584

BENTHAM LEAVES MORALITY AS IT WAS.

and evil of our lives, we proceeded with the perusal of Mr. Bentham's endless tables and divisions, with a mixture of impatience, expectation, and disappointment. Now that we have finished our task, the latter sentiment alone remains; for we perceive very clearly that M. Dumont's zeal and partiality have imposed upon his natural sagacity, and that Mr. Bentham has just left the science of morality in the same imperfect condition in which it was left by his predecessors. The whole of Mr. Bentham's catalogues and distinctions tend merely to point out the Number of the causes that produce our happiness or misery, but by no means to ascertain their relative Magnitude or force; and the only effect of their introduction into the science of morality seems to be, to embarrass a popular subject with a technical nomenclature, and to perplex familiar truths with an unnecessary intricacy of arrangement.

Of the justice of this remark any one may satisfy himself, by turning back to the tables and classifications which we have exhibited in the former part of this analysis, and trying if he can find there any rules for estimating the comparative value of pleasures and pains, that are not perfectly familiar to the most uninstructed of the species. In the table of simple pleasures, for instance, what satisfaction can it afford to find the pleasure of riches set down as a distinct genus from the pleasure of power, and the pleasure of the senses unless some scale were annexed by which the respective value of these several pleasures might be ascertained? If a man is balancing between the pain of privation and the pain of shame, how is he relieved by merely finding these arranged under separate titles? or, in either case, will it give him any information, to be told that the value of a pain or pleasure depends upon its intensity, its duration, or its certainty? If a legislator is desirous to learn what degree of punishment is suitable to a particular offence, will he be greatly edified to read that the same punishment may be more or less severe according to the temperament, the intelligence, the rank or the fortune of the delinquent; and that the circum

HIS DISTINCTIONS MOSTLY QUITE USELESS. 585

stances that influence sensibility, though commonly reckoned to be only nine, may fairly be set down at fifteen? Is there any thing, in short, in this whole book, that realises the triumphant Introduction of the editor, or that can enable us in any one instance to decide upon the relative magnitude of an evil, otherwise than by a reference to the common feelings of mankind? It is true, we are perfectly persuaded, that by the help of these feelings, we can form a pretty correct judgment in most cases that occur; but Mr. Bentham is not persuaded of this; and insists upon our renouncing all faith in so incorrect a standard, while he promises to furnish us with another that is liable to no sort of inaccuracy, This promise we do not think he has in any degree fulfilled; because he has given us no rule by which the intensity of any pain or pleasure can be determined: and furnished us with no instrument by which we may take the altitude of enjoyment, or fathom the depths of pain. It is no apology for having made this promise, that its fulfilment was evidently impossible.

In multiplying these distinctions and divisions, which form the basis of his system, Mr. Bentham appears to us to bear less resemblance to a philosopher of the present times, than to one of the old scholastic doctors, who substituted classification for reasoning, and looked upon the ten categories as the most useful of all human inventions. Their distinctions were generally real, as well as his, and could not have been made without the misapplication of much labour and ingenuity: But it is now generally admitted that they are of no use whatever, either for the promotion of truth, or the detection of error; and that they only serve to point out differences that cannot be overlooked, or need not be remembered. There are many differences and many points of resemblance in all actions, and in all substances, that are absolutely indifferent in any serious reasoning that may be entered into with regard to them; and though much industry and much acuteness may be displayed in finding them out, the discovery is just as unprofitable to science, as the enumeration of the adverbs in the creed, or the dissyl

586 BENTHAM

HIS SYSTEM ALREADY FAMILIAR,

lables in the decalogue, would be to theology. The greater number of Mr. Bentham's distinctions, however are liable to objection, because they state, under an intricate and technical arrangement, those facts and circumstances only that are necessarily familiar to all mankind, and cannot possibly be forgotten on any occasion where it is of importance to remember them. If bad laws have been enacted, it certainly is not from having forgotten that the good of society is the ultimate object of all law, or that it is absurd to repress one evil by the creation of a greater. Legislators have often bewildered themselves in the choice of means; but they have never so grossly mistaken the ends of their institution, as to need to be reminded of these obvious and elementary truths.

