第15章 Reform Movements(3)

Romilly was Bentham's earliest disciple (so Bentham said),and looked up to him with 'filial reverence.'Every 'reformatiuncle'introduced by Romilly in parliament had been first brought to Bentham,to be conned over by the two.4With great difficulty Romilly had got two or three measures through the House of Commons,generally to be thrown out by Eldon's influence in the Lords.5After Romilly's death in 1818,the cause was taken up by the Whig philosopher,Sir James Mackintosh,and made a distinct step in advance,though there were still obstacles in the upper regions,a committee was obtained to consider the frequency of capital punishment,and measures were passed to abolish it in particular cases,Finally,in 1823,the reform was adopted by Peel.Peel was destined to represent in the most striking way the process by which new ideas were gradually infiltrating the upper sphere.Though still a strong Tory and a representative of the university of Oxford,he was closely connected with the manufacturing classes,and had become aware,as he wrote to Croker (23rd March 1820),that public opinion had grown to be too large for its accustomed channels.

As Home Secretary,he took up the whole subject of the criminal law,and passed in the next years a series of acts consolidating and mitigating the law,and repealing many old statutes.A measure of equal importance was his establishment in 1829of the metropolitan police force,which at last put an end to the old chaotic muddle described by Colquhoun of parish officers and constables.Other significant legal changes marked the opening of a new era.Eldon was the very incarnation of the spirit of obstruction;and the Court of Chancery,over which he presided for a quarter of a century,was thought to be the typical stronghold of the evil principles denounced by Bentham,An attack in 1823upon Eldon was made in the House of Commons by John Williams (1777-1846),afterwards a judge.Eldon,though profoundly irritated by the personal imputations involved,consented to the appointment of a commission,which reported in 1825,and recommended measures of reform.

In 1828,Brougham made a great display upon which he had consulted Bentham.6In a speech of six hours'length he gave a summary of existing abuses,which may still be read with interest.7Commissions were appointed to investigate the procedure of the Common Law Court and the law of real property,Another commission,intended to codify the criminal law,was appointed in 1833,Brougham says that of 'sixty capital defects'described in his speech,fifty-five had been removed,or were in course of removal,when his speeches were collected (i.e.1838).Another speech of Brougham's in 1828dealt with the carrying into execution of a favourite plan of Bentham's --the formation of local courts,which ultimately became the modern county courts.8The facts are significant of a startling change --no less than an abrupt transition from the reign of entire apathy to a reign of continuous reform extending over the whole range of law.The Reform Bill accelerated the movement,but it had been started before Bentham's death.The great stone,so long immovable,was fairly set rolling.

Bentham's influence,again,in bringing about the change is undeniable.He was greatly dissatisfied with Brougham's speech,and,indeed,would have been dissatisfied with anything short of a complete logical application of his whole system.He held Brougham to be 'insincere,'9a trimmer and popularity-hunter,but a useful instrument,Brougham's astonishing vanity and self-seeking prompted and perverted his amazing activity,He represents the process,perhaps necessary,by which a philosopher's ideas have to be modified before they can be applied to practical application.Brougham,however,could speak generously of men no longer in a position to excite his jealousy.

He says in the preface to his first speech that 'the age of law reform and the age of Jeremy Bentham'were the same thing,and declares Bentham to be the 'first legal philosopher'who had appeared in the world.As the chief advocates of Bentham he reckons Romilly,his parliamentary representative;Dumont,his literary interpreter;and James Mill,who,in his article upon 'jurisprudence,'had popularised the essential principles of the doctrine.

The Utilitarians had at last broken up the barriers of obstruction and set the stream flowing.Whigs and Tories were taking up their theories.They naturally exaggerated in some respects the completeness of the triumph.The English law has not yet been codified,and it was characteristic of the Benthamite school to exaggerate the facility of that process,in their hatred of 'judge-made law'they assumed too easily that all things would be arranged into convenient pigeon-holes as soon as 'Judge and Co.'were abolished.It was a characteristic error to exaggerate the simplicity of their problem,and to fail to see that 'judge-made'law corresponds to a necessary inductive process by which the complex and subtle differences have to be gradually ascertained and fitted into a systematic statement.One other remark suggests itself,the Utilitarians saw in the dogged obstructiveness of Eldon and his like the one great obstacle to reform.It did not occur to them that the clumsiness of parliamentary legislation might be another difficulty.They failed to notice distinctly one tendency of their reforms.To make a code you require a sovereign strong enough to dominate the lawyers,not a system in which lawyers are an essential part of a small governing class.Codification,in short,means centralisation in one department.Blindness to similar results elsewhere was a characteristic of the Utilitarian thinkers.