Jeremy Bentham.

Bentham's Theory of legislation : being Principes de législation, and, Traités de législation, civile et pénale (Volume 1) online

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1 I B R.AR.Y

OF THE

UNIVERSITY
OF ILLINOIS



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V. I



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UNIVERSITY OF ILLINOIS LIBRARY AT URBANA-CHAMPAIGN



OV29H977

DEC 2 31




L161 O-1096



BENTHAM'S
THEOEY OF LEGISLATION

BEING

PRINCIPES DE LEGISLATION

AND

TRAITES DE LEGISLATION, CIVILE ET
PENALE

TRANSLATED AND EDITED FROM THE FRENCH OF

ETIENNE DUMONT



BY

CHARLES MILNEB ATKINSON



VOL. I.

PRINCIPLES OF LEGISLATION
PRINCIPLES OF THE CIVIL CODE



HUMPHREY MILFORD

OXFORD UNIVERSITY PRESS

LONDON, EDINBURGH, GLASGOW

NEW YORK, TORONTO, MELBOURNE, BOMBAY

1914



v.l



INTEODUCTION.



BENTHAM did not himself write any treatise, nor was he
responsible for any publication, that bore the name ' Theory
of Legislation.' The title came into vogue many years
after Bentham's death, and was applied to a translation of
portions of a book written in the French tongue by one
Dumont, a Swiss. This book was published, in 1802, at
Paris, in three volumes, and was entitled Traites de Legisla-
tion Civile et Penale, Precedes de Principes Generaux de
Legislation, et d'une Vue d'un Corps complet de Droit :
termines par un Essai sur V Influence des Terns et des Lieux
relativement aux Lois. Par Mr. Jeremie Bentham, Juris-
consulte Anglois. Publies en Francois par Et. Dumont, de
Geneve, d'apres les Manuscrits conftes par VAuteur.

The publication came about in this wise: Towards the
close of the eighteenth century, Etienne Dumont (1759-
1829), Bentham's Swiss expositor, had long been on terms
of the closest friendship with Samuel Romilly, whom he
had met at Geneva in 1781. Dumont held office, for a
short time, as pastor of the Protestant Church at St. Peters-
burg, and afterwards came to reside in London, where
he was introduced by Romilly to Lord Lansdowne, who
had hoped to secure his services as tutor for his younger
jon, Lord Henry Petty. It was on his return from Russia
in 1788 that Bentham, through his intimate and excellent
friends Romilly and Lansdowne, made the acquaintance
of the man who was destined, in Macaulay's phrase, to
become to him ' what Aaron was to Moses, the expositor

of great truths, which would else have perished for want of

iii

319817



iv Introduction.

a voice to utter them with distinctness.' During the autumn
of 1788, Bentham himself handed to Dumont several of his
manuscripts on legislation. Shortly afterwards Dumont left
London for Paris, with a view to securing the complete
restoration of Genevese liberty; and many other manu-
scripts were sent, through Romilly, for his perusal. Dumont
communicated extracts to the Courrier de Provence, and
offered to superintend the publication of the manuscripts
as a whole; but it was not until 1802 that the Traites de
Legislation appeared in book-form.

More than sixty years later there was published, in one
volume, a translation of certain selected portions of
Dumont's work, under the style of Bentham's Theory of
Legislation, the title by which the volume is still known.
It comprises an English version of Principes de Legislation
(vol. i., pp. 1-140); Principes du Code Civil (vol. ii.,
pp. 1-236); Principes du Code Penal (vol. ii., pp. 239-434;
vol. iii., pp. 1-199). The Penal Code had been subdivided
by Dumont into four parts : Des Delits ; Eemedes Politiques
contre le Mai des Delits ; Des Peines ; Des Moyens In-
directs de prevenir les Delits.

