bentham-第7章
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do the work covertly； and evade the jealousy and opposition of an ignorant； prejudiced； and for the most part brutal and tyrannical legislature。 Some of the most necessary of these improvements； such as the giving force of law to trusts； and the breaking up of entails； were effected in actual opposition to the strongly…declared will of Parliament； whose clumsy hands； no…match for the astuteness of judges； could not； after repeated trials； manage to make any law which the judges could not find a trick for rendering inoperative。 The whole history of the contest about trusts may still be read in the words of a conveyance； as could the contest about entails； till the abolition of fine and recovery by a bill of the present Attorney…General； but dearly did the client pay for the cabinet of historical curiosities which he was obliged to purchase every time that he made a settlement of his estate。 The result of this mode of improving social institutions was； that whatever new things were done had to be done in consistency with old forms and names； and the laws were improved with much the same effect as if； in the improvement of agriculture； the plough could only have been introduced by making it look like a spade； or as if； when the primeval practice of ploughing by the horse's tail gave way to the innovation of harness； the tail； for form's sake； had still remained attached to the plough。 When the conflicts were over； and the mixed mass settled down into something like a fixed state； and that state a very profitable and therefore a very agreeable one to lawyers； they； following the natural tendency of the human mind； began to theorize upon it； and； in obedience to necessity； had to digest it and give it a systematic form。 It was from this thing of shreds and patches； in which the only part that approached to order or system was the early barbarous part； already more than half superseded； that English lawyers had to construct； by induction and abstraction； their philosophy of law； and without the logical habits and general intellectual cultivation which the lawyers of the Roman empire brought to a similar task。 Bentham found the philosophy of law what English practising lawyers had made it； a jumble； in which real and personal property； law and equity； felony； praemunire； misprision and misdemeanour； words without a vestige of meaning when detached from the history of English institutions mere tide…marks to point out the line which the sea and the shore； in their secular struggles； had adjusted as their mutual boundary all passed for distinctions inherent in the nature of things； in which every absurdity； every lucrative abuse； had a reason found for it a reason which only now and then even pretended to be drawn from expediency。 most commonly a technical reason； one of mere form； derived from the old barbarous system。 While the theory of the law was in this state； to describe what the practice of it was would require the pen of a Swift； or of Bentham himself。 The whole progress of a suit at law seemed like a series of contrivances for lawyers' profit； in which the suitors were regarded as the prey； and if the poor were not the helpless victims of every Sir Giles Overreach who could pay the price； they might thank opinion and manners for it； not the law。 It may be fancied by some people that Bentham did an easy thing in merely calling all this absurd； and proving it to be so。 But he began the contest a young man； and he had grown old before he had any followers。 History will one day refuse to give credit to the intensity of the superstition which； till very lately； protected this mischievous mess from examination or doubt passed off the charming representations of Blackstone for a just estimate of the English law； and proclaimed the shame of human reason to be the perfection of it。 Glory to Bentham that he has dealt to this superstition its deathblow that he has been the Hercules of this hydra； the St。 George of this pestilent dragon！ The honour is all his nothing but his peculiar qualities could have done it。 There were wanted his indefatigable perseverance； his firm self…reliance； needing no support from other men's opinion； his intensely practical turn of mind； his synthetical habits above all； his peculiar method。 Metaphysicians； armed with vague generalities； had often tried their hands at the subject； and left it no more advanced than they found it。 Law is a matter of business； means and ends are the things to be considered in it； not abstractions： vagueness was not to be met by vagueness； but by definiteness and precision： details were not to be encountered with generalities； but with details。 Nor could any progress be made； on such a subject； by merely showing that existing things were bad； it was necessary also to show how they might be made better。 No great man whom we read of was qualified to do this thing except Bentham。 He has done it； once and for ever。 Into the particulars of what Bentham has done we cannot enter。 many hundred pages would be required to give a tolerable abstract of it。 To sum up our estimate under a few heads。 First： he has expelled mysticism from the philosophy of law； and set the example of viewing laws in a practical light； as means to certain definite and precise ends。 Secondly。 he has cleared up the confusion and vagueness attaching to the idea of law in general； to the idea of a body of laws； and the various general ideas therein involved。 