Page images
PDF
EPUB

disregarding the general impressions of mo- tions taken in the calm, by which we must rality, and determining every individual ques- be guided in the darkness and the terror of tion upon a rigorous estimate of the utility it the tempest; they are beacons and strongholds might appear to involve, would be, to give an erected in the day of peace, round which we additional force to the causes by which our must rally, and to which we must betake ourjudgments are most apt to be perverted, and selves, in the hour of contest and alarm. entirely to abrogate the authority of those For these reasons, and for others which our General rules by which alone men are com- limits will not now permit us to hint at, we monly enabled to judge of their own conduct are of opinion, that ihe old established mowith any tolerable impartiality. If we were rality of mankind ought upon no account to to dismiss altogether from our consideration give place to a bold and rigid investigation those authoritative maxims, which have been into the utility of any particular act, or any sanctioned by the general approbation of man- course of action that may be made the subkind, and to regulate our conduct entirely by ject of deliberation ; and that the safest and a view of the good and the evil that promises the shortest way to the good which we all to be the consequence of every particular desire, is the beaten highway of morality, action, there is reason to fear, not only that which was formed at first by the experience inclination might occasionally slip a false of good and of evil. weight into the scale, but that many of the But our objections do not apply merely to most important consequences of our actions the foundation of Mr. Bentham's new system might be overlooked. Those actions are bad, of morality: We think the plan and execuaccording to Mr. Bentham, that produce more tion of the superstructure itself defective in evil than good : But actions are performed by many particulars. Even if we could be perindividuals; and all the good may be to the suaded that it would be wiser in general to individual, and all the evil to the community. follow the dictates of utility than the impresThere are innumerable cases, in which the sions of moral duty, we should still say that advantages to be gained by the commission the system contained in these volumes does of a crime are incalculably greater (looking not enable us to adopt that substitute: and only to this world) than the evils to which it that it really presents us with no means of may expose the criminal. This holds in al- measuring or comparing utilities. After pemost every instance where unlawful passions rusing M. Dumont's eloquent observations on may be gratified with very little risk of de- the incalculable benefits which his author's tection. A mere calculation of utilities would discoveries were to confer on the science of never prevent such actions; and the truth legislation, and on the genius and good fortune undoubtedly is, that the greater part of men by which' he had been enabled to reduce are only withheld from committing them by morality to the precision of a science, by fixthose general impressions of morality, which ing a precise standard for the good and evil it is the object of Mr. Bentham's system to of our lives, we proceeded with the perusal supersede. Even admitting, what might well of Mr. Bentham's endless tables and divisions, be denied, that, in all cases, the utility of the with a mixture of impatience, expectation, individual is inseparably connected with that and disappointment. Now that we have finof society, it will not be disputed, at least, ished our task, the latter sentiment alone that this connection is of a nature not very remains; for we perceive very clearly that striking or obvious, and that it may frequently M. Dumont’s zealand partiality have imposed be overlooked by an individual deliberating upon his natural sagacity, and that Mr. Benon the consequences of his projected actions. tham has just left the science of morality in It is in aid of this oversight, of this omission, the same imperfect condition in which it was of this partiality, that we refer to the General left by his predecessors. The whole of Mr. rules of morality; rules, which have been Bentham's catalogues and distinctions tend suggested by a larger observation, and a longer merely to point out the Number of the causes experience, than any individual can dream of that produce our happiness or misery, but by pretending to, and which have been accom- no means to ascertain their relative Magnitude modated, by the joint action of our sympathies or force; and the only effect of their introducwith delinquents and with sufferers, to the tion into the science of morality seems to be, actual condition of human fortitude and in- to embarrass a popular subject with a technical tirmity. If they be founded on utility, it is nomenclature, and to perplex familiar truths on an utility that cannot always be discovered; with an unnecessary intricacy of arrangement. and that can never be correctly estimated, in Of the justice of this remark any one may deliberating upon a particular measure, or satisfy himself, by turning back to the tables with a view to a specific course of conduct : and classifications which we have exhibited It is on an utility that does not discover itself in the former part of this analysis, and trying till it is accumulated; and only becomes ap- if he can find there any rules for estimating parent after a large collection of examples the comparative value of pleasures and pains, have been embodied in proof of it. Such that are not perfectly familiar to the most unsummaries of utility, such records of uniform instructed of the species. In the table of observation, we conceive to be the General simple pleasures, for instance, what satisfacrules of Morality, by which, and by which tion can it afford to find the pleasure of riches alone, legislators or individuals can be safely set down as a distinct genus from the pleasure directed in determining on the propriety of of power, and the pleasure of the senses any course of conduct. They are observa- I unless some scale were annexed by which the respective value of these several pleasures are necessarily familiar to all mankind, and might be ascertained? If a man is balancing cannot possibly be forgotten on any occasion between the pain of privation and the pain where it is of importance to remember them. of shame, how is he relieved by merely find. If bad laws have been enacted, it certainly is ing these arranged under separate titles ? or, not from having forgotten that the good of in either case, will it give him any informa- society is the ultimate object of all law, or tion, to be told that the value of a pain or that it is absurd to repress one evil by the pleasure depends upon its intensity, its dura- creation of a greater. Legislators have often tion, or its certainty? If a legislator is desi- bewildered themselves in the choice of means; rous to learn what degree of punishment is but they have never so grossly mistaken the suitable to a particular offence, will he be ends of their institution, as to need to be regreatly edified to read that the same punish- minded of these obvious and elementary ment may be more or less severe according truths. to the temperament, the intelligence, the If there be any part of Mr. Bentham's clasrank, or the fortune of the delinquent; and sification that might be supposed to assist us that the circumstances that influence sensi- in appreciating the comparative value of bility, though commonly reckoned to be only pleasures and pains, it must certainly be his nine, may fairly be set down at fifteen ? Is enumeration of the circumstances that affect there any thing, in short, in this whole book, the sensibility of individuals. Even if this that realises the triumphant Introduction of table were to fulfil all that it promises, howthe editor, or that can enable us in any one ever, it would still leave the system fundainstance to decide upon the relative magnitude mentally deficient, as it does not enable us to of an evil, otherwise than by a reserence to compare the relative amount of any two pleathe common feelings of mankind ? It is true, sures or pains, to individuals in the same cirwe are perfectly persuaded, that by the help cumstances. In its particular application, of these feelings, we can form a pretty correct however, it is truly no less defective; for judgment in most cases that occur; but Mr. though we are told that temperament, intelliBentham is not persuaded of this; and insists gence, &c. should vary the degree of punishupon our renouncing all faith in so incorrect ment or reward, we are not told to what extent, a standard, while he promises to furnish us or in what proportions, it should be varied by with another that is liable to no sort of inac- these circumstances. Till this be done, howcuracy. This promise we do not think he has ever, it is evident that the elements of Mr. in any degree fulfilled; because he has given Bentham's moral arithmetic have no determius no rule by which the intensity of any pain nate value; and that it would be perfectly or pleasure can be determined ; and furnish- impossible to work any practical problem in ed us with no instrument by which we may legislation by the help of them. It is scarcely take the altitude of enjoyment, or fathom the necessary to add, that even if this were acdepths of pain. It is no apology for having complished, and the cognisance of all these made this promise, that its fulfilment was particulars distinctly enjoined by the law, the evidently impossible.

