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American Political Science Review, 35 (5)

October, 1941

* Stanford University

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Bentham’s concepts of natural law and natural rights

Obstacles to Benthamism in America

Reaction to Benthamism in America

American vs. English response to the French Revolution


HHC: Index and titling added


The main purpose of this paper is not so much to measure the impact of utilitarianism on American political thought as to explain why utilitarian influence was so slight.  The question I am seeking to answer may be phrased as follows: How did it come about that utilitarianism, the main current in English thought for two or three generations, was little more than a series of ripples, or at most a weak cross-current, on this side of the Atlantic?  The problem becomes more puzzling when one reflects that the period of the rise and growth of utilitarianism in England (the first three or four decades of the nineteenth century) was an era in which intellectual relations between the two countries were especially close and one in which movements of political and social reform ran parallel courses.  Quite reasonably, too, one might suppose that the qualities of Bentham’s thought which contributed to its spread in England would have insured its enthusiastic reception here.  A doctrine which contemptuously rejected tradition, preached hard­headed, calculating practicality, conceived of the individual as an isolated atomistic unit, and which in all its aspects and phases appealed to the virtues and limitations of the middle-class man of affairs - such a doctrine, one might think, would have flourished on nineteenth-century American soil.

As preliminary to a direct attack on the problem, some definitions or distinctions are in order.  “When I mention religion,” said Parson Thwackum, “I mean the Christian religion; and not only the Christian religion, but the Protestant religion; and not only the Protestant religion, but the Church of England.  “Likewise, when I mention utilitarianism, I mean Benthamism; and not only Benthamism, but crude Benthamism; and not only crude Benthamism,


but that part of it which opposes to natural law and natural rights the principle of utility or greatest happiness.  To be more explicit, in distinguishing between utilitarianism and Benthamism, I am excluding from consideration the influence upon American thought (which was no doubt very marked) of such utilitarian treatises as Paley’s Moral and Political Philosophy.  Nor is it part of my purpose to analyze the relation to American theory of that refinement or adulteration of crude Benthamism represented by the writings of John Stuart Mill.  My discussion of Bentham’s theory of rights will, however, necessitate some reference to John Austin’s treatises on jurisprudence.

Bentham’s concepts of natural law and natural rights

Still by way of introduction, it is necessary to touch briefly on the development of Bentham’s concepts of natural law and natural rights.  I say “development”; but, speaking strictly, there was only a series of restatements, covering a period of more than half a century, of the doctrine set forth in the Fragment on Government (1776).  The character of Bentham’s thought as a whole, to be sure, underwent important modifications.  Thus until about 1808 he was much more interested in legal and penal reform than in political theory; and despite his association with Lord Lansdowne and other Whig leaders, he remained a Tory in politics.  In 1808, as a result of the Panopticon fiasco and of his association with James Mill, he turned his attention to political questions; and within two or three years he became a champion of parliamentary reform, universal suffrage, and radical republican democracy. [1]  It may be added that he also became an admiring student of what he called the “United States representative democracy”.  But although he thus came to accept the program, he persisted to the end in his rejection of the principles of the exponents of natural rights.  If, as John Morley said, Burke changed his front but never changed his ground, of Bentham it might truly be remarked that he changed his ground but did not change his front.

In order to document this remark and to provide a background for my main thesis, I must deal, however briefly, with the complicated and wearisome topic of Benthamite bibliography. [2]  Although

1. See Elie Halevy, The Growth of Philosophical Radicalism, English translation by Mary Morris (New York, 1928), pp. 251-264.

2. See Halevy, op. cit., pp. 522-545 (annotated bibliography by C. W. Everett), and Leslie Stephen, The English Utilitarians (3 vols., London, 1900), Vol. 1, pp. 319-326.