In Sir John Bowring's edition of Bentham's works,
which was issued at intervals between 1838 and 1843,
there had already appeared translations of most of those
portions of the Traites de Legislation which were extracted
to form the volume known as the Theory of Legislation
i.e., Principes du Code Civil (Bowring, vol. i., pp. 297-358);
Eemedes Politiques contre le Mai des Delits (Bowring, vol. i.,
pp. 367-388); Des Moyens Indirects de prevenir les Delits
(Bowring, vol. i., pp. 533-580). Des Delits consists, in the
main, of adaptations from the Introduction to the Principles
of Morals and Legislation (Bowring, vol. i., pp. 1-154); while
chapters xiii. and xiv. of the Introduction, as they appear in
Bowring's edition, are themselves taken direct from the
work of Dumont (vol. ii., pp. 259-261 ; pp. 268-284; vol. i.,
pp. 89-97).



Introduction. v

In the present edition the text of Dumont has been
translated afresh; but the title Theory of Legislation, so
long recognized, has been retained.

' The plan,' wrote Bentham, in 1795, to the Due de
Liancourt, ' was that Dumont should take my half -finished
manuscripts as he found them half English, half English-
French and make what he could of them in Genevan
French, without giving me any further trouble about the
matter. Instead of that, the lazy rogue comes to me with
everything that he writes, and teases me to fill up every
gap he has observed.'

In editing Bentham's writings, Dumont simplified the
text, softened and corrected the style, and ' toned down '
passages relating to religious topics. Sometimes he merged
several manuscripts into one, and reconciled any discrepant
views; though M. Elie Halevy, who has devoted much
research to the subject, declares that Dumont exaggerates
the importance of the work accomplished by him in this
regard: Apres examen des manuscrits, nous osons dire que
Dumont exagere Mmportance de ce travail de fusion (La
Jeunesse de Bentham, p. 372). We may, by way of illus-
tration of the methods employed, give, in parallel passages,
Bentham's original manuscript, dealing with the account
to be taken of the ' consequential ' evil of an offence, and
the version of his expositor :



Bentham. D'un delit dont re-
suite un mal consequentiel, le mal
total sera plus grand que s'il n'en
resultoit point de tel mal. Si, en
consequence d'un emprisonnement
qu'il a subi ou d'une blessure qu'il



Dumont. Le mal total d'un
delit est plus grand s'il en resulte
un mal consequentiel, portant sur
le meme individu. Si par les
suites d'un emprisonnement ou
d'une blessure, vous avez manque



a recue, un homme a manque, i une place, un mariage, une affaire
par exemple, une place qu'on lui lucrative, il est clair que ces pertes
destinoit, un mariage qu'il recher- sont une addition a la masse du
choit, ou un gain que lui preparoit mal primitif (vol. ii., p. 254).
son commerce, il n'est pas besoin
de dire que ces pertes ajoutees a
1' emprisonnement ou a la blessure
font une masse de mal plus con-
siderable que n'en feroit 1' em-
prisonnement ou la blessure meme.



vi Introduction.

In these circumstances, little direct responsibility can
attach to Bentham for imperfections in the French version
of his writings ; still less can he be held responsible in respect
of any defects in the style or diction of the English trans-
lations. Mr. Hildreth, who translated the parts of the
Traites that constitute the Theory of Legislation, asserts
that Bentham ' was not skilful in the art of composition ;
he did not possess the gift of eloquence.' So, too, Hazlitt
said : * He (Bentham) writes a language of his own that
darkens knowledge. His works have been translated into
French: they ought to be translated into English.' No
doubt, in later life, Bentham's use of language was so
peculiar, and the construction of his sentences so intricate,
as to give rise to much obscurity, quite apart from any
difficulty that was caused by his strangely invented phrase-
ology his ' new lingo,' as he called it. But in the days
when he produced the greater part of the manuscripts en-
trusted to Dumont his style was pure and nervous, and his
writings were marked by singular care, precision, and
polish. ' English literature,' wrote Sir Samuel Romilly,
' hardly affords any specimens of a more correct, concise,
and perspicuous style than that of the Fragment on Govern-
ment.'' The Fragment was published in 1776, when
Bentham was in his twenty -ninth year. John Stuart Mill
was evidently in full agreement with Romilly, for he, too,
declared that ' a Benthamiana might be made of passages
worthy of Addison or Goldsmith.'

