Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
ideas in conte x t
Edited by
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The books in this series will discuss the emergence of intellectual traditions and of
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will be set in the context of the alternatives available within the contemporary
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EMMANUELLE DE CHAMPS
Contents
Acknowledgements
A note on translations
page vii
ix
1
Introduction
part i: an englishman in the republic of letters
19
Languages of Enlightenment
21
30
41
55
57
70
79
93
104
115
97
vi
Contents
129
131
11
139
A mixed reception
155
161
165
14
175
15
184
197
Conclusion
200
Bibliography
Index
205
225
Acknowledgements
viii
Acknowledgements
as-yet unpublished material due to come out as part of the Collected Works
of Jeremy Bentham, published by Oxford University Press, and allowed me
to quote from it. Michael James carried out earlier work on Benthams
French manuscripts at the Bentham Project and left very useful guidelines
for exploring the material.
Two reviewers for Cambridge University Press offered helpful comments. While I thank them for their careful reading, I, of course, am solely
responsible for any errors or faults that remain in my work.
My greatest thanks go to Dr Michael Quinn for agreeing to revise the
English as the book was being written and sharing his intimate knowledge
of Benthams manuscripts. His work on the form had a direct impact on
the matter. The Centre Bentham supported and encouraged my research
over the years and funded additional proofreading by Catherine Atkinson.
The book owes much to the strong international community of Bentham
scholars. The introduction provides further clues to the intellectual debts
incurred in the preparation of it.
I am deeply grateful to my family, colleagues and friends for their support
and their confidence. Special thanks are due to Julien and to our children,
Agathe and Lucien.
Professor Emmanuelle de Champs, Paris
A note on translations
ix
Introduction
But what I know well enough is my love for France; for the country
of Helvetiuses, Voltaires, and DAlemberts always excepting what I
owe to England.
Draft letter from J. Bentham to Frederick the Great of Prussia, 17801
The words liberty, justice, happiness of the greatest number, are wicked
and criminal. They instil in peoples minds the habits of debate and
mistrust.
Stendhal, The Charterhouse of Parma, 18392
Though he was born in London and lived there for most of his life, the
English philosopher Jeremy Bentham (17481832) was a Francophile. He
made five visits to France in his lifetime. In 1764, aged sixteen, he toured
the French capital with his father. He returned to Paris six years later on
his own. At the age of thirty-seven, he crossed the country swiftly on the
occasion of a trip to Russia to visit his brother Samuel. Seventeen years
later, in the autumn of 1802, he stayed for about three weeks in the capital.
His final visit took place in 1825 at the age of 77, seven years before his
death. The country, its people and its language played a significant part in
the formation of his thought and the dissemination of his ideas.
From the beginning of his career, Bentham appealed to the authority of
illustrious French Enlightenment thinkers, hailing Helvetius as the founder
of the utilitarian doctrine and professing his admiration for Voltaire and
DAlembert. The principle of the greatest happiness of the greatest number, the foundation of Benthamite utilitarianism, was the product of an
on-going philosophical dialogue between France and Britain, illustrating
1
2
Bentham Manuscripts, University College London, box 169, f. 19, (original in French). [Hereafter,
UC, box, folio].
Stendhal, The Charterhouse of Parma, 2 vols., J. Sturrock, trans. (Harmondsworth, 2006), 136.
Introduction
the wealth and depth of cultural transfers between the two nations. Bentham briefly chose to write in French in the 1780s. As early as 1789, some
of his works were translated and read in francophone Europe. It was in
Paris again that Traites de legislation civile et penale were published in 1802,
bringing the author worldwide fame. Throughout his career, Bentham took
a deep interest in European affairs and in French internal politics, which
in turn contributed to the development of his thought.
This book places classical utilitarianism within the European context
of the late Enlightenment and the early nineteenth century, and thus
casts light on the nature of Benthamite utilitarianism at its inception. It
highlights the central impact of continental culture and language on the
formation of Benthams utilitarianism, and explains the specific issues at
stake in the formulation and reception of his ideas in France. Drawing
on the methodology of intellectual history, it reveals the historical and
textual context in which classical utilitarianism developed and spread. It
presents Bentham as a significant thinker in a generation that took an active
part in the last years of the Enlightenment and was influential in shaping
the values of nineteenth-century Europe. Throughout the nineteenth century, Russian and Latin American admirers continued to read and discuss
utilitarianism in French.
The book follows the leads provided by the direct personal contacts,
through travels or correspondence, between the English philosopher and
his French-speaking contemporaries. Though it focuses mostly on France,
it also makes it clear that the philosophers confident fluency at least
in writing in the vehicular language of the Enlightenment provided
him with an entry into a cosmopolitan world of ideas and with fruitful
personal contacts across the European continent. Although it follows on
from the interest in Bentham and France that led to an international
conference at Universite Paris-Ouest Nanterre in 2006, and the publication
of a collective volume a few years later, this book is different in its methods
and in its scope.3 The contributors to Bentham et la France have provided
extremely valuable case studies on which I have built to construct this
contextual presentation of Benthams involvement with France and the
French language. For the nation is taken here as both a linguistic and a
political signifier, that is, as constituting both a linguistic and a political
context.
3
E. de Champs and J.-P. Clero, eds., Bentham et la France. Fortune et infortunes de lutilitarisme
(Oxford, 2009). Sources and methods also differ from J. Zagar Bentham et la France (unpublished
Ph.D. thesis, Universite de Paris, 1958).
Introduction
The book attempts to avoid two pitfalls into which studies of Bentham
are often liable to fall. The first is presenting the philosophers ideas as
an isolated system, abstracted from the historical conditions in which they
were put to paper. In Benthams case, this approach is all the more tempting
in that there is undoubtedly a systematic and self-referring element in
his writings. The second pitfall is segmenting the study of his thought
chronologically. Often, the younger Bentham the writer of A Fragment
on Government and An Introduction to the Principles of Morals and Legislation
in the 1770s and 1780s is studied independently from the older one
the English radical and the Liberal codifier for Greece, Spain, Portugal and
Latin America. By placing Benthams thought in a European context, this
book throws light on continuities rather than divisions.
Like other recent pieces of scholarship, the re-contextualisation of the
historical figure of Jeremy Bentham proposed here relies on the uncovering of a significant body of manuscripts, in this case the early French
manuscripts and unpublished correspondence. It is also indebted to the
careful editorial work conducted at the Bentham Project, University
College London, in the preparation of The Collected Works of Jeremy Bentham. While making previously unknown material available, the editors
also provide thorough information on the writing and editorial history of
each text, which is indeed a prerequisite for any contextual study. In Utility
and Democracy: The Political Thought of Jeremy Bentham, Philip Schofield
has demonstrated how a thorough familiarity with both published and
unpublished sources makes a historical study of the development of Benthams utilitarianism not merely possible, but necessary.4
P. Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford, 2006).
Introduction
his closest friends, the Englishman John Lind and the Austrian FrancoisXavier Schwediauer, had extensive continental connections. They were
both instrumental in developing the philosophers hopes of reaching out to
Eastern Europe. These social, literary and political pursuits accompanied
the development of Benthams philosophical system. Indeed, Benthams
discovery of the principle of utility, which he dated to 1768 or 1769, was
the direct product of his familiarity with French-language writers. The
idea of the greatest happiness of the greatest number provides a perfect
illustration of the philosophical dialogue between France and Britain
during the Enlightenment. The implications of Benthams recurring
invocations of Helvetius are developed: like Helvetius, Bentham hoped to
play an active role in the reforms of his time. His aborted correspondence
with DAlembert, fellow Encyclopediste Abbe Morellet and the marquis
de Chastellux, one of Helvetiuss closest disciples, also throws light not
only on his ambitions, but also on the subterranean network of references
that underlay the formulation of utilitarianism in his early writings.
In the late 1770s, Bentham gradually abandoned translation and pamphleteering to focus on his great work, a critique of the foundations of
contemporary jurisprudence. Directed at first towards English law, these
early plans took on a more European direction in the course of the 1780s, as
Benthams aspirations to find a place in the Republic of Letters developed.
In the early years of that decade, spurred on by his influential patron the
diplomat Lord Shelburne, he hoped to present his work to Catherine II
of Russia. A few years later, he used French to draft a complete plan for
legal reform. He wrote over five hundred folios in that language destined to
make up a Projet dun corps de loix complet (Project for a Complete body of
laws, hereafter Projet). As Part II shows, the change from English to French
was not only driven by practical considerations. It had a direct impact on
both the nature of the project pursued by the philosopher and its contents.
The Projet manuscripts also allow us to place Benthams early ambitions in
the context of the enlightened legal reforms undertaken on the Continent
in the second half of the eighteenth century. This makes it possible to
recognise his vast knowledge of Roman law and of contemporary reform
schemes and to assess the nature of his contribution to that movement.
As this section makes clear, Projet was but one aspect of Benthams wideranging plan for legal reform in the early years of his career, one that was
closely related to An Introduction to the Principles of Morals and Legislation
(printed in 1780, but only published nine years later). Benthams codification projects resurfaced in the 1810s when he wrote to a number of rulers,
Introduction
from America to Russia (again), offering his services to codify local bodies of
law.
When he came back from Russia in 1788, Bentham became more familiar with Lord Lansdowne (as Lord Shelburne had become after 1785). At
Bowood, Lord Lansdownes country seat, and at his London house, Bentham mingled with a cosmopolitan and brilliant crowd including Etienne
Dumont, the Genevan who was to become his French translator. Benthams
encounter with Dumont at Lansdownes was extremely significant for it
coincided with the outbreak of the Revolution in France. Lansdownes
power and connections allowed Bentham to envisage that he could at last
exercise a genuine influence on legal and political institutions. Indeed,
Dumont himself was by then working in Paris with Mirabeau, then a
rising star in French politics. Part III presents the history of Benthams
hopes to be heard in Revolutionary France in the wake of his cosmopolitan aspirations of former decades. It traces the ways in which his writings
circulated there through Dumont and, importantly, other acquaintances
of Lord Lansdownes. The European perspective brings out the continuities in Benthams political thought and identifies his reforming position
with that of a specific milieu of cosmopolitan reformers who wished to
see a modernised France take its place in the concert of nations without
necessarily adopting republican institutions. It is principally though not
exclusively through these networks that Benthams ideas and writings
were circulated in Revolutionary France, before the Terror put an end to
hopes of achieving political security in Europe.
Not before 1802 were communications between the two nations possible
again. Benthams pre-revolutionary contacts were crucial in ensuring the
publication of two of his works in Paris in that year, Traites de legislation
civile et penale and Esquisse dun ouvrage en faveur des pauvres. This seminal
moment for the reception of Benthams ideas in France is studied in Part IV,
which shows why the intellectual and political climate of the Directory and
the Consulate was propitious for the reception of British utilitarian ideas.
Indeed, it coincided with the rise to power of the group of the Ideologues,
the French branch of the heirs of Helvetius in philosophy and in politics.
However, there was to be no true dialogue between French and British
utilitarians at that time, and the reception of Benthams writings in 1802
was ultimately disappointing. Part IV finds reasons for this seemingly paradoxical state of affairs in the complex and precarious situation prevailing
in French political life at that time.
During the Empire, most channels of communication between France
and Britain were again broken. After the Restoration of 1815, Anglophilia
Introduction
J. Bentham, Draught of a New Plan for the Organisation of the Judicial Establishment in France, in
The Works of Jeremy Bentham, John Bowring, ed., 11 vols. (Edinburgh, 1843), [hereafter Draught of
a New Plan, Bowring], vol. IV, 285406; Political Tactics, in Collected Works (hereafter CW ), M.
James, C. Pease-Watkin and C. Blamires, eds. (Oxford, 1999).
Traites de legislation civile et penale, E. Dumont, ed., presented by M. Bozzo-Rey, A. Brunon-Ernst,
E. de Champs (Paris, 2010). On the posterity of the work in Britain, see F. Rosen, You have set me
a strutting, my dear Dumont: la dette de Bentham a` legard de Dumont, in Bentham et la France,
8596.
Introduction
this work shows how Benthams own words and ideas were adapted to the
swiftly changing political culture of Europe between 1780 and 1820.
8
9
10
K. Marx, Capital, vol. I (London, 1996), 605. Marx conducted more work on Benthamite individualism in the 1880s, see The Ethnological Notebooks of Karl Marx, L. Krader, ed. and trans. (Assen,
1972). I thank Professor Don Jackson for this reference.
E. Halevy, The Growth of Philosophic Radicalism (London, 1952), xviii.
See C. Audard, La tradition utilitariste: Bentham, Mill et Sidgwick, in A. Renaut, ed., Histoire
de la philosophie politique, vol. IV. Les critiques de la modernite politique (Paris, 1999), 53101.
The alienness of utilitarianism to French culture is further demonstrated in C. Welch, AntiBenthamism: utilitarianism and the French liberal tradition, in R. Geenens and H. Rosenblatt,
eds., French Liberalism from Montesquieu to the Present Day (Cambridge, 2012), 13465.
M. Oakeshott, The New Bentham, Scrutiny, 1 (1932), 11431.
Introduction
early 1950s, Isaiah Berlin reminded his BBC audience that Bentham was
a complete disciple of Helvetius.11 Alongside Rousseau, Fichte, Hegel,
Saint-Simon and de Maistre, Helvetius figured among the thinkers who
had, according to Berlin, betrayed the liberal tradition by substituting
happiness to freedom and by calling for a tyranny of reason. Highlighting
Benthams French intellectual ancestry was not the exclusive preserve of
liberals. On the one hand, Berlins arguments were later to be adopted
by conservative American scholars.12 On the other, building upon Marxs
comment, Harold Laski also wrote, in Political Thought in England, Locke
to Bentham, that with Bentham, [t]he French seed at last produced its
harvest. Bentham absorbed the purpose of Rousseau while rejecting his
method.13
Thanks to works that have firmly reasserted Benthams debt to Hume,
or the way he engaged with the common law tradition, the idea that
his Frenchness set him apart from his British contemporaries now appears
to be somewhat dated, and it is not the purpose of this book to revive
it.14 Oakeshott himself reviewed his earlier opinion and highlighted the
continuities between Hume and Bentham.15 However, as Berlins move
from eighteenth-century utilitarianism to twentieth-century totalitarianism reminds us, such categorizing in the history of ideas cannot be separated
from ideological interpretations of the legacy of the Enlightenment and the
French Revolution. This is one of the reasons why this book deals, through
Benthams writings, with the transition from Ancien-Regime Europe to
early liberal states. Alongside other doctrines such as Republicanism in
France and Whiggism in Britain, utilitarianism played an important part
in adapting the ideas of the Enlightenment to the demands of the nineteenth century.
This book firmly places Benthams thought, writings and aspirations
within a definition of the Enlightenment as a period in which Frenchspeaking philosophers and their ideas were influential. It considers Benthams position on the philosophers own terms, by closely following the
leads he provided in his correspondence, in his literary activities (in a
broad sense), and in his references in published and unpublished writings.
11
12
13
14
15
I. Berlin, Freedom and Its Betrayal. Six Enemies of Human Liberty (London, 2003), 20, 25.
G. Himmelfarb, The Haunted House of Jeremy Bentham, Victorian Minds (London, 1968), 3281.
H. Laski, Political Thought in England. Locke to Bentham (Oxford, 1955), 19.
G.J. Postema, Bentham and the Common Law Tradition (Oxford, 1986); D. Lieberman, The Province
of Legislation Determined: Legal Theory in Eighteenth-century Britain (Cambridge, 1989); F. Rosen,
Classical Utilitarianism from Hume to Mill (London, 2003).
M. Oakeshott, Morality and Politics in Modern Europe: the Harvard Lectures (New Haven, CT and
London, 1993), 748.
Introduction
The picture that emerges is a complex one, or at least one that challenges
existing dichotomies between a French and a British Enlightenment, a
High and a Low Enlightenment, and a radical and a moderate Enlightenment. Such divisions have proved incapable of making sense either of
Benthams ideas or of his career. First, the distinction between a Conservative Enlightenment in England and a European Enlightenment, in
which French was the dominant language and the philosophes set the tone
for reform throughout Europe, fails to accommodate Bentham and his
followers, who can then only be thought of as exceptions to a general
rule. For instance Franco Venturi named Bentham, Price, Godwin and
Paine as the only, belated, representatives of the European Enlightenment
in England.16 As the description of Benthams career in London scientific
and literary circles in the 1770s and 1780s in Parts I and II demonstrates,
Venturis statement needs qualifying. If one believes, like John Pocock, that
Britains peculiar national institutions fostered specific forms of Enlightenment, mainly Protestant in origin and character, Benthams interest for
continental and atheistic writers is difficult to understand. Indeed, John
Pocock has consistently treated Bentham and his followers as exceptions,
on the ground that they were atheist, bureaucratic, possessed of an instrumental rationality that made them ready to codify Englands laws and
reconstruct its institutions.17
In 1981, reacting in part to Pococks views, Roy Porter remarked that
contemporary attempts to place the Enlightenment in national context
served to highlight the social conservatism of British thinkers by cutting
them off from their French-speaking contemporaries. Modern scholarship, he wrote, reads like a paternity-denying alibi, proving that Englands
kinship with the family of philosophes was no closer than a maiden aunts.18
Interestingly, he chose to mention Bentham as a counter-example. In his
last study, Enlightenment, Britain and the Creation of the Modern World,
published two years before his death, Porter illustrated the plurality of
Enlightenments in Britain by stressing the personal, cultural and political
links between British thinkers and their French contemporaries. Devoting
16
17
18
Only one country was absent from this array of Enlightened thinkers in the sixties and seventies,
and that was England . . . The fact remains that no parti des philosophes was formed in London,
and so could not claim to guide society. . . . One has to wait until the eighties and nineties to find
men such as Bentham, Price, Godwin and Paine. In England, the rhythm was different. F. Venturi,
Utopia and Reform in the Enlightenment (Cambridge, 1971), 132.
J.G.A. Pocock, Barbarism and Religion, vol. I. The Enlightenments of Edward Gibbon, 17371764
(Cambridge, 1999), 295, 294.
R. Porter, The Enlightenment in England, in R. Porter and M. Teich, eds., The Enlightenment in
National Context (Cambridge, 1981), 118, 3.
10
Introduction
a section of his book to Bentham, Porter was the first to integrate the results
of recent Bentham scholarship into a wider history of the Enlightenment
in Britain.19
Among Bentham scholars, James H. Burns had long stressed the relevance of Benthams ideas to the scholarly debate on the Enlightenment.
He explained how Benthams radicalism in religion and in politics related
to the Enlightenment of Hume and Adam Smith, of Voltaire, Helvetius
and DAlembert, stressing that his kind of radicalism was that of an
intellectual reforming elite on both sides of the Channel.20 His last articles were devoted to Bentham and Brissot, reminding his readers that the
two men had met in London in 1784 and corresponded again, though
briefly, in the early years of the Revolution. Burns showed how a comparative approach to their careers as legislators and reformers could cast
light on their specific positions within the European Republic of Letters.
This book owes much to Burnss illuminating approach and to his flawless
scholarship.21
Burnss cautious definition of Benthams radicalism also needs explaining, as the phrase Radical Enlightenment has been revived in Jonathan
Israels recently completed trilogy.22 Indeed, though the third volume,
entitled Democratic Enlightenment, covers the period 177089, there are
few mentions of the philosophers name. This is because Israel defines
eighteenth-century radicalism as a package of ideas held by the critics of
the established thinkers of the Enlightenment. Issuing from Spinoza in the
Netherlands, this package of ideas spread through underground channels
in France, Britain and America and played a central part in the democratic
revolutions of the 1780s and beyond:
19
20
21
22
R. Porter, Enlightenment: Britain and the Creation of the Modern World (London, 2000). Franco
Venturi also examined Benthams thought and his continental connections: The End of the Old
Regime in Europe, 17761789, vol. II (Princeton, NJ, 1984).
J.H. Burns, Jeremy Bentham: From Radical Enlightenment to Philosophical Radicalism, The
Bentham Newsletter (1984), 414. See also The Fabric of Felicity. The Legislator and the Human
Condition (London, 1968); and Happiness and Utility: Jeremy Benthams Equation, Utilitas, 17
(2005), 4661. For the distinction between High and Low Enlightenment, see R. Darnton, The
High Enlightenment and the Low-Life of Literatures, The Literary Underground of the Old Regime
(Cambridge, MA, 1982).
J.H. Burns, Bentham, Brissot et la science du bonheur, in Bentham et la France, 319; Bentham,
Brissot and the Challenge of Revolution, History of European Ideas, 35 (2009), 21739.
J.I. Israel, Radical Enlightenment. Philosophy and the Making of Modernity (Oxford, 2001); Enlightenment Contested: philosophy, modernity, and the emancipation of man, 16701752 (Oxford, 2006);
Democratic Enlightenment (Oxford, 2011). See also F. Rosen, Jeremy Benthams Radicalism, in
G. Burgess and M. Festenstein, eds., English Radicalism, 15501850, (Cambridge, 2007), 217
40.
Introduction
11
By 1789, radical thought and its social and legal goals had indeed come to
form a powerful rival package logic equality, democracy, freedom of the
individual, freedom of thought and expression, and a comprehensive religious toleration that could be proclaimed as a clearly formulated package
of basic human rights. Only adherents of radical ideas embraced fundamental human rights as the veritable basis for social theory and political
constitutions and enthusiastically welcomed this aspect of the Revolution.23
12
Introduction
perspective on his life and works: for Benthams position in fact mirrored
that of many of his moderate friends in France and in Britain.
Through his personal contacts, the themes he wrote on and his attention
to the diffusion of his works, Bentham provides a perfect illustration of
the cosmopolitan aspect of the European Enlightenment. In a recent book,
Britain, Ireland and Continental Europe in the Eighteenth Century, Stephen
Conway describes the circulation of persons, goods and ideas in Europe
before and during the French Revolution, presenting a case for our regarding eighteenth-century Britain and Ireland as integral parts of Europe, and
for our appreciating that this was the perspective of many contemporary
British and Irish people.26 Tellingly, he uses Benthams correspondence
which he also edited to show the diversity of a philosophers personal
contacts on the European continent. In this view, Benthams Francophilia
is taken as emblematic of the attitudes of many in the English-speaking
world. Such a reassessment of the Enlightenment as a global dynamic,
extending throughout Europe and the Atlantic world, is now well under
way.
The approach pursued in this book also relates to the vision of
eighteenth-century Europe as a space of communication and transfers.
As such, it builds on the methodology for the study of cultural transfers pioneered in France by Michel Espagne and Michael Werner, who
worked on the interactions between France and Germany. This perspective has proved fruitful for the study of Britain and France in the long
eighteenth century.27 For it is only in constructing the Enlightenment as
a complex and interrelated geographical and intellectual space that Benthams specific position within it can be understood. As this book makes
clear, the exchange of ideas did not take place only in the abstract world
of intellectual discussion, but in personal and material exchanges. Visits,
recommendations, books lent and borrowed provide clues to the understanding of the circulation of ideas. Due to the wealth of archival material
relating to Bentham, and to the editorial work conducted on the fourteen
26
27
S. Conway, Britain, Ireland, and Continental Europe in the Eighteenth Century. Similarities, Connections, Identities (Oxford, 2011), 2.
M. Werner and B. Zimmermann, Beyond Comparison: Histoire croisee and the challenge of
reflexivity, History and Theory, 45/1 (2006), 3050. For FrenchBritish transfers and more detailed
methodological presentations see C. Charle, J. Vincent and J. Winter, Anglo-French attitudes. Comparisons and transfers between English and French intellectuals since the eighteenth century (Manchester,
2007); A. Thomson, S. Burrows, E. Dziembowski and S. Audidi`ere, eds., Cultural Transfers: France
and Britain in the long eighteenth century (Oxford, 2010). For a recent methodological synthesis see
P.Y. Saunier, Transnational History (Basingstoke, 2013).
Introduction
13
14
Introduction
the vehicles of Dumonts Traites de legislation civile et penale and John Stuart
Mills revisions) and the authenticity Bentham (meaning the figure now
recovered from the manuscripts and new editions).28
29
30
Introduction
15
as his own propagandist, never relying exclusively on his friends or selfproclaimed disciples. This active approach to the publication of his own
works and ideas was only partially successful and eventually ceased with
his death in 1832, leaving others to appropriate his legacy for subsequent
generations. The distinction between Bentham and Benthamism does
not prove very operative in his lifetime and has not been adopted here.
By casting light on the historical definition of utilitarianism in a French
context, this book also contributes to our understanding of the breaks
and continuities in French (and to a lesser extent British) politics after the
Revolution. Like his contemporaries Siey`es, Talleyrand and Lafayette, Bentham belonged to a generation born and bred under the Ancien Regime,
whose careers took off in 1789 and who remained influential until the early
1830s. In France, this continuity has long been obscured by the revolutionaries claim that new foundations for politics had been set. For that reason,
adopting Benthams lifetime as the chronological framework also adds to
our understanding of a moment in French history that is receiving more
and more scholarly attention. For only recently have historians on both
sides of the Channel paid sustained attention to the decade that followed
the Terror, during which so many of the institutions of modern France were
first established and during which political debates were markedly different
from later nineteenth-century liberalism.31 Likewise, the post-1814 Restoration has recently been described as a seminal turning point in political and
literary history and in the history of ideas, during which Liberal ideas were
truly adopted in France.32
Building on this research, this book also provides a fresh perspective on
the debates in Parisian circles from the Directory to the Restoration by
highlighting the philosophical and political consequences of the rise and
fall of Napoleon.
31
32
16
Introduction
Bentham was one of the philosophers who took the cosmopolitan ideal
to its greatest lengths. In morals, the principle of the greatest happiness
of the greatest number provided a standard embracing all nations. In
jurisprudence, laying the foundations of a universal legal system, Bentham
also hoped to create the conditions for international law, a neologism
he created. Like Kant, he wished to bring about perpetual peace, but he
went much further in devising institutions that could translate this ideal
into practice and in engaging in a dialogue with his contemporaries from
33
C. Welch, Anti-Benthamism.
Introduction
17
all nations. In his lifetime, his unfailing interest in the world at large was
matched by a growing fame abroad. Far from appropriating Bentham for
France against Britain, this book highlights the importance of French and
French-language connections to the Global Bentham.34
34
For a recent contribution on that theme, see D. Armitage, Globalizing Jeremy Bentham, History
of Political Thought, 32 (2011), 6382.
part i
Son born, later named Jeremy; at half past four, my son was born. Bowring, vol. X, 5.
19
chapter 1
Languages of Enlightenment
Bowrings statement is tinted with the prevailing notion of Frances agricultural and industrial backwardness and reveals little about the actual
1
2
Bowring, vol. X, 9.
The Correspondence of Jeremy Bentham, vol. I, 17521776, T.L.S. Sprigge, ed., (CW) (London, 1968),
xxv; and Bowring, vol. X, 47. Jeremy and Samuel Bentham (born in 1757) were the only surviving
children of Jeremiah and Alicia Bentham. Alicia died in 1759, in 1766 Jeremiah married Sarah Abbott,
a widow with two sons.
Bentham reminisced in 1796: I myself beheld the unfortunate Lewis eating in public with his two
brothers at Versailles, on a Saint Lewiss Day, as usual when Saints and Lewiss reigned in France.
J. Bentham, Writings on the Poor Laws, vol. II, M. Quinn, ed., (CW) (Oxford, 2010), 240.
Bowring, vol. X, 47.
21
22
impressions the fourteen-year old Bentham might have gleaned.5 The general tone of these recollections is that of Benthams enduring memories
of his early readings in French, of the stores of amusement which the
language opened to [him].6
Telemachus remained one of Benthams most fondly remembered books.
Written by the moralist Fenelon for the education of the Duke of Burgundy
(Louis XIVs grandson) and published in 1699, it immediately became a best
seller in childrens educational literature. By following the adventures of
Ulysses son in search of his father across the Mediterranean, accompanied
by his tutor Mentor Minerva in disguise the reader was introduced
to morals, politics, economics, diplomacy and agriculture. As late as the
1820s, Bentham suggested it as set reading to young Tripolitan friends. He
reminisced:
When in the summer of 1754 I remember it as if it were but yesterday
. . . six years having but just passed over my head, Telemachus was the
delight, not only of my waking, but of my sleeping moments; I made a
sort of vow, however indistinct, that whenever human beings and human
feelings were concerned, the numeration table should be my guide.7
It seems surprising that Bentham should trace the principle of utility, or the
use of numeration tables to quantify and add up happiness, to the work of
Fenelon, a Catholic archbishop leaning to spiritualism. Moreover, his own
recollections of the passage in which he found ideas which seemed . . . to
border, at least, on the principle of utility are too vague and erroneous
to give any clear guidance in that matter.8 If part of Mentors teaching
was indeed to insist that a kings duty was to enhance public happiness,
by providing the best laws and the most useful maxims of government,
the path that led to it was that of virtue and self-effacement, not that of
utilitarian calculus.9
Benthams misreading was, however, typical of other eighteenth-century
opinions on the work. As the century progressed, the spiritual and moral
origins of Telemachus were pushed into the background and the more
5
6
7
8
9
F. Crouzet, Britain Ascendant. Comparative Studies in French and British Economic History (Cambridge, 1990).
Bowring, vol. X, 10.
The Correspondence of Jeremy Bentham, vol. X, July 1820 to December 1821, S. Conway, ed., (CW)
(Oxford, 1994), 345.
Bowring, vol. X, 10.
The intention of the laws is that one man by his wisdom and moderation should promote the
happiness of such numbers, says Mentor. F.S. de la Mothe Fenelon, Telemachus, Son of Ulysses
(Cambridge, 1994), 60.
Languages of Enlightenment
23
10
11
12
13
14
See A. Cherel, Fenelon au XVIIIe si`ecle en France (17151820). Son prestige, son influence (Geneva,
1970), esp. 40112 and 44565.
La Combe induced my father to give me the Lettres Juives [by Boyer dArgens] which filled my
mind with vain terrors. . . . He recommended some other works, of the propriety of reading which
my father doubted. La Combe was, as I afterwards discovered, a freethinker. Voltaires Life of Charles
XII, his General History, and his Candide were, in process of time, read by me. Bowring, vol. X, 11.
