Sketches of Reforms and Reformers, of Great Britain and Ireland Part 3

Mr. Clarkson was greatly aided in his labors by GRANVILLE SHARPE. This singular person had already become known for his advocacy of the rights of negro slaves when Clarkson commenced his work. He was born of humble parents, in 1735. He had a mind peculiarly fond of probing everything to the bottom. While an apprentice, a controversy with a Socinian led him to study Greek, that he might read the New Testament in the original. A dispute with a Jew induced him to obtain a knowledge of Hebrew. In 1767, his interference in behalf of a West India slave, whose master, then in London, had whipped him nearly to death, cost him a lawsuit. He must be beaten, if the master could hold his slave in England. Eminent counsel told him he must fail, for the right of the master was not invalidated by bringing his slave to England. Repudiating this advice, Sharpe, with his usual diligence and bent of mind, devoted himself to the study of the law, preparatory to his own defense. The "law's delay" gave him ample time to explore the subject to its foundations. He published a tract "On the injustice and dangerous tendency of tolerating slavery, or even of admitting the least claim to property in the persons of men, in England." His rare authorities and profound reasoning converted to his views many leading members of the bar. After a delay of two years, the plaintiff abandoned the case, paying Sharpe heavy costs. While further prosecuting his legal researches, he had another affair of a similar kind, in which he was partially successful. By this time, though comparatively an obscure man, he was better read in the law of slavery, and the restrictions upon the system in England, than any barrister or jurist in Westminster Hall. In 1772 came on the hearing, before Lord Mansfield, in the matter of the negro Somersett, a West India slave, who claimed his freedom on the ground that his master had brought him into England. The ablest counsel were employed on both sides; the case was argued twice or thrice, and was under consideration several months.

Sharpe took deep interest in the issue, frequently conferred with Somersett's counsel, and wrote in his behalf for the newspapers. At length, on the 22d of June, 1772, Mansfield, with great reluctance, (for he leaned to the side of the slaveholder,) p.r.o.nounced the celebrated judgment, that slavery, being contrary to natural law, was of so odious a nature that nothing but positive law could support it, and that every slave, on touching English soil, became free, and "therefore the man must be discharged!" This rule has ever since been recognized as law in all climes where England bears sway, and is so regarded in America and most of the civilized States of the world. For three-fourths of a century it has pursued the Evil Spirit of slavery with uplifted weapon, ready to cleave it to the earth the moment it pa.s.sed the boundaries of its own odious and unnatural law; and in our day it stands like the flaming sword of Paradise, turning every way, to guard the tree of Liberty. For the early announcement of this far-reaching and deep-sounding principle, the world is indebted to the labors of one who commenced his career as a humble London apprentice. Having fought the good fight of Abolition with Clarkson and Wilberforce, and gained considerable distinction by his philanthropic deeds and writings, numbering Sir William Jones among his intimate friends, he died in 1813.

A monument, with suitable devices and inscriptions, was erected to his memory in the Poet's Corner of Westminster Abbey, to mark the public sense of his merits.

MR. WILBERFORCE has not been over-estimated, but, in my judgment, he has been mis-estimated. Ent.i.tled to less relative praise for his Abolition services than is generally bestowed, he is worthy of a higher position as a statesman and orator than is usually a.s.signed to him. This common error is readily accounted for. The commanding place he so long occupied, as the Parliamentary leader in this Reform, rendered him more conspicuous at home, and especially abroad, than any of his coadjutors, though no man was more ready than he to acknowledge that his services were meager, compared with those of some of his less noted colaborers.

So, on the other hand, such is the l.u.s.ter of Mr. Wilberforce's undoubted achievements in the Abolition cause, that to the public eye they have thrown into the shade his very superior talents in other and more general aspects. He would have stood in the front rank of Parliamentary orators, (and those were the days of Burke, Fox, Pitt, Erskine, Wyndham, and Sheridan,) had he never thrown a halo round his name by consecrating his powers to humanity. Thoroughly educated, and furnished with general information, his eloquence was of a high order--fervid, instructive, persuasive; his diction cla.s.sical and elegant; his voice musical and bland; and though his figure was diminutive, and not graceful, his countenance was remarkably expressive. He possessed a lively imagination, a keen sense of the ludicrous, a ready wit, and powers of sarcasm which Pitt might envy. These latter, however, he kept in subjection, mainly from his strong religious susceptibilities and kindly spirit, which impelled him to avoid giving pain, choosing to disarm personal a.s.sailants by winning appeals to their calmer judgments. On one occasion, after being repeatedly and coa.r.s.ely alluded to, as "the honorable and very religious member," he turned upon his antagonist, and poured upon him a torrent of contempt, sarcasm, and rebuke, which astonished the House, not more for the ability it displayed, than that so great a master of indignant declamation should so rarely resort to its use. These intellectual elements combined with the spotless purity and winning beauty of his character, to give him great weight in the House, and contributed not a little to sustain the general policy of Mr.