In 1772, while yet a very young man, Bentham was
already collecting materials for a treatise designed to assail
the * lawless science of the law,' under the title of Critical
Elements of Jurisprudence. Many years afterwards he used
to say that, being set to read ' old trash ' of the seven-
teenth century, he looked up to the huge mountain of law
in despair : the ' Daemon of Chicane ' had already appeared
in all his hideousness, and war had been declared against
him.



Introduction. vii

In 1777 the Societe Economique of Berne offered a prize
of fifty louis for the best plan of a code of Criminal Law;
a further sum of a like amount was added to the prize by
Voltaire and Thomas Hollis. When this offer came to the
knowledge of Bentham, he resolved to compete. So early
as 1775 he had prepared the manuscripts from which
Dumont, in 1811, compiled the Theorie des Peines ; and in
March, 1779, he addressed to the Societe Economique a
letter containing the plan of his proposed Code, though he
appears to have set to work too late to take part in the
competition.

However, a twelvemonth later he sent to the press a num-
ber of manuscripts which were printed, but not at that time
published. After an interval of nine years, with ' a patch at
the end and another at the beginning,' as the author ex-
plained in a letter to Lord Wycombe, they appeared in a
volume entitled An Introduction to the Principles of Morals
and Legislation. In the autumn of 1781 Bentham had taken
down a copy of the then recently printed sheets to Lord
Shelburne's seat at Bo wood. His host formed a high
opinion of the work, and insisted upon reading this ' driest
of all dry metaphysics ' to the ladies after tea; but Lord
Camden, the great Whig lawyer, who joined the party at
Bowood, confessed to Lord Shelburne that even he found
a difficulty in understanding the book, and its publication
was delayed until 1789. ' The edition was very small,'
wrote Bentham, ' and half of it had been devoured by rats.'
The Introduction did not prove a success, and one
reason for its failure was tersely stated by Dumont in his
' Discours Preliminaire,' prefixed to the Traites de Legis-
lation. ' In using several chapters of that work (i.e., the
Introduction) for the purpose of developing the General Prin-
ciples of Legislation, I have sought to avoid that which
interfered with its success forms too scientific, subdivisions
too multifarious, analyses too abstract.'

On the appearance of the Traites de Legislation in June,



viii Introduction.

1802, Dumont's hopes of success were to a large extent
realized. ' It is very entertaining to hear Bentham speak
of it,' wrote Romilly to Dumont : ' he says that he is
very impatient to see the book, because he has a great curi-
osity to know what his own opinions are upon the subjects
you treat of.' The Empress Dowager of Russia expressed
a wish that Durnont, who was visiting St. Petersburg in

1803, should be presented to her, and orders were given for
a careful rendering of the Traites into the Russian tongue.

Romilly, the accomplished but overworked lawyer,
talked of translating the book into English, and it is greatly
to be regretted that he could not find time to execute his
purpose ; for no other man could have been found so con-
spicuously well fitted for the task. In occasional passages
the meaning of Dumont's work is far from being clear or
unambiguous. It is probable that he did not fully appreciate
some of Bentham's allusions to English laws and usages;
while bald, loose, or too literal translation has, at times,
only added to the existing obscurity. Thus, where Ben-
tham wrote ' breach of trust,' we find ' la violation de con-
fiance ' rendered as ' violation of confidence ' ; * peines de
la maladresse ' as ' pains of mal-address ' ; ' le viol est
pire que la seduction ' becomes ' robbery is worse than
seduction ' ; ' tous les delits impliquant violation de
depot,' ' all offences which imply a violation of deposit,'
etc.

In the present edition, where access has been had to the
original writings of Bentham, or the same ideas have been
found expressed in other portions of his work, the text has
been based on the passages referred to rather than on the
presentment of his expositor in the Traites, in case clearness
or simplicity seemed to be favoured by the departure.