Bentham was a constant and indefatigable writer, he published (or others published for him) spasmodically, belatedly, and bilingually - a fact not wholly without bearing on the nature of his influence here and elsewhere.  In the first and most readable of his productions (published anonymously), the famous Fragment, he grounded his criticism of Blackstone on the utility or greatest-happiness principle, rejected natural rights by implication, and expressly rejected the law of nature as “an abuse of language”. [3]  Once its authorship was disclosed, the Fragment gave Bentham a temporary fame in his own country, and won him influential friends; but it seems to have been almost entirely ignored on this side of the ocean.  Certainly it did nothing to lessen the tremendous vogue of the Commentaries here; and I find no reference to it in American political literature prior to 1873.  “For the philosophy of law,” wrote Oliver Wendell Holmes, Jr., in that year, “the Fragment on Government and Austin’s lecture are worth the whole corpus” [of Roman law!] [4]  The Introduction to the Principles of Morals and Legislation (printed in 1780, but not published until 1789) made no great splash on either side of the water.  Some years after its publication, one American Benthamite said that not four of his countrymen had read it. [5]  The treatise was a systematic presentation of the doctrine of utility, and was concluded with a long footnote (and a footnote on the footnote!) in refutation of the American theory of natural rights as embodied in the Declaration of Independence and the Bills of Rights.  “Who can help lamenting,” asked the author, “that so rational a cause should be rested upon reasons so much fitter to beget objections than to remove them?” [6]

The nature of these objections he expounded in detail in the Anarchical Fallacies, written in 1791 as a commentary on the Declaration of the Rights of Man, but not published in French until 1816

3. The Fragment forms pp. 221-295 of Vol. 1 of J. Bowring (ed.), Works of Jeremy Bentham (11 vols., Edinburgh, 1838-1843).

4. In American Law Review, Vol. 7 (1873), p. 579 - reprinted in Harry C. Shriver (ed.), Justice Oliver Wendell Holmes - His Book Notices, Uncollected Letters, and Papers (New York, 1936), pp. 34-35.  On the popularity of the Commentaries, see Julian S. Waterman, “Thomas Jefferson and Blackstone’s Commentaries,” Illinois Law Review, Vol. 27, pp. 629-659 (Feb., 1933).  I owe this latter reference to Professor C. B. Robson, of the University of North Carolina.

5. “Burr said he knew not four persons in America who had read the Principles.” Dumont to Bentham, September 4, 1811. Works of Jeremy Bentham, Vol. 10, p. 463.

6. Works, Vol. 1, p. 154.


and in English until a quarter of a century later. [7]  Talk about natural rights, he exclaimed, is bawling upon paper. [8]  Such talk is at once illogical and mischievous: illogical, because all rights are the creatures of government; mischievous, because its object is “to add to those [selfish and dissocial] passions already but too strong - to burst the bonds that hold them in - to say to the selfish passions, there, everywhere is your prey! - to the angry passions, there, everywhere, is your enemy!” [9]  “Natural rights,” so the famous passage runs, “is simple nonsense; natural and imprescriptible rights, nonsense upon stilts…” [10]  “From real laws”, Bentham adds, “come real rights; but from imaginary laws, laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters, gorgons and chimaeras dire”. [11]  Again, in the Traites de legislation (1802), in Dumont’s lucid French, he denounced natural rights as the creatures of natural law, as a “metaphor which derives its origin from another metaphor,” and as “the most terrible destroyer of governments”. [12]  Dumont, who edited, translated, and published this treatise, sent a copy of it to his old schoolmate in Geneva, Albert Gallatin; and we know that it was read by several other Americans within a few years of its publication. [13]  The bulk of it was not translated into English, however, until 1840 - and then by an American, Richard Hildreth, whom we shall shortly discuss.

Up to this point, as we have seen, Bentham was a Tory; but after he became the leader of the philosophical radicals he persisted in his denunciation of natural rights.  Thus in his Plan of Parliamentary Reform (1817), while accepting the conclusions, he attacked the premises of the Duke of Richmond’s case for universal suffrage. “Some ipse-dixitism in it about rights might, in point of reasoning, though not perhaps in point of power of persuasion, have been spared”. [14]  Again, in a letter to Bowring, written in 1827, he referred to the Declaration of Independence as a “hodge-podge of confusion and absurdity” ; [15] and in the Constitutional Code (1830), he dismissed bills of rights as useful only as a check upon non-

7. Tactique des Assembles legislatives, suivie d’un traite des sophismes politiques (ed. Dumont, 2 vols., Geneva, 1816); Works, Vol. 2, pp. 489-534.

8. Works, Vol. 2, p. 497.

9. Ibid., p. 497.

10. Ibid., p. 501.

11. Ibid., p. 523.

12. Traites de legislation (2nd ed., 3 vols., Paris, 1820), Vol. 1, pp. 128 and 129.

13. See discussion and references below.

14 .Works, Vol. 3, p. 446.