Bowring, vol. X, 36n. Bowring reproduced the list preserved in the Westminster School Archives,
1913/1/2 CC5. See Voltaire, Essai sur les murs et sur lesprit des nations, OCV 2127B (Oxford, 2009).
Correspondence (CW), vol. I, 85.
For examples of Gibbons French, see J.G.A. Pocock, Barbarism and Religion, vol. I, passim.
24
18
Correspondence (CW), vol. I, 261. For Benthams debt towards Helvetius, see pp. 4245, below.
ibid., 269. Original in French.
In much later writings, Bentham distinguished between the eulogistic and dyslogistic (i.e. positive
and negative) connotations of common words. See J. Bentham, A Table of the Springs of Action, in
Deontology, together with A Table of the Springs of Action and Article on Utilitarianism, A. Goldworth,
ed. (CW) (Oxford, 1983), 1001.
Correspondence (CW), vol. I, 2745. Original in French.
Languages of Enlightenment
25
Translating
By the time of the French Revolution, Bentham was reported to be able to
make himself understood in French, though he express[ed] himself with
difficulty for want of use.21 Indeed, in his youth, it was mostly in reading
and writing that he continued to use the language. In 1768, having taken
his degree at Oxford, he returned to London. He was called to the bar
in 1769 and soon abandoned the practice of the law for that of writing.
In the autumn of 1770, he returned to Paris on his own with no relations
and little money: his object [in travelling by water from Rouen to Paris]
was cheapness.22 Back in London, his command of French provided him
with the first opportunity of publishing his own work: his translation of
Voltaires The White Bull came out in 1774, with a long preface of his own.23
Unlike many better-connected British travellers, he does not seem to
have held any notable letters of recommendation, having, as Bowring
19
20
21
22
23
J. Bentham, An Introduction to the Principles of Morals and Legislation, J.H. Burns and H.L.A. Hart,
eds. (CW) (Oxford, 1996), 298300n. (Hereafter IPML).
For Benthams later work on language, see An Essay on Universal Grammar, in Chrestomathia,
M.J. Smith and W.H. Burston, eds., (CW) (Oxford, 1983), 394406; for a definition of translation,
see Logic, Bowring, vol. VIII, 244.
UC 169, f. 170. Probably a copy from a fragment of a letter from Lord Lansdowne to the duc de La
Rochefoucauld.
The Correspondence of Jeremy Bentham, vol. III, January 1781 to October 1788, I.R. Christie, ed.,
(CW) (London, 1971), 3001.
The White Bull, an Oriental History. From an ancient Syriac manuscript communicated by Mr.
Voltaire, [J. Bentham, trans.], 2 vols. (London, 1774).
26
26
27
28
Languages of Enlightenment
27
His Lincolns Inn friend, George Wilson, one of the main supporters
of his philosophical career in the 1770s and 1780s, believed that if the
translations were known to be his, it would be a great degradation to
[his] character . . . and injure [him] and [his] projects beyond measure.31
Bentham thus remained cautious about this aspect of his early work. His
desire to be recognised as an author rather than as a translator is revealed
in the payment he requested for the translation of Les Incas: three guineas
per sheet, the same as Smollett.
Commentaries on translation and the publishing industry are included
in his lengthy preface to The White Bull. Bentham remained ambiguous
as to his authorship of the translation. Though he made no secret of it
to his close friends, he publicly disowned it on some occasions, calling
it an obscure piece of Grub-Street literature which, hitherto, neither has
had, nor, if the author will excuse me saying so, deserves to have, any
regard.32 In the preface he poured sarcasm on the other two English
translations published almost simultaneously with his own, one by the
publisher Murray and the other, serialised, in the Sentimental Magazine.
As was generally recognised by contemporaries, Benthams version was far
superior.33 In his own preface, he highlighted a string of mistakes and
infelicities in his rivals works and used scatological images to describe
the Sentimental Magazine, portrayed as a worm feeding on rubbish before
29
30
32
33
See E. de Champs, An introduction to utilitarianism. Early French translations of Benthams Introduction to the Principles of Morals and Legislation, in A. Thomson, S. Burrows and E. Dziembowski,
eds., Cultural Transfers (Oxford, 2011), 26983.
31 ibid., 21.
Correspondence (CW), vol. II, 6.
Bowring, vol. X, 83. The letter is undated and the recipient remains unidentified.
The first of the translations before us [Benthams] neither servilely copies the phrase of the original,
nor, however free, too far deviates from the sense of it. The notes are pertinent and satirical, and,
as well as the Preface, show the translator to be a man after the authors own heart. The Second (Le
Taureau Blanc) [Murrays] is not of equal merit. The Critical Review, or, Annals of Literature, 38
(Oct 1774), 2904. The article then printed extracts from the two translations: Benthams and the
serialised translation as The White Ox in The Sentimental Magazine, or General assemblage of science,
taste and entertainment (MayDecember 1774).
28
But fidelity was understood, as it was by many eighteenth-century translators, not in the most literal sense. One needed to be faithful to the story
and to the style of the work, but also to adapt it so that its effects on the
reader would be similar whatever the language. In the case of Voltaires
philosophical tale, this implied and even necessitated departures from the
letter of the original. Benthams appropriation of Voltaires style led him
to change cultural references for his British readers. Thus, he substituted
the Archbishop of Canterbury to Voltaires controleur general (ll. 113);
added a mention of Priestleys recent work on the properties of air (ll. 66);
paraphrased Voltaires reference to someone who had read le philosophe
Egyptien nomme Locke as someone who had read Tristram Shandy and
Locke upon Understanding (ll. 136); and turned Voltaires vins exotiques
into Champagne and Burgundy (ll. 112).35
As we have seen, Bentham did not have a theory of translation, believing
as he did that languages worked approximately in the same way and shared
the same basic substructures. However, when he mentored Samuel on the
marks of authority and deference in the French language, he also paid
attention to the necessity of picking the right words in order to create the
intended effect on the audience. This was in line with contemporary theories of translation which insisted on imitation and elegance rather than
on literal rendering. The entry Translation in Diderot and DAlemberts
Encyclopedie, attributed to Nicolas Beauzee, contrasts the more literal exercise of version to that of translation:
It seems to me that a version is more literal, more attached to the original
languages own processes, and more dependent in its methods on the technique of analytical construction. Translation is more concerned with the
substance of thoughts, more scrupulous in presenting them in a suitable
34
35
Languages of Enlightenment
29
form in the new language, and more dependent in its style on the turns of
phrase and idiomatic expressions of this language.36
37
The Encyclopedia of Diderot & dAlembert, collaborative translation project, this article trans. M.-P.
Pieretti (Ann Arbor, 2006). On translation technique in the eighteenth century, see F. Oz-Salzberger,
The Enlightenment in Translation: Regional and European Aspects, European Review of History,
13 (2006), 385409.
Les Incas, vol. I, xxiixxiii.
chapter 2
30
31
Voltaire, Le Taureau blanc, R. Pomeau, M. H. Cotoni and C. Mervaud, eds., in uvres de 1772, vol.
I, Les uvres Compl`etes de Voltaire, vol. LXXIV A (Oxford, 2006). In English, The White Bull, in
Candide and other stories, R. Pearson, trans. (Oxford, 2006).
See Voltaire, Philosophical dictionary, T. Besterman, trans. and ed. (Penguin Books, 2004). A summary
of Voltaires attitude towards the Scriptures may be found in Dictionnaire general de Voltaire, R.
Trousson and J. Vercruysse, eds. (Paris, 2003), under the entry Bible, by J.-L. Seban, 12732. For
detailed analyses, see M.-H. Cotoni, Lexeg`ese du Nouveau Testament dans la philosophie francaise au
dix-huiti`eme si`ecle (Oxford, 1985); D. Levy, Voltaire et son exeg`ese du Pentateuque: critique et polemique
(Oxford, 1975). On The White Bull, see H.T. Mason, A Biblical Conte Philosophique: Voltaires
Taureau Blanc, in E.T. Dubois, ed., Eighteenth-century French Studies (1968), 5569.
A. Calmet, Dictionnaire historique, critique, chronologique, geographique et litteral de la Bible (Paris,
17201); T. Woolston, Discourses on the Miracles of Our Saviour, in view of the present controversy
between infidels and apostates (London, 1728). For Voltaires sources, see the editorial introduction
by B.E. Schwarzbach, La Bible enfin expliquee, in uvres Compl`etes de Voltaire, vol. LXXIX A
(Oxford, 2012).
32
was shown conversing with the fictitious Mambres. The precepts of the
Bible were ridiculed by being taken literally: it was forbidden to invite
the White Bull to rest in stables for the night, for [i]t is written in
Daniel [chap. iv] That he shall eat grass, that his body shall be wet with
the dew of Heaven, and that his dwelling shall be with wild Asses.5
The tale also allowed Voltaire to mock anachronisms in the text of the
Bible (as evidence against Revelation): the old woman was shown writing
upon Egyptian paper before it was in use.6 Voltaire had also frequently
pointed out, like other exegetists, that the subsistence of all the animals on
Noahs ark was impossible: how could eight humans feed representatives
of all known species?7 Voltaire also took up the familiar theme of the
dubious morality of the conduct of Biblical characters. In the tale, a snake
entertains Princess Amasidia with
the amours of the luckless Seechem and pretty Miss Dinah, then in her sixth
year the more manly love of Booz and Ruth the loves of Judah and his
daughter-in-law Thamar those of Loth with the two pretty oeconomists
his daughters, who did not care the seed of their father should be lost the
loves of Abraham and Jacob with their hand maids those of Reuben with
their mother-in-law those of David and Bathsheba and those of the wise
King of Solomon with his seven hundred wives and concubines.8
6 ibid., 91.
7 ibid., 99101.
The White Bull, vol. II, 86.
ibid., 1314. Bentham added the precise references to the text of the Old Testament in footnotes.
This sentence is missing from Benthams translation.
11 The White Bull, vol. II, 105.
Westminster Magazine (Nov. 1774), 592.
33
13
14
The White Bull, vol. I, ixlv. The second section of the Preface is a scatological tale mixing satire of
the periodical press with an exposition of Common Law proceedings, and the third criticises the
two contemporary translations of The White Bull.
Such reversals were frequent devices among radical critics of religion: see the implicit critique of
Christianity in C. Blount, Great is Diana of the Ephesians. On the Origins of Idolatry (London,
1680). For more on that topic, see R. Porter, Enlightenment, 11920.
15 ibid., xvxvi.
16 ibid., cxliii.
The White Bull, vol. I, xiii.
34
19
20
Thomas Stackhouse, History of the Holy Bible, from the beginning of the World to the establishment
of Christianity (London, 1737).
For these authors, see individual entries in Oxford Dictionary of National Biography; C.-F. Houtteville, La Religion chretienne prouvee par les faits, avec un Discours historique et critique sur la methode
des principaux auteurs qui ont ecrit pour et contre le christianisme depuis son origine (Paris, 1740).
J. Bentham, Delits religieux, Revue detudes benthamiennes, 6 (2010) online transcript of UC 98,
ff. 64117.
21 ibid., f. 71. Original in French.
UC 98, f. 64. Original in French.
35
All the laws of interpretation, all the rules of criticism must be violated and
broken. To be able to attempt to give the appearance of truth to such an
enormous mass of errors, ones entire spirit must be imbued with falsity.22
36
While Linds provocations illustrate his familiarity with the codes and
debates of a cosmopolitan enlightenment and his polemical objectives,
they do not necessarily reveal a sustained philosophical position against
utilitarianism. In any case, they did not prevent increasing familiarity with
Bentham. Through Linds sisters, Bentham met the young Polly Dunkley,
whom he briefly hoped to marry. When his fathers opposition to the
marriage and his subsequent withdrawal of his allowance forced Jeremy to
consider writing as a source of income, Linds experience in that line seemed
invaluable. Linds pension from his Polish patrons was insufficient and he
28
29
30
Pansmouzer, G. [J. Lind], The Polish partition in seven dramatick dialogues: Or, Conversation pieces,
between remarkable personages, published from the mouths and actions of the interlocutors (London,
1773) (hereafter Seven Dialogues). See also note 38, p. 38, below. In several catalogues, the work is
erroneously attributed to the Unitarian divine Theophilius Lindsey (17231808). For Linds probable
authorship, see D. Horn, British Public Opinion and the First Partition of Poland (Edinburgh,
London, 1945), 29 and note.
F. Venturi, The End of the Old Regime in Europe, vol. II, 90911.
31 Seven Dialogues, 1112.
J. Lind, Letters, 174.
37
34
35
36
38
39
40
The Gazetteer, 26 July and 1 August 1776. Correspondence (CW), vol. I, 336n.
See also note 27, p. 36; [J. Lind], Les droits des trois puissances alliees sur plusieurs provinces de la
Republique de Pologne (Paris, 1773); Pansmouzer, G. [J. Lind] Le partage de la Pologne en sept dialogues
en forme de drame (London, no date).
See M. Belissa, Les Lumi`eres, le premier partage de la Pologne, et le syst`eme politique de lEurope,
Annales historiques de la Revolution francaise, 356 (2009), 5792. Bentham later met Rayneval on
behalf of Lord Lansdowne in Paris in 1785. See Correspondence (CW), vol. III, 340.
Correspondence (CW), vol. II, 1819.
39
42
43
Through Lind, Bentham offered to accompany Johnstone to America in the place of Adam Ferguson, but did not receive a reply: see Correspondence (CW), vol. II, 94, 104. Bentham later intervened
to have Linds pension secured to his sisters: see The Correspondence of Jeremy Bentham, vol. VI,
January 1798 to December 1801, J.R. Dinwiddy, ed., (CW) (Oxford, 1984), 370.
See especially H.L.A. Hart, The United States of America, D. Armitage, Globalizing Jeremy
Bentham and P. Rudan, Securing the Future. Jeremy Benthams A Fragment on Government and
the American Revolution, History of Political Thought, 34/3 (2013), 476506.
This accounts for a number of inconsistencies: in Letters, Lind had appealed to natural law as the
only standard in international relations but in his later works, in which Bentham had a hand, he
ridiculed the appeal of the American colonists to natural rights. The terms of natural and inherent
rights, when applied to men in [the state of civil society], are to my understanding perfectly
unintelligible. J. Lind, Remarks on the Principal Acts of the Thirteenth Parliament of Great Britain
(London, 1775), 191.
40
chapter 3
So by 1776 Bentham had already published a number of works anonymously: his translations from Voltaire and Marmontel, the pamphlets coauthored with Lind, and most importantly A Fragment on Government,
which opened with an impassioned paean to the enlightened age and
through which he hoped at once to make a reputation as a promising writer
on legal reform and to publicise the rudiments of his system.[D]iscovery
and improvement in the natural world would be followed by reformation in
the moral, if the consequences of this fundamental axiom, it is the greatest
happiness of the greatest number that is the measure of right and wrong were
truly developed.1
A Fragment on Government has deservedly received considerable attention as the first statement in print of the utilitarian doctrine. The wideranging critique of William Blackstones Commentaries on the Laws of
England that it contains has served to root Bentham firmly within the
common law tradition,2 but this focus on constitutional debates with
Blackstone, the leading English legal writer of the day, was certainly not
contradictory with Benthams European outlook in the 1770s.
In 1776 Bentham envisaged sending A Fragment to some French
contemporaries: Voltaire, DAlembert and Morellet.3 Only two years later,
once he had published his first signed work, A View of the Hard-Labour
Bill, did he in fact send printed volumes to France: to DAlembert and
Morellet, as previously planned, and to Chastellux.4 Voltaires death that
same year put an end to Benthams hopes of being introduced to him.
1
2
3
4
41
42
These letters some of which were sent while others remained drafts
filed in Benthams papers allow us to understand the terms in which
he intended to present his thought to his French contemporaries. They
highlight the common references they shared and cast light on Benthams
early ambitions to become part of a Republic of Letters whose citizens
strove to bring their nations closer to shared enlightened ideals.
Helvetius was certainly the most important of all influences over Benthams
formative years. In the late 1810s, Bentham recalled his admiration for the
French philosopher and stressed how eager he had been to visit him in
person:
When I was about 22 or 23 or 24, being then already at the Bar, so struck
was I by the principle of Utility, as developed and supplied in an imperfect
manner, and in some small degree by Helvetius in his book De lEsprit,
5
6
Defining utilitarianism
43
11
The Correspondence of Jeremy Bentham, vol. IX, January 1817 to June 1820, ed. S. Conway, (CW)
(Oxford, 1989), 311.
C.A. Helvetius, De lEsprit: or Essays on the Mind and its Several Faculties (London, 1759), (hereafter
On Mind).
ibid., 20, 24.
For recent assessments of Helvetiuss system in English, see D. Wootton, Helvetius: From Radical
Enlightenment to Revolution, Political Theory, 28 (2000), 30736; M. Sonenscher, Before the
Deluge. Public debt, inequality and the intellectual origins of the French Revolution (Princeton, 2007),
22681.
C.A. Helvetius, A Treatise on Man, his intellectual faculties and his education, 2 vols. (London,
1777).
44
shape individual and collective interests, are all found therein.12 As well as
adopting all these ideas, Benthams early writings are dotted with allusions
to Helvetiuss works which could not have escaped his contemporaries.13
In Helvetius, Bentham found more than the principle of utility and
the idea that philosophers had a role to play in the reform of legislation to
bring about public happiness. Helvetius also occupied a specific place in the
Republic of Letters: an immensely wealthy tax farmer, the direct beneficiary
of what would come to be identified as the most blatant abuses of the Ancien
Regime, he was also one of the most radical advocates of legislative and
political reform. His materialist theses had been openly condemned on the
publication of De lEsprit, but the commotion had been political too.14 As
Sophie Audidi`ere has pointed out, Benthams admiration for Helvetius and
his constant references to him must be taken as a declaration of intention
in the context of debates raging in the Republic of Letters: Bentham had a
very clear understanding of the organisation of knowledge in France and of
the persons who shared his own reformist view of the relationship between
power and philosophy and were likely to uphold him.15
Helvetius had died in December 1771, making it impossible for his
English admirer to meet him in person though he entreated his brother
to [a]sk whether this benefactor of mankind is buried somewhere in Paris;
if that is so, go there on a pilgrimage and kiss his tomb.16
In 1778, on the publication of A View of the Hard-Labour Bill, Bentham
attempted to make contact with one of Helvetiuss most famous friends,
the Chevalier de Chastellux. Bentham was well aware of their common
admiration for Helvetius and chose to address him as one disciple to
another.17 In his Essay on Public Happiness [De la Felicite Publique], Chastellux had built on Montesquieu and Helvetius to reiterate the claim that it
is very certain that legislation and morals may render men either more, or
12
13
14
15
16
17
See F. Rosen, Helvetius, the Scottish Enlightenment, and Benthams idea of utility, in Classical
Utilitarianism from Hume to Mill (London, 2003), 8296; E. Pacaud, Sur lune des sources de
lutilitarisme benthamien: la theorie de lutilite de Claude Adrien Helvetius, in M. Bozzo-Rey and
E. Dardenne, eds., Deux si`ecles dutilitarisme (Rennes, 2011), 4152.
See E. de Champs, Marcel, the dancing-master. A note on the closing lines of An Introduction to
the Principles of Morals and Legislation, Utilitas, 26/1 (2014), 1203.
D. Smith, Helvetius. A Study in Persecution (Oxford, 1965); S. Audidi`ere, J.-C. Bourdin, J.-M.
Lardic, F. Markovits and Y.-C. Zarka, eds., Materialistes francais du XVIIIe si`ecle. La Mettrie,
Helvetius, dHolbach (Paris, 2006), 103247.
S. Audidi`ere, La correspondance sans suite de Bentham et Chastellux, la th`ese de la felicite publique,
du revenu net au calcul felicitaire, in Bentham et la France, 22.
Correspondence (CW), vol. I, 261. Original in French.
Correspondence (CW), vol. II, 1201. Chastellux had written the anonymous Eloge de M. Helvetius
of 1774.
Defining utilitarianism
45
19
20
21
22
F.-J. de Chastellux, De la Felicite publique, ou Considerations sur le sort des hommes dans les differentes
epoques de lhistoire (Paris, 1989). Quoted in Audidi`ere, La correspondance sans suite de Bentham
et Chastellux, 30.
Correspondence (CW), vol. II, 116. Original in French.
ibid., 13941. Original in French. My emphasis.
Morellet did not acknowledge Benthams letter, though they were later to become personally
acquainted (see below, Part III, pp. 6768).
Correspondence (CW), vol. I, 367; see also vol. II, 117.
46
25
26
27
Defining utilitarianism
47
reminiscence was in part erroneous, for Bentham failed to find the relevant
passage in his copy of the Melanges, but the association of DAlembert with
fictions was anything but irrelevant.
In April 1776, the Englishman had drafted another long letter to the
academician, one that remained unfinished and unsent.28 The purpose of
that earlier draft was to engage in a philosophical conversation, and to
provide a very general sketch . . . of that which must constitute the matter
of my works.29 In fact, it is one of the most complete early statements of
how the analysis of action and the distinction between real and fictitious
entities relate to the reform of jurisprudence a connection that had
merely been sketched in a footnote to A Fragment on Government, and that
was to be fully worked out forty years later. On a more concrete level, it also
proves that Benthams vocabulary of real and fictitious entities, building
on a long scholastic tradition, was also clarified in imagined conversations
with Locke and DAlembert.30
In the draft letter, Bentham began by stating his ambition to work for the
reform of Jurisprudence and then set out to explain how his method was
based on a rigorous study of actions, so that the legislator could calculate
their effects and work out the force of motives as well as that of legal
penalties. Actions, the primary material used by the legislator in applying
sanctions, were to be understood as movement of matter. Bentham
summed up: Thus, after Descartes, I reduce everything to matter and
movement. Matter and movement are, in my opinion, all that exist. Quality,
properly speaking, does not exist.31 The distinction between existence and
non-existence was the main analytical division used by Bentham at several
key points in his analysis, but before settling for the distinction between
real and fictitious entities, he used several alternative distinctions. The
first was borrowed from Lockes method of definition, which resolved
the fundamental abstract words of politics and jurisprudence into an
assemblage of simple ideas.32 Locke had further divided complex ideas
28
29
30
31
Bentham wrote to Samuel on 17 April: It is possible I may send a copy of [the Fragment] or two
abroad 1 to dAlembert, and one perhaps to Morellet who you do not know. In this view I am
scribbling some French letters. The draft letter to DAlembert is at UC 169, ff. 5266.
UC 169, f. 57. Original in French.
On Benthams distinction between real and fictitious entities, see the bilingual edition J. Bentham,
De lontologie / Of Ontology, P. Schofield, J.-P. Clero and C. Laval, eds. (Paris, 1997). Opposing
real entities to fictitious ones has a long genesis in Western epistemological thought. See E. de
Champs, The Eighteenth-century Sources of Benthams Theory of Fictions, Journal of Bentham
Studies, 2 (1999). Benthams appropriation of scholastic terms is pointed out by James Murphy, The
Philosophy of Customary Law (Oxford, 2014), pp. 5989.
32 ibid., f. 52. Original in French.
UC 169, f. 54. Original in French.
48
into Modes, Substances and Relations33 but to Bentham this served only
to highlight new problems: if relations, such as quality were undoubtedly
imaginary entities (des etres imaginaires), could modes be said to exist
or not?34
Benthams choice of words in French and in English shows him to be
familiar with contemporary French discussions of Lockean epistemology.
He had read Condillac, whose Traite des sensations published in 1754 had
applied and extended Lockes empiricism and popularised it in France.35
DAlembert himself discussed the topic directly in the successive editions
of the Elements de Philosophie. In 1776, Bentham first called entities objets
before settling for etres, and distinguishing them into etres reels and etres
fictifs. This was precisely the phrase that DAlembert had used in the
Preliminary Discourse to the Encyclopedie in which the academician had
named real beings (etres reels) the immediate and direct objects of our
sensations. Moreover, he had singled out the knowledge of real beings as
the principal field open for scientific enquiry, one to which mathematical
knowledge was a necessary, if subordinate, tool:
These beings, which are immediately relative to our needs, are also those
which it is most important for us to study. Mathematical abstractions help
us in gaining this knowledge, but they are useful only insofar as we do not
limit ourselves to them.36
37
J. Locke, An Essay concerning Human Understanding (first published in 1689) (hereafter Essay), P.H.
Nidditch, ed. (Oxford, 1975), Bk. II, Ch. XII, 3, 164.
First, Bentham doubted their existence (UC 169, f. 55), then he called them real entities (UC 169,
f. 58).
Chrestomathia (CW), 261.
Preliminary Discourse to the Encyclopedia of Diderot and DAlembert, R. Schwab, trans. and ed.
(Chicago, 1995), 21. The connection between Benthams epistemological theory and his early work
on mathematics is mentioned by Schofield, Utility and Democracy, 79. Its complex links with
contemporary advances in infinitesimal calculus and probabilities are examined in J.-P. Cleros
preface to De lontologie / Of Ontology, 2165.
The map inserted in the Encyclopedie was drawn up by Diderot. Bentham took up the phrase
syst`eme figure to present his own logical tree, UC 169, f. 60.
Defining utilitarianism
49
39
50
Schwediauer had discovered the origin of amber and presented his findings to the Royal Society in 1783. He was also a practising physician and
translator who specialised in rendering British scientific works into German. In 1780, he enlisted Benthams help in translating Bergmans Essay
on the Usefulness of Chemistry from German into English (the original had
been published in Swedish).40 Soon Bentham was describing the Austrian
physician as a man sent from God. What recommended him principally
to Bentham was the extent of his personal connections in European scientific circles. These included high-placed foreign scientists in London: Jan
Ingen-Housz, Daniel Solander, both fellows of the Royal Society, and also
Italian botanist Felice Fontana, together with their British counterparts
Joseph Priestley and Sir Joseph Banks, the President of the Royal Society.
One introduction might lead to another: Ingen-Housz for instance was
intimate with Benjamin Franklin and Lord Shelburne. When he settled in
Edinburgh in 1784, Schwediauer continued to move in philosophical and
scientific circles, being a member of a club which accepted, in Benthams
words, nothing but Philosophers; Dr [Adam] Smith, [William] Cullen,
[Joseph] Black, Gowan.41
In 1778, Schwediauer had planned to move to St Petersburg and Bentham immediately saw the profit he could derive from this in making his
legislative work known there. Schwediauer encouraged Bentham to pursue
his work on legal reform, giving him information about recent political
developments on the Continent. More importantly, Schwediauers interest
in the sciences rested on a philosophical background akin to Benthams:
an admirer of Helvetius, he compiled in 1784 a Philosophical Dictionary
containing extracts from the writings of the most eminent philosophers
in Europe among whom Helvetius, Hume, Voltaire, Rousseau, Locke and
Priestley figured prominently.42 The work also contained the first signed
extracts from Benthams Fragment on Government and from the still unpublished Introduction to the Principles of Morals and Legislation. Chapters I to
V of the latter work were reproduced almost in full in the Philosophical Dictionary under articles such as Mankind Governed by Pain and Pleasure,
40
41
42
On this episode, and for examples of Schwediauers first draft amended by Bentham, see B. Linder
and W.A. Smeaton, Schwediauer, Bentham and Beddoes: Translators of Bergman and Scheele,
Annals of Science 24 (1968), 25973. In 1784, Bentham drafted a letter to the French translator of
Bergman, Guyton de Morveau. See UC 169, ff. 723. It seems to have remained unsent.
Correspondence (CW), vol. II, 184; vol. III, 294.
F.-X. Schwediauer, The Philosophical Dictionary; or, the Opinions of modern philosophers on metaphysical, moral and political subjects (Compiled from the writings of the most eminent philosophers in Europe)
(London, 1786). For details of the entries drawn from Benthams writings, see Correspondence (CW),
vol. III, 315n.
Defining utilitarianism
51
[A]mong other Free-thinkers, your name is most honourably mentioned. Correspondence (CW),
vol. III, 315.
F.-X. Schwediauer, Philosophical Dictionary, vol. I, Preface. See Atheism, vol. I, 508.
46 Correspondence (CW), vol. II, 117. Original in French.
IPML (CW), 47 and 31 respectively.
IPML (CW), 36, 202n.
52
Conclusion
In Benthams early printed works, in his private correspondence and in his
personal contacts, his hopes of being included in a cosmopolitan Enlightenment can be traced and his readings and aspirations sketched out. Voltaire,
DAlembert and Helvetius, to whom these chapters have given a central
place as formative figures in Benthams youth, had never limited themselves
to national politics and sources. Voltaire was known as one of the most
relentless proponents of Lockean philosophy on the continent. Helvetius
was well acquainted with Mandevilles and Humes writings as well as
with Lockes Essay. DAlembert closely followed the progress of arts and
sciences throughout Europe, as the locations of his correspondents make
clear.49 One should not, therefore, oppose French roots of utilitarianism
with British ones. Bentham continued to read Locke and Hume alongside French works: these must be seen as complementary, not opposing,
influences.
Bentham did not see any incompatibility between his various pursuits;
translations, polemical pamphlets and letters were all oriented towards a
common purpose. The goal may have been identical, but Bentham was
keenly aware of the different implications of the various types of writings:
polemical pamphlets and translations remained anonymous, whereas A
View of the Hard-Labour Bill, which came out in 1778 and was intended to
have a bearing on Parliamentary debates on the fate of convicts, was not
only signed but actively promoted among contemporary British reformers
and philanthropists.
48
49
Benthams claim that the publication had taken place without his privity cannot be substantiated.
See IPML (CW), 2; and compare Correspondence (CW), vol. III, 31415. This statement probably
had more to do with a justification for publishing the volume in full in 1789.
Inventaire analytique de la correspondance de DAlembert, 17411783, I. Passeron, A.-M. Chouillet
and J.D. Candaux, eds. (Paris, 2009).