Pitt, whose supporter he usually was, though he ever maintained a position of comparative political independence. He had much personal influence over that minister, whose repeated offers to take office under his Administration he steadily declined. He retired from Parliament in 1824. His last public appearance was in 1830, when, on motion of his old friend Clarkson, he took the chair at a large meeting of delegates, in London, a.s.sembled to promote the abolition of slavery in the West Indies.

MR. PITT'S advocacy of Abolition is now believed to have been hollow-hearted--a mere trick to gain popular applause in unwonted quarters, and retain his hold upon Wilberforce. During the twenty years which this question agitated Parliament and the country, Pitt, with the exception of two or three, reigned supreme, and never failed to carry any scheme he set his heart upon. At the wave of his hand, he could have driven from the House half the members, who steadily voted against Abolition, whilst with a dash of his pen he could have swept from the offices of the kingdom every occupant who dared oppose his will on this measure. By his personal advocacy of it, he lost nothing, and gained much.

We turn with more pleasure to contemplate for a moment the services of two very different coadjutors of Wilberforce and Clarkson--James Stephen and Zachary Macaulay. It has already been said that the more imposing character of Mr. Wilberforce's services threw into the shade those of many not less worthy colaborers. Of these, Messrs. Stephen and Macaulay were among the most eminent.

MR. STEPHEN was a barrister. On being called to the bar, he emigrated to St. Kitts, and attained such distinction in the colonial courts as to be called "the Erskine of the West Indies." Impaired health induced his return to England in 1794, where he urged his way to a respectable standing in Westminster Hall. Soon after his return, he procured an introduction to Wilberforce, and immediately entered, with characteristic zeal, into the great work to which the former had devoted his powers. He was prepared for this from the fact, that such was his abhorrence of slavery, that he never owned a slave during his protracted residence in the West Indies. He subsequently married the sister of Mr.

Wilberforce. He consecrated his vigorous pen to the cause of Abolition, and contributed much to create that public sentiment which demanded the abrogation of the traffic. At the solicitation of Mr. Perceval, he entered Parliament in 1808, where he remained seven or eight years.

Always conscientious in the discharge of his political duties, he refused to support the administration which followed that of Perceval, in consequence of their neglect to promote a measure, which he had anxiously pressed upon them, for the registration of slaves in the West Indies. He soon after resigned his seat, and devoted himself more exclusively to the duties of a master in chancery, to which office he had been appointed in 1811, and which he held twenty years. He was the means of introducing several reforms in the practice of the court of chancery, though by so doing he essentially lessened his own emoluments.

As an instance of his disinterestedness, it may be mentioned that he forbade his clerk to take the ordinary gratuities, and remunerated him for his loss out of his own pocket to the amount of about 800 a year.

What time he could spare from his official duties was devoted to the abolition of the slave trade by foreign States, and of slavery in the West Indies. Besides numerous pamphlets, occasional speeches, and an extensive correspondence on these subjects, he published an admirable legal work, ent.i.tled, "Slavery of the British West India Colonies Delineated," the plan of which has apparently been followed by Judge Stroud, of Philadelphia, in a work of equal ability, on American slavery. Mr. Stephen descended to his honored grave in 1832, at the advanced age of 75.

MR. MACAULAY is the father of the brilliant essayist and historian whose writings are so well known in this country. And it is high praise to say that, as a writer, he is the worthy progenitor of such a descendant; for, though his publications fall short in beauty and splendor of those of his celebrated son, they are equal to his in logical ac.u.men and argumentative power. Though younger in years than Stephen, Macaulay's services in the abolition of the slave trade were equal to his, while those in the cause of West India emanc.i.p.ation far transcended his.

The Life of Wilberforce, published by his sons, in 1838, was thought to have done injustice to the early labors of Clarkson in the abolition of the slave trade. An unpleasant controversy at once arose, as to the relative merits of these philanthropists, and especially in reference to their agency in promoting the abolition. An anecdote was told to me in London respecting the matter, which ill.u.s.trates one of the idiosyncrasies in the mental const.i.tution of another early and steadfast Abolitionist--HENRY BROUGHAM--who, though young at the period of the abolition, had, while traveling on the continent, a.s.sisted Wilberforce by pursuing various inquiries in Holland, Germany, Poland, and other countries, in regard to the traffic. Some of the particulars of the story are forgotten, but enough are remembered for the present purpose.