15. Ibid., Vol. 10, p. 63.


democratic governments, and rejected limitations on “legislative omnicompetence” as “in contradiction to the greatest happiness principle.” [16]  To this dreary catalogue, already too long, it must be added that Austin’s Province of Jurisprudence Determined (1832), the dullest book Lord Melbourne ever read, made as little impression here as in England, and that his theory attracted little attention until the publication, posthumously, in 1863, of the Lectures on Jurisprudence.  Finally, it is to be noted that many of Bentham’s writings, including some of those mentioned above, did not appear in English until the publication, a decade after his death, of Bowring’s edition of the Works.  How extensively these formidable and carelessly edited tomes were purchased and read in the United States, I cannot say; but it may be worthy of note that I find no review of them in an American periodical until some twenty years after their publication - and that it was unfavorable in the extreme. [17]


Obstacles to Benthamism in America

From the foregoing it is fair to infer that such of Bentham’s writings as were known in this country by about 1860 were not in themselves capable of arousing and sustaining widespread interest in utilitarian doctrine.  There were, indeed, several obstacles in the way of its spread.  One was an odium theologicum; there were rumors that Bentham was an atheist.  Frequently accompanying this accusation was the charge that some of his disciples, notably Francis Place, were preaching infanticide. [18]  The most serious obstacle, however, was Bentham’s style.  “We could have wished,” wrote Thomas Cooper (an otherwise friendly critic) in a review of the Rationale of Judicial Evidence, “that the present editor [young John Stuart Mill] had translated the work out of the obscure, involuted Bentham dialect in which it is written.  A book more disgustingly affected and so nearly unintelligible it is not possible to imagine, with the exception of some of Mr. Bentham’s former works, which equally exhibit specimens of what may, by courtesy to Mr. Bentham, be called English, but on no other score.” [19]

16. Ibid., Vol. 9, p. 119.

17. “Jeremy Bentham and His Theory of Legislation,” National Quarterly Review, Vol. 3, pp. 51-71 (June, 1861).

18. See John Neal, Principles of Legislation… (Boston, 1830), p. iv (Bentham’s theology) and p. 120 ff. (with particular reference to Francis Place’s handbills on birth control); and Hugh Swinton Legare, “Jeremy Bentham and the Utilitarians”, Southern Review, Vol. 7, pp. 261-296 (Aug., 1831).

19. Southern Review, Vol. 5, pp. 381-426 (May, 1830), at p. 381. Cf. C. W. Everett, [Introduction, Anti-Senatica: An Attack on the United States Senate, sent by Jeremy Bentham to Andrew Jackson, in Smith College Studies in History, Vol. 11, pp. 209­267 (July, 1926), at p. 220:  “His [Bentham’s] later works are generally consulted only by the determined scholar who will bear with the form for the matter… Whether Bentham’s direct pamphleteering had any effect on America, it is impossible to say without research, but the Anti-Senatica gives some indication as to why it probably did not.”]

HHC: [bracketed] displayed on p.860 of original.


It is therefore clear that only authoritative and influential supporters, able expositors and translators, could propagate Benthamism in this country; and to account for the failure of the doctrine to deflect the course of American thought, I want to suggest, in the first place, that Bentham was as unfortunate in his American as he was fortunate in his English disciples.  Halevy instances Bentham’s chance meeting with Dumont at Bowood Castle in 1788 as “a typical case revealing the influence on history of little causes and individual accidents”; [20] and one might similarly characterize the meeting with James Mill some two decades later.  Such “causes and accidents,” it may be repeated, were unfavorable to the diffusion of Benthamism in America.  In evidence, let us call the roll of the American Benthamites.  It will not take long.

The first of these was Aaron Burr.  It is uncertain when Burr became and how long he remained a Benthamite, and it is doubtful whether he was ever a genuine believer.  We do know that he owned the Introduction; and it is recorded that in 1793 he passed on his copy of it to Albert Gallatin with the remark “Here, this will please you - it is too dry for me !” [21]  In 1808, Burr met Dumont in London, assured him that he had read the Introduction and the Usury, and added that “in spite of his recommendation they were little read in America, where anything requiring studious application is neglected.  Nobody but Gallatin felt all their merit; and Gallatin was the best head in the United States.”