If there be any part of Mr. Bentham's classification that might be supposed to assist us in appreciating the comparative value of pleasures and pains, it must certainly be his enumeration of the circumstances that affect the sensibility of individuals. Even if this table were to fulfil all that it promises, however, it would still leave the system fundamently deficient, as it does not enable us to compare the relative amount of any two pleasures or pains, to individuals in the same circumstances. In its particular application, however, it is truly no less defective; for though we are told that temperament, intelligence, &c., should vary the degree of punishment or reward, we are not told to what extent, or in what proportions, it should be varied by these circumstances. Till this be done, however, it is evident that the elements of Mr. Bentham's moral arithmetic have no determinate value; and that it would be perfectly impossible to work any practical problem in legislation by the help of them. It is scarcely necessary to add, that even if this were accomplished, and the cognizance of all these particulars distinctly enjoined by the law, the only effect would be, to introduce a puerile and fantastic complexity into our systems of jurisprudence, and to encumber judicial procedure with a multitude of frivolous or impracticable observances. The circumstances, in consi

IN ITS APPLICATION DEFECTIVE.

587

deration of which Mr. Bentham would have the laws vary the punishment, are so numerous and so indefinite, that it would require a vast deal more labour to ascertain their existence in any particular case, than to establish the principal offence. The first is Temperament; and in a case of flogging, we suppose Mr. Bentham would remit a few lashes to a sanguine and irritable delinquent, and lay a few additional stripes on a phlegmatic or pituitous one. But how is the temperament to be given in evidence? or are the judges to aggravate or alleviate a punishment upon a mere inspection of the prisoner's complexion. Another circumstance that should affect the pain, is the offender's firmness of mind; and another his strength of understanding. How is a court to take cognizance of these qualities? or in what degree are they to affect their proceedings? If we are to admit such considerations into our law at all, they ought to be carried a great deal farther than Mr. Bentham has indicated; and it should be expressed in the statutes, what alleviation of punishment should be awarded to a culprit on account of his wife's pregnancy, or the colour of his children's hair. We cannot help thinking that the undistinguishing grossness of our actual practice is better than such foppery. We fix a punishment that is calculated for the common, average condition of those to whom it is to be applied; and, in almost all cases, we leave with the judge a discretionary power of accomodating it to any peculiarities that may seem to require an exception. After all, this is the most plausible part of Mr. Bentham's arrangements.

In what he has said of the false notions which legislators have frequently followed in preference to the polar light of utility, we think we discover a good deal of inaccuracy, and some little want of candour. Mr. Bentham must certainly be concious that no one ever pretended that the mere antiquity of a law was a sufficient reason for retaining it, in spite of its evident inutility: But when the utility of parting with it is doubtful, its antiquity may fairly be urged as affording a presumption in its favour, and as a reason for being cautious at least in the

588 BENTHAM'S MISTAKES AS TO FICTIONS OF LAW.

removal of what must be incorporated with so many other institutions. We plead the antiquity of our Constitution as an additional reason for not yielding it up to innovators: but nobody ever thought, we believe, of advancing this plea in support of the statutes against Witchcraft. In the same way, we think, there is more wit than reason in ascribing the errors of many legis lators to their being misled by a metaphor. The metaphor, we are inclined to think, has generally arisen from the principle or practice to which Mr. Bentham would give effect independent of it. The law of England respects the sanctity of a free citizen's dwelling so much, as to yield it some privilege; and therefore an Englishman's house is called his Castle. The piety or superstition of some nations has determined that a criminal cannot be arrested in a place of worship. This is the whole fact: the usage is neither explained nor convicted of absurdity, by saying that such people call a church the House of God. If it were the house of God, does Mr. Bentham conceive that it ought to be a sanctuary for criminals? In what is said of the Fictions of law, there is much of the same misapprehension. Men neither are, nor ever were, misguided by these fictions; but the fictions are merely certain quaint and striking methods of expressing a rule that has been adopted in an apprehension of its utility. To deter men from committing treason, their offspring is associated to a certain extent in their punishment. The motive and object of this law is plain enough; and calling the effect "Corruption of blood," will neither aggravate nor hide its injustice. When it is said that the heir is the same person with the deceased, it is but a pithy way of intimating that he is bound in all the obligations, and entitled to all the rights of his predecessor. That the King never dies, is only another phrase for expressing that the office is never vacant; and that he is every where, is true, if it be lawful to say that a person can act by deputy. In all these observations, and in many that are scattered through the subsequent part of his book, Mr. Bentham seems to forget that there is such a thing as common sense in the world; and to