BEN 



247 



BEN 



It will Vie unnecessary to point out the degree either of 

 metaphysical or logical merit displayed in this classification, 

 which in truth is only an example of what is frequent in 

 Benthara a substitution of cataloguing for analysis. Any- 

 thing like the application of a searching analysis would 

 nave greatly diminished the catalogue, and hv consequence 

 greatly simplified the subject, and anything like the appli- 

 cation of a logical method would have greatly altered the 

 arrangement. Bentham, with his usual honest candour, 

 gives in a note the following classification by Condillac (Lo- 

 gique, ch. vii.) : 1. Attention: 2. Comparaison ; 3. Juge- 

 ment ; 4. Rellexion ; 5. Imagination ; G. Raisonnement. 



In the essay from which the above is taken, Bentham has 

 indeed fully succeeded in showing the faultiness of D'AIem- 

 bert s Systcme figure des Connaissances humaines, in the 

 Dismurs preliminaire of the Encyclopedie, intended, as 

 D'Alembert himself says, as an improvement upon the 

 encyclopaedical table of Lord Bacon ; but the one which he 

 has offered in the room of it is not a whit less faulty, though 

 the faults are different. The limits to which we are here 



necessarily confined will only permit us to indicate these 

 things without going into the proof of them. The reader 

 who wishes for more satisfactory knowledge on the subject 

 will naturally refer to the works themselves, which are well 

 worthy of perusal on many accounts, but on none more than 

 their pre-eminent tendency to incite to thought the mind of 

 him who reads them. 



From the general character of Bentham's tabularization, 

 however, we would except the division which seems to have 

 been conceived by him of the field of law. Among some 

 valuable tables which Professor Austin drew up for the 

 use of his class in the London University, was one exhibiting 

 the Corpus Juris (' Corps complet de Droit ), arranged in 

 the order which seems to have been conceived by Mr. Ben- 

 tham, as expounded in his Trailes de Legislation, more 

 particularly in the Vue generals d'un Corps complet da 

 Droit. It is particularly worthy of remark that, in the 

 table of which we subjoin an outline, Bentham, without 

 intending it, has formed a corpus juris very nearly similar 

 to that of the Roman classical jurists. 



National, Municipal, or Internal, Law (i. e. Jus Civile, in one of its numerous senses) : 

 containing -\ 



International, or External Law (i. e. Jus 

 lulegrarum Gentium). 



Droit Politique 

 (i.. Jus Fublicum): containing 



Droit Civil (as opposed to Droit Politique [i. e. Jus Privatuml i 

 containing - 



Droit Constitutionnel : relating to 



1. The Powers of the Sovereign, in the large 

 and correct Mgniflcatinn. 



2. The Distribution of the Sovereign Poweri 

 when not united in a single person. 



3. The Duties of the governed towards the 

 Sovereign., 



Law regarding 



The Rights and Obligations of Persons 

 who re clothed with Political Powers 

 in subordiuauou to the Sovereign. 



Code General, ou Lois Generales (i.e. JusRerum) : 

 containing -7 



Codes Particuliers ou Recueil de Lois Particulieres (i. e. Jus Persouarum) 



Droit Subrtantif (or The Law) : 



containing -i 



Droit Adjectif (or Law of Procedure) : 

 containing -i 



Droit Civil. 



Droit Penal. 



Civil 



Law of Civil Procedure. 



Lav of Criminal Procedure. 



Bentham's great merit, and that probably by which his 

 name will be most remembered, was as a philosophical 

 jurist, and writer on legislation. His excellence in this de- 

 partment mainly consisted in substituting rational principles 

 as rules of law in the place of the time-honoured maxims 

 which hardly any one before his time had dared to dispute. 