It will appear from the following pages that all Bentham's

schemes of legislation were founded on the principle of

i utility. 'The right end of all human action is,' said he,

' ' the creation of the largest possible balance of happiness ;'



Introduction. ix

and this tendency to produce happiness is what he meant
by utility. 1 He regarded this ' sacred truth ' as the sure
foundation, not only of morals, but of the science of legisla-
tion. In his view, Nature has placed mankind under the
governance of two sovereign masters, ^pleasure and pain.
He sought to measure the good or evil of an action by the
quantity of pleasure or pain physical or intellectual
resulting from it. In this way he established a basis for
the theory of legal rewards and punishments. It will be
generally allowed that he attached too high a degree of im-
portance to the doctrine, but it was necessary for him to
find some first principle which he could receive as self-
evident. Armed with this principle of ' utility,' he felt
himself fully equipped to encounter and overcome any
difficulty, to remove every obstacle from his path. ' He
found the philosophy of law a chaos,' wrote J. S. Mill
in 1838, ' he left it a science; he found the practice of the
law an Augean stable, he turned the river 'into it which is
mining and sweeping away mound after mound of its
rubbish.' Perhaps his grandest achievement, said Bulwer
Lytton, was the example which he set of treating law as no
peculiar mystery, but as a simple piece of practical business,
wherein means were to be adapted to ends, as in any of the
other arts of life ; and Lytton was nearer the mark than Mill.
Bentham believed that the whole duty of man might be
enforced by the operation of Sanctions ('physical,'
'political or legal,' 'moral or popular,' and 'religious').
That is to say, he conceived certain pains and pleasures
so annexed to actions as to form bonds, constraining a man,
as it were, to the observance of some particular rule of life
or conduct. ' Many men,' said he, ' fear the wrath of
Heaven; many men fear loss of character; but all men are
acted upon, more or less, by the fear of the gaol, the scourge,
the gallows, the pillory, and so forth.'

1 The authorities in support of statements contained in this Intro-
duction are cited in the present editor's Jeremy Bentham, 1905.



x Introduction.

But it will, further, appear in the following pages that
Bentham recognized the broad distinction to be observed
between the science of Morals (or, as he called it, Deon-
tology) and the science of Political Philosophy, which em-
braces the art of Legislation. It may tend to the greatest
happiness of the community that a man should, of his own
free will, adopt a certain course of action; and yet it may
well be unwise and injurious to compel him to adopt such
a course of action against his inclination. It may, indeed,
be the man's duty so to act, and yet it may not be right
for the legislator to exercise compulsion ; for the very exer-
cise of compulsion may involve elements of mischief to the
community which would countervail the good to be accom-
plished by enforcement of the action. In Bentham's view,
much of the mischievous legislation which he assailed had
come into existence through a disregard of this fundamental
and cardinal distinction.

So, too, from the point of view of ' utility,' all punish-
ment is in itself an evil; for every punishment involves the
infliction of pain, and pain is an evil. We must therefore
see to it that the punishment is not in excess of that which
is absolutely necessary. The enactment of a fixed and posi-
tive penalty for a noxious action of slight or varying im-
portance, or of a purely private nature, might well entail
the creation of an evil greater than the one sought to be
i suppressed.

In Bentham's days it was not generally recognized that
the main end of punishment was the repression and preven-
tion of crime. There were many persons ready to act on
the belief that it mattered little how many murders or
felonies were committed, provided only that some man
was hanged in respect of each one of them. The principle
of punishment commonly accepted was that of retaliation
an eye for an eye, and a tooth for a tooth the yielding to the
impulse of anger, the gratification of the passion of revenge.
Bentham allowed that punishment should be exemplary



Introduction. xi

in its character and in its surroundings ; but he maintained
that the certainty of a mild punishment, properly allotted,
was far more effective than the mere chance of suffering
death. The people will not give their aid to the enforce-
ment of a severe and unpopular code; and, moreover, when
the criminal classes see that the law hits at random and
with no certain aim, they are quite ready to gamble on its
chances.