Soon after the appearance of the Life, the friends of Clarkson caused a book to be prepared, vindicating his services and claims, to which Brougham agreed to furnish an introduction. The body of the work was in press before the ex-chancellor, pressed with multifarious labors, had prepared his paper. The committee having the matter in charge waited upon him, and stated that the publication was delayed for want of his introduction; that country booksellers and anti-slavery societies were impatient to have their orders filled, &c. Brougham told them he had not written a line of it, but would have it completed by a given day of the same week. At the appointed time the committee called, and he read the paper. What was their mortification to find incorporated into the middle of it a ferocious attack on Daniel O'Connell, the very man upon whom they were relying to help carry through the Commons the bill then pending for the abolition of the apprentices.h.i.+p in the West Indies, and with whom they had had an interview on the subject that very morning.

Here was a dilemma! They expostulated with Brougham; explained the ruinous consequences to the cause, of their sanctioning such an attack on O'Connell; and while they did not wish to interfere with the controversy between him and O'Connell, a.s.sured him that for them to issue such a publication at that crisis might seal the fate of the apprentices.h.i.+p bill--nor could they send out the work without his introduction, without disappointing the public. After rather an exciting interview, Brougham dismissed them by peremptorily declaring, "they must take it as it was, or not at all." They left in despair. The next day, one of the committee called, to see if something could not be done to get over the difficulty, when lo, his lords.h.i.+p handed him the paper with the offensive pa.s.sage omitted. The secret of the alteration was this: The night after the first interview, Brougham went down to the House of Peers, and "pitching into" the debate, castigated some half dozen of the lords spiritual and temporal to his heart's content, and, having thus worked off "the slough of his pa.s.sion," returned home in a calmer mood, and blotted the obnoxious paragraph from his Introduction.

CHAPTER VIII.

Law Reform--Jeremy Bentham--His Opinion of the Common Law--His "Felicity" Principle--His Universal Code--His Works--The Fruits of his Labors--His Talents and Character.

The father of Modern Law Reform was JEREMY BENTHAM. This singular person has been often sneered at by Americans, who knew nothing of him or his writings, except that he lived somewhere in Europe, and was called "a visionary foreign philosopher" by the North American Review. He was the constant theme of ridicule for a large cla.s.s of Englishmen, who only cared to know that he was said to be an eccentric old man, who shunned the world, admitted his guests to dine one at a time, wore an uncouth garb, was an abominable sloven, turned wooden bowls on a lathe and run in his garden for exercise, relieved the tedium of study by playing now on a fiddle and then on an organ, heated his house by steam, slept in a sack, looked very much like Ben. Franklin, did not believe in rotten boroughs or rotten creeds, did believe in free trade in corn and money, thought the common law the perfection of absurdity, Lord Eldon's court a libel on equity, and wrote codes for all creation to use in the twenty-ninth century.

Mr. Bentham was one of the most remarkable men that has appeared in our age. He was born in 1747, and was descended from a race of attorneys. At the age of five, the family called him "the philosopher;" at eight he played well on the violin, on which he afterwards became a proficient; and at thirteen went to Oxford, where he excited admiration and wonder by his acute observations, logical skill, and precision of language.

When he took his degree, he was esteemed the first reasoner and philosophical critic in the University. He was at Oxford when Wesley and the "Methodists" were expelled, and his generous soul took up arms against this tyranny. This induced him to examine the thirty-nine articles of the Church, one by one; and when it became necessary for him to subscribe them, long was the struggle before Bentham could bring his hand to do it. He has left on record a rebuke of this test, which ought to consign it to universal condemnation. At Oxford, he attended the law lectures of Blackstone, (being the substance of his Commentaries,) and his clear mind detected the fallacies in his reasoning, and his humane and honest spirit revolted at many of his eulogiums on the Common Law of England.

The Bar, to which he was admitted in 1772, opened a brilliant prospect before him. His precise and acute method of drafting equity and law pleadings was much extolled, and his refusal to receive the usual fees excited no less attention. A sharp solicitor swelled a swindling bill of costs in a case in which Bentham had succeeded--he protested--"Quirk"

told him it was made up according to the rules, and he would lose caste if he altered it. Bentham was disgusted, resolved to quit the profession, and spend his life in "endeavoring," as he expressed it, "to put an end to the system, rather than profit by it." To the grasping pertinacity of this solicitor, the world is indebted for the sixty years' labor of Jeremy Bentham in the cause of law reform. Soon after this, he published his first work, "A Fragment on Government; being an examination of what is delivered on that subject in Blackstone's Commentaries." He then visited Paris, where he became intimate with Brissot, through whose agency, and without his knowledge, he was subsequently made a citizen of the French Republic, and elected a member of the second National a.s.sembly.

His father died in 1792, leaving him a moderate fortune, which enabled him entirely to abandon his profession, and devote himself to the preparation of those works on Law and Government which have celebrated his name in the Four Quarters of the Globe. During the truce of Amiens, he again visited Paris, accompanied by Sir Samuel Romilly, where he found himself famous. M. Dumont was then publis.h.i.+ng his works in French.