only effect would be, to introduce a puerile In multiplying these distinctions and divi- and fantastic complexity into our systems of sions which form the basis of his system, Mr. jurisprudence, and to encumber judicial proBentham appears to us to bear less resem-cedure with a multitude of frivolous or imblance to a philosopher of the present times, practicable observances. The circumstances, than to one of the old scholastic doctors, who in consideration of which Mr. Bentham would substituted classification for reasoning, and have the laws vary the punishment, are so looked upon the ten categories as the most numerous and so indefinite, that it would reuseful of all human inventions. Their dis- quire a vast deal more labour to ascertain tinctions were generally real, as well as his, their existence in any particular case, than to and could not have been made without the establish the principal offence. The first is misapplication of much labour and ingenuity: Temperament; and in a case of flogging, we But it is now generally admitted that they are suppose Mr. Bentham would remit a few of no use whatever, either for the promotion lashes to a sanguine and irritable delinquent, of truth, or the detection of error; and that and lay a few additional stripes on a phlegthey only serve to point out differences that matic or pituitous one. But how is the temcannot be overlooked, or need not be remem- perament to be given in evidence ? or are the bered. There are many differences and many judges to aggravate or alleviate a punishment points of resemblance in all actions, and in upon a mere inspection of the prisoner's com all substances, that are absolutely indifferent plexion. Another circumstance that should in any serious reasoning that may be entered affect the pain, is the offender's firmness of into with regard to them; and though much mind; and another his strength of understandindustry and much acuteness may be display. ing. How is a court to take cognisance of ed in finding them out, the discovery is just these qualities ? or in what degree are they to as unprofitable to science, as the enumeration affect their proceedings? If we are to admit of the adverbs in the creed, or the dissyllables such considerations into our law at all, they in the decalogue, would be to theology. The ought to be carried a great deal farther than greater number of Mr. Bentham's distinctions, Mr. Bentham has indicated ; and it should be however, are liable to objection, because they expressed in the statutes, what alleviation of state, under an intricate and technical arrange- punishment should be awarded to a culprit ment, those facts and circumstances only that lon account of his wife's pregnancy, or the