The objects which the legislator should seek to attain are
Security, Subsistence, Abundance, and Equality. Each of
these must, more or less, make sacrifices to the others, and
the adjustment of their conflicting claims presents a problem
extremely difficult of solution. Inspired by Hume, Ben-
tham recognized ' security ' as fundamental in the civil
code. It is the fount of life, of subsistence, of abundance,
of happiness ; when ' security ' and ' equality ' are in
opposition, there should be no hesitatio^i ' equality '
must give way. The establishment of ' equality ' is a
chimsera; all that can be done is to diminish inequality.
'The treasure of the comparatively rich is an insurance
office to the comparatively indigent ' ; but the treasure-
house must not be despoiled until the calamity insured
against has actually occurred.

A few days before his death, in 1829, Dumont wrote :
' What I most admire is the manner in which Mr. Bentham
has laid down his principle, the way he has developed it,
v and the rigorous logic of his deductions from it. The first
book of the Traites displays the art,of reasoning upon this
principle, of distinguishing it from the false notions that
usurp its place. It shows, too, how evil may be analyzed,
and exhibits the strength of the legislator in the four
sanctions. . . . Egoism and materialism ! How absurd !
Look in the catalogue of pleasures for the rank which the
author assigns to those of benevolence, and see how he finds
in them the germ of all social virtues ! The treatise on
Des Moyens Indirects de prevenir des Delits contains three



xii Introduction.

chapters sufficient to pulverize all these miserable objec-
tions. One is on the cultivation of benevolence, another on
the proper use of the motive of honour, and the third on the
importance of religion when properly directed that is to
say, such religion as conduces to the benefit of society. I
am convinced that Fenelon himself would have subscribed
to every word of this teaching !' (cf. post, vol. ii.,
pp. 274-294).

To the reader of the present day many passages in the
following pages will seem mere platitudes, or, at the best,
to enshrine very obvious truths. But, as Mr. Justice
Stephen observed: 'If anyone would take the trouble of
reading it [The Theory of Legislation], with an early edition
of Blackstone on one side, and a late edition of Stephen's
Commentaries on the other, he would be able to satisfy
himself that it has met with a degree of success which
perhaps no other book ever gained in this country ' (see
Mr. H. J. Randall's interesting article on Jeremy Bentham
in the Law Quarterly Review for July, 1906). It may, too,
be recalled that Professor Dicey's masterly lectures on
Law and Public Opinion manifest, in convincing fashion,
the great influence exerted by Bentham' s writings for more
than a generation after his death.

Dumont's name is appended to such of the footnotes in
the text as are taken from his work. Most of them are
based on passages extracted by him from the Benthamic
manuscripts, but for some of them he was himself entirely
responsible.

C. M. A.

November, 1913.



CONTENTS OF VOL. I.



PRINCIPLES OF LEGISLATION.

CHAPTFR PAGE

I. OF THE PRINCIPLE OF UTILITY - - i

II. THE ASCETIC PRINCIPLE - - 6

III. THE ARBITRARY PRINCIPLE; OR, THE PRINCIPLE OF

SYMPATHY AND ANTIPATHY - " I " -9

i. The Arbitrary or Capricious Principle - - 9

2. Causes of Antipathy - - 15

IV. OPERATION OF THESE PRINCIPLES IN MATTERS OF LEGIS-

LATION - - - Ha %

V. OBJECTIONS TO THE PRINCIPLE OF UTILITY ANSWERED - 22 *

VI. PLEASURES AND PAINS: THEIR VARIOUS KINDS - 28 %

i. Simple Pleasures - - 29

2. Simple Pains - - 32

VII. PAINS AND PLEASURES CONSIDERED AS SANCTIONS - 37

-x VIII. THE ASSESSMENT OF PLEASURES AND PAINS - 42

IX. OF CIRCUMSTANCES INFLUENCING SENSIBILITY - - 45

2. Secondary Considerations which affect Sensibility - 52

3. Practical Application of the Theory of ' Sensibility ' 57
X. ANALYSIS OF POLITICAL GOOD AND EVIL: HOW THEY ARE

DIFFUSED THROUGH SOCIETY - - 65

XI. REASONS FOR REGARDING CERTAIN ACTIONS AS CRIMES - 72
XII. OF THE LIMITS WHICH SEPARATE MORALS FROM LEGISLA-

TION ... ... 79 I

XIII. FALSE METHODS OF REASONING IN MATTERS PERTAINING

TO LEGISLATION - - - ( 88
xiii



xiv Contents.