Of his "_Traites de Legislation Civile et Penale_," in 3 vols., about 4,000 copies were sold in Paris. At this time, there happened to be three vacancies in the French Inst.i.tute, one of which was reserved for Bonaparte. Bentham was chosen to fill one of the vacancies. From elective affinity, no less than through the agency of Romilly, he soon after became intimate with the young men, known as "the Edinburgh Reviewers," Brougham, Jeffrey, Smith, Horner, Mackintosh, and their a.s.sociates, and from that time was the Mentor of that galaxy of talent on the subject of Law Reform.

When Bentham was admitted to the bar, he found the English law, its principles and its practice, entrenched behind the interests of powerful cla.s.ses, and embedded in the prejudices of all. Though called the perfection of reason, to his penetrating eye it was the offspring of a barbarous age, and, though a n.o.ble production for the times that gave it birth, had obtruded into the light of an infinitely milder and more liberal civilization the harsh features which stamped its origin. To him it was the patchwork of fifteen centuries--a chaos of good and evil--an edifice exhibiting the architecture of the ancient Briton, the Gaul, the Goth, the Dane, the Saxon, and the Norman, all jumbled together, and to which, in order to render it tenantable, modern hands had made numerous additions and improvements, till the whole had become a huge, shapeless, and bewildering pile. He saw that it contained ma.s.ses of material to aid in the erection of a new edifice, adapted to the enlarged wants and cultivated tastes of the present age. And he entered upon the elucidation of his plans for a judicial structure worthy of the noon of the nineteenth century. He was the first man who sat down to the task of exposing the defects of the English law. Heretofore, its students and ministers had been content to sift its principles from a chaotic ma.s.s of statutes and decisions, and collect and arrange the perplexing details of its form of procedure. Commencing at the bottom, he worked up through all its ramifications, bringing everything to the test of expediency, and inquiring whether the parts were h.o.m.ogeneous with the whole, and whether the whole was suited to the wants of existing society, and the promotion of human well-being. Probably not intending, when he started, to do more than improve the system by amending it, he soon aimed at its complete reconstruction, branching out into an exhausting discussion of the principles on which all human laws should be based, nor stopping till he had surveyed the nature of Government in its widest relations.

The test-principle of his system may be explained briefly thus: The only proper end of the social union is, the attainment of the maximum of the aggregate of happiness; and the attainment of this maximum of the aggregate of happiness is by the attainment of the maximum of individual happiness. The standard for determining whether a law is right or wrong, is its conduciveness to the maximum of the aggregate of happiness, by conducing to the maximum of individual happiness. This was known in his day, and in ours, as "the greatest-happiness principle," or "the principle of felicity"--which latter term he much preferred to that by which it is more commonly known, "the doctrine of utility." This was the keystone of Bentham's system. With this principle in his hand, he traversed the entire field of legislation, dividing it into two great parts--internal law, and international law. Internal law included the legislation which concerns a single State or community; international, that which regulates the intercourse of different States with each other. His chief attention was devoted to preparing a code of internal law under the Greek name of _Pannomion_, (the whole law.) This he divided into four parts--the const.i.tutional, the civil, the penal, and the administrative. The _const.i.tutional_ defined the supreme authority, and the mode of executing its will. The _civil_ defined the rights of persons and of property, and was termed the "right-conferring code." The _penal_ defined offenses and their punishments, and was termed "the wrong-repressing code." The _administrative_ defined the mode of executing the whole body of the laws, and was termed "the code of procedure." Some of these codes he run out into details. Others he left unfinished. They all bore the stamp of great research, learning, and symmetry, and were supported by vigorous reasoning, and elucidated by a comprehensive genius. Many a _codifier_ of our day has been indebted, directly or indirectly, to these labors of Jeremy Bentham, to an extent of which he was perhaps not aware.

His system struck at the very root of the English law. Of course, such a "wild enthusiast," such a "reckless innovator," was laughed at, misrepresented, and abused. Not a single tile or crumbling pillar of "the perfection of reason" must be touched. The rubbish that blocked up the avenues leading to it, the dust which choked its pa.s.sages, must not be removed. Venerable for its age, hallowed as the legacy of our ancestors, the work of wise men and dead men, it must be wors.h.i.+ped at a distance and let alone. All cla.s.ses deified it, and denounced such as would sneeze at its consecrated dust. The king as he placed the golden round on his anointed head, and the n.o.ble as he gazed on his stars and ribbons--the fat bishop as he pocketed his t.i.thes, and the lean dissenter as he paid them--the judge in his scarlet robes, and the barrister in his wig of horsehair--the merchant as he paid his onerous duties to the government, and the yeoman as he liquidated the ruinous rents of his landlord--the clodhopper as he took his s.h.i.+lling for twelve hours of exhausting toil, and the culprit as he hung on a cross-tree for killing the hare which poached on his beans--all, high-born and low-born, patrician and plebeian, rich and poor, wise and foolish, were ready to make oath that the common law of England was the perfection of reason, and to swear at Jeremy Bentham for doubting it. If Bentham had done nothing more than dispel this delusion, he would deserve the thanks of the millions in both hemispheres who submit to the sway of the common law; and this he did most effectually.