Defining utilitarianism
53
54
Price and Joseph Priestley. Although Bentham did not receive money or
posts from Shelburne, this relationship was extremely significant for his
career. Bentham progressively abandoned pamphlets and translations to
devote himself to the reform of legislation.50
50
On Bentham and Shelburne, see E. de Champs, Jeremy Bentham at Bowood, in N. Aston and
C. Campbell-Orr, eds., An Enlightenment Statesman in Whig Britain. Lord Shelburne in Context,
17371805 (Woodbridge, 2011), 23347.
part ii
Roughly at the same time, the Frenchman Jacques Pierre Brissot de Warville
looked back on the decision that was to shape his literary career:
I abandoned the exercise of the legal profession to devote myself entirely to
important research on all social circumstances, on the abuses of different
legislations; I mostly fixed my eyes upon criminal laws.2
55
56
1782. They met regularly during that period and continued to correspond
over the following decade.3
In the early 1780s, Benthams work on British legal institutions was
encouraged by Lord Shelburne, who was to become prime minister in
17823. Shelburne had admired A Fragment on Government and was one
of the first to read Benthams plan for a reform of the penal law. Directed
at first towards the critique and consolidation of English law, Benthams
early plans took on a more cosmopolitan dimension around 1783. Driven
by the wish to present his plans for legal improvement to Catherine II
of Russia, he started writing in French, drafting over five hundred folios
destined to make up a Projet dun corps de loix complet. As these chapters
show, if the change from English to French was driven at first by practical
considerations (French was one of the languages read by the Empress), it
also had a direct impact both on the nature of his reforming project and on
its contents. Unravelling the complex history of Projet allows us to place
Benthams early ambitions in the context of the movement in favour of
legal reforms that blossomed on the continent in the late Enlightenment.
3
For the early history of their acquaintance, see J.H. Burns, Bentham, Brissot et la science du
bonheur, 319.
chapter 4
But to reach the second, the reforming philosopher should pay close attention to the established customs of the people and devise the most imperceptible methods and tools for reform. In other words, Helvetius drew
attention to the tension between a programme of gradual reform and
1
57
58
5
6
C.L. de Secondat, baron de Montesquieu, The Spirit of the Laws (Cambridge, 1989). These are the
headings Montesquieu develops in Part 3 of his work, 231333.
See John Renwicks introduction to uvres de 1762 (III): Traite sur la tolerance a` loccasion de
la mort de Jean Calas, J. Renwick, ed., uvres Compl`etes de Voltaire, vol. LVI/c (Oxford, 2000),
ixxviii.
C. Beccaria, On Crimes and Punishments and Other Writings (Cambridge, 1995), 7.
I set the date of my conversion to philosophy as five years ago, and I owe it to the reading of
the Persian Letters [by Montesquieu]. The second book which wrought a revolution in me was M.
Helvetius. Beccaria to Morellet, 3 January 1766, in On Crimes and Punishments, 122.
ibid., ch. 47, 113.
59
This call was heard by some European monarchs. Frederick II of Prussia had
embarked on a wide-ranging reform of the law in the 1740s. His advisor,
Cocceji, published several volumes of a new Frederician Code but the reform
was abandoned for forty years; only in 1794 were effective legal changes
implemented in Prussia. On her accession to the throne in 1762, Catherine
II of Russia picked up the legislative ambitions of her predecessor Peter the
Great and summoned a commission in charge of reforming and codifying
the imperial laws. In 1767, she wrote an Instruction containing principles
that should guide legislators.8 Heavily borrowed from Montesquieu and
Beccaria, the principles contained in the Instruction soon came to embody
the reforming objectives of the time and bore witness to the ambitions of
enlightened legislators throughout Europe.
The issue of legal reform is emblematic of the complex relationship between philosophers and monarchs. As the former soon realised,
sovereigns were far from being exclusively guided by humanitarian ideals,
for a reform of penal law could also be instrumental in consolidating central
autocratic power. The international reputation arising from the close relationships of some absolute monarchs with philosophers could also serve
that purpose. Voltaires break with Frederick in the 1750s and Diderots
with Catherine a few years later reminded the reading public of Europe
of these tensions.9 In that context, DAlembert advised Beccaria against
accepting the Empresss invitation to Russia in 1767. The changing relationship between the philosophers and monarchs were widely publicised
and led to a growing disillusionment with autocratic sovereigns within the
Republic of Letters, as the contradiction implied by the phrase enlightened
despot became obvious to many.
In the mid 1770s, however, criminal law reform received a new impetus when it was taken up by a number of learned societies who invited
contributions on that theme. In 1777, the conomical Society of Bern,
Switzerland, offered a prize for the best essay on the following topic:
The composition of a complete and finished plan of legislation, relative to
criminal cases, under these three articles or points of view: 1st, a consideration of the nature of crimes, and of the proportion to be observed in
the punishment of them. 2ndly, the nature and strength of proofs and presumptions. 3rdly, the manner of obtaining evidence by a criminal process, so
8
9
Catherine II, Instruction de Sa Majeste Imperiale Catherine II, pour la commission chargee de dresser le
projet dun nouveau code de lois (Petersburg, 1769).
On Diderots increasing defiance towards Catherine, see G. Dulac, Le discours politique de
Petersbourg, Recherches sur Diderot et sur lEncyclopedie, 1 (1986), 3258.
60
The translation is taken from The Monthly Review, or Literary Journal, 58 (JanuaryJune 1778), 546.
J.P. Brissot, Biblioth`eque du legislateur, vol. III. 322.
D. Roche, La diffusion des Lumi`eres. Un exemple: lacademie de Chalons-sur-Marne, Annales.
Economies, Societes, Civilisations, 19 (1964), 887922.
N. Rothlin, La Societe economique de Berne et le debat sur la legislation criminelle. Le concours
institue en 1777 par un inconnu (Voltaire), in M. Porret, Beccaria et la culture juridique des Lumi`eres
(Gen`eve, 1997), 16973.
61
years after his death with the adoption of the Allgemeines Landrecht fur die
Preussischen Staaten in 1794.14
These reforms and codes were much debated throughout Europe.
Rousseau commented on the Corsican Code; Condorcet, a rising figure in
the Academie des sciences and a friend of DAlembert, on the Leopoldina;
and Mirabeau on the Prussian project, while Beccaria sat on the Lombard
committee in charge of transposing the Austrian code.15 Like his contemporaries, Bentham followed these reforms closely. His correspondence shows
him trying to procure books on the Russian Code in 1778, on the Code
Therese in 1779 and on the Corsican code in 1783.16
The momentum which seemed to be gathering also helps to account for
Brissots memory of the early 1780s as a favourable moment for the reform
of jurisprudence: [e]verything seemed to herald a coming revolution in the
legislation of the whole of Europe, he wrote, [p]hilosophers pointed out
abuses and princes seemed to look for ways of destroying them.17 However,
as he was to discover, this career was also fraught with dangers in autocratic
France it is from London that he compiled the ten-volume Biblioth`eque
du Legislateur. The aim of the compilation was to collect significant essays
on legal reform in order to publicise them and increase their readership.
Though he felt increasingly isolated during this period, Brissot recognised
the comfort he received from his English counterparts. Among them, he
singled out M. Bentham, a writer fully devoted to the study of criminal
legislation.18
15
16
17
18
For a thorough presentation of each of these codes, see Y. Cartuyvels, Do`u vient le code penal? Une
approche genealogique des premiers codes penaux au XVIIIe si`ecle (Montreal, Ottawa and Brussels,
1996).
M. da Passano, La giustizia penale e la riforma leopoldina in alcuni inediti di Condorcet; Un
autografo inedito di Honore-Gabriel Riqueti Comte de Mirabeau (1788), in G. Tarello, ed.,
Materiali per una storia della cultura giuridica, 9 vols. (Bologna, 19756), vol. V, 351451, and
vol. VI, 91186.
These codes are mentioned in Correspondence (CW), vol. II, 183, 272; and vol. III, 154.
Memoires de Brissot, vol. II. 18. For further details on the relationship between Bentham and Brissot
during this period, see J.H. Burns, Bentham, Brissot et la science du bonheur and Bentham,
Brissot and the Challenge of Revolution.
J.P. Brissot, Discours de lediteur servant de conclusion, Biblioth`eque du legislateur, vol. X, 349.
For his later recollections of his friendship with Bentham, see Memoires de Brissot, vol. II, 2534.
62
legal system stood somewhat apart from contemporary European jurisprudence, which was structured around the legacy of Roman law. Moreover,
Montesquieu had praised British penal legislation for being in line with the
principles of political liberty. Torture had already been abolished, which
was according to Beccaria a strong testimony to the goodness of [English]
laws.19 In 1767, the English translator of Beccarias Essay acknowledged
that the national laws were generally admired, while stressing that there
was room for improvement in the day-to-day administration of justice:
It may however be objected, that a treatise of this kind is useless in England,
where from the excellence of our laws and government, no examples of
cruelty or oppression are to be found. But it must also be allowed that
much is still wanting to perfect our system of legislation: the confinement
of debtors, the filth and horror of our prisons, the cruelty of jailors and
the extortion of the petty officers of justice, to all which may be added the
melancholy reflection, that the number of criminals put to death in England
is much greater than in any other part of Europe, are considerations which
will sufficiently answer every objection.20
In the 1780s, reformers such as John Howard and Samuel Romilly also
close to Lord Shelburne focused on the most visible displays of punitive force: the state of prisons and the enforcement of the death penalty.21
These English views were strongly influenced by Beccarias book. In that
respect, English criminal law reform was part and parcel of wider continental movements. The more abstract field of jurisprudence, however,
remained dominated by the towering figure of William Blackstone. In his
Commentaries on the Laws of England, he had cursorily taken stock of Beccarias objections to the cruelty of punishments and the systematic reliance
on the death penalty, but as far as the structure of the law was concerned,
the Commentaries were a vibrant vindication of the precedent-based system
of the English common law.22
19
20
21
22
63
64
explains why, in 1778 and 1779, his plans to determine the best Laws
under every head of Jurisprudence came to focus almost exclusively on
penal aspects. During this period, Bentham referred to his projected book
as a Theory of Punishment or a Criminal Code.28 While making his name
known in Britain, working on this topic would also allow him to approach
Catherine II of Russia. Three years earlier, the municipality of Moscow had
sent public invitations . . . to Jurists to study a list of questions . . . relative
to the subject of criminal Jurisprudence. Sending the Prospectus of his
work on that topic to one of his acquaintances in Russia, Bentham hoped
that it would find its way to the imperial authorities.29 As part of this
strategy, Bentham planned to write a letter to Pilati di Tassullo, an Italian
writer on jurisprudence with whom Schwediauer was acquainted and who
had connections in Russia, pressing him to enter the competition and
offering to put some of his own notes at his disposal. Bentham explained
that this was another way of making his name known in imperial circles:
[Pilati] will understand that I am pretty well advanced, and as I imagine will
be taught to look upon me as rather a formidable concurrent, what I rather
expect is that he will not embrace the proposal. If so he will think it an act
of great magnanimity, at least I hope so, and will trumpet it about as such
to his young cubs and in Russia amongst other places.30
29 ibid., 98115.
Correspondence (CW), vol. II, 100, 174.
ibid., 182. On Pilati, see F. Venturi, The End of the Old Regime in Europe, vol. II, 545; and J. Israel,
Democratic Enlightenment, 3506.
Correspondence (CW), vol. II, 251.
65
66
found in the letter to Frederick, refers to the printed sheets that were to
become An Introduction to the Principles of Morals and Legislation.
In August 1780, Benthams plan for the complete work was as follows:
after a long introduction, Book I, a detailed Division of Offences, would
take up approximately 600 pages. Book II would be devoted to Penal
Procedure. Lastly, an Appendix would deal with the formal issues associated with codification: Composition Promulgation Interpretation
and Improvement, in other words the Form . . . of the System of Laws,
to be contrasted with its matter, as contained in the body of the work.
A final part, or perhaps another appendix, would be devoted to preventive institutions, the background work on private and public institutions
that would diminish the number of offences actually committed (which
Bentham later referred to as indirect legislation).35
Because the introduction remained incomplete, Bentham went back to
more abstract theoretical work on the meaning of the word law itself,
spurred on by the difficulty he had run into in the closing chapter, namely
that of determining the respective limits of morals and jurisprudence.36
Meanwhile, the prospects of a positive reception in Russia came to dominate his hopes. As he wrote in one of his draft letters to Catherine II,
Bern has only been a diversion by which I have sought to approach your
Majesty. I thought that if I had won the prize, the clamour of fame would
perhaps have helped to further my wishes.37 However, progress was slow,
and early in 1782 Samuel Bentham, having received only irregular news
from his brother, bemoaned the fact that he had not yet been sent anything substantial to present to the Empress.38 Meanwhile, Jeremys view
of the completed work remained similar to the general outline of 1780,
revolving principally around criminal law.39
In the summer of 1782, Bentham hinted for the first time at a probable
change of plans, as he wrote to Samuel that his projet dun corps de loix
was nearly completed. Benthams use of French in his letters to Samuel
was not unusual, as we have seen, but it is worth noting that the title now
encompassed law in all its branches and was not limited to criminal law.
In 1783, Samuel insisted that if the work be published in French it will
be certain of success, which seems to imply that his brother had already
35
36
37
39
Correspondence (CW), vol. II, 489n, containing a partial transcript of BL Add MS 33, 556, vol. XX,
13942.
Editorial Introduction, in Of the Limits of the Penal Branch of Jurisprudence, P. Schofield, ed. (CW)
(Oxford, 2010), (hereafter Limits), xvxxxvi.
38 Correspondence (CW), vol. III, 120.
UC 169, f. 32. Original in French.
See the long letter written to Lord Ashburton in June 1782, Correspondence (CW), vol. III, 12334.
67
41
42
43
Correspondence (CW), vol. III, 179. Though undated, UC 98, f. 189 contains a reference to A
Corsican Code I have not yet read, but of which I am expecting a copy any moment. A letter
to Shelburne, dated 5 February 1783, contains a request for the Code lately promulgated by the
French king for the government of Corsica: Correspondence (CW), vol. III, 1545.
ibid., 275.
Bentham to Potemkin, to be published in The Correspondence of Jeremy Bentham, vol. XIV.
Original in French. No written evidence survives, but Bentham might have discussed his
project with the abbe Morellet through Lord Lansdowne in November or December 1784:
see A. Morellet, Memoires de lAbbe Morellet sur le dix-huiti`eme si`ecle et sur la Revolution
(Paris, 1988), 266. In 1789, Bentham wrote to Morellet again (see Part I, Chapter 3,
p. 105) and alluded to the elder brother of a pamphlet he had sent in 1789, which might confirm that Morellet had indeed seen a version of Projet a few years earlier. See The Correspondence
of Jeremy Bentham, vol. IV, October 1788 to December 1793, A.T. Milne, ed., (CW) (London,
1981), 30.
The only dates which appear on the Projet manuscripts are 1785 and 1786, and such occurrences are
rare. An analysis of the paper is inconclusive, since Bentham probably took reams of paper with
him when he left England, and he also had some sent from London: see Correspondence (CW),
vol. III, 472.
68
These arguments seem to have had some weight with Bentham, who
seized upon the opportunity to address his fellow countrymen in the
Panopticon Letters.45 He clearly explained how several enterprises competed
for his attention: Code was going on at a very pretty jog-trot, till Sams
inspection-house came upon the carpet, not to mention his new model
of ship-building, and his other whimsies.46 George Wilson and James
Trail, his London friends, were not to be satisfied with this: It gives us
great pleasure, they wrote back, to learn that you have so many things
in forwardness; and we think the subjects are such as will do you credit,
but we are not quite reconciled to the French language, or to the form of
letters.47
In 1788, two and a half years after setting out for Russia, Bentham
still hoped, it seems, to make some use of the French manuscript. He
had three copies of it taken during his last year in Krichev. Crossing
Poland on the way home, he toyed with the idea of sending it to the king
Stanislaw Augustus Poniatowski, describing the draft as poorly written
and full of crossings out. The complete work, he surmised, would make
up two octavo volumes, which conformed to the original plans of 1785.48
Back in London in February 1788, Wilson and Trail informed him that
William Paley had published a rival utilitarian theory in his Principles of
Moral and Political Philosophy and strongly advised him to make his own
principles known in English. As a result, Bentham sent the publishers the
earlier introduction to the penal code that was published, with a few
additions, as An Introduction to the Principles of Morals and Legislation in
1789. However, the philosopher remained committed to the French Projet,
writing to his brother: As soon as I have finished such parts of Code as
44
45
46
ibid., 4901.
J. Bentham, Panopticon, or The Inspection-House: containing the idea of a new principle of construction
applicable to any sort of establishment, in which persons of any description are to be kept under inspection:
and in particular to penitentiary-houses, prisons, houses of industry and schools; with a letter written in
the year 1787, 3 vols. (Dublin and London, 1791). In 1787, he also wrote and published A Defence of
Usury, shewing the impolicy of the present legal restraints on the terms of pecuniary bargains: in a series
of letters to a friend, to which is added, a Letter to Adam Smith on the discouragements opposed by the
above restraints to the progress of inventive industry (London, 1787).
47 ibid., 532.
48 UC 169, f. 44. Original in French.
Correspondence (CW), vol. III, 518.
69
chapter 5
Benthams Projet should not be taken as an isolated work produced for the
sole purpose of bringing his skills to the attention of Catherine II, but as
an attempt to bring together years of legal studies within the context of
the legislative reform movements of the time. As such, it casts light on his
early writings on jurisprudence as a whole. Written in French, and with
a cosmopolitan readership in mind, it bears the marks of the European
context in which his thought developed and makes it possible to place the
rise of utilitarianism in its continental historical dimension. The text bears
witness to Benthams vast knowledge of Roman law and of contemporary
reform schemes. It is also closely related to the only theoretical work he
published during that period in English, An Introduction to the Principles
of Morals and Legislation, and to the manuscript draft Of the Limits of the
Penal Branch of Jurisprudence. Further, it throws light on his later attempts
in the 1810s to convince his contemporaries of the necessity of codification,
when he wrote to a number of rulers, from America to Russia (again),
offering his services to codify local bodies of law.1
70
71
the foundations for a fully codified body of laws. As we saw, although its
full proposed title did not use the word code, in his correspondence, his
shorthand title for the work was simply Code.
Since the first half of the eighteenth century, the idea of codification had
gradually taken root in Europe. But the word code, as Bentham argued,
had so far been misused by legislators. Under that name they had presented
disorganised digests that still incorporated a large amount of unwritten law,
or customary rules, or contained only one part of the laws of the country
(often the criminal). For that reason, Bentham used the words Pandicaion
or Pannomion, derived from the Greek (all + laws) to express the whole in
contradistinction to the part.4 He reserved the noun code to describe the
individual elements which together made up the Pannomion, for instance
the Civil Code, Penal Code or International Code. The theoretical work
conducted in 1782 on the definition of a complete law and on the relations
between the several parts of a complete code reinforced his belief that such
a code was necessary. He had expressed the hope that his work would serve
to frame for each nation a compleat code new in point of substance as well
as form, . . . with such alterations as shall be deemed requisite to adapt it
to the particular manners, sentiments and exterior circumstances of each
respective state.5
72
serve the interests of despots as opposed to those of their subjects.7 Nevertheless, calls for a general codification became more numerous after 1750.
In his Philosophical Dictionary, under the entry Laws, Voltaire mocked
the diversity of customs. In 1762, he explicitly called for the codification of
civil and criminal law, on the grounds that fixed and written laws afforded
protection against the arbitrary power of a despotic monarch.8 On this
point he agreed with Rousseau, who also advocated codification, not only
for the security it afforded but also as a way of unifying a country around
common patriotic rules. In Considerations on the Government of Poland,
Rousseau had written:
You must have three codes. One political, another civil, the third criminal.
All as clear, short and precise as possible. These codes will be taught not
only in the universities, but in all secondary schools, and there is no need
of another body of law. . . . As regards Roman and customary law, all this,
if it exists at all, has to be eliminated from the schools and the law courts.
They should recognise no other authority than the Laws of the State; these
should be uniform throughout the provinces in order to dry up one source
of litigation, and the questions not settled by the laws will have to be settled
by the good sense and the integrity of the judges.9
9
10
73
by Sweden, Bavaria and Sardinia from the 1730s to the 1750s did not break
with existing customs. Writing in the early 1780s, Bentham was therefore
right in criticizing the failure of recent attempts at codification. The main
target of his criticism was the Frederician code drafted by Cocceji for Prussia in the 1750s. Though the title of the book, Code Frederic, seemed to
announce a fully written body of laws, Bentham argued that in the text, the
code itself was elusive, being referred to in several places but never stated
in terminis. The code thus remained an ideal and its letter was nowhere to
be found.11 He also examined the Danish code of 1683, the Swedish code
of 1734, the Sardinian code of 1770 and the Theresian code drafted for
Austria and concluded, rightly, that all were little more than fragmentary
digests of existing laws.12 As we have seen, only in the late 1780s were new
codes in line with the principles of enlightened reformers drafted.
Like Beccaria, and for similar utilitarian reasons, Bentham insisted that
only a written code could provide a clear and precise guide for action. He
was also wary of the adjudicating power of judges and strove to constrain it
within precise bounds. Bentham insisted on the protection afforded to the
people by a good and clearly written system of legislation: the work I give
the strong [i.e. the drafters of codes] serves to ensure the peace and quiet of
the weak.13 In Limits he had also presented the advantages of codification
as a way of check[ing] the licence of interpretation by judges: if his rules
for the organisation and wording of the code were followed, such a degree
of comprehension and steadiness might one day perhaps be given to the
views of the legislator as to render the allowance of liberal or discretionary
interpretation on the part of the judge no longer necessary.14 In Projet,
he developed this idea by proposing to insert alongside the laws proper a
number of articles containing commentaries on the reasons for the laws:
the legislator himself would therefore guide the judges interpretations.15
Nobody could apply a law, Bentham remarked, without interpreting it to
some extent. He singled out corrective interpretation to be avoided at all
costs: only the legislator could amend the text of the law.16
Benthams strong interest in the wording of the law cannot be separated
from his rejection of judicial interpretation. This explains why he chose to
11
13
15
16
74
devote the first part of Projet to the form of a complete code of laws and
the second to the matter of civil, penal and constitutional law.
Beccaria had done little more than insist in general terms on the clarity of
the laws. Likewise, Catherine II had devoted a section of her Instruction to
the importance of an unambiguous wording of the laws, for which Brissot,
for instance, commended her:
The chapter on the style of laws is very philosophical. It is strange that
among enlightened nations laws should still be drafted in a barbarous style
and in unintelligible words. The legislator resembles the sphinx, he seems
to be proposing riddles to have the right to slaughter.18
UC 33, f. 92. Original in French. On Benthams critical admiration of Montesquieu, see J.-P. Clero,
Bentham et Montesquieu, Revue francaise dhistoire des idees politiques, 35 (2012), 17182.
J.P. Brissot, Biblioth`eque du Legislateur, vol. III. 175. The relevant section is in Instruction, Ch. XIX,
1325.
Such grace and order can connexion give; Such beauties common subjects may receive! Translation
in verse by Philip Francis, The Epistles and Art of Poetry of Horace, 3rd edn., 4 vols. (London, 1749),
vol. IV. 2845.
75
This consists of collecting knowledge into the smallest area possible and
of placing the philosopher at a vantage point, so to speak, high above
this vast labyrinth, whence he can perceive the principal sciences and the
arts simultaneously. From there he can see at a glance the objects of their
speculations and the operations which can be made on these objects; he can
discern the general branches of human knowledge, the points that separate
or unite them: and some times he can even glimpse the secrets that relate
them to one another. It is a kind of world map which is to show the principal
countries, their position and their mutual dependence, the road that leads
directly from the one to the other. The road is often cut by a thousand
obstacles, which are known in each country only to the inhabitants or to
travellers, and which cannot be represented except in individual, highly
detailed maps. These individual maps will be the different articles of the
Encyclopedie and the Tree or Systematic Chart will be its world map.20
DAlemberts synoptic table was specifically designed for use by philosophers (distinguished, in this instance, from the general public to whom
the articles of the Encyclopedie were also addressed). It allowed them to
embrace the entire field of knowledge and to work out the links between
its several branches. The opening pages of Benthams Projet are a direct
application of DAlemberts approach to the field of legislation. He uses
similar metaphors, that of a forest through which roads must be cut, and
that of a map onto which the entire field of law should be projected.21
The method proposed by DAlembert for organizing knowledge was not,
however, entirely adequate for Benthams purpose, for it failed to follow
a rigorous plan in the organisation and hierarchy of its branches. In that
respect, it was far from complete.22 Benthams chosen model, therefore,
was that which had been pioneered in the natural sciences by Linnaeus
and in chemistry by Bergman.23 For Bentham, completeness had to follow
from logical arrangement: this was to be achieved through the method of
bipartition or bifurcation. He presented it thus:
When a number of objects, composing a logical whole, are to be considered together, all of these possessing with respect to one another a certain
congruency or agreement denoted by a certain name, there is but one way
of giving a perfect knowledge of their nature; and that is, by distributing
20
21
22
23
76
As applied to the division of offences, the method had already run into
difficulties.25 These problems were compounded in Projet, for it proved
impossible to arrange existing categories (such as civil/penal/constitutional,
internal/international and temporal/spiritual) into a logical tree built on
the principle of bifurcation. Bentham thus proposed the categories he had
devised in Limits: opposing punitory to compensative laws, substantive to
adjective ones, direct to indirect ones, general to particular ones, permanent
to temporary ones, and constant to occasional ones.26 Eventually, however, he
fell back on the accepted division between civil and penal law, presenting
these categories not as independent kinds of laws, but as distinct projections
of similar matter onto different levels or, through a different metaphor, as
different languages expressing similar ideas:
Civil laws, penal laws, here are the two great branches issuing from the
throne of jurisprudence. They are intimately related. They penetrate each
other continuously: if you do not embrace them both, you embrace neither
one nor the other. . . . By envisaging the same objects from two different
points of views, we have created two languages. Obligation, right, service is
the language of civil law: injunction, prohibition, offence, culprit, criminal
is the language of penal law. Understanding how they relate to each other
means being able to translate the one into the other.27
26
27
77
ibid., f. 109: Short be the precept / With which ease is gaind / By docile minds, and faithfully
retaind, Epistles and Art of Poetry of Horace, vol. IV. 253.
UC 100, f. 66. Original in French. For Benthams earlier interest in the logic of the will, see
Chapter 1, pp. 2425.
UC 100, f. 66; UC 98, ff. 18095 and 100, f. 6378. Originals in French. These rules correspond to
those set down in English in the 1810s: see Nomography, Bowring, vol. III, 23083.
For Benthams critical examination of contemporary codes, see UC 100, ff. 69, 65 and 98, f. 189.
78
chapter 6
79
80
Utility serves to draw the line between the two fields, by excluding from
the field of penal law conduct for which punishment is groundless, inefficacious, unprofitable or needless.7 Though Montesquieu was very far
from adopting the criterion of utility exclusively, he believed, as Bentham
did, that the number of persons affected by a given conduct could serve to
4
6
81
All that concerns mores and all that concerns the rules of modesty can scarcely be included in a
code of laws. It is easy to regulate by law what one owes others, it is difficult to include in them all
that one owes oneself. C.L. de Montesquieu, Spirit of the Laws, Bk. 7, Ch. 10, 106.
UC 100, f. 43. Original in French.
82
11
13
15
J.P. Brissot, Biblioth`eque du legislateur, vol. I, 277. Beyond rhetorical arguments, it has convincingly
been argued that Beccarias utilitarianism was stronger than his belief in natural law; see P. Audegean,
La philosophie de Beccaria. Savoir punir, savoir ecrire, savoir produire (Paris, 2010), 125; and G.
Francioni, Beccaria filosofo utilitarista, Cesare Beccaria tra Milano e lEuropa (Milan, Rome, Bari,
1990), 6987.) On the contrary, Brissots belief in natural rights eclipsed his utilitarianism.
12 ibid., f. 44. See also UC 100, f. 38. Original in French.
UC 100, f. 43. Original in French.
14 UC 98, ff. 207, 208.
Helvetius, On Mind, 81.
UC 33, f. 93; 170, f. 189. Compare Codification proposal, written in 1822 in Bowring, vol. IV,
53594.
83
implemented. France, Prussia and Russia were absolute monarchies. Likewise, the reforms implemented in smaller European states had been conducted by autocratic, if enlightened, monarchs. In that context, most
reformers had to apply to sovereigns as the main agents of change, but
the details of the proposed reforms and the steps envisaged as necessary to
carry them into practice did vary greatly.
Brissot, as a republican disciple of Rousseau, became more radical in
the early 1780s, as he was forced into exile from Paris to London, but in
works published at the time, he continued to appeal to sovereigns and to
praise their achievements. This implied a criticism of the French monarchy,
which had proved itself unable to match the modernizing pace set by its
enlightened neighbours, but the truly subversive features of his radicalism
lay elsewhere, in the analysis he proposed of the legal system. Likewise, in
order to understand the implications of Benthams agenda for legal reform,
one needs to go beyond the calls to enlightened monarchs and question the
ways in which he, like his fellow reformers, addressed the practical issues of
reform. In so doing, one must look first at the order in which the branches
of the laws should be reformed, and second, at the role given to the people
as agents of change.
In expressing his preference for the rule of law over that of virtue,
Montesquieu had distanced himself from the republican model. In the
second half of the eighteenth century, however, the rising fortunes of
republicanism had a direct impact on legal writing. This is revealed by
the way in which republican writers understood the relationship between
morals, manners and legislation.16 Rousseau, for instance, in reflecting on
the government of Poland, argued that when subjects became citizens, and
when their manners had been perfected by political responsibilities, fewer
laws would be needed. In pleading for a restricted number of laws, then,
Rousseau insisted on the primacy of moral, over that of legal, reform.
Rousseau and his republican followers thus reversed the order of priority
set by Montesquieu: there could be no legal reform without a preliminary
overhaul of corrupt political and civil institutions. As Brissot explained in
1780, crimes were especially numerous in France because of the depraved
morals of the corrupted rulers, who perverted the political system which,
in turn, corrupted the manners of the people.17 Likewise, in the essay he
16
17
For the place of the vocabulary of manners in the republican paradigm, see J.G.A. Pocock, Virtue,
Commerce and History, Essays on Political Thought and History, Chiefly in the Eighteenth Century
(Cambridge, 1985).
J.P. Brissot, Biblioth`eque du Legislateur, vol. VI, 1516.
