sinister interest – the aristocratical interest . . . : – another overbearing, and essentially and immutably hostile interest, – against which, and under which, the universal interest has to struggle, and as far as possible defend itself’.62 The solution is to replace the present corrupt system of government with representative democracy, but at this point Bentham resisted calling for outright abolition of the monarchy or the House of Lords, though he lauded the ‘positive experience’ of democracy without a monarch and aristocracy in the United States (a ‘total democracy’).63 It would be sufficient, he thought, to deprive the monarch and his minions in government of the extraordinary benefits they enjoy as a by-product of their domination of political institutions. They should be left with their land, titles and even their control over the executive arm of government, but political power, and particularly the ‘power of the purse’, was to shift decidedly to the people’s ‘real representatives’ in the House of Commons.64 What is evident in the political writings of 1809–21, however, is that the analysis of the mutually reinforcing character of sinister interests pointed him in the direction of breaking this down by reducing the power of the monarch and aristocracy to an inconsequential level. Coupled with his scorn for monarchical constitutions in general, and reinforced by his contempt for George III in particular, this brought him to the final stage in his political development, when he argued that even a ‘limited’ or constitutional monarchy is a constant danger to the functioning of democratic institutions and should be done away with altogether.

2. Critique of Monarchy There are several key aspects to Bentham’s critique of monarchy in the later constitutional writings: (1) the unavoidable disjunction between the interests of the monarch and the interests of the people; (2) the corruptive effects of the monarch’s influence on democratic institutions; and (3) the psychological sources of the continuing popular support for monarchy. (1) The disjunction of interests. Bentham formulated the ‘interest-junctionprescribing principle’ as a subsidiary principle in his theory of government, designed to produce a government that acted in the public interest. This principle is entirely ignored in monarchical government, where the monarch

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perceives a duty only to himself, and his interests are diametrically opposed to the interests of the people.65 Whatever from time to time may be common between the two interests, the disposition of a monarch is ‘at all times and in all places to produce the greatest infelicity of the greatest number’.66 This is because the monarch’s ‘right and proper interest’ – his share in the universal interest – is ‘overpowered by his sinister interest’.67 Bentham explained the problem by reference to the four subordinate ends proposed in his theory of civil law – subsistence, security, abundance and equality: It is the interest of the Monarch that by all the other members of the community, means of subsistence and the matter of abundance should be enjoyed in so far as the quantity of his money and of his power are increased thereby, or at any rate not lessened. But it is his interest that their share in the aggregate of the matter of abundance be lessened at all times in whatsoever degree is necessary to give to his share any the smallest degree of increase.68 What this means in effect is that the monarch can be expected to support the goal of security only in so far as it is an aid to subsistence and abundance from which he profits. However, the commitment is tenuous. Under certain circumstances the monarch can be expected to provide security against foreign threats – but not always. If there is profit to be made from war, the end of security will not factor into the monarch’s deliberations: Security against external evil-doers, i.e. against foreign enemies, his personal interest prompts him to maximize, so far as no expectation of profit presents itself from the restriction or diminution or destruction of it. But that which he is continually upon the watch to get is – an augmentation of the mass of the external instruments of felicity in his hands at the expense of the other communities: and by means of war, that is murder upon the largest scale, this he never can get but by the diminution and to so much of the destruction of the security of his subjects . . . 69 A further detraction from security, this time the security of property, is caused by the excessive demands placed upon the people to financially support the royal household. Nine times during his reign George III, with the collusion of Parliament, forced the people to pay his debts.70 It was not any misfortune that befell the King that drove him to debt, but rather his ‘own profusion’, and this at a time when he ‘made immense profit by his wars’ through the Droits of Admiralty which transferred all captured property, fines, ransoms and discoveries at sea to the Crown. Compounding the situation is the fact that the King and his family are exempt from the payment of income tax, a stock complaint of republicans down to the present day.71 To protect against the abuse of power

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by the monarch and his functionaries securities are required, but ‘the very idea of it is intolerable – as if in his hands power were capable of being abused! as if wrong could be done by him by whom no wrong can be done – by him, by whom that which if done by another would be wrong is, by the mere circumstance of its being done by him . . . , converted into right’.72 Equality stands upon the same footing in the eyes of the monarch. It is prized in a republic as ‘an instrument of felicity, an instrument for producing the greatest quantity of internal felicity’, and also as ‘an instrument of security’ for the people in the form of legal protections ‘against invasion’ by ‘public functionaries’. But a monarch cannot allow this to be an end of civil law, since it represents a limitation on his power. Indeed, of all the instruments of felicity, including the protection of the law, ‘not one is there in which he can endure the idea of seeing any other member of the community possessing an equal share’.73 Deficient in moral and intellectual aptitude, the inaptitude of the monarch and the ‘sub-monarchs’ is steadfastly opposed to anything that does not serve their interests.74 Adopting the rabid language of the republicans he had previously condemned in his criticisms of the French revolutionaries, Bentham charged that ‘Every Monarch is a Slave-holder upon the largest scale, and in that relation, each correlative is corrupted by the relation he bears to the other. Under a Monarchy, the population is composed of the insulters and the insulted; of the corrupters and the corrupted; of the deluders and the deluded; of bullies and cowards; of hypocrites and dupes’.75 (2) The corruptive effects of monarchical influence. The tendency of ‘limited’ monarchy is always towards absolutism, monarchy of the ‘pure’ kind. In Britain the monarch’s influence is insidious, penetrating the institutions of state, and the legislature in particular, to bend it to his will. This influence is greatly facilitated by the complicity of the aristocracy, through its control over candidates for Parliament in the ‘pocket’ and ‘rotten’ boroughs, and through its control of elected representatives in the House of Commons. By the distribution of favours, honours, sinecures, pensions and bribes, the aristocracy is ‘bound by chains of corrupt dependence’ on the monarch’,76 but it is also true that the monarch cannot exploit the people without the support of the aristocracy and a nucleus among the representatives of the people. ‘The ruling one’, Bentham explained, ‘cannot keep his subjects under a system of regulated plunderage, without letting in the sub-ruling or co-ruling few for a proportion of the plunder: they cannot get that same share, but either through his hands or with his concurrence’.77 The process of influence may not always work in such an obvious fashion, and the gratitude of the King may not be perceived as a bribe for support, but this does not lessen its corrupting effect.78 Even when the throne is occupied by one of the many unfit, incapable, deranged or malevolent monarchs, such as were to be found in abundance in European history, the monarchy survived and corruption continued. This highlighted another feature of Bentham’s analysis: the distinction he made between

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monarchs and monarchical rule. Monarchy is a system of rule engaging many hands besides those of the monarch. In fact, the monarch could well be indisposed, as was the case during George III’s periodic bouts of madness, and yet the system of monarchy continued to work unhindered.79 The King’s ministers, generals, bishops and judges did not require that the King himself be capable, much less active, in order for their status, pay and honours to continue, so deeply were the myths of the importance of monarchy and the accompanying prejudices entrenched in the minds of the King’s subjects.80 Just as the aristocracy shares in the spoils of political domination with the monarch, so the representatives of the people in a mixed government attempt to increase their own felicity at the expense of the people in collusion with the monarchy and the aristocracy. For instance, the monarch can never obtain funds without the approval of the House of Commons, and MPs cannot obtain the rewards of office without the monarch. The monarch has at his disposal ‘all the masses of money and power, with or without those of factitious dignity, which are attached to the several public offices and public functions by . . . which the powers of government are exercised’. In order to satisfy his desires, the monarch is always ready to bestow rewards on selected representatives of the people, sufficient to fulfill his objectives.81 In return representatives ‘contribute to this end by vote, speech, and influence’.82 This is why Bentham believed that reformers who argue for the democratization of political institutions without removing the monarchy and aristocracy (his own earlier position) are deluding themselves: By the supposition, the office of the King will remain: the power of the King will remain untouched: the power of the Lords, their veto, will remain untouched. But from the office of King a quantity of the matter of wealth, all of it operating upon the Representatives of the people in the character of corruptive influence, is inseparable: in a large proportion it will suffice to prevent the abolition of the mass of depredation and oppression at present established: and whatsoever it is not able to prevent the immediate abolition of, it will suffice to bring back in a longer or shorter course of time.83 On these terms, even the most radical political reform could not succeed in eliminating corruption and misrule, if it left the institution of monarchy in place.84 (3) Popular support for monarchy. Why, if the monarch’s interest is ‘decidedly opposite to that of the rest of the community’, do the people fail to realize their interests would best be served by eliminating the institution?85 One of Bentham’s main complaints about monarchy is the myth of infallibility in which it is shrouded. The adage ‘the King can do no wrong’ was a long- standing claim of believers in the divinity of the monarch, but this implies that the monarch’s happiness is the guide to what is right and wrong, not the happiness of

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the people: ‘By this phrase it is that his exemption from all legal responsibility, the compleat licence for the operating of evil in every imaginable shape, is expressed.’86 Contrary to limitations placed on monarchical authority by Parliament in the revolutionary settlement 1689–1701, it appeared to Bentham that in practice there were no effective legal constraints on the monarch.87 The King may claim to act in the interests of the people, but the vagaries of the law did not permit anyone to judge whether this is in fact so.88 By the force of his imagination alone, the monarch ‘creates a sort of God or Goddess upon Earth, a sort of Divinity which he calls common law. Of this Goddess the principal and unavoidable occupation is in finding pretences for giving fulfillment to the Monarch’s sinister will as evidenced by his sinister interest: to lodge in the hands of the Monarch the external instruments of felicity in the largest quantity, to exercise for that purpose the arts of depredation and oppression – all this for the benefit of the Monarch’. The lawyer and the judge are the instruments of the monarch’s will in this regard, because their interests are also served by the common law, with all the complexity and delay and attendant legal fees that its maintenance requires. The ready acceptance of the legal fictions of common law silenced complaint and the voices of change, stunting the political development of the people, and further enabling the advancement of sinister interests. The monarch’s immunity to criticism, the myth that he can do no wrong, is reinforced by the paraphernalia of office; the extravagant dress on ceremonial occasions and the glitter of the crown and throne, purposely designed to impress upon the people the excellence of the incumbent. Wherever the people ‘see the external instruments of felicity heaped upon one object, there they fancy they see excellence: excellence, moral or intellectual, or both together’.89 Evidently, the people are partly to blame for the situation in which their happiness is sacrificed to the benefit of the monarch, nobles and ministers. Plumbing the depths of the psychological sources of the perseverance of monarchy in ‘Supreme Operative’, Bentham explained that it is the ‘ignorance’ of the people ‘in respect of every thing by which, whether in a beneficial way or a pernicious way’ their interests are affected which gives rise to the misconceptions they hold about the virtue of the King.90 For instance, the people’s acceptance of the religious-induced belief that obsequiousness to the King could in some way affect their expectations of happiness or misery in the life to come, exemplified how the intellectual weakness of the people shored up support for the sinister interest of the monarch.91 Furthermore, the instilling of ‘interest-begotten prejudice’ helps to explain why the people acquiesce in a situation that is so obviously contrary to their own good. ‘Notorious are the instances’, Bentham writes, ‘in which, by thousands and tens of thousands, by prejudice in its various modes, men have been led to sacrifice each of them his own unquestionable interest while contributing to the sacrifice of the universal interest at the altar of monarchical and aristocratical despotism’.92 This

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is most evident in wars instigated by rulers purely for their own gain, when the people foolishly sacrificed their interests without complaint and without resistance in the name of misguided patriotism.93 Against this background it is evident that the task of disabusing people of their prejudice in favour of monarchy would be extremely difficult. However, it was equally clear to Bentham that a model to follow already existed in the United States, where the people enjoy more happiness than in ‘all Monarch-ridden states’.94 Only in the United States is the greatest happiness of the greatest number the objective of government; under all other governments the people are ‘under the dominion of a particular and sinister interest’.95

3. Representative Democracy Consistent with his first ruminations on the purpose of legislation and a complete body of laws, Bentham declared near the beginning of the Constitutional Code: ‘Of this constitution, the all-comprehensive object, or end in view, is, from first to last, the greatest happiness of the greatest number; namely, of the individuals, of whom, the political community, or state, of which it is the constitution, is composed’.96 The administrative, electoral and legislative details of this project occupied much of the last decade of his life. In many respects it was to be the crowning achievement of his legal and political philosophy, as befits his view that of all codes of law the constitutional is the fi rst in import ance. In the Constitutional Code Bentham again stressed that representative democracy with the monarchy still in place would not be sufficient to stamp out corruption and prevent misrule. However, as important as abolition of the monarchy is in defining Bentham’s republican politics, a complete view must also include the salient elements of his theory of representative democracy, including (1) ‘securities against misrule’, (2) theory of sovereignty and (3) the democratic function of the ‘Public Opinion Tribunal’. (1) Securities against misrule. In the later constitutional writings, Bentham’s model of the liberal democratic state encompassed the administrative arm of government based on the principles of accountability, efficiency and economy. These principles are the handmaids of utility in the design of the appropriate institutions and regulations to guide and check the actions of public officials in the making of law and policy and their implementation. Bentham’s strategy is based on a set of related approaches. The first involved the application of the ‘interest-junction-prescribing principle’, whereby the duty to pursue the universal interest is synchronized with the interests of elected and appointed public officials. Towards this end, rulers are to be made dependent on the subject-many by expanding the suffrage and secret voting. Each man’s ‘ultimate desire’ is to be secure against ‘depradation and oppression’, and in order to achieve this end ‘his intermediate desire is . . . to see located in the situation

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of his Representative, a man who, appropriate desire and power in all shapes included, appears to him likely to contribute in a degree more than any other man would to his possession of that same security: such is [his] desire, and such accordingly is his act: – the act by which he gives his vote’. He may well prefer to see his own interests advanced at the expense of other men, but the fact is he cannot count on any considerable number of his fellow voters to support him in this or find among the candidates for election one who would be sympathetic to his personal desires. Having no real expectation that his desire to profit at the expense of his fellow citizens could be advanced by his vote, he employs it in giving support to his share in the universal interest, and by and large other voters can be counted on to do likewise: ‘he gives his vote to that Candidate whom by all means taken together he expects to find willing and able to contribute in a greater degree than any other to the accomplishment of it’.97 And, what of the personal interests of the elected and appointed officials? Those who hold the ‘operative power’ in government, administration and judiciary are motivated by personal interest in a democracy as in other forms of government, but their dependence on a genuinely representative legislature would mean that only by acting in the public interest could they promote their personal interest. In turn, the members of the legislature, representing the ‘constitutive power’ of the people, could be counted on to promote the greatest happiness and hold other functionaries to account, since elected legislators only serve at the will of their constituents and risk not being re-elected if they fail to do their duty.98 Voting is only one of several elements in what Bentham now generalized as ‘securities against misrule’. Given the extensive powers he envisaged the thirteen ministries of the reformed government possessing – far more power in the areas of public health, education and relief of the poor and indigent than existed at the time – further safeguards would be required. Refining and expanding the suggestions contained in Plan of Parliamentary Reform, Bentham stipulated that public officials must possess the required ‘moral aptitude’ (the disposition to promote the universal interest, impossible to find among ‘the ruling functionaries’ in either a ‘pure’ or a ‘mixed’ monarchy), ‘intellectual aptitude’ (divided into scientific aptitude or knowledge, and judicial aptitude or judgement), and ‘active aptitude’ (the conscientious performance of assigned responsibilities), necessary to function consistently in accordance with the greatest happiness principle.99 The moral, intellectual and active aptitude of public officials could only be assured by establishing the correct institutional arrangements. Intellectual and active aptitude was to be tested through an examination process, though this would come to naught if the appointed official did not possess the appropriate moral aptitude, ‘the disposition to contribute to the utmost to the universal interest, in spite and to the sacrifice of all particular and opposing interests’.100

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Other devices designed to encourage and test the required aptitude of public officials include: (1) the precise definition of responsibilities attached to each office, against which the actions of officials could be judged by either a superordinate official or the public; (2) the principle of subordination, according to which every official was subordinate to another who could punish him for inefficiency in the performance of his tasks; (3) complete exposure to legal prosecution of all officials for wrong-doing; (4) the elimination of the practice of handing out unwarranted titles of honour to party supporters and other favourites; (5) complete publicity of government business and the elimination of secrecy; and (6) freedom of the press, speech and association.101 In addition, in Official Aptitude Maximized; Expense Minimized, Bentham laid out a dubious proposal designed to dissuade from public office individuals who were inclined to take advantage of the situation for their own benefit. The goal is to maximize aptitude in public service at the least cost; the means to achieve this end is the ‘office competition process’. Public offices, with nominal salaries or no salaries at all, are to be auctioned off to suitably qualified candidates. Applying the economic belief in the general beneficial effects of competition, Bentham surmised that the lack of financial compensation would not be an issue for those who possessed the required ‘moral aptitude’102 – they would be happy to pay for the honour and reputation that accompanied such positions – though he hardly considered that this method of making appointments would unfairly advantage candidates of independent means. (2) Theory of sovereignty. Contrary to his general opposition to Locke’s theory of government, Bentham adopted the Lockean position that sovereign power could ‘never be other than fiduciary’.103 As we have seen, this thought led him to the conclusion in his early political writings that it is necessary to create dependence between the governors and the governed to ensure that power is exercised in conformity with this trust. In the later political and constitutional writings his views on the nature of sovereignty took on a distinctly populist form. However, the subtleties of Bentham’s theory of sovereignty point to a more complex explanation. At first blush, the popular dimensions of the Constitutional Code appear to run contrary to the legal positivism commonly associated with utilitarianism, which implies a theory of sovereignty that requires that power is located in the hands of the legislator, however constituted. But matters are not nearly so straightforward. Rosen has argued that as early as the publication of A Fragment, Bentham turned away from a theory of sovereignty based on simple command and obedience, in favour of a more flexible view.104 Even before he became a committed democrat, he rejected the Hobbesian view of sovereignty, in which the sovereign is necessarily a single, unified supreme power,105 in favour of ‘the notions of the legal limitation and division of sovereign power’.106 Rosen concluded that an exploration of the distinctions Bentham developed between, on the one hand, constitutive power and operative power and between, on the other hand, popular sovereignty

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and an omnicompetent legislature reveal considerable differences in doctrine from Hobbes.107 In this regard there are a number of considerations to note. First, Bentham’s use of the term ‘sovereignty’ depended on the context of the question addressed. He could speak of the power to legislate or legal sovereignty at one time, while at another (particularly in the later constitutional writings) employ the term in relation to the power of the people to limit or control government and public officials – political or popular sovereignty. In the first sense of the term it is seemingly impossible for there to be a law that deliberately functions contrary to the will of the legislature. All law emanates from the will of the sovereign, and the will of the sovereign ‘cannot be illegal’.108 Thus, the idea of a legally limited sovereign is often thought to conflict with the idea of the sovereignty of the legislature. One response to this is to demonstrate how the decisions of a sovereign legislature are not binding on a successor legislature. For example, assume the instance in which the sovereign is persuaded to enact legislative limitations to its own authority, such as by instituting a bill of rights or devolving power to lower levels of government; these legislated limitations would only be recommendations to a successor political authority, which that authority could choose to continue or to remove.109 It may be wise and expected that the legislature take into account the actions of its predecessor in determining the limits of its competence, but nonetheless the limits would remain only at the discretion of the new legislature. A second response is to draw attention to the fact that all political authority, no matter what form it takes, is necessarily limited by its power to compel obedience from the people. This was an important feature of Bentham’s account in both A Fragment and Of the Limits of the Penal Branch of Jurisprudence. As he put it in A Fragment, ‘By a sovereign I mean any person or assemblage of persons to whose will a whole political community are (no matter on what account) supposed to be in a disposition to pay obedience.’110 In the Limits he explained that this implies two volitions, both of which are necessary components of a complete theory of sovereignty: on the one hand, the enactments of a legislature and, on the other, the will of the people to obey those enactments. The ‘constituent cause’ of the power of the sovereign ‘is the submission and obedience of the people’.111 If the latter is absent, then the authority of the former is eroded. The will of the people to either obey or disobey effectively amounts to a permanent constitutional check on the authority of the legislative sovereign. This is why Bentham could insist on legal sovereignty, but still declare that the power of the legislature ‘though it be supreme, can never of itself be absolute and unlimited. It can never so much as amount to the entire power of imperation’.112 Though there are empirical elements to this view that necessarily encompasses the sovereignty in which lesser officials share, it is this feature of Bentham’s legal theory that leads, in Oren Ben-Dor’s words, to a ‘split concept’ of sovereignty, one that is shared between the legislature and the people. It is the interaction between the two that comprises a complete

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view of sovereignty in Bentham’s constitutional theory – a dynamic view of sovereignty subject to changing times and the reflection of this in the public’s attitude to law, to what is admissible and inadmissible.113 What may be acceptable or desirable at one time might not be at another, when social and economic advances alter public opinion, or when new manifestations of an issue determine a different public response. Bentham’s theory of sovereignty, therefore, necessarily contains a participatory component, and in this regard constitutional law had to accommodate not only the delineation of political institutions, but also an account of the relationship between the government and the people. As Ben-Dor has shown, the modes of communication between the two were a vital element in the proper functioning of public authority and, therefore, to the enhancement of the greatest happiness. In A Fragment the modes of communication were not expressed in institutionalized form, but the basic idea of collective action to resist a ruler who acted contrary to the public interest is present. Accordingly, this suggests the need for public communication as a way of deciding the appropriate course of collective action.114 Such decisions should be based upon the principle of utility, but what this was at any one time would require reflection, interpretation and judgement by the people. Ideally, the communicative freedoms of the ‘liberty of the press’ and the ‘liberty of public association’ would greatly facilitate this process of deliberation.115 Of course, the existence of such liberties and the public discourse they serve suggests a ‘free’ (we might say a ‘liberal democratic’) government in which peaceful outcomes to public disputes are the norm, rather than a despotic government threatened by revolution. But, in essence, no matter how this popular judgement is arrived at, under all forms of government it performs the function of a ‘constitutional’ limit to political authority. (3) Public Opinion Tribunal. Bentham’s view of the dynamic interaction between legal sovereignty and popular sovereignty is crystallized in his construction of the ‘Public Opinion Tribunal’ (POT). The POT is a ‘fictitious tribunal’ which, contrary to the usual view of Bentham as a legal positivist, he styled ‘a system of law, emanating from the body of the people. . . . To the pernicious exercise of the power of government it is the only check; to the beneficial, an indispensable supplement. Able rulers lead it; prudent rulers use or follow it; foolish rulers disregard it’. The POT functioned in a quasijudicial manner, scrutinizing the actions of elected representatives and public officials, prosecuting charges where they are found remiss in their responsibilities, censoring misrule and imposing penalties when applicable. Penalties issued by the POT generally took the form of the ‘moral sanction’ – the broadcasting of the shame and disgrace of conduct, and the imputation of the reputation of the person responsible.116 As such, Bentham considered the POT the leading security against the misuse and abuse of power.117 Operating on a continuing basis, and therefore not constrained as a check in the same limited way as periodic elections, the POT resembled a large public court of

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opinion, argument and debate. Bentham’s faith in the efficacy of public opinion is based on his view that in advanced societies ‘its dictates coincide, on most points, with those of the greatest happiness principle’.118 Despite language that speaks to the contrary in his examination of the people’s deference to monarchy, he assumed that most of the time they know what is in their best interests, and public opinion is ‘the only force . . . [by] which the force of government when operating in a sinister direction can experience any the least impediment to its course’.119 Vital to the functioning of the POT is the dissemination of information. In the first instance this required the establishment of a public archive of government actions and activities, in the form of records of law, policy, legislative debate and statistics, which government would be constitutionally required to make available to the public – a freedom of information provision in the code to ensure transparency. Second it required an unshackled press to ensure widespread publicity and the freedom to criticize unimpeded by censorship or gagging orders. Here Bentham drew upon an earlier essay On the Liberty of the Press, and Public Discussion (1821) pointing out the dangers of laws designed to limit these liberties.120 The liberty of the press is an indispensable check on arbitrary government, and therefore ‘necessary to the maintenance of good government’.121 Publicity is vital in this process, since ‘the greater the number of the members of the whole community to whom the existence of an act of oppression has been made known, the greater is the number of those by whom . . . not only may obedience be withholden, but resistance opposed’.122 In advocating the liberty of the press, the liberty of assembly and the virtually unrestricted freedom to express opinions in public, Bentham again offered the absence of laws on these matters in the United States as a model to follow.123 However, he little considered that the effectiveness of the POT as a check on misrule could be undermined by government control over access to information – a matter of some moment in liberal democracies today. Moreover, the potential distortions of a press dominated by the views of one class seem not to have occurred to him. He believed that subsistence, abundance and to some extent economic equalization, depended on security in the economic realm, while security against misrule in the political realm meant ridding the system of influences that act contrary to the public interest. But, the security afforded commercial interests risked the spectre of a new source of sinister influence, one which could be just as threatening to the public interest as the sinister influence of a monarch. A truly ‘free’ press is vulnerable to such subversion, and this is one of its risks, but it is a risk that pales in significance when measured against the prospect of a press solely dependent on government for information. Ideally, the public would be adequately informed, and the POT would be constituted of those among the public knowledgeable and concerned about the issues before it. Its judgements could change as new evidence came to light or as new arguments were enunciated, and it could be as fragmented or as unified in its view according to the variety of individual opinions expressed. In

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sum, the POT amounted to a public inspectorate of government and its administrative organs (reminiscent of the role of the public in checking the actions of the panopticon officiate), and its pronouncements would necessarily have to be taken into account by political representatives and government officials. Nor did Bentham perceive this inspectorate solely in institutional terms. There is some evidence in the constitutional writings to suggest he believed the political participation of numerous members of the community would enhance their moral and intellectual character. In ‘Supreme Operative’ he wrote: ‘The advantage which the bulk of the population may be expected to reap in the article of moral character and conduct from such diffusion of political knowledge and the habit of attention to political subjects is neither less important nor less manifest not to say demonstrated by experience than in the article of intellectual vigour.’124 This observation did not lead, as it might have done, to an account of civil society. As David Lieberman points out, Bentham barely mentioned such institutions as the family, church and private associations in the Constitutional Code, and when he did mention them it was to express a concern that they ought not to be immune from public scrutiny.125 At the same time, we ought not to under value the participatory inclusiveness of the democratic society he envisaged, and its beneficial consequences. Contemporary participatory theorists argue that it is not only beneficial to the community by producing better outcomes, it is also of significant benefit in enhancing the liberty of the individual, construed in terms of the individual’s control over his own life (‘moral liberty’, to use Rousseau’s phrase), and political efficacy, meaning that effectiveness in local arenas of deliberation lead to greater confidence at higher levels.126 Bentham’s terminology is different, but suggests similar benefits. Non-domination, to use the republican parlance, is achieved by ensuring that the law protects the basic interests of individuals free from the interference of others, and this includes the right to engage on equal terms in public deliberation and to hold office holders to account. The accent on accountability also points the way forward to what has recently been christened ‘monitory’ democracy. Democracies arranged in this way embrace multiple and overlapping means available to individuals to scrutinize, investigate, complain about and resist political representatives and public officials, utilizing a variety of official and unofficial institutions, including regional and other public assemblies, protest meetings, public watchdogs and other agencies and most importantly the unfettered dissemination of information through the media (especially, today, the internet).127 Public deliberation is a pivotal element of this theory of democracy, popularized in recent times as ‘deliberative democracy’. The theory of deliberative democracy posits the deliberative model as an ‘ideal type’, that is a model that is aspired to, but which is rarely realized in practice. Drawing upon the pioneering work of Jürgen Habermas,128 the model can be presented in the form of six characteristics:129 (1) unconstrained

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participation by all citizens equally in a publicly open political process; (2) all participants express their values, views and preferences in a truthful way, without attempting to deceive and mislead others; (3) rational discourse between the participants requires that assertions must be presented in a logically coherent way; (4) the principal objective of the participants must be the common good, and the merit of arguments is assessed against this objective (self-interest is not disallowed as the basis for argument, but it must be shown that the participant’s self-interest is compatible with the public interest); (5) participants must listen carefully to the arguments presented and treat each contributor to the discussion with respect; and (6) there must be an openness to contrary views and a willingness to yield to the better argument. Bentham’s theory of representative democracy bears more than a passing resemblance to the deliberative model. It is inclusive and representative (not merely in the formal institutional sense). It requires procedural and informational equality. It implicitly recognizes the need for public reasoning, for reasons that are acceptable to all as free and equal citizens. And, it requires that priority be given to the universal interest. Further, Bentham shares with the deliberative democrat the ambition to create in the public sphere opportunities for all citizens to engage in inclusive, equitable and transparent institutions and procedures, with the aim of producing policies acceptable to the people, which uphold their fundamental interests and enhance the greatest happiness. Also, there is in Bentham the suggestion, referred to above, of empowerment benefits derived from public deliberation, both in terms of enhanced agency, and the development of political literacy and efficacy – objectives close to the deliberative heart. On the other hand, Bentham’s theory of representative democracy is subject to the same objections as the deliberative model. It is easy to see that making the ideal a reality is fraught with obstacles. It places a high level of demand on the political process. Unconstrained participation in an open process is difficult to achieve in the face of the two traditional influences in politics – money and administrative power – and truth in political debate is a rarity it seems these days as, perhaps, it ever was. Many deliberative democratic theorists, like Bentham, do not see that a degree of material equality is necessary to fulfil certain of the crucial elements of the theory in practice.130 Without this, participants may have a difficult time communicating freely, and may be subject to the exercise of undue influence. The requirements of rational discourse will limit the number of participants capable of conducting discussion, producing a tension with the characteristic that all citizens be equal participants in the process of deliberation. In response to this objection deliberative theorists argue that decision-making venues should be decentralized to the point where all individuals can be effective in contributing to debates on issues that directly affect them. Even so, this will not prevent particular interests from being voiced, disguised in the costume of the public good. And, even when we

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are prepared to listen respectfully to others, due to our different social and cultural backgrounds we will struggle at times to understand what it is that is truly being said by other participants in the discussion. Finally, the idea that we should yield to the better argument has a habit of being set aside in favour of a negotiated compromise on the basis of horse-trading, although some deliberative theorists argue that the deliberative process rightfully facilitates compromises.131 So there are several important ways in which the ideal is not realized in practice, but nonetheless as an ideal type it retains its attractiveness as a model which it is desirable to approximate whenever possible in practice, and this is also the way to view Bentham’s proposals for public participation in a fully functioning representative democracy.

Conclusion Bentham’s theory of representative government evolved in stages from the 1770s forwards, partly in response to external events at home and abroad, and partly due to refinements in his own ideas. However, from the first he consistently adhered to the basic principles of his utilitarianism, with its theory of motivation defined in terms of pleasure, pain and ‘interests’, and the proposition that the objective of all law and government ought to be the greatest happiness of the people. Bentham’s mature political thinking is best described as that of a republican democrat who justified the several articles of his political creed on strictly utilitarian grounds. This perspective gave shape to the project of determining the appropriate institutions, constitutional laws and regulations for a ‘liberal’ republic, and in nineteenth-century political reasoning it supplanted natural rights theory as the justification for political reform. It could be said that the gradual extension of the suffrage and the limitations imposed on the authority of the monarch and House of Lords during the course of the nineteenth and twentieth centuries demonstrate that ‘radical reform’ has been achieved. But, it is doubtful Bentham would have relished the prospect of more than one hundred and fi fty years of debate and incremental improvements to achieve that goal. Moreover, despite the considerable progress made during that time, he would be deeply disappointed to find the baneful influence of the monarchy and aristocracy still not entirely eradicated from Britain’s political institutions. He would be appalled to find Elizabeth Windsor ensconced on the throne and Britain one of the last of the grand old imperial monarchies in a world increasingly populated by republics. And, he would be more than a little dismayed by the prevailing pessimism among republicans that things might be altered in the foreseeable future,132 perhaps reminding us that we have yet to arrive at the year 2828, when he predicted the all-comprehensive code would be in force in all nations around the globe, even in monarchy-besotted Britain.