On the strength of this, Dumont urged Bentham to meet the American, adding: “You may tell me his duel with Hamilton was a savage affair, but he has no desire to break your head.” [22]  Thus announced, Burr readily ingratiated himself with Bentham, and lived with (or sponged off) the old man for several months.  “I am going to dine with Jeremy Bentham and Colonel Burr,” wrote a contemporary, “and am very curious to see what sort of mixture will result from putting together pure philosophy and Yankee

20. Op. cit., p. 75.

21. Neal, op. cit., p. 111.

22. Works, Vol. 10, p. 433.


treason.” [23]  One result was that for a time Bentham seriously entertained the idea of emigrating to Mexico, there to serve as lawgiver in the imperial domain of Emperor Aaron I. [24]  Another was that Burr made at least one convert to Benthamism, his own daughter.  To Theodosia he sent all of Bentham’s published works and a bust of the philosopher, [25] and in acknowledgment of receipt of the bulky package, she wrote as follows: “I have read a small part of the Traites de legislation.  The work is highly original.  It is truly calculated to make readers think profoundly, and gives a new direction to their reflections.  Jeremy Bentham has opened a new and deeper vein of political and moral science, to bring from it the most brilliant diamonds.  Such a mind as his is not produced in many centuries.  I imagine he has reached the ne plus ultra, the border of the Styx, and no one can go further without becoming an inhabitant of the other world…  I should take as much pride in being his translator as the ancients did in declaring themselves oracles of their gods.” [26]

Whether Burr’s intellectual and glamourous daughter maintained such a worshipful attitude for the few remaining years of her life, I cannot say.  Burr himself, while on his Continental travels, set down in his journal a critical comment relative to a French treatise on natural law: “Petty and ingenious nonsense… not naming Bentham,” he wrote. [27]  On his return to England in 1811, he took part in the Benthamite campaign to spread the Lancasterian system of education. [28]  There is no evidence that on his return to his native land the following year he made any attempt to diffuse utilitarian doctrine, and it goes without saying that he was not of the stuff of which the Mills were made.

There were, however, other Benthamites.  Mention has already been made of Gallatin, who also planned, but never executed, a

23. F. Homer, Memoirs and Correspondence, Vol. 1, p. 464. (letter dated October 27, 1808), quoted in Elie Halevy, La Formation du radicalisme philosophique (3 vols., Paris, 1901-1904), Vol. 2, p. 364.  The English translation of this work, previously cited, does not contain the extensive footnote references in which the passage quoted above will be found.

24. Works, Vol. 10, p. 439.

25. Samuel H. Wendell and Meade Minnegerode, Aaron Burr (2 vols., New York and London, 1925), Vol. 2, p. 240.

26. Matthew L. Davis (ed.), The Private Journal of Aaron Burr (2 vols., New York, 1838), Vol. 1, p. 114.

27. Ibid., p. 231.

28. Halevy, La formation du radicalisme philosophique, Vol. 2, p. 364.


translation of one of Dumont’s redactions. [29]  Edward Livingston, the Louisiana lawgiver, avowed himself a disciple, corresponded with the master, and in the introduction to the famous Louisiana penal code paid tribute to the principle of utility; but he seems to have been unaffected by Bentham’s political doctrine and himself made no contribution to political theory. [30]  Thomas Cooper became a utilitarian of a sort as early as 1812; and in 1826, in the Elements of Political Economy, he rejected both natural rights and natural law.  “All rights are the creatures of society; founded on their real or supposed utility, and requiring the force of society to protect them…  There is no such thing as law of nature or law of nations existing.” [31]  In the review previously referred to, he praised the substance, even as he deplored the style, of the Rationale; and in his 1832 “Introductory Lecture to a Course of Law” he declared: “The polar star of morals and law is the greatest happiness of the greatest number.” [32]  But he did not live to develop the doctrine or found a school, and in any case his use of the greatest-happiness principle to vindicate slavery would have prevented him from exerting a truly national influence.

Our next Benthamite is one who, like Burr, was privileged to draw his inspiration from the lips of the master himself ; one might call him a Down-East Yankee at the court of King Jeremy.  In 1824, John Neal of Portland, Maine, went to England to make his fortune.  He had already won some reputation as a novelist and, what is to the point here, had read some of Bentham’s treatises.