84
Marats Plan de legislation en mati`ere criminelle was published first by Brissot in the Biblioth`eque du
Legislateur, vol. V, 147. It was reprinted in Paris in 1790.
20 UC 33, f. 117; Limits (CW), 198218.
J.P. Brissot, Biblioth`eque du Legislateur, vol. VI, 25.
85
21
22
24
For a discussion of the four ends of civil law (subsistence, abundance, equality and security) in
Projet, see UC 29, ff. 1113; 99, ff. 345; for the conflict between equality and security, 99, ff. 963.
On this important question, see P.J. Kelly, Utilitarianism and Distributive Justice: Jeremy Bentham
and the Civil Law (Oxford, 1990); F. Rosen, Jeremy Bentham and Representative Democracy. A Study
of the Constitutional Code (Oxford, 1983); G.J. Postema, Bentham and the Common Law Tradition;
M. Quinn, A failure to reconcile the irreconciliable? Security, subsistence and equality in Benthams
writings on the civil code and on the poor law, History of Political Thought, 29/2 (2008), 32043.
23 ibid., f. 53. Original in French.
UC 99, ff. 835.
UC 99, ff. 938. Benthams hostility to slavery, as an institution, is discussed by F. Rosen, Jeremy
Bentham on Slavery and the Slave Trade, in B. Schultz and G. Varouxakis, eds., Utilitarianism
and Empire (Lanham, MD, 2005), 3356. The Projet writings confirm that reading, but the extent
of Benthams caution must be contrasted with some of his contemporaries more explicit calls for
abolition. Benthams abolitionism, it must be noted, became stronger over time.
86
26
27
28
Place and Time, in J. Bentham, Selected Writings, 152219. On this work, see S. Engelmann and
J. Pitts, Benthams Place and Time in The Tocqueville Review / La Revue Tocqueville, 32/1 (2011),
4266.
Place and Time, 156n.
The list continues: 3. In all matters of indifference, let the political sanction remain neuter: and let
the authority of the moral sanction take its course. 4. The easiest innovation to introduce is that
which is effected merely by refusing to a coercive custom the sanction of the law, especially where
the coercion imposed upon one individual is not attended with any profit to another. Place and
Time, 1734.
Fragment (CW), 484.
87
revolutions led to civil wars, which were the greatest of all possible evils.
The conclusion was unambiguous: [n]o government can be so bad that a
friend to mankind should be justified in advising revolt in order to substitute to it any other form of government.29 This argument also applied
retrospectively to the American Revolution. Bentham argued that for each
American, the cost of the revolt had been far higher than that of the taxes
imposed by British rule.30 The only solution one could hope for was to persuade autocratic despots to set rules to limit their own power. He believed
that recent developments afforded sufficient ground for optimism in that
respect:
See how Catherine II has abdicated despotism, see how joyfully Leopold has
planted democracy in the shadows of his laws, see how close Louis XVI has
come to following this magnanimous example.31
In the 1780s, Bentham was optimistic that such examples could spread
to the most autocratic of European countries, and he addressed them
directly. After 1789, in changing political circumstances, he turned to the
representatives of the people.
30 ibid., f. 200.
UC 170, f. 199. Original in French.
ibid., f. 201. Bentham refers in footnotes to Catherines Instruction and Neckers Compte-rendu au
Roi (Paris, 1781). Original in French.
UC 99, f. 156.
88
Bentham was, however, far from endorsing the praise usually bestowed on
the British constitution. In A Fragment on Government he had ridiculed
Blackstones panegyric, which rested on the idea that the perfection of
the British constitution derived from a harmonious synthesis of the three
classical forms of government, or from the happy balance of the three main
powers: the executive, the legislative and the judiciary.34 If Fragment criticised Blackstones method, it did not disagree with the idea that the British
constitution was far superior to all existing political arrangements, but
its superiority, Bentham argued, did not reside in its institutional arrangement, rather in a set of factors that set it apart from despotic governments:
the distribution of power among the office-holders, the changes of position
between rulers and ruled, the responsibility of office-holders and the liberty
of the press and public association.35
Projet further developed Benthams constitutional thought along similar
lines. Though his discussion of constitutional law was less developed than
those of the civil and the penal branches, Bentham argued that it was indeed
one of the three branches necessary in a complete code.36 Three chapters
are devoted to elementary political powers, with a view to establishing
a new nomenclature that would render the political institutions existing
throughout the world comparable, whereas present titles failed to make
political differences visible (the King of Polands power, for instance, had
little in common with the King of Britains). This was Benthams answer
to the tripartite division of power that he had ridiculed Blackstone for
adopting.
Moreover, Projet reasserted the idea, present in Limits, that there could be
effective restraints on the power of the sovereign, even though the highest
legislative authority could not be submitted to positive laws. Privileges,
such as freedom of conscience, of worship and of assembly, could be
granted to subjects or citizens or to provinces as a whole. How could
those privileges be enforced if the sovereign could not be legally punished?
Benthams answer was to invoke public opinion as the ultimate security
against abuses on the part of the sovereign. The sanction of public opinion
was the direct, the natural consequence of the sovereigns misconduct:
33
UC 27, f. 4.
34
35
ibid., 485.
36
UC 33, f. 126.
89
Natural punishments are far from being inefficacious: immediate punishments, dishonour on the part of the sovereign, discontent on the part
of the subjects; subsidiary punishment, in the last resort, revolt and lost
sovereignty.37
39
90
the difference between the state of things under the governments in states
called monarchical and those called despotic lie, if not in the knowledge of
the people?40
Conclusion
Many features of Benthams early plans for the reform of jurisprudence
were elaborated in a dialogue with his contemporaries on the Continent.
Montesquieu and Helvetius had set the terms of the debate earlier in the
century. They included a rationale for codification, calls for reform (be it
top-down or bottom-up) and the order of priorities in reforming strategies.
In addressing them, Bentham showed that he was eager to engage in
continental discussions, not only in those taking place within an insular
common law context. More importantly, his close reading of contemporary
sources accounts for the specific features of his critical position, poised
between two very different legal systems. His two-pronged critique of the
common law and of Roman law allowed him to propose original solutions
to the issue of legal reform.
Clearly addressed to rulers in a position to make legal and political changes, Benthams Projet contained a comprehensive programme for
reform. However, it never entirely managed to solve the dilemma Helvetius
had highlighted: how could one reconcile a clear vision of the best system of
laws with the cautious gradualism necessary to avoid upsetting the existing
social order? Benthams solution, an appeal to a free and enlightened public
opinion, and to freedom of the press as the condition for political and legal
change, also referred back to Helvetius.41 However, unlike him and most
of his republican followers, Bentham consistently refused to consider a
thorough redistribution of property under new civil law rules. In civil and
constitutional law, he followed a specific route that broke with the radical
republican ideals of many of his contemporaries. This was clear in the
way he rejected the discourse of rights as a foundation for reform, refused
to consider popular participation in the institutions of government and
highlighted the dangers of revolution. In penal matters, however, Bentham
reasserted the calls uttered by the followers of Montesquieu and Beccaria
throughout Europe. He went further than them in calling for a complete
overhaul of existing legal systems, by targeting their historical and symbolic
40
41
91
On public opinion, see R. Chartier, The Cultural Origins of the French Revolution (Durham,
NC, 1991), 2037; and K.M. Baker, Public Opinion as Political Invention, Inventing the French
Revolution (Cambridge, 1990), 16799.
part iii
Soon after Bentham returned from Russia, Projet seemed all but forgotten as
the philosopher gave way to his friends insistence and had An Introduction
to the Principles of Morals and Legislation printed in London in the spring of
1789.2 One of his first visits was to Lansdowne House. Since the preceding
summer, events unfolding in France had been arousing enthusiasm among
many of Lansdownes friends and dependents. Like them, Bentham came
to see the opportunities opened by recent changes across the Channel
and started to draft a number of essays for the use of the nation, again
writing in French. Because Projet had remained unpublished, his expertise
in matters of legislation was still largely unknown. Through Lansdowne,
the early years of the Revolution allowed him to gain a definite, if restricted,
audience on the European continent.
This chapter studies that period in the light of Benthams earlier
interest in continental politics and through his personal connections in
Francophile networks. In 1789, and for the first time, he was in a position
that gave him hopes of being heard, as Lord Lansdowne gave him access
to a plentiful library and to precious personal contacts. Over the years
Lansdowne had built a strong network of allies and proteges across the
Channel. Through him, Bentham met Etienne Dumont, Samuel Romilly
and Benjamin Vaughan, who all spent time in Paris from 1788 to 1792.
What is more, his former friend Brissot was now rising as one of the leading
publicists of the Revolution. Alongside his unpublished manuscripts,
Bentham wrote a number of essays that were then sent to Paris and
translated by Dumont and others: Political Tactics and Draught of a Plan
for the Judicial Establishment in France. Earlier works such as Panopticon
and Defence of Usury were also sent across the Channel and translated.
1
2
93
94
J.H. Burns, Bentham and the French Revolution, Transactions of the Royal Historical Society, 5/16
(1966), 95114.
P. Schofield, Utility and Democracy, 108. Mary Mack had claimed that The French Revolution was
decisive in making Bentham a democrat, Jeremy Bentham. An Odyssee of Ideas (New York, NY,
1962), 432. For a summary of the debate on Benthams conversion to democracy, see Utility and
Democracy, 7983.
95
chapter 7
97
98
5
6
Quoted by Bentham in Correspondence (CW ), vol. III, 621. In May 1788, the minister Lomenie de
Brienne proposed to create a cour pleni`ere, or plenary court, in charge of registering royal edicts. The
rejection of this proposal, among others, led to the summoning of the Estates General.
R. Whatmore, Shelburne and Perpetual Peace: Small States, Commerce, and International Relations
within the Bowood Circle, in N. Aston and C. Campbell-Orr, eds., An Enlightenment Statesman in
Whig Britain, 24973; and Against War and Empire, 1829.
On Etienne Dumonts part in the Revolution, see the detailed account in C. Blamires, The French
Revolution and the Creation of Benthamism, 13280; and E. Dumont, Souvenirs sur Mirabeau et sur
les deux premi`eres assemblees legislatives, J. Benetruy, ed. (Paris, 1950).
Bowring, vol. X, 187. For Lansdownes attitude towards popular politics in Britain, see John Norris,
Shelburne and Reform (London, 1963).
Evening Post, 24 December 1791.
99
See for instance, prints by Gillray (see online catalogues of the British Museum and National Portrait
Gallery): Malagrida, driving post (March 1792), Light expelling darkness (1795), or those by James
Sayers: Chauvelin (May 1794), John Bulls sacrifice to Janus (also figuring Priestley, 1794) or The
Republican Attack (November 1795, with numerous other politicians also close to radical circles).
There were heavy hints about his support of revolutionaries: Mons. Dumont, who has apartments
at Shelburne House, is another of our patriotic French Reformers. He has been of late very busy
between London and Paris. We do not learn whether the marquis of Lansdowne is studying under
his tuition. Evening Mail, London, 16 May 1792.
8 R. Whatmore, Etienne Dumont, the British Constitution and the French Revolution.
9 M.T. Davis, Vaughan, Benjamin (17511835), Oxford Dictionary of National Biography.
10 [S. Romilly], Thoughts on the Probable Influence of the French Revolution on Great-Britain (London,
1790). His enthusiasm for the early years of the Revolution is documented in S. Romilly, Memoirs
of the Life of Sir Samuel Romilly, written by himself [ . . . ] edited by his sons, 3 vols. (London, 1840),
vol. I, 102455.
11 [E. Dumont, S. Romilly and J. Scarlett], H.F. Groenvelt, Letters containing an account of the late
revolution in France, and observations on the Constitution, laws, manners, and institutions of the
English; written during the authors residence as Paris, Versailles and London, in the years 1789 and 1790
(London, 1792). The genesis of this work is carefully explained in D. Jarrett, The Bowood Circle,
17801793. Its ideas and its influence (Oxford, unpublished D. Phil, 1955). See also C. Blamires,
The French Revolution, 21019.
12 The Correspondence of Jeremy Bentham, vol. IV, 17881793, A.T. Milne, ed. (CW ) (London,
1981,) 102. Lansdowne House Dinner Books confirm the dates and reveal the list of participants.
100
soon became clear that Lansdownes guests were far from unanimous in
their support for the Revolution. After one of the meetings, Bentham
confessed that it was composed partly of the friends to liberty, partly of
enemies, and partly of people who care nothing about the matter.13 In
fact, Lansdownes dinner books reveal that his guests and acquaintances
were drawn from a large array of British and foreign diplomats, scientists
and politicians, many of whom watched the collapse of the Ancien Regime
with dismay. His dinners were social, not political, events.
The suspension of the French kings powers in September 1792 and
the progress of popular violence in the late summer and autumn of that
year marked a turning point for most of Lansdownes correspondents,
despite the variety of their political views. On 4 September, the duc de
La Rochefoucauld dEnville was assassinated. A former correspondent of
Franklin, a patron of the sciences and a strong supporter of the American
cause, the duke had been among the first aristocrats to rally the deputies of
the Third Estate in June 1789. His death at the hands of anti-aristocratic
French patriots spread desolation both at Lansdowne House and at
Benthams (who was to have dinner with Dumont and the dukes first
cousin, the duc de La Rochefoucauld-Liancourt, when the news arrived).
From the beginning of September, a large number of emigres fled to
London. Some were received at Lansdowne House and even at Queens
Square Place.14
The death of Mirabeau in 1791 and the onset of the Terror had farreaching consequences for the attitudes of Benthams friends towards the
Revolution in France. Dumont distanced himself from French politics.
From Geneva, he heard the news of the September massacres and departed
for London soon afterwards.15 Romilly, in whose eyes the outbursts of
violence in 1789 and 1790 had been legitimate, was thoroughly shaken by
the unfolding events. He wrote to Dumont on 10 September 1792:
I observe that in your letter, you say nothing about France, and I wish I
could do so too, and forget the affairs of that wretched country altogether;
but that is impossible. I can scarcely think of any thing else. How could
we ever be so deceived in the character of the French nation as to think
them capable of liberty. Wretches, who after all their professions and boasts
about liberty, and patriotism, and courage, and dying, after taking oath after
13
14
15
On 4 November, the club comprised Vaughan, Bentham, Jan Ingen-Housz (FRS), and Samuel
Romilly. (Quoted with permission of the Trustees of the Bowood Collection.)
Correspondence (CW ), vol. IV, 103.
ibid., 391. Bentham had moved into his fathers house on Queens Square Place in 1792.
C. Blamires, The French Revolution, 20010, 21921.
101
oath, at the very moment when their country is invaded and an enemy is
marching through it unresisted employ whole days in murdering women
and priests and prisoners! One might as well think of establishing a republic
of tigers in some forest in Africa, as of maintaining free government among
them.16
17
18
19
Memoirs of the Life of Sir Samuel Romilly, vol. II, 4. In Thoughts on the Probable Influence, he had
written: Who would regret that the long parliament made a stand against the tyrannical measures
of Charles I, because that very parliament murdered Lord Strafford and Archbishop Laud by bills
of attainder? The only difference between those murders and the murders of Foulon and Berthier
[during the storming of the Bastille] were, that the former were committed by men distinguished
by their talents, their knowledge, their opulence, and their titles; and the latter by the poor, the
ignorant, and the vulgar, 4.
On 26 August 1792, the National Assembly granted French citizenship to several foreigners :
Priestley, Paine, Bentham, Wilberforce, Clarkson, Mackintosh, David Williams, Gorani, Cloots,
Campe, Pauw, Pestalozzi, Washington, Hamilton, Madison, Klopstock, Kosciusco and Schiller.
Truth versus Ashhurst, Bowring, vol. V, 231, 236. Lord Ashhurst, Puisne Justice of the Kings Bench,
had given a charge against seditious meetings and corresponding societies.
20 ibid., 83.
Correspondence (CW ), vol. IV, 41415.
102
23
24
25
103
28
29
30
chapter 8
A cosmopolitan event?
At the very beginning of the Revolution, Bentham began to write for a
French audience using French again as he had done in Projet. In the spring
of 1789, Bentham added the following manuscript note to his proposal for
perpetual and universal peace:
The civilised world is a republic. The assembly room is the earth: printing
houses are the lobbies. The demagogues are the Philosophers. A Philosopher
is whoever has the courage to be one, and the right to speak out is no longer
a privilege.1
The ease with which information and people travelled between France
and Britain in the early years of the Revolution could only reinforce such
views. A strong network of correspondents provided the London press with
regular accounts of French politics. French papers, though expensive, were
available in the British capital. Benthams correspondence shows him eager
to procure news from the international press (the Gazette de Leyde and the
Courier de Londres). He first turned to George Wilson and then to Benjamin
Vaughan, with whom he apparently took out a subscription to Le Moniteur
Universel in 17901791.2 Benthams correspondence also testifies to the
various ways of procuring French pamphlets and books, through contacts
with booksellers, for instance, or private loans or exchanges. For him,
Lansdownes library was a recurring source. Letters from France, be they
from Dumont, Romilly or Vaughan, were circulated among Lansdownes
friends, providing these privileged readers with eyewitness accounts of
political events before they were printed in the papers.
Benthams hopes that the free circulation of information between the
two countries heralded the advent of a truly cosmopolitan public sphere
was expressed in one of his earliest pamphlets for France. In Presse libre,
1
2
UC 25, f. 34. Original in French. I thank M. Quinn for bringing this quote to my attention.
Correspondence (CW), vol. IV, 7981, 348.
104
105
5
7
Presse libre, Rights, Representation, and Reform (CW), 5461. Original in French.
Nonsense Upon Stilts, Rights, Representation, and Reform (CW), 3614. For an account of the
ambiguities of revolutionary debates on freedom of expression, see C. Walton, Policing Public
Opinion in the French Revolution. The Culture of Calumny and the Problem of Free Speech (Oxford,
2009), 7393.
6 Correspondence (CW), vol. IV, 501n.
Rights, Representation, and Reform (CW), 5461, 65.
Quoted in S. Wahnich, Limpossible citoyen. Letranger dans le discours de la Revolution francaise (Paris,
1997), 16. See also M. Rapport, Nationality and Citizenship in Revolutionary France: the Treatment
of Foreigners 17891799 (Oxford, 2010).
106
107
all written either as advice addressed to influential personalities or as commentaries on official documents produced in the course of the Revolution.
Framed as the opinions of un Anglois on issues that occupied French public opinion, the pamphlets written in 1788 and 1789 are direct answers to
French debates as reported in the papers, such as the call for advice issued
by Louis XVI in the summer of 1789 on the summoning of the Estates
General, or the questions asked by Necker to the Assembly of Notables
in the autumn.12 Line-by-line commentaries of projects submitted by the
French institutions (the 1789 Constitution, the plan for the organisation
of the judiciary and, later, the Declaration of the Rights of Man and the
Citizen) also testify to his wish to be recognised as an expert providing
advice on the drafting of new legislation.
All these essays were written with the definite purpose of being read
and circulated in France though, in the course of events, only a small
number found their way across the Channel, however briefly, from 1790
to 1791. Two earlier essays also appeared in book form: A Defence of Usury
was published in two different translations in 1790, and Le panoptique,
a summary view of the Panopticon letters, compiled by Etienne Dumont,
was printed the following year by order of the National Assembly.13 The
continuity of Benthams position in the late 1780s is striking in these two
works originally drafted at the end of his stay in Russia. In both instances,
the French translations were faithful to the original and highlighted the
relevance of Benthams ideas to French debates.14 Meanwhile, a number of
extracts were translated, again by Dumont, and published in Mirabeaus
paper. They were drawn from two works drafted with French events in
mind but privately printed in London in English: Political Tactics and
Draught of a New Plan for the Organisation of the Judicial Establishment in
France. A large number of manuscripts also remained unpublished.
12
13
14
108
In form and content, these proposals were close to the earlier writings
of the 1780s, though for obvious political reasons Bentham refrained from
alluding to his time in Russia or to his hopes of serving Catherine II. The
importance of Projet as a seminal text for Benthams revolutionary writings
can be felt in the two works that circulated the most broadly in France:
Draught of a New Plan for the Organisation of the Judicial Establishment
and Panopticon. In both works, his field of expertise was clearly delineated
in the terms set by Beccaria: the reform of the law was to be based first on
fairer legal proceedings and secondly on a prompt and rational application
of punishment.
Benthams expertise had to do with the form of laws and with the design
of institutions. In Draught of a New Plan for the Organisation of the Judicial
Establishment in France, he used the reflection conducted in Projet as the
basis for his critique of the plan submitted to the National Assembly and
for his alternative proposals. Characteristically, he constantly reminded the
revolutionaries of the importance of form: [w]ords in themselves are of no
sort of consequence; but when they are made the foundation of practical
institutions, then surely their propriety becomes worth investigation.15 In
Draught of a New Plan, he pointed out loose or contradictory formulations, inconsistencies between articles, or unclear chains of authority or
responsibility. This is directly reminiscent of the work on the form of
the laws conducted in Limits and continued in Projet: the wording of
legislation and the exposition of reasons deserve specific attention from
legislators. Writing for the French Assembly, Bentham also took up examples he had examined earlier, such as the discussion of a law quoted by
Puffendorf, stating that whosoever draws blood in the streets shall be put to
death.16
Benthams proposals were designed to fulfil the intention of French
legislators, be they committees of the Assembly or the Assembly itself.17
They offered the revolutionaries advice which the philosopher believed was
important to further the goals they had set themselves this did not always
reflect his personal stance on the questions. In Draught of a New Plan for the
Organisation of the Judicial Establishment in France, Bentham followed the
original proposal in providing for the popular election of judges. He did
not refrain from pointing out the problems he thought would follow from
opening the election of magistrates to all citizens. However, embracing
the received principles of the revolutionaries, he pointed out how to best
15
16
ibid., 313.
17
ibid., 309.
109
effect it and advised against vesting in the king the power of appointing
judges designated by the people.18
As an Englishman, Bentham also used his specific knowledge of British
institutions to warn the revolutionaries against borrowing their principles directly. This was especially important in the case of the organisation of the judiciary, as a century of Enlightenment writing had praised
British rules of procedure. Provisions such as setting up juries or sending
judges on circuit were discussed in the Assembly. For the appointment of
judges, Bentham reminded his readers that on this point, neither the past
usages nor the present views of the two kingdoms afford any parallel.19
Though the English system undoubtedly possessed features that singled
it out among European practice, one should not be blind to its particular and very gross defects.20 These discussions were directly relevant
to French debates. When compiling extracts for the Courier de Provence,
Dumont selected passages that related to English courts, be it on juries or on
circuits.21
ibid., 3079; Correspondence (CW), vol. X, 69; and P. Schofield, Utility and Democracy (Oxford,
2006) 93.
20 ibid., 313.
Draught of a New Plan, Bowring, vol. IV, 307.
IIIe dissertation. Competence universelle de chaque tribunal Inconvenient des tribunaux
dexception Inconveniens des circuits anglois, Courier de Provence, 117 (1790), 4450.
Correspondence (CW), vol. IV, 92.
110
26
27
28
Dixi`eme Lettre du Comte de Mirabeau a` ses Commetans pendant la tenue de la premi`ere legislature,
712 June 1789, 89.
T. Tackett, Becoming a Revolutionary. The Deputies of the French National Assembly and the Emergence
of a Revolutionary Culture (17891790) (Princeton, NJ, 1996), 21418.
Then, if there were complaints, the assembly would arbitrate or the issue would be decided by
lot, the latter being regarded by M. Bentham as the fastest, without, in that case, being unfair at
all. Revision des travaux de la premi`ere legislature. Chronique du mois, in uvres de Condorcet,
vol. X, 373442, 376. The reference was noted in K.M. Baker, Condorcet: from natural philosophy to
social mathematics (Chicago, IL, 1975), 465n.
Projet de lorganisation du pouvoir judiciaire, Propose a` lAssemblee Nationale par le Comite de Constitution (Paris, 1789).
The copies were brought to France by Francois Barthelemy, a French diplomat. Bentham wrote a
detailed account of this event: see E. de Champs, Jeremy Bentham at Bowood, 2423.
Dissertation dans laquelle on etablit les principes suivans: La justice ne peut etre administree quau
nom du Roi &, dans chaque tribunal, un seul Juge., Courier de Provence, 2223 March 1790; Dans
chaque tribunal un seul juge, 2627 March 1790; Dans chaque tribunal un seul juge, suite,
3031 March 1790; IIIe dissertation. Competence universelle de chaque tribunal Inconvenient
des tribunaux dexception Inconveniens des circuits anglois, 29 April 1790; IVe dissertation. Des
bureaux de paix ou de conciliation, 1011 May 1790; Ve dissertation. Sur les Tribunaux dappel,
2122 May 1790. All the extracts were attributed to Bentham.
111
Despite having been put into the hands of a number of influential readers, Benthams proposals failed to influence the work of the Assembly:
debates on the judiciary stopped later in May and the decree reorganizing
it was passed on 16 August 1790. Brissot, Dumont and the duc de La
Rochefoucauld noted that Benthams contribution had arrived too late to
be considered seriously. They also alluded to the number of pamphlets
that had been published on the subject by Frenchmen. What Bentham
remembered, however, was that the plan had been deliberately obstructed
by Siey`es. A few years later, he recalled:
In Brissots as well as Mirabeaus Periodicals, flaming elogiums of some
extracts translated from my papers on the Judicial Establishment, which I
29
30
31
Organisation du pouvoir judiciaire. Vue sommaire des differences les plus remarquables entre le Projet
du Comite & le Projet Anglois, dont lauteur, Mr. Bentham, a fait hommage a` lAssemblee Nationale.
Son plan est accompagne de toutes les preuves, & dune critique detaillee de louvrage du Comite (Paris,
1790).
Life of Sir Samuel Romilly, vol. I, 397. Madeleine Gautier was the daughter of Etienne Delessert,
who had translated Lettres sur la liberte du taux de largent. Bentham hinted at the part Madeleine
Gautier and her husband Antoine had taken in the translation: see Correspondence (CW), vol. IV,
2634 and Chapter 4 below, pp. 142, 149.
Le patriote francais (4 May 1790), 2.
112
The first motion was adopted, the second adjourned. Therefore Benthams
Draught of a New Plan was forwarded to the Legislation Committee without any official vote of thanks. Garrans enthusiasm for Benthams proposals
led the philosopher to send him copies of most of his published works,
stressing that he should labour with redoubled energy if [he] could anticipate the chance of being useful by seconding the labours of so many
enlightened men.35
32
34
35
113
Benthams work regarding social and penal reform was also directly relevant to the business of French revolutionaries: in France, as in Britain,
pauperisation and crime were routinely addressed together, as the fate
of Benthams Panopticon plans testifies. Early on, the National Assembly
embarked on a revision of the penal code (a provisional version of which
was adopted in 1791), while in 1790 a Beggary Committee (Comite de
mendicite) was created in order to reorganise the distribution of poor relief.
The Committee was headed by the duc de La Rochefoucauld-Liancourt,
whose connection with Lansdowne has already been noted. In the summer
of 1790, Liancourt sent a commission to Britain to enquire about the provision of poor relief and on that occasion Benthams plan was mentioned to
the French envoys. With the support of Benjamin Vaughan, the philosopher began to circulate the English version of the Panopticon Letters for the
use of the Committee.36 A French translation by Dumont was ready by the
end of 1791 and Bentham could include it in the selection of works he sent
to Garran de Coulon. On Garrans proposal, Panoptique, memoire sur un
nouveau principe pour construire des maisons dinspection was presented to
the Assembly and referred, like Draught of a New Plan, to the Legislation
Committee. Together with poor relief, the management of prisons had
been placed under the authority of the Committee for Public Assistance
(Comite des secours publics), as the Beggary committee had been renamed
in 1790. The pamphlet was duly passed over to the Committee for Public
Assistance which had it printed by the end of the year.
Bentham closely read the reports of the committee headed by Liancourt
and adjusted his proposals accordingly. In 1791 or 1792, he proposed to
replace the notorious Bicetre prison, in which criminals and paupers were
alike kept under custody, with several wooden Panopticons: this temporary
mode of construction would allow the principle to be tried out before a
larger prison was built in stone. Bentham based his plans on the reports
drafted for the committee.37 This episode was probably related to the
appointment of the duc dEnville as president of the Directoire de Paris
from October 1791 to August 1792. Bentham later recalled that dEnville
had invited him to build a Panopticon in Paris:
36
37
114
If Bentham is to be trusted, the death of the duc dEnville marked the end
of all hopes to have a Panopticon built in Paris.
Likewise, Political Tactics and Draught of a New Plan for the Organisation of the Judicial Establishment in France failed to have any concrete
influence on French institutions. However, the circulation of the works
reveals the strength of Benthams connections in influential circles. They
are also worth noticing because they correspond to a definite position in
the history of the French Revolution: a reforming and anglophile line in
which representatives of the Ancien Regime figured prominently. After
1792, and especially after the end of all hopes to establish a constitutional
monarchy in France, these men lost the influence they had on the course
of politics. Most of Lansdownes and Benthams French correspondents
were victims of the radical turn in the summer of 1792. Some, like the duc
dEnville, lost their life, but many emigrated: the duc de Liancourt went
to England and then America, the Gautiers and the Delesserts to Geneva.
Dumont returned to London in March 1793, after spending six months in
Geneva.39 Having gained reforming credentials from 1789 to 1792, while
remaining untainted by association with the Terror, Benthams friends and
supporters in France were in a good position to return to politics under
the Directory.40
38
39
40
Correspondence (CW), vol. IX, 31213. Benthams assertions are difficult to document as most of the
archives of the Directoire de Paris were destroyed by fire in 1871.
Brissot and Garran are exceptions to this model. Unlike the rest of Benthams French correspondents,
however, they did not have any association with Lansdowne.
The consequences of this are developed in Part IV.
chapter 9
J.H. Burns, Bentham and the French Revolution; P. Schofield, Utility & Democracy, 913.
See Chapter 2 above, pp. 8287.