Chapter 7

King of the Radicals

Bentham’s awareness of the need for reformers to move from philosophy to political action to achieve reform can be traced to the 1780s, when he gave serious thought to entering Parliament in support of the Shelburne interest. In later life, he came to see his political role as an extra-parliamentary propagandist at the head of a core of philosophic radicals – a philosopher who coupled law reform with the need for democratic institutions, but who also demonstrated an acute sensitivity to the dangers of insurrection. If at times the intransigence of government seemed to threaten to tip the scales in favour of a violent overhaul of the constitution, Bentham held fast to the strategy of persuasion, to win over the people and a sufficient number of their representatives to the objective of constitutional codification and the democratization of institutions without stoking the flames of revolution. Two things seem to be important here. First, the argument for the necessity of democratic reform depended on the exposure of the machinations of the ‘confederated sinister interests’ opposed to the universal interest. Second, only with the establishment of democracy and its attendant structural supports could those forces opposed to the interests of the many be successfully combated. If this conclusion has a circuitous character to it, it is not quite the proverbial ‘chicken or the egg’ dilemma. The programme of exposure was already underway, though there were times when Bentham found it difficult to divorce his thoughts from the possibility that force might be unavoidable. Ultimately, the people, ‘seeing their Representatives constantly unfaithful, would at length open their eyes’ and see that their faith in rulers acting for the public good ‘is the most palpable of all imaginable absurdities’. At which point, ‘instead of kicking against the pricks they will rise with one accord and to a form of government which can not by possibility have for its object the greatest happiness of the greatest number, the only legitimate end of government, substitute one that has’.1 To open the people’s eyes to their predicament is a necessary preliminary to the democratic reforms advocated by Bentham and the philosophic radicals, as he explained in a tract to ‘his fellow-citizens in France’ in 1830: If democracy . . . is really a better form of government than any which is not democracy . . . what reason is there, why I should not hold the difference up

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to view? If no use can be found for a house of peers, why should I not say so? If no use can be found for any second chamber, or any sovereign governing body, other than a set of men chosen and commissioned by the people at large – why should I not say so? If no use can be found for any such functionary as a . . . king . . . why should I not say so? If king and second chamber are – both of them – worse than useless – why should I not say so? . . . [Even if the present King, William IV] is really what his father [George III] was said to be – the best of kings . . . how can my notion of kingship, in general, be a whit altered? Bentham acknowledged the risks attendant on revolt and pointed out that it is impossible to accurately assess ‘the quantity of suffering which it would take to pass from monarchy to democracy’, a calculation that would depend on the circumstances of particular states.2 Despite the obstacles, the preferred path is reform through constitutional means, and to effect this meant converting the people. In Britain, the unpretentious and decent William IV might be indifferent to pomp and ceremony, living modestly in his private London residence, a supporter of Lord Grey’s reform bill,3 but this is beside the point. The task for Bentham and the philosophic radicals is to relentlessly explain the nature of the relationship between the existing political arrangements, the disproportionate benefits that accrue to the ruling few and what institutional reforms are needed to serve the interests of the subject many. There were times when he convinced himself that ‘a considerable and increasing number of the people’ are of the view that ‘the system of government in England is so bad – so adverse to the greatest happiness of the greatest number’, anyone committed to the public good must see that a change in the form of government is a necessary first step.4 Such optimism is not common in Bentham’s political rhetoric (though his early correspondence with Daniel O’Connell is marked by the most exorbitant expressions of hope for the future), and strikes a contrary refrain to the thought that violence might be unavoidable. This final chapter is devoted to Bentham’s role in the reform movement in relation to other prominent reformers, in particular his alliance with O’Connell. Alongside political reform, law reform continued to head the agenda, which he pursued both through direct contact with the government in the shape of Robert Peel, Home Secretary under Liverpool and Wellington, and via alliances he struck with reformers in Parliament. The establishment of the Law Reform Association in December 1829 was intended to broaden the base of the reformers, pulling into the reform effort moderate Whigs who, though they were reluctant to follow Bentham’s lead in politics, could be counted on to work with the radicals to reform English law and judicial practice. Modelled on O’Connell’s Catholic Association, it was designed by Bentham as a platform from which the reformers could tackle the absurdities of English statute and common law and pursue other utilitarian reforms. To

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this end, in March 1831, he formed the Parliamentary Candidate Society to promote the electoral fortunes of radicals who could be counted on to support the full radical programme in Parliament, and drafted the Parliamentary Candidate’s Proposed Declaration of Principles to which reformist candidates for election would subscribe. 5 In the result, Bentham’s projection of himself as the ‘King of the Radicals’ proved, like the moniker ‘Legislator of the World’, to be a frustrating calling and, as was the case with constitutional reform abroad, it consumed enormous amounts of his time and energy over the last years of his life, with but modest returns.6

1. Relations with the Radicals Bentham’s image of himself as the leader of the radicals tended to obscure the fragmented nature of the movement dominated by men who saw themselves as leaders in their own right.7 In general he had uncomfortable relations with the populist radicals of the day, men like Burdett, Cobbett, Hunt and Cartwright, with each of whom he experienced diffident relations. He was much more inclined to associate with Whig reformers like Mackintosh, Romilly and Brougham, men who understood the law and were unafraid of legislative innovation, even while he chided them at times for their moderate tendencies, and steadfast radical MPs like Joseph Hume whom he could count on through thick and thin.8 As we saw in Chapter 1, seemingly unperturbed by Mackintosh’s attack on the Plan of Parliamentary Reform, Bentham made efforts to dispel the notion that this heralded a rift between himself and his Whig friends.9 If there were moments when the strategy of supporting Whig reformers seemed to indicate a vacillation between the paths of radical reform and moderate reform, in truth it revealed a deliberate element of Bentham’s strategy in these years. Always watchful for opportunities to push reform even of the most modest sort, he never lost sight of the ultimate goal of a representative democratic republic based on a fully codified constitution. Almost to a man, philosophic radicals, like the Mills, Grote, Roebuck, Buller and Fonblanque, justified their support for the 1832 Reform Act in these terms, and looked on it as merely the first step along the path to the implementation of the complete radical programme.10 Such a strategy, however, did not prevent Bentham from criticizing others for trimming on particular measures of reform. Following the publication of Plan of Parliamentary Reform, intended as a clarion call to all reformers to adopt the programme of the philosophic radicals, he became frustrated that certain of his friends among the Whigs were not more supportive of his proposals, and was especially displeased with Romilly’s reluctance to pursue wholeheartedly ‘the cause of the people’.11 It was to prove a testing time. Bentham first met Romilly in the Shelburne circle in 1784, and the two became close friends after Bentham’s return from Russia in 1788.12 Later, in

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addition to Place and the Mills, Romilly was a frequent visitor to Forde Abbey. Bentham admired his passionate commitment to the reform of criminal law and was proud to count among his intimate friends a man who had served as solicitor-general in Grenville’s ministry of ‘all the talents’ 1806–7. He placed a great deal of trust in Romilly’s judgement, and frequently turned to him for counsel when considering the publication of potentially ‘libellous’, ‘seditious’ or ‘blasphemous’ writings. In 1793 Romilly advised Bentham not to publish Truth versus Ashurst because it contained praise of the French, and the work did not appear until 1823.13 In 1802, after reading Bentham’s strictures on the government’s role in the panopticon affair, Romilly warned that to publish was to risk a charge of libel.14 Again, it was Romilly who persuaded him not to publish The Elements of the Art of Packing in 1810 for fear of prosecution by the attorney general, and Bentham agreed to delay publication until a more tranquil day should offer itself – it eventually appeared in 1821.15 Already regretting the publication of the Plan of Parliamentary Reform, and believing Church-of- Englandism could ‘not fail to shock all persons who have any sense of religion’, Romilly was quick to advise that it be suppressed, convinced it would land Bentham in the courts on a charge of blasphemy. Bentham ignored this and also refused to listen to later requests that the printed volume should not be distributed.16 Romilly’s caution was beginning to grate on his old friend, leading him to oppose Romilly’s candidacy in the 1818 election in Westminster, a two-member constituency then represented by Burdett and the Whig Lord Cochrane. Burdett’s reputation as a reformer was well established, though Cobbett and other radicals complained of his patrician ways and questioned whether he could be relied upon to seek the necessary reforms in Parliament.17 Bentham, too, complained that Burdett was not living up to his reputation as a reformer,18 but was persuaded by Place, who had supported Burdett in Westminster since 1807, to make a political pact with the baronet.19 The resolutions the two men signed – essentially the outlines of a draft bill for parliamentary reform – formed the basis of Burdett’s stump speech in the campaign.20 But Bentham went further than this when he allowed his name to be appended to a placard denouncing Romilly as an enemy to reform, perhaps hoping that one of the other radicals campaigning for the seat, Hunt or Cartwright, might be elected. In the event, both Burdett and Romilly were victorious (neither Hunt nor Cartwright managed more than a hundred votes), but Bentham’s actions must have wounded the gracious and kindly Romilly – only forgivable, perhaps, if we allow that his decision to place political principles over friendship could not have been an easy one. Later that year, when Romilly’s wife died from a sudden illness, his grief was too much to bear and in a deep depression he killed himself. Bentham was greatly saddened by the loss.21 Rarely did he dine out in these years, making an exception only for Romilly.22 Now he was gone, and Bentham lost a trustworthy confidante, one of his closest friends,

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and an ardent ally in the cause of criminal law reform. Politically, however, Romilly’s death proved an even greater loss; it precipitated another election in Westminster which deepened the division between the philosophic radicals and Whigs, a division that fed the friction between the two camps over Mill’s essay ‘On Government’. Moreover, the episode signalled a shift in Bentham’s attitude towards strengthening ties with the popular radicals, though he remained weary of their tactics and sceptical about the coherence of their arguments. The alliance with Burdett, so promising at first, soon began to fray at the edges. They differed over the significance of the secret ballot, a key reform for Bentham, but not, at least not at this point, over universal suffrage.23 In Burdett’s House of Commons speech following the election he announced that it was Bentham who had persuaded him of the necessity of universal suffrage, though his arguments had little to do with utilitarian principles. The speech was printed and distributed among the Westminster electors, with Bentham’s name providing the caché Burdett needed to impress his credentials as a radical who would achieve great things for the people.24 Bentham was flattered by the attentions of Burdett, but became incensed with the baronet’s jealousy of Cobbett’s status among the popular radicals and dismayed by his failure to pursue the entire radical agenda. He looked to Burdett to present his ‘Codification Petition’ in the Commons, but after considering it Burdett demurred.25 He showed interest in Bentham’s proposals on judicial procedure and law abuses during the parliamentary debates over the Judges Salaries Bill in the summer of 1825,26 but failed to take Bentham up on the offer to meet to discuss what should be done. Nor could Bentham persuade Burdett a year later to take an interest in the defunct panopticon when he brought forward a bill based on a petition from his Westminster constituents condemning the existing prison and proposing a new ‘House of Correction’ at Tothill Fields, where Bentham had once hoped to build the first panopticon.27 Burdett’s vague promise ‘to promote’ Bentham’s wish again proved false.28 When Burdett made contact again after a near two-year silence, during which time he had lent support to Canning’s short-lived Tory administration in 1827, Bentham chided him as a ‘giddy fellow’ who ‘always had a hankering after bad company’.29 He showed good humour in making allowances for such political meandering, and continued to foster good relations with Burdett right until the end. He recognized the value of Burdett’s status among the senior reformers in Parliament, and thought he would be the best person to head up the Law Reform Association (Burdett was reportedly keen to do this).30 Bentham was also happy to count him among those, including Place, John Mill, Perronet Thompson, Buller, Roebuck, Hume, O’Connell, Chadwick, Bulwer-Lytton and other radicals, who joined the Parliamentary Candidate Society in March 1831.31 If Bentham’s relations with Burdett were largely unproductive, those with Cobbett were far worse. In 1810, Cobbett declined to publish Bentham’s

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‘Parliamentary Reform Catechism’ in his immensely popular Political Register, and Bentham never forgave the slight.32 Thereafter he could not muster a kind word for Cobbett, of whom he once said, ‘a more odious compound of selfishness, malignity, insincerity, and mendacity, never presented itself to my memory or my imagination: and I know not that man for whose sufferings I should have less sympathy than for this man’s: nor do I know any man in whose estimation the intellectual part of his frame holds so low a place as in mine’.33 However, Bentham’s unfavourable opinion of Cobbett was never allowed to impede efforts to unify the reformers, and he beseeched members of the government to intercede when Cobbett was threatened with a prosecution for libel at a time when Grey’s administration needed all the support it could get to push through the reform bill.34 For Major John Cartwright, ‘the worthy father of radical reform’,35 Bentham always showed respect. When Cartwright sent Bentham a copy of his recently published A Bill of Rights and Liberties (1817), intended as a model for a reform bill, he claimed that it was based on Bentham’s principles.36 However, while Bentham was pleased to second the Major’s arguments for the introduction of secrecy in balloting, and to receive thanks for advocating parliamentary reform from the Westminster householders led by Cartwright,37 he rejected the argument that reform is consistent with ‘the eternal law of Nature’ and necessary to ‘completely restore the plain Saxon fabric of our freedom’.38 In response, Bentham drafted his own Radical Reform Bill (1819) to supplant Cartwright’s eccentric proposals for electoral reform, 39 and he consistently declined invitations to involve himself in Cartwright’s frenzied political activities.40 As a public speaker ‘Orator’ Hunt was second only to Burdett in Bentham’s estimation, and Bentham was clearly impressed with his efforts to stem corruption in the City of London, but the ‘envy and jealousy’ he exuded made him little different from Cobbett and fatally undermined his utility to the reform movement.41 Bentham applauded O’Connell’s efforts to work with Hunt, but thought the latter’s vacillations on Catholic emancipation would be a cause of difficulty between them.42 In truth, a rocky road in this relationship had already been determined when Hunt published a letter in the Political Register in the Summer of 1828 describing O’Connell as an ‘apostate to the principles of Radical Reform’, a charge based upon O’Connell’s substitution of the term ‘constitutional’ for ‘radical’ in a speech on parliamentary reform. Bentham was none too happy about the change in terminology either, pointing out that even a Tory like Peel would have no objections to the vagueness of ‘constitutional reform’.43 But nor could the dying Bentham have been pleased to hear that Hunt, elected MP for Preston in 1831, was the only radical to oppose the Reform Act, insisting on ‘universal suffrage or nothing’. Had Bentham lived a few months longer he would have been even more displeased to find Hunt and Cobbett opposing Henry Warburton’s Anatomy Act, a reform long supported by Bentham, but which in the view of Cobbett and Hunt was aimed principally

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at claiming corpses from the ranks of the destitute in poorhouses. Hunt raged against the bill in the Commons, but found himself constantly thwarted by the parliamentary tactics of Warburton and his supporters. In the pages of the Political Register Cobbett vilified the arguments used to support the measure, denouncing the barbarity of condemning the helpless and destitute to be subject to dissection like the very worst kind of criminals.44 In effect, neither Hunt nor Cobbett could be tethered to the reform agenda Bentham promoted and, despite his strenuous efforts, neither viewed him as the leader of a broad-based movement for reform.

2. The Alliance with O’Connell Bentham’s association with O’Connell was of an entirely different cast to those with whom he associated outside the band of philosophic radicals.45 He was utterly convinced of the Irishman’s sincerity in the cause of reform, though they differed over priorities. Catholic emancipation and repeal of the union were at the top of O’Connell’s list, but his principles were liberal, radical and democratic, based on the belief that no one should be discriminated against on the grounds of religion or race and that the people had the right to selfgovernment.46 For O’Connell, this required first and foremost relieving his co-religionists of the penal laws that deprived them of the vote and access to all state and judicial offices, permitting Catholics to offer themselves for election to Parliament, and amending the parliamentary oath to eliminate the reference to the Catholic religion as ‘superstitious’ and ‘idolatrous’. Beyond this, for O’Connell complete emancipation required the restoration of the Irish Parliament. Bentham considered Catholic emancipation a vital plank in the reform agenda, but dealing with the union could wait until other democratic reforms had been achieved. It was a difference between the two reformers pregnant with a discord that drove a wedge between O’Connell and the English radicals. At bottom what disengaged Bentham from radicals of the ilk of Burdett, Cobbett, Hunt and Cartwright was their tendency to base arguments for reform not on utility, but on natural law theory and a sentimental veneration for England’s ancient constitution, all of which smacked of the odious common law so anathema to Bentham. With O’Connell matters were far different, as their extensive correspondence between July 1828 and March 1831 demonstrates. They struck an instant rapport based on a wide range of shared ideals, rarely sullied by extraneous reasoning of a non-utilitarian kind. Like Bentham, O’Connell was a lawyer by training who had attended Lincoln’s Inn. For both men judicial and legal reform constituted a core element of their radicalism. Equally important to them was their commitment to freedom of thought and expression. Consistent with his support for the individual’s right to exercise private judgement in religious matters, from 1807 forward O’Connell

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advocated the separation of church and state, and extended this to include the Catholic church in Ireland.47 This position created personal difficulties for O’Connell with the Vatican, as did his subsequent intervention in the Spanish civil war of 1834–9 on the side of the anti-clerical Liberal government (and its policy of expropriating the property of the Spanish church against the church-backed Carlists).48 Bentham had long before expressed similar sentiments and, initially at least, was untroubled by the complexities of O’Connell’s religious commitments; it accommodated what lay at the heart of religious liberty for Bentham – the principle of voluntarism essential for the public exercise of religion free from political constraints. Only when their friendship began to falter did Bentham come to question the veracity of O’Connell’s commitment to genuine religious liberty. Like Bentham, too, O’Connell consistently advocated the unpopular cause of Jewish emancipation.49 Speaking in the Commons in favour of the Jewish Disabilities Bill 1830, he denounced those who claimed that equality for the Jews would de-Christianize the state.50 However, if he and Bentham were of one mind on the plight of dissenters and both were tireless advocates of abolishing the church rates and religious tests for office, O’Connell could still rage against ‘the filthy slime of Wesleyan malignity’ (a ‘solitary blemish on his non-conformist record’, according to one biographer).51 There were, of course strong feelings of anti-clericalism among the philosophic radicals and within the radical movement as a whole, including those directed against Wesleyan ministers who had tried to dissuade their flock from participating in political agitation. But, as John Dinwiddy has explained, such views were frequently accompanied by a distrust of evangelical religion in general ‘on the ground that its ardent emphasis on personal salvation distracted people from the possibilities of political improvement in this world’.52 Bentham shared this perspective, first outlined in print in IPML, and later reiterated in detail in his writings on religion. As for the penal disabilities under which the Catholics suffered, Bentham planned a contribution to the debate in late 1824, titled ‘Address Proposing a Plan for Uniting the Catholics and Dissenters for the Furtherance of Religious Liberty’. Though it appears not to have been distributed, he advocated repeal of every statute putting anyone at a disadvantage on account of religious opinions, and the prevention of judges from resorting to common law to reimpose discrimination. He urged English Catholics to join with all dissenting sects to form a council to mediate in the Irish situation and to promote the principles of religious liberty. However, he also feared the potential for the Association’s activities to trigger civil war. He hoped that the effort to redress Catholic grievances in Ireland would be harnessed to the general movement for radical parliamentary reform in Britain regardless of sectarian allegiance, and the revolutionary methods of the past disavowed (he had in mind the uprising of Wolfe Tone’s United Irishmen in 1798).53 In general these were sentiments also expressed at one time or another by O’Connell. However, in a suppressed

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part of Bentham’s letter, suppressed at Bowring’s bidding, he flirted with the expression of a far more inflammatory thought, that if it came to civil war and ‘extermination’ he would sooner ‘see all Orangemen undergoing that fate, than the same number of Catholics’, the oppressed majority. But this, he quickly reminded himself (and the Association), should be avoided at all costs, for ‘extermination could not have place without being mutual’.54 Consistent with the general position he took on issues of civil liberty, O’Connell also shared with Bentham a deep-seated hatred of slavery; he was a leading figure in the British and Foreign Anti-Slavery Society, and from 1830 to 1833 played a prominent role in the successful campaign for West Indian emancipation.55 He once said that he would never visit the United States while it upheld the slavery laws and would never shake the hand of an American who supported slavery, proclaiming to an anti-colonization meeting in London on 13 July 1833, ‘I should be sorry to be contaminated by the touch of a man from those States where slavery is continued’.56 In an address given to the Repeal Association in Dublin on 11 October 1843, he announced that freeing the American slaves would grant the boon of liberty to a far greater number of persons, thus ‘the noble Benthamite maxim, of doing the greatest possible good for the greatest possible number, would be amply carried into effect’.57 As for the rights of women, O’Connell’s position was much like Bentham’s: he voiced rational arguments against prejudice but in practice accepted that the time was not yet ripe to improve the female lot.58 The liberal and utilitarian ideas fermenting in O’Connell’s mind may be traced to his early reading of Godwin’s Political Justice, but his reading of Bentham was also a significant factor.59 It offered him precise targets for his enthusiasm as a reformer, and provided clearly stated reasons why such reforms would benefit the people. O’Connell’s familiarity with Bentham’s writings dates at least from March 1818, indicated in a letter to his wife Mary requesting that a recent issue of the Quarterly Review be sent to him, containing ‘a short review of Bentham’s work on reform’.60 When Bentham arranged for O’Connell to receive a selection of reform tracts and writings on codification in 1828,61 O’Connell replied that he was ‘not a stranger to your works by any means’, but that formerly he read more of them than he was able to digest, ‘I took only the landmarks for the purpose of practical utility, not then foreseeing that I should have any chance of reducing your opinions into practice although the general notion has been long familiar to my mind that I should be instrumental in introducing a Code and abolishing the present nefarious and atrocious System.’62 The omens for a successful partnership looked very good indeed. O’Connell was fi fty-three, at the height of his powers, already established as the leading defender of Irish interests, and set to embark on a distinguished parliamentary career that was to reach near-mythical proportions. Bentham was a sprightly eighty years, the acknowledged sage of British radicalism, still

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projecting schemes for political, legal and judicial improvement, and ever ready to seize an opportunity to prosecute his proposals before the bar of public opinion and put them in the hands of ministers and legislators. To both men their alliance seemed to promise a good deal: the critical utilitarian theorist would convey the appropriate ideas and information, impart the benefit of the hard-earned wisdom of a lifetime and instil in the eloquent and energetic practical politician the required know-how to translate ideals into reality. The busy reformer would pay homage to the venerable scholar and employ whatever materials he presented that might suit his purpose, and invoke his name in seeking to impress upon his fellow parliamentarians the wisdom of his recommendations and to facilitate his dealings with other reformers. Each made extravagant professions of faith in their mutual practical utility. Writing to the erratic Hunt, Bentham described O’Connell as ‘the only man perhaps in the world, by whom, for many years to come, Radical Reform, or any approach to it can be brought upon the carpet, with any the smallest chance of success’.63 O’Connell offered effusive praise of Bentham and his many contributions to ‘the great approaching change’, ‘convinced that no one individual, in modern times, approaches in any degree to the practical and permanent utility of Bentham’.64 Inevitably, as doubt and frustration began to infect their relationship, optimism diminished. For O’Connell’s part it was rooted in his difficulties with the English reformers; Hunt, in particular, was to prove himself a vexing and unreliable comrade. From Bentham’s perspective it had its source in O’Connell’s independent frame of mind,65 and, ultimately, in what he took to be a debilitating commitment to Catholicism and blindness to the harm this caused the Irishman’s reputation as a reformer. But what is truly remarkable is that the flames of optimism should have burned so bright at all. Their respective experiences with the British political establishment might have suggested a decidedly lower level of expectation of the improvements that might be accomplished by their joint efforts. One of the reasons Bentham was so quick to respond to O’Connell as a potential ally was his commitment to both political and law reform, for long an abiding element in Bentham’s own radicalism.66 O’Connell had already shown his commitment to judicial reform as early as 1823, when he was instrumental in persuading Brougham to present a petition to the Commons on reform of the administration of justice in Ireland (Brougham cited Bentham as his authority).67 In a speech in July 1828, after declaring himself ‘an humble disciple of the immortal Bentham’, he went on to eviscerate English law as a disgraceful anachronism in the present period of civilization.68 Bentham was even more heartened to hear O’Connell’s sentiments on codification and the need to reform judicial procedure and eliminate the influence of ‘Judge and Co.’: I am also convinced that to be without a Code [of laws] is to be without justice. Who shall guard the guardians? – Who shall judge the judges? – A

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Code – without a code, the judges are the only efficient and perpetual legislature. There is a melancholy amusement in see[ing] how the scoundrels – pardon me, do sometimes legislate. In England, it is bad enough. In Ireland, where the checks (such as they are) of parliamentary talk, and of the press, are either totally removed or rendered nearly powerless, the mischief of judicial legislation is felt in its most mischievous, ludicrous and criminal operation.69 Bowring later recalled Bentham’s ‘enthusiasm – the joy with which he referred to some of those eloquent outbreaks with which O’Connell every now and then attacked the abuses of the law – the craft of the lawyers – the costliness and inaccessibility of justice to the people’.70 To Michael Staunton, the editor and proprietor of the Morning Register, O’Connell announced: Law Reform is now my grand object. . . . Everybody should help to get rid of the present most vexatious, expensive, cabalistic and unintelligible system of law proceedings . . . I do not exaggerate when I say that no man since the days of ‘the Sainted Alfred’ was ever half as useful as I shall be if I can abolish the present nefarious and abominable system and introduce a code of Common Sense both in its mode of proceeding and in its rules and enactments.71 Impressed by Bentham’s petitions for codification of the laws and for reforming the administration of justice,72 O’Connell promised to present petitions to this effect in Parliament when he had secured a seat.73 The petitions he distributed at the Co. Kerry Catholic meeting on 16 October 1828 and in Kilkenny a week later, contained the following statement that might have been written by Bentham himself: ‘That the laws of the land ought to be precise and intelligible, and that the administration of those laws ought to be cheap and expeditious, and that for those purposes it is necessary that an all comprehensive code of law and procedure should be adopted by the Legislature, and therefore we do petition the Parliament to take measures in order to procure drafts of such code to be prepared and submitted for legislative consideration’.74 On the political front, O’Connell subscribed to the secret ballot, a key measure for the philosophic radicals, without which ‘it is not possible to have perfect freedom of election’.75 This was a constant refrain in Bentham’s early letters to O’Connell, and he tried hard to get both O’Connell and Hunt to work together for this objective.76 On the Irish Question Bentham mentioned in passing his opposition to the ‘wings’ or securities designed to placate Protestant opposition in Ireland to a Catholic relief act,77 and expressed ambivalence about emancipation preceding parliamentary reform.78 Otherwise, Bentham was thoroughly satisfied that O’Connell’s sentiments on the constitution were exactly as he would wish.79

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O’Connell’s tortured relations with Hunt stemmed from O’Connell’s support for Burdett’s Catholic Relief Bill 1825, including the ‘wings’, one of which involved the disfranchisement of the Irish forty-shilling freeholders, to which uncompromising Hunt strongly objected. Matters came to a head during and after O’Connell’s success in the Co. Clare by-election in July 1828, when Hunt impugned O’Connell’s radical credentials, his tactics during the election and his failure to take his seat in the Commons as originally planned. This elicited a strongly worded reply from O’Connell.80 Between the two reformers Bentham played a determined role as intermediary, endeavouring to prevent a schism among the radicals; in a flurry of letters in September 1828 by turns he praised and cajoled both men. To O’Connell, Bentham wrote of Hunt’s inhibiting ‘passions of envy and jealousy’ (in this case Hunt’s envy of O’Connell, whose radical star was on the rise).81 However, six days later he informed O’Connell that Hunt had achieved a great deal in tackling abuses in the City of London, ‘and is in the way to do considerably more’,82 and advised O’Connell to cease his attacks on Hunt for trading as a seller of shoe blacking: ‘the feeling thus betrayed belongs not to us democrats, but to aristocrats, who make property . . . the standard of opinion’.83 A week later he counselled O’Connell that to make a truce with Hunt he must ‘forbear writing to him in the vituperative style’ which, he says, has only damaged O’Connell’s reputation not Hunt’s.84 More praise of Hunt followed: ‘In point of capacity of taking the lead, at present, in support of radical reform in the way of public speaking, no one has as yet appeared, who is at all comparable to him’. Moreover, by common report Hunt is ‘of late, in every respect, even moral as well as intellectually, surprisingly improved’.85 At the same time, in a barely disguised anonymous letter to Hunt, Bentham was equally at pains to point out the paramount value of O’Connell: ‘His instruments are the vast majority of the people of Ireland – his operations, by means of those same instruments, petitionings for Reform: for Reform in whatever shape, for a commencement, may be deemed to afford the most promising prospect of success’.86 He shared Hunt’s concern about O’Connell’s substitution of the phrase ‘constitutional reform’ for ‘radical reform’ – a phrase ‘which, as you think, and I think, means nothing at all (unless it means Whig reform)’.87 But as a rebuttal to Hunt’s innuendos against O’Connell’s sincerity, Bentham recalled an earlier attempt by O’Connell to instigate reform: ‘At that time he gave the matter up: how could he do otherwise? – no support could he find; to have persevered would have been, thenceforward, to render it impossible to make any part of the great progress he has made. In his place . . . I should have done the same’.88 Despite Bentham’s exertions O’Connell and Hunt rarely saw eye to eye. In private O’Connell confided to Bentham, ‘My opinion of Hunt is, that his radicalism is not love of liberty, but hatred of tyranny, mixing I think with hatred of anything superior of any description’. Such men are indispensable as ‘the pioneers of reform; but they get so “unsavoury from their trade” that it is absolutely requisite to send them to the rear when the practical combat comes on’.