colour of his children's hair. We cannot help through the subsequent part of his book, Mr. thinking that the undistinguishing grossness of Bentham seems to forget that there is such a our actual practice is better than such foppery. thing as common sense in the world; and to We fix a punishment which is calculated for take it for granted, that if there be an opening the common, average condition of those to in the letter of the law for folly, misapprehenwhom it is to be applied; and, in almost all sion, or abuse, its ministers will eagerly take cases, we leave with the judge a discretionary advantage of it, and throw the whole frame of power of accommodating it to any peculiarities society into disorder and wretchedness. A that may seem to require an exception. After very slight observation of the actual businese all, this is the most plausible part of Mr. Ben- of life might have taught him, that expediency tham's arrangements.

may, for the most part, be readily and cerIn what he has said of the false notions tainly discovered by those who are interested which legislators have frequently followed in in finding it; and that in a certain stage of preference to the polar light of utility, we civilisation there is generated such a quantity think we discover a good deal of inaccuracy, of intelligence and good sense, as to disarm and some little want of candour. Mr. Ben- absurd institutions of their power to do mistham must certainly be conscious that no one chief, and to administer defective laws into a ever pretended that the mere antiquity of a system of practical equity. This indeed is law was a sufficient reason for retaining it, in the grand corrective which remedies all the spite of its evident inutility : But when the errors of legislators, and retrenches all that is utility of parting with it is doubtful, its an- pernicious in prejudice. It makes us indetiquity may fairly be urged as affording a pre- pendent of technical systems, and indifferent sumption in its favour, and as a reason for to speculative irregularities; and he who could being cautious at least in the removal of what increase its quantity, or confirm its power, must be incorporated with so many other in- would do more service to mankind than all stitutions. We plead the antiquity of our the philosophers that ever speculated on the Constitution as an additional reason for not means of their reformation. yielding it up to innovators: but nobody ever In the following chapter we meet with a thought, we believe, of advancing this plea in perplexity which, though very ingeniously fupport of the statutes against Witchcraft. In produced, appears to us to be wholly gratuithe same way, we think, there is more wit tous. Mr. Bentham for a long time can see than reason in ascribing the errors of many no distinction between Civil and Criminal legislators to their being misled by a metaphor. jurisprudence; and insists upon it, that rights The metaphor, we are inclined to think, has and crimes necessarily and virtually imply generally arisen from the principle or practice each other. If I have a right to get your to which Mr. Bentham would give effect in- horse, it is only because it would be a crime dependent of it. The law of England respects for you to keep him from me; and if it be a the sanctity of a free citizen's dwelling so crime for me to take your horse, it is only bemuch, as to yield it some privilege; and there cause you have a right to keep him.