 It has been said, indeed, and said truly, that the doctrine of 

 utility, as the foundation of virtue, is as old as the earliest 

 Greek philosophers (see the Protagoras of Plato ; also the 

 Memorabilia of Xenophon) ; and has divided the philosophic 

 world, in every age of philosophy, since their time. But 

 the definitions of natural law, natural justice, and the like, 

 which pervade all the writers ou legislation and law from 

 TJlpian down to Montesquieu and Blackstone, show how 

 little progress had been made, previously to Mr. Bentham, 

 in the application of this great principle to the field of law. 

 For his services in this department Bentham deserves, 

 and we doubt not will receive, the admiration and the grati- 

 tude of all ages.* 



It is impossible to know what the philosophy of jurispru- 

 dence and legislation owes to Bentham, without knowing 

 what was the condition of it when he began his labours. 

 No system of law then established, least of all that of the 

 country of his birth, exhibited in its construction a compre- 

 hensive adaptation of means to ends. The ages to which 

 the English law owed its foundations may have produced 

 some works in architecture deserving of admiration, but 



From these absurd and misty sublimities, however, the exposition given 

 by Socrates (Xenoph. Mem. lib. iv. :ap. 4) is remarkably free. Socrates en- 

 irs, with his usual acuteness, to Drove ro etvro VtKttt'oi Tt xaii ^fiifiov. 

 ' ,-ct is lo show that that is unjust which \t a breach of some law hu- 

 ni. in < t. p.. *et l.y ill.- sovereign legislator to subjects) or divine, and he takes 

 the principle of utility to be the index or exponent of this class of laws. He 

 contends with ranch ingenuity that the misery, which M the inevitable conse- 

 quence of certain acts, is at once the sanction with which the belly lias armeil 

 sorao tif his unrevealed commands and by which h revealt them, lint the 

 Roman Uwym anil iheir moit-rn successors, in almost every country of Ku- 

 -t. ;ul .,f takin,' their philosophy from Socrates, adopted ihc fustian of 

 the Stacs. Conclusions very similar to those of Socrates are arrived at by 

 Professor Austin in his ' Province of Jurisprudence Determined.' 



it has certainly produced no such fabric of law, notwith- 

 standing the loud eulogies of the English lawyers. And 

 that fabric, faulty from its foundations, was rendered still 

 more so by the patch-work manner in which additions were 

 made to it. Though the Gothic structqres of Westminster 

 Hall and Abbey would be far too favourable a representation 

 of the Gothic structure of our law, there was till lately near 

 them, in the two houses of parliament, with their marked 

 want of architectural adaptation to their end, their incon- 

 venient committee rooms, and their endless labyrinth of 

 circuitous staircases and passages that ' led to nothing,' no 

 very imperfect type, no bad material image of it. To borrow 

 the significant language of Mr. Bentham nimself (Rationale 

 of Judicial Evidence, vol. i. p. 6), ' It appeared to me,' he 

 says, 'that no private family, composed of half a dozen 

 members, could subsist a twelvemonth under the governance 

 of such rules : and that were the principles from which they 

 flow to receive their full effect, the utmost extravagance of 

 Jacobinism would not be more surely fatal to the existence 

 of society than the sort of dealing which, in these seats of 

 elaborate wisdom, calls itself by the name of justice. That 

 the incomprehensibility of the law, a circumstance which, 

 if the law were wise and rational, would be the greatest of 

 all abuses, is the very remedy which, in its present state, 

 preserves society from utter dissolution ; and that if rogues 

 did but know all the pains that the law has taken for their 

 benefit, honest men would have nothing left they could call 

 their own.' 



The English people had contrived to persuade themselves 

 that the English law, as it was when Mr. Be-ntham found 

 it, was the perfection of reason. It was a fabric reared by 

 the most powerful and exalted intellects, by wisdom little 

 and only short of divine. To utter a word therefore that 

 might tend to impugn such a system was the height of 

 arrogance and presumption ; to raise a hand against it was 

 absolute profanation, nay, the most atrocious sacrilege. 

 Accordingly, when Mr. Bentham commenced his attack, he 