PRINCIPLES OF THE CIVIL CODE.



PAGE

DUMONT'S INTRODUCTION 114



PART I.
OBJECTS OF CIVIL LAW.

CHAPTER

I. RIGHTS AND OBLIGATIONS - - 1191

II. OBJECTS OF CIVIL LAW DISTINGUISHED - - 123

III. RELATIONS BETWEEN THE OBJECTS OF THE CIVIL LAW - 126

IV. OF LAWS RELATIVE TO SUBSISTENCE - - 129
V. OF LAWS RELATIVE TO ABUNDANCE - - 131

VI. PATHOLOGICAL PROPOSITIONS UPON WHICH THE ADVAN-
TAGE OF EQUALITY is FOUNDED - 133

VII. OF SECURITY - 142

VIII. OF PROPERTY - ... 145

IX. ANSWER TO AN OBJECTION - - - 148

X. ANALYSIS OF THE EVILS RESULTING FROM ATTACKS UPON

PROPERTY - - - 151

XI. SECURITY AND EQUALITY IN OPPOSITION - 157

XII. THE RECONCILIATION OF SECURITY AND EQUALITY - 161

XIII. SACRIFICES OF SECURITY TO SECURITY - - 163

XIV. OF SOME CASES OPEN TO DISCUSSION - - 167

i. Of Indigence ... . 167

2. Of the Charges Incidental to Public Worship- 175

3. The Cultivation of the Arts and Sciences - 177

XV. SOME. INSTANCES OF ATTACKS UPON SECURITY - - 181

XVI. OF FORCED EXCHANGES ... - 192

XVII. POWER OF THE LAWS OVER EXPECTATION - - 196




Contents. xv

PART II.

THE DISTRIBUTION OF PROPERTY.

CHAPTER

XVIII. OF TITLES WHICH CONFER A RIGHT OF PROPERTY
XIX. ANOTHER MODE OF ACQUISITION: TITLE BY CONSENT
XX. ANOTHER MEANS OF ACQUISITION: SUCCESSION -
XXI. CONCERNING WILLS

XXII. OF RIGHTS RESPECTING SERVICES, AND THE MEANS OF

ACQUIRING THEM - - * 247

XXIII. COMMUNITY OF GOODS TEN ANCY IN COMMON: THEIR

INCONVENIENCES ..... 257

XXIV. DISTRIBUTION OF Loss - - 261

PART III.
INTRODUCTION.

XXV. MASTER AND SERVANT ..... 264

XXVI. OF SLAVERY - ^ (&

XXVII. OF GUARDIAN AND WARD - - 277

XXVIII. OF FATHER AND CHILD - - -282

XXIX. OF MARRIAGE - - - - - . 285

i. Between what Persons shall it be permitted? - 285

2. For what Period ? An Inquiry as to Divorce 292

3. On what Conditions ? - - - - 302

4. At what Age ? - 304

5. At whose Choice ? ... 305

6. How many Parties to the Contract - - 307

7. What Formalities should be observed ?- - 309



TREATISES ON LEGISLATION.



PRINCIPLES OF LEGISLATION.
CHAPTER I.

OF THE PRINCIPLE OF UTILITY.

THE end and aim ffi a legislato^should be the HAPPINESS utility
of the people. Injnattera ^of legislation, GENERAL UTILITY 1 the
shouTcTbe h^sjguiding principle. The scignce^oi .legislation
consists, therefore, in determining cchat makes for the
gOpdcpf the particular communitycwhose interests are at
stake, while its art consists in contrivingc-some means of
realization. This Principle of Utility, when enunciated
in vague and general terms, is rarely challenged. It is even



looked upon as a sort of commonplace both in morals and rather

* than real.

in politics. But one must not thereby be deceived; for
the assent, though almost universal, is often apparent only.
The same ideas are not attached to the principle : the

1 Cf. Introduction to the Principles of Morals and Legislation, chap. i.



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