The Cambridge History of English and American Literature in 18 Volumes (1907–21).
Volume XI. The Period of the French Revolution.
§ 4. A Fragment on Government; Sir William Blackstone’s Commentaries
Bentham’s Fragment on Government is the first attempt to apply the principle of utility in a systematic and methodical manner to the theory of government; it takes the form of “a comment on the Commentaries”—a detailed criticism of the doctrine on the same subject which had been set forth in Blackstone’s famous work. Sir William Blackstone was born in 1723; he practised at the bar, lectured on the laws of England at Oxford, and, in 1758, was appointed to the newly-founded Vinerian professorship of law; in 1770, he was made a judge, first of the court of king’s bench, afterwards of the court of common pleas; he died in 1780. He edited the Great charter and was the author of a number of Law Tracts (collected and republished under this title in 1762); but his fame depends upon his Commentaries on the Laws of England, the first volume of which appeared in 1765 and the fourth and last in 1769. It is a work of many conspicuous merits. In it, the vast mass of details which makes up the common and statute law is brought together and presented as an organic structure; the meaning of each provision is emphasised, and the relation of the parts illustrated; so that the whole body of law appears as a living thing animated by purpose and a triumph of reason. The style of the book is clear, dignified and eloquent. Bentham, who had heard Blackstone’s lectures at Oxford, says that he, “first of all institutional writers, has taught jurisprudence to speak the language of the scholar and the gentleman.” These merits, however, were accompanied by defects, less obvious to the general reader. The author was more prone to see similarities than differences. His analytical power has been praised; but it was inadequate to the conceptions with which he had to deal. His treatment of natural law, in the second section of the introduction, is a case in point; another instance is the discussion of society and the original contract which Bentham criticises. His emphasis on meaning and purpose adds interest to his exposition, and shows insight into the truth that law is not a haphazard collection of injunctions and prohibitions; but this conception also leads him astray; he does not distinguish clearly enough historical causes from logical grounds; his exposition takes on the character of an encomium; and he is too apt to discover, at every point of the English constitution, “a direction which constitutes the true line of the liberty and happiness of the community.”
In the preface to his Fragment, Bentham offers a criticism of the Commentaries in general; but the body of his work is restricted to an examination of a few pages, of the nature of a digression, which set forth a theory of government. In these pages, Blackstone gave a superficial summary of the nature and grounds of authority, in which the leading conceptions of political theory were used with more than customary vagueness. Bentham finds the doctrine worse than false; for it is unmeaning. He wishes “to do something to instruct, but more to undeceive, the timid and admiring student, … to help him to emancipate his judgment from the shackles of authority.” He insists upon a precise meaning for each statement and each term; and, while he reduces Blackstone’s doctrine to ruins, he succeeds, at the same time, in conveying at least the outline of a definite and intelligible theory of government. There are two striking characteristics in the book which are significant for all Bentham’s work. One of these is the constant appeal to fact and the war against fictions; the other is the standard which he employs—the principle of utility. And these two are connected in his mind: “the footing on which this principle rests every dispute, is that of matter of fact.” Utility is matter of fact, at least, of “future fact—the probability of certain future contingencies.” Were debate about laws and government reduced to terms of utility, men would either come to an agreement or they would “see clearly and explicitly the point on which the disagreement turned.” “All else,” says Bentham, “is but womanish scolding and childish altercation, which is sure to irritate, and which never can persuade.”
In an interesting footnote, Bentham gives an account of the way in which he arrived at this principle. Many causes, he tells us, had combined to enlist his “infant affections on the side of despotism.” When he proceeded to study law, he found an “original contract” appealed to “for reconciling the accidental necessity of resistance with the general duty of submission.” But his intellect revolted at the fiction.