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This, says O’Connell, was the idea behind his reply to Hunt. In the meanwhile, he will listen to Bentham as the ‘thermometer of Hunt’s political utility’.89 When Hunt published Bentham’s ‘anonymous’ letter in the Morning Herald on 29 September 1828, he revealed its author and added a commentary critical of O’Connell.90 This elicited a letter from O’Connell to Bentham in which he sought to dispel once and for all the aspersions cast on his radicalism by detailing the circumstances of the Co. Clare election, and rebutting the charges Hunt levelled against him.91 He explained the underlying tactics of the election and justified himself on the grounds that he was better placed to understand the situation in Ireland than Hunt or any other English reformer, but in tones that betrayed his deep-felt anger at the presumptuous questioning of his motives.92 O’Connell’s dilemma over whether to take his seat in the Commons, knowing he would be rejected in accordance with the penal laws against Catholics, was one of the main issues for the radicals in London, who wanted to make his attempt to enter Parliament a cause célèbre. Hunt wrote to him expressing disappointment at his hesitancy, and pointed to this, together with O’Connell’s seclusion since arriving in London in February 1829, as the reason for the indifference of the English reformers.93 In the same letter Hunt reiterated his opposition to the disenfranchisement of the Irish forty-shilling freeholders,94 reluctantly accepted by O’Connell as the price for Catholic relief, then being debated in the Commons. The Roman Catholic Relief Act received royal assent on 13 April 1829, but in a churlishly conceived vote in the Commons O’Connell was ruled ineligible to take the revised oath since he had been elected before the act came into effect. This forced him to repair to Co. Clare to fight another campaign. O’Connell’s second electoral victory on 30 July 1829 occasioned an ecstatic letter to Bentham, in which he declared, ‘BENEFACTOR OF THE HUMAN RACE, I avowed myself on the hustings this day a “Benthamite” and explained the leading principles of your disciples’. Henceforth he planned to dedicate his parliamentary career to the principle of utility, stating that Bentham had ‘now one Member of Parliament your own’.95 In reply, Bentham sent O’Connell a series of codification petitions and petitions for judicial reform, abridgements, amended versions and supplements,96 constantly seeking the perfect meshing of the ideal and the practical in order to solicit as many signatures as possible outside Parliament and to rebut objections and win over votes inside.97 O’Connell promised that once Parliament agreed in principle to codification Bentham would be commissioned to work on it.98 He announced he would make a statement of his intentions in the first few days of the coming parliamentary session by introducing petitions for codification and judicial reform, at which time ‘The hon[oura]ble House! shall hear the name of Bentham, a name which, it would seem, has been considered too harsh for “ears polite”.’99

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Bentham’s enthusiasm barely lagged behind O’Connell’s, writing excitedly of the allies and supporters he was busy arranging for O’Connell. Brougham, he writes, cannot be relied upon; the radical Daniel Whittle Harvey will stand as O’Connell’s lieutenant in Parliament in an alliance, says Bentham, that ‘will suffice to drive out the Ministry and replace it with one including themselves’.100 On another occasion Bentham reported his efforts to establish the Law Reform Association to support O’Connell in Parliament, the aim of which was to do for the law what O’Connell’s Catholic Association had done for his co-religionists in Ireland.101 Burdett, John Smith and Joseph Hume had agreed to it.102 But Bentham was always racing ahead, and the letters periodically discuss other proposed measures, such as reforms to the Real Property law and the Public House licensing system,103 establishment of an Equity Dispatch Court,104 and abolition of the fee-gathering system in the courts.105 To each of which O’Connell responded with encouragement, suggestions for improvements and grand professions of what might be achieved. The first half of 1830 was the high-water mark of O’Connell’s activities in support of Bentham’s reform agenda. In January (Bentham noted) O’Connell was busy drumming up support for the Law Reform Association.106 In February he introduced a petition with 10,000 signatures for a new and comprehensive legal code,107 supported a motion by Peel for ‘the Reform of the Courts of Law’, and in the same speech recommended abolition of the fee-gathering system and codification of the laws.108 In March he spoke on a parliamentary motion for the printing of a codification proposal and boasted of belonging to ‘the small and sacred band of Radical Reformers’.109 When Bentham heard of this he wrote offering arguments for O’Connell to use in responding to objections to a code.110 A temporary truce between O’Connell and Hunt enabled them to cooperate in the founding of the Metropolitan Political Union in March 1830, and at its first meeting O’Connell spoke from the Chair demanding ‘a real Radical Reform’, including universal suffrage, shorter parliaments, the ballot, and law reform.111 In a speech in the Commons on Brougham’s Local Jurisdiction Bill in April, O’Connell praised Bentham effusively and bemoaned ‘the want of a fixed code of laws’ and the wretchedness of ‘ judge-made law’.112 Finally, in July, when withdrawing his motion for codification (at Bentham’s bidding),113 O’Connell attacked Burdett’s debilitating equivocations on the matter, regretting that the baronet ‘was prevented from presenting a petition on this important question, from a man whose name was his highest eulogy – he meant Mr. Jeremy Bentham – to whom the world was so deeply indebted for his works on the subject; which petition contained an offer to submit to the House the draft of a full Code of Laws and procedure, with reasons for every article’.114 If, despite this setback, O’Connell’s zeal for codification was undiminished,115 he was increasingly at odds with Bentham on other matters. The points of contention centred on O’Connell’s continuing support for Bolívar in South

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America,116 and his ill-conceived attack on the continental liberals, the acerbic nature of which threatened to permanently isolate O’Connell from the English radicals and other reformers. The dispute over Bolívar began mildly enough. Smarting from the news of Bolívar’s ban on his writings and unmindful of the strength of O’Connell’s faith in the South American ‘Liberator’, Bentham accused Bolívar of betraying his earlier liberalism and becoming ‘a selfish and maleficent despot’,117 who had diminished the rights of representation and quashed freedom of the press.118 O’Connell was quick to take Bolívar’s part, reminding Bentham of the ‘eminent services he has rendered to Liberty’ and commending the ‘persevering ardour’ that enabled him to defeat the Spaniards and ‘to lay the foundation of freedom’ in Columbia and elsewhere, and establish ‘the perfect equalisation of civil rights amongst all castes and colours’. Contrary views of Bolívar, he proclaimed, were the product of mean and selfish compatriots envious of his talent and virtue.119 O’Connell well understood the kinds of conflicting pressures that a popular leader had to deal with in trying to forge unity among his people. The situation in Venezuela and Columbia was volatile, he explained; partial independence from Spain during the Napoleonic Wars was followed by a reconquest by Ferdinand VII and then by Bolívar’s uprising. In these circumstances violence – which O’Connell stood foursquare against in Ireland – was required to overthrow despotism. Moreover, Ferdinand had sought to extinguish democracy in Spain and had reinstituted the Inquisition and the union between church and state. For O’Connell, Bolívar was a hero struggling against the re-establishment of religious intolerance and political despotism.120 O’Connell’s support for Bolívar and his problems with the English radicals soon became inextricably entwined, bound in public perception with his unflagging defence of Catholicism. In an intemperate letter published in the Dublin Evening Post on 6 October 1829 he accused the French liberals of ‘incessant attacks’ on the Catholic clergy and of ‘gross calumnies’ against them: ‘I despise the French Liberals – I consider them the enemies, not only of religion, but of liberty’.121 The Evening Post ran an accompanying editorial condemning O’Connell’s views, and the outcry against O’Connell was quickly taken up in England a few days later when the Morning Chronicle reprinted the offending letter, together with an editorial censuring the extreme nature of O’Connell’s anti-liberal attack.122 In two articles, which included a series of extracts from the most embarrassing sections of O’Connell’s letter, the moderately reformist Examiner joined in the general criticism, ridiculing his claims to be a disciple of Bentham.123 The letter was presented as a condemnation of European liberalism in toto, grounded in O’Connell’s reactionary commitment to Catholicism. O’Connell had likened the French liberals to the Jacobins responsible for the clerical massacre of September 1792,124 while the liberals in Spain and Portugal were taken to task for their ‘subversion of the Catholic Church’. How, asked

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the Examiner, could this be squared with O’Connell’s commitment to reform in accordance with Bentham’s ideas? ‘Mr. O’Connell knows about as much of the doctrines of Bentham as he does of the sentiments of French Liberals. . . . Let him observe . . . that all the charges which he prefers against the French Liberals are urged by the retainers of corruption against the English Radicals, amongst whom he numbers himself.’125 The point was driven home: ‘let the friends of toleration and freedom of discussion, let the Benthamites, reformers, and philosophers . . . discern what sort of protector they would find in Mr. O’Connell, who, in his fanatical frenzies against Infidelity, would crush the privilege of a doubt, however calmly or incidentally expressed; . . . What rational, practical, or upright man, will condescend to co-operate with so unstable and perverse an auxiliary [to reform]?’126 The repercussions were to prove demoralizing for Bentham and his aspirations for a concerted effort by the reformers to pass the most radical reform bill possible. Initially, Bentham gently scolded his wayward friend, appealing to him to adopt a more equable manner in his dealings with other reformers,127 but when he weighed the full force of the Examiner’s attack he issued another missive unequivocally condemning O’Connell’s ‘tirade’, and beseeching him to ‘abstain from such reproachful sallies in future’. He stressed that under the head of ‘liberal’ should be counted both Whig reformers and radicals, ‘all to whom you can look for assistance in the character of friends’. To the degree that O’Connell damaged their reputations, whether at home or abroad, he weakened his own potential support. Bentham then addressed what he believed lay at the root of O’Connell’s outburst – his Catholicism: ‘What on this, or any occasion, could have possessed you thus to run-a-muck (Malay like) against all your friends, with the exception of a comparatively small number of zealous Catholics’. To make war upon them on account of their being ‘either Non-Catholics, or Non-Christians’ is to engage in an ‘unnatural war’, without any hope of converting unbelievers to the Catholic faith or any other religion. Then, in even stronger terms drawn from Bentham’s moral vocabulary, he admonished O’Connell for his ‘antisocial feelings’, believing he had recklessly jeopardized the prospects for reform in the coming session of Parliament.128 No sooner had this letter of remonstrance left Bentham’s hand when news arrived of another of O’Connell’s public disputes. In a second letter of the same day Bentham took O’Connell to task for an attack on John Doherty, the Irish Solicitor General, whom he had accused of suppressing evidence and disallowing the evidence of defence witnesses in the famous Doneraile Conspiracy trial in Cork the previous month. Dramatically summoned to the case at the last moment, O’Connell had successfully defended fifteen ‘peasants’ facing the death penalty for conspiracy to murder local landlords, and gained a reprieve for four others previously convicted on the same charge.129 Ignorant of the effect of this case on Irish public opinion, it was Bentham’s view that the attack on Doherty would further damage O’Connell’s reputation with moderate

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reformers among the Whigs.130 Though he admitted not knowing the particulars of the case, he counselled O’Connell to make a public apology to Doherty, a truly laughable proposition under the circumstances. O’Connell’s pursuit of Doherty was required to shore up support in Ireland, rather than the needless outburst of nationalist sentiment Bentham took it for, and he continued to try to bring Doherty to account in the Commons in May 1830.131 With no sign of either a public apology or a private explanation from his correspondent, a greatly disappointed Bentham wrote a month later of O’Connell in relation to himself: ‘He has declared war against you. Are you not a Liberal? . . . On the Monday he is at your feet; he was a Benthamist. On the Thursday, you are the object of his declared abhorrence; he is an anti-Benthamist’. O’Connell’s silence confirmed it. Adding insult to injury, Bentham continued in a bitter vein: He is a tool in the hands of the Jesuits. He is a weathercock, and their breath the blast that determines its direction. Those to whom you are most indebted for what you are, for your having devoted the whole of your long life to the service of mankind, those by whose means he himself became what, till the other day he was, – a Benthamist, these are now among the objects of his proclaimed abhorrence. . . . The friends of liberty all over the world, those are the men he thus makes war upon. The liberal Spanish Cortes, – the liberal Portuguese Cortes, – all over late Spanish America, the constituted authorities, with the exception of Bolivar, till the t’other day the Liberator, now the Subjugator.132 Why could not O’Connell see this? Bolívar reinstituted clerical orders, and O’Connell can see no wrong in this, but rather attacked the liberals who oppose Bolívar and ridicule the notion of Papal infallibility. To defend the latter is arrogance writ large, since it is to elevate one’s own opinion above all others. That Bentham was forced to listen to these same views expressed within his inner circle only deepened the frustration he felt: ‘I am struck dumb. I stand mute. I shrug up my shoulders: this is the condition in which you have placed me’. Finally, Bentham warned O’Connell that if he would not distance himself from these views he would be permanently isolated from the reformers in London.133 Contrition was not something that came easily to O’Connell, but something like it can be seen in his last, despondent letter to Bentham on 22 February 1831. He regretted the split from the English radicals and his lack of success in bringing about reforms. He urged Bentham to give him direction in applying his energies in Parliament. They met for the last time a few weeks later, and the following day Bentham drew up a reform agenda ‘regarded as consented to by O’Connell last night’, including strategies to deal with codification and the sinister interests opposed to it, Brougham’s Bankruptcy Bill, a proposed

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amendment to Peel’s Jury-regulating Act, the issue of retirement allowances for judges and the Witness Examination Bill. However, it would appear that O’Connell’s visit was paid out of respect for a friendship that had promised so much, but which was now all but broken by the furore he had caused in the ranks of the radicals. Parliamentary reform and codification was no longer a priority for O’Connell. Perceiving himself as isolated from the reformers in England, repeal of the union was now his primary objective,134 in the belief that it was the ultimate antidote to Ireland’s plight.135 In a final show of solidarity with O’Connell, Bentham issued a public letter headed ‘Pacifus against the conquest of Ireland’, in which he criticized Parliament for ‘a determination to coerce, and risk a civil war’ rather than to consent to repeal.136 If forces are sent to quell the Irish then ‘let the Liberator [O’Connell] and his fellows lay hold of them, toss them in a blanket, and then toss them back again into the steamboat, with fuel to fire them back again, or into the Liffey – no great matter which’.137 The English radicals must present petitions to prevent such a force being raised and funded from public taxes, and to dismiss the ministers responsible for ‘this declaration of war’ and for their other actions, ‘their sham Reform under the guise of half Reform: for their sham Parliamentary Reform: for their sham Finance Reform: sham Law Reform’.138 For O’Connell, however, it was too little too late.

3. Law Reform The Catholic Association, founded on 25 April 1823, had an enormous impact, not only in the agitation for emancipation but also on the development of radical politics, including radical workingmen’s politics in Britain. It became the model for extra-parliamentary campaigns for political reform,139 and for Bentham’s own creation of the Law Reform Association. Such was its success in the agitation for emancipation, it is said to have bequeathed to popular politics ‘the modern political party’.140 Those opposed to the Association’s goals saw it in a very different light – as a threat to the entire political establishment. On the occasion of the House of Commons debate on the Unlawful Societies Bill in early 1825, the objective of which was to ban the Association, Tory MPs seized on the opportunity to attack the notion of political associations in general. Peel, for example, demanded to know ‘Where were these associations to end?’ and ‘why might not the country expect an Association for the purpose of obtaining parliamentary reform?’141 The idea soon gained currency among the radicals, who saw in the success of the Association a way to achieve their own reformist agenda. The Law Reform Association was conceived by Bentham as a more exclusive and tempered form of the Catholic Association, intended to serve as a focal point for the leading law reformers of the day and a support group to assist

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O’Connell in the Commons. Bentham gave considerable energy to promoting it to prospective members.142 With the support of the dependable Joseph Hume, he put together a broad cast of reformist Whigs and radicals dedicated to an agenda of reform that included codification of the law, but the group achieved little of significance in Parliament. In these last years Bentham followed a twin-track approach to law reform, coupling his efforts to marshal the forces of reform to work in cohesion on the basis of a unified agenda, with direct appeals to politicians in power, particularly Peel, Home Secretary in Liverpool’s administration since January 1822. Peel had given early intimations of his openness to law reform across a broad range of issues, including judicial procedure,143 and was responsible for consolidating parts of the criminal law (known as ‘Peel’s Acts’) and the laws governing juries, the reduction of the number of crimes punishable by death, several modest prison reforms and the establishment of the Metropolitan Police Force.144 This was the sort of person Bentham thought he could do business with. In 1825, in the hope that his ideas might be of some use, he published criticisms of Peel’s bills to increase the salaries for police magistrates and judges. Then, in Indications Respecting Lord Eldon, he offered a considered dissection of the practice of judge’s imposing legal fees on their own authority (thereby, he argued, violating the constitutional principle that taxes could only be imposed by Parliament) and its particular effects on the Court of Chancery.145 In the spring of 1826 he pressed Peel to take on board his ideas on judicial administration and property law.146 Exercised on the issue of ‘ jury-packing’, he sent Peel a copy of The Elements of the Art of Packing, as applied to special juries, particularly in the case of libel law (1821) to underscore the differences between his own approach and the Home Secretary’s as laid out in the Jury Act 1825.147 In the light of his ‘Commentary on Mr. Humphrey’s Real Property Code’ in the Westminster Review,148 Bentham was disappointed not to be invited to give evidence to Peel’s Real Property Commission. Nevertheless, he persisted in communicating with Peel on the subject of law reform, and in April that year called on the Home Secretary to throw his considerable weight behind the effort to enact new legislation governing the supply of dead bodies for anatomical research,149 one of the few real successes of Bentham’s law reform campaign in the closing years of his life. Following the ideas published by the sanitary reformer and physician Thomas Southwood Smith,150 the principal thrust of Bentham’s recommendation to Peel was that patients admitted to hospital should be deemed to have given their consent to dissection in the event of their death, providing no application for burial was made by a family member or friend.151 Anticipating significant opposition to Bentham’s proposal, in April 1826 Peel wrote explaining, presumably because he had recently removed the difficulties in the way of the importation of bodies from abroad, that the difficulty of supplying corpses to the medical schools ‘has been of late very materially diminished’. Also, he

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wondered whether the matter was an appropriate issue for legislation at all, and feared ‘the consequences to Science of too open an interference in a matter, in regard of which public feeling is naturally so easily excited’.152 Bentham considered responding to Peel, but left two draft letters unsent. In one of the unsent letters he expressed the prescient fear that to supplement the unlawful supply of bodies from graveyards some might be tempted to murder, unless something were done to legally increase the supply, and proposed as the title for a new law: ‘A Bill for the more effectual prevention of the violation of Burial Places’.153 Bentham did not take up the matter again until 6 November, when he drafted the ‘Body providing Bill’.154 As well as setting down guidelines for the supply of unclaimed bodies from hospitals, poorhouses, he adopted Smith’s suggestion of including in the draft bill a clause repealing the act whereby executed murderers were judicially dissected. Not much came of the efforts of Southwood Smith and Bentham until March 1828, when two doctors were convicted of body-snatching. Parliament was called upon to act quickly and, with the urging of Henry Warburton, the reformist MP for Bridport, the House of Commons established a Select Committee, stacked with reformers and chaired by Warburton, ‘to inquire into the manner of obtaining Subjects for Dissection in the Schools of Anatomy, and into the state of the Law affecting the Persons employed in obtaining or dissecting bodies’.155 The subsequent bill, modelled on the principles laid down by Southwood Smith and Bentham, was initially defeated in the Lords, but in a slightly modified form – and in the face of bitter opposition from Cobbett and Hunt – was enacted in the summer of 1832, shortly after Bentham’s death and the celebrated ‘anatomization’ of his corpse. In the intervening years Bentham had made further attempts to influence Peel. In May 1828 Peel established a Royal Commission to inquire into the process, practice and pleading in actions used in the superior courts of common law, and Bentham issued a long letter soliciting information and making recommendations, including abolition of the traditional right to silence, and requesting that the commission consider his Justice and Codification Petitions, extracts of which were sent to Peel.156 In the same letter Bentham provided testimony of his credentials to advise the commission in its work, and appealed to Peel to ensure this outcome. No doubt, he wrote, Home Secretary Peel could not help but be ‘in league with Judge and Co.’ and was therefore ‘a partaker in sinister interest’, and will be denounced as such at all times, and ‘will have no rest that it is in my power to deprive him of’. But, as ‘Mr. Robert Peel’ there ‘may have place some sparks of regard for the present good opinion of the civilized world, for the future good opinion of posterity, and even of sympathy for the happiness and misery of the subject many, here and now’. The sentiment may have appealed to Peel, though he took not a little umbrage at Bentham’s threat to publish the letter should he not reply within seven days indicating a willingness to accede to his demands for inclusion in the work of

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the commission.157 Peel refused, stating he had no objection to the publication of the letter, only regretting that this meant Bentham would make good on his threat ‘to make war upon me in every part of the Field of Space – and on every part of the field of Time’.158 Unperturbed, when Peel announced his intention to bring in a bill to eliminate fees paid to officers of the courts in March 1830, Bentham hailed him as a fellow reformer who had passed the Rubicon and put his foot ‘on the career that leads to the ends of justice’ – in this case, putting an end to ‘the system of factitious expense and delay’ caused by the paying of court fees.159 Bentham was elated by this success, and later that month brashly attempted to interest Peel in reviving both the panopticon prison and pauper panopticon projects, but to no avail.160

Conclusion Bentham’s relations with the radical reformers, most notably O’Connell, illustrates his attempt to have an influence upon policy by working through an extensive network of disciples (or thought-to-be disciples), and the use he was prepared to make of those who professed reform and were in a position to prescribe it. In his efforts to provide O’Connell with allies and supporters in Parliament and to mediate in the dispute with Hunt we see exemplified Bentham’s view of himself as the commander-in-chief of the reformers, whose role was to educate his troops in the measures and the tactics to achieve them, to motivate them when the going got hard, to rebuke them when they strayed from the path, and to heal the schisms that undermined their efforts. What is equally clear, however, is that his estimation of the influence he wielded was greatly exaggerated, and there were times when fancy prevailed over judgement when he urged those he expected to deliver his reformist message in Parliament to adopt the tactics he prescribed. If reformers like Burdett and Brougham were prone to bolstering the validity of their pronouncements in Parliament by summoning Bentham’s reputation in support, even while they employed arguments of a distinctly non-utilitarian sort, O’Connell’s similar evocations went beyond the merely rhetorical. He showed himself a sincere advocate of codification and judicial reform, and if he tempered his political radicalism at times it was always with an eye to what might practically be achieved. True, there were matters suggested to him by Bentham that he did not take up, such as the Equity Dispatch Court proposal, and reforms to the Real Property law and the Public House licensing system, but these were minor considerations in the general radical alliance they developed. In the end, however, Bentham was not immune to the general failure to empathize with O’Connell. He never grasped the depth of the mistrust that existed between the Irishman and the English reformers. Nor does he seem to have fully grasped the priority O’Connell afforded Irish concerns or his particular

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brand of liberal Catholicism, a failure that takes us a long way to explaining both Bentham’s inflated notion of what O’Connell could achieve with his help and the ultimate collapse of their political alliance. Ultimately, try as he might, the great utilitarian legal philosopher, who came near to achieving his lifetime’s ambition of constructing a pannomion, saw few of his initiatives become law and policy while he still lived. It was to be left to other hands, disciples and future generations of utilitarians, men like Chadwick, Roebuck, Grote, Molesworth, Mill and other similarly inclined radicals and reformers, to carry his work forward. In this respect, the full measure of the influence of Bentham’s philosophy in the following centuries has still to be taken. Nevertheless, in the history of political thought few besides Bentham have contributed so much to mapping out the principles and ideas upon which to base a comprehensive system of institutions, laws and codes of practice. In this lies the great achievement of his utilitarianism, which guarantees its place in continuing discussion and debate on a wide range of philosophical, moral, legal and political issues.

Notes

Introduction 1

2 3 4

5

6

7

8 9

10

11

12

13

See Samuel LaSelva, ‘Harm Principle’, in James E. Crimmins and Douglas G. Long (eds), Encyclopedia of Utilitarianism, forthcoming. Peter France, Times Literary Supplement, 14 Apr. 2006. Bowr. ix. 141. Bentham to Samuel Bentham (9–10 Apr. 1807), Corr. vii. 424–5. Bentham listed the people’s resulting ‘sacrifices’ in a note dated 9 Aug. 1807, and singled out the obsequious role played by Lord Eldon ‘in making up a party to support the King against the Grenville Government’. UC xv. 2. Bentham’s dismissal of the opposition between theory and practice is stated in an early ms. headed ‘Obstacles Prejuges Professional – against Theory X Practise’. UC xcvii. 5. I am grateful to Doug Long for the reference. The only known use of the term ‘praxis’ in Bentham’s published writings is in Church-of- Englandism (CW ), p. 373n. William Thomas, The Philosophic Radicals: Nine studies in theory and practice, 1817– 1841 (Oxford 1979), p. 18. This is still the best source for the activities of the circle of Benthamite reformers in the years before and after the Great Reform Act, even if Thomas’ account is far from complete, being written long before the publication of much of Bentham’s correspondence. Both A Comment and Limits were published in the twentieth century, the latter originally as Of Laws in General (CW ), ed. H. L. A. Hart (London 1970). LOW, p. 243. Public Advertiser, 15–16 June, 3–4 July, 11 July 1789 (a fourth letter by ‘AntiMachiavel’ appeared on 23 July on an unrelated topic), Bowr. x. 207–11, 201–5, and 205–6, respectively. Janet Semple, Bentham’s Prison: A study of the panopticon penitentiary (Oxford 1993), pp. 187–90. Plan of Parliamentary Reform, In the Form of a Catechism, with Reasons for Each Article: With an introduction, showing the necessity of radical, and the inadequacy of moderate, reform (London 1817). Bowr. iii. 433–557. Thomas Preston, Jubilee Jottings: The jubilee of George the Third (London 1887), pp. ix, xxiii. Around the same time, in a still unpublished essay on the discretionary role of the Crown in pardoning condemned criminals, Bentham complained that the ‘diseases’ which infect the administration of the law in capital cases can be traced to the monarchy. UC cvii. 193–277. See my ‘ “Strictures on Paley’s

180

14

15

16 17 18 19 20 21

22

23 24 25

26 27 28 29 30 31 32 33 34 35 36

37

38

39

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Net”: Capital punishment and the power to pardon’, The Bentham Newsletter, 11 (1987), pp. 23–34. See Philip Schofield, Utility & Democracy: The political thought of Jeremy Bentham (Oxford 2006), pp. 137–9; and L. J. Hume, Bentham and Bureaucracy (Cambridge 1981), pp. 175–8. Discussed in detail in my Secular Utilitarianism: Social science and the critique of religion (Oxford 1990), Chs. 5–6. Bowr. iii. 558–97. For a list see Hume, Bentham and Bureaucracy, p. 185. Deon. pp. 283–328. LOW, pp. 241–384. See Ian R. Christie, The Benthams in Russia 1780–1891 (Oxford 1993). Theory of Legislation; by Jeremy Bentham. Translated from the French of Etienne Dumont, by R. Hildreth, 2 vols (1840; 2nd edn 1864; repr. Bristol 2004), ii. 445. A commission was appointed in 1801 to undertake the task of codifying the laws of the empire, and Bentham discussed the matter with his envoy, the Polish Prince Czartoryski, offering as well to draft a constitutional code for Poland in the event that the kingdom was restored, as was Czartoryski’s hope. See the exchange of letters with Alexander and Czartoryski in LOW, pp. 82–112; and Brougham to Bentham (17 June 1814), Corr. viii. 382 and note. Bentham to Hume (5 Feb. 1827), ibid. xiii. Bentham to Ashburton (3 June 1782), ibid. iii. 121–30. See the marginals for ‘A Table of the Springs of Action’ (1817), Deon. p. 9; the note composed 12 July 1822 and inserted in the 2nd edn of FG, p. 447; and the preface intended for this edn, pp. 515–17. IPML, p. 281n and Corr. iii. 26. Bowr. ii. 535–71. Limits of the Penal Branch of Jurisprudence (CW ), p. 56, emphasis added. See RRR. Bentham to Samuel Bentham, Corr. i. 297. See also ibid. iv. 145n and Bowr. x. 214. Bentham to Lansdowne (24 Aug. 1790), Corr. iv. p. 157. Ibid. p. 158. Ibid. p. 162. Lansdowne to Bentham (27, 28 Aug. 1790), Corr. iv. 181. For example, Bentham provided Romilly with the substance of part of his speech on the death penalty of 9 Feb. 1810 directed at Paley. See note 13 above; Debates in the Year 1810, upon Sir Romilly’s Bills for Abolishing the Punishment of Death . . . (London 1810); and Basil Montagu, An Examination of Some Observations [Made in the House of Commons] upon a Passage in Dr. Paley’s Moral Philosophy on the Punishment of Death (London 1810). See Cyprian Blamires, The French Revolution and the Creation of Benthamism (London 2008). See the exchange between Bentham and Romilly (2 and 3 Dec. 1788), Corr. vii. 17–19. All these texts, together with French translations of a number of other writings by Bentham, were published in Œuvres de Bentham, 3 vols (Bruzelles 1829–30).

Notes 40 41 42

43

44

45 46

47 48

49

50

51

52

53

54 55

56

57

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Bowr. i. 388. 3 vols (St. Petersburg 1805–11). See Corr. vii. 366n. The first Spanish translation by Ramón de Salas appeared in 5 vols in Madrid 1821–2; the first German edition was translated and edited by Friedrich Eduard Beneke in Berlin 1830; and the Hungarian translation was published in Kolozvārt 1842–4. Elie Halévy mentions the Polish and Portuguese translations in The Growth of Philosophic Radicalism [La Formation du radicalisme philosophique, 1901–4], trans. M. Morris (1928; Clifton, NJ 1972), p. 530. On the influence of the Traités de législation in Latin America see Almira de Avila-Martel, ‘The Influence of Bentham on the Teaching of Penal Law in Chile’, Theodora L. McKennon, ‘Benthamism in Santander’s Colombia’ and AntonioEnrique Pérez Luño, ‘Jeremy Bentham and Legal Education in the University of Salamanca during the Nineteenth Century’, The Bentham Newsletter, 5 (1981), pp. 22–8, 29–43, 44–54, respectively. Fred Rosen, ‘Jeremy Bentham’, ODNB, v. 227. The 2nd edn of the Traités de législation (Paris 1820) lists 19 booksellers in eleven European countries from whom the book could be purchased. Del Valle to Bentham (21 May 1826), Corr. xii. 217. ‘Jeremy Bentham’s Church-of-Englandism’, in the Quarterly Review, xxi (Jan. 1819), p. 169. LOW, p. 260. Bentham to Burdett (23 Sep. 1824), Corr. xii. 58. There is no obvious reason why Bentham selected this year. Bowr. x. 47. For Bentham’s letters from Paris 15 Sep.–18 Oct. 1770 see Corr. i. 138–48. Bentham to Lafayette (12 Oct. 1825), ibid. xii. 173. Bentham remained in contact with Lafayette, writing on one occasion (20 Aug. 1828) to ask his assistance with a chapter in the Constitutional Code dealing with military matters, and when he published Jeremy Bentham to his Fellow-Citizens of France, On Houses of Peers and Senates in 1830 (Bowr. iv. 419–50), he prefaced it with a letter to Lafayette (15 Oct. 1830), Corr. xiii. Gallois to Bentham (4 Oct. 1792), ibid. iv. 397–8. See also Bentham to Plumer Jnr. (Dec. 1818), ibid. ix. 311–12. Bowr. x. 565, c. 1826–7. However, when Talleyrand visited London in Feb. 1832, he dined with Bentham. See the exchange of letters (7 and 8 Feb. 1832), Corr. xiii. Dumont to Bentham (27 Nov. and 23 Dec. 1801 and 7 Mar. 1802), ibid. vi. 457–8, 465–6 and vii. 12; and Bentham’s account to Morton (4 Sep. 1802), ibid. vii. 124–5. Bowr. xi. 75. On Bentham’s contact with Cooper and Cooper’s credentials as a utilitarian see my introduction to James E. Crimmins and Mark Spencer (eds), Utilitarians and their Critics in America, 1789–1914, 4 vols (Bristol 2005), i. xxiii–xxv. Ibid. pp. xxx–xxxiv. Neal collected these essays into a biography published with his translation of parts of vol. 1 of Dumont’s Traités de législation as Principles of Legislation (Boston 1830). See J. R. Dinwiddy, ‘Bentham and the Early Nineteenth Century’, The Bentham Newsletter, 8 (1984), p. 20.