Bentham brought to his work reasoning faculties which did not so much probe subjects to the bottom as begin there, and work upwards to their surface--a patience which no amount of drudgery could weary--a taste whose light reading was Bacon and Beccaria--a memory retentive as tablets of bra.s.s--a boldness which shrunk from looking no inst.i.tution in the face, and questioning its pretensions to utility and its claims to homage--an honesty which never averted the eye from conclusions legitimately born of sound premises--a conscience which followed truth wherever it led. Lord Brougham, who knew him intimately, has happily said: "In him were blended, to a degree perhaps unequaled in any other philosopher, the love and appreciation of general principles, with the avidity for minute details; the power of embracing and following out general views, with the capacity for pursuing each one of numberless particular facts." He was an adept in numerous modern languages, as French, Italian, Spanish, and German, and he extended his linguistical knowledge into the Swedish, Russian, and other northern tongues. These acquisitions facilitated his study of the history of all countries and times, with whose philosophy, legislation and jurisprudence he was acquainted beyond most men.

His numerous writings all bore some relation to his "Felicity"

principle, and the topics discussed were almost as multifarious as human exigency and action. Including his larger pamphlets, they must number some fifty volumes. They chiefly relate to Government, law, and jurisprudence; but he also wrote extensively on morals, politics, and ecclesiastical establishments. Nor did science wholly escape his searching pen, for he treated of chemistry and anatomy. He wrote against Blackstone's Commentaries, and attacked Burke's plan for economical reform. He wrote on prison discipline and penal colonies, and ill.u.s.trated the anti-Christian tendency of oaths. He advocated free schools, and denounced church establishments. He attacked rotten boroughs, and drafted plans for work-houses. He vindicated free trade, and showed the impolicy of the usury laws. He prepared a const.i.tutional code to be used by any State, and drew up a reform bill for the House of Commons. He wrote separate volumes or pamphlets on bankruptcy, poor laws, primogeniture, escheats, taxation, jails, Scotch reform, the French judiciary, the criminal code of Spain, juries, evidence, rewards and punishments, oaths, parliamentary law, English reform, education, Church-of-Englandism, &c., &c., &c. He wrote for or offered codes to France, Spain, Greece, Russia, and the South American States--sent a letter to each Governor of the United States, proposing to prepare for them an entire code of laws--was intimate personally or by correspondence with Howard, Lafayette, Wilberforce, the Emperor Alexander, Napoleon, Brissot, Mirabeau, Neckar, Benezet, Franklin, Jefferson, Bolivar, Jean Baptiste Say, Toussaint L'Ouverture, and in fact with most of the men of his times, who were celebrated in any part of the world for their services in the cause of liberty, humanity and reform.

Of course no man, unless endowed with all the wisdom of the ancients and the moderns, could write so much on such a variety of subjects, without committing to paper a good deal of nonsense. Yet he wrote no page but contains some profound thoughts, whilst many of his volumes are replete with wisdom. And if any one mortal man could have written codes for all the nations on earth, that man was Jeremy Bentham.

His defects were partly the result of his peculiar mind, and partly of those idiosyncrasies which germinate in all speculators who mingle little with men and things. Bold and original to a fault, he rather suspected that an old thing was necessarily a bad thing. His exhaustless patience, and fondness for abstractions and theorizing, which grew by what they fed on, led him to carry everything out, out, out, till he sometimes trenched on absurdity or sunk in obscurity. In vulgar phrase, he was p.r.o.ne to "run a thing into the ground." He mixed so little with the world, and had such limited experience in the every-day business of life, that he often forgot that his codes must be executed by and upon mortal men. He lived fifty years in the house immortalized as the dwelling-place of Milton, in the very heart of London; and yet nine-tenths of the inhabitants, about whom he was thinking, and writing, and printing for half a century, never knew that he lived at all. Habits induced by this recluse life, were not improved by his being the head and oracle of a school, whose immoderate puffings, which he must hear, were not counterbalanced by denunciations from without, to which he never listened. He tried to reduce everything to a system, and wrote as if the human mind were a curious little wheel, to be put into a vast engine, which, when regulated according to his system, would run without jarring or friction. He made too little allowance for the individualities, eccentricities, _crooked-stickednesses_ of mankind. But in this he did not differ from many other philosophers--men wiser and better than their generation--men so far beyond and above their times, that they look like dwarfs to their cotemporaries.