This forean Englishman's house is called his Castle. we think is very pretty reasoning: But the The piety or superstition of some nations has distinction between the civil and the criminal determined that a criminal cannot be arrested law is not the less substantial and apparent. in a place of worship. This is the whole fact; The civil law is that which directs and enthe usage is neither explained nor convicted joins--the criminal law is that which Punishes. of absurdity, by saying that such people call "This is enough for the legislator; and for those a church the House of God. If it were the who are to obey him. It is a curious inquiry, house of God, does Mr. Bentham conceive no doubt, how far all rights may be considered that it ought to be a sanctuary for criminals? as the counterpart of crimes; and whether In what is said of the Fictions of law, there every regulation of the civil code necessarily is much of the same misapprehension. Men implies a delict in the event of its violation. neither are, nor ever were, misguided by On this head there is room for a good deal of These fictions ; but the fictions are merely cer- speculation; but in our opinion Mr. Bentham tain quaint and striking methods of expressing pushes the principle much too far. There a rule that has been adopted in an apprehen seems to be nothing gained, for instance, sion of its utility. To deter men from com- either in the way of clearness or consistency, mitting treason, their offspring is associated by arranging under the head of criminal law, to a certain extent in their punishment. The those cases of refusal to fulfil contracts, or to motive and object of this law is plain enough; perform obligations, for which no other punand calling the effect "Corruption of blood,” ishment is or ought to be provided, but a comwill neither aggravate nor hide its injustice. pulsory fulfilment or performance. This is When it is said that the heir is the same per- merely following out the injunction of the son with the deceased, it is but a pithy way civil code, and cannot, either in law or in logic, of intimating that he is bound in all the obli- be correctly regarded as a punishment. The gations, and entitled to all the rights of his proper practical test of a crime, is where, over predecessor. That the King never dies, is and above the restitution of the violated right only another phrase for expressing that the (where that is possible), the violator is suboffice is never vacant; and that he is every jected to a direct pain, in order to deter from where, is true, if it be lawful to say that a the repetition of such offences. person can act by deputy. In all these ob- In passing to the code of criminal law, Mi. servations, and in many that are scattered Bentham does not forget the necessity of class. ifying and dividing: Delicts, according to , he is for making the delinquent pronounce a him, are either, 1. Private, or against one or discourse of humiliation, either standing, or on a few individuals; 2. Reflective, or against the his knees, before the offended party, and delinquent himself; 3. Semipublic, or against clothed in emblematical robes, with a mask some particular class or description of per- of a characteristic nature on his head, &c. sons; and, finally, Public, or against the whole There possibly may be countries where such community. Private delicts, again, relate contrivances might answer; but, with us, either to the person, the property, the repu- they would not only be ineffectual, but ridictation or the condition; and they are distrib- ulous. uted into complex and simple, principal and In the choice of punishments, Mr. Bentham accessory, positive and negative, &c. &c. The wishes legislators to recollect, that punishchief evil of a crime is the alarm which it ment is itself an evil; and that it consists of excites in the community; and the degree of five parts ;--the evil of restraint—the evil of this alarm, Mr. Bentham assumes, depends suffering—the evil of apprehension—the evil upon eight circumstances, the particular situa- of groundless persecution—and the evils that tion of the delinquent, his motives, his noto- extend to the innocent connections of the deriety, his character, the difficulties or facilities linquent. For these reasons, he is anxious that of the attempt, &c. But here again, we see no punishment should be inflicted without a no sense in the enumeration; the plain fact real cause, or without being likely to influence being, that the alarm is increased by every the will; or where other remedies might thing which renders it probable that such acis have been employed; or in cases where the may be frequently repeated. In one case, and crime produces less evil than the punishment, one of considerable atrocity, there is no alarm These admonitions are all very proper, and, at all; because the only beings who can be we dare say, sincere; but we cannot think affected by it, are incapable of fear or suspi- that they are in any way recommended by cion—this is the case of infanticide: and Mr. their novelty. Bentham ingeniously observes, that it is pro- In the section upon the indirect means of bably owing to this circumstance that the preventing crimes, there is a great deal of laws of many nations have been so extremely genius and strong reasoning; though there indifferent on that subject. In modern Eu- are many things set down in too rash and perrope, however, he conceives that they are emptory' a manner, and some that are supbarbarously severe. In the case of certain ported with a degree of flippancy not very crimes against the community, such as mis suitable to the occasion. The five main sources government of all kinds, the danger again is of offence he thinks are, want of occupation, always infinitely greater than the alarm. the angry passions, the passion of the sexes,