115
116
117
118
119
19
120
121
and liberal in the intention of it. Willing to hope the best, I flattered myself
it would slide quietly into neglect, and be even turned into a dead letter: that
either no attempt at all would be made to give it execution, to carry it into
practice, or that the first attempt of the kind that came to be made would
present such a view of the mischievous tendency of it, as should unite all
opinions of the sense of the necessity of laying it aside under the character
of a collection of moral precepts, designed but to guide men only, and not
to bind them.27
The legal status of the Declaration was a case in point. As a set of moral
precepts, it could do little harm, but when it was given an ambiguous legal
value, its consequences were dangerous. During the Terror, Bentham came
to see a direct link between the adoption of the Declaration of the Rights
of Man and the Citizen and the surge of popular and government violence. The disastrous social consequences of granting everyone seemingly
unbounded rights were developed in Nonsense upon Stilts, written in
1795 or 1796:
What has been the object, the perpetual and palpable object, of this Declaration of pretended Rights? To add as much force as possible to these passions
already but too strong: to burst the cords that hold them in: to say to the
selfish passions, there every where, is your prey: to the angry passions,
there, every where, is your enemy.28
UC 146, f. 223, quoted in Rights, Representation, and Reform, xlvii. This is echoed by a contemporary
statement in Writings on the Poor Laws, vol. II, (CW), 1867n.
Nonsense upon Stilts, Rights, Representation, and Reform (CW), 321. Benthams attack on natural
rights has been much commented upon. See P. Schofield, Jeremy Benthams Nonsense upon Stilts,
Utilitas, 15/1 (2003), 119.
122
The emblematic value the text held for successive generations of French
revolutionaries must not blind us to the fact that the decision to write
such a document was far from unanimous, even in the summer of 1789.29
In the registers of grievances submitted to the Estates General, calls to
respect the natural rights of all were commonplace. This reveals the wide
popular appeal of an idea promoted among others by Locke and
Rousseau, and embraced by republicans since the early 1770s. Brissots
growing reliance on the rhetoric of rights in the course of the 1780s provides
a good illustration of the way in which such discourse came to permeate
republican calls for reform. In the first half of 1789, a number of prominent
French personalities contributed to the debate on the Declaration: the duc
dOrleans, Siey`es, Lafayette, Condorcet and Brissot all drafted plans or
projects for a declaration of rights.30 Opposition to the Declaration within
the Assembly came from the royalists who, like Mounier, highlighted the
dangers of abstract principles and warned against their misinterpretation
by some disturbed imaginations misunderstanding our principles . . . [if]
some perverted minds, intent on misinterpreting them, were to lapse into
unruly behaviour and commit abuses voluntarily. For him, such abstract
principles had to be immediately checked and limited by a clear statement
of positive rights.31
Some leading figures of the Revolution, such as Mirabeau and Condorcet, were also wary of the rhetoric of rights, though they eventually accepted the political necessity of a Declaration. Mirabeau distrusted
abstract and universal statements.32 Dumont had similar reservations. In
August 1789, he wrote to Lansdowne that The Declaration of Rights
will be finished today. It is no masterpiece, but the foundations of any
good constitution are properly laid within it.33 In Reflexions sur ce qui a
ete fait et ce qui reste a` faire, Condorcet explained that the people could
29
30
31
32
33
For a detailed presentation, see S. Rials, La Declaration des droits de lhomme et du citoyen, 115319.
As Cyprian Blamires has noted, similar debates had been held in Geneva during the anti-aristocratic
revolution of 1782, as Mallet du Pan and Du Roveray refused to appeal to rights as too abstract and
metaphysical. C. Blamires, The French Revolution and the Creation of Benthamism, 162.
S. Rials, La Declaration, 11718.
Quoted in S. Rials, La Declaration, 122. Jean-Joseph Mounier (17581806) was the leader of the
constitutional monarchist party in the Constituent Assembly.
J. Jennings, The Declaration des droits de lhomme et du citoyen and Its Critics in France: Reaction
and Ideologie, The Historical Journal, 35 (1992), 83959, 845.
MS Dumont, box 78, (22 August 1789 to Lord Lansdowne). See also E. Dumont, Souvenirs sur
Mirabeau, 139. Dumont implied that Mirabeau had been convinced, through him, of the validity
of Benthams arguments. This appears unlikely; see C. Blount, Bentham, Dumont and Mirabeau.
A Historical Revision, University of Birmingham Historical Journal, 3 (1952), 5367; J.H. Burns,
Bentham and the French Revolution; C. Blamires, The French Revolution, 164.
123
misinterpret the extent of the rights granted to them and come to claim
them by force. Condorcets caution did not prevent him from fully supporting the principle of prefacing the Constitution with a Declaration of
Rights. It was necessary, he argued, both as a check to arbitrary power and
as a reminder of the political values of the Revolution. As Bentham would
later insist, Condorcet remarked that the Declaration had to be amendable.
Moreover, he questioned the legal status of a text that proclaimed rights
that were not, in the present state of things, guaranteed by any positive
laws and even went against them:
The Declaration of Rights may be criticised on two other counts. First,
because it includes rights that Citizens will never enjoy even after the
Decrees of this Assembly have been executed, such as proportional taxes,
and freedom of industry and commerce, which it states implicitly. Secondly, because it contains imprecisely worded articles, particularly such as
those in which phrases like public order, utility and common interest are
employed.34
[N. Condorcet], Reflexions sur ce qui a ete fait et sur ce qui reste a` faire; lues dans une societe dAmis
de la paix (Paris, 1789), 58.
See Benthams commentary on article 2 of the Declaration, Nonsense upon Stilts, Rights, Representation, and Reform (CW), 32837.
124
Though sceptical towards natural law arguments, Helvetius did not refrain
from appealing to rights, or even natural rights such as liberty and property.
After 1795 many of those who self-consciously presented themselves as
his disciples and still frequented his wifes salon in Auteuil also voiced
their doubts regarding the attempt to enshrine natural rights within a
Declaration: philosophers Garat and Volney, for example, made it clear
that politics had to be founded not on abstract ideas, but on sensations.
They took up arguments that had been voiced by counter-revolutionaries,
for instance that the Declaration of Rights had been used by Robespierre to
create anarchy, but unlike the counter-revolutionaries, they did not appeal
to the organic or ancient foundations of society. 37
After the fall of Robespierre, a new document was drafted to remedy
what were perceived to be the political and social dangers of the 1789
Declaration. In the Declaration of the Rights and Duties of the Man
and the Citizen, the Thermidorians defined rights as those of man in
society (and not as natural and imprescriptible rights) and listed the duties
that accompanied them. While acknowledging that the drafters of the
1795 Declaration had a sense of the absurdity of its predecessors and
the mischief that had been the fruit of it, Bentham set out to demonstrate
that in its form and wording it contained similar faults.38 In the Decade
Philosophique, the Ideologues were more optimistic, as they hoped that the
1795 Declaration would avoid the pitfalls the Declaration of 1789. They
were clear as to the latters shortcomings: it had been regularly violated, its
guarantees had been contradicted by the letter of the laws, and it contained
general maxims instead of concrete prescriptions. Moreover, during the
Terror, it had been used to legitimise popular violence rather than to protect
the rights of individuals.39
The most innovative of Benthams arguments and the most lasting of
his legacies was to consider appeals to rights entirely inconsistent with
36
37
38
39
C.A. Helvetius, De lhomme, G. Stenger, D. Smith, H. Brathwaite, J. Steffen, eds. (Paris, 2011),
194. [The 1777 English translation is faulty on several counts and has been corrected; see On Man,
vol. II, 12.]
S. Rials, La Declaration, 126.
Declaration of the Rights and Duties of the Man and the Citizen, A[nn]o 1795, in Rights,
Representation, and Reform (CW), 37688.
[J.-B. Say], Quelques idees sur le plan de Constitution de la Commission des Onze, La decade
philosophique, 44 (8 July 1795), 801. For the Ideologues shifting emphasis from utility to rights in
the 1790s, see C. Welch, Liberty and Utility (New York, NY, 1984), 11434; M. Staum, Minervas
Message, 1727; J. Jennings, The Declaration and its Critics, 8529.
125
Conclusion
In stating that the aim of good government was to promote general utility and that the test of general utility was general consent,43 Bentham
embraced most of the declarations of intent of the revolutionary period.
By reflecting and commenting on the proposals put forward in France, he
worked out why majority rule was a necessary condition of the greatest
happiness of the greatest number arguments that resurfaced when he
campaigned for parliamentary reform in Britain over two decades later.
Although the manuscripts in which these proposals were detailed did not
circulate in France, the ideas formed the basis of the long discussion on
the election of judges in the Draught of a New Plan for the Organisation
of the Judicial Establishment in France.44 The test of Benthams constitutional architecture resided in the ability of the people to work out and
express their interests in political terms. However, as outbursts of popular violence multiplied in France, he became increasingly pessimistic,
40
41
42
43
44
The debate on utility and rights was to be conducted around different lines in the post-revolutionary
years. See Part IV, 17583.
See Observations on the Declaration of Rights proposed by the Abbe Syey`es [sic.] (1789) and
Observations on the Declaration of Rights as proposed by Citizen Siey`es (1795), in Rights, Representation, and Reform, 1902 and 38997. See also Correspondence (CW), vol. V, 254.
Quoted by Bentham in Rights, Representation, and Reform (CW), 190, 390.
UC 170, f. 3, quoted in Rights, Representation, and Reform (CW), liv, note.
Draught of a New Plan, Bowring, vol. IV, 35484.
126
lamenting in 17921793 that as it is the bulk who govern, things will never
go on well till even the bulk are well informed.45 Benthams fear of the mob
increased throughout the Terror, leading him to highlight the responsibility
of democrats and republicans like Condorcet in the unleashing of popular
force and pointing out that they had logically been its first victims.46 While
he continued to advocate the spread of literacy in all classes of society
including paupers and prisoners by the mid 1790s he insisted that this
was not to be understood as a call for political emancipation: study to be
quiet and mind your own business was the political creed to be taught the
lower classes.47
Despite these later remarks, Benthams interest in French revolutionary politics should not be underestimated. For him and for many of his
contemporaries, the Revolution seemed to hold the promise of fulfilling
Enlightenment aspirations for legal and political reform. As a foreign expert
with personal connections in France, he believed he could play a role in the
transformation of politics in the country. Developments in French debates
had a direct impact on his political and legal thought, as they forced him to
develop the democratic implications of his utilitarian system and to adapt
them to the political demands of the revolutionaries. After 1793, hopes of
peaceful constitutional reform receded. In October 1793, Bentham wrote
to a correspondent: Apropos of Jacobinism, I begin to fear with you it has
taken too strong root in France to be exterminated. Could the extermination be effected, I should think no price we could pay for such a security
too dear.48
To many Britons, Jacobins had by then become shorthand for all types
of French revolutionaries. Benthams knowledge of ideas and parties in
France makes it clear that, like the majority of his friends and correspondents both at home and in France, he rejected the popular republicanism of
the Jacobin clubs, not the thorough reforming impulse of the early years of
the Revolution. Benthams position during the French Revolution is thus
best understood within Lansdownes circle, which determined his reading of French events. Though he occasionally reflected on the extension
of revolutionary principles to Britain,49 this was not his main objective.
This explains why he never took issue directly with either Burke or Paine,
writing, in one of the rare mentions of either name, that
45
46
47
48
49
127
The system of the democrats is absurd and dangerous: for its subjugates
the well-informed to the ill-informed classes of mankind. Mr Burkes system, though diametrically opposite, is absurd and mischievous for a similar
reason, it subjugates the well-informed to the ill-informed ages.50
This specific position regarding French politics also laid the foundations
for the renewal of French connections around 1800, once the Directory
and the Consulate had brought more moderate men including some of
Benthams earlier acquaintances back to power.
50
UC, 154, ff. 35, quoted in Rights, Representation, and Reform (CW), lix.
part iv
129
130
Esquisse or of Traites. Eventually, the Institute elected the German travelwriter Karsten Niebuhr and the philanthropist Count Rumford instead of
Bentham as foreign members. In legislation, contemporary French debates
over the Civil Code largely ignored his contribution, as became clear when
the code was finally adopted in 1804.
The reasons for this seemingly paradoxical state of affairs are to be found
in the complex political and ideological context of the Directory and the
Consulate. The fall of Robespierre on 9 Thermidor (27 July 1794) and
the failure of the Thermidorians to maintain political stability had led to
the adoption of the Constitution of Year III, the most conservative and
bourgeois of the revolutionary years. A bi-cameral system was established
to maintain a balance of powers. The executive was placed in the hands
of five Directors. Two councils, the Council of Five-Hundred and the
Council of Elders, shared the legislative. Property and literacy qualifications restricted the number of voters, while a Declaration of Duties was
attached to that of the Rights of Man. The Directory strove to avoid the
pitfalls of a royalist restoration on the one hand and of Jacobin democracy on the other. However, the avowed ambition to end the Revolution
while maintaining the Republic did not suffice to preserve political unity
among groups and factions which had opposed each other since the early
years of the Revolution. The Directory was therefore riddled with corruption and under constant threat from coups and insurrections, as personal,
political and philosophical interests conflicted. This chronic instability
explains why a majority of the Directors and a large part of the ruling
elite supported Napoleons Brumaire coup which inaugurated the period
of the Consulate at the end of 1799.5 In the context of increasingly authoritarian rule, legal, moral and philosophical arguments became laden with
political undertones. As Bonaparte rose to power, the Ideologues fell from
grace and their ideas were gradually rejected, just as Benthams book came
out.
To assess Benthams reception in France in 1802, one must explore the
different personal and literary networks that contributed to his minor
reputation in France under the Directory and the Consulate. These networks can be traced directly to the personal contacts which Etienne
Dumont and Samuel Romilly had built before and during the Revolution. Through them, Benthams ideas circulated in Anglophile Protestant
circles and among French philanthropists.
5
On the Directory, see D.M.G. Sutherland, France 17891815. Revolution and Counterrevolution
(London, 1985), 279335; A. Jainchill, Reimagining Politics after the Terror; J. Livesey, Making Democracy in the French Revolution.
chapter 1 0
1
2
3
4
131
132
from recent British publications in the French-speaking world.5 The editors focus on Britain implied a political and ideological bias. Geneva was
then occupied by the French revolutionary army and became a French
departement in August 1798. The Pictets were learned men and scientists
and came from one of the most prominent families in the aristocratic faction of the city, putting them in a precarious personal position under French
rule. This explains why political issues were almost entirely absent from
the Biblioth`eque britannique, which focused instead on practical improvements (especially in the fields of agriculture and philanthropy), scientific
innovation and morals. Scottish philosophers such as Thomas Reid and
Dugald Stewart figured prominently. In the preface to the first volume, the
editors summed up the core principles of the periodical:
Our guiding compass, the principle of u t i l i t y , does not . . . allow us to
rank all sciences equally. In our eyes, agriculture comes first among arts as
well as among sciences. We are also especially desirous of propagating the
principles of another science, the precious lessons of which are to be found
in the works of English and Scottish Moralists. No one has known better
than these Philosophers how to develop & cultivate this instinct for justice,
& to direct this burning and blind longing for happiness that is the secret
spring of the human heart.6
This opening statement shows that the meaning which the editors ascribed
to the notion of utility differed from Benthams. In the case of the Pictets,
as their admiration for Scottish moral philosophy testifies, the ubiquitous
mentions of utility did not imply that utilitarianism was adopted as a
doctrine. It legitimised their focus on useful arts and sciences and their
belief that social and scientific progress could be detached from political
considerations and international rivalries.
Their translation of the review of An Introduction to the Principles
of Morals and Legislation figured in the Morals section and contained
an extract from the long footnote in which Bentham attacked Scottish
moralists directly, ridiculing in transparent terms those who appealed to
moral sense, common sense or sympathy.7 Unsurprisingly, the editors
of the Biblioth`eque britannique failed to take Benthams moral philosophy
seriously. This probably explains why they concluded with the following
statement:
5
6
D. Bickerton, Marc-Auguste and Charles Pictet, the Biblioth`eque britannique 17961815 and the Dissemination of British Literature and Science on the Continent (Geneva, 1986).
7 IPML (CW), 269n.
Biblioth`eque britannique, serie Litterature, 1 (1796), 67.
Dumonts editorship
133
We must confess that the extract which we have just read might not interest
a large number of readers; rather, we selected it to illustrate a specific type of
English moralist, which slightly resembles that which the famous Konigsberg
professor, Kant, has made fashionable in Germany. We doubt that this kind
of writing will be taken up in France.8
On reading the extract, Dumont immediately asked Bentham for permission to send the Biblioth`eque britannique fragments from his manuscripts.9
Like many of Benthams friends, he felt that the philosophers lack of interest
in publishing his work was allowing others to take credit for his discoveries. Also, the publication of extracts would serve to sound the ground and
prepare the success of the great work the book he planned to draw from
the manuscripts.10 The editor, Pictet, responded enthusiastically and highlighted the topicality of Benthams writings. He congratulated Dumont in
these words:
The time seems propitious for drawing public attention to these subjects.
The need for order is so deeply felt everywhere, that the means of procuring and securing it are among the first interests of society. In France, but
also elsewhere, one is especially busy in rebuilding political structures, and
materials such as those which you are proposing to provide would not only
be timely, they would also be received attentively. Our paper would be
honoured to publish them.11
11
12
134
with liberty or with broad political ideals but stated concrete principles on
which the happiness of the people could be secured:
While the storm is still raging on the horizon, only the present perils can be
attended to, but the time is nigh, when foresight will be possible. . . . [T]oday
the main object is liberty, that is to say political power, as the word liberty
is so often wrongly limited to. One should not oppose such a general cast
of mind head-on. Men will not be fooled. They will not be made to believe
that liberty is an evil because it has produced great evils, but they have to be
told the truth. That happiness is the sole end, the sole object of intrinsic
value. That political liberty is but a relative good, one of the means to
reach that end. That a people with good laws, even deprived of all political
power, can attain a high degree of happiness, & on the contrary, that with
the greatest political powers and bad laws, the deepest misery shall reign.13
The substance of this passage was almost entirely taken up in the Preliminary discourse to Traites written five years later, though the tone was
softened and the direct attack on positive liberty as a political principle
was left out. For Dumont, the rejection of republican liberty went together
with a growing distrust for democracy, which was itself the direct product
of his experience of revolutionary rule after 1792.14 This position coloured
Dumonts presentation of the politics of Traites. However, his insistence
on concrete happiness against the lure of an abstract love of liberty was
by no means anomalous in post-Thermidorian France, and it was in line
with Benthams own position. In presenting utilitarianism as a pragmatic
answer to the political situation, he addressed the shared concerns of his
French-speaking contemporaries in Paris or Geneva.
Dumonts editorship
135
remarkable are Vaublanc, Dupont de Nemours, and Bergasse; but the most
singular publications that have appeared at Paris are the different memoirs of
the Girondists, and which seem by the French papers to be very numerous.15
Dumont returned to Paris in 1801 to accompany the son of Lord Lansdowne, Henry Petty, and supervise the printing of Traites. On that occasion, he rebuilt networks constructed in the years directly preceding the
Revolution.16 Alongside his contacts among Mirabeaus friends, he had
become acquainted with the Girondins, including Brissot, Garat and
Roederer.17 Though Brissot was now dead, by 1795, Roederer was a significant figure in Paris political life, providing Morellet, another of Lansdownes friends, with work on his Journal deconomie politique.18 Many of
these men, though not all, remained in power after the rise of Napoleon.
By 1801, Talleyrand had become Minister of Foreign Affairs and Gallois
a member of the Tribunat. La Rochefoucauld-Liancourt was respected in
philanthropic circles, while the ageing Morellet was still a figure in intellectual life. Although Dumont knew all these people, he had not been directly
in contact with them since he had left the Continent in 1793.
Once in Paris, Dumonts first visit was to Talleyrand. The minister, he
wrote in his diary, welcomed him in the name of their old friendship
and invited him frequently.19 Dumont also saw Morellet regularly and
enjoyed his lively conversation, as well as that of another former academician, Jean-Baptiste-Antoine Suard. Dumonts relations with Roederer were
more complex. Dumont remained wary of Roederers shifting political
allegiances and described him in English as a time-serving man.20 A
large part of Dumonts diaries recalls dinners and evenings hosted, as was
usual, by women. Many of his connections revolved around Genevan and
Protestant circles in which Germaine de Stael was a prominent figure before
her exile in 1803.21 At dinners, Dumont rubbed shoulders with the leaders
of the Consulate, including Bonaparte himself. At Mme Gautiers, Mme
Delesserts, Mme Suards and Mme de Condorcets, he met leading intellectuals, including members of the National Institute, discussing metaphysics
15
16
17
18
19
21
136
with Cabanis and Destutt de Tracy, but also literature, philanthropy and
politics.22
Writing to Bentham in late 1801 and early 1802, Dumont painted an
extremely alluring picture of intellectual life in France and explained that
Benthams reputation preceded him: the Bibli. Britann, he insisted, is
known here by all those who can be called readers.23 His private notebooks
show that he was more cautious about the reception Traites would meet
with in Paris: though Morellet and Gallois, his close friends, encouraged
him to publish, he believed the rhythm of Parisian political life to be too
hectic for anything more than a shallow reception.24 He had one main
supporter: Talleyrand himself, who had taken an immediate interest in
the work and supported Dumont through all stages of the publication,
especially in negotiating the conditions with Bossange, the publisher. One
is left to conjecture as to the reason for Talleyrands interest in Traites.
Personal friendship with Dumont certainly played a part as well as, perhaps,
distrust of Portalis and the other members of the commission appointed
by Bonaparte to draft the Civil Code. In times of growing censorship,
Talleyrands support opened the doors of a prestigious publishing house
with an established international network of correspondents.25
On the title page of the first volume, Dumont presented Bentham as
an English jurisconsult, as he had in the Biblioth`eque britannique. The
Preliminary discourse insisted both on the immediate topicality of Benthams works and on their theoretical value. The first volume opened with a
section entitled Principles of Legislation which presented the gist of Benthams utilitarianism as set out in An Introduction to the Principles of Morals
and Legislation, insisting on the instrumental dimension of that method.
Utility was first and foremost a tool to be employed in legal reform. This
presentation left out of the picture Benthams epistemological interrogations as to the nature and the use of principles, including that of utility.
Dumont had not forgotten the way in which the editors of Biblioth`eque
22
23
24
25
BGE, MS Dumont, 5b and 6. Dumont was personally acquainted with Mme de Condorcet before
1792. See BGE, 74, ff. 170181.
Correspondence (CW), vol. VI, 459.
We lunched with Gallois at the abbe Morellets. Highly interesting morning thanks to the youthful
old mans active and instructive conversation. . . . I communicated to them my plan of having my
work on Bentham printed. They both welcomed it with the warmth and interest one finds more
commonly in France than elsewhere, but which might not be lasting. BGE, MS Dumont, 5b,
f. 24.
BGE, MS Dumont, 5b, ff. 401; and C. Blamires, The French Revolution, 2447. On Bossange, see
F. Barbier, Bossange, in Dictionnaire Encyclopedique du Livre, P. Fouche, D. Pechoin, P. Schuwer,
H.J. Martin, eds. (Paris, 2002) vol. I, 370.
Dumonts editorship
137
Utility was not opposed to religion either, Dumont insisted. Pleasures were
evidence of Gods goodness, and [e]cclesiastical history affords indisputable
proof of the frightful evils which have, in fact, resulted from religious
maxims imperfectly understood, he wrote, then quoting William Paley as
a theological caution.28 On the whole, Dumonts version preferred ruleutilitarianism to act-utilitarianism and explicitly rejected Benthams (and
Helvetiuss) emphasis on physical pleasures. He also attempted to reconcile
it with religion. This further served to obscure what Bentham owed to
Voltaire and DAlembert.29
Discarding the immediate programmatic value of Benthams 1780s Projet
dun corps complet de legislation, Dumont separated it into three essays:
General View of a Complete Code of Laws, Principles of the Civil Code
and Principles of the Penal Code, principles replacing what Bentham had
seen as concrete prescriptions. Due to a miscalculation by the printer, the
finished text ran to a little over two volumes. To complete it, Dumont
26
28
29
27 ibid., 22.
Traites, 213.
In Principles of Moral and Political Philosophy, first published in 1785, Paley had used utilitarian
arguments in defence of non-conformist theological views. See P. Schofield, A Comparison of the
Moral Theories of William Paley and Jeremy Bentham, The Bentham Newsletter, 11 (1984), 422.
See Part I, Chapter 2, pp. 3035 and pp. 4549.
138
Bentham read the proofs and asked for a number of corrections, none of
them relating to the selection of the essays or to the general reordering of
the original material.31 The work was announced in Le Moniteur on June
15, its price set at 15 francs.32
30
31
The Correspondence of Jeremy Bentham, vol. VII, January 1802 to December 1808, ed. J.R. Dinwiddy,
(CW) (Oxford, 1988), 21.
32 ibid., 62.
For Benthams lists of errata, see Correspondence (CW), vol. VII, 2856.
chapter 1 1
A mixed reception
139
140
Civil law was examined first. In 1800, Bonaparte appointed a fourman committee composed of Portalis, Bigot de Preameneu, Tronchet and
Maleville. Together, and relying on earlier plans and debates, they drafted
the Code that was finally adopted in 1804, after having been rejected twice
in 1802.4 Bentham followed French legislative work closely. He requested
from Dumont a copy of the Conference des observations des Tribunaux
dAppel sur le projet de Code Civil, published in 1801, volumes containing a
series of essays produced by members of the various commissions.5
As soon as he arrived in Paris in November 1801, Dumont enquired
about the work of the commission. He went to a presentation of the
project by Portalis on 24 November, on which occasion he complained of
the sentimental tone adopted by the speaker and regretted that the Roman
law division between res and persona (things and people) was to provide
the basis for the new Code. At Talleyrands, he heard that the old school
of Legislation now occupied in the Civil Code was under the influence of
his old enemy Siey`es.6 When the project for the Civil Code was rejected by
the Tribunat on 2 January 1802, Dumont might have regained some hope
that Benthams teachings would be heard: as he was putting the finishing
touches to Traites before publication, he modified the order in which the
essays were to be organised, placing General View of a Complete Code of
Laws first, to throw at the head of these starlings of legislation, to show
them what ensemble means.7 Dumont believed that the greatest teaching
legislators could derive from Bentham was the idea that a code of laws
should be systematic and uniform. Thus he wrote to Romilly:
It is good that we should have in front of us a civil code and a penal code on
the simplest and largest plan, not to adopt them immediately, but to instil
uniformity into the changes and to move gradually closer to a systematic
legislation.8
The contents of Traites were essentially geared towards that purpose. The
opening Principles of Legislation contained a presentation of the principle of utility and its application in jurisprudence. General View of a
Complete Code of Laws extracted from the form section of Projet, was
framed as a work of universal jurisprudence, as containing a method for
the analysis of all existing legal systems. Principles of the Penal Code and
4
5
7
8
The preliminary work of the commission is recalled and analysed in J.-L. Halperin, Limpossible code
civil (Paris, 1992).
6 ibid., 458. For Siey`
Correspondence (CW), vol. VI, 440.
es, see Part III.
Correspondence (CW), vol. VII, 12.
Dumont to Romilly, September 12, 1799, BGE, MS Dumont, 17, f. 126v.
A mixed reception
141
Principle of the Civil Code, which made up the bulk of the text, were
based on extracts from the matter manuscripts. Dumont reorganised the
material thematically around the following issues: the aim of a civil code
(ensuring utility by securing its four subordinate ends: subsistence, abundance, security and equality, and discussing how to arbitrate between their
conflicting demands), private property (contracts, taxation, inheritance)
and personal status (family law, slavery, services). In adopting this plan,
he fell back on Roman-law divisions between res and persona and between
civil and penal law adopted by the French, though such divisions had been
extensively criticised by Bentham.9
Had the members of the commission read Bentham? Did they attempt
to follow his ideas? The philosopher later wrote: Dumont fancied that
he saw traces of my ideas in the arrangement of that Code I, for my
part, could see none.10 Recueil des travaux preparatoires du Code Civil, in
which the preliminary work of the members of the commission and that
of occasional collaborators was recorded, does not contain any mention of
his name.11 There are reasons to believe that he was known among French
jurists: Biblioth`eque britannique circulated in Parisian circles and Roederers
reissue of Beccarias translation was noticed and commented on (along
with its appendices).12 There may also have been private correspondence
involving Portalis, as a number of letters hint at. For instance, on 30 March
1801, Anne Romilly received a letter from her friend in Auteuil, Madeleine
Gautier:
Dont be surprised if I write again, though I wrote on the 20th and the
25th; and I ought to be discreet, remembering that we are inhabitants of two
countries, which horrid politics have made enemies; but we want Benthams
Civil Code. Mr Romilly will not fancy we shall turn it to a good account.
Those who are charged with the preparation of our Code are desirous of
having it.13
Could those who are charged with the preparation of our Code refer
to Portalis and other members of the committee? Bentham himself later
9
10
11
12
13
142
hinted that this might have been the case, writing that Portalis, hearing
of some printed but unpublished papers of mine, took a world of pains in
roundabout ways (it being in war time) to get a copy before it went public.14
However, we need to dissociate Benthams and Dumonts intentions of
being read and heeded by the French legislators from the reality of influence.
On the crucial issues of the organisation of a code of laws, private property
and family organisation (marriage and divorce), the reflections in France
took place entirely independently of Benthams writings.
First, the British philosopher had insisted that all the parts within a code
depended on one another, as General View demonstrated. Despite overall
agreement on codification itself and on the requirement that the wording
of the code should be as clear and unambiguous as possible, ideas that were
widely shared by late-Enlightenment reformers,15 there were significant
divergences between Bentham and the French legislators. For Bentham,
completeness and clarity in a code had a specific meaning that involved
precise rules for codification. In the essay on the Promulgation of Laws,
Dumont singled out Benthams argument:
To promulgate a law, is to present it to the minds of those who are to be
governed by it in such a manner that they may have it habitually in their
memories, and may possess every facility for consulting it, if they have any
doubts respecting what it prescribes.16
The main purpose of the law was to provide certainty, to preserve the
security of individual expectations. Dumonts presentation of the legal
interpretation of the principle of utility, in Principles of legislation, insisted
on the fact that a strict utilitarian analysis of action made it possible to
anticipate most of the circumstances surrounding a given act. The letter of
the law should refer to as many circumstances as possible: there is nothing
arbitrary about the method. It is not the judge, it is the law itself, which
modifies a particular punishment in accordance with sex, age, religious
profession, etc.17 Completeness meant that the code should be able to
cover the entire field of human action. For that reason it was to be constantly
amendable.18
Bentham insisted that reasons should be spelled out alongside every
article: the interpretation of legal rules was to be built into the fabric of the
code itself: Portalis is no more able than a pig to make a code with reasons
14
15
18
Correspondence (CW), vol. VII, 125. For the identification of Madeleine Gautier as Anne Romillys
correspondent, see, p. 149.