182 58

59

60 61 62 63

64

65 66

67

68 69

70 71 72 73

74 75 76

Notes

On the various Spanish translations of Bentham’s writings or presentations of his ideas see J. R. Dinwiddy, ‘Early-Nineteenth-Century Reactions to Benthamism’, Transactions of the Royal Historical Society, 5th series, vol. 34 (1984), pp. 47–69; and Pedro Schwartz, ‘La Influentia de Jeremías Bentham en Expaña’, Información Comercial Española, 517 (1976), pp. 37–57. Morning Chronicle (18 Apr. 1820); see also Perry to Bentham (16 Apr. 1820), Corr. ix. 423 and note. Bowr. v. 187–229. Bentham to Samuel Bentham (11 Aug. 1820), Corr. x. 40–1. Bentham to Colón (6 Dec. 1820), ibid. pp. 219–30. Principios que deben server de guía en la formación de un código constitucional para un estado (London 1824), trans., ‘Leading Principles of a Constitutional Code, for any State’ (Bowr. ii. 267–74); Declaración ó protesta de todo individuo del cuerpo legislativo al tomar posesion de su destino (London 1825), trans., ms. version of ‘Legislators Inaugural Declaration’ (Bowr. ix. 198–204); Plan de provision de empleos, que es el cap. IX. Del codigo constitucional de Jeremias Bentham (London 1825), trans., ms. version of an extract from OAM. Bentham to Bolívar (13 Aug. 1825); the Mexican Legislature (21 July–1 Aug. 1826); and Del Valle (10 Nov. 1826), Corr. xii. 137, 235, 261. ‘Rid Yourselves of Ultramaria’ and ‘Emancipation Spanish’, Colonies, Commerce, and Constitutional Law (CW ), pp. 3–194, 197–276. Toreno to Bentham (c. 5 Aug. 1821), Corr. xi. 368. Cartas de Jeremias Bentham, al Señor Conde le Toreno, sobre el proyecto del código penal presentado á las Cortes (Madrid 1821), trans., Letters to Count Toreno, On the Proposed Penal Code, Delivered in by [sic] the Legislation Committee of the Spanish Cortes, April 25th, 1821. Written, at the Count’s Request, by Jeremy Bentham Esq. (1822), Bowr. viii. 487–554. See Dinwiddy, ‘Bentham and the Early Nineteenth Century’, pp. 20–1. Consejos que dirige á las Cortes y al pueblo Español Jeremias Bentham: traducidos del Inglés por José Joaquin de Mora (Madrid 1820), trans., ‘Letter to the Spanish Nation on a Then Proposed House of Lords’, in Three Tracts Relative to Spanish and Portugueze Affairs: With a continual eye to English ones, Bowr. viii. 465–70. Blaquiere to Bentham (2 Sep. 1820), Corr. x. 53–4; and LOW, pp. 309–10. Espiritu de Bentham ó sitéma de la ciencia social, ideado por Jeremías Bentham (Madrid 1820). See the exchange of letters with Bentham (May and 20 Dec. 1821), Corr. x. 329–37, 463–71. Principios de la ciencia social ó de las ciencias morales y politicas (Salamanca 1821). Tratados de legislación civil y penal, 5 vols (Madrid 1821–2). Colonies, Commerce, and Constitutional Law (CW ), pp. 345–83. Bentham to Bowring (1 Nov. 1820) and De Mora (1–2 Nov. 1820), Corr. x. 133–5. De Mora to Bentham (24 Jan. 1821), ibid. pp. 263–7. Bowr. ii. 277. José Vidal, Orígen de los errores revolucionarios de Europa, y su remedio (Valencia 1827).

Notes 77 78

79

80

81

82

83

84

85

86

87 88

89

90

91 92 93 94

95

96 97 98

99

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Dinwiddy, ‘Early-Nineteenth-Century Reactions to Benthamism’, p. 265. Pedro Alcántra de Somellera, Principios de derecho civil (Buenos Aires 1824). See Corr. xi. 145n. See the exchange of letters with Rivadavia (18 Aug. 1818 and 26 Aug. 1822), ibid. ix. 251–4 and xi. 144–6. Del Valle to Bentham (21 May 1826), ibid. xii. 217–18. See also Bentham to Hume (5 Feb. 1827), ibid. xiii. See the exchange with Del Valle (10 Nov. 1826 and 18–24 Apr. 1827), ibid. xii. 260–4, 350–6. The complexities of Bolívar’s character are explored in John Lynch, Simon Bolivar: A life (New Haven, CT 2006). Mary Williford, Bentham on Spanish America: An account of his letters and proposals to the New World (Baton Rouge and London 1980), pp. 23–4. Bolívar to Bentham (27 Sep. 1822), Corr. xi. 154–5. Bentham’s letter to Bolívar of 24 Jan. 1820 is missing. Bentham to Bolívar (13 Aug. 1825), ibid. xii. 136–53. ‘Leading Principles of a Constitutional Code, for any State’ first appeared in The Pamphleteer, xxii (1823), pp. 475–86. Bowr. ii. 267–74. The Spanish translation is by Puigblanc; see note 63 above. Dinwiddy, ‘Early-Nineteenth-Century Reactions to Benthamism’, p. 258. See also Williford, Bentham on Spanish America, p. 132. Bentham to O’Connell (8 Dec. 1830), Bowr. xi. 28. As a private university the University of Rosario, founded in 1653, was not bound by Bolívar’s decree, but the university itself imposed the ban, which remained in force until 2002. See ‘Bentham Ban Lifted’: http://www.ucl.ac.uk:80/BenthamProject (accessed 21 Feb. 2002). O Portuguez, vol. xi, no. lxvi (5 Nov. 1820), pp. 431–51, and later published as Tract No. III in Three Tracts Relative to Spanish and Portugueze Affairs, Bowr. viii. 482–5. ‘Jeremy Bentham, London, to the Portugueze Cortes, 7 Nov. 1821’, LOW, pp. 332–4. LOW, Editorial Introduction, p. xxx. SAM, Editorial Introduction, p. xv. Ibid. pp. 74–8. The charter is included in the second part of SAM, directly following the two addresses, pp. 79–102. Ibid. pp. 143–80. In one of the letters Bentham broached the idea that revolution might be the only effective way to bring about the required ‘securities against misrule’. Ibid. pp. 145–6. SAM, Editorial Introduction, pp. xxxiv–v. LOW, Editorial Introduction, p. xxxi. SAM, pp. 207–56. For the relevant passage from Raffanel’s Histoire des événemens de la Grèce (Paris 1822), pp. 429–40, a French translation of the Greek Constitution 1822, see ibid. pp. 209–16. Ibid. pp. 254–6.

184 100 101

102 103

104

105 106 107 108 109

110

111

112

113

114 115

116

Notes

LOW, pp. 341–3. The extant material is published as ‘Constitutional Code: Greece’, SAM, pp. 257–76. Bentham also sent related material by mail to Stanhope. For an explanation of the complete materials and how they relate to Greece see Code, Editorial Introduction, pp. xvi–xxxi. LOW, pp. 343–5. See Blaquiere to Bentham (12 Oct. 1824), Corr. xii. 60–2. OAM, a ‘pasticcio’ of eleven papers, the first dating from 1810, on the subjects of remuneration, education and competitive examinations for government administrative posts. A General Theory of Administrative Systems and Especially of the Parliamentary One: Accompanied by a Short Treatise on Justices of the Peace and Juries in England According to the best of French and English Authors (Missolonghi 1825). See Filimon Peonidis, ‘Bentham and the Greek Revolution: New evidence’, Journal of Bentham Studies, 11 (2009): http://www.ucl.ac.uk/Bentham-Project/journal/jnl_2009. htm (accessed 27 Oct. 2009), and ‘Anastasios Polyzoides (1802–73)’, in Crimmins and Long (eds), Encyclopedia of Utilitarianism, forthcoming. Bentham to Bolívar (13 Aug. 1825), Corr. xii. 143. Bowr. x. 539. Neal, Principles of Legislation, p. 24. Bentham to Lafayette (20 Aug. 1828), Corr. xiii. By the end of 1824 Bentham claimed to Burdett that it was nearly complete (23 Sep. 1824), ibid. xii. 58, but it was not until 1827 that he had the fi rst of the projected three volumes printed, and publication was delayed for three more years. Constitutional Code; For the use of all nations and all governments professing liberal opinions (London 1830). It is housed in the National Portrait Gallery. University College London has a smaller version. William Hazlitt, ‘Jeremy Bentham’ (1824), first published in The Spirit of the Age; Or contemporary portraits (1825), in The Complete Works of William Hazlitt, 21 vols, ed. P. P. Howe (London 1930–4), xi. 6–7. Not long before his death Bentham imagined a number of dialogues between himself and notable philosophers and other historical figures in Auto-Icon: Or, farther uses of the dead to the living. A fragment. From the MSS. of Jeremy Bentham (a work based on mss. principally dated 1831, printed 1842 but not then published), pp. 13–15. The tract is published in facsimile in my Bentham’s Auto-Icon and Related Writings (Bristol 2002). AU (LV), pp. 311, 312. See also Bentham to Wilberforce (1 Sep. 1796), Corr. v. 253. AU (LV), p. 312. Hazlitt was a tenant in Bentham’s property at 19 York Street, Westminster, in late 1817, and seems to have vacated the property sometime before 1820, perhaps as a consequence of Bentham’s attempt to evict the critic for non-payment of rent. See Koe to Bentham (5 Nov. and 13 Nov. 1817), Corr. ix. 113. Hazlitt, ‘Jeremy Bentham’, in The Complete Works of William Hazlitt, xi. 5. The critic William Empson, writing in 1828, commented in less colourful terms: ‘Mr Bentham’s reputation . . . is at present thoroughly European; . . . he has

Notes

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118

119 120

121 122 123 124

125 126

127 128 129

130

131

132 133

134 135

185

been left almost “a stranger in his father’s house”.’ Review of ‘Bentham’s Rationale of Evidence’, Edinburgh Review, xlviii (1828), p. 458. Leon Radzinowicz, A History of English Criminal Law and its Administration since 1750, 3 vols (London 1948), i. 355. Lord Brougham Displayed: Including I. Boa Constrictor, alias Helluo Curiarum; II. Observations on the Bankruptcy Court Bill, now ripened into an act; III. Extracts from proposed Constitutional Code (London 1832); Bowr. v. 549–612 (omitting the third part, which is included in the Doane edition of Constitutional Code in Bowr. ix). Bowr. v. 553. Refers to Bentham’s writings and was a running joke between himself and Brougham. See, for example, the exchange of letters in Oct. 1827, Corr. xii. 401–2. Bentham to Brougham (30 Mar. 1830), ibid. xiii. Bentham to Dumont (22 July 1817), ibid. ix. 21. Bentham to Samuel Bentham (19 July 1814), ibid. viii. 404. See the letters between Mill and Bentham (22 and 23 Feb. 1827), ibid. xii. 320–1. See the letters between Bentham and Brougham in Jan. 1828, ibid. pp. 421–31. See the letters between Bentham and Mill (31 May 1830, early May(?) and 21 May 1831), ibid. xiii. Bentham to Place (28 May and 16 June 1831), ibid. Mill to Bentham (19 Sep. 1814), ibid. viii. 417. When Bentham died he left John Mill and 25 others (but not the elder Mill) a mourning ring ‘with my Effigie and some of my hair’, and the younger Mill wrote to Carlyle that the world had lost one of its greatest men (17 July 1832), Collected Works of John Stuart Mill, gen. ed. John M. Robson (Toronto: University of Toronto Press, 1963–91), xii. 112. Bentham’s insistence that Mill’s name appear on the title page was in recognition of the amount of work he had undertaken, a courtesy he did not extend to other editors. Mill removed his name from the version in Bowr. vi–vii. The Earlier Letters of John Stuart Mill, in Collected Works, xii. 18–19; Mill to Burton (23 Jan. and 9 Dec. 1837), ibid. xiii. 368; and Autobiography, ibid. i. 119. Mill described his education as ‘in a certain sense, already a course in Benthamism’. Autobiography, Collected Works, i. 67. Caroline Fox, a relative of Shelburne’s who Bentham first met as a girl in 1781 and to whom he proposed unsuccessfully in 1805, reports that Bowring spoke of Mill as ‘a renouncer of Bentham’s creed and an expounder of Coleridge’s’. Memories of Old Friends: Being extracts from the journals and letters of Caroline Fox, of Penjerrick, Cornwall, from 1835 to 1871, ed. Horace N. Pym. (1881; 2nd edn, Philadelphia 1882), p. 124. Collected Works, xxvi. 443–53. ‘Death of Jeremy Bentham’, Examiner (10 June 1832), pp. 371–2, ibid. xxiii. 467–73. Mill to Henderson (22 Aug. 1868), ibid. xvi. 1432. See Mill’s letter to the Edinburgh Review, lxxix (1844), ibid. i. 534–8, in which he fiercely contested Bowring’s report of the frayed relationship between his father and Bentham.

186 136

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139 140 141 142 143 144

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148 149 150

151 152

153

154 155 156

157

Notes

‘The Affairs of Others’: The diaries of Francis Place, 1825–1836, ed. James A. Jaffe (Cambridge 2007), p. 128. The entry in Place’s diary for 19 June 1827 notes ‘Visits from and to Mr. Benthams [sic] have not been hitherto mentioned as each of our houses were as freely entered by either as was his own.’ Ibid. p. 264n. Place’s residence in Charing Cross Road lay only a few minutes walk from Q. S. P. The Autobiography of Francis Place (1771–1854), ed. Mary Thale (Cambridge 1972), p. 250. Place to Harriet Grote (1836), ibid. Corr. x. 56n. Bowr. x. 516. Ibid. Bentham to Blaquiere (9–15 Dec. 1820), Corr. x. 235. See Bentham to Brougham (13 Sep. 1827), ibid. xii. 385–6. Brougham’s reply has not survived, but it seems he made a good deal of Bowring’s questionable role in the Greek scandal. Bentham tried a second time to sway Brougham in Jan. 1828, but to no avail. See the exchange of letters, ibid. pp. 421–31. ‘Jeremy Bentham to the Future Electors of Blackburn’ (27 Oct. 1831), ibid. xiii. Bentham also attempted to persuade the journalist and free-trader Archibald Prentice to back Bowring’s candidacy. Bentham to Prentice (11 Apr. 1831), ibid. John Neal, Wandering Recollections of a Somewhat Busy Life (Boston 1869), p. 273. Harriet Martineau spoke for many, when she charged Bowring with ‘vanity, unscrupulousness, and incompetence’. Harriet Martineau’s Autobiography, 2 vols, ed. Maria Weston Chapman (Boston 1877), i. 311. Place, ‘The Affairs of Others’, pp. 178, 183. This view was also voiced in far less flattering terms by the disaffected John Colls, one-time amanuensis to Bentham. Utilitarianism Unmasked (London 1844), p. 9. George Bentham: Autobiography, 1800–1834, ed. Marion Filipiuk (Toronto 1997), p. 308. Bowr. x. 516. For the details see the introduction to my Bentham’s Auto-Icon and Related Writings, pp. xxxvii–li. Bowring, viii. 193–357. ‘On the Use of the Dead to the Living’, Westminster Review, ii (1824), pp. 59–97 and ‘Anatomy’, ibid. x (1829), pp. 116–48. Lecture Delivered over the Remains of Jeremy Bentham, Esq., in the Webb-Street School of Anatomy & Medicine, on the 9th June, 1832 (London 1832), p. 58. G. Bentham, Autobiography, p. 385. Ibid. ‘An Act for Regulating the Schools of Anatomy’ received royal assent on 1 Aug. 1832. An exception to this remark is Schofield, Utility & Democracy, which contains several chapters of relevance. In addition, there are other works that focus on specific matters pertinent to Bentham’s later years, which are listed in the Bibliography. However, there is no modern biography of this period of his life. Regrettably, Mary P. Mack passed away before completing her sequel volume to Jeremy Bentham: An odyssey of ideas 1748–1799 (London 1962).

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21

The sequence is as follows: [Macaulay], ‘Mill’s Essay on Government: Utilitarian logic and politics’, Edinburgh Review, xcvii (Mar. 1829), pp. 159–89; [Thompson], ‘The “Greatest Happiness” Principle’, Westminster Review, xxi (July 1829), pp. 254–68; [Macaulay], ‘Bentham’s Defence of Mill: Utilitarian system of philosophy’, Edinburgh Review, xcviii (June [sic] 1829), pp. 273–99; [Thompson], ‘On the Answer of the Westminster Review to the Article on “Utilitarian logic and politics” ’, Westminster Review, xxii (Oct. 1829), pp. 526–36; [Macaulay], ‘Utilitarian Theory of Government, and the “Greatest Happiness” Principle’, Edinburgh Review, xcix (Oct. 1829), pp. 99–125; and [Thompson], ‘The Utilitarian Theory of Government, and the Greatest Happiness Principle’, Westminster Review, xxiii (Jan. 1830), pp. 246–62. The articles are reprinted, together with Mill’s ‘On Government’, in Jack Lively and John Rees (eds), Utilitarian Logic and Politics: James Mill’s ‘Essay on Government’, Macaulay’s critique and the ensuing debate (Oxford 1978), and it is from this text I quote in this chapter. Henceforth ULP. UC cxxvi. 304. Bowr. iii. 435; and Bentham to Cobbett (16 Nov. 1810), Corr. viii. 80–1. Review of Plan of Parliamentary Reform, Quarterly Review, xviii (Oct. 1817), pp. 128–35. Ibid. p. 129. Ibid. p. 135. Review of Plan of Parliamentary Reform, Edinburgh Review, xxxi (Dec. 1818), pp. 165–203. Arguments Concerning the Constitutional Right of Parliament to Appoint a Regency (London 1788). Vindiciæ Gallicæ: A defence of the French Revolution and its English admirers against the accusations of the Rt. Hon. Edmund Burke (London 1791). See The Miscellaneous Works of the Right Honourable Sir James Mackintosh, 3 vols, ed. R. J. Mackintosh (London 1846), i. 80–3. Parr to Mackintosh (8 July 1792), ibid. p. 83. The substance of the first lecture was published by Mackintosh as A Discourse on the Law of Nature and Nations (London 1799). Bentham to Mackintosh (1808), Corr. vii. 465. Bentham to Dumont (29 Aug. 1802), ibid. p. 99. Bentham to Dumont (Jan. 1804) and Samuel Bentham (22 Sep. 1804), ibid. pp. 258–9, 278–9. Letters written on several occasions from India 1804–7, Miscellaneous Works, i. 215, 210, 343. Chrestomathia (CW ), Editorial Introduction, p. xiii. Miscellaneous Works, i. 404. Mackintosh to Bentham (20 July 1813), Corr. viii. 340–1. Mackintosh was an ardent supporter of Romilly’s proposals for easing the severity of criminal law, and after Romilly’s death took the lead in this area in the Commons. See Radzinowicz, A History of English Criminal Law, i. 528–61. Edinburgh Review, xxxi (1818–19), pp. 175–6.

188 22 23 24

25 26 27

28

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34 35

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38 39 40 41 42 43 44 45

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Bentham to Koe (1 Feb. 1818), Corr. ix. 155–6. Bentham to Samuel Bentham (26 Jan. 1819), ibid. pp. 322–3. Thomas, The Philosophic Radicals, p. 76 (see Ch. 2 for an account of the Westminster elections 1819–20). Robert A. Fenn, James Mill’s Political Thought (New York 1987), p. 130n. Thomas, The Philosophic Radicals, p. 125. Mrs. [Harriet] Grote, The Personal Life of George Grote, compiled from family documents, private memoranda, and original letters to and from various friends (London 1873), pp. 21–2. Joseph Hamburger, ‘Grote, George (1794–1871)’, ODNB. According to Grote’s wife Harriet, ‘there was little difference in point of opinion’ between her husband and Mill. The Personal Life of George Grote, p. 22. John R. Gibbins, ‘George Grote (1794–1871)’, in Crimmins and Long (eds), Encyclopedia of Utilitarianism, forthcoming. George Grote, A History of Greece; from the earliest period to the close of the generation contemporary with Alexander the Great, 12 vols (London 1846–56). George Grote, Statement of the Question of Parliamentary Reform (London 1821), p. 18. When Grote later revised this pamphlet as Essentials of Parliamentary Reform (London 1831) he stressed the desirability of a gradual extension of the franchise and, following Mill, expressed the conviction that responsibility for the transition from aristocratic government to democracy ought to lie with the enlightened ‘middling classes’. I have addressed the issue of the chronology and character of the Mill–Bentham collaboration in ‘Bentham’s Political Radicalism Reexamined’, Journal of the History of Ideas, 55/2 (1994), pp. 259–81. Bentham to Koe (1 Jan. 1818), Corr. ix.3. See James Mill on Education, ed. W. H. Burston (Cambridge 1969); Mill’s ‘Southey’s Book of the Church’, Westminster Review, iii (5 Jan. 1825), pp. 167–212; ‘Ecclesiastical Establishments’, ibid. v (10 Apr. 1826), pp. 504–48; and ‘The Church, and Its Reform’, The London Review, i (July 1835), pp. 257–95. For example, Joseph Hamburger, James Mill and the Art of Revolution (New Haven 1963); Lively and Rees (eds), ULP, introduction; Fenn, James Mill’s Political Thought, Ch. IV; and James Mill: Political writings, ed. Terence Ball (Cambridge 1992), introduction. Macaulay responded to the revised version of the essay printed in Mill’s Essays on Government, Jurisprudence, Liberty of the Press, and Law of Nations, written for the supplement to the Encyclopædia Britannica (London [1825]), Lively and Rees (eds), Utilitarian Logic and Politics, pp. 53–95. ULP, p. 88. Bentham called this ‘the logic of the will’. IPML, p. 8. ULP, p. 69. Bowr. iii. 526–7. ULP, p. 56. Ibid. p. 55. Ibid. p. 61. Ibid. p. 79. Ibid. pp. 79–82.

Notes 46 47 48

49 50 51 52 53

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Ibid. p. 94. Mill, Autobiography, Collected Works, i. 107. Wendell Robert Carr defends Mill in ‘James Mill’s Politics Reconsidered: Parliamentary reform and the triumph of truth’, The Historical Journal, 14/3 (1971), pp. 553–80, and notes John Mill’s interpretation (p. 555) but without considering the younger Mill’s further criticisms. ULP, p. 88. Ibid. p. 88. Ibid. pp. 88–90. Ibid. p. 94. Leveson Smith, Remarks upon an Essay on Government by James Mill, Esq. Published in the Supplement to the Encyclopædia Britannica (London 1827). Athenæum, vol. 1, no. 34 (18 June 1828), pp. 527–8. See, for example, Joseph Hamburger, ‘James Mill on Universal Suffrage and the Middle Class’, Journal of Politics, 24 (1962), pp. 167–90; the exchange between William Thomas and Wendell Robert Carr, The Historical Journal, 12/2 (1969), pp. 249–84, and 14/3 (1971), pp. 553–80; and Fenn, James Mill’s Political Thought, Ch. IV. See Mary Peter Mack, ‘The Fabians and Utilitarianism’, Journal of the History of Ideas, 16/1 (1955), pp. 76–88; and Mark J. Kaswan, ‘Happiness, Politics and the Co-operative Principles’, Journal of Co-operative Studies, 40/1 (2007), pp. 30–40. For Thompson’s political thought see Mark J. Kaswan, The Politics of Happiness and the Practice of Democracy, unpublished Ph.D thesis (University of California, Los Angeles 2010). Bentham to Thompson (7 Apr. 1819), Corr. ix. 329–30. Bentham to Thompson (29 Sep. 1819), ibid. pp. 355–6. Mill, Autobiography, Collected Works, i. 128–9; and ‘Cooperation: Closing speech’ (1825), ibid. xxvi. 314. William Thompson, An Inquiry into the Principles of the Distribution of Wealth Most Conducive to Human Happiness (1824; rept. New York 1963). Richard K. P. Pankhurst, William Thompson (1775–1833): Britain’s pioneer socialist, feminist, and co-operator (London 1954), pp. 35–8. The book was born out of conversations with Anna Doyle Wheeler, a well-known advocate of women’s rights, who Thompson may have met through Bentham. See ‘Introductory Letter to Mrs. Wheeler’ in William Thompson, Appeal of One Half of the Human Race Women against the Pretensions of the Other Half Men, to retain them in political, and thence civil and domestic slavery, in reply to a paragraph of Mr. Mill’s celebrated “Article on Government” ’ (1825; rept. New York 1970), pp. iii–xiv. Pankhurst, William Thompson, p. 94. UC xxxiv. 302–3 (23 Apr. 1824), headed ‘J.B. versus Mill’, and beginning ‘Written on reading Mills article [on] Government’. As Fred Rosen points out, Mill approached this issue based on a priori notions of maturity and responsibility, while Bentham’s approach was explicitly empirical and would not have been vulnerable to this aspect of Macaulay’s critique. Jeremy Bentham and Representative Democracy: A study of ‘The Constitutional Code’ (Oxford 1983), p. 169. UC xxxiv. 303.

190 68 69

70 71 72 73 74 75 76 77

78

79 80 81

82 83

84

85 86 87 88 89 90 91 92 93

94 95

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Thompson, Appeal of One Half of the Human Race, p. viii. Thompson, ibid. pp. viii–ix, cites Dumont as ‘another retrograde disciple of the great master of Legislation’, guilty of misapplying the utility principle ‘to the degradation of one half of the human race’. Ibid. p. ix. Ibid. p. 5. Ibid. p. 7. Ibid. pp. 54–6. Ibid. pp. 27–30. Ibid. pp. 44–5. Ibid. p. 12. George L. Nesbitt, Benthamite Reviewing: The first twelve years of the Westminster Review, 1824–1836 (New York 1966), pp. 4–5. For example, in a substantial review of the Rationale of Judicial Evidence, Empson remarked ‘we are bound to state, with equal sincerity, that we should have thought it impossible for any book upon a subject, with which we had fancied ourselves well acquainted, and with which, in our idiomatic form of it at least, we had been long conversant, to have given us so many new ideas, and to have so completely changed our old ones.’ Edinburgh Review, xlviii (1828), p. 520. Bentham to an unknown correspondent (Sep.–mid-Nov.(?) 1823), Corr. xi. 286. Neal, Principles of Legislation, pp. 23–4. Mill’s attack on the Edinburgh is headed ‘Periodical Literature’, Westminster Review, i (1824), pp. 206–49 (see also pp. 505–41); Bingham’s review of the Quarterly is at pp. 250–68. Thomas, The Philosophic Radicals, p. 135. William Thomas, ‘Macaulay, Thomas Babington, Baron Macaulay (1800–1859)’, ODNB. Stefan Collini, Donald Winch and John Burrow, That Noble Science of Politics: A study in nineteenth-century intellectual history (Cambridge 1983), p. 110. Duncan Forbes, ‘James Mill and India’, Cambridge Journal, 5 (1951–2), p. 23. ULP, pp. 124–5. ‘Bentham’, Collected Works, x. 92–4. ULP, p. 108. Ibid. pp. 125–6. Ibid. p. 117. Ibid. p. 119. Ibid. p. 190. For another example see [J. A. Roebuck], ‘Bentham’s Rationale of Judicial Evidence’, Westminster Review, ix (1828), pp. 218–19. ULP, pp. 89–90. Sir James Mackintosh, ‘Jeremy Bentham’, Dissertation on the Progress of Ethical Philosophy, chiefly during the seventeenth and eighteenth centuries, with a preface by William Whewell (1830; 3rd edn, Edinburgh 1862), pp. 236–64. James Mill, A Fragment on Mackintosh (London 1835); see the extracts in James Mill: Political writings, ed. Ball, pp. 304–14. Ibid. p. 309. Ibid. p. 306.

Notes 99

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109 110

111 112 113

114 115 116 117 118 119 120 121 122 123 124

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Hume goes on to say that this is a statement true in politics, if factually false as a generalization about human nature. See ‘Of the Independency of Parliament’, in Essays: Moral, political, and literary, rev. edn, ed. Eugene F. Miller (Indianapolis 1985), pp. 42–3. James Mill: Political writings, p. 307. A note addressed to both men by Bentham suggests that Thompson and Bowring were in some sense collaborators on the project. AU (LV), Deon. p. 302n. The ‘Article on Utilitarianism’ mss. (UC xiv. 314–411) also contain jottings in Bowring’s hand, suggesting he contributed to the response to Macaulay, though Thompson evidently took the lead. L. G. Johnson, General T. Perronet Thompson 1783–1869: His military, literary and political campaigns (London 1957), p. 154. Michael J. Turner, ‘Thompson, Thomas Perronet (1783–1869)’, ODNB. Thompson was asked by Bentham to translate ‘Leading Principles of a Constitutional Code’ into Arabic, and though the work was never completed he was sufficiently impressed by Thompson’s suggestions for improvements to invite him to Q. S. P. (25 Nov. 1823). Johnson, General T. Perronet Thompson, pp. 117–18. ‘On the Instruments of Exchange’, Westminster Review, i (1824), pp. 171–205. See Thompson to Bentham (6 Apr. 1830 and 21 July 1830), and Bentham to George Bentham (18 May 1830), Corr. xiii. T. Perronet Thompson, A Catechism on the Corn Laws: With a list of fallacies and the answers (London 1827). Thompson’s most well-known publications include Catholic State Wagon . . . From the Westminster Review, etc. An allegory followed by arguments for Catholic emancipation (London 1829) and Article on Free Trade, from the Westminster Review (London 1830). Quoted in Deon. Editorial Introduction, p. xxxiii. Examiner (28 June 1829), p. 402. The source for this information must have been either Bowring or Thompson himself, since the Examiner quotes extensively from the opening sections of Thompson’s response. See ULP, pp. 133–7. Ibid. pp. 153–4. Examiner (5 July 1829), p. 418, emphasis added. Thompson to Bentham (10 July 1829) and Bentham to Thompson (11 July 1829), Corr. xiii. Bentham mentions that his letter was reported in The Standard and the Morning Chronicle, and reprinted in the Morning Herald. Bentham to O’Connell (16 Oct. 1829), Corr. xiii. ULP, pp. 133–5. Ibid. p. 107. Ibid. p. 135. Ibid. Ibid. p. 136. Ibid. pp. 136, 137. Ibid. p. 140. Ibid. p. 141. Ibid. p. 171; see also p. 141. Ibid. p. 170.

192 125 126 127 128 129 130 131 132

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136 137 138 139

140 141

142 143 144 145

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Ibid. p. 171. Ibid. p. 173. Ibid. p. 172. Ibid. p. 175. Ibid. p. 172. ‘Principles of International Law’, Bowr. ii. 538. Deon. p. 123. Method and Leading Features of an Institute of Political Economy (written 1801–4), Stark, iii. 311. FPP, p. 71. See IPML, pp. 283–5, where Bentham discusses ‘duty to others’ and the motives of ‘sympathy’ and ‘benevolence’. See Oren Ben-Dor, Constitutional Limits and the Public Sphere (Oxford 2000), pp. 226–30. Limits of the Penal Branch of Jurisprudence (CW ), p. 233. See ‘Indirect Means of Preventing Offences’, Bowr. i. 533–80. ULP, p. 175. Ibid. pp. 175–6. John Mill also believed the principle of utility was consistent with the ‘golden rule’, but it did not follow that religious belief was necessary for morality. Utilitarianism, Collected Works, x. 218. UC v. 1–32, and xcvi. 263–34. Church-of-Englandism and its Cathechism Examined (London 1818); An Analysis of the Influence of Natural Religion on the Temporal Happiness of Mankind. By Philip Beauchamp [ed. George Grote] (London 1822); and Not Paul, but Jesus. By Gamaliel Smith (London 1823) – all omitted from the Bowring edition. IPML, p. 33. UC lxx. 25 (c. 1776). ULP, p. 142. Both the Caledonian Mercury and the New Monthly commented on the success of the Edinburgh in the debate. Nesbitt, Benthamite Reviewing, pp. 141–2. William Hazlitt, ‘The New School of Reform: A dialogue between a rationalist and a sentimentalist’ (1826), in The Complete Works of William Hazlitt, xii. 184. Hazlitt’s critique of utilitarianism as a mechanical doctrine advanced by the ‘Panoptic and Chrestomathic School of reformers and reconstructors’ dates from ‘On People of Sense’, The London Magazine, April 1821, ibid. xii. 242–52. His caricature of utilitarianism is only rivalled by his depiction of Bentham as the head of a zealous sect of ‘philosophical projectors’ in thrall to the ‘Bentham machine’ . . . churning out inventions in jurisprudence, morals, logic, political economy and constitutions, ‘with as little variation as a barrel-organ plays “God save the King” or “Rule Britannia” ’. ‘Sects and Parties’, The Atlas, 2 Aug. 1829, ibid. p. 266. See also ‘The Utilitarian Controversy: The Edinburgh and Westminster Reviews’, The Atlas, 19 July 1829, ibid. xx. 255–60. For John Mill’s concise critique of the deductive method employed in ‘On Government’ see A System of Logic (1843), Collected Works, viii. 887–94. Mill, Autobiography, ibid. i. 165.