29. Works of Jeremy Bentham, Vol. 3, p. 468.

30. For the brief reference to the utility principle, see Complete Works of Edward Livingston on Criminal Jurisprudence (2 vols., New York, 1873), Vol. 1, p. 189.  On Livingston’s indebtedness to Bentham, see Jesse S. Reeves, “Jeremy Bentham and American Jurisprudence,” Report… State Bar Association of Indiana (1906), pp. 212-237; C. W. Everett, op. cit. (introduction to Anti-Senatica); Paul Brosman, “Edward Livingston and Spousal Testimony in Louisiana”, Tulane Law Review, Vol. 11, pp. 243-265 (Feb., 1937); Mitchell Franklin, “Concerning the Historic Importance of Edward Livingston” ,ibid., pp. 163-212; Roscoe Pound, The Formative Era of American Law (Boston, 1938), especially pp. 16,167.  The lectures constituting Dean Pound’s book “were delivered at the law school of Tulane University on the occasion of the centennial of the death of Edward Livingston.”

31. Elements of Political Economy (Columbia, 1826), pp. 52-53.  See B. F. Wright, Jr., American Interpretations of Natural Law (Cambridge, 1931), pp. 308-310; and Maurice Kelley, “Additional Chapters on Thomas Cooper, University of Maine Studies, 2nd series, No. 15 (Orono, 1930), pp. 5-100, especially p. 80.

32. Quoted in Dumas Malone, Public Life of Thomas Cooper (New Haven, 1926), p. 370.


Indeed he had offered to translate one of the Dumont redactions; but the American publisher refused, “alleging that no one knew Mr. Bentham”. [33]  Living in London as a free-lance contributor to the English reviews, Neal attended one of the meetings of the Utilitarian Club, and in that way made Bentham’s acquaintance.  For a year and a half he resided at Queen’s Square Place with the aged Bentham, and on his return to America announced himself as his spokesman.  As such, he published in 1830 The Principles of Legislation, a translation of the first fourteen chapters of the Traites.  To it he prefixed a long introduction, containing a biography and a bibliography of Bentham, together with a statement of his own political theory.  “I acknowledge,” he proclaimed, “no rights that can interfere with the greatest happiness of the greatest number - none whatever - not even that of ‘life, liberty, and the pursuit of happiness’ - to borrow the awkward and either very unmeaning or very untrue phraseology of most of our constitutions.  If it be better for the happiness of the greatest number that a man should die - cut him down without mercy.  And so with his liberty, and so with his property!” [34]  That same year he wrote to inform Bentham that he had become a father and to promise that “my child, being born a utilitarian, shall, if I can so manage it, become the mother of nations in the faith.” [35]  His own faith did not long survive the failure of his book.  The translation was awkward and inaccurate, and only four hundred copies of it were sold. [36]

Bentham was likewise unfortunate in his last American disciple and translator, Richard Hildreth.  His translation of the Traites was, unlike Neal’s, a thorough and competent job; [37] and in the introduction he enthusiastically confessed the faith that was in him.  “In the moral sciences, and especially in legislation,” he wrote, “the principle of utility is the only certain guide; and in the estimation of an impartial posterity, Bentham will rank with Bacon, as

33. John Neal, Principles of Legislation: From the Ms. of Jeremy Bentham ...  by M. Dumont, Translated from the Second Corrected and Enlarged Edition; with Notes and a Biographical Notice. (Boston, 1830), p. 43.  On Neal, see Milton Ellis’s account in the Dictionary of American Biography and Irving T. Richards, Life and Works of John Neal (unpublished thesis, Harvard University, 1932).

34. Op. cit., p. 120.  The italics are in the original.

35. Letter to Bentham, Mar. 11, 1830, in Richards, op. cit., Appendix B.

36. Ibid., p. 744.

37. Theory of Legislation by Jeremy Bentham translated from the French of Etienne Dumont (Boston, 1840).


an original genius of the first order”. [38]  But Hildreth’s subsequent attempts to present an American version of Benthamism, The Theory of Morals (1844), in which he explicitly rejected natural rights, and the Theory of Politics (1853), in which he identified might with right, were little noticed at the time and have since been entirely forgotten. [39]  “He seems to have had too little originality in ideas or style,” Professor K. B. Murdock has written, “to win for himself a great place in history, and his reputation is likely to remain simply that of an active editor and writer whose competence in historical craftsmanship saved him from oblivion”. [40]