16 Traites, 431.
17 ibid., 40.
See Chapter 5.
ibid., 1523. For Benthams later statements on the topic, see Constitutional Code.
A mixed reception
143
to it, he fumed, [w]hat human being could be, who should take a code to
make by a particular day, as a tailor would a pair of breeches?19 Including
the reasons in the code and providing for each individual circumstance all
but ruled out the necessity or the possibility of legal exegesis or arbitration
outside the code.20 Judges are conspicuously absent from Traites, where
they are replaced by the figure of the Legislator.
Portaliss vision of the interplay between the text of the law and judicial
interpretation was markedly different. In the Preliminary discourse in
which he presented the Civil code to the Tribunate in 1801, he strongly
defended appeals to tradition in judicial interpretation and the use of
natural reason in adjudication. Opposing the complex fabric of human life
and interpersonal relations (the direct objects of civil law) to the limited
reason of legislators, he wrote: [i]t would therefore be a mistake to think
that a body of laws could have foreseen all possible situations and provided
for them in advance, while remaining within the grasp of every citizen.
This statement was followed immediately by praise for a legal tradition
built on exegesis and arbitration:
We are fortunate enough to have compilations and a continuing tradition
of uses, maxims and rules. They force us, so to speak, to judge today as we
judged yesterday, and to ensure that the only variations in public judgements
are those brought about by the progress of enlightenment and by the force
of circumstances.21
20
21
Correspondence (CW), vol. VII, 125. See also The Correspondence of Jeremy Bentham, vol. XI, January
1822 to June 1824, C. Fuller, ed., (CW) (Oxford, 2000) 1889, where Benthams criticisms of the
French Civil Code are repeated.
Traites, 43140.
J.E.M. Portalis, Discours Preliminaire du Code Civil, Ecrits et discours juridiques et politiques, A.
Seriaux and F. Dorce, eds. (Marseille, 1988).
144
23
24
25
Constitutional Code, Book II, in Bowring, vol. IX, 512. For a discussion of that passage, see also
J.R. Dinwiddy, Adjudication under Benthams Pannomion. Radicalism and Reform in Britain,
17501850 (London, 1992), 3639.
Article 544, Civil Code, J.H. Crabb, ed. and trans. (Littleton, CO, 1995), 127.
J.-L. Halperin, Histoire du droit des biens (Paris, 2008), 194. In his presentation, Portalis mentioned
natural-rights theories, but the code itself did not. In English, see J. Gordley, Myths of the French
Civil Code, The American Journal of Comparative Law, 42 (1994), 460505.
BGE, MS Dumont, 5bis, f. 50.
A mixed reception
145
This was justified on strictly utilitarian grounds: present possession was the
best title to property. Arbitrary confiscations created more pain than pleasure, and they provoked alarm among all property holders. Property was
therefore presented as a necessary condition for human happiness. In that
respect, Traites amplified Benthams writings by insisting on the pathological axioms which justified possession.27 In line with the manuscripts,
Dumont also insisted on the danger of collectivism.28 This naturalistic
account of the pleasures derived from private property was balanced by a
positivist view of the legal origins of property: it was not a natural right,
it was created and defended by law.29 Bentham, and Dumont in his wake,
defended the right to raise taxes, as they were necessary for the State to
exercise its missions in preserving public security (army, police, justice,
defence against natural calamities, and also poor relief).30
In Traites, Dumont did not enter into any detail as to the nature of the
taxes envisaged by Bentham, except in the case of inheritances. Inheritances
were the main fiscal lever, because an individuals expectations ceased with
death. The most detailed part of the Principles of the Civil Code therefore
dealt with that matter, Dumont abstracting from Benthams manuscript a
model for a Succession code.
The legislator should have three objects in view, in framing laws of succession: (1) to provide for the subsistence of the rising generation; (2) to prevent
the pain of disappointment; and (3) to aim at the equalisation of fortunes.31
146
33
35
36
37
This is consistent with Benthams proposal as set out in the 1795 pamphlet Escheat vice Taxation:
[T]he appropriating to the use of the public all vacant successions, property of every denomination
included, on the failure of near relations, will or no will, subject only to the power of bequest, as
hereinafter limited. . . . [T]he power of bequest, I should propose it to be continued in respect of
half of whatever property would be at present subject to this power. Bowring, vol. II, 586.
34 ibid., 145.
Traites, 5.
A. Morellet, Traite de la propriete e il carteggio con Bentham e Dumont, L.C. Boralevi and E. di
Rienzo, eds. (Florence, 1990), 56.
See E. di Rienzo, Morellet e la categoria della propriet`a privata in Francia: dallAntico Regime alla
Restaurazione and Lea Campos Boralevi, Propriet`a e politica in Bentham e Morellet: storia di una
delusione, in A. Morellet, Traite de la propriete.
Morellets position was echoed by Germain Garnier, another of Dumonts Paris acquaintances, who
was famous as the latest translator of Adam Smiths Wealth of Nations. See A. Smith, Recherches sur
la nature et les causes de la richesse des nations (Paris, 1802).
A mixed reception
147
148
42
43
44
A mixed reception
149
Bentham told Dumont that that person never wrote to him.45 What
was then Duquesnoys source? In 1801, Samuel Romillys wife Anne had
received the following letter from Madeleine Gautier, who, in the same
period, acted as an intermediary between Frenchmen involved in the Civil
Code and Bentham:
I am required to write, again and again, to subject myself to the charge of
importunity; but we are occupied with the great work ourselves; and want
the aid of Bentham. The extracts published in the Biblioth`eque britannique
have excited the liveliest curiosity. Bentham cannot refuse his aid when
our object is so meritorious. There is really here, at this moment, an eager
desire to do good nay, I may say, a benevolent fermentation which
is very impressive. Will it lead to practical consequences? you will doubt:
but you will not doubt that such a tendency is wise and praiseworthy, and
that it ought to be encouraged. Improvements in our hospitals and poorhouses are really in demand; and my [younger] brother, who is one of the
administrators named for this object, is so zealous, that I expect we shall call
on you soon to aid us in this particular.46
Bowring did not name the author, but Madeleine Gautier can be identified
with near certainty. Nee Delessert, she was a great friend of the Romillys
and her brother Benjamin had recently been appointed to the Conseil
General des Hospices.47 Indeed, when Esquisse was published, Duquesnoy
wrote to Benjamin Delessert thanking him for a work you were the first
to bring to France.48
The first essay contained in Esquisse reflected Benthams interest in statistics and classification. It contained two distinct tables, the first calling for
a precise assessment of the number of paupers, the cause of their distress and the kind of relief appropriate. The second attempted to establish the value of the work that could be extracted from each category of
paupers: the economic sustainability of Benthams system relied on the
product of the paupers work, so estimating its value was a prerequisite.
In the second, longer, section, Bentham detailed the management of the
houses of industry, their interior and exterior design under the Panopticon
45
46
47
48
150
principle, the daily organisation of relief (regulations for housing, work and
education, but also for clothes and food) and, lastly, the advantages of his
plan compared to other modes of administration. The inspection principle was part of a comprehensive design. Its clarity and precision directly
recommended it to Duquesnoy, who indicated that he had circulated the
first table (breaking down the population calling for relief into categories)
to the administration of each region and to the philanthropic committees
of Paris.49
The work had much to recommend it to French philanthropists. Many of
Benthams proposals could be seen as the practical implementation of ideas
that were already commonly held in these circles. First, his understanding of
human motivation (the search for pleasure and the avoidance of pain as the
true springs of action) was similar to many contemporary French analyses.
A letter on the Paris hospices,50 published in the Decade Philosophique in
the spring of 1802, pointed out the advantages of distributing premiums to
the nurses who kept the infants in their care healthy while insisting on the
necessity of surveillance and control:
Bounties and rewards are too efficacious to be ignored. How many men do
good without calculating the profit which they will derive from it? Do they
spare their efforts to evaluate each step or each pain?51
Second, Benthams essay insisted on the moral value of work. For, like his
French contemporaries, he believed that relief for the able-bodied should
be conditional upon work. In a circular issued in August 1798, the Minister
of the Interior had written:
Some truths bear repeating. All healthy individuals must earn their living:
those who are fed without doing corresponding work are fed at the expense
of those who work. By devouring the fruits of the land without labouring
and those of industry without working, their laziness and the bad example
they set are greater burdens to the public than the amount of money that
has to be paid for them. And the daily costs of workhouses are everywhere
enormous. In almost all of them, the daily price of food for each inmate is
over one franc. It should be at least halved, and from the age of ten onwards,
all individuals of both sexes are in a position to earn their subsistence.52
49
50
51
52
A mixed reception
151
53
54
deux exercices du minist`ere de lInterieur (Paris, 17989), vol. I, 170. I thank D. Margairaz for
communicating this reference.
Esquisse, insert between pages 16 and 17.
Decade, vol. XXXII, (December 1801February 1802), section Economics Administration, 206
8. Reprinted in J. Boulad-Ayoub, La decade philosophique comme syst`eme (Rennes, 2003), vol. VI,
4478. In its review, the Journal des debats, a newspaper containing official accounts of parliamentary
debates, as well as reviews and announcements, wrote: In the neighbouring country, an active and
clever philanthropy has produced a host of projects. The frequent support of wealth has allowed
[the British] to combine the results of experiments with theoretical speculations. 21 pluviose, year
X (10 February 1802).
152
practice. In private he was, however, pessimistic, noting that this plan [to
build a Panopticon in Paris] seems to be doomed, recalling its successive
abandonment by the National Assembly and then by the British government, telling Bentham in February 1802: I have spoken of Panopticon. It
was coldly received. They say Yes! it ought to be erected, and they would
think about it when the time came. The time anticipated is the time of
peace.55 As war resumed after the truce of Amiens, the prospect of peace
receded further.
In 1804, the collection of foreign works on houses of industry coordinated by Duquesnoy included one more work of Benthams on prison
management: Lettres a` Lord Pelham.56 The volume did not contain any
translators notes, nor has any review of it been traced. Its impact is therefore difficult to assess. Dumonts version of Panopticon had been published two years earlier, and Benthams Lettres a` Lord Pelham provided
another account of his system of penitentiary reform, which compared and
contrasted it explicitly with other solutions for criminals: deportation to
the colonies (which he strongly criticised), and the Philadelphian mode
of imprisonment described by La Rochefoucauld-Liancourt in 1795 in Des
prisons de Philadephie.
How influential were Benthams philanthropic writings in France?
Republishing Pauper Management Improved in English in 1812, the philosopher boasted that soon after the appearance of the translation in Paris in
1802, the suggestions contained in it were, to an extent more or less considerable, put to use.57 He might have had in mind the 1808 decree by the
French authorities that made begging an offence, and generalised internment of paupers in dedicated workhouses (depots). There is no denying that
Benthams writings on poor relief and prison management were known in
France: as we have just seen, they had circulated in printed form in 1791,
1802 and 1804, but their impact on contemporary practices remains difficult to substantiate. In many cases there are striking similarities between
Benthams proposals and French practice, but the precise connection is hard
to trace, many of these ideas being shared by contemporary philanthropists
on both sides of the Channel from the 1780s onwards.
55
56
57
A mixed reception
153
What appears today as Benthams most innovative scheme, the contracting out of prison management and poor relief to a joint-stock company
accountable to the State, was indeed implemented by the Directory in a
decree of 17 thermidor year VI (4 August 1798). Workhouses (depots de
mendicite) were leased out to a private entrepreneur for a nine-year term.
Government grants covered the daily care of each inmate (individual costs
varied according to sex and age). The entrepreneurs were responsible for
maintaining specific standards of hygiene, and were allowed to keep half
of the profits made from the prisoners work.58 This system was also tried
out in Paris for the city hospitals (hospices civils), where different modes of
management were tried and contrasted.59 Dominique Margairaz emphasises the practical reasons for such a choice (the shortage of public money)
and the theoretical sources that supported it: earlier translations from the
English and articles published by Leclerc de Montlinot, a former journalist
turned philanthropist, the year before.60 It was also reminiscent of Ancien
Regime practices which allotted daily sums to jailors for the care of inmates
or, more generally, of habits of relying on private enterprise rather than
on direct state administration.61 The date of the decree, 1798, would be
sufficient to rule out Benthams influence. Duquesnoy only became aware
of Benthams articles and translated them in 18001801, three years after
the measure was passed and after the string of scandals they had caused.62
True, a similar proposal was contained in the 1791 version of Panoptique,
which must have been known to officials who had been involved in the
early Committees of the Revolution, but that seems too tenuous to establish a direct connection. Separately, many features such as surveillance,
the separation of convicts, and productive work were shared by numerous
philanthropic projects from the Philadelphian and Pennsylvanian systems
debated in the late 1790s to the programme of the influential Society for
58
59
60
62
J.-G. Petit, Ces peines obscures. La prison penale en France (17801875) (Paris, 1990), 143151. D.
Margairaz, Francois de Neufchateau, 328.
A.G. Camus contrasted the appointment of general contractors in charge of providing bedding,
linen, clothes, food of all kinds (bread excepted) at a daily cost determined for each inmate,
with the paternal regime which consists in supplying and feeding each workhouse either through
specific suppliers, or by first-hand purchases made directly by the administration, Decade, 10
prairial year X (30 May 1802), vol. XXXIII, 205 (3e`me lettre de Camus sur les hospices). In
the letter, Camus favoured the latter, justifying the expense by the importance of good care for
mothers.
61 See J.G. Petit, Ces peines obscures, 12532.
See D. Margairaz, Francois de Neufchateau, 328.
Duquesnoy himself was accused of embezzlement. See D. Margairaz, Francois de Neufchateau,
32931.
154
C. Duprat, Punir et guerir. En 1819, la prison des philanthropes, in M. Perrot, ed., Limpossible
prison: recherches sur le syst`eme penitentiaire au XIXe si`ecle, (Paris, 1980), 64122.
chapter 1 2
On 2 August 1802, Napoleon was made First Consul for life.1 This was the
most visible sign of Bonapartes grip on French politics. In the preceding
years, there had been growing opposition among Republicans to his overtures towards the Ancien Regime aristocracy and the Church, embodied
in the Concordat of 1801 reinstating Catholicism as the official religion.
Though many Republicans eventually voted for Bonapartes promises to
maintain stability at home, the political climate deteriorated soon after his
accession. In the autumn, public opinion became polarised for or against
Bonaparte and religious, moral and legal issues became saturated with
political undertones. The disappointing reception of Traites in the second
half of 1802 illustrates this tense and precarious political climate, despite
Dumonts efforts to promote the book.
Bentham exercised the voting right which his honorary French citizenship (granted in 1792) gave
him to vote for Bonaparte; see Correspondence (CW), vol. VII, 63.
Correspondence (CW), vol. VII, 8.
155
156
Journal litteraire and Journal de legislation), but more recent ones showed his
continuing interest in French affairs: Esprit des Journaux, Journal de France
and, of course, Decade Philosophique and Roederers Journal deconomie
publique.3 In the spring of 1802, Bentham read in the Moniteur that his
name had been put up for election to a vacant seat as a foreign member in
the Second Class of the National Institute.4 Dumont admitted to having
discussed the matter with some of his friends there, probably Roederer,
Gallois or Talleyrand himself.
The outcome at the National Institute was disappointing. First, Bentham
was never elected to the Class of Moral and Political Sciences, despite his
name having been put up twice. As he reported it, it was because on the
first occasion, someone had told the members, before the vote, that he
had recently died. In the next one, Charles Fox had been chosen over him,
which Bentham ascribed to Napoleons influence.5 However, Bentham had
been misled by his Parisian friends. Within the Class of Moral and Political
Sciences, his name had certainly been presented by Garran, who was in
charge of proposing names for the seat of foreign member. Whenever a
seat became vacant, each class shortlisted a small number of candidates.
A vote organised during a plenary session then nominated the successful
candidate. Benthams name was put up on 25 May 1802 and 24 August
1802. In the first instance, he was third on the shortlist and got only 100
votes (compared to 257 for Niebuhr, the German travel writer) which
rules out the hypothesis that voters had been told he was dead. In the
second instance, as his name came first on the shortlist, it was another
philanthropist, Benjamin Thompson, Count Rumford, who obtained 180
votes against Benthams 140 in the final plenary vote.6 Why was Rumford
preferred over Bentham against the wishes of the Class of Moral and
Political Sciences? As in the case of Fox, who was elected a few weeks later
(though not against Bentham), Napoleons influence might have been at
work: Rumford seems to have been in favour with the First Consul and
the members of the National Institute before the election. Losing to a wellknown politician in the name of high diplomatic interests was certainly
more respectable than to a fellow philanthropist who networked heavily
3
5
6
Autumn 1802
157
in support of his schemes for popular soups, which might account for the
version of events that was reported to Bentham.7
Bentham set off for Paris on 7 September 1802 and was back in London
on 2 October having spent little more than two weeks there, a trip
described by Morellet as extravagant by its extreme brevity.8 His visit
coincided with Dumonts second stay in Paris that year, after a short stint
in Geneva in the summer, and with the longer visit of Samuel and Anne
Romilly. A Genevan friend wrote to Dumont:
[Benthams] Paris excursion is a pleasant affair. I am tempted to think he
wanted to experience personally the stir created by his and your work. Then,
sick of society and of the numerous assemblies in which he would have had
to appear, he told himself I cant afford it and went back home.9
In Paris, Bentham spent most of his time with Romilly and Dumont;
visited the hall of the legislative body, which is built on what was formerly
the Palais Bourbon; attended a meeting of the National Institute and
dined at the Gautiers in Passy.10 More importantly, he dined at the Societe
dAgriculture, where he met Gregoire, La Rochefoucauld-Liancourt and
several of his former acquaintances the Societe dAgriculture was home
to most of the influential philanthropists of the day, including Duquesnoy.
On the way back to London, he stopped at Liancourts.11 During this short
visit, he was entirely dependent on the connections formed by Dumont.
Reviewing Traites
Only two reviews of Traites have been traced in French periodicals
if one is to except the short positive notice posted by Roederer in the
Journal de Paris, apologizing for not reviewing a valuable book.12 The first
came out in Le Moniteur a few months after the publication of the three
volumes. Written by Gallois, one of Dumonts closest friends and a man
from Talleyrands circle, it was an invitation for readers to procure the
book: Bentham called the review Galloiss Puff. Briefed by Dumont,
Gallois presented the book in a very favourable light. He set out Benthams
credentials as a legal reformer in a portrait of a solitary thinker who had
7
8
10
12
On Rumford, see D. Knight, Thompson, Sir Benjamin, Count Rumford in the nobility of the
Holy Roman empire (17531814), Oxford Dictionary of National Biography (Oxford, 2004). I thank
Mariana Saad for information on Rumford and Napoleon.
9 Correspondence (CW), vol. VII, 145n.
Lettres dAndre Morellet, 345.
11 Correspondence (CW), vol. VII, 14654.
Life of Sir Samuel Romilly, 901.
Journal de Paris, 7 fructidor, year X (25 August 1802), 2103.
158
seen the world and hoped to contribute to the French Revolution, but who
eventually retreated into lofty seclusion, having resolved not to run after
events that kept ahead of him. Gallois then praised Dumonts editorial
skills before providing a short summary of the seven essays comprising
Traites. Announcing further analyses (which were never published in the
Moniteur), the reviewer remained extremely vague in his praise. He also
avoided making a direct injunction for the work to be used in France,
concluding that
Time only will give it its proper rank and allow it to bear all its fruit. But at
a time when so many nations in Europe are busy changing their legislation,
we think the publication of such a book will be regarded as a blessing for
mankind.13
For France, as we have seen, it was already too late. More interesting is
the review that was published five weeks later in the Mercure de France.
Edited by Chateaubriand and Fontanes, the Mercure was, in 1802, one
of Napoleons main supporters among the royalist press. The review was
signed with the letter F., standing for Joseph Fievee then a leading writer
of the royalist party.14 After mocking what the Edinburgh Review would
later call the division of labour between Bentham and Dumont, Fievee
attacked Traites both for its scope (the ambition to cover the principles of
legislation in three volumes) and for its philosophical foundations, clearly
identifying the inheritance of Helvetius:
Bentham lost his way on the track of Helvetius, whom he regards far too
highly. Many after him will also lose their way. The only legislator who can
come close to the truth is he, who in order to direct man, does not separate
him from his Maker.
Through his review of Traites, Fievee repeated one of his favourite themes,
which soon became the hallmark of conservative analyses of the French
Revolution: the Revolution had been caused by the blind application of
the erroneous principles of atheist philosophers. Human beings were not
rational creatures, as Rousseau thought. Reason was fallible; religion and
custom were needed to supplement it.
13
14
Gazette Nationale, ou Le Moniteur universel, 25 thermidor, year X, 132630 (13 August 1802). For
attribution to Gallois, see Correspondence (CW), vol. VII, 63.
For attribution to J. Fievee, see E. Dumont to F. Edgeworth, UC 174, f. 4. On J. Fievees career,
see J.D. Popkin, Conservatism under Napoleon: The political writings of Joseph Fievee, History
of European Ideas, 5 (1984), 385400; and B. Yvert, La pensee politique de Joseph Fievee, La
Restauration. Des idees et des hommes, 23659.
Autumn 1802
159
Conclusion
Soon after the publication of Traites, it was reported to Bentham that
Talleyrand had presented it to Napoleon, who had called it a work of
genius. Bentham used the anecdote in the 1820s, in Codification proposal
15
16
Mercure de France, 3 vendemiaire year XI [25 September 1802], vol. LXV, 1927.
Traites, 5960 and 56, respectively. British criticism of British institutions became a topos of French
Imperial propaganda.
160
From 1803 to 1815, as European wars resumed and Britain took the lead in
the opposition to Napoleons empire, personal and epistolary communications between the two nations were again prohibited. Dumont retreated
to London, from where he published Theorie des peines et des recompenses
in 1811. State censorship flourished, thus making unauthorised references
to an Englishman such as Bentham extremely rare until the Restoration.
One passing mention can be found in the critical review of British intellectual life by J. L. Ferri de St-Constant in 1804 and another in a work of
anti-British propaganda, LAngleterre jugee par elle-meme, where the author
quoted passages from Traites to ridicule the English common law system.20
17
18
20
J. Bentham, Legislator of the World: Writings on Codification, Law, and Education, P. Schofield and
J. Harris, eds., (CW) (Oxford, 1998), 258n.
19 Legislator of the World (CW ), 157.
Bowring, vol. X, 565.
J.L. Ferri de St-Constant, Londres et les Anglais (Paris, 1804) vol. II, 377; C.-J. Lafolie, LAngleterre
jugee par elle-meme, ou Appercus moraux et politiques sur la Grande-Bretagne, extraits des ecrivains
anglois (Milan, 1806), 41, 57, 11526, 131.
part v
The Correspondence of Jeremy Bentham, vol. VIII, January 1809 to December 1816, S. Conway, ed.,
(CW ) (Oxford, 1988), 4578.
Correspondence (CW ), vol. VIII, 487.
The Correspondence of Jeremy Bentham, vol. XII, July 1824 to June 1828, L. OSullivan and C. Fuller,
eds. (CW ) (Oxford, 2006), 364.
161
162
The only elected house, the Chamber of Deputies, was returned by stages,
with less than a fifth of the male population meeting voting qualifications.
Throughout the period, regular tensions arose between royal sovereignty
and parliamentary power. Despite periodic restrictions on the liberty of the
press (in 1817, 1820 and 1827 for instance), political debates were conducted
in the open, be it in the Chamber of Deputies or in a growing number of
periodical publications. With peace now secure in Europe, international
contacts developed anew and links with Britain intensified.4
There is no end to the success of Traites de legislation, and I would
not be surprised if a third edition was soon on its way, Dumont wrote to
Bentham in 1821.5 Back in Geneva, Dumont continued to publish recensions from the Englishmans works on a regular basis: Theorie des peines et des
recompenses contained essays on various aspects of penal theory alongside
an extract from Manuel deconomie politique the most complete statement of Benthams economic principles published in his lifetime. In 1816,
Tactique des assemblees legislatives suivie dun Traite des sophismes politiques
presented the rules of political debate in representative assemblies. The
second essay contained the first published version of Benthams critique of
the Declaration of the Rights of Man and the Citizen dating from the mid1790s, Nonsense upon Stilts.6 While Dumont continued, in preparing these
two volumes, to make use of the earlier manuscripts consigned to his care in
the 1790s, the next two were drawn, at least in part, from more recent material. Traite des preuves judiciaires, which came out in Paris in 1823, was based
on Benthams writings on evidence around 1809,7 and De lorganisation
judiciaire et de la codification included extracts from Codification proposal,
published in London in 1822, alongside Benthams earlier work on the
organisation of the judiciary in Revolutionary France. This further blurred
the chronological development of Benthams thought to French readers.
In Traites, as we saw, Dumont remained close to Benthams French
originals, his intervention being limited to the preface, the added chapter
on Objections answered and a few editorial footnotes. By the 1810s, though
still eager to defend and promote utilitarianism, he became more critical
4
5
6
E. de Waresquiel and B. Yvert, Histoire de la Restauration, 18141830. Naissance de la France moderne (Paris, 1996), 13840; and more recently F. Demier, La France de la Restauration (18141830;
Limpossible retour du passe (Paris, 2012), 24287; in English, P. Pilbeam, The Constitutional Monarchy
in France, 181448 (London, 2000).
Correspondence (CW ), vol. X, 378. In fact, there was no third edition of Traites.
See Part III, Chapter 9, pp. 12125. Dumonts interest in Political Tactics and in Benthams refutation
of the Rights of Man was directly related to his concerns with Genevan politics. See R. Whatmore,
Against War and Empire, 27989.
Correspondence (CW), vol. VIII, 35.
163
As in 1802, Dumont was not the only channel through which Benthams
ideas circulated. Although not mentioned by the Genevan in print,
Benthams public position in favour of reform in British politics in
18171818 was known among the French public. More importantly, his
reputation as a radical and a republican reformer was enhanced through his
involvement in the liberal revolutions of Spain, Portugal and Greece. Three
Tracts relative to Spanish and Portugueze Affairs, published in London in
1821, was translated into French within two years.9 Bentham also circulated
his own English writings to French visitors, who were often presented with
a copy of each work of [his] that [was] still in print.10 At every opportunity,
he sent his latest works to French correspondents, including Jean-Baptiste
Say, Lafayette and Benjamin Constant. When an edition of his uvres
compl`etes in French was put together by the Belgian publisher Hauman,
it contained reprints of all Dumonts recensions, alongside Essais sur la
situation politique de lEspagne, a recent translation of Defence of Usury, and
Essay on Nomenclature and Classification (an extract from Chrestomathia
which George Bentham, the philosophers nephew, had translated in
1823).11 As Benthams personal fame increased in French circles, his
position was more and more routinely distinguished from Dumonts, and
8
10
11
Correspondence (CW), vol. VIII, 75. Bentham wrote on torture in the 1770s and in 1804, making
a case in favour of physical torture in specific circumstances, which set him apart from most
contemporary legal reformers who rejected it completely. Under Dumonts editorship, the argument
was turned around and presented the case against torture, see Traite des preuves judiciaires (Paris,
1823), vol. II, 35565. For recent examinations of Benthams views on torture, see P. Schofield,
Bentham for the perplexed (London, 2009), 13753; and J. Davies, The fire-raisers: Jeremy Bentham
on Torture 19: Interdisciplinary Studies in the Long Nineteenth Century, 15 (http://www.19.bbk.ac
.uk/index.php/19/article/view/643/866, 2012).
Essais de Jeremie Bentham sur la situation politique de lEspagne, sur la constitution et sur le nouveau
code espagnol, sur la constitution du Portugal, etc. . . . traduits de langlais (par Ph. Chasles), precedes
dobservations sur la revolution de la peninsule . . . et suivis dune traduction nouvelle de la constitution
des Cort`es (Paris, 1823).
Correspondence (CW), vol. XI, 164.
Bentham welcomed this new edition, but was preoccupied with the prejudice it might arouse
against Bossange, the Paris publishing house which had taken in most of the works by Bentham
edited by Dumont since 1802. See Bentham to Jacob Louis Duval, 20 October 1829, to be published
in The Correspondence of Jeremy Bentham, vol. XIII (forthcoming).
164
it also meant that utilitarian ideas were regularly discussed among French
liberals.
These chapters first present the various papers and individuals that
circulated Benthams thought in France under the Restoration, then explain
how the philosophers knowledge of French events was relevant to the
development of his thought over that period. Last, it reveals the increasing
polarisation of French liberal opinion over utilitarianism.
chapter 1 3
Bentham to Robert Peel, 8 May 1826, Correspondence (CW ), vol. XII, 214.
On Benthams writings on Parliamentary reform, see P. Schofield, Utility and Democracy, 13770,
22149. Schofield argues that Benthams republican shift took place in 181718.
See Part IV, Chapter 10, pp. 13134.
165
166
presented Benthams case for a thorough reform of legal rules be they civil,
penal or constitutional.
The alliance of Benthams radical politics with utilitarianism found a
significant echo in one of the most prominent French political economists
of the time, Jean-Baptiste Say. The two men met in 1814. Back in 1789 the
young Say, a Protestant of Genevan descent, was employed by Mirabeau
at the Courier de Provence. Say did not deal with editorial content (unlike
Dumont, who was directly involved in providing articles). Ten years later,
he was among the editors of the Decade Philosophique. The rise of Napoleon
alienated him deeply from French politics. He went back to industrial
pursuits (as the owner of a spinning mill in the north of France), and
finally accepted a semi-official mission to Britain in 1814 in order to gather
economic and industrial intelligence.