Then, he undertook so much that he left a great deal incomplete; so that, in many of his works, while he has finished one side of a subject, he seems not to have touched or seen the other side. His style, especially in his latter years, was rough, involved, uncongenial; often obscure from its very verbosity; and, when clear, fatiguing the reader by so thoroughly exhausting the subject as to leave nothing for him to do but read. He called his style of reasoning "the _exhaustive_ mode,"

and he crowded it full of crabbed words of his own invention. He wrote many of his works in French, and they were given to the world by Dumont, a Genevan. Hazlitt has wittily said: "His works have been translated into French; they ought to be translated into English." Sydney Smith, when reviewing his "Book of Fallacies," remarks, in his quaint way, "Whether it is necessary there should be a middleman between the cultivator and the possessor, learned economists have doubted; but neither G.o.ds, men, nor booksellers, can doubt the necessity of a middleman between Mr. Bentham and the public.* * The ma.s.s of readers will choose to become acquainted with him through the medium of Reviews, after that eminent philosopher has been washed, trimmed, shaved, and forced into clean linen."

Bentham invented the words _Codify_ and _Codification_, now in such general use. But let it not be supposed that he was guilty of the absurdity of imagining that the entire laws of a Commonwealth could be compressed into a single volume; nor of that other absurdity, that the laws can be written so plain that the meanest capacity can understand them fully, and apply them, without mistakes, to all the varieties of human rights and wrongs, and the ever-s.h.i.+fting vagaries and exigencies of society. He never had wit enough to see how it was, that what never could be true in regard to any other science or species of writing, must be true in regard to jurisprudence and legislation. He left that discovery for penny-a-liners, who believe all the law the world needs can be printed between the yellow covers of a twenty-page pamphlet.

Bentham labored without any apparent success at home for years. He was famous in France, and appreciated in Russia, before he was known in England. At length, his reiterated blows made an impression. He won converts in high places, and they became his "middlemen" with the public. Brougham and Smith spread out his great ideas in attractive colors on the pages of the Edinburgh, and they sparkled in brilliant speeches from Romilly and Mackintosh on the floor of Parliament. One after another, the champions for the inviolability of the ancient system were prostrated, till reasonable men admitted that, whether or not Jeremy Bentham was right, the common law was certainly wrong, and must be materially altered. Though he took no part in actual legislation, his was the master mind that set other minds in motion; his genius, the secret spring that operated a vast reformatory machine. He did not live to see his whole system adopted, (and would not, had he lived till the millennium,) but he saw parts of it incorporated into the jurisprudence of his country, whilst other parts were postponed rather than rejected.

He saw the fruits of his labors in the amelioration of a sanguinary criminal code, and especially in the abridgment of the death penalty--in the improvement of the poor laws and penitentiaries, and the kindlier treatment of prisoners--in the softening of the harsher features of imprisonment for debt, of the bankrupt laws, and the general law of debtor and creditor--in lopping off some excrescences in chancery, and cutting down costs and simplifying the modes of procedure in other courts--in the abolition of tests, and the emanc.i.p.ation of the Catholics--in the greater freedom of trade, the enlargement of the suffrage, and the partial equalization of representation in Parliament--in the appointment of commissioners to revise the whole ma.s.s of statute law, and reduce it to a uniform code--and, more than all, in the conviction, penetrating a mult.i.tude of intelligent minds, that a large portion of the English law, as administered, so far from being the perfection of reason, was a disgrace to the human understanding, and the homage paid to it a degrading idolatry.

Nor did he see these fruits in England alone. As he labored for the world, so he saw the products of his toil in both hemispheres. France and Russia published his writings, and they were read in Germany and Switzerland. His works were circulated at Calcutta and the Cape of Good Hope; at New York, and New South Wales; in the Canadas, and the Republics of South America. This country profits by his culture in the simplification of its laws, and their revision and codification in many of its States--in the comparative humanity of its criminal codes and prison discipline--and especially in the recent sweeping reforms in the practice of its courts in three or four States, and the abolition of the monopoly of the legal profession--a monopoly worthless to those whom it protected, and galling to those whom it excluded. By no means do I intend to say, that to him we are solely indebted for these reforms. But his hand planted the tree whose fruit is now being gathered. His chief glory is the emanc.i.p.ation of the Anglo-Saxon mind from a blind idolatry of the English common law; and for this he deserves unmeasured praise.

Mr. Bentham was kind, cheerful, simple-hearted, witty, and greatly beloved by his friends. Frank, so frank that he was bluff, he refused a costly present from the Emperor of Russia, lest he should be tempted to praise when he ought to blame. A great husbander of moments, he took air and exercise while entertaining ordinary visitors; and, when conversing on his favorite themes with such as Romilly and Brougham, kept his secretaries busy in noting down their remarks. The ridicule and abuse of which he was the subject rarely reached its aim, for he avoided personal controversies, discussing principles, and not men. He died in 1832, in the 85th year of his age; and gave a singular evidence of his attachment to his principles, by bequeathing his body to the surgeon's knife, for the advancement of medical science.

CHAPTER IX.