The remedies which law has provided the love of intoxication, and the love of gain, against the mischief of crimes, Mr. Bentham As society advances, all these lose a good says, are of four orders; preventive-repres- deal of their mischievous tendency, excepting sive-compensatory—or simply penal. Upon the last; against which, of course, the legisla. the subject of compensation or satisfaction, ture should be more vigilant than ever. In Mr. Bentham is most copious and most origi- the gradual predominance of the avaricious nal; and under the title of satisfaction in passions over all the rest, however, Mr. Benhonour, he presents us with a very calm, tham sees many topics of consolation; and acute, and judicious inquiry into the effects concludes this part of his work with declar. of duelling; which he represents as the only ing, that it should be the great object of the remedy which the impolicy or impotence of criminal law to reduce all offences to that our legislators has left for such offences. We species which can be completely atoned for do not think, however, that the same good and repaired by payment of a sum of money, sense prevails in what he subjuins, as to the It is a part of his system, which we have for, means that might be employed to punish in- gotten to mention, that persons so injured sults and attacks upon the honour of individu- should in all cases be entitled to reparation als. According to the enormity of the offence, 1 out of the public purse.

(I anuary, 1804.) Account of the Life and Writings of Thomas Reid, D.D. F.R.S., Edinburgh, late Professor of Moral Philosophy in the University of Glasgow. By DUGALD STEWART, F. R. S. Edinburgh: Read at different Meetings of the Royal Society of Edinburgh. 8vo. pp. 225. Edinburgh and London: 1803.

Although it is impossible to entertain , Stewart's elucidation and defence of it. That greater respect for any names than we do for elucidation begins, indeed, with a remark, those that are united in the title of this work, which we are not at all disposed to controwe must be permitted to say, that there are vert; that the distinguishing feature of Dr. many things with which we cannot agree, Reid's philosophy is the systematical steadiboth in the system of Dr. Reid, and in Mr. ness with which he has adhered to the course of correct observation, and the admirable self-complished by the star-gazers who preceded command by which he has contined himself him; and the law of gravitation, which he to the clear statement of the facts he has col- afterwards applied to the planetary system, lected : But then Mr. Stewart immediately was first calculated and ascertained by experifollows up this observation with a warm en- ments performed upon substances which were comium on the inductive philosophy of Lord entirely at his disposal. Racon, and a copious and eloquent exposition It will scarcely be denied, either, that it is of the vast advantage that may be expected almost exclusively to this department of profrom applying to the science of Mind those per Experiment, that Lord Bacon has directed sound rules of experimental philosophy that ihe attention of his followers. His sundahave undoubtedly guided us to all the splen- mental maxim is, that knowledge is power; did improvements in modern physics. From and the great problem which he constantly the time indeed that Mr. Hume published his aims at resolving is, in what manner the natreatise of human nature, down to the latest ture of any substance or quality may, by exspeculations of Condorcet and Mr. Stewart periment, be so detected and asceriained as himself, we have observed this to be a favour- to enable us to manage it at our pleasure. ite topic with all metaphysical writers; and The greater part of the Novum Organum acthat those who have differed in almost every cordingly is taken up with rules and examples thing else, have agreed in magnifying the im- for contriving and conducting experiments; portance of such inquiries, and in predicting and the chief advantage which he seems tó the approach of some striking improvement in have expected from the progress of those inthe manner of conducting them.