Notes

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2 3 4

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AU (LV), pp. 283–318 and AU (SV), pp. 319–28. Bowring’s edition of the article is an unsatisfactory composite based on selections from the two versions. Deontology or, the science of morality . . . from the MSS. of Jeremy Bentham, 2 vols, ed. J. Bowring (London 1834), i. 287–332. AU (LV), p. 289, emphasis added. ULP, pp. 137–40. See Frederick Rosen, Classical Utilitarianism from Hume to Mill (London and New York 2003), pp. 172–4. AU (SV), p. 322 and AU (LV), pp. 300–1. Bentham frequently expressed disdain for the stultifying effect of Plato, the ‘spoilt child of Socrates’, and Aristotle on the development of metaphysics and logic. See Chrest. pp. 237–9n, 259–60; Rationale of Judicial Evidence, Bowr. vi. 239–40 (where Aristotelian logic, ‘in its character of a substitute to experimental physics’, is described as ‘nonsense physics’); and Deon. pp. 135–6. Bentham employed the Aristotelian logic he learnt at Queen’s College as the critical counterfoil to his disquisition on ‘Logic’. Bowr. viii. 215–74. Ever critical of those who held opinions based only on the testimony of so-called authorities, FG, p. 415 and note, Bentham wrote: ‘The end I mean is Happiness: . . . Let this be taken for a truth upon the authority of Aristotle: I mean by those, who like the authority of Aristotle better than that of their own experience.’ He rejected the works of Cicero as ‘a heap of nonsense’ early in his career (UC xxvii. 34); see also the exchange of letters between the young Bentham and his father on the subject of his translation of Cicero’s Tusculanæ disputationes in Corr. i. 34–47; and AU (LV), p. 300. For Bentham’s comments on Cicero’s view that ‘pain is no evil’ see Chrest. p. 180n; also alluded to in Comm., p. 19, and ‘Hume’s Virtues’, Deon. p. 351. Macaulay held that the utilitarians were attempting to revive the ‘worst parts’ of ‘that shallow dogmatist, Epicurus’. ULP, p. 222. Bentham was not averse to styling himself an Epicurean. See, for example, Bentham to de Mora (22 Sep. 1820), Corr. x. 83. Bentham quoted from Horace’s Satiræ, Epistulæ, Ars poetica and Sermones in A Comment, Theory of Legislation, ‘Observations d’un Anglois sur un Écrit Intitulé Arrêt é de la Noblesse de Bretagne’ (1788), RRR, Writings on the Poor Laws, and Deontology, and on many occasions in his correspondence (see the respective indexes). Theory of Legislation, i. 17. Epicurus’s view that ‘living well’ meant living prudently and in accordance with the pleasures of the mind, free from the distraction of the vain desires, is an important part of Rosen’s argument that Bentham’s understanding of the value of different sorts of pleasures is much like John Mill’s. Classical Utilitarianism from Hume to Mill, Ch. 10; see also Ch. 1. AU (SV), p. 321. It is the connection between utility and justice in this statement that is stressed by Rosen as lying at the core of the utilitarian tradition. Classical Utilitarianism from Hume to Mill, p. 15. AU (SV), pp. 321, 299.

194 11

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15 16 17 18 19 20

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22

23

24

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26 27 28 29

Notes

Ibid. p. 316. In Deon. p. 188, this is rendered as ‘Hurtful is the pleasure which is bought by pain.’ AU (LV), p. 316. Ibid. p. 301. Bentham recalled finding the ‘neutral’ ideas of ‘purity’ and ‘impurity’ in his reading of the famous grammarian William Lilly (1468?–1522), and then installed these ideas in his ‘memoriter verses’ written for IPML, p. 38n. AU (LV), p. 317. However, he advanced a different view in a short Latin declamation at Oxford on the theme of Horace’s maxim, in which he vilified the ‘false pleasures’ of the voluptuary, adulterer, glutton, gambler, miser and drunkard. Bentham to Jeremiah Bentham (27 June 1761), Corr. i. 47–9. AU (SV), pp. 321–2. Ibid. p. 322n. Ibid. p. 322 (echoing Hume; see Ch. 3, p. 129 below). Ibid. AU (LV), p. 290. For Hutcheson’s mathematical speculations see An Inquiry into the Original of our Ideas of Beauty and Virtue in Two Treatises, 3rd edn, ed. Wolfgang Leidhold (1729; Indianapolis 2004), pp. 128–31. Gay’s dissertation is prefi xed to William King’s celebrated Essay on the Origin of Evil, trans. E. Law (London 1731), and subsequent editions. Hutcheson’s and Gay’s contributions to the utilitarian tradition are discussed in my ‘Utility and Religion’, in Aaron Garrett (ed.), Routledge Handbook of Eighteenth-Century Philosophy (London and New York), forthcoming. On the similarities in the thought of Hobbes and Bentham see my ‘Hobbes and Bentham: An issue of influence’, Journal of the History of Ideas, 63/4 (2002), pp. 677–96. AU (LV), p. 298. Bentham primarily thought of Locke as an ‘observer’ and ‘discoverer’ in ‘the region of the mind’ (‘the field of Psychology’). Chrest. pp. 167, 323. For the influence of Locke on Bentham’s theory of language and the pivotal role this played in his metaphysics and in the development of his moral and legal thought see Ross Harrison, Bentham (London and New York 1983), pp. 49–66. John Locke, An Essay Concerning Human Understanding, ed. Peter H. Nidditch (1690; Oxford 1975), p. 351. AU (LV), p. 298. See An Essay Concerning Human Understanding, p. 249. Bentham referred to Locke’s use of the term ‘uneasiness’ in his pamphlet ‘Defence of Economy against the Right Honourable Edmund Burke’, commenting that Locke ‘saw but half his subject (for happily neither is pleasure altogether without her influence)’. OAM, pp. 44–5. The point is elaborated in Deon. pp. 133–4. Comm., p. 73. For Blackstone’s paraphrase of Locke (Essay Concerning Human Understanding, Bk. II, Ch. XXI, §29) see Commentaries on the Laws of England, 4 vols (1765–9; facs. edn, Chicago and London 1979), i. 56. Comm., pp. 97, 347. AU (LV), p. 298. An Essay Concerning Human Understanding, pp. 549–50. AU (LV), pp. 298, 315. Locke’s theory of property is explained in the Second Treatise of Government (1690), Ch. V.

Notes 30 31 32

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AU (LV), p. 298. Ibid. pp. 315–16. The earliest extant mss. on Blackstone date from c. 1773, and the latest from 1830. [William Empson], ‘Bentham’s Rationale of Evidence’, Edinburgh Review, xlviii (1828), p. 485. UC lxix. 102. Comm., p. 45. David Hartley, Observations on Man, his frame, his duty and his expectations, 2 vols (1749; facs. edn, Gainesville, Fla. 1966), i, Preface, p.v. IPML, p. 119n. Hartley’s associationism also influenced Priestley, and James Mill borrowed generously from the Observations on Man in Analysis of the Phenomena of the Human Mind, 2 vols (London 1829). AU (SV), p. 324. Bentham read the Observations in Priestley’s edn of Hartley’s Theory of the Mind, on the Principle of the Association of Ideas; with essays relating to the subject of it (London 1775). AU (SV), p. 324 and AU (LV), p. 291; Hartley, Observations on Man, ii, 418–99. IPML, Ch. V, and ‘Table of the Springs of Action’, Deon. pp. 79–86. AU (SV), p. 324. Ibid. p. 325. For example, Bentham to Samuel Bentham (25–6 Sep. 1775), Corr. i. 261; Goderoi (?) (early Oct. 1775), ibid. p. 282; and Chastellux (Spring 1778), ibid. ii. 121. Bowr. x. 54. Bentham to Dumont (29 Nov. 1821), Corr. x. 443. AU (LV), p. 290. De L’esprit: Or essays on the mind and its several faculties (1758; trans. 1810; repr. New York 1970), pp. 63, 135. Ibid. p. 120. A Treatise on Man: His intellectual faculties and his education [De L’homme, 1777], 2 vols, trans. W. Hooper (London 1810), i. 144, 196. UC xxxii. 158 (mss. related to writings on the Civil Code, ca, 1790). Priestley’s Experiments and Observations on Different Kinds of Air (London 1774) is dedicated to Shelburne. Remarks on Some Paragraphs in the Fourth Volume of Dr. Blackstone’s Commentaries on the Laws of England, relating to the Dissenters (London 1769). AU (LV), p. 292. Priestley’s essay on government was published early enough in 1768 to be seen by Bentham, as he reports. AU (SV), pp. 325–6. AU (LV), p. 291. Ibid. p. 292. Bentham to Felgueiras (5 June 1821), Corr. x. 345; Dumont (6 Sep. 1822), ibid. xi. 149; ‘A Table of the Springs of Action’, Deon. p. 52; and Bowr. x. 79–80, 561 (‘Logical Arrangements’, dated 29 June 1827). OAM, App. B, p. 352; see also pp. 349–50. See esp. The First Principles of Government and the Nature of Political, Civil and Religious Liberty (London 1768), pp. 18–19.

196 60 61

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For example, Nomography, App., Bowr. iii. 286. For the influence of Beccaria on Bentham see H. L. A. Hart, ‘Bentham and Beccaria’, in Essays on Bentham: Studies on jurisprudence and political theory (Oxford 1982), pp. 40–52; Harrison, Bentham, esp. Ch. V; and Rosen, Classical Utilitarianism from Hume to Mill, pp. 147–60. How the utilitarian formula travelled from Hutcheson via several hands to Beccaria, later to be taken up by Bentham, is the subject of Robert Shackleton’s ‘The Greatest Happiness of the Greatest Number: The history of Bentham’s phrase’, Studies on Voltaire and the Eighteenth Century, 90 (1972), pp. 1461–82. Bowr. x. 142. FG, p. 403n. Early on Bentham observed, the fewer the principles to which a science can be reduced the nearer it is to perfection, and that before Helvétius and Beccaria the principles of morality and censorial jurisprudence were many, a state of affairs that Beccaria in particular did much to rectify in the domain of ‘censorial jurisprudence’. UC lxix. 17. Cesare Beccaria, An Essay on Crimes and Punishments [Dei Delitti e delle Pene, 1764; first Eng. trans. 1767], trans. Henry Paolucci (Indianapolis 1963), p. 59. Ibid. p. 8. Ibid. p. 285. Beccaria wrote: ‘If geometry were applicable to the infinite and obscure combinations of human actions, there ought to be a corresponding scale of punishments, descending from the greatest to the least’. An Essay on Crimes and Punishments, p. 64. On Bentham’s engagement with Paley on religious, legal and political questions see my ‘Religion, Utility and Politics: Bentham versus Paley’, in James E. Crimmins (ed.), Religion, Secularization and Political Thought: Thomas Hobbes to J.S. Mill (London 1989), pp. 130–52. Also see T. P. Schofield, ‘A Comparison of the Moral Theories of William Paley and Jeremy Bentham’, The Bentham Newsletter, no. 11 (1987), pp. 4–22; and Rosen, Classical Utilitarianism from Hume to Mill, Ch. 8. Bentham to Dumont (6 Sep. 1822), Corr. xi. 149. AU (SV), p. 328. Ibid. p. 326. AU (LV), p. 293. Ibid. IPML, pp. 103–16. AU (SV), pp. 326–7. See also Chrest. p. 179. AU (SV), pp. 327, 294. See ‘Table of the Springs of Action’, Deon. pp. 79–86. AU (LV), pp. 293–4. AU (SV), p. 327. Ibid. ULP, pp. 137–40. Ibid. pp. 148–9. Ibid. p. 300. Ibid. p. 296. The term ‘felicity’ was another possibility, though it is not one Bentham seriously entertained: to the conjugates ‘felicitous’ and ‘felicitate’ could be added ‘felicitists’, ‘felicitism’ and ‘felicitarianism’, but the terminology could not be made to suggest ‘greatest’, unless it be by the cumbersome ‘felicitymaximizing’ or ‘felicity-maximization’ principle. Ibid. p. 302.

Notes 82 83 84 85 86 87 88

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105 106 107

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Ibid. pp. 296, 297. IPML, p. 11n. Bentham to Dumont (6 Sep. 1822), Corr. xi. 149–50. FG, p. 446n. Bentham to Peel (1 Apr. 1826), Corr. xii. 204. AU (LV), p. 309. Support for Bentham’s intuition that measure for measure pain counts for more than pleasure, can be found in the statistical analysis of risk-taking in relation to enhancing pleasure compared to the avoidance of pain in Daniel Kahneman and Amos Tversky, ‘Prospect Theory: An analysis of decision under risk’, Econometrica, 47/2 (1979), pp. 263–91. AU (LV), p. 310. Bentham gave a similar version of the mathematical demonstration in ‘On Retrenchment’ (written 2–9 June 1828), OAM, App. B, p. 352. Codification Proposal, LOW, p. 250. Also true of the preface intended for the 2nd edn of FG, pp. 508–9, and p. 513 where the ‘greatest happiness principle’ is described as the ‘End-indicating principle’. Deon., p. 64. FG, pp. 502–51. Ibid. p. 447n. Bentham went on to say that in a government dedicated to the greatest happiness of the greatest number, Wedderburn might still have held his various posts, ‘but he would not have been Attorney General with 15,000 l. a year, nor Chancellor, with a Peerage, with a veto upon all justice, with 25,000 l. a year, and with 500 sinecures at his disposal’. Ibid. p. 514. Ibid. p. 515. Schofield, Utility & Democracy, pp. 38–40. Bowr. v. 416. However, see ‘On Retrenchment’, where he wrote that the principle was ‘undenominated as yet’. OAM, App. B, p. 342. Paul Kelly makes the point in Utilitarianism and Distributive Justice: Jeremy Bentham and the civil law (Oxford 1990), Ch. 7, and elsewhere in this important revisionist text. Bentham’s mss. on the civil law were written variously in 1785–90 and 1828–31, and are located principally in UC xxix–xxxii. See ‘Principles of the Civil Code’, Theory of Legislation, i, 93–236. Bowr. iii. 441. Church-of-Englandism (CW ), App. IV. Theory of Legislation, i, 96. AU (LV), p. 308. Ibid. pp. 295–6. In ‘Equity Dispatch Court Proposal: containing a plan for the speedy and unexpensive termination of the suits now depending in equity courts’ (1830), Bentham reiterated that ‘next to the Greatest happiness principle’ the ‘non-disappointment principle’ was ‘the main foundation’ of the law of property, and ‘in the genealogy of human feelings’ it stood as ‘the immediate lineal descendant of that same parent principle’. Bowr. iii. 312. Theory of Legislation, i. 113. Ibid. p. 111. Ibid. pp. 95, 119. Bentham also included the rights to the protection of honour and ‘rights of receiving aid in case of need’. Kelly explains the grounding of

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such rights in Bentham’s theory in Utilitarianism and Distributive Justice, pp. 106–23. Stark, i. 329. Bowr. ii. 271. Ibid. ix. 127; see also FPP, pp. 157–8. ‘Leading Principles of a Constitutional Code, for any State’ (1823), Bowr. ii. 269. Theory of Legislation, i. 122–3; see also pp. 206–8. Ibid. p. 122. Supply without Burthern, Stark, i. 285n. Theory of Legislation, i. 124. Ibid. pp. 127–33. Bowr. iii. 229. See Bentham’s reaction to the attack on property rights following the French Revolution in Supply without Burthen, Stark, i. 304–5. For a further application of the principle – in judicial adjudication between competing claims to property, involving consideration of first order and second order evil from disappointment – see ‘On Retrenchment’, OAM, App. B, pp. 353–5. On the distinction between ‘primary mischief’ and ‘secondary mischief’ see IPML, p. 143, and Theory of Legislation, i. 48–54.

Chapter 3 1

2

3

4 5

David Hume, Enquiry Concerning the Principles of Morals (1751), in Enquiry Concerning Human Understanding and Concerning the Principles of Morals, ed. L. A. Selby-Bigge, 2nd edn (1748, 1751; Oxford 1902), pp. 212–32. Henceforth Enquiry. ‘Of Miracles’, Enquiry Concerning Human Understanding, The Natural History of Religion (1757), and Dialogues Concerning Natural Religion (1779). On the similarities between these writings and the argumentation of Bentham’s Analysis of the Influence of Natural Religion and Not Paul, but Jesus see my Secular Utilitarianism: Social science and the critique of religion in the thought of Jeremy Bentham (Oxford 1990), Chs. 7–8. Bentham read The Life of David Hume, Esq., written by himself (London 1777), and recommended it to others. Bentham to Samuel Bentham (17 Mar. and 12 May 1777), Corr. ii. 38, 51. Political Tactics (CW ), p. 33. For example, Bentham acknowledged Hume as ‘that penetrating and acute metaphysician whose works lie so much out of the beaten track of Academic reading’, but added ‘I would not wish to send the Reader’ to any volume of Hume’s Treatise but the third. As to the two fi rst, he was inclined ‘to join with those who are of the opinion that they might, without any great loss to the science of Human Nature, be dispensed with’. Bentham even thought the same could be said ‘of a considerable part’ of Bk. III of the Treatise. FG, p. 440n.

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For this view see Douglas G. Long, ‘ “Utility” and the “Utility Principle”: Hume, Smith, Bentham, Mill’, Utilitas, 2/1 (1990), p. 21. See Quentin Skinner, ‘Meaning and Understanding in the History of Ideas’, History and Theory, 8 (1969), pp. 3–53. At the turn of the twentieth century historians of political thought, such as Stephen, Albee and Halévy, tended to underline how very similar Bentham’s moral theory was to Hume’s, while noting on occasion the subtle ways in which Hume’s moral philosophy was both more sophisticated and not utilitarian. Leslie Stephen, The English Utilitarians, 3 vols (1900; repr. London 1950); Ernest Albee, A History of English Utilitarianism (1902; repr. Bristol 1990); and Elie Halévy, The Growth of Philosophic Radicalism (1904; Clifton, NJ 1972). Aryeh Botwinick, ‘A Case for Hume’s Nonutilitarianism’, Journal of the History of Philosophy, 15/4 (1977), pp. 423–36. For the most part, historians of classical utilitarianism have conducted the examination of the similarities between Hume and Bentham. Hume scholars have shown little interest in the project. So, for example, Bentham is not mentioned in any of the essays in David Fate Norton and Jacqueline Taylor (eds), The Cambridge Companion to Hume, 2nd edn (Cambridge 2009). Botwinick, ‘A Case for Hume’s Nonutilitarianism’, pp. 424–5; see pp. 434–5 for a summation of the argument. Gerald Postema, Bentham and the Common Law Tradition (1986; rev. edn Oxford 1989), p. x; see esp. Chs. 3 and 5. In Postema’s account of Hume ‘ justice is the product of redirected self-interest’, which proceeds much like Gauthier’s notion of ‘mutual expected advantage’ as the basis for a society’s rules and conventions. The rules of justice are there to minimize and adjudicate conflicts of interests that arise between individuals related to property and its exchange. Utility (‘mutual expected advantage’) attaches only to the extant rules and is not an external principle to which appeal can be made to resolve conflicts. See David Gauthier, ‘David Hume, Contractarian’, The Philosophical Review, 88 (1979), pp. 3–38. Postema, Bentham and the Common Law Tradition, p. 82, emphasis added. Utilitarianism and Distributive Justice, pp. 147–90. Ibid. esp. pp. 71–103. Paul Kelly, ‘Hume’, in David Boucher and Paul Kelly (eds), Political Thinkers: From Socrates to the present, 2nd edn (Oxford 2009), p. 241. Rosen, Classical Utilitarianism from Hume to Mill, p. 54. Ibid. pp. 48–9. Ibid. p. 57. Ibid. p. 54. Elizabeth Ashford, ‘Utilitarianism with a Humean Face’, Hume Studies, 31/1 (2005), pp. 63–92. Ibid. pp. 70–5. Ashford quotes Parliamentary Candidate’s Proposed Declaration of Principles: Or say, a test proposed for parliamentary candidates (London 1831), p. 7. An earlier version is in Code, p. 136, under the heading ‘Legislator’s Inaugural Declaration’. Enquiry, p. 279. See Ashford, ‘Utilitarianism with a Humean Face’, p. 87.

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Enquiry, p. 305. ‘Hume’s Virtues’, Deon. p. 350. UC xiv. 297–301, 303–5 (27 June 1828), published for the first time as ‘Hume’s Virtues’, in Deon. pp. 345–63. ‘Hume censurable not for having enter’d into Metaphysics but for having lost his way.’ UC lxix. 152. FG, p. 440n. AU (LV), p. 290. AU (SV), pp. 322–4. Ibid. p. 322. Ibid. pp. 322–3. Ibid. p. 323. Ibid. p. 324. David Hume, A Treatise of Human Nature (3 vols, 1739–40), ed. L. A. Selby-Bigge (Oxford 1896), p. 477. Henceforth Treatise. Ibid. p. 478. Ibid. p. 479. FG, p. 440n. Stephen Darwall, ‘History of Modern Ethics: Bentham Lecture 1’, www.la.utexas. edu/~pdl/histeth.lec29.html (accessed 11 June 2002). FG, p. 440n. Enquiry, p. 278. Ibid. p. 280. Ibid. p. 281, emphasis added. John Brown, Essays on the Characteristics of the Earl of Shaftesbury Essays, 2nd edn (London 1752), pp. 164–5. Enquiry, p. 298. Ibid. p. 300. Treatise, p. 578, emphasis added. Enquiry, p. 224. Treatise, p. 618. Ibid. p. 481. Enquiry, p. 229 and note. Ibid. pp. 272, 285–6. The phrase is found in ibid. p. 203. AU (SV), p. 323. Enquiry, p. 289. Treatise, pp. 477–84, ‘Of the Origin of the Natural Virtues and Vices’. Enquiry, pp. 181–2. Ibid. pp. 303–4. See the summary account in David Fate Norton, ‘The Foundations of Morality in Hume’s Treatise’, in Norton and Taylor (eds), The Cambridge Companion to Hume, pp. 291–2. Treatise, p. 578. Ibid. pp. 577–8. Enquiry, p. 307. Ibid. pp. 201–3.

Notes 65 66 67 68 69 70 71 72 73 74 75 76 77 78

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Ibid. p. 176; ‘Hume’s Virtues’, Deon. pp. 350–2. ‘Ibid. p. 353. Enquiry, pp. 238, 242, 243. Discussed in ‘Hume’s Virtues’, Deon. pp. 357–63. Ibid. p. 345. Deon. p. 180. This is Rosen’s position in Classical Utilitarianism from Hume to Mill, p. 56. Treatise, pp. 480–3. Enquiry, p. 183. Ibid. pp. 183–4. Ibid. p. 185. Ibid. pp. 188, 192. Ibid. pp. 203–4. Bentham gave as an example Godwin’s subjective approach to ‘justice’ (AU (LV), p. 307), but granted their other differences, he seems not to have realized that Godwin took a similarly nominalist view of society as an aggregate of individuals, and subscribed to the view that justice, properly understood, was ‘coincident with utility’. See An Enquiry Concerning Political Justice, 2 vols (London 1793), i. 90, 121. AU (LV), p. 308. Kelly, Utilitarianism and Distributive Justice, pp. 140–1. Ibid. p. 173. Hence, in IPML, p. 120n, he writes of justice as ‘an imaginary instrument, employed to forward on certain occasions, and by certain means, the purposes of benevolence’. FG, p. 440n. See, for example, Treatise, pp. 577–8. Enquiry, p. 203. AU (SV), p. 323. Ibid. pp. 322–3. See also ‘On Retrenchment’, OAM, p. 351. Enquiry, p. 179. Ibid. p. 180. Hume was equally capable of declarations to the effect that the ‘sole trouble’ demanded by virtue ‘is that of just calculation, and a steady preference of the greater happiness’. Ibid. p. 279. Ibid. p. 218. Ibid. pp. 230–1. IPML, p. 12n. Ibid. introduction, p. lix. Ibid. p. 11. Ibid. p. 11n. Ibid. p. 13. Ibid. p. 38. Ibid. p. 74. Ibid. p. 158. See esp. IPML, Chs. XIII–XVI. Ibid. p. 159.

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Ibid. p. 293, emphasis added. See also Institute of Political Economy (Stark, iii. 311), quoted in Ch. 1, p.000 above. See Postema, Bentham and the Common Law Tradition, p. 167. AU (SV), p. 324. For Hume’s is/ought distinction see Treatise, p. 469. Chrest. p. 275n. See also A Commentary on Mr. Humphreys’ Real Property Code, Bowr. v. 389. See, for example, IPML, p. 298n. Bentham to Dumont (6 Sep. 1822), Corr. xi. 149. Enquiry, p. 180. David Hume, ‘That Politics May Be Reduced to a Science’, in Essays: Moral, political, and literary, p. 24. See also Enquiry, p. 90. ‘That Politics May Be Reduced to a Science’, p. 24. See also ‘Of National Characters’, pp. 197–215. J. J. C. Smart, ‘Extreme and Restricted Utilitarianism’, in Philippa Foot (ed.), Theories of Ethics (London 1967), p. 208, and ‘Utilitarianism and Justice’, Journal of Chinese Philosophy, 5 (1978), p. 288. Thesis XI in the Theses on Feuerbach (1845), first published in Frederick Engels, Ludwig Feuerbach and the End of Classical German Philosophy (Stuttgart 1888), App. AU (SV), p. 324. See Treatise, pp. 469, 581. As Hume explains in the Enquiry, pp. 286, 293, reason ‘instructs us in the several tendencies of actions’, but cannot on its own account for the ‘ultimate end of human actions’, which ‘recommend themselves entirely to the sentiments and affections of mankind, without any dependence on the intellectual faculties’. See also Treatise, p. 590. Ibid. p. 574. Ibid. p. 471. Enquiry, p. 293. Ibid. pp. 293–4. Ibid. p. 294. Bentham traced the appellative to Cicero, who used it to describe the Pythagoreans. AU (LV), pp. 301, 304–5. ‘A Table of the Springs of Action’, Deon. p. 24. AU (LV), pp. 304–5. ‘A Table of the Springs of Action’, Deon. p. 32. AU (LV), p. 314; see IPML, pp. 26–8n. In a note of 1819 (incorporated in the edition of IPML printed in Bowr. i. 8, and subsequent editions) Bentham named the adherents of certain forms of ‘the principle of sympathy and antipathy’: Shaftesbury, Hutcheson and Hume are listed as exponents of ‘moral sense’; James Beattie is an adherent of ‘common sense’; Richard Price is named as a proponent of ‘understanding’; Samuel Clarke speaks of the ‘fitness of things’; and William Wollaston extols ‘truth’ as the ultimate moral principle. ‘A Table of the Springs of Action’, Deon. p. 31, and AU (LV), p. 305. With ‘metaphorical truth’, writes Bentham, the ‘greatest happiness principle’ might say of the ipsedixit principle ‘Qui non sub me contra me – “he who is not under me is against me” ’, a sentiment the partisans of the greatest happiness principle must assert as a ‘literal truth’. Ibid. p. 312. Deon. pp. 26, 27. For the significant ways in which Hume’s moral philosophy differs from Hutcheson’s see James Moore, ‘Hutcheson and Hume’, in

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133 134 135 136 137

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M. A. Stewart and John P. Wright (eds), Hume and Hume’s Connexions (Edinburgh 1994), pp. 23–57, and Stephen Darwall, ‘Hume and the Invention of Utilitarianism’, ibid. p. 75, where it is pointed out that Hume’s account of the moral sentiments ‘rested entirely on considerations of natural goodness, none of which engaged the distinctively moral ideas’ advanced by Hutcheson, with Hume’s account appearing to be better suited to Bentham’s purpose since ‘it pointed the way to what Bentham could regard as a suitably independent, “external” rationale’. ‘A Table of the Springs of Action’, Deon. p. 84. Ibid. p. 201. Ibid. p. 203. Ibid. p. 204. A vital ingredient in Rosen’s analysis is the claim that Hume’s thinking underwent a significant development from the Treatise, where sympathy is the most important element of his moral philosophy, to the Enquiry in which utility and not sympathy is the ‘key principle’. He did not abandon sympathy, but it was relegated to a supporting role to utility. Classical Utilitarianism from Hume to Mill, p. 29. Ibid. p. 39. Enquiry, p. 226. ‘A Table of the Springs of Action’, Deon. p. 55. Ibid. p. 57. Mill’s reaction to the passages in IPML where Bentham dismissed principles adverse to utility changed over time and reflected the evolution of his attitude towards Bentham’s utilitarianism. In his obituary notice of Bentham he stated that the ‘real merit, in respect to the foundation of morals, consists in his having cleared it more thoroughly than any of his predecessors, from the rubbish of pretended natural law, natural justice, and the like, by which men were wont to consecrate as a rule of morality, whatever they felt inclined to approve of without knowing why’. Collected Works, xxiii. 471. But see also ‘Remarks on Bentham’s Philosophy’, ibid. x. 5, 6; ‘Bentham’, ibid. x. 85, 90–1; ‘Coleridge’, ibid. x. 120; and Whewell on Moral Philosophy, ibid. pp. 177–8 (quoting IPML, secs. 12–14 and note d, pp. 25–7) and pp. 178–201. ‘Bentham’, ibid. x. 80. Bentham scholars are likely to dispute Mill’s account of his deficiencies as a ‘metaphysician’. See, for example, Harrison, Bentham, Chs. II–III, Crimmins, Secular Utilitarianism, Ch. 1 and Schofield, Utility & Democracy, Ch. 1. However, Mill also wrote that it was Bentham’s ‘method’ that constituted his ‘revolution in philosophy’; it was not his opinions ‘but his method, that constituted the novelty and value of what he did’. He introduced ‘those habits of thought and modes of investigation which are essential to the idea of science’. Ibid. p. 83. Ibid. pp. 80–1.

Chapter 4 1

Richard Layard, ‘Greatest Good Can Be Found’, Guardian Weekly (18 Sep. 2009); see also Happiness: Lessons from a new science (London 2006).