Thirdly： he demonstrated the necessity and practicability of codification； or the conversion of all law into a written and systematically arranged Code： not like the code Napoleon； a code without a single definition； requiring a constant reference to anterior precedent for the meaning of its technical terms； but one containing within itself all that is necessary for its own interpretation； together with a perpetual provision for its own emendation and improvement。 He has shown of what parts such a code would consist； the relation of those parts to one another； and by his distinctions and classifications has done very much towards showing what should be； or might be； its nomenclature and arrangement。 What he has left undone； he had made it comparatively easy for others to do。 Fourthly： he has taken a systematic view（1*） of the exigencies of society for which the civil code is intended to provide； and of the principles of human nature by which its provisions are to be tested： and this view； defective （as we have already intimated） wherever spiritual interests require to be taken into account； is excellent for that large portion of the laws of any country which are designed for the protection of material interests。 Fifthly： （to say nothing of the subject of punishment； for which something considerable had been done before） he found the philosophy of judicial procedure； including that of judicial establishments and of evidence； in a more wretched state than even any other part of the philosophy of law； he carried it at once almost to perfection。 He left it with every one of its principles established； and little remaining to be done even in the suggestion of practical arrangements。 These assertions in behalf of Bentham may be left； without fear for the result； in the hands of those who are competent to judge of them。 There are now even in the highest seats of justice； men to whom the claims made for him will not appear extravagant。 Principle after principle of those propounded by him is moreover making its way by infiltration into the understandings most shut against his influence； and driving nonsense and prejudice from one corner of them to another。 The reform of the laws of any country according to his principles； can only be gradual； and may be long ere it is accomplished； but the work is in process； and both parliament and the judges are every year doing something； and often something not inconsiderable； towards the forwarding of it。 It seems proper here to take notice of an accusation sometimes made both against Bentham and against the principle of codification as if they required one uniform suit of ready…made laws for all times and all states of society。 The doctrine of codification； as the word imports； relates to the form only of the laws； not their substance； it does not concern itself with what the laws should be； but declares that whatever they are； they ought to be systematically arranged； and fixed down to a determinate form of words。 To the accusation； so far as it affects Bentham； one of the essays in the collection of his works （then for the first time published in English） is a complete answer： that 'On the Influence of Time and Place in Matters of Legislation'。 It may there be seen that the different exigencies of different nations with respect to law； occupied his attention as systematically as any other portion of the wants which render laws necessary： with the limitations； it is true； which were set to all his speculations by the imperfections of his theory of human nature。 For； taking； as we have seen； next to no account of national character and the causes which form and maintain it； he was precluded from considering； except to a very limited extent； the laws of a country as an instrument of national culture： one of their most important aspects； and in which they must of course vary according to the degree and kind of culture already attained； as a tutor gives his pupil different lessons according to the process already made in his education。 The same laws would not have suited our wild ancestors； accustomed to rude independence； and a people of Asiatics bowed down by military despotism： the slave needs to be trained to govern himself； the savage to submit to the government of others。 The same laws will not suit the English； who distrust everything which emanates from general principles； and the French； who distrust whatever does not so emanate。 Very different institutions are needed to train to the perfection of their nature； or to constitute into a united nation and social polity； an essentially subjective people like the Germans； and an essentially objective people like those of Northern and Central Italy。 the one affectionate and dreamy； the other passionate and worldly。 the one truthful and loyal； the other calculating and suspicious； the one not practical enough； the other overmuch； the one wanting individuality； the other fellow…feeling； the one failing for want of exacting enough for itself； the other for want of conceding enough to others。 Bentham was little accustomed to look at institutions in their relation to these topics。 The effects of this oversight must of course be perceptible throughout his speculations； but we do not think the errors into which it led him very material in the greater part of civil and penal law： it is in the department of constitutional legislation that they were fundamental。 The Benthamic theory of government has made so much noise in the world of late years； it has held such a conspicuous place among Radical philosophies； and Radical modes of thinking have participated so much more largely than any others in its spirit； that many worthy persons imagine there is no other Radical philosophy extant。 Leaving such people to discover their mistake as they may； we shall expend a few words in attemp