Law Reform--The Penal Code of England--Its Barbarity--The Death-Penalty--Sir Samuel Romilly--His Efforts to Abolish Capital Punishment--His Talents and Character.

The earliest mouth piece of Jeremy Bentham in Parliament, and his "middleman" with the public, was Sir SAMUEL ROMILLY. This accomplished lawyer, from the period he entered Parliament, in 1806, till his death, in 1818, directed his main efforts to Law Reform; especially the amelioration of the Penal Code, and the diminution of the number of capital offenses.

The present criminal code of England is a disgrace to civilization. When Romilly commenced his labors, it would have disgraced barbarism.

Blackstone had said in his Commentaries, (and it was substantially true in 1806,) "Among the variety of actions which men are liable daily to commit, no less than one hundred and sixty are declared by act of Parliament to be felonies, without benefit of clergy; or, in other words, to be worthy of instant death." I will specify a few items in this b.l.o.o.d.y catalogue. Treason, murder, arson, and rape, were of course capital crimes. So was counterfeiting coin; refusing to take the oath of allegiance under various circ.u.mstances; falsifying judicial records; taking a reward for restoring stolen goods, when accessory with the thief; obstructing the service of legal process; hunting in the night disguised; writing threatening letters, to extort money; pulling down turnpike gates; a.s.sembling to produce riots, and not dispersing at the order of a magistrate; transporting wool or sheep twice out of the kingdom; smuggling; fraudulent bankruptcies; marrying a couple except in "a church," without the license of the Archbishop of Canterbury, and making false entries in relation thereto in a marriage register; wandering as gipsies thirty days; burglary, in the night; stealing, from the person, property above the value of twelve pence, or, from a dwelling-house, above five s.h.i.+llings, or a vessel above forty s.h.i.+llings; stealing fish, hares, and conies; robbing on the highway to the value of a farthing; forgery in all its multiplied forms; sundry mere trespa.s.ses to personal property, such as tearing down fences, opening fish-ponds, destroying trees in parks and gardens, maiming cattle--and the list might be swelled through a chapter.

The legal mode of inflicting punishment, in many of these cases, was equally barbarous with the penalties. Not content with killing the wretch, he might be dragged to the place of execution at the heels of horses; or emboweled while alive; or burnt to death; or beheaded, quartered, and the parts nailed up in conspicuous places; or his skeleton left to rot on the gallows; or his hands and ears cut off, and his nostrils slit; or be branded on the cheek or hand, before execution.

And down to the reign of William III, counsel were not allowed to prisoners, even in cases of high treason, when the whole power of the Government was brought to crush them; and it was not till the recent reign of William IV, that, in other capital cases, counsel for the accused were allowed to do more than state points of law to the court.

Such a Penal Code would disgrace the Fejee Islands. Yet, it was, in its main features, the law of England in 1806; and, notwithstanding the lucubrations of Bentham, the das.h.i.+ng essays of Brougham, and the lucid speeches of Romilly and Mackintosh, sustained by the protests and the pet.i.tions of churchmen and dissenters, Catholics and Quakers, it remained the law, with slight modifications, till the reign of George IV; and much of it is law to this day! And this code could be eulogized by the cla.s.sical Blackstone; whilst Paley, the archdeacon, could congratulate the readers of his Moral Philosophy on the fact, that torture to extort confessions had been excluded "from the mild and cautious system of penal jurisprudence established in this country!"

Such mildness _is_ a "caution!" The same author, alluding to those who might happen to be convicted and hung through mistake, counsels their surviving friends not to repine, but "rather to reflect that he who falls by a mistaken sentence, may be considered as falling for his country."

No one will suppose that such laws, the offspring of the dark ages, could be enforced against all offenders after the sunrise of the nineteenth century. Still, capital convictions under them were frightfully numerous. The statistics of English criminal jurisprudence afford abundant ill.u.s.trations of the doctrines, that the severity of the law does not diminish crime, and that the certainty rather than the severity of punishment is the surest preventive. These doctrines had been maintained with great power by Lord Bacon, by Stiernhook, the Swedish Blackstone, by Blackstone himself, by the Marquis of Beccaria, by Voltaire, by Montesquieu, by Bentham; and even Paley had admitted their truth. Romilly enforced them in Parliament; and it may be safely affirmed, that the history of crime proves nothing if it does not establish their truth. Larcenies, burglaries, robberies, and forgeries, had increased in England during the eighteenth century, much beyond the advance of population and commerce, notwithstanding the severity of the law and its frequent execution. But these obvious facts were a.s.signed to other causes than defects in the penal code, and these doctrines were scouted as the dogmas of visionary enthusiasts, by nearly the whole of the bench, the bar, and the leading influences in Church and State, at the dawn of the present century. They admitted that the unvarying execution of the law would be barbarous; but insisted that its frightful penalties ought to be suspended over the heads of offenders, to deter from crime; whilst they trusted to indirect modes of softening its rigors. So, judges undertook to bend the law to suit the merits of particular cases; and the humanity of juries, outrunning the injunctions of their oaths, opened the door of escape in cases of peculiar severity.