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AU (SV), p. 320; see also Mill, Utilitarianism, in Collected Works, x. 244–5. AU (LV), p. 318. ‘Crit[ical] Jur[isprudence] Crim[inal]’, UC lxix. 17. UC lxix. 38. On this topic the reader can do no better than consult Rosen, Classical Utilitarianism from Hume to Mill, Ch. 13. I have learnt a good deal from the insights mapped out in this work, as will be apparent from the remainder of this chapter. IPML, pp. 38–9. Ibid. pp. 40, 173–4. Ibid. p. 40. David Braybrooke recasts the ‘felicific calculus’ in terms of a comparative census approach based on favourable statistical evidence relating how many people will be happier under one policy as opposed to another. See ‘Felicific Calculus’ in Crimmins and Long (eds), Encyclopedia of Utilitarianism, forthcoming. For example John Rawls, A Theory of Justice (Oxford 1972), p. 27. See, for example, C. L. Ten’s presentation of the case for punishing the innocent in Crime, Guilt, and Punishment: A philosophical introduction (New York 1987), pp. 13–37. Useful discussions of the issue are found in Rosen, Classical Utilitarianism from Hume to Mill, Ch. 12; and Kryster Bykvist, Utilitarianism: A guide for the perplexed (London 2010), Ch. 5. An Examination of Sir William Hamilton’s Philosophy (1865), in Collected Works, ix. 460n. Theory of Legislation, i. 144. I am indebted to Mark Kaswan’s unpublished Ph.D thesis for alerting me to this passage. The Politics of Happiness and the Practice of Democracy, p. 53. Gerald J. Postema, ‘Bentham’s Equality-Sensitive Utilitarianism’, Utilitas (1998), 10/2, pp. 144–58. Bowr. iii. 155–210. Ibid. p. 203. These rules are delineated in IPML, pp. 167–71; Rosen provides an analysis in Classical Utilitarianism from Hume to Mill, pp. 153–6. See also Hugo Bedau ‘Bentham’s Theory of Punishment: Origin and content’, Journal of Bentham Studies, 7 (2004), p. 7: http://www.ucl.ac.uk/Bentham-Project/journal (accessed 26 Nov. 2008); and Anthony J. Draper, ‘Punishment, Proportionality and the Economic Analysis of Crime’, Journal of Bentham Studies, 11 (2009): http://www.ucl. ac.uk/Bentham-Project/journal/ad_Punt_Prop_econ.pdf (accessed 30 Mar. 2010). William L. Twining, Theories of Evidence: Bentham and Wigmore (London 1985), pp. 42, 70. Also see Schofield, Utility & Democracy, pp. 119–31. J. R. Dinwiddy, ‘Adjudication under Bentham’s Pannomion’, Utilitas, 1/2 (1989), pp. 283–9. FG, p. 515. FG, p. 485. Code, p. 36. See, for example, Michel Foucault, Discipline and Punish: The birth of the prison, trans. A. Sheridan (1977; Harmondsworth 1985); and Michael Ignatieff, A Just

Notes

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Measure of Pain: The penitentiary in the industrial revolution 1750–1850 (New York 1978). Blamires provides important insights into the utilitarian objectives of the project in The French Revolution and the Creation of Benthamism, Chs. 1–2. For a succinct account of the architecture and objectives of the panopticon see Philip Schofield, Bentham: A guide for the perplexed (London 2009), pp. 72–9. UC clii. 332–3. The title-page of Panopticon; Or, the inspection-house (1791) announced Bentham’s intention that the idea was amenable to adoption in any institutional context requiring a high level of supervision, including schools, hospitals, factories and poor-houses. Foucault, Discipline and Punish, p. 208. Also see Foucault’s ‘The Eye of Power’, in Power/Knowledge: Selected interviews and other writings, 1972–1977, ed. C. Gordon (New York 1980). Foucault’s interpretation is convincingly dismissed in Semple, Bentham’s Prison, esp. pp. 321–3. Bowr. viii. 380. Ibid. iv. 46. Guyora Binder, ‘Punishment Theory: Moral or political?’, Buffalo Criminal Law Review, 5 (2002), p. 341. Ibid. pp. 341–2. Ibid. pp. 347–8. Ibid. p. 348. Ibid. p. 367. A version of secs. 2–3 of this chapter was presented at the John Stuart Mill Bicentennial Conference, hosted by the International Society for Utilitarian Studies at University College London, 3–5 April 2006. It also benefited from discussions held in the workshop on ‘J.S. Mill and Ethical Governance’ convened at the annual meetings of the Canadian Political Science Association, York University, 1–3 June 2006. Participants included Jonathan Riley, Dale Miller, Doug Long, Wendy Donner, Stephen Engelmann and Bruce Baum. I am particularly grateful to Miller and Riley for their helpful comments on an earlier draft, even while I must record that the latter does not share entirely my view of Mill. The best accounts are Rosen, Classical Utilitarianism from Hume to Mill, Ch.10; Tom Warke, ‘Multi-Dimensional Utility and the Index Number Problem: Jeremy Bentham, J. S. Mill, and qualitative hedonism’, Utilitas, vol. 12, no. 2 (2000), pp. 176–203; and Jonathan Riley, ‘Interpreting Mill’s Qualitative Hedonism’, The Philosophical Quarterly, vol. 53 (2003), pp. 412–18. Collected Works, x. 255. Ibid. pp. 256–7. Ibid. pp. 258–9. Mill goes on to say that other distinctions associated with ‘the aristocracies of colour, race, and sex’ will also in time pass into the ranks of ‘universally stigmatized injustice and tyranny’. This appears to be a reference to Mill’s distinction between higher and lower kinds of pleasure. Utilitarianism, Collected Works, x. 257. In a footnote to this observation, Mill responded to an objection raised by Herbert Spencer in Social Statics; Or the conditions essential to human happiness specified, and the first of them developed (London 1851), that the principle of ‘perfect impartiality between persons’ implies an anterior principle to the principle of utility – ‘that everybody has an equal right

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to happiness’ – and hence utility cannot be held to be in itself a sufficient guide to moral conduct. To this Mill replied that ‘equal amounts of happiness are equally desirable, whether felt by the same or by different persons’, and this is not a pre-supposition or prior premise of the principle of utility ‘but the very principle itself; for what is the principle of utility, if it be not that “happiness” and “desirable” are synonymous terms?’ In The Methods of Ethics (1874; 6th edn, London 1901), Bk. IV, Ch. III, sec. 3, Henry Sidgwick borrowed the phrasing of the dictum directly from Mill’s Utilitarianism, but his interpretation of it stands alongside his view that where the general happiness can be achieved through inegalitarian means the utilitarian is obliged to adopt inequality. The Rationale of Judicial Evidence, specially applied to English practice, 5 vols, ed. John Stuart Mill (1827), Bowr. vii. 334. Philip Schofield is responsible for locating this source, Utility & Democracy, pp. 83–4n. Mill, ‘Jeremy Bentham’s Rationale of Judicial Evidence’, in Collected Works, xxxiii. 3–92. Were it otherwise, we might be enticed into considering, not Bentham’s influence on Mill, but rather Mill’s influence on Bentham (or at least what we read as Bentham), an intriguing thought akin to pondering the influence of Aristotle on Plato during the years the former spent in the Academy – the latter suggested by Christopher Shields in a review of Lloyd P. Gerson, Aristotle and the Other Platonists (Ithaca 2005), Times Literary Supplement, 22 July 2005. Bowr. iii. 459. Collected Works, x. 257n. David Lieberman’s claim that ‘it is difficult to credit equality as an organizing value of Bentham’s democratic theory’, is hard to square with the equality provisions implicit in a properly organized democratic society. Certainly, Bentham valued the professionalism and expertise that would be required of government and public officials, but he placed enormous stress on the counter-balancing requirements of a broad franchise, equal political rights and the requirement that basic securities must be guaranteed to every individual, ‘high or low, rich or poor’. See ‘Bentham’s Democracy’, Oxford Journal of Legal Studies, 28/3 (2008), pp. 618–19. Bowr. ix. 107. There is a similar passage in Bentham’s mss. on legislation from the mid-1770s at UC c. 179: ‘What seems very frequently not to occur in these zealous promoters of the public good in the ardour of their zeal is that as a faggot is comprised of sticks, so is the public of individuals: that one individual is as large a portion of the public as another individual: and the happiness of the one as much a portion of the happiness of the public as is the happiness of the other.’ Bowr. ix. 108. Theory of Legislation, i. 96. Ibid. pp. 122–3. One of the most significant moves in this direction Bentham believed Parliament could undertake was to alter the law to permit female inheritance. On this and other proposals to alter the laws governing bequests see Kelly, Utilitarianism and Distributive Justice, pp. 191–7.

Notes 52 53

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Bowr. ii. 276. The equalizing tendencies implicit in the theory are discussed in Theory of Legislation, i. 103–9; and ‘Pannomial Fragments’, Bowr. iii. 228–30. FPP, p. 16; see also p. 142. The idea had been present in Bentham’s thoughts from his earliest writings on civil law, when he stated ‘The nearer the actual proportion [of wealth] approaches to equality, the greater will be the total mass of happiness’. Theory of Legislation, i. 104. Ibid. p. 123. Richard Wilkinson and Kate Pickett, The Spirit Level: Why more equal societies almost always do better (London 2009). All included in Stark vols. 1–3. Bowr. viii.369–439. The ‘Outline’ consists of extracts from the first four of the planned six books of ‘Pauper Management Improved’, a work Bentham never completed. See Writings on the Poor Laws, vol. 1 (CW ), Editorial Introduction, pp. xii–xiiin. On the relationship between Bentham’s theory of civil law and his writings on economic questions see Paul Kelly, ‘Utilitarianism and Distributive Justice: The civil law and the foundations of Bentham’s economic thought’, Utilitas, 1/1 (1989), pp. 62–81; and Michael Quinn, ‘A Failure to Reconcile the Irreconcilable? Security, subsistence and equality in Bentham’s writings on the civil code and on the poor laws’, History of Political Thought, 29/2 (2008), pp. 320–43. Stark, i. 224. Ibid. iii. 333; see also Bentham’s Defence of a Maximum, ibid. pp. 247–302. On Mill’s arguments for state intervention and their consistency with his theory of justice see Barry S. Clark and John E. Elliott, ‘John Stuart Mill’s Theory of Justice’, Review of Social Economy, lix, no. 4 (2001), pp. 467–90. ‘Vindication of the French Revolution of 1848’ (1849), in Collected Works, xx. 354. Ibid. ii. 199–200. Ibid. pp. 374–7. Examiner (12 Feb. 1832), ibid. xxiii. 410. Ibid. ii. 220. See also Mill to Gustave D’Eichthal (15 May 1829), ibid. xii. 34. Ibid. iii. 811. Ibid. xviii. 224. Ibid. x. 250–1. ‘Considérations d’un Anglois sur la Composition des États-Généraux y compris Réponses aux questions proposées aux Notables &c. 1788’, RRR, pp. 63–146. Schofield summarizes the assumptions which underpin political equality in this essay in Utility & Democracy, pp. 83–6, and it is his exposition I follow here. ‘Projet of a Constitutional Code for France’, RRR, p. 247. Considerations on Representative Government, in Collected Works, xix. 441–2. Ibid. pp. 443–5. Ibid. p. 445. Ibid. p. 446. Ibid. p. 447.

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Ibid. pp. 467, 449. Mill’s most detailed discussion of the merits of proportional representation is contained in Considerations, Ch. VII, pp. 448–66, but see also Thoughts, ibid. pp. 329–31. Considerations, ibid. pp. 470–2. Thomas Hare, Treatise on the Election of Representatives (London 1859). Thoughts, Collected Works, xix. 321–2. Ibid. p. 323. Mill explains the details of the scale at ibid. pp. 324–5; see also the discussion in Considerations, ibid. pp. 473–9. Thoughts, ibid. p. 325. Ibid. p. 323. Considerations, ibid. p. 476. Jonathan Riley presented this interpretation in a most illuminating paper on ‘Modern Democracy in the Spirit of Ancient Athens: Mill’s utilitarian theory of representative government’, at the workshop on ‘J.S. Mill and Ethical Governance’ convened at the annual meetings of the Canadian Political Science Association, York University, 1–3 June 2006. Later, in his Autobiography, Mill seemed to hesitate over the necessity of plural voting if a system of national education was put in place, but argued it would still be right in principle. Indeed, one of the benefits of national education would be to ‘overcome the strong feeling which exists against [plural voting]’. Collected Works, i. 262. Mill, ‘Bentham’, ibid. x. 107. It is a little disconcerting to find Mill changing tack two pages later to argue that Bentham ‘cleared from a thousand confusions and misconceptions, and pointed out with admirable skill the best means of promoting, one of the ideal qualities of a perfect government – identity of interest between the trustees and the community for whom they hold their power in trust’. Ibid. p. 109. Ibid. p. 108. Ibid. p. 109. Bowr. iii. 559. On Liberty, Collected Works, xviii. 277. Thoughts, ibid. xix. 329 (emphasis added). Considerations, ibid. p. 450 (emphasis added). Code, p. 136, quoted in Ch. 3, p. 000 above. This is Ashford’s error in ‘Utilitarianism with a Humean Face’, Hume Studies, 31/1 (2005), p. 81. Bowr. iii. 452. Code, p. 137. Frederick Rosen, ‘Epicureanism and Utilitarianism: A reply to Professor Lyons’, Utilitas, 18/2 (2006), p. 187; see also David Lyons, ‘Review of Rosen’s Classical Utilitarianism from Hume to Mill’, ibid. pp. 173–81. FPP, p. 319. Ibid. p. 320 and LOW, pp. 253–4n. FPP, p. 320.

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Adam Tomkins, Our Republican Constitution (Oxford and Portland, Or. 2005), p. 139. Discourse on the Origin and Foundations of Inequality among Men (1755), in JeanJacques Rousseau: The basic politics writings (Indianapolis 1987), p. 77. Philip Pettit, Republicanism: A theory of freedom and government (Oxford 1997), p. 52. Ibid. pp. 67–8. Securities against Misrule and other Constitutional Writings for Tripoli and Greece (CW ). ‘Nonsense upon Stilts, or Pandora’s Box Opened, or the French Declaration of Rights . . . laid open and exposed’, RRR, pp. 317–401. Bentham’s memorable denunciation is at p. 330: ‘Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts.’ For example, Bentham warned Rivadavia in April 1820 against the idea of establishing a monarchy in Buenos Aires and Chile, pointing out how much better off the ‘Anglo-Americans’ were without it. Corr. ix. 428–9. An exception is P. J. Kelly, ‘Classical Utilitarianism and the Concept of Freedom: A response to the republican critique’, Journal of Political Ideologies, 6/1 (2001), pp. 13–31, in which he defends the utilitarians against the charge that they expounded a narrow, negative view, of freedom. Bentham to Mordvinov (16? Aug. 1824), Corr. xii. 12. Bentham to Say (19 Oct. 1823), ibid. xi. 309. See esp. Bk. I, Chs. II and V. See the introduction to Caroline Robbins (ed.), Two English Republican Tracts: Plato Redivivus or, A dialogue concerning government (c. 1681) by Henry Neville; An Essay upon the Constitution of the Roman Government (c. 1699) by Walter Moyle (Cambridge 1969), pp. 42–7. An Agreement of the Free People of England. Tendered as a peace-offering to this distressed nation. By . . . prisoners in the Tower of London, May the 1. 1649 (London 1649). The Putney Debates: The debate on the franchise (29 Oct. 1647), in David Wootton (ed.), Divine Right and Democracy: An anthology of political writings in Stuart England (Indianapolis 2003), p. 290. Act for the Abolishing the Kingly Office in England and Ireland, and the Dominions thereunto Belonging 1649, ibid. p. 356. See Hans Blom, John Christian Laursen and Luisa Simonutti (eds), Monarchisms in the Age of Enlightenment: Liberty, patriotism, and the common good (Toronto 2007), pp. 8–10. Patrick Riley offers Fénelon as an example of an advocate of ‘republican monarchy’, ibid. Ch. 4. James Harrington, The Art of Lawgiving in Three Books (1659), in Wootton (ed.), Divine Right and Democracy, pp. 405, 406. Algernon Sidney, Discourses Concerning Government (1698), ibid. p. 426. Robbins (ed.), Two English Republican Tracts, introduction, pp. 10–12. Ibid. pp. 16–17.

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Caroline Robbins, The Eighteenth Century Commonwealthman (1959; repr. Indianapolis 2004), and the introduction to Two English Republican Tracts. Other writers of the age as dissimilar as Swift, in Dissensions between the Nobles and the Commons in Athens and Rome (London 1701), and Mandeville, in Free Thoughts on Religion, the Church, and National Happiness (London 1720), expressed the commonplace commitment to the idea that the key to political stability lay in a proper balance between Crown, nobility and people and the rule of law. Blackstone, Commentaries on the Laws of England, i. 51. Ibid. p. 142. Ibid. pp. 150–1. Bentham also tackled Jean-Louis de Lolme’s account in Constitution de l’Angleterre ou État du gouvernement anglais compare avec la forme républicaine et avec les autres monarchies de l’Europe (1771), which quickly became a standard work on the constitution, quoted in legislative debates on both sides of the Atlantic. De Lolme explained that the stability of English government is based on the ‘equilibrium’ between the executive power and the legislature, and the ‘remarkable liberty enjoyed by the English nation’, which he identified with personal security, was the result. Should the independence of the parts be compromised, then ‘the English government will be no more’. The Constitution of England, ed. David Lieberman (Indianapolis 2007), pp. 256, 318. As late as 1828 Bentham was still sufficiently exercised by Blackstone’s defence of English law and its institutions to resume his critical analysis, though he never brought the work to completion and it remains unpublished. UC xxx. 60–164; xxxi 42–229, 260–85; and xcvii. 213–14. FPP, p. 209. Ibid. p. 210. Ibid. p. 223. Ibid. pp. 224–5. An Estimate of the Manners and Principles of the Times, 2 vols (London 1757–8). Papers Relative to Codification and Public Instruction, in LOW, p. 158. Also see First Lines of a Proposed Code of Law for any Nation Compleat and Rationalized, ibid. p. 215, and OAM, p. 30. For an account of the early impact of Bentham’s ideas in the United States see the introduction to Crimmins and Spencer (eds), Utilitarians and their Critics in America, i. xxi–lii. Bentham to Smith (22 Dec. 1817), Corr. ix. 137. Bentham to Jackson (14 June 1830), Correspondence of Andrew Jackson, ed. John Spencer Bassett, 7 vols (Washington 1926–35), iv. 146. The merchant William Vaughan supplied Bentham with numerous works of this nature; see the exchange (23 May and 23 July 1817), Corr. ix. 11, 26–7. Richard Rush, with whom Bentham was on excellent terms, also contributed other volumes (3 Feb. 1824), as did Edward Livingston who sent Bentham several papers printed by order of the Senate and House of Representatives, ‘together with a number of other pamphlets relating to the Civil and Criminal Statistics and institutions of the several States’ (1 July 1830), ibid. xi. 344, and xiii. See, for example, Bentham to Hume (1 July 1828), ibid. xiii.

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Smith to Bentham (21 Jan. 1822), and Bentham to Rush (9 Oct. 1822), ibid. xi. 21 and 159. In UC xxi. 87–145 there is a ms. described by Bentham as ‘A Tabular Digest of the Constitutions of the Anglo-American United States’, dated Nov. 1818, the content taken largely from William Lughton Smith, A Comparative View of the Constitutions of the Several States with each other and with that of the United States (Philadelphia 1796). Corr. ix. 32n. It appears Bentham and John Adams Smith considered a joint publication on the subject. Bentham to Koe, 9 Aug. 1817, ibid. p. 32; and Plumer to Bentham (July 1820), ibid. x. 36. Bentham to Adams (7 June 1817), ibid. ix. 12–13, 18–19. LOW, p. 56n. Bentham to Bowring (30 Jan. 1827), Corr. xii. 293. Bowr. x. 584. Emancipate Your Colonies! Addressed to the National Convention of France, Ao 1793. Shewing the uselessness and mischievousness of distant dependencies to an European state (first published 1830), RRR, pp. 289–315; and Colonies, Commerce, and Constitutional Law (CW ), pp. 3–276. IPML, p. 309. It has been said Bentham ‘never acquired a deep understanding of the spirit of American politics, or indeed, a precise technical knowledge of the American political process’. D. P. Crook, ‘The United States in Bentham’s Thought’, in Parekh (ed.), Jeremy Bentham: Critical assessments, iv. 284. See also Chilton Williamson, ‘Bentham Looks at America’, ibid. pp. 287–93. The best source on the state and federal suffrage at this time is Alexander Keyssar, The Right to Vote: The contested history of democracy in the United States (New York 2000), pp. 16–17, 20, 29, and Tables A1 and A2, pp. 328–36. Edinburgh Review, xxxi (Dec. 1818), pp. 199–203. Bentham to Madison (30 Oct. 1811), Corr. viii. 182–215. The letter was sent via William Pinkney, US Minister to London 1807–11, and was accompanied by a letter of introduction from Brougham. LOW, Editorial Introduction, p. xiii. Madison to Bentham (8 May 1816), Corr. viii. 521–2. For Bentham’s attempts to find a codification champion in the United States see LOW, Editorial Introduction, pp. xii–xxiii. Bentham to Koe (19 Aug. 1816), Corr. viii. 550. Papers Relative to Codification and Public Instruction: Including correspondence with the Russian Emperor, and divers constituted authorities in the American United States (1817), principally a collection of letters to and from Bentham, dated between Oct. 1811 and July 1817. LOW, pp. 1–185. Ibid. pp. 38–9; see also Bentham to Burr (23 Feb. 1816), Corr. viii. 510. 5 Dec. 1816. LOW, Editorial Introduction, p. xv. The Bentham–Adams correspondence, together with a bibliography of the books and tracts Bentham gave or sent to Adams in 1817 and 1826, are detailed in my ‘From an “ultra democrat” to an “ultra aristocrat”: Bentham tracts in the Adams Collection, Quincy, Massachusetts’, The Book Collector (1994), pp. 229–55. Morning Chronicle, 25 Nov. 1817, reproduced in Corr. ix. 88–9, and LOW, pp. 323–4.

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Plumer’s son, William Plumer Jnr. to Bentham (5 Oct. 1818), Corr. ix. 285. LOW, Editorial Introduction, pp. xx–xxi. For Bentham’s influence on Livingston see the introduction to Crimmins and Spencer (eds), Utilitarians and their Critics in America, i. xxv–xxviii. Bentham appears to have written two letters to Jackson on 14 June 1830, with the second containing parts dated 10 Jan. 1830. Bowr. xi. 39–42; Corr. xiii. The letters were written in response to Jackson’s address on 8 Dec. 1829, and to accompany a copy of Anti-Senatica: An attack on the U.S. Senate, sent by Jeremy Bentham to Andrew Jackson, President of the United States, which Bentham based on a number of fragments written 1822–4 for the Constitutional Code. Anti-Senatica was first published by Charles Warren Everett in Smith College Studies in History, 9/4 (July 1926), pp. 209–67. Bowr. iv. 225–8. Bentham to Del Valle (19 Mar. 1827), Corr. xii. 330. Bowr. v. 344. Alexis de Tocqueville, Democracy in America: An annotated text, backgrounds, interpretations, ed. Isaac Kramnick (1835, 1840; New York and London 2007), p. 210. Ibid. ix. 9. Bentham had recommended this to the French National Assembly in 1790. Bowr. iv. 363. FG, p. 515. Ibid. p. 447. Bowr. iii. 437 and 63–4. Ibid. ix. 63. In 1790 it was estimated that 60–70 per cent of adult white males had the vote, and voter turnout increased from 27 per cent in 1824 to 56 per cent in 1828 to 78 per cent in 1840. Keyssar, The Right to Vote, pp. 23, 40. Initially, the practice of voting varied from state to state and even town to town. Oral voting conducted by roll call was more common in the south, while in Virginia voters signed their name on a ledger. By the mid-nineteenth century most states had legislated for a written ballot, but a neutral standard ballot wasn’t adopted until the end of the century. See Keyssar, The Right to Vote, p. 28. Bowr. iii. 494. Ibid. v. 503–4. See also SAM, p. 250. Bowr. iii. 437. Ibid. p. 562; see also Bentham to Carlile (10 Apr. 1820), Corr. ix. 418. Bowr. ix. 453; Corr. ix. 418. Westminster Review, vol. 1, no. 1 (Jan. 1824), p. 115. Bowr. viii. 547. Henry Steele Commager, ‘Democracy and the Tyranny of the Majority’, in Democracy in America, p. 832. For de Tocqueville’s explanation of the despotic demand for moral, intellectual and psychological conformity see ibid. vol. 1, Ch. XV. Ibid. pp. 212–13. Ibid. p. 208. Ibid. p. 213. See Mill’s review of vol. II of Democracy in America in the Edinburgh Review (Oct. 1840), Collected Work, xviii. 175–9.

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This was the view of previous generations of scholars. See, for example, Halévy, The Growth of Philosophic Radicalism, p. 4; Lively and Rees in ULP, p. 9; and Michael James, ‘Public Interest and Majority Rule in Bentham’s Democratic Theory’, Political Theory, 9/1 (1981), p. 49. The point is made and supported by Schofield, Utility & Democracy, Chs. 6–11, esp. Ch. 6. Schofield draws attention to a postscript to an aborted 2nd edn Plan of Parliamentary Reform, in which Bentham explains the frustrations that led him to ‘this final point’, but it does not unequivocally settle the matter. UC cxxviii. 256–7 (20 Apr. 1818), ibid. p. 247. UC cxxviii. 129 (18 Sep. 1809). See Hume, Bentham and Bureaucracy, p. 184. Review of Plan of Parliamentary Reform, Edinburgh Review, xxxi (Dec. 1818), p. 165. David Hume, ‘Of the Protestant Succession’ (1752), in Political Writings, ed. Stuart D. Warner and Donald W. Livingston (Indianapolis 1994), p. 150. Treatise, pp. 552–3. Bowr. ix. 144–5; FPP, p. 221. Bowr. iii. 451. FPP, p. 196. Bentham to Stanhope (11 Dec. 1829), Corr. xiii. FPP, p. 197. Johnson, General T. Perronet Thompson, p. 173. FPP, p. 219; Bowr. ix. 144–5. Ibid. p. 220.

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Exceptions include Fred Rosen, Bentham, Byron and Greece: Constitutionalism, nationalism, and early political thought (Oxford 1992), esp. pp. 60–8 and Schofield, Utility & Democracy, passim. Surprisingly, Ben-Dor spends little time on this topic in Constitutional Limits and the Public Sphere, a work devoted to Bentham’s ‘constitutionalism’. SAM, p. 193. David Starkey, Monarchy: England and her rulers from the Tudors to the Windsors (London 2007), p. 274. Examiner, 28 Mar., 4 and 11 Apr. 1813; see also Bentham to Mulford (21 Apr. 1813), Corr. viii. 316–18. He took pleasure in the idea that he, ‘the old radical’, was to be placed in the same line with ‘the servile poet and novelist’, Sir Walter Scott, and ‘the ultra servile sack guzzler’, Robert Southey. Bentham to Parr (17 Feb. 1823), ibid. xi. 209. ‘The Affairs of Others’: The diaries of Francis Place, p. 277. The editor of FPP states these essays were written between April and August 1822 (p. xv), but there is a passage in ‘Supreme Operative’ where Bentham indicates he was writing in August 1821 (pp. 166–7).

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A view shared by contemporary republicans. Limited monarchy, writes Tom Nairn in The Enchanted Glass: Britain and its monarchy (London 1988), p. 367, ‘expresses the genuine, inward nature of elite government – the national, antidemocratic populism of an inherently aristocratic power’. FG, pp. 440–1. Bentham also read François de Fénelon’s heroic epic, Les aventures de Télémaque, fils d’Ulysse (1699), which warns of the disastrous consequences of a king’s power when not properly instructed in the virtue of disinterested public service. Bowr. viii. 543. Ibid. x. 65–6. Ibid. p. 70. FG, p. 412. COMM, p. 122. UC cxlix. 5 (c. 1776). UC clxix. 119 (emphasis added). See Corr. ii. 418n. UC clxix. 79, Crimmins, Secular Utilitarianism, p. 315. This is the ‘dream’ in which Bentham imagined himself at the head of ‘the sect of the utilitarians’, possibly his first use of the term. 11 May 1791, Corr. iv. 290. Bowr. x, 260–1; and Corr. iv. 289n. March 1795, ibid. v. 121. Bowr. x. 42. Writings on the Poor Laws, vol. 2 (CW ), Editorial Introduction, p. cvii. Partizan’s article appeared in the Public Advertiser on 4 June 1789, and Bentham’s replies on 15–16 June, 3–4 July, 11 July 1789, Bowr. x. 207–11, 201–5 and 205–6, respectively. In a letter to Morellet Bentham explained that Partizan ‘served as a spark to set my tinder on fire’. Corr. iv. 76. UC xxv. 107 (1789). Unlike George III, Catherine promised a great deal in the way of law reform and other social improvements. Bentham was particularly impressed by the news of her attempt to overcome popular prejudice against inoculation by first trying it upon herself. Theory of Legislation, ii. 439. Bentham to Pitt (18 June 1789), Corr. iv. 74. Bentham to Morellet (18 June 1789), ibid. p. 76. Bentham to Samuel Bentham (13 Oct. 1804), ibid. vii. 284–7. In a letter to Lansdowne’s son (11 Jan. 1828), he stated, with typical retrospective bravado, that with this news ‘I fell upon “the best of kings” with redoubled vehemence’, and indicated that the beginnings of the imaginary war with George III are to be found in the real and ‘unprovoked war’ launched against Russia in 1789. Ibid. xii. 438, 437. Bentham to Samuel Bentham (13 Oct. 1804), ibid. vii. 285–6. Recalled by Bentham in the marginals for ‘A Table of the Springs of Action’, Deon. p. 9 (a note composed 12 July 1822, also inserted in the 2nd edn of FG, p. 447), and the intended Preface to the 2nd edn of FG, pp. 515–17. See Bentham to Shelburne (18 July 1781), Corr. iii. 26; and IPML, p. 281n. Lord Edmond Fitzmaurice, Life of William, Earl of Shelburne: Afterwards first Marquess of Lansdowne 1776–1805, 3 vols (London 1876), iii. 478. These draft essays, along with those inspired by events in France, are in RRR. Other tracts directed to revolutionary France were published, or partially

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published, at the time: Draught of a New Plan for the Organisation of a Judicial Establishment in France and An Essay on Political Tactics. RRR, p. 407. Ibid. p. 408. Ibid. p. 409. Ibid. p. 407. Ibid. p. 419. Ibid. pp. 428–9. Bowr. xi. 96–105, based on BL Add, MS 22,550, fols. 365–415. Semple gives an account of the errors in Bowring’s version in Bentham’s Prison, pp. 324–6. BL. Add. MS 22,550, fol. 369 (29 Aug. 1831). Bowr. x. 212. ‘Outline of a Work entitled Pauper Management Improved’, first published serially in Annals of Agriculture, vol. xxx (1798), Writings on the Poor Laws, vol. 2 (CW ), pp. 487–96. The aborted plan to re-issue this tract with ‘History of the War’ as a preface is reiterated in a letter from Bentham to Peel (28 Mar. 1830), Corr. xiii. BL Add. MS 22,550, fols. 372, 378 (Aug. 1831). Semple, Bentham’s Prison, p. 325. Writings on the Poor Laws, vol. 2 (CW ), p. 208. Scotch Reform, Bowr. v. 4. FPP, p. 213. Ibid. pp. 205, 213. John Mill seems to have thought this way of employing the term ‘sinister’ originated with Bentham, but the OED shows that Richard Hooker used it in the sixteenth century in precisely this way, and it is also found in the Letters of Junius in the late eighteenth century. See Considerations on Representative Government, in Collected Works, xix. 441–2. Here I differ from Schofield, who argues that it was Bentham’s discovery of the idea of ‘sinister interest’ that convinced him of the need for democratic institutions. Utility & Democracy, p. 109. UC xcvii. 1–116. UC xxvii. 1. I am grateful to Doug Long for drawing my attention to these mss. UC xcvii. 48; see also UC v. 6. Bentham: Selected writings of John Dinwiddy, p. 77. Dinwiddy, ‘Bentham’s Transition to Political Radicalism, 1809–1810’, ibid. p.117, quoting UC cxxvi. 304 (1809). UC cxxv. 30 (1809). Bowr. iii. 442. Ibid. 440. Bowr. iii. 442. The terms Bentham used to describe the monarch included ‘Depredator General, Oppressor General, Corrupter General, Deluder General, God upon Earth’. SAM, p. 196. Bowr. iii. 439. Ibid. pp. 439–40. Ibid. p. 440. Ibid. p. 447. Ibid. pp. 441, 446.

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Notes FPP, pp. 16, 115, 287. Ibid. p. 156. Ibid. p. 152. Ibid. p. 153. Ibid. p. 157. Bentham took this information from Lord John Russell’s speech on the civil list in Parliament on 8 May 1821. Bowr. ix. 142 n. Also see SAM, p. 234. Bowr. ix. 142. FPP, p. 158. Ibid. Ibid. pp. 167–8. Ibid. p. 171; see also Bowr. ix. 132. Code, p. 436; FPP, pp. 209, 258. Where possible quotations from the Constitutional Code are made from vol. 1 of the CW edition, which corresponds to Bk. II, Chs. I–IX in Bowr. ix. 146–333. The remainder of the material in Doane’s edition (Bk. I, Chs. I–XVII and Bk. II, Chs. X–XXXI, Bowr. ix. 1–145, 333–647) will eventually appear in revised form in other volumes of CW. Code, p. 127. FPP, p. 254. Ibid. pp. 171–2. Bentham drew up a list of monarchical families known to have contained insane monarchs at p. 183n. Ibid. p. 183; see also Code, pp. 132–3. FPP, p. 194. Ibid. p. 195. Ibid. p. 219. Ibid. p. 26. Ibid. p. 154. Ibid. p. 54. Ibid. p. 284. Ibid. pp. 115, 273–4. Ibid. p. 211. Ibid. pp. 154–5. Ibid. p. 155n. Ibid. p. 152. Ibid. p. 154. Ibid. p. 212. Ibid. p. 202. Code, p. 18. FPP, p. 214. See Philip Schofield, ‘Bentham on the Identification of Interests’, Utilitas, 8/2 (1996), pp. 226–8. SAM, p. 272. My understanding of these ‘securities’ is based on Schofield, Utility & Democracy, Ch. 11. Bowr. ix.128. Rosen supplies the best overview of the institutions of democratic government in the Code. Jeremy Bentham and Representative Government, Ch. VIII. Bowr. ix. 290.