By 1814, Says Traite deconomie politique, originally published in 1803,
had been substantially revised for a second edition, while his Catechisme
deconomie populaire was targeted at a broader readership. He was also a
noted republican, his opposition to Bonaparte having given way to a deep
hatred of the Bourbon monarchs. In economics, he believed free trade was
the necessary complement to civil and religious liberty. During his visit to
Britain, he was introduced to David Ricardo and to Bentham through the
radical Francis Place.4 With nearly 30 letters exchanged between 1815 and
1832, Say emerges as Benthams main French correspondent in that period.
In the early years of the Restoration, he regularly wrote to him on French
politics with unqualified candour:
The harm caused by 14 years of sedulous tyranny will not heal quickly. . . .
The publics common sense will remain warped for a long time because
of the distortions imposed on it. We shall continue to suffer for a long
time under the illiberal institutions by which Bonaparte has successively
replaced all those of the Republic. . . . A feeble and idiotic government, born
under the least auspicious of circumstances and poorly supported, . . . the
Ministry has few supporters apart from its clients or those who aspire to be
so. . . . The Ultra-royalists . . . have no other regret than not being in place,
and they appeal to principles solely when they can profit by them.5
Says interest in Benthams writings was renewed after 1817 when the latter
openly publicised his opinion in favour of political reform. Say immediately
4
5
R. Whatmore, Republicanism and the French Revolution. An Intellectual History of Jean-Baptiste Says
Political Economy (Oxford, 2000), 195; F. Demier, La France de la Restauration, 38091.
Correspondence (CW), vol. IX, 286ff. The Ultra-royalists, or Ultras, were a hard-line royalist faction
in Restoration politics. They advocated a complete return to pre-revolutionary institutions.
167
Say emphasised the way in which Napoleon had ruined both the politics and the morals of the nation: [t]he excesses of French demagogues,
the delirium of military victories, Bonapartes voracious and cruel ambition illustrated corruption as defined by Bentham.7 Says opinion of
Louis XVIIIs constitutional monarchy had to be toned down because of
the censorship in place in France at the time, but his conclusions were clear:
the effects of such long-lasting corruption were still felt and could only be
remedied by thorough political reform. In Benthams radical writings, Say
found the vocabulary in which such depredation could be analysed. He
adopted the phrase interet sinistre, directly copied from Benthams sinister
interest, the ubiquitous phrase he used for the corruption of the ruling
few. Say defined it as the pernicious influence of those who come between
man and truth . . . those who infringe on a legitimate right, or harm the
public good.8 Conversely, Benthams account of Restoration politics owed
a lot to Says radical opinions. For instance, he described the period as the
moment when, in conjunction with despotism, impiety and immorality
were re-seated on the throne.9
6
7
8
J.-B. Say, Plan of Parliamentary Reform, Le Censeur Europeen, vol. V (1818), 11112. There was to
be no French translation until 1839: Catechisme de la reforme electorale, precede dune lettre de Timon
sur letat actuel de la democratie en Angleterre, E. Regnault, trans. (Paris, 1839).
J.-B. Say, Plan of Parliamentary Reform, 113.
J.-B. Say, Cours complet deconomie politique pratique (Paris, 1829), 299. See P. Steiner, Interets,
interets sinistres et interets eclaires: probl`emes du liberalisme chez J.-B. Say, Cahiers deconomie
politique, vol. XVI, 16/17 (1989), 2141, 27. For Says relations with Bentham, see R. Whatmore,
Republicanism and the French Revolution, 20714; and E. Schoorl, Bentham, Say and Continental
Utilitarianism, The Bentham Newsletter, 6 (1982), 818.
J. Bentham, Church-of-Englandism and its Catechism Examined, J.E. Crimmins and C. Fuller, eds.
(CW ) (Oxford, 2011), 349.
168
In 1818, French newspapers reporting on the British debate on parliamentary reform noticed Benthams arguments in favour of radical politics.
The Journal des debats, a conservative newspaper, noted Benthams alliance
with the radical MP Francis Burdett. In July 1818, the paper devoted a
feature article to A Sketch of the English Electoral System. It described
the unreformed system without omitting the irregularities in representation, the rotten boroughs or the abuses to which it was prone. According
to Conrad Malte-Brun, the royalist journalist who signed the article, this
system did not prevent a fair representation of popular interests. Indeed, a
number of loopholes allowed unrepresented industrialists to be registered
as voters in small boroughs. Corruption served to balance existing abuses,
for it was equally available to the Opposition and the Government. At the
end of the article, the journalist mocked Benthams recent Radical Reform
Bill for advocating universal suffrage:
Among the reform plans lately proposed, that of M. Jeremy Bentham is
the most curious. This obscure metaphysician, writing in a more neological language even than Kant or Mercier, jumping from one syllogism to
another, has reached this admirable conclusion: that every individual of
both sexes and above the age of 21 should participate in the election of the
representatives of the nation. M. Bentham is not especially a gentleman,
but hes so besotted with the universal suffrage that he cannot even bring
himself to exclude the insane, like Sir Francis Burdett. True, what harm
could a hundred madmen cause in such an assembly as that devised by M.
Bentham?10
In France, for the first time, the elections of 1819 returned a significant
number of liberal representatives to the Chamber of Deputies. Censorship
was abolished, but in February 1820, the assassination of the Duc de Berry,
the heir to the throne, provoked a backlash which particularly affected
newspapers and private correspondence. Bentham took increased precautions when sending letters to France, favouring personal channels over the
post. Later that year, he wrote to his brother that France had an odious and
contemptible government.11 Indirectly, the repression served to strengthen
French liberal networks and to involve Bentham more directly, through
the visits to London of proscribed Frenchmen such as Charles Comte,
Louis Le Dieu and Joseph Rey.12
10
11
C. Malte-Brun, Apercu du syst`eme electoral anglais, Journal des debats politiques et litteraires
(10 July 1818), 24.
12 ibid., as per index.
Correspondence (CW), vol. X, 211.
169
14
15
16
Correspondence (CW ), vol. XII, 213. On the Revue encyclopedique, see B. Revelli, Presse periodique,
intellectuels et opinion publique sous la Restauration: La Revue Encyclopedique (18191831), in W.
Berelowitch and M. Porret, eds., Reseaux de lesprit en Europe: des Lumi`eres au XIXe si`ecle: actes du
colloque international de Coppet (Geneva, 2009), 21729.
Correspondence (CW), vol. XI, 127.
Les doctrines de la Revue Encyclopedique, LEurope Litteraire. Journal de la litterature nationale et
etrang`ere, 51, (1833), 2056. On Julliens eventful career, see E. Di Rienzo, Marc-Antoine Jullien de
Paris (17751848). Una biografia politica, (Naples, 1999).
Saint-Amand [Bazard], Notice sur les ouvrages de Jeremie Bentham; suivie dune analyse des
pi`eces relatives a` la codification, Revue encyclopedique, vol. XXXI (1826), 312. It is reprinted in
N. Sigot, Bentham et leconomie. Une histoire dutilite (Paris, 2001) 20411. References are to the
original edition. After the failure of a Carbonari conspiracy in 1821, Saint-Amand Bazard abandoned
170
Marc-Antoine Jullien believed Benthams ideas to be relevant to contemporary French issues. The article also recalled the philosophers interest in
French politics in the early years of the Revolution, whilst his retreat from
French politics after 1792 was now interpreted as a sign of the soundness
of his principles.
The French Revolution excited his faculties and his interest in the highest
degree. He saw himself as a natural ally to this great enterprise in legislation,
and alone he worked more than any of the Committees of the Constituent
Assembly. He was ready to complete his Penal Code and to take up the
Civil Code: but he was soon discouraged by the state of disorder into which
the violence of the parties had thrown France, and he understood that the
peaceful voice of philosophy could not be heard in troubled times.17
17
18
19
20
revolutionary politics. By 1825, he was one of the earliest collaborators of Claude-Henri de SaintSimon see below, p. 193.
Revue encyclopedique, vol. XXXI (1826), 6.
J. Bentham, Scotch Reform; considered with reference to the plan . . . for the regulation of the courts, and
the administration of justice, in Scotland (London, 1808); Swear Not at All: containing an exposure of
the needlessness and mischieviousness, as well as antichristianity of the ceremony of an oath (London,
1817); Elements of the Art of Packing, as Applied to Special Juries (London, 1821), reprinted in Bowring,
vol. V, 61186.
Church-of-Englandism and its Catechism examined had been published in 181718.
The story of Benthams involvement in the philhellenic movement is studied in F. Rosen, Bentham,
Byron and Greece. For the links between the committees of London and Paris, see D. Barau, La
cause des Grecs. Une histoire du mouvement philhell`ene (18211829) (Paris, 2009).
171
Although this initiative came to nothing, Blaquiere, Bowring and Stanhope were active, each in their own ways, in publicizing Benthams support
for the liberal cause among French circles through publications, articles in
the press and institutional links among the members of the Greek committees of Paris and London. Bentham knew some members of the Paris
Committee personally, especially among those drawn from the philanthropic movement: La Rochefoucauld-Liancourt, Benjamin Delessert and
also Charles de Lasteyrie and Guillaume Ternaux.24
John Bowring emerges as a leading figure in this network. Like Blaquiere,
he travelled between France, Spain, Greece and Britain. In 1822, he was
arrested by the French police at Calais for attempted conspiracy (he was
carrying letters to the Portuguese opposition in London) and freed after
21
22
23
24
On Benthams support for the Spanish liberal cause, see Editorial introduction to J. Bentham,
Colonies, Commerce, and Constitutional law: Rid yourselves of Ultramaria and other Writings on
Spain and Spanish America, P. Schofield ed., (CW ) (Oxford, 1995); and M. Escamilla Castillo,
Bentham en Cadiz. Apuntes previos a un estudio, in M. Escamilla Castillo and J.D. Ruiz Resa,
eds., Utilitarismo y constitucionalismo: La ocasion de 1812 (Madrid, 2012), 11346.
Blaquieres and Stanhopes own ideas of their mission to promote the cause of liberty in southern
Europe and their skills in liaising between liberal movements have been studied by Frederick Rosen,
who also highlighted the differences between their political aims and Benthams: see Bentham, Byron
and Greece, especially 12563.
Quoted in F. Rosen, Bentham, Byron and Greece, 132.
For Liancourt and Delesserts involvement in philanthropic circles, and their earlier contacts with
Bentham, see pp. 11314, 14849. Bentham had sent his Chrestomathic Tables to Lasteyrie in 1815. In
1822, Lasteyrie recommended Ternaux and another French visitor to Bentham: see Correspondence
(CW ), vol. VIII, 4934; vol. XI, 135, 217.
172
26
28
29
30
31
J. Bowring, Details of the arrest, imprisonment and liberation of an Englishman by the Bourbon
Government of France (London, 1823). For Benthams intervention, see Correspondence (CW), vol. XI,
161.
27 ibid., 3.
J. Bowring, Details, ix.
Correspondence (CW ), vol. XI, 112, 134. On the interest of writers attached to the Westminster
Review in French affairs, see M.J. Turner, Arraying Minds against Bodies: Benthamite Radicals
and Revolutionary Europe during the 1820s and 1830s, History, 90 (2005), 23661.
J. Bentham, Three Tracts Relative to Spanish and Portugueze Affairs (London, 1821); Letters to Count
Toreno on the Proposed Penal Code, delivered in by the Legislation Committee of the Spanish Cortes,
April 25th, 1821 (London, 1822).
P. Chasles, Preambule, Essais . . . sur la situation politique de lEspagne, viiixxxi. Philar`ete Chasles
(17981873), later a professor at the Coll`ege de France, became known for his essays on British
and German literature. In his autobiographical recollections, he failed to mention this youthful
work but boasted he had met Bentham in London in 1817, P. Chasles, Memoires (Paris, 18767),
1667. The claim was false and the details of the supposed interview with Bentham were directly
plagiarised from Carlyles The Spirit of the Age. See C. Pichois, Philar`ete Chasles et la vie litteraire au
temps du romantisme, 2 vols (Paris, 1965), vol. I, 51.
Thirteen letters have been preserved for the period 182132.
173
previously.32 For Restoration liberals, he provided the example of a personal and military career in the service of the ideals of 1789. His part in the
American Revolution, his support of the Revolution until the overthrow
of the 1791 Constitution and even his emigration after 1792, which left him
free from any association with the Terror, bore witness to his political credentials. Lafayette had returned to France in 1799 and, though a supporter
of Napoleon after Brumaire, he had retired into silent opposition after
1804. Coming back to politics after 1818, as a personal friend of Benjamin
Constant and the duc Victor de Broglie, the two leading lights of the liberal
party, he continued to be praised as the most illustrious of the defenders
of liberty.33
The French general was among those to whom Bentham had addressed
pamphlets in 1789, but contact remained at best indirect and there is no
evidence that Lafayette was aware of Bentham at that time.34 Precisely how
they came into epistolary contact in the summer of 1821 is not known,
but they had clearly become connected through an international, liberal
network of overlapping friends and political projects by the early 1820s.35
Like Bentham, he was a strong supporter of the Greek cause and took
an interest in Latin American movements for independence. Thanking
Bentham for the pamphlet On the Liberty of the Press, Lafayette wrote in
September 1821:
The cause of liberty on which you have bestowed so much affection and cast
so much light is now in a general crisis. The movement of liberty, despite
powerful opponents, is supported by a sympathetic union of patriots from
several nations. It cannot fail to bring about a happy result.36
33
34
36
This period of Lafayettes life is comparatively little known. For two reassessments, see S. Neely, La
Fayette and the Liberal Ideal, 18141824: Politics and Conspiracy in an Age of Reaction (Carbondale
and Edwardsville, IL, 1992); and L. Kramer, Lafayette in Two Worlds. Public Cultures and Personal
Identities in an Age of Revolution (Chapel Hill and London, 1996). In French: P. Gueniffey, La
Fayette ou les impasses du liberalisme, Histoires de la Revolution et de lEmpire (Paris, 2011), 3164.
B. Constant, The liberty of the Ancients compared with that of the Moderns, in Political Writings,
B. Fontana, ed. (Cambridge, 1988), 327.
35 L. Kramer, Lafayette in Two Worlds, 79, 1029.
Correspondence (CW), vol. III, 52.
Correspondence (CW), vol. X, 395.
174
42
Bentham also recommended his Tripolitan disciples to Lafayette, among whom was the young
Mohamed Khan, a friend of Hassuna DGhies: see Correspondence, (CW ), vol. XI, 183.
See Editorial introduction to Correspondence (CW ), vol. XI, xii, xxiv.
Le Frondeur, journal de litterature, des thea tres, des arts, des murs et de mode, 26 September 1825.
Quoted in Correspondence (CW), vol. XII, 176.
Besides editing the Revue encyclopedique, Jullien was an active member of the Paris Greek committee.
See D. Barau, La cause des Grecs, 94.
Bentham wrote to Dumont shortly after his journey: One bust by David pupil of the celebrated
painter and one portrait by Mademoiselle Pag`es I have sat to at the entreating of these several
friends under the notion of serving them. Both are pronounced striking likenesses. A Lithograph of
the portrait you will have ere long, I am assured. The painting is to be exhibited one year in Paris,
the next in London and then lapse to me: i.e. to my Ex.ors etc. Correspondence (CW ), vol. XII,
178. David exhibited Benthams bust at the Salon de Paris in 1827 and visited him in London the
following year: see L. Baridon and M. Guedron, Corps et arts. Physionomies et physiologie dans les
arts visuels (Paris, 1999), 157.
Lafayette being under police surveillance, Benthams stay was duly reported to the authorities. See
L. Kramer, Lafayette in Two Worlds, 296n.
chapter 1 4
French affairs, as Bentham followed them from the regular reports he read
in the press or heard from his visitors and correspondents, fed his reflections
on politics. In this period his involvement with France is not as obvious
as that with Spain, Portugal or Greece: his expertise was called upon only
informally, through the correspondents and networks mentioned earlier.
His reflections on French politics show that his own theory did not develop
in the abstract, but in a constant dialogue with existing institutions and
practices. His analyses of constitutional limitations and his arguments
in favour of the liberty of the press or against the death penalty were
formulated in a pan-European liberal context.
The ideas and arguments put forward by the English philosopher resonated with French intellectuals and politicians, for they addressed some
of the most pressing political issues of the times. Though there was a clear
agreement in public policy, the fact that interest could be taken as the foundation of morals and legislation was debated among French politicians in
reference to the situation in both countries.
176
Looking for French sources to illustrate the depredation caused by monarchical institutions, he asked Ternaux, as he had asked Say a few years
earlier, to send him detailed figures relating to the Civil list and to political
corruption.2
Constitutional issues were at the forefront of Benthams work in the
1820s. This explains his interest in the working of the French Charter. In
1822, he wrote to the young lieutenant Francis Hall, the author of the
recently published Travels in France:
Your book on France had till lately lain on my shelf without exciting much
expectation. The country with every thing that passes in it being so generally
known, the work had presented itself to me as a sort of commercial speculation & with reference to my own pursuits & occupations not affording
a promise of much interest. Out of this torpor I was not long ago awakened by the assurance given me by some friends that at the conclusion of
it, I should find a most masterly and instructive account of the state of
the unhappily still unsubverted anglico-austraico-gallico Constitution & its
result: and such accordingly I have found it.3
By calling the Charter the anglico-austraico-gallico Constitution, Bentham emphasised its foreign origin (i.e. the pressure put on the French
monarchy by the allied powers at the Congress of Vienna in 1814). This
point was also stressed from the outset by Francis Hall. Hall drew on contemporary French criticisms to contrast the letter of the Charter with its
application. The Constitution de jure, as it was drafted, was called a capitulation between two parties, a compromise in which the peoples rights
were acknowledged and the Bourbons prerogative reasserted. However,
the Constitution de facto, as it was applied, was markedly different.
Hall used concrete examples to show how the Charter granted rights
verbally, while simultaneously ensuring the conditions of their constant
violation. For instance, Article 4 stated no one can be prosecuted, or
arrested, except in cases provided for by the law, and by regular process,
but how was an individual to obtain redress when this right was violated?
Hall explained that under French law, no subaltern ministerial agent can be
1
2
Correspondence (CW), vol. XI, 141. Ternaux had sent him an imprint of a speech he had made in the
Chamber of Deputies exposing corruption in French finances.
3 ibid., 76.
Correspondence (CW), vol. IX, 189; and vol. XI, 143.
177
proceeded against, but by virtue of a decree of the Council of State; that is,
the injured individual must obtain the sanction of ministers for proceeding
against their own employes.4 In practice, therefore, the government would
not support a citizen against an abuse of power on the part of an official.
Similarly, whereas Article 62 guaranteed the right to be judged by due
process, Article 63 provided exemptions for extraordinary courts martial.
Since Hall referred to his French sources abundantly throughout the work,
it is clear that these arguments were drawn from those of French liberals
published in periodicals such as La Minerve francaise and in particular from
the writings of Benjamin Constant.
The contradiction between the letter of the Charter and its application
put French liberals in a difficult position. Despite the fact that the government could apply the Charter in a way that was hostile to individual rights
and liberal values, the principles stated in it remained a blueprint which
the liberals were ready to defend throughout the Restoration. The rights
stated in it were regularly invoked against encroachments by the monarch,
first Louis XVIII and, after 1825, Charles X.
In writing that there is reason for adhering to the charter, a` toute outrance,
because, without the kings good-will, it is impossible for [the French] to
get anything better,5 Bentham was echoing the position of most French
liberals. He noted the contradiction that forced them to defend a text that
failed to provide the legal guarantees they wished to see established. This
situation, however, provided a clear illustration of a distinction he had
introduced much earlier in his own constitutional theory: the difference
between the popular and the legal sanction. His imperative theory of
law did not make it possible for a sovereign to tie his own hands by means
of a constitutional document: this is why he rejected the possibility of a
strictly legal limitation of legislative power, or, in other words, a supra-legal
constitution.6 As the French example illustrated, nothing could force a
sovereign body to respect texts limiting its own power. However, officially
recognizing such liberties and guarantees prepared public opinion to defend
them when they were violated, thereby applying a powerful check on the
exercise of power, albeit not a legal one.
4
6
178
10
179
the licensing system gave authors the assurance of not being punished for
anything they write, but they remained open to libel prosecution on the
part of the powerful and the wealthy, which de facto limited the scope of
what could be written and published.11
In Traites, the argument in favour of liberty of the press was grounded
on the necessity of improving knowledge by public discussion in order to
prevent crimes committed in and by ignorance. In politics, we must allow
that the liberty of the press has its inconveniences; but none of the ills that
flow from it are to be compounded with the evil of censorship.12 Benjamin
Constant quoted precisely this passage in an article written as a reaction to
the re-establishment of partial censorship in February 1820, going further
than Benthams remark:
One can therefore state, with Bentham, that the evil resulting from censorship cannot be measured. It is impossible to say where this evil ends, it
amounts to the threat of opposing all progress of the human mind, in all
walks of life.13
By the 1820s, Benthams defence of the liberty of the press had become
closely attached to that of the freedom of association. On the Liberty of
the Press, originally written for Spain in 1820, was published a year later,
in English only. In his advertisement, Bentham stressed its relevance to
the liberal cause throughout Europe, especially in Britain and in France.
In both countries, ministers were absolute and the press was enslaved.
The purpose of the work, therefore was
the rendering it manifest, how indispensable, at all times and every where,
those two intimately-connected liberties the liberty of the press, and the
liberty of public discussion by word of mouth are to every thing that can,
with any propriety, be termed good government.14
The model to be followed was that of the United States, where the government did not have the power to prosecute contrary opinions. He believed
the truth of an alleged libel should be a legal defence and that libel should
be statutorily defined. He distinguished between individual citizens, who
had to be protected against defamation in their private capacity, and functionaries. In their official capacity, these latter should be liable to criticism
11
13
14
180
It is now available in Garanties contre labus de pouvoir et autres ecrits sur la liberte politique. M.-L.
Leroy, trans. (Paris, 2001), 4199.
Correspondence (CW), vol. X, 360. Original in English.
Letters to Count Toreno, in On the Liberty of the Press, and Public Discussion (CW), 113274, esp.
1301, 15779.
181
182
24
S. Romilly, Observations on the Criminal Law of England, as it relates to capital punishments, and on
the mode in which it is executed (London, 1810).
Dumont and Sellon had met during the debates on the Genevan penal code. Following Bentham
and Romilly, Dumont was anxious to have the death penalty abolished in Geneva, but pessimistic
as to the adoption of such a measure. Sellon wrote Dumont a series of letters on abolition in 1828
(BGE, MS Dumont, 77, ff. 1935).
C. Lucas, Du syst`eme penal et du syst`eme repressif en general, et de la peine de mort en particulier (Paris,
1826), lxxvii, 110.
183
This argument indicated what was to become the major dividing line
between the majority of French liberals and Benthamite utilitarianism. To
understand the directions in which this argument unfolded, we must leave
Guizot (who, after 1822, made few references to Bentham) and turn to
circles in which utilitarianism was directly addressed, such as the Groupe
de Coppet and industrialist writers.
25
26
Jeremy Bentham to his fellow-citizens of France, on death punishment, Bowring, vol. I, 52532.
F. Guizot, De la peine de mort en mati`ere politique (Paris, 1822), 1001.
chapter 1 5
Stendhal, Rome, Naples et Florence, 6 August 1817, in Voyages en Italie (Paris, 1989), 155.
Earlier studies include J.R. Dinwiddy, Bentham and the early nineteenth century, The Bentham
Newsletter, 8 (1984), 1532 and M.E.L. Guidi, Principe dutilite et conscience heroque. La reception
184
A utilitarian moment?
185
Sad utility
Germaine de Stael, an old acquaintance of Etienne Dumont, had read the
first articles he had published from Benthams manuscripts in Biblioth`eque
britannique. In On the Current Circumstances Which Can End the Revolution, written in 1797 and published the following year, she noted that she
hoped to find in Bentham, the foundations of the work on legislation and
morals [she] was thinking about.3 By 1802, however, she had come to reject
utilitarianism, a move that coincided with her break with Bonaparte, her
exile from France and her discovery of Kantian principles. In Corinne, or
Italy, published in 1807, she praised disinterestedness as an aesthetic principle, and came down against that arid principle of utility which fertilises
a few more scraps of land but renders barren the vast domain of feeling
and of thought.4
These arguments were repeated and developed in Germany (De
lAllemagne), published in 1813. Throughout this book, idealistic arguments
were presented in favour of aesthetic inspiration, whether in literature,
music or art. Overall, sad utility was constantly opposed to sentiment,
imagination and thought. In a chapter devoted to ethics founded on
personal interest, and probably written in London, she identified the promoters of that moral doctrine as Helvetius, Diderot and Saint-Lambert,
the latter being a poet and Encyclopediste notorious for his materialist
views, and added a footnote in which she discussed Benthams work on
legislation, as published, or rather abstracted, by M. Dumont (i.e. Traites).
Throughout, she opposed interest properly understood to virtue and
duty, the true sources of moral behaviour.5 Utilitarian reasoning was presented as a cold calculation, the negation of inner impulses and religion.
Examining the appeal to utility in morals, she insisted that [t]he conduct of
a man is only truly moral when he esteems as nothing the happy or unhappy
consequences of those actions which his duty has dictated to him.6
Germaine de Stael made direct reference to Traites, singling out
the chapter answering a number of objections against the principle of
3
4
5
6
de luvre de Bentham au XIXe si`ecle, in K. Mulligan and R. Roth, eds., Regards sur Bentham et
lutilitarisme (Geneva, 1993), 2738.
G. de Stael, Des circonstances actuelles qui peuvent terminer la Revolution et des principes qui doivent
fonder la Republique en France (Geneva, 1979), 422.
G. de Stael, Corinne, or Italy, S. Raphael, trans. (Oxford, 1998), 77. See also, I love what is useless,
useless if life is only painful labour for a miserable profit, ibid., 179.
Since the eighteenth century, the phrase interest properly understood (interet bien entendu) referred
to utilitarian arguments in the broadest sense.
G. de Stael, Germany, O.W. Wight and F.M. Muller, trans. (New York, NY, 1864), vol. II, 235.
186
10
De Stael slipped from Bentham to Dumont in her discussion, which is appropriate because the
chapter she discusses was written by Dumont himself (see p. 137).
Quoted in L. Jaume, Lindividu efface, ou le paradoxe du liberalisme francais (Paris, 1997), 65. Jaume
explains the reasons for Constants interest in Benthams theories (915) as does S. Holmes, Benjamin
Constant and the Making of French Liberalism, (New Haven, CT, 1984), 1257.
Bentham alluded to de Staels use of devouement in a letter: being an el`eve of Madame Stael I
am a little afraid of [B. Constant]: fearing lest, instead of the principle of the greatest happiness
of the greatest number, he should be beholding the foundation of good morality including good
politics, in the word devouement: a sort of profession, which it seems to me with some exceptions
no man can be more backward to realise, than those who are most forward to make it; and which
seems to be altogether incompatible with any clear insight into human nature as well as of affording
application and instruction for any useful purpose. Correspondence (CW), vol. XI, 183.
The son of Benthams earlier patron. For a detailed, richly illustrated account of this journey, see N.
King, The airy form of things forgotten: Madame de Stael, lutilitarisme et limpulsion liberale,
Cahiers staeliens, 11 (1970), 526.
A utilitarian moment?
187
imagination, poetry, enthusiasm for the great and the beautiful, of reducing
men to vile arithmetical machines and of deceiving them in morals.11
Duty and conscience were the only sure guides to distinguish right
from wrong. Like de Stael and Constant, Chateaubriand contrasted the
changeability of interest with the immutability of duty. Without the cement
of religion, there could be no common or general interest and individuals
were doomed to oppose each other relentlessly.
Despite their political and philosophical differences, Constant, de Stael
and Chateaubriand all used utilitarianism in a derogatory sense with
reference to recent French history. For de Stael and Constant, the Terror
had been a period in which every crime had been legitimised by misguided
appeals to the terrestrial interests of the people, while refusing to take the
dictates of eternal justice and humanity into account. De Stael repeated
that argument to describe the triumph of Napoleon, who had remained in
power by exalting an abstract national interest above virtue and sympathy.14
For Chateaubriand, whose article (quoted above) was more directly inspired
11
12
13
14
Etienne Dumont to Maria Edgeworth, quoted in King, The airy form of things forgotten, 17.
Jeremy Bentham to Pavel Chichagov, 28 January 1814, to be published in Correspondence (CW),
vol. XIV; and Bowring, vol. X, 467.
F.-R. de Chateaubriand, De la morale des interets et de celle des devoirs, Le Conservateur, 1/10
(1818), 46679, esp. 471.
B. Constant, De lobeissance a` la loi, Mercure de France, vol. IV (8 November 1817), 24455, esp.
251; G. de Stael, Of ethics founded on personal interest, Germany, vol. II, 23138.
188
18
19
A utilitarian moment?
189
20
21
22
of the problem involves considerations alike of prudence and of regard for others. We ought to
ascertain whether there is more danger in obeying the law or in violating it; whether the probable
mischief of obedience is less or greater than the probable mischief of disobedience. Traites, 51n.
The word law is as vague as the word nature: by abusing the first, one overthrows society; by
abusing the second, one tyrannises it, Constant, De lobeissance a` la loi, 250.
G. de Stael, Germany, vol. II. 240. See also: In a word, individuals, considering each other solely as
obstacles or instruments, will hate those who impede them, and will esteem those who serve them,
only as means of their success, 327.
23 Quoted in L. Jaume, Lindividu efface, 75.
Constant, De lobeissance a` la loi, 246, 247n.
190
efforts to disguise the manner in which the pursuit of their sinister interest
went directly opposite to utility, Constant insisted that the security and the
guarantees necessary to happiness could only be provided by speaking of
rights and natural laws. Issues of discourse were not simply formal; they
reached to the heart of what politics was about.
Tell a man: you have the right not to be put to death or despoiled arbitrarily:
you give him a much greater feeling of security and certainty than if you tell
him: it is not useful that you be put to death or despoiled arbitrarily. . . . By
using the language of right, you present an idea that is independent of all
calculation. By using the language of utility, you lead to the questioning of
the thing itself by submitting it to further verification.24
The arguments contained in On obeying the laws were repeated in numerous articles and books in the course of Constants prolific writing career.25
Like him, many French liberals were attached for historical reasons to the
Declaration of the Rights of Man and the Citizen, which they considered
the most important legacy of the Revolution. The reviewer of the second
edition of Tactique, which contained Anarchical Fallacies and Political Tactics, reached radically contrasting judgments on the two essays.