The latter would frequently find that the value of the property stolen did not reach the capital point; as, that a s.h.i.+lling piece was worth but eleven pence farthing; or a crown, but four s.h.i.+llings and sixpence; or goods for which the thief had asked 8, and refused 6, were worth but thirty-nine s.h.i.+llings; thus stultifying their senses to save a life which the law clamored to sacrifice.

Another evil resulting from the severity of the English code, was felt, not only in that country, but has reached us and our times, and will afflict us so long as we are governed by the common law. Merciful judges, during the trial of offenders for minor crimes punishable with death, would lend a greedy ear to the ingenious cavils and absurd quirks of counsel, and quash the indictment--or refine away the plain words of a statute, so as to exclude the offense from its operation--anything to save the life of a fellow-creature whose crime deserved a ten days'

commitment to the House of Correction. And we are now reaping the fruits of this; for, be it known to the uninitiated, that all these cavils, refinings, quibbles, quirks, and quiddities, are recorded in books, and have come down to us as authoritative parts of "the perfection of human reason," making convenient holes for st.u.r.dy rogues, with the help of sharp-pointed lawyers, to creep through the meshes of our comparatively mild criminal code.

Sir SAMUEL ROMILLY found the penal law of England thus sanguinary on the statute book; thus abused in its administration by the courts; thus entrenched behind the authority of judges, lawyers, statesmen, and divines, when he commenced the humane but apparently hopeless task of softening its penalties to the milder civilization of the present age.

He brought to this work professional eminence the most exalted, talents of the rarest order, learning varied and accurate, eloquence captivating and powerful, and a zeal and courage surpa.s.sed only by the benevolent warmth of his heart. Having previously secured some reforms in the civil law, he carried a bill, in 1808, repealing the capital part of the act against stealing property of above twelve-pence value. This horrid law had existed more than a thousand years, and probably in a thousand cases in which it had been executed, the hangman's rope cost more than the stolen property for which a life was forfeited. Even then Romilly could induce the legislature to fix the death-limit no higher than 15. This and another repealing act had slipped through Parliament in a very quiet way, without exciting the attention of the country. In 1809, Romilly proposed two bills, repealing the laws making it capital to steal to the value of above five s.h.i.+llings from a shop, or forty from a dwelling-house. He sustained them by a speech, which exhibited great research into the statistics of crime, comprehensive views of the philosophy of rewards and punishments, lofty appeals to humanity, and a just appreciation of the benevolent and liberal tendencies of the times.

Both bills failed. But the friends of the halter had become alarmed at these reiterated attempts to restrict the death-penalty. The gallows-toad, touched by the spear of Ithuriel, started up a devil. It was the first time the mask had been torn from the penal code of England, and its visage, grim and b.l.o.o.d.y, exposed to the public eye. The excitement caused by this attempt to narrow the scaffold is at this day incredible. The chancellor in his robes, and the bishop in his lawn; the barrister in his silk gown, and the attorney in his threadbare coat; the reviewer in the aristocratic quarterly, and the obscure pamphleteer in Grub street; all entered the lists to crush the disciple of Jeremy Bentham, and demolish his dangerous heresies. If Romilly had attacked the monarchy itself, or declared that the horse-hair wig of the Archbishop of Canterbury was not a part of the British Const.i.tution, he could hardly have produced more indignation among judges and hangmen; more consternation among the old women of both s.e.xes. Jack Ketch was no longer to hang men for stealing a cast-off coat or petticoat worth five s.h.i.+llings and six pence, and what would become of England! Sir Samuel published a pamphlet containing the substance of his great speech, with additional statistics, which Brougham made the basis of an able essay in the Edinburgh. The pamphlet and the essay produced a profound impression upon liberal and humane minds throughout the country.

But, for two years, he was able to accomplish nothing in Parliament. In 1811, he took advantage of some favoring circ.u.mstances to carry a law abolis.h.i.+ng capital punishment in the cases of soldiers and sailors found begging, without having testimonials of their discharge from the service. Grateful country; to consent not to hang a sailor, who lost his arm at Trafalgar, or a wooden-legged soldier who stormed Badajos, for begging a loaf of bread! Through the seven following years, though Romilly and his coadjutors thundered on the floor of the Commons, and lightened from the pages of the Edinburgh, and rained down pamphlets upon the country, charged with appalling facts, unanswerable arguments, and glowing appeals to the heart of the nation, they fell on the iron-mail of the Tory party only to rebound in their own faces; and this great man having bequeathed the prosecution of the work to Mackintosh, sunk into his grave, in 1818, without seeing one lineament of relenting in the grim visage of the Penal Code.