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IPML, p. 263. Rosen, Jeremy Bentham and Representative Democracy, Ch. III. Ibid. p. 41. Ibid. p. 44. Here Rosen follows H. L. A. Hart, ‘Bentham on Sovereignty’, in Bhikhu Parekh (ed.), Jeremy Bentham: Ten critical essays (London 1974), p. 147. Rosen also argues that Bentham envisaged ‘the possibility of a plurality of sovereigns with each possessing full sovereign power’ (emphasis added), but this is a more speculative proposition. Fred Rosen, ‘Elie Halévy and Bentham’s Authoritarian Liberalism’, Enlightenment and Dissent, vol. 6 (1987), p. 76n. Limits of the Penal Branch of Jurisprudence (CW ), p. 38. Ibid. p. 46. FG, p. 18. Limits of the Penal Branch of Jurisprudence (CW ), p. 150n. Ibid. p. 113. Ben-Dor, Constitutional Limits and the Public Sphere, passim. FG, p. 491. Ibid. p. 485. Code, pp. 35–9; see also FPP, p. 283. Ibid. p. 125. Ibid. p. 36. SAM, p. 121. Bowr. ii. 275–97. Ibid. pp. 277, 279. SAM, p. 30. Ibid. pp. 278–81. FPP, p. 141. Rosen draws attention to this feature of Bentham’s democratic theory in Bentham and Representative Democracy, p. 14. Lieberman, ‘Bentham’s Democracy’, p. 624. For example, Carole Pateman, Participation and Democratic Theory (Cambridge 1970), Ch. 1. See John Keane, The Life and Death of Democracy (New York 2009), Pt III. Jürgen Habermas, Between Facts and Norms: Contributions to a discourse theory of law and democracy (Cambridge, MA 1996). The characteristics of deliberative democracy are succinctly stated by Jürg Steiner, ‘In Search of the Consociational “Spirit of Accommodation”,’ in Rupert Taylor (ed.), Consociational Theory: McGarry & O’Leary and the Northern Ireland conflict (London 2009), pp. 201–4. Discussed by Allan Freeman, ‘Deliberative Democracy’, Philosophy and Public Affairs, 29/4 (2000), pp. 371–418. Jorge Valadez, Deliberative Democracy, Political Legitimacy, and Self-Determination in Multicultural Societies (Boulder, CO 2001), and Cass Sunstein, ‘Deliberation, Democracy, Disagreement’, in Ron Bontekoe and Marietta Stepaniants (eds), Justice and Democracy: Cross-cultural perspectives (Honolulu 1997), pp. 93–117. In the doleful judgement of Tom Nairn, ‘one might as well demand a lowering of the British annual rainfall as ask for the “abolition of the monarchy”.’ The Enchanted Glass, p. 13.

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24

25 26

FPP, p. 198. ‘Jeremy Bentham to his Fellow-Citizens of France, on Houses of Peers and Senates’, Bowr. iv. 449–50. Starkey, Monarchy, pp. 278–80, 284–5. FPP, p. 217. An earlier version is contained in Code, pp. 133–46. Bentham described himself as ‘King of the Radicals’ in a letter to Maria Hume, wife of Joseph Hume (postscript 1 July 1829), announcing he was ‘organising an army to storm Blackstone’s old castle . . . under Marshall O’Connell’. Corr. xiii. On the occasion of Wellington’s duel with the arch-Tory Lord Winchilsea in Mar. 1829, Bentham wrote to the Prime Minister (22 Mar. 1829): ‘Here am I, leader of the Radicals (in that character at least am I, and I alone, every now and then spoken of) . . . , more solicitous for the life of the leader of the Absolutists, than he himself is! What paradoxes, what prodigies, has not the field politics given birth to, of late!’ Corr. xiii. Bentham esteemed Hume as ‘the Man of the People’, and a ‘good and faithful servant’ who could be counted on to represent his views on law reform and parliamentary reform in the Commons. Bentham to Hume (23 Feb. 1830), ibid. Bentham to Koe (1 Feb. 1818), Corr. ix. 155–6. Carr, ‘James Mill’s Politics Reconsidered’, pp. 579–80. Bentham to Place (6 Feb. 1818), Corr. ix. 159. Ibid. iv. 17–18. Romilly to Bentham (Jan. 1793), ibid. pp. 414–15. Bowr. x. 399–400. Romilly to Bentham (31 Jan. 1810), Corr. viii. 60–1. Memoirs of the Life of Sir Samuel Romilly Written by Himself; with a selection from his correspondence, 2 vols, 3rd edn (London 1841), ii. 489–90. See also Bentham to Place (6 Dec. 1818), Corr. ix. 294 and Colón (6 Dec. 1820), ibid. x. 229–30. Marc Baer, ‘Sir Francis Burdett (1770–1844)’, ODNB. Bentham to Place (6 Feb. 1818), Corr. ix. 158–9. On Bentham’s role in the 1818 and 1819 Westminster elections see Thomas, The Philosophic Radicals, pp. 41–5, and the exchange of letters between Bentham and Burdett (6 Nov. and 1 Dec. 1819), Corr. ix. 365, 372. Burdett to Bentham (25 Feb. 1818), ibid. pp. 165–6. Bentham to Samuel Bentham (4 Dec. 1818), ibid. p. 293. Bentham to Plumer Jnr. (Dec. 1818), ibid. p. 314. On their differences concerning the ballot see the exchange of letters between Bentham and Burdett (10 Mar. 1818), ibid. pp. 177–9. The Substance of the Speech delivered by Sir Francis Burdett, Bart. in the House of Commons, the 2d. of June, 1818, on moving a series of resolutions on the subject of parliamentary reform (London 1818). Bowr. xi. 50, and Bentham to O’Connell (23 June 1830), Corr. xiii. See the exchange of letters between the two (6–27 June 1825), ibid. xii. 124–9; and Bentham’s Observations on Mr. Secretary Peel’s House Of Commons Speech, 21st March 1825, introducing his Police Magistrates’ Salary Raising Bill, . . . Judges’

Notes

27 28 29 30

31 32

33 34 35 36 37

38 39 40

41

42 43 44

45

46

47

48

219

Salary Raising Bill, and the pending County Courts Bill (London 1825), and Indications Respecting Lord Eldon, including a history of the pending Judges’-Salary-Raising Measure (London 1825), OAM, pp. 157–98, 203–89. Bentham to Burdett (25 Feb. and 5 Mar. 1826), Corr. xii.199 and note, 203–4. Burdett to Bentham (4 Mar. 1826), ibid. p. 202. Bentham to Burdett (11 Feb. 1828), ibid. pp. 453–4. Bentham to Stanhope (11 Dec. 1829) and Bentham to O’Connell (18 Dec. 1829), ibid. xiii. For the complete list of members see Bentham to Place (18 Mar. 1831), ibid. Bentham to Cobbett (16 Nov. 1810), ibid. viii. 80–1 and Mulford (9 July 1812), ibid. p. 252, where Cobbett is mentioned as ‘universally known for a vile rascal’. See also Colls, Utilitarianism Unmasked, p. 20. Bentham to Ellice (22 June 1831), Corr. xiii. Bentham to Tyrrell (17 June 1831) and Ellice (22 June 1831), ibid. Bowr. iii. 481n. Cartwright to Bentham (17 Dec. 1817), Corr. ix. 134. Bentham to Burdett (25 Feb. 1818), Cartwright and Walker to Bentham (24 Mar. 1818), and Bentham to Cartwright and Walker, ibid. pp. 167, 185–6. For Cartwright’s views on the ballot see A Bill of Rights and Liberties; Or, an act for a constitutional reform of Parliament (London 1817). Cartwright to Bentham (27 Aug. 1819), Corr. ix. 346–7. Bentham to Samuel Bentham (17 Dec. 1817), ibid. p. 359. See, for example, Bentham to Cartwright (30 Aug. 1811), ibid. viii. 170–2; Bentham to Place (17–18 Jan. 1818), ibid. ix. 150; Cartwright to Bentham (17 Jan. and 18 Feb. 1821) and Bentham to Cartwright (18 Feb. and 9 Apr. 1821), ibid. x. 259–60, 287–8, 288–9, 321; and Cartwright to Bentham (8 Mar. 1823), ibid. xi. 218. Bentham to O’Connell (13 and 25 Sep. 1828; and 10 Nov. 1829), Bowr. x. 601; The Irish Monthly, xi. 429–30, 519. Bentham to O’Connell (28 Nov. 1828), Corr. xiii. Bentham to O’Connell (31 Aug. 1828), ibid. Ruth Richardson, Death, Dissection and the Destitute, 2nd edn (Chicago 2000), p. 178. See Cobbett’s Weekly Political Register (7 July 1832), pp. 41–2. Bentham scholarship has been notably remiss in passing over the connection with O’Connell. I give a review of the scholarly literature in ‘Jeremy Bentham and Daniel O’Connell: Their Correspondence and Radical Alliance, 1828–31’, The Historical Journal, 40/2 (1997), pp. 359–87. I have drawn substantially upon this article in this part of the chapter. Fergus O’Ferrall, Catholic Emancipation: Daniel O’Connell and the birth of Irish democracy, 1820–30 (Dublin 1985), p. 280. MacDonagh, The Emancipist, pp. 19, 22–5. For a speech to this effect see Dublin Evening Post, 30 Dec. 1813, in Life and Speeches of Daniel O’Connell, 2 vols, ed. John O’Connell (Dublin 1846), ii. 264. See also Maurice R. O’Connell, Daniel O’Connell: The man and his politics (Blackrock, Co. Dublin 1990), p. 34. Maurice R. O’Connell, ‘O’Connell and the Spanish Civil War 1834–1839’, in Maurice R. O’Connell (ed.), Education, Church and State (Dublin 1992), pp. 35–9.

220 49

50 51

52

53

54 55 56

57

58 59

60 61

62

63 64 65

66

Notes

See O’Connell’s letter to the leader of English Jewry, Isaac Goldsmid (11 Sep. 1829), The Correspondence of Daniel O’Connell, 8 vols, ed. M. R. O’Connell (Dublin 1972–80), iv. 95. Henceforth O’Connell Corr. For Bentham on the plight of the Jews see Lea Campos Boralevi, Bentham and the Oppressed (Berlin 1984), Ch. 4. MacDonagh, The Emancipist, p. 19. Ibid. p. 23, quoting O’Connell from a speech to the Ministers and Office- Bearers of the Wesleyan Methodist Societies of Manchester, 1 Aug. 1839, reported in Freeman’s Journal (5 Aug. 1839). J. R. Dinwiddy, From Luddism to the First Reform Bill: Reform in England, 1810–1832 (Oxford and New York 1986), pp. 39–40. Bowr. x. 593–4. Bentham’s support for the Association was signalled by a contribution of £5.00 to help defray the costs of publishing and petitioning for Catholic relief. Bentham to the Catholic Association (9 Dec. 1824), Corr. xii. 73. Bowr. x. 544; Corr. xii. 73n. For Bentham on slavery see Boralevi, Bentham and the Oppressed, Ch. 7. MacDonagh, The Emancipist, p. 20. So deep were O’Connell’s feelings on the issue, he persisted in denouncing slavery even when it threatened American support for repeal of the union (pp. 20–1). The address was transcribed in the report of that meeting in The Nation (14 Oct. 1843), quoted by O’Connell, Daniel O’Connell: The man and his politics, p. 130. MacDonagh, The Emancipist, pp. 21–2, 42. In MacDonagh’s account it is Godwin’s version of utilitarianism not Bentham’s that originally influenced O’Connell’s radicalism. Although O’Connell rejected the anarchism of the Enquiry Concerning Political Justice (1793) and Godwin’s anti-monarchical views, MacDonagh maintains that Godwin provided him with basic principles of his politics. The Emancipist: Daniel O’Connell, 1830–1847 (London 1989), pp. 18–19. See Fergus O’Ferrall, Daniel O’Connell (Dublin 1981), p. 9 for a sample of O’Connell’s praise for Godwin’s Enquiry. O’Connell to M. O’Connell (3 Mar. 1818), O’Connell Corr. ii. 170. Bentham to O’Connell (31 Aug. 1828), The Irish Monthly, xi. 429, accompanying Draught of a Code for the Organization of the Judicial Establishment in France, Radical Reform Bill, Codification Proposal, Leading Principles of a Constitutional Code, for any State, Observations on Mr. Secretary Peel’s House Of Commons Speech . . . Introducing his Police Magistrates’ Salary Raising Bill, Rationale of Judicial Evidence, and the first volume of Constitutional Code. In a letter of 15 July 1828 Bentham had reminded O’Connell that he had sent him a copy of his draft reform bill previously (likely in 1825 when O’Connell made his first significant connection with the English radicals, inducing Burdett to introduce a House of Commons’ motion favouring the Catholic claims, which was defeated in the Lords). Bowr. x. 594. O’Connell to Bentham (29 Sep. 1828), O’Connell Corr. iii. 202; he singled out the Rationale of Judicial Evidence for special mention (p. 201). Bentham to Hunt (27 Sep. 1828), Bowr. xi. 5. Bentham to O’Connell (6 Oct. 1828), O’Connell Corr. iii. 203. Charles Sinclair Cullen, in a letter to Bentham (2 Feb. 1830), extolled O’Connell’s independence as a protection from the debilitating effects of faction. Corr. xiii. See O’Connell to Bentham (3 Aug. 1828), O’Connell Corr. iii. 199.

Notes 67

68 69 70 71 72

73

74

75 76

77

78

79

80

221

See Select Speeches of Daniel O’Connell, 2 vols, ed. J. O’Connell (Dublin 1867), ii. 214, 224–30. In Nov. 1823 O’Connell hoped to persuade Earl Grey to present a second petition to the House of Lords (p. 233). Attempts to persuade Brougham and Grey to introduce petitions again in May 1824 were unsuccessful, both taking exception to elements in the petitions which asked for (1) reform of the temporalities of the established Church of Ireland, (2) better regulation of juries, (3) disenfranchisement of the rotten borough corporations, and (4) Catholic emancipation (pp. 315–20). Bentham to O’Connell (15 July 1828), Bowr. x. 594. O’Connell to Bentham (3 Aug. 1828), O’Connell Corr. iii. 199. Bowr. x. 594. O’Connell to Staunton (22 Sep. 1828), O’Connell Corr. iii. 411. These would appear to be what Bentham drafted and subsequently published as the Justice and Codification Petitions (1829), Bowr. v. 437–548. See O’Connell to Bentham (29 Sep. 1828), O’Connell Corr. iii. 202, Bentham to O’Connell (11 Oct. 1828), The Irish Monthly, xi. 511, O’Connell to Bentham (26 Oct. and 2 [and 3] Nov. 1828), O’Connell Corr. iii. 207, 211–12 and Bentham to O’Connell (18 Nov. 1828), The Irish Monthly, xi. 513. Reported in the Leinster Journal (25 Oct. 1828), O’Connell Corr. iii. 209 (editor’s note). Both petitions passed unanimously. O’Connell to Bentham (3 Aug. 1828), ibid. p. 199. Bentham to O’Connell (31 Aug. 1828), The Irish Monthly, xi. 427, (23 Sep. 1828), Bowr. x. 601 and (25 Sep. 1828), The Irish Monthly, xi. 429; and Bentham to Hunt (27 Sep. 1828), Bowr. xi. 5. Bentham to O’Connell (2 Nov. 1828), ibid. x. 603–4. The ‘wings’ O’Connell accepted in the 1825 Relief Bill were (1) the payment of the Catholic clergy out of state funds, and (2) the disfranchisement of the Irish forty-shilling freeholders. The first was designed to secure the loyalty of the clergy to the Crown; the aim of the second was to ensure that Catholic candidates for election would not depend on the votes of ‘the mob’. See O’Ferrall, Catholic Emancipation, p. 92. O’Connell would not have liked being reminded of his reluctant support for the ‘wings’. Bentham to O’Connell (18 Nov. 1828), The Irish Monthly, xi. 514. In fact Bentham had long ago explained to Hobhouse (31 Jan. 1821) that emancipation should be sought only in conjunction with parliamentary reform or even following ‘the triumph of radicalism’ (Corr. x. 272). O’Connell himself had changed his mind about this; compare the speech he gave in Oct. 1819 with those given in Jan. 1821 and May 1823 in Select Speeches of Daniel O’Connell, ii. 63–9, 91–8, 104–10, 214. In a letter of 19 Sep. 1828 Bentham referred to a speech by O’Connell reported in the Morning Herald of that day, in which the latter was quoted as proclaiming ‘I deem it impossible . . . to have a Constitution at all worth naming, without Radical Reform’. To which Bentham responded, ‘we have not a Constitution worth naming, so say I.’ Bowr. x. 601. Hunt’s letter appeared in the Morning Herald on 9 Aug. 1828, noted in O’Connell to Bentham (6 Oct. 1828). O’Connell responded with an open letter to Hunt in the Morning Register, declaring: ‘I am, I ever have been, I ever will be, a radical

222

81 82

83

84 85 86

87

88 89 90 91

92 93

94

95 96

97

98

Notes

reformer.’ To Staunton (22 Sep. 1828), the editor of the Morning Register, O’Connell confided, ‘I wrote that letter not for Hunt but for the dormant reformers in England, Bentham, Bowring, &c.’, and adds, ‘The Law Reform is now my grand object’. O’Connell Corr. iii. 204, 412n, 411. Bowr. x. 601. For Hunt’s anti-corruption campaign in the Common Hall in 1827–8 see John Belchem, ‘Orator’ Hunt: Henry Hunt and English working-class radicalism (Oxford 1985), pp. 177–83. Bowr. x. 602. While Hunt was frequently lampooned as ‘the Blacking man’ and enjoyed the free publicity this gained for his business, he did not take lightly to cheap jokes which undermined his political standing, and this may in part account for the venom of his counter-attack on O’Connell. See Belchem, ‘Orator’ Hunt, pp. 168–9. Bentham to O’Connell (25 Sep. 1828), The Irish Monthly, xi. 430. Ibid. 429, 430. Bentham to Hunt (27 Sep. 1828), Bowr. xi. 5. Hunt printed the letter, with Bentham’s name attached, in The Morning Herald (29 Sep. 1828). See Bentham to O’Connell (29 Sep. 1828), The Irish Monthly, xi. 430–1 (wrongly dated 27 Sep.). Bowr. xi. 6. Only a month previously Bentham had taken O’Connell to task for this himself, arguing that it would be taken as a sign of moderation (31 Aug. and 30 Sep. 1828), The Irish Monthly, xi. 425–6, 432. Bowr. xi. 6. O’Connell to Bentham (6 Oct. 1828), O’Connell Corr. iii. 205. Bowr. xi. 5–7. See O’Connell to Bentham (26 Oct. 1828), O’Connell Corr. iii. 207–8; and Bentham to O’Connell (2 Nov. 1828), Bowr. x. 603–4. O’Connell to Bentham (2–3 Nov. 1828), O’Connell Corr. iii. 210–11. Hunt to O’Connell (17 Mar. 1829), ibid. iv. 31. Even before polling closed in Co. Clare in July 1828 Hunt and the London radicals promised to ‘convey’ O’Connell at the head of 50,000 or 60,000 to Parliament. Oliver MacDonagh, The Hereditary Bondsman: Daniel O’Connell, 1775–1829 (New York 1988), p. 261. O’Connell Corr. iv. 31. A month later, however, O’Connell complained in a letter to Edward Dwyer (11 Mar. 1829) that Brougham and the Whigs had given in to disenfranchisement, and that Hunt and Cobbett were ineffective in gathering radical resistance to the measure. Ibid. p. 27. See also O’Connell to Dwyer (12 Mar. 1829), ibid. pp. 28–9. O’Connell to Bentham (30 July 1829), O’Connell Corr. iv. 216. ‘Cod[ification] petition to Honourable House [of Commons], J.B. for O’Connell’, UC lxxx. 59–160. Bentham’s Justice and Codification Petitions (1829), Bowr. v. 437– 548, includes ‘Petition for justice’ (pp. 444–507); ‘Abridged petition for justice’ (pp. 507–34); ‘More abridged petition for justice’ (pp. 534–38); ‘Supplement to the petitions for justice’ (pp. 539–45); and ‘Petition for codification’ (pp. 546–8). Bentham to O’Connell (25 Feb. 1829), Bowr. xi. 12 (25 Aug. 1829), The Irish Monthly, xi. 516–17 and (16 Oct. 1829), University College Dublin, P 12/3/207, and O’Connell to Bentham (22 Oct. 1829), O’Connell Corr. iv. 221. O’Connell to Bentham (22 Apr. 1829), ibid. p. 214.

Notes 99 100 101

102 103

104

105

106 107 108

109 110 111

112 113 114

115

223

O’Connell to Bentham (4 Nov. 1829), ibid. p. 222. Bentham to O’Connell (25 Aug. 1829), The Irish Monthly, xi. 516. Bentham to O’Connell (18 Dec. 1829), ibid. p. 550, and (17 Jan. 1830), Bowr. xi. 32–3. Bentham to O’Connell (18 Dec. 1829), The Irish Monthly, xi. 550. For reforms to the ‘real property’ law see Bentham to O’Connell (25 Aug. 1829), ibid. pp. 515–17, and (16 Oct. 1829), University College Dublin, P 12/3/207; see also Bentham , A Commentary on Mr. Humphreys’ Real Property Code (1826), and Outline of a Plan of a General Register of Real Property (written 1828; printed 1832), Bowr. v. 387–416, 417–35. On the Public House licensing system see Bentham to O’Connell (29 Oct. 1829), ibid. xi. 24, and O’Connell to Bentham (4 Nov. 1829), O’Connell Corr. iv. 222–4. Bentham to O’Connell (25 May 1829), University College Dublin, P 12/3/203, O’Connell to Bentham (28 May 1829), O’Connell Corr. iv. 215–16 and (25 Aug. 1829), The Irish Monthly, xi. 515–17, O’Connell to Bentham (22 Oct. 1829), O’Connell Corr. iv. 219–22 and Bentham to O’Connell (18 Dec. 1829), The Irish Monthly, xi. 549–50 (incorrectly dated 28 Dec. 1829). See also Bentham, Equity Dispatch Court Proposal (1830) and Equity Dispatch Court Bill (published from mss.), Bowr. iii. 297–317, 319–431. A matter first addressed by O’Connell in a letter to Bentham (2–3 Nov. 1828), O’Connell Corr. iii. 210–12; see also Bentham to O’Connell (15 Mar. 1830), Bowr. xi. 37–8. Bowr. xi. 32. Hansard, vol. 22 (11 Feb. 1830), pp. 328–32. Ibid. (18 Feb. 1830), pp. 673–76. A few days earlier (16 Feb. 1830) O’Connell assured the radical MP Sinclair Cullen (and through him, Leicester Stanhope) that he remained in support of the Benthamic position on the fee-gathering system. O’Connell Corr. iv. 129–30; see also Cullen to O’Connell (12 Jan. 1830), ibid. p. 116. Hansard, vol. 13 (23 Mar. 1830), p. 793. Bentham to O’Connell (15 Mar. 1830), Bowr. xi. 37–8. O’Ferrall, Catholic Emancipation, p. 272. Despite Bentham’s best efforts the relationship between O’Connell and Hunt remained volatile, producing an unseemly sequel when Hunt involved himself in an apparent blackmail attempt against O’Connell in Nov. 1831. For the details see the exchange of letters between the two in O’Connell Corr. iv. 363, 369. O’Connell on ‘Reform in Courts of Law’, Hansard, vol. 23 (29 Apr. 1830), p. 286. See Bentham to Burdett (17 June 1830), Bowr. xi. 50–1. O’Connell on ‘Code of Laws’, Hansard, vol. 25 (8 July 1830), p. 1114. See also Bentham to O’Connell (23 June 1830), The Irish Monthly, xi. 551 and Bentham to Burdett (17 June 1830), Bowr. xi. 50. O’Connell’s original motion was styled ‘An Address to his Majesty, that he would be graciously pleased to take measures to have drafts or plans of a Code of Law and procedure . . . to be laid before that House’. This is evident from a letter O’Connell wrote from Cork to Robert White (16 Aug. 1830), in which he requested that all of Bentham’s works that could be found in his house should be sent to him. O’Connell Corr. iv. 197.

224 116

117 118

119 120

121

122 123

124

125 126 127 128 129

130 131 132 133 134 135

136 137 138 139

Notes

On O’Connell’s commitment to Bolívar from 1819 forwards see MacDonagh, The Hereditary Bondsman, pp. 168–70; O’Connell, Daniel O’Connell: The man and his politics, p. 94; and O’Connell to Bolívar (17 Apr. 1820), O’Connell Corr. ii. 257–8. In 1824 O’Connell gave his famous ‘Bolívar’ speech, in which he expressed the veiled threat of an insurrection under an Irish Bolívar if persecution continued in Ireland, and in Aug. 1826, in imitation of Bolívar, he set up an Order of Liberators for Ireland. O’Ferrall, Daniel O’Connell, p. 53 and Catholic Emancipation, p. 148. Bentham to O’Connell (16 Oct. 1829), Corr. xiii. Bowr. x. 552. See also T. L. McKennan, ‘Benthamism in Santander’s Colombia’, The Bentham Newsletter, 5 (1981), pp. 29–43, esp. pp. 33–6. O’Connell to Bentham (22 Oct. 1829), O’Connell Corr. iv. 220. O’Connell, Daniel O’Connell: The man and his politics, pp. 66–7. MacDonagh reminds us that ‘Bolívar remained an ideal for O’Connell all his life’, and ‘he came to bear with pride the title invented originally for Bolívar – “The Liberator”.’ The Hereditary Bondsman, p. 171. Dublin Evening Post, 6 Oct. 1829. I am grateful to Professor Gary Owens for providing a transcription of this letter. Morning Chronicle (10 Oct. 1829). ‘Notabilia: Mr. O’Connell and the French Liberals’, Examiner, no. 1133 (18 Oct. 1829), p. 658; and ‘Mr. O’Connell and the French Liberals, to the Editor of the Examiner’, ibid. no. 1135 (1 Nov. 1829), pp. 692–93. For O’Connell’s long-standing hatred of Jacobinism see MacDonagh, The Hereditary Bondsman, pp. 26–8. Examiner, no. 1133 (18 Oct. 1829), p. 658. Ibid. no. 1135 (1 Nov. 1829), p. 693. Bowr. xi. 26. Ibid. pp. 25–6. This was reputedly O’Connell’s finest performance as a criminal barrister. MacDonagh gives an account in The Emancipist, pp. 9–14. Bentham to O’Connell (10 Nov. 1829), The Irish Monthly, xi. 518–19. See MacDonagh, The Emancipist, pp. 35, 48. Bentham to O’Connell (8 Dec. 1830), Bowr. xi. 28. Bowr. xi. 29. For which see Bentham to O’Connell (21 Mar. 1831), The Irish Monthly, xi. 554–5. O’Connell to Bentham (22 Feb. 1831), O’Connell Corr. iv. 229, 230; see also Bowr. xi. 63, 64. On O’Connell’s position on ‘home rule’ and loyalty to the British crown see O’Connell, Daniel O’Connell: The man and his politics, pp. 41–4. Bowr. xi. 64–5. Ibid. p. 65. Ibid. p. 66. Dinwiddy, From Luddism to the First Reform Bill, p. 45; and O’Ferrall, Catholic Emancipation, p. 271. In early 1830, O’Connell was pleased to summarize the techniques of the Association in reply to a letter from Thomas Attwood enquiring about the legality of the Birmingham Political Union, which Atwood modelled on the Catholic Association. O’Connell Corr. iv. 164.

Notes 140 141 142

143

144 145 146

147

148

149

150

151

152 153

154 155 156

157 158 159

160

225

O’Ferrall, Catholic Emancipation, p. 272. Quoted ibid. p. 88. Bentham to O’Connell (18 Dec. 1829), The Irish Monthly, xi, 550, and (17 Jan. 1830), Bowr. xi. 32–3; and Bentham to Joseph Hume (23 Mar. 1830), Corr. xiii. There is a draft of Bentham’s ‘Law reform association proposal’ at UC lxxxv. 187–96 (1830), and a printed sheet of the same at UC cix. 326. Peel was responsible for the law reforms enacted in 5 Geo. IV, c. 41 (1824), and 6 Geo. IV (1825), cc. 25, 84 and 96, and for establishing a Chancery Commission to consider judicial procedure. See ‘Report Made to His Majesty by the Commissioners Appointed to Enquire into the Practice of Chancery’, Parliamentary Papers (1826), xv. 1–120. John Prest, ‘Sir Robert Peel (1750–1830)’, ODNB. See note 26 above. Bentham to Peel (13 Apr., 19 Aug., and 30 Aug. 1826, 14 Jan. and 14 Apr.1827), Corr. xii. 210, 239–46, 247–8, 270–3, 346; and Peel to Bentham (2 Sep. 1826), ibid. pp. 248–9. The Elements of the Art of Packing, as applied to special juries, particularly in the case of libel law (London 1821), Bowr. v. 61–186; and Bentham to Peel (7 Apr. 1827), Corr. xii. 338–40. See James Humphreys, Observations on the Actual State of the English Laws of Real Property, with the outlines of a code (London 1826); and Bentham, ‘A Commentary on Mr. Humphrey’s Real Property Code’, Westminster Review, vi (1826), pp. 446–507, Bowr. v. 387–435. Bentham to Peel (1 Apr. 1826), and Peel to Bentham (4 Apr. 1826), Corr. xii. 205–9. Use of the Dead to the Living (1824; Albany 1827); see also ‘Anatomy’, Westminster Review, x (1829), pp. 116–48. Later, in the Constitutional Code, Bentham intended this to include the bodies of any ‘person unknown, or of a person for whom no such trustee has appeared, nor . . . is likely to be found’. Bowr. ix. 628 4 Apr. 1826, Corr. xii. 209. UC xi. 19–5. For other correspondence on this subject between Bentham and Peel see Corr. xii. 205–16. UC xi. 20–4. Commons’ Journal, xxii, 4 (1828), p. 260. Bentham to Peel (22 Apr. 1829 and 2 Jan. 1830), Corr. xiii. The remainder of the text was sent to Peel in January 1830. Bentham to Peel (22 Apr. 1829), ibid. Peel to Bentham (29 Apr. 1829), ibid. Bentham to Peel (13 Mar. 1830), ibid. Peel promised to send Bentham a copy of the printed bill (15 Mar. 1830), which he did 18 May 1830. Bentham to Peel (28 Mar. 1830), ibid. Peel replied (1 Apr. 1830), stating he was familiar with the history of these projects, and requested a copy of Outline of a Work Entitled Pauper Management Improved. See also Bentham to Peel (2 Apr. 1830), ibid.