Whereas Benthams argument for a reform of parliamentary procedure was
readily accepted, the section on Anarchical fallacies was strongly attacked:
the author making at every page a sacrifice of reason, logic and the ideas
of liberty he had so far almost always respected.26
Bentham viewed Constants arguments with detachment, complaining
for instance to Dumont that the Frenchman had written another attack
against Saint Utility.27 He constantly publicised his opposition to the
doctrine of natural rights, but in one of his last addresses to the French, he
understood their attachment to the Declaration of the Rights of Man and
the Citizen as a foundational text:
Rights are fictitious entities the people real ones. Realities, on this occasion
as on all others, realities I prefer to fictions even the most innocent ones.
Realities I understand them better. But should my friend say to me Our
24
25
26
27
A utilitarian moment?
191
Despite Constants esteem for Bentham, he did not review any of his
works after 1817.29 The Groupe de Coppets opposition to utility was
influential, for it combined attacks on the anthropological basis on which
Benthams science of man rested with a strong defence of natural rights,
which remained a rallying point among French liberals.
De Stael and Constants position also echoed the shift towards German
idealism in French philosophy. As early as 1819, in his Cours dhistoire de la
philosophie morale, Victor Cousin dismissed the philosophy of sensation as
outdated. He recalled its major figures from Hobbes to Locke to Bentham
in England, and from Condillac to Helvetius to Destutt de Tracy in France,
as illustrious adversaries disarmed by time.30 This statement was far from
being true, however, as debates on the value of utilitarianism in French
politics were to continue throughout the 1820s.
29
30
31
Bowring, vol. XI, 568. In 1825, Bentham had written to Francois Andre Isambert, who had criticised
his position in Annales politiques et diplomatiques: As to your natural right, or natural religion, I
offer my congratulations if you can produce the text in which this is stated, and ask you if you
would kindly have one sent to me, so that I can conform myself to it. But since I never happened
to possess such treasure, the best I could do was to try and increase the sum of happiness as far as
I could, by following my own lights, however feeble. Correspondence (CW), vol. XII, 172. Original
in French.
Bossange wrote to Dumont in June 1822 regretting that Constants promise to review Tactique in
his paper, Le Constitutionnel, was not to be trusted: see BGE, MS Dumont, 74, f. 102.
V. Cousin, Cours dhistoire de la philosophie morale au dix-huiti`eme si`ecle [18191820], in uvres de
Victor Cousin (Brussels, 1841), vol. II, 431.
H. Torombert, Principes du droit politique, mis en opposition avec le Contrat social de J.-J. Rousseau
(Paris, 1825), 6180; Biblioth`eque universelle des sciences, belles-lettres et arts. Serie Litterature (Geneva,
18161835), vol. XXXI, 1826, 1215.
192
34
35
A utilitarian moment?
193
profit. However, his defence of utility as something which must be measured by bon sens (common sense) and which could be opposed neither to
justice nor to honesty, failed to capture the full extent of the critical and
analytical dimensions of the concept in Benthams thought. Says lecture
concluded with a plea for a free press, the only way through which the
people could truly be enlightened. This radical reading was illustrated with
examples showing the corruptive effect of religion on the Italian people
which might easily be read as an allusion to Germaine de Stael, who had
famously praised the mind-elevating beauties of Italy. Against the errors
disseminated by the powerful, clarity of reason and public education were
the only checks.
Say was influential in publicizing Benthams ideas among industrialists, the thinkers who sought to promote political economy as the science
appropriate to the emerging industrial system.36 In the doctrine promoted
by Saint-Simon after 1817, personal interests and economic actions were
closely interrelated. The turn towards industrial production, Saint-Simon
argued, had a wide-ranging impact on the social, political and spiritual
fabric. It was therefore necessary to lay new foundations for our understanding of society. Such an interpretation had its roots, at least in part,
in Says economic theory: by uncovering the principles of production and
exchange, Say had made it possible to understand the principles at work
in moral and political sciences. In 1824, Saint-Simon invited all liberals to rally to the banner of Industrialism, to publicise their belief in
the new social order produced by the Industrial Revolution. Though Say
and his circle (Charles Comte and Charles Dunoyer) eventually broke
with Saint-Simon and his followers (including Saint-Amand Bazard, the
author of the long article on Bentham in the Revue encyclopedique), it
is no coincidence that they all appealed to Bentham in their attempt to
ground political economy on scientific foundations. What must be noted,
however, is that these arguments did not rest on a reading of Benthams
economic writings, strictly speaking. Says interlocutors in economics were
David Ricardo, first, and James Mill, not Bentham.37 When he mentioned
Theorie des peines et des recompenses, it was on secondary topics such as population and not on the main principle laid out by Bentham that capital
limits trade.
36
37
On industrialism, see G. Faccarello and P. Steiner, Interests, sensationism and the science of the
legislator: French philosophie economique, 16951830, European Journal of the History of Economic
Thought, 15 (2008), 123, esp. 19.
S. Hollander, J.-B. Say and the Classical Canon in Economics. The British Connection in French
Classicism (Abingdon, 2005).
194
39
For earlier translations, see p. 207. In Theorie, Dumont had inserted a chapter on usury to take up
Benthams main points on the subject (vol. II, 38094). See also E. Dumont, Compte-rendu de
Defense of Usury, Biblioth`eque universelle, 5 (1817), 311.
Defense de lusure ou Lettres sur les inconvenients des lois qui fixent le taux de linteret de largent,
suivi dun Memoire sur les prets dargent, par Turgot, et precede dune introduction contenant une
dissertation sur le pret a` interet, [Saint-Amand Bazard, trans.] (Paris, 1828), 437. The implications
of a cross-reading of Benthams theories with those of Saint-Simon are worked out in M. Bellet,
Saint-Simonisme et utilitarisme. Saint-Simon lecteur de Bentham in Bentham et la France, 17796;
or, in English by the same author, On the Utilitarian roots of Saint-Simonism: from Bentham to
Saint-Simon, History of Economic Ideas, 17 (2009), 4164. Bazards approach to Benthams text is
pointed out in N. Sigot, An Activist Stance: the 1828 translation of Benthams Defence of Usury, a
paper presented at the Annual Conference of the History of Economic Society (HES), University
of British Columbia, Vancouver, Canada, 2022 June 2013.
A utilitarian moment?
195
41
42
43
E. Harpaz, Le Censeur. Le Censeur Europeen. Histoire dun Journal liberal et industrialiste (Geneva,
2000). Comte and Dunoyers understanding of industrialism had different implications from
Saint-Simons, but rested on a common understanding of the forces at work in an industrial society.
C. Comte, Traite de legislation, ou exposition des lois generales suivant lesquelles les peuples prosp`erent,
deperissent, ou restent stationnaires, 4 vols. (Paris, 1826), vol. I, 41. Comte also defended the Rights
of Man against Benthams refutation, vol. I, 1268.
Bentham to J.-B. Say, 9 September 1828, to be published in Correspondence (CW), vol. XIII. In
Dunoyer, these arguments in favour of the industrial progress of society took on a racist dimension.
He was also critical of Benthams ideas on liberty. See C.-B. Dunoyer, Lindustrie et la morale
considerees dans leurs rapports avec la liberte (Paris, 1825), 424.
For one aspect of this presence, see N. Sigot, Des dangers de lutilitarisme benthamien: les
economistes liberaux francais du XIXe si`ecle face a` Bentham, in Bentham et la France, 20924.
196
44
H. de Balzac, Eugenie Grandet, S. Raphael, trans., C. Prendergast, ed. (Oxford, 1990), 989. Grandet
is faking a stutter as a means to upset his interlocutors.
Epilogue
Bentham in the July Revolution
2
3
4
Bentham to Lafayette, 18 August 1828, to be published in Correspondence (CW), vol. XIII. The issue
of ministerial responsibility stood on an ambiguous footing in the Charter, which led to endless
debates in the French press.
In favour of good government, he wrote to Daniel OConnell on 18 November 1828, Things are
going on swimmingly in France. To be published in Correspondence (CW), vol. XIII.
F. Demier, La France de la Restauration, 850920. For an outline in English, see P. Pilbeam, The 1830
Revolution in France (London, 1991).
For Lafayettes request, see Bowring, vol. IV, 419. In August 1829, Dumont published a two-part
article entitled La possession de colonies est-elle un avantage pour les metropoles?, abstracted from
earlier manuscripts by Bentham. Biblioth`eque Universelle des Sciences, Belles-Lettres et Arts, Cahier
Litterature, vol. XLI, 34976 and vol. XLII, 2748. For the specificity of Benthams positions on
colonies, see J. Pitts, A Turn to Empire, 10322.
In any event, would you like to take a part in [the Panopticon] if adopted at Paris? 1. In the
erection of it? 2. In the management of it by contract? . . . I think there are good hopes of it through
the influence of La Fayette. Bentham to Samuel Bentham, 25 August 1830, to be published in
Correspondence (CW), vol. XIII.
197
198
Epilogue
The same year, even Felix Bodin, the translator of Benthams latest pamphlets into French, pointed out the gradual estrangement between day-today French politics and Benthams thought. He highlighted the difference
between French politicians writing in the midst of events and the theoretical products of a British philosophical mind. He contrasted his own, most
recent, pamphlet with Benthams works:
This is politics accommodated to the character of our Charter and of our
electors. It is middle term and transitional. I think it is what we will do
endlessly in this world. It is no less useful to mankind that such a legislator
6
7
9
10
199
Bodins fatalism clearly showed that the utilitarian moment had passed in
French politics. Soon afterwards new radical ideologies developed and provided a different language for republican reform. Benthams death in 1832
coincided with the adoption of new constitutional principles both in France
and in Britain: on one side of the Channel, the July Revolution gave rise to
a new form of liberal monarchy, while on the other Catholic Emancipation
and the Reform Bill opened a breach in the settlement inherited from the
Glorious Revolution. Benthams uncompromising attitude towards reform
was given further publicity, four years after his death, with the publication
by the Revue de Paris of an essay by German lawyer Edouard Gans under
the title A visit to Bentham. Remembering his dinner at Queens Square
Place in October 1831, Gans pointed out his hosts unfailing reforming
ardour and his poor opinion of the Reform Bill: measures that only signal
a change of decoration and which will only serve to turn this smoky chamber into a parlour where no-one will be better seated.12 On July 6, 1832,
on the very day of Benthams death, the bill received royal assent.
In France as in Britain, utilitarians were critical of the political compromise embodied in the new regimes, but in Britain, a new generation of
politicians continued to appropriate Benthams principles, ensuring that
they continued to play a role in public debate.13 In France, though utility
did not disappear from political discourse altogether, it never became a
rallying point for any political party.
11
12
13
ibid.
E. Gans, Visite a` Jeremie Bentham, La Revue de Paris (1836), vol. XXVII, 21447.
W. Thomas, The Philosophic Radicals: Nine Studies in Theory and Practice 18171841 (Oxford, 1979).
Conclusion
This book has shown how utilitarianism was modified and transformed by
its reception in French and in France. France was a source of inspiration
to Bentham throughout his life. The course of events taking place over the
Channel from the end of the Ancien Regime to the Restoration spurred
him to write on specific legal, political and social issues, thus impacting
the doctrine itself as well as shaping its reception. Such appropriation
was possible because of the philosophers frequent use of Continental
sources and a common political and philosophical vocabulary inherited
from a cosmopolitan Enlightenment movement. Benthamite utilitarianism
was therefore the product of a consistent linguistic, cultural and political
context in continental Europe and not solely in Britain. In order to assess
this, it has been necessary to go beyond the common distinction between
influence and reception to trace a number of appropriations, references
and circulations.
The French context is arguably only one angle from which Benthams
long life and his plethoric writings may be viewed, but it is a meaningful one. In his French manuscripts of the 1780s, as presented in Part II,
Bentham repeatedly compared the law to a forest through which different
paths may be cut, each opening new prospects from which the whole might
be viewed. A similar approach may be taken for the study of his thought.
The French Bentham is not, therefore, and cannot be, the whole Bentham. It is an object created from a specific angle, a decentred view on a
philosopher who was involved in British politics and beyond, a true citizen
of the world. In the 1810s, his prospects opened to the new liberal states
in southern Europe and to Latin America, notably thanks to the notoriety gained by his French books. His position as an international advisor
remained in line with the prescriptions of Voltaire and Helvetius, whose
cosmopolitan visions reached beyond national boundaries. Again, Benthams interest in French thought and affairs is not to be taken as exclusive
of other national traditions. His cosmopolitanism was geographically and
200
Conclusion
201
historically grounded. Other roads have been and will be cut across
the forest of his writings, but no study can be complete without taking
into consideration the place of Britain in the wider world and how this
impacted political ideas and concepts.
Placing the birth of utilitarianism against the background of Enlightenment reform movements also makes clear the continuity between theory
and practice. Benthams position in public life, be it in France or in Britain,
can be best understood as the continuation of a posture shaped by the early
years in which he hoped to be recognised as an enlightened reformer, as
one of the philosophes. He re-wrote and re-shaped his ideas over time for
a variety of readers and with different political objectives, always hoping
to contribute to contemporary debates, both at home and abroad. As the
word publicist itself, as we have seen, had been commonly used in France
since the eighteenth century to describe him, it comes as no surprise that
its first occurrence in English may be traced to the Westminster Review, the
periodical founded by Bentham in 1824.
This detour via France casts light on significant internal issues in Benthams thought. First, it calls for a change of scale for the study of his politics
over sixty eventful years in European history. This book has presented Benthams thought as consistent over time, though modified and enriched by
contemporary events, especially by the transition from the Ancien Regime
to early liberalism in France and in Britain. Benthams own brand of radicalism, it has been shown, did not change much throughout his life. As has
been seen in Part II, its roots can be traced directly to Helvetius who, in
the 1770s, aroused Benthams awareness to the necessity of political reform
and to the forces of resistance that were to be expected. Though present
from the 1770s, this reforming ambition was to prove increasingly operative in Benthams own writings from the 1800s onwards. In politics, the
legacy of Helvetius was truly radical, and was well understood by French
contemporaries both during and after the Revolution. This radicalism
was intrinsically democratic, though the emphasis placed over direct and
immediate popular rule varied over time. It was also mitigated by Benthams constant attention to present happiness and to security of property.
The balance between the two forces changed over time as positions had to
be worked out in precise historical and geographical circumstances.
Benthams place in contemporary politics, from the pre-revolutionary
days to the years of the Restoration, made sense to his French contemporaries who often summed it up as the actualisation of Helvetius, as Parts IV
and V have made clear. The resurgence of debates on interest in nineteenthcentury politics and philosophy and the overwhelmingly negative response
202
Conclusion
Conclusion
203
Benthams death in 1832 did not put an end to debates over utility in
Europe. This book has demonstrated that understanding how utilitarianism was received and formulated in French and in France has important
implications for the study of the doctrine in the nineteenth century. In
Britain, the most widely read version of Benthams works after his death was
Theory of Legislation, an incomplete translation into English of Dumonts
Traites.2 This book was also the first work in which the young John Stuart
Mill studied utilitarianism.3 Beyond Britain, Benthams name and thought
were known throughout the world (including, most importantly, Latin
America) via translations from Dumonts volumes into Spanish.4 The utilitarian tradition remained alive in Mills works, but how the terms of
the French debate over utilitarianism were impacted by John Stuart Mills
writings and their reception in France still is still a topic for study.5
J. Bentham, Theory of Legislation, R. Hildreth, ed. and trans. (London, 1840). The volume was
regularly re-edited throughout the nineteenth century.
See F. Rosen, La dette de Bentham a` legard de Dumont, in Bentham et la France, 946.
See full list in N. Sigot, Bentham et leconomie, appendix III, 21124; and in Chuo University Library,
A bibliographical catalogue of the works of Jeremy Bentham (Tokyo, 1989).
Recent work has cast light on Mills interest in French affairs and on the extent of his cosmopolitanism;
see G. Varouxakis, Mill on Nationality (London, 2002). A study on the reception of Mills thought
in France is overdue.
204
Conclusion
J. Rawls, A Theory of Justice (Cambridge, MA, 1970); B. Williams, Utilitarianism. For and Against,
J.J.C. Smart and B. Williams, eds. (Cambridge, 1973).
M. Foucault, The Birth of Biopolitics. Lectures at the Coll`ege de France, 19781979, A.I. Davidson,
ed., G. Burchell, trans. (Basingstoke, 2008), 2022. For recent reconsiderations of Bentham in this
line, see S.G. Engelmann, Imagining Interests in Political Thought (Durham and London, 2003); A.
Brunon-Ernst, ed., Beyond Foucault. New Perspectives on Benthams Panopticon (Farnham, 2012); and
A. Brunon-Ernst, Utilitarian Biopolitics. Bentham, Foucault and Modern Power (London, 2012).
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Index
225
226
Index
Index
Destutt de Tracy, Victor, 182
DGhies, Hassuna, 171, 178
Diderot, Denis, 36, 185
Directory, 5, 15, 114, 127, 12930, 134, 151, 153
disinterestedness, 18586
Dumont, Etienne, 56, 1314, 93, 97117, 122,
125, 12938, 13945, 15560, 16566, 16971,
181, 18486, 188, 19092, 195, 20203
objections against the principle of utility
answered, 137, 186, 192
Preliminary discourse to Traites de legislation
civile et penale, 134, 136, 14347, 165
Dunkley, Polly, 36
Dunoyer, Charles, 193, 195
Duquesnoy, Adrien, 14748, 153, 157
duty
against interest, 18789, 192
and rights, 121, 124, 130
to obey the laws, 188
Eden, Sir Frederick Morton, 148
elections, 89, 11617, 168
see also, suffrage
Elmsley, Peter, 2627
English law, 4, 19, 56, 6263, 77, 170
see also, customary or common law
enlightened sovereigns, 59, 83, 87
Enlightenment, historiography of, 812
entities, real and fictitious, 4649, 53
Epicureanism, 137
equality, 84, 85, 141, 144, 161
evidence
and law, 59, 16263
and religion, 3233
expectations, 85, 119, 142, 14445, 186
Fenelon, Francois de Salignac de la Mothe,
2223
fictions
rights as, 190
see also, real and fictitious entities
Fievee, Joseph, 15859
Fontanes, Jean Pierre Louis, 158
form and matter of law, 66, 74, 77
Forster, John, 49, 55, 57
Foucault, Michel, 204
Francois de Neufchateau, Nicolas Louis, 147
Franklin, Benjamin, 50, 100
Frederick II of Prussia (the Great), 1, 36, 5960,
65
Frederician Code, 59, 73
Raisons detablir ou dabroger les loix, 81
French Charter of 1814, 198
French language, 24, 9, 19, 2526, 66, 104
227
228
Index
judges, 71
and adjudication, 7273, 82, 143, 18182
and circuit, 109, 111
election of, 108, 11617, 125
sinister interests of, 72
judiciary, organisation of the, 88, 101, 10712,
11819, 131, 162
Jullien, Marc Antoine, 16970, 172, 174,
202
July Revolution, 6, 16, 161, 182, 19899
jurisprudence, 4, 13, 16, 45, 4748, 6164, 66,
70, 76, 81, 90, 120, 133, 140, 187
Justinian
Institutes, 71, 77
Kant, Immanuel, 16, 133, 168, 185
La Combe, 21, 23
La Rochefoucauld dEnville, Louis Alexandre de,
25, 98, 100, 105, 109, 111, 11314
La Rochefoucauld-Liancourt, Francois
Alexandre Frederic de, 100, 11314, 135, 148,
152, 155, 157, 171
Lafayette, Gilbert du Motier de, 122, 161, 163,
17273, 197
Laski, Harold, 8
Lasteyrie, Charles de, 171
Latin America, 23, 13, 165, 173, 200, 203
Le Dieu, Louis, 168
legal reform, v, 4, 26, 29, 41, 50, 55, 5761, 65,
70, 76, 8283, 90, 111, 126, 136, 139, 154,
170
Leopold II, king of Tuscany, 60, 65
liberalism
as a doctrine, 78, 15, 173, 201, 204
in French politics, 161, 168, 17073, 184,
188
liberty, 8, 85, 88, 100, 134
and property, 84
negative definition of, 37
of association, 179
of commerce, 123, 166
of government, 101, 161, 166, 173, 180
of opinion, 87, 180
of religion, 101, 166
of the press, 8890, 105, 16162, 173, 175,
17879, 193
Lind, John, 4, 3539, 41, 53, 63, 120
An Answer to the Declaration of the American
Congress, 37, 39
Letters concerning the present state of Poland,
35, 38
Remarks on the Principal Acts of the Thirteenth
Parliament of Great Britain, 37
Index
Decade Philosophique, 124, 129, 148, 15051,
156, 166, 215
Gazette de Leyde, 104
Journal de lAssemblee Nationale ou Journal
Logographique, 112
Journal de Paris, 157
Journal deconomie politique, 135
Journal des debats, 168
La Minerve Francaise, 177
Le Censeur Europeen, 167, 195
Le Conservateur, 187
Le Mercure de France, 158
Le Moniteur, 104, 138, 155, 157
Le patriote francais, 111
Lettre du Comte de Mirabeau a` ses
Commetans, 110
Revue de Paris, 199
Revue encyclopedique, 169
Oakeshott, Michael, 78
Pag`es, Aimee, 174
Paine, Thomas, 9, 11, 101, 106, 126
Paley, William, 137
Principles of Moral and Political Philosophy,
68
Pannomion, 7071, 79
Panopticon prison, 113, 131, 148, 152, 192, 197,
203
parliamentary reform, 98, 125, 163, 165, 168
patriotism, 100
peace, 16, 95, 98, 10103
and commerce, 102
Penal Code of 1810 (France), 181
penal or criminal law, 5559, 64, 84, 90
Petty, John Henry, styled Lord Wycombe,
second Marquis of Lansdowne, 97, 101, 135,
186
Petty, William, second Earl of Shelburne and
first Marquis of Lansdowne, v, 45, 11, 25,
38, 50, 53, 54, 56, 62, 65, 67, 93, 95, 97104,
106, 110, 11315, 122, 126, 129, 147
philanthropy, 136, 14748, 17071, 181
philhellenism, see Greece
Pictet, Charles, 131
Pictet, Marc Auguste, 13133, 184
Pilati di Tassullo, Carlo Antonio, 64
Pingeron, Jean Claude, 26
Pitt, William, 103
Place, Francis, 166
pleasure and pain, 43, 50, 84, 137, 186
Poland, 3536, 69, 212
Poniatowski, Stanislaw Augustus, king of
Poland, 35, 69
229
230
Index
Unitarians, 11
United States of America, 5, 13, 70, 120, 160, 179
Universal Grammar, 25
usury, 19495
utilitarianism
and religion, 34
as a doctrine, 12, 4, 7, 16, 36, 41, 132, 136,
162, 164, 185, 188, 191, 20004
French, 5, 70, 199
rule vs. act, 137
utility, principle of, 4, 22, 39, 42, 44, 53, 80, 132,
136, 142, 184, 189, 192
Vaughan, Benjamin, 93, 97, 99100, 10304, 113
Venturi, Franco, 9
Volney, Constantin-Francois Chassebuf de La
Giraudais, comte Volney, dit, 124
Voltaire, Francois Marie Arouet, dit, 1, 3, 1011,
23, 25, 28, 3033, 3839, 4142, 45, 5053,
5860, 72, 105, 137, 159, 200
Essay on Manners, 23
Le Taureau Blanc (The White Bull), 25, 28,
3031
Philosophical Dictionary, 31, 72
Prix de la justice et de lhumanite, 60
Westminster School, 3, 23
Whiggism, 8, 165, 184
Wilberforce, William, 101, 103, 147
Wilson, George, 27, 67, 99, 104
Wollstonecraft, Mary, 11
Woolston, Thomas, 31
Wright, Frances, 173
Young, Arthur, 147
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That Noble Dream
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Essays on French political culture in the eighteenth century
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19 d or ot hy r os s
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21 i a n m a c l e a n
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From Politics to Reason of State
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27 r i c h a r d y e o
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30 c h r i s t o p h e r j. be r r y
The Idea of Luxury
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31 e . j . h u n d e r t
The Enlightenments Fable
Bernard Mandeville and the Discovery of Society
hb 978 0 521 46082 8
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32 j u l i a s t a p l e t o n
Englishness and the Study of Politics
The Social and Political Thought of Ernest Barker
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33 kei t h t r ibe
Strategies of Economic Order
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34 s a c h i k o ku s u k a w a
The Transformation of Natural Philosophy
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35 d a v i d a rm ita ge , a r m a n d h i m y a n d qu e n t i n s k i n n e r (eds.)
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36 m a r k k u p e l t o n e n
Classical Humanism and Republicanism in English Political Thought
15701640
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37 philip ironside
The Social and Political Thought of Bertrand Russell
The Development of an Aristocratic Liberalism
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Otto Neurath:
Philosophy between Science and Politics
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39 d ona l d w i nch
Riches and Poverty
An Intellectual History of Political Economy in Britain, 17501834
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40 j e n n i f e r p l a t t
A History of Sociological Research Methods in America
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Enlightenment and Religion
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42 g . e . r . l l o y d
Adversaries and Authorities
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The Reportage of Urban Culture
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Liberty, Right and Nature
Individual Rights in Later Scholastic Thought
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William Robertson and the Expansion of Empire
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46 h e l e n a r o s e n b l a t t
Rousseau and Geneva
From the First Discourse to the Social Contract, 17491762
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47 d a v i d r un cim a n
Pluralism and the Personality of the State
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48 a n n a b e l pa t t e r s o n
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49 d a v i d we i n s t e i n
Equal Freedom and Utility
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Pedagogy and Power
Rhetorics of Classical Learning
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51 r e v i e l n e t z
The Shaping of Deduction in Greek Mathematics
A Study in Cognitive History
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Models as Mediators
Perspectives in Natural and Social Science
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53 j oe l m i c h ell
Measurement in Psychology
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54 r i c h a r d a . pr i m u s
The American Language of Rights
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55 r o b e r t a l u n j o n e s
The development of Durkheims Social Realism
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56 a n n e m c l a r e n
Political Culture in the Reign of Elizabeth I
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57 j a m e s h a n k i n s (ed.)
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58 t . j . h o c h s t r a s s e r
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60 i a n h u n t e r
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Civil and Metaphysical Philosophy in Early Modern Germany
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62 i a n m a c l e a n
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63 p e t e r m a c k
Elizabethan Rhetoric
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64 g e o f f r e y l l o y d
The Ambitions of Curiosity
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65 m a r k k u p e l t o n e n
The Duel in Early Modern England
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66 a d a m s u t c l i f f e
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67 a n d r e w f i t z m a u r i c e
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68 p i e r r e f o r c e
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69 e r i c n e l s o n
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70 h a r r o h o p f l
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71 m i k a e l h o r n q v i s t
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72 david colclough
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73 j ohn r oberts on
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74 d a n i e l c a r e y
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75 a l a n c r o m a r t i e
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76 h a n n a h d a w s o n
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The Nature of a Contested Identity
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78 a n g u s g o w l a n d
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79 p e t e r s t a c e y
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80 r h o d r i l e w i s
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81 d a v i d l e opold
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German Philosophy, Modern Politics, and Human Flourishing
hb 978 0 521 87477 9
82 jon parkin
Taming the Leviathan
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83 d we i n s t e i n
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84 l u c y d e l a p
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85 b o r i s wi s e m a n
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86 d u n c a n b e l l (ed.)
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87 i a n h u n t e r
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hb 978 0 521 88055 8
88 c h r i s t i a n j e m d e n
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hb 978 0 521 88056 5
89 a n n e l i e n d e d i j n
French Political thought from Montesquieu to Tocqueville
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hb 978 0 521 87788 6
90 p e t e r ga r n s e y
Thinking About Property
From Antiquity to the Age of Revolution
hb 978 0 521 87677 3
pb 978 0 521 70023 8
91 p e n e l o p e d e u t s c h e r
The Philosophy of Simone de Beauvoir
Ambiguity, Conversion, Resistance
hb 978 0 521 88520 1
92 h e l e n a r o s e n b l a t t
Liberal Values
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hb 978 0 521 89825 6
93 j a m e s t u l l y
Public Philosophy in a New Key
Volume 1: Democracy and Civic Freedom
hb 978 0 521 44961 8
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94 j a m e s t u l l y
Public Philosophy in a New Key
Volume 2: Imperialism and Civic Freedom
hb 978 0 521 44966 3
pb 978 0 521 72880 5
95 d on a l d win ch
Wealth and Life
Essays on the Intellectual History of Political Economy in Britain, 18481914
hb 978 0 521 88753 3
pb 978 0 521 71539 3
96 f o n n a f o r m a n - b a r z i l a i
Adam Smith and the Circles of Sympathy
Cosmopolitanism and Moral Theory
hb 978 0 521 76112 3
97 g r e g o r y cl a e y s
Imperial Sceptics
British Critics of Empire 18501920
hb 978 0 521 19954 4
98 e d w a r d b a r i n g
The Young Derrida and French Philosophy, 19451968
hb 978 1 107 00967 7
99 c a r o l pa l
Republic of Women
Rethinking the Republic of Letters in the Seventeenth Century
hb 978 1 107 01821 1
100 c . a . b a y l y
Recovering Liberties
Indian Thought in the Age of Liberalism and Empire
hb 978 1 107 01383 4
pb 978 1 107 60147 5
101 f e l i c i t y gr e e n
Montaigne and the Life of Freedom
hb 978 1 107 02439 7
102 j o s h u a d e r m a n
Max Weber in Politics and Social Thought
From Charisma to Canonization
hb 978 1 107 02588 2
103 r a i n e r f o r s t
(translated by Ciaran Cronin)
Toleration in Conflict
Past and Present
hb 978 0 521 88577 5
104 s o p h i e r e a d
Eucharist and the Poetic Imagination in Early Modern England
hb 978 1 107 03273 6
105 m a r t i n r u e h l
The Italian Renaissance in the German Historical Imagination 18601930
hb 978 1 107 03699 4