quiries, appears to be centered in the enlargeNow, in these speculations we cannot help ment of man's dominion over the material suspecting that those philosophers have been universe which he inhabits. To the mere misled in a considerable degree by a false Observer, therefore, his laws of philosophising, analogy; and that their zeal for the promotion except where they are prohibitory laws, have of their favourite studies has led them to form but little application ; and to such an inquirer, expectations somewhat sanguine and extrava- the rewards of his philosophy scarcely appear gant, both as to their substantial utility and to have been promised. It is evident indeed as to the possibility of their ultimate improve that no direct utility can result from the most ment. In reality, it does not appear to us accurate observation of occurrences which we that any great advancement in the knowledge cannot control; and that for the uses to which of the operations of mind is to be expected such observations may afterwards be turned, from any improvement in the plan of investi- we are indebted not so much to the observer, gation; or that the condition of mankind is as to the person who discovered the applicalikely to derive any great benefit from the tion. It also appears to be pretty evident cultivation of this interesting but abstracted that in the art of observation itself, no very study.

great or fundamental improvement can be Inductive philosophy, or that which pro- expected. Vigilance and attention are all that ceeds upon the careful observation of facts, can ever be required in an observer; and may be applied to two different classes of though a talent for methodical arrangement phenomena. The first are those that can be may facilitate to others the study of the facts made the subject of proper Experiment: that have been collected, it does not appear where the substances are actually in our how our actual knowledge of those facts can power, and the judgment and artifice of the be increased by any new method of describing inquirer can be effectually employed to ar- them. Facts that we are unable to modify or range and combine them in such a way as to direct, in short, can only be the objects of obdisclose their most hidden properties and re- servation; and observation can only inform lations. The other class of phenomena are us that they exist, and that their succession those that occur in substances that are placed appears to be governed by certain general altogether beyond our reach; the order and laws. succession of which we are generally unable In the proper Experimental philosophy, to control; and as to which we can do little every acquisition of knowledge is an increase more than collect and record the laws by of power; because the knowledge is neceswhich they appear to be governed. Those sarily derived from some intentional disposisubstances are not the subject of Experiment, tion of materials which we may always combut of Observation ; and the knowledge we mand in the same manner. În the philosomay obtain, by carefully watching their varia- phy of observation, it is merely a gratification tions, is of a kind that does not directly in- of our curiosity. By experiment, too, we crease the power which we might otherwise generally acquire a pretty correct knowledge have had over them. It seems evident, how- of the causes of the phenomena we produce; ever, that it is principally in the former of as we ourselves have distributed and arranged these departments, or the strict experimental the circumstances upon which they depend; philosophy, that those splendid improvements while, in matters of mere observation, the have been made, which have erected so vast assignment of causes must always be in a a trophy to the prospective genius of Bacon. good degree conjectural, inasmuch as we have The astronomy of Sir Isaac Newton is no ex- no means of separating the preceding phenoception to this general remark: All that mere mena, or deciding otherwise than by analogy, Observation could do to determine the move- to which of them the succeeding event is to ments of the heavenly bodies, had been ac- l be attributed.

« PreviousContinue »