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Index

The following terms are pervasive in the text and have not been indexed as separate items: happiness, pain, pleasure, utility, utilitarian, utilitarianism. act utilitarianism 94 see also utilitarian theory Adams, John, 2nd President of the United States (1735–1826) 127 Adams, John Quincy, 6th President of the United States (1767–1848) 11, 15, 125, 126, 128, 211n. 54 Adjudication 97 Alexander I of Russia (1777–1825) 5, 6, 10, 180n. 22 Alleyne FitzHerbert, 1st Baron St Helens (1753–1839) 138, 140 America see United States American revolution 2, 118, 125 anatomical research (dead bodies) 23, 60, 92, 175–6, 225n. 151 Anatomy Act 1832 24, 162–3 animals 28 annual parliaments see elections anti-clericalism 164 Anti-Machiavel 138 approbation 80, 85, 89 moral approbation 72 sentiment of approbation 75, 76, 80 aptitude (active, moral, intellectual) 26, 34, 98, 110, 115, 145, 149–50 aristocracy (nobles, sub-monarchs) 30, 63, 119, 121, 124, 141, 142, 146 see also House of Lords aristocratical interest 123, 143, 145 Aristotle (384 BC–322 BC) 51, 52, 193n. 5, 206n. 43 asceticism 52, 57 ascetic principle 87

association theory 55, 195n. 37 Athens 84 Attwood, Thomas (1783–1856) 224n. 139 Austin, Charles (1799–1874) 29, 37 Austin, John (1790–1859) 29, 37 Bankruptcy Bill 1831 173 Barré, Isaac (1726–1802) 9 Beattie, James (1735–1803) 202n. 125 Beccaria, Cesare (1738–94) 3, 51, 57, 93, 196n. 61, n. 63, n. 66 Bello, André (1781–1865) 13 benevolence 72–4, 75, 77, 78, 88, 89, 192n. 134, 201n. 82 Bentham, George (1800–84) 18, 20, 23, 42 Bentham, Samuel (1757–1831) 6, 10, 137 Bentham’s dictum 101–7, 108, 113, 206n. 40 Berkeley, George (1685–1753) 39 best judge injunction 52, 82, 113 Bill of Pains and Penalties 1820 134 Bill of Rights 128 Bingham, Peregrine (bap. 1788–1864) 18, 37 Birmingham Political Union 224n. 139 Black, John (1783–1855) 29, 33 Blackstone, William (1723–80) 3, 39, 54, 55, 56, 62, 83, 122–3, 124, 136, 138, 195n. 32, 210n. 26, 218n. 6 Blaquiere, Edward (1779–1832) 12, 15, 22 blasphemy 128, 160

238

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Bolingbroke, Henry St John, Viscount Bolingbroke (1678–1751) 124 Bolívar, Simón (1783–1830) 13, 14, 18, 170–1, 173, 183n. 88, 224n. 116, n. 120 Bowring, John (1792–1872) 16, 20–1, 22–3, 33, 35, 36, 37, 40, 41, 42, 52, 125, 140, 167, 185n. 131, n. 135, 191n. 101, n. 110, 193n. 1 British and Foreign Anti-Slavery Society 165 Brougham, Henry Peter, 1st Baron Brougham and Vaux (1778–1868) 5, 18, 19–20, 22–3, 36, 134, 159, 166, 170, 173, 177, 185n. 120, 186n. 144–45, 221n. 67, 222n. 94 Brown, John (1715–66) 47, 73–4, 124 Buller, Charles (1806–48) 29, 37, 159, 161 Bulwer-Lytton, Edward, 1st Baron Lytton (1803–73) 17, 161 Burdett, Sir Francis, 5th baronet (1770–1844) 5, 10, 19, 159–61, 163, 167, 170, 177 Burlamaqui, Jean-Jacques (1694–1748) 83 Byron, George Gordon, 6th Baron Byron (1788–1824) 18, 28 calculation (of happiness, pain, pleasure, punishment) 57, 60–1, 83, 86, 94–5, 96, 97, 107, 113, 114, 201n. 90 see also felicific calculus Camden, Charles Pratt, 1st Earl Camden (bap. 1714–94) 7, 62 Canning, George (1770–1827) 161 Carlile, Richard (1790–1843) 119 Caroline, Queen consort of George IV (1768–1821) 134 Cartwright (1740–1824) 159–60, 162–3 Catherine II of Russia (1729–96) 6, 138, 214n. 24 Catholic Association 158, 164–5, 170, 174, 220n. 53, 224n. 139 Catholic Relief Bill 1825 168, 221n. 77 Catholics; Catholicism 2, 54, 163, 164, 165, 166, 171–2, 178

Catholic Relief Act 1829 2, 169 emancipation 8, 28, 40, 162, 163, 167, 174, 221n. 67, n. 78 penal disabilities 164, 169 censorial jurisprudence 57, 83, 93 Chadwick, Edwin (1800–90) 18, 23, 37, 161, 178 Charles I (1600–49) 121, 135 Chartists 118 Chestomathic school 28, 33 Christianity 47 Church of England, established church 63, 125, 141 clergy 141–2 disestablishment, euthanasia 5, 128 Church of Ireland 221n. 67 Cicero, Marcus Tullius (106 BC–43 BC) 51, 52, 193n. 5, 202n. 121 civil law 3, 48, 63, 64–5, 78, 93, 96, 97, 105, 107, 131, 145 see also non-disappointment principle subordinate ends (security, subsistence, abundance, equality) 33–4, 63, 93, 103, 105, 107, 115, 128, 144, 153 Clark, Samuel (1675–1729) 202n. 125 Clarkson, Thomas (1760–1846) 8 Cloots, Jean Baptiste, Baron von Cloots (1755–1794) 8 Cobbett, William (1763–1835) 19, 26, 36, 159–63, 176, 219n. 32, 222n. 94 codification 11, 93, 126, 157, 165, 166–7, 169, 170, 173, 174, 175 Cole, G.D.H. (1885–1959) 33 Colls, John Flowerdew (1801–78) 42 colonies 125 Combination Laws 2 common law 6, 97, 125, 126, 136, 147, 158, 163, 164, 176 common sense 87, 202n. 125 Commonwealthmen 119, 121 community 48, 54 consequences 72, 73, 75, 77, 86, 94 constitution 28, 54, 138, 148, 221n. 79 ancient 163

Index codified 131 mixed and balanced 26, 122, 123, 129, 131, 210n. 25 theory 152 constitutional code 14 constitutional law 8, 14, 61, 93, 138 constitutional theory 5 constitution of New York 125 contract theory 54 see also original contract Cooper, Thomas (1759–1839) 11, 181n. 55 Corn Laws 2, 29, 40 corruption 4, 5, 26, 119, 121, 123, 124, 128, 130, 132, 140, 142, 143, 145, 162, 172 Corruption Fund 133 County Clare by-election 1828 168, 169 Courts Court of Chancery 175 fees 70, 175, 177 criminal law see penal law Crown 117, 123, 131, 144 see also monarchy patronage 130 Czartoriski, Prince Adam Jerzy (1770–1861) 5, 126, 180n. 22 death penalty 27, 28, 175, 179n. 13, 180n. 36 democracy 3, 4, 100, 112 117, 118, 119, 121, 124, 125, 126, 130, 157–8, 171 see also representative deliberative 154–6 democracy monitory 154 participation 154, 155 democratic ascendancy 131, 142 democratic reform 25, 27, 29, 81 D’Ghies, Hassuna (c. 1791–c. 1837) 14–15 Dickens, Charles (1812–70) 17 diminishing marginal utility 34, 66, 104, 115 divine law 48 Doane, Richard (1805–48) 18, 23, 103

239

Doherty, John (1785–1850) 172–3 Doneraile Conspiracy trial 172–3 Dumont, Étienne (1759–1829) 9–10, 11, 13, 16, 20, 35, 42, 52, 55, 57, 60, 63, 84, 95, 190n. 69 Dunning, John, 1st Baron Ashburton (1731–83) 7, 8, 9, 123 Edinburgh Review 25, 26, 28, 36, 37, 41, 42, 48, 52, 66 education 46, 106, 111, 112, 125, 208n. 88 egalitarian(ism) 33, 59, 93, 96, 102, 114, 120 Eldon, John Scott, 1st Earl of Eldon (1751–1838) 127, 175 elections see also suffrage annual 26, 28, 30, 44, 98, 131 proportional representation 110, 112 Elizabeth II (1926– ) 156 Ellis, William (1800–81) 36–7 Empson, William (1791–1852) 36, 54, 184n. 116, 190n. 78 Epicurean 69 Epicurus (341 BC–270 BC) 51, 52, 193n. 6, n. 8 equality 47, 48, 64, 65, 103–7, 111, 116, 117, 145, 155, 207n. 54 economic 116 happiness 63, 95, 103–4, 205n. 39 legal 64 political 108–14, 129, 206n. 46 equalization of wealth 66, 207n. 54 see also redistributive policies equity 52 Equity Dispatch Court 170, 177 ethics private 45–6 evidence (rules) 97 Examiner 36, 42, 134 expectations 63–6, 69, 79, 96, 97, 103, 105, 106, 107, 115 disappointment 62, 106 see also non-disappointment principle security 63, 65, 100, 116

240

Index

federalism 127 felicific calculus 94, 204n. 9 felicity 196n. 81 Fénelon, François de (1651–1715) 209n. 16, 214n. 9 Ferdinand VII of Spain (1784–1833) 11, 171 fictions 118 fictitious entities 48, 118 Filmer, Robert (c. 1588–1653) 121 Fonblanque, Albany (1794–1872) 37, 159 Foucault, Michel (1926–84) 98–9 Fox, Charles James (1749–1806) 2, 26, 138 Fox, William Johnson (1786–1864) 37 franchise see suffrage Franklin, Benjamin (1706–90) 7 Frederick, Duke of York (1784–1827) 137 freedom see liberty freedom (liberty) of the press, expression, speech, association, information 98, 123, 128, 150, 152, 153, 163, 171 French ‘Pandemonians’ 131 French philosophes 6 French Revolution 2, 3, 4, 6, 26, 27, 43, 108, 118, 130, 145, 198n. 118 French skeptics 89 Friends to the Liberty of the Press 27 Gallatin, Albert (1761–1849) 126 Gay, John (1699–1745) 47, 51, 52, 55, 194n. 20 George II (1683–1760) 135 George III (1738–1820) 2, 4, 8, 26, 135, 136–8, 140, 143, 144, 146, 158, 214n. 27 Hanoverian connections 138, 143 George IV (1762–1830) 134, 135 Glorious Revolution 1688 54, 124 Revolutionary settlement 147 God 47, 136 divine creator 48 Godwin, William (1756–1836) 17, 165, 201n. 78, 220n. 59

government 8, 48 ends 54, 70, 93, 105 mixed 121, 123, 124, 127, 146 operative power 149, 150 representative 15, 110, 156 utilitarian theory 44, 98 greatest happiness of nations 45 greatest happiness of the greatest number 31, 47, 56, 57, 58, 59–63, 66, 70, 87, 93, 115, 133, 138, 148, 157, 158, 165 greatest happiness principle 10, 20, 24, 41, 44, 47, 50, 56, 59–63, 65, 66, 78, 81, 87, 95 101, 118, 131 149, 153, 197n. 90, n. 104 see also greatest happiness of the greatest number, utility principle Great Reform Act 1832 2, 25, 159, 162 Greece 14, 15, 118 constitution 15 liberals 40 Grenville, William Wyndham, Baron Grenville (1759–1834) 2, 179n. 4 ministry of ‘all the talents’ 2, 5, 9, 160 Grey, Charles, 2nd Earl Grey (1764–1845) 27, 158, 162, 221n. 67 Grote, George (1794–1871) 18, 29–30, 37, 178, 188n. 28, n. 32 Grotius, Hugo (1583–1645) 83 Guild Socialism 33 Habermas, Jürgen (1929– ) 154 Habeus Corpus 4 Hare, Thomas (1806–91) 110 Harvey, Daniel Whittle (1786–1863) 170 Harrington, James (1611–77) 119, 121 Hartley, David (bap. 1705–57) 50, 55, 195n. 37 Hazlitt, William (1778–1830) 18, 49, 184n. 115, 192n. 146 Helvétius, Claude Adrien (1715–71) 3, 24, 50, 55, 57, 88, 196n. 63 higher and lower pleasures 101, 205n. 38

Index Hildreth, Richard (1807–65) 102 Hobbes, Thomas (1588–1679) 51, 52, 150, 151, 194n. 21 Hobhouse, John Cam, Baron Broughton (1786–1869) 28–9, 36 Holbach, Paul-Henri Thiry, Baron d’Holbach (1723–89) 7 Hollis, Thomas Brand (1719–1804) 26–7 Hooker, Richard (1554–1600) 215n. 49 Horace (65 BC–8 BC) 51, 52, 194n. 14 House of Commons 123, 130, 135, 143, 145, 168, 169, 175, 176 House of Lords 32, 123, 131, 133, 134, 135, 141, 143, 146, 156, 158 abolition 120 humanity 72, 73, 75, 80, 88 principle of humanity 72, 85 sense of humanity 88 human nature 30, 35, 38, 42–3, 49, 61, 76 Hume, David (1711–76) 3, 24, 39, 50, 51, 53, 54, 57, 66, 67–91, 123, 132, 198n. 5, 199n. 8–9, n. 12, 200n. 28, 201n. 90, 202n. 125, n. 127, 203n. 132 Hume, Joseph (1777–1855) 18, 33, 125, 159, 161, 170, 175, 218n. 8 Hume’s virtues 75–8 Hunt, Henry (1773–1835) 19, 159, 160, 162–3, 166, 167–70, 176, 177, 221n. 80, 222n. 82–3, n. 94, 223n. 111 Hunt, Leigh (1784–1859) 36 Hutcheson, Francis (1694–1746) 51, 52, 53, 72, 89, 194n. 20, 202n. 125, n. 127 identification (identity) of interests 31, 32, 35, 37, 39, 56, 112, 121, 127–8, 208n. 89 see also interest-junctionprescribing principle impartiality 69, 90, 101, 205n. 39 India 27, 29, 37 indirect (law) legislation 3, 46, 105 inequality 64 104 see also equality influence 124, 140, 142, 155

241

intellectual faculties 76, 77 interest-begotten prejudice 147 interest-junction-prescribing principle 98, 99, 127, 143, 148 see also identification of interests interests 30–3, 35–6, 38–40, 43, 44, 45–6, 47, 50, 52, 56, 57, 58, 60, 74, 77, 80, 81, 82, 83, 84, 94–6, 98, 100, 101, 103, 105, 106, 109, 111, 113, 116, 122, 124, 141, 143, 149, 157 see also best judge injunction, identification of interests, interestjunction-prescribing principle, permanent interests, public interest, real interests, self-interest, sinister interest, universal interest class 109 sectional 109–10 international law 3, 8, 45, 93 ipse dixitism 85–9 Ireland 166, 167, 170 is-ought problem 69, 71, 72, 82, 83, 84 Jackson, Andrew, 7th President of the United States (1767–1845) 11, 125, 126–7, 212n. 58 Jacobin(ism) 4, 119, 130, 138–9, 171 James II (1633–1701) 11, 121 Jefferson, Thomas (1743–1826) 119 Jesuits 173 Jewish Disabilities Bill 1830 164 Judges Salaries Bill 1825 161, 175 judicial administration 175 Jury Act 1825 175 Jury-regulating Act 1826 174 justice 50, 52, 53, 54, 66, 68, 69, 74, 76, 78–9, 80, 86, 101, 106, 107, 109, 177, 199n. 12, 201n. 78, n. 82 see also virtues distributive 115 rules of justice 70, 75, 76, 77, 78, 83, 199n. 12 Kant, Immanuel (1724–1804) 119 Karamanli, Yusuf, Pasha of Tripoli (1766–1838) 14–15 Koe, John Herbert (1783–1860) 18, 126

242

Index

Lafayette, Marie-Joseph Paul Yves Roch Gilbert du Motier, Marquis de La Fayette 1757–1834) 11, 16, 181n. 50 Lansdowne see Shelburne Latin America 28 law (function, ends, codes) 46, 56, 64, 81, 82, 83, 84, 85, 87, 93, 94, 97, 148 positivism 53, 150, 152 law reform 30, 166, 167, 174–7 Law Reform Association 21, 158, 161, 170, 174, 225n. 142 legislation see law legislator 55, 80, 82, 83, 87, 93, 94, 95, 97, 105 legitimacy 48 Levellers 119–21 Libel Act 1792 27 liberalism 171, 173 continental liberals 171–3 liberty 47, 64, 117–18, 119, 120, 121, 122, 124, 138, 168, 209n. 8, 210n. 25 moral 154 non-domination 117, 154 Lilly, William (c. 1468–1522) 194n. 14 Lind, John (1731–81) 125 Liverpool, Robert Banks Jenkinson, 2nd Earl of Liverpool (1770–1828) 158 Livingston, Edward (1764–1836) 11, 126, 210n. 36 Local Jurisdiction Bill 1830 170 Locke, John (1632–1704) 24, 52, 53–4, 67, 122, 150, 194n. 22, n. 24 logic of the will 188n. 38 Lolme, Jean-Louis de (1741–1804) 210n. 25 Louriottis, Andreas (1789–1851) 15, 16 Macaulay, Thomas Babington (1800–59) 25, 30, 36–40, 41–5, 47, 50, 59, 66, 112, 189n. 66, 193n. 6 Machiavellian 138 Machiavelli, Nicolò (1469–1527) 119, 121, 124 Mackintosh, James (1765–1832) 8, 19, 26–30, 36, 37, 56, 112, 125, 131, 159, 187n. 20

Madison, James, 4th President of the United States (1751–1836) 11, 125–6 Malesherbes, Guillaume-Chrétien de Lamoignon de Malesherbes (1721–94) 7 Mansfield, William Murray, 1st earl of Mansfield (1705–93) 62 Martineau, Harriet (1802–76) 186n. 146 Marx, Karl (1818–83) 3 Maurice, Frederick Denison (1805–72) 33 maximization (of happiness, security, utility) 34, 43–4, 59, 64, 66, 69, 70, 81, 82, 83, 84, 93, 95, 96, 98, 100, 105, 108, 114, 128, 144 Metropolitan Police Force 175 Metropolitan Political Union 170 Mill, James (1773–1836) 4, 5, 13, 18, 20–1, 22, 25, 29, 36, 37, 41, 42, 49, 50, 54, 112, 159, 160, 185n. 129, 188n. 28, 189n. 66, 195n. 37 ‘On Government’ 30–40, 161, 192n. 147 Mill, John Stuart (1806–73) 1, 17, 18, 21, 22, 24, 29, 32, 33, 34, 36, 49, 51, 69, 70, 89, 93, 95, 96, 100, 101–14, 115, 129, 159, 160, 178, 185n. 129–31, n. 135, 189n. 48, 192n. 139, n. 147, 193n. 8, 203n. 137–8, 205n. 39, 206n. 43 minorities 60–1, 110 Mirabeau, Honoré Gabriel Riqueti, comte de Mirabeau (1749–91) 7 Molesworth, William, 8th baronet (1810–55) 29, 178 monarchy 6, 24, 30, 63, 119, 121, 122, 124, 128, 130, 132, 133, 134–48, 156, 158, 215n. 59, 216n. 79 abolition 18, 32, 117, 118, 120, 130, 131, 217n. 132 constitutional 121, 131, 143 influence 123, 130, 132, 135, 138, 143, 145–6, 153 interests 144, 145 limited 145, 214n. 8

Index mixed 135, 149 monarchical system 132, 146 popular support 146–8 pure (despotic) 135, 145, 149 sinister interest 133 Mora, José Joaquín de (1783–1864) 12 moral education 39 morality 47 moral obligation 78, 89 moral rules 101 moral sense 44, 72, 86, 87, 91, 202n. 125 Morellet, André (1727–1819) 7, 138 motives 44, 46, 52, 72–4, 76, 83, 93, 99, 156, 192n. 134 Napoleon (Napoleon Bonaparte), Emperor of the French (1769–1821) 11 natural law (law of nature) 11, 27, 48, 54, 83, 87, 121–2, 123, 162, 163 see also natural rights natural rights 48, 63, 122, 156, 209n. 6 Neal, John (1793–1876) 11, 16, 23, 36, 181n. 56 Negris, Theodoros (1790–1824) 16 Neville, Henry (1620–94) 121 Newton, Isaac (1643–1727) 67 non-disappointment principle 20, 50, 59, 63–6, 76, 98 Núñez, Sessé Toribio (1766–1834) 12 oaths 57 O’Connell, Daniel (1775–1847) 14, 18, 19, 42, 158, 161, 162, 163–74, 177–8, 218n. 6, 221n. 80, 223n. 111, 224n. 116, n. 120, n. 139 offences 82, 97 office competition process 150 ontology 118 original contract 44, 53, 54, 58, 123 Orlandos, Ioannis (c. 1800–52) 15, 16 Padua, Marsiglio of (c. 1275–c. 1342) 119 Paine, Thomas (1737–1809) 8, 55, 131

243

Paley, William (1743–1805) 47, 50, 57–8, 180n. 36, 196n. 67 pannomion 1, 17, 140, 178 code of laws 3, 10, 17 sub-codes 3 panopticon 4, 6, 7, 9, 16, 18, 27, 98–9, 137, 138, 140, 154, 160, 161, 177, 205n. 24 Parkes, Joseph (1796–1865) 18 parliament 123 see also House of Commons, House of Lords Parliamentary Candidate Society 159, 161 parliamentary reform 26, 174 see also democratic reform, reform bills, representative democracy Parr, Samuel (1747–1825) 27 pauper panopticon 137, 177 Peel, Robert, 2nd baronet (1788–1850) 6, 17, 23, 60, 158, 162, 170, 174–7, 225n. 143, n. 159–60 penal law 3, 9, 27, 28, 48, 82, 93, 97, 131, 160, 161, 175 permanent interests 106–7 Phaedrus (138 BC–c. 70 BC) 52 philosophic radicals 25, 34, 37, 40, 49, 111, 132, 157, 158, 159, 161, 163, 164, 167 Pickersgill, Henry William (1782– 1875) 17 Pitt, William (1759–1806) 2, 3, 4, 6, 7, 8, 27, 138–9, 140 Pitt, William, Earl of Chatham (1708– 78) 124, 138 Place, Francis (1771–1854) 18, 21–2, 36, 119, 134, 160, 161, 186n. 137 Plato (428/7 BC–348/7 BC) 51, 55, 193n. 5, 206n. 43 Plumer, William (1759–1850) 126 police magistrates’ salaries 175 Polyzoides, Anastasios (1802–73) 16 poor law 105 Portland, William Henry CavendishBentinck, 3rd Duke of Portland (1738–1809) 2 Portugal 14, 16, 28 praxis (theory and practice) 3, 1, 92, 79n. 5

244

Index

Prentice, Archibald (1792–1857) 186n. 145 Price, Richard (1723–91) 7, 202n. 125 Priestley, Joseph (1733–1804) 7, 8, 56–7, 195n. 37, n. 53 principles 99 procedural law 3, 48, 93, 97, 131 property 53, 54, 63, 64, 66, 76, 97, 103, 106 distribution 78 inheritance 104, 106, 206n. 51 law 63 Real Property law 170, 175, 177 rights 63, 107, 120, 198n. 118 security 105 property-trumpeting principle 54 prudence 77 psychological entities 58 public good 31, 57, 155 Public House licensing system 170, 177 public interest 56, 57, 66, 80, 83, 95, 98, 120, 121, 130, 141, 143, 147, 149, 152, 153, 155 Public Opinion Tribunal 49, 98, 99, 148, 152–6 public utility 75, 100 Puffendorf, Samuel von (1632–94) 83 Puigblanc, Antonio (1775–1840) 11, 183n. 85 punishment 46, 57, 82, 97, 99, 101 Quarterly Review 26, 36, 37 radicalism 26, 165, 177 radicals 158–63, 174 real entities 118 see also fictitious entities real interests 32–3, 38–9, 43, 83 reason 85, 202n. 115 redistributive policies 103, 104, 105–7, 115 reform bills 1831–32 24, 28, 133, 158, 162 see also Great Reform Act religion 57 separation of church and state 164 religious liberty 129, 164 religious toleration 40, 120

religious utilitarianism 58, 73 Repeal Association 165 repeal of the union 163, 174, 220n. 56 representative democracy 24, 31, 32, 33, 37, 49, 109, 113, 121, 129, 132, 143, 148–56, 159 constitutive power 149, 150 republicanism 5, 6, 24, 117–33, 134, 145, 148, 156 checks and balances 119, 121 republican monarchy, 121, 209n. 16 republican virtues 119 rule of law 119 separation of power 119, 120 republican tradition 24, 118, 119–20, 124 revolution 10, 16, 26, 27, 132–3, 157, 183n. 95 Ricardo, David (1772–1823) 29 rights 47, 101, 107, 197–8n. 107 see also natural rights distributive 106 equal 106–7 political 108, 115, 116, 118 welfare rights 106 women 35 right to silence 176 Rivadavia, Bernadino (1780–1845) 13 Robinson, Henry Crabb (1775–1867) 37 Roebuck, Arthur (1802–79) 29, 37, 159, 161, 178 Romilly, Samuel (1757–1818) 2, 9, 19, 22, 28, 36, 159–60, 161, 180n. 36, 187n 20 rotten boroughs 28, 145, 221n. 67 Rousseau, Jean-Jacques (1712–78) 117, 119, 154 rule utilitarianism 84 see also utilitarian theory Rush, Richard (1780–1859) 210n. 36 Russia 6, 138 Salas, Ramón (1753–1837) 12, 13, 181n. 42 sanctions (physical, moral, political, religious) 46, 47, 53, 87, 152

Index see also sympathy Santander, Francisco de Paul (1792–1840) 13, 14 Say, Jean-Baptiste (1767–1832) 119 Scott, Walter (1771–1832) 213n. 5 Scottish Enlightenment 68 secret ballot see elections securities against misrule 5, 15, 31, 48, 49, 98, 103, 118, 128, 131, 135, 145, 148–50, 152, 153, 183n. 95 see also aptitude, Public Opinion Tribunal security of the community 32, 66, 117, 144 security of the person 30, 64, 65, 95–6, 106, 107, 117, 206n. 46 security of property 69, 78, 116, 144 security-providing principle 96 security of workers 34 Seditious Meetings Act 1795 4 self-interest 38, 55, 76, 78, 155 sentiment 85, 86 Shaftesbury, Anthony Ashley Cooper, 1st Earl of Shaftesbury (1621–1683) 202n. 125 Shelburne, William Petty-FitzMaurice, Earl of Shelburne, 1st Marquess of Lansdowne (1737–1805) 2, 3, 6–7, 8, 9, 18, 56, 62, 138–40, 157, 159, 185n. 131 Sheridan, Richard Brinsley (1751–1816) 27 Sidgwick, Henry (1838–1900) 206n. 40 Sidmouth, Henry Addington, first Viscount Sidmouth (1757–1844) 2 sinecures 5 sinister interest(s) 4, 7, 24, 62, 103, 109, 125, 132, 133, 140–4, 147, 148, 152, 176, 215n. 49–50 confederated sinister interests 26, 142, 157 slavery 2, 37, 40, 65, 220n. 56 Smith, Adam (bap. 1723–90) 67, 105 Smith, John (1767–1842) 170 Smith, John Adams (1788–1854) 125, 211n. 39

245

Smith, Thomas Southwood (1788–1861) 23, 37, 175–6 Snyder, Simon (1759–1819) 126 social contract 122 see also original contract Socrates 193n. 5 Somellera, Pedro Alcántara de (1774–1854) 13 South America 2, 13–14, 16, 173 Southern, Henry (1799–1853) 37 Southey, Robert (1774–1843) 213n. 5 sovereignty 48, 119, 148, 217n. 106 legal 151, 152 popular 120, 150–2 theory 150–2 Spain 11, 28 constitution 15 Empire 125 liberals 40 Spencer, George John (1758–1834) 2 Spencer, Herbert (1820–1903) 205n. 39 Stanhope, Leicester, 5th Earl of Harrington (1784–1862) 15 Stoics 52 subjectivism 78, 86, 88–9 subsistence 64–5 suffrage 26, 28, 30, 34, 66, 128, 148 age limit 34 equal voting rights 93, 110–11, 114 exclusion of women 32, 33–6, 38, 108 literacy qualification 110, 138 plural voting 110, 112, 208n. 88 preferential voting 110, 111 property qualification 32, 54, 125 secret ballot 26, 28, 29–30, 98, 113, 125, 128, 131, 138, 148, 162, 167 tax qualification 110 universal 28, 29, 39, 44, 98, 108, 110, 112, 114, 125, 161, 162 virtual universality 103, 108, 111, 131 supreme constitutive power 103 Sydney, Algernon (1623–83) 119, 121 sympathetic spectator 69 sympathy 55, 68, 73, 74, 75, 79, 85–8, 192n. 134, 203n. 132 sympathetic sanction 87

246

Index

Talleyrand, Charles-Maurice de Talleyrand-Périgord (1754–1838) 11, 18, 181n. 52 taxes (taxation) 65, 103, 106, 110, 144 Test and Corporation Acts 1828 2 Thompson, Thomas Perronet (1783–1869) 21, 25, 37, 38, 41–4, 47–9, 50, 66, 161, 191n. 101, n. 104, n. 108 Thompson, William (1775–1833) 33–6, 40, 189n. 63, 190n. 69 Tocqueville, Alexis-Charles-Henri Clérel de (1805–59) 110, 129, 212n. 78 Tooke, John Horne (1736–1812) 7, 27 Tooke, William (1777–1863) 36 Toreno, José María Quiepo de Llano, Conde de Toreno (1786–1843) 12, 129 Tories 26, 28, 36, 42, 133 Townshend, James (1737–87) 9 Treason Act 1794 4 Tripoli 14–15 Turgot, Anne-Robert-Jacques, Baron de Laune (1727–81) 7 tyranny of the majority 110 tyranny of opinion 129 United Irishmen 2, 164 United States 5, 11 constitution 11 electoral system 127, 212n. 68–9 government 127–8 republic 118, 124–9, 132 separation of church and state 128 universal interest 7, 62, 64, 70, 114, 123, 133, 142, 144, 147, 148, 149, 157 utilitarian theory (structure and application) 92–107 indirect utilitarianism 70, 105 minorities 60–1 rules 93, 94, 100 scape-goat objection 95–6 secondary ends, subordinate principles 93, 100, 131

Unlawful Societies Act 1825 174 utilitarian tradition 51, 68, 70, 90, 193n. 9 classical utilitarianism 67–8, 69, 93, 199n. 9 utility principle 1, 3, 7, 8, 47, 71 see also greatest happiness principle uti possedetis principle 63, 130 see also non-disappointment principle Valle, José del (1780–1834) 10, 13 Vidal, José, Dominican theologian (fl. 1820s) 12 virtue (vice) 50, 52, 72, 73, 79, 85, 86, 88 virtues 69, 71–2, 74, 78 see also David Hume artificial virtues 76 Christian 135 natural virtues 76 social virtues 75, 76, 80 Voltaire, François-Marie Arouet (1694–1778) 1, 89 voting; see elections, suffrage Warburton, Henry (1784–1858) 162–3, 176 Washington, George (1732–99) 8, 11 Wedderburn, Alexander, Baron Loughborough (1733–1805) 7, 62, 139 Wellington, Arthur Wellesley, 1st Duke of Wellington (1769–1852) 158, 218n. 7 Wesleyan religion 164 Westminster elections 1818–19 28, 160, 218n. 19 Westminster Review 21, 22, 29, 50, 128, 133 debate with Edinburgh Review 25–49, 66 Wheeler, Anna Doyle (1785–1848) 35, 189n. 63 Whewell, William (1794–1866) 102 Whigs 25, 26, 28, 33, 36, 37, 54, 66, 131, 159, 161, 172, 175, 222n. 94

Index Whitbread, Samuel (1758–1815) 27 Wilberforce, William (1759–1833) 8, 40 Wilkes, John (1725–1797) 2, 135–6 William IV (1765–1837) 135 William, Frederick, King of the Nederlands (1772–1843) 6

Wilson, George (d. 1816) 27 Witness Examination Bill 1831 174 Wollaston, William (1659–1724) 202n. 125 Wright, Frances (1795–1832) 11

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