Some reference should be made, finally, to E. L. Godkin, who, as editor of the Nation and as the author of several collections of political essays, exerted no little influence on American thought.  “When I was at college (Queen’s at Belfast),” he wrote, “I and the young men of my acquaintance were liberals in the English sense.  John Stuart Mill was our prophet, and Grote and Bentham were our daily food.  In fact… our professor of political economy and jurisprudence made Bentham his textbook”. [41]  In 1865 (having resided in this country nearly a decade), in a letter to Charles Eliot Norton, he argued in the Benthamite manner against the theory of natural rights as a justification of Negro suffrage; but he was soon to lose his utilitarian faith. [42]  Some years later, in an essay on John Stuart Mill, he characterized Bentham as devoid of imagination and sympathy, and Mill as deficient in imagination and “animal spirits”.  Interestingly, too, he remarked that Bentham’s influence in social theory, as distinguished from that in the realm of legal reform, was narrowed for want of an interpreter, “none of his followers having attempted to put his wisdom into readable shape, except Dumont, and he only partially, and in French”. [43]

38. Op. cit., p. iii.

39. Theory of Morals (Boston, 1844), pp. 183-184; Theory of Politics (New York, 1853), p. 20.  With respect to the influence of Benthamism on Hildreth, see A. M. Schlesinger, Jr., “The Problem of Richard Hildreth,” New England Quarterly, Vol. 13, pp. 223-245 (June, 1940); and on his place in American political thought, see Wright, op. cit., p. 267.

40. In article on Hildreth in Dictionary of American Biography.

41. Rollo Ogden (ed.), Life and Letters of Edwin Lawrence Godkin (2 vols., New York, 1907), Vol. 1, p. 11.

42. Ibid., pp. 45-49.

43. Reflections and Comments (New York, 1895), pp. 70-71.  A good discussion of Godkin’s political theory and of its relation to Bentham and Mill will be found in Vernon L. Parrington’s Main Currents in American Thought, Vol. 3 (New York, 1930), pp. 154-168.


So it appears that the American Benthamites were either epigoni or (as in the case of the last-named) apostates.  It is also worthy of note that they worked alone.  They founded no Utilitarian Club; they established no Westminster Review.  Consequently, it is not surprising that they made but few conversions to the faith.


Reaction to Benthamism in America

To survey this whole matter of Benthamism in America from another aspect, we might do well to pass in brief review the reactions to Benthamite theory on the part of more representative thinkers, moral and political - men who were in the main currents of American thought.  To begin with a reference to Emerson: in 1831 he wrote in his journal: “The stinking philosophy of the utilitarian!  Nihil magnificum, nihil generosum sapit, as Cicero said of that of Epicurus”.  [44]  Two years later, however (a year after Bentham’s death), he wrote to his brother from London: “I have been to see Dr. Bowring, who was very courteous.  He carried me to Bentham’s house and showed me with great veneration the garden walk, the sitting room, and the bed chamber of the philosopher. He also gave me a lock of his gray hair, and an autograph…  He is anxious that Bentham should be admired and loved in America”. [45]  Emerson contributed nothing to that end.  He rejected utilitarianism with the same contempt as did his friend Carlyle, by whose views on this subject he was greatly influenced.  In 1836, he wrote: “I had rather not understand in God’s world than understand thro’ and thro’ in Bentham’s”. [46]

An equally scornful view of Benthamism is reflected in the writings of Hugh Swinton Legare.  “We do not know whether the publication of this book,” he wrote in a long review of John Neal’s Principles, “is to be considered as any proof of the growing popularity of Bentham and utilitarianism.  But sure we are… that it will do nothing to increase that popularity”. [47]  After contrasting Bentham’s principle of utility unfavorably with that of Paley, he concluded as follows: “But enough of utilitarianism - a philosophy

44.  Edward Waldo Emerson and Waldo Emerson Forbes (eds.), Journals of Ralph Waldo Emerson (10 vols., Boston and New York, 1909-1914), Vol. 2, p. 455.

45. Ralph L. Rusk (ed.), Letters of Ralph Waldo Emerson (6 vols., New York, 1939), Vol. 1, p. 392.

46. Ibid., Vol. 1, p. 450.

47. Writings of Hugh Swinton Legare (2 vols., Charleston, 1845), Vol. 2, p. 449.  The essay first appeared in the Southern Review as cited above.  On Legare’s importance in the development of American thought, see Parrington, op. cit., Vol. 2, pp. 114-124.


the very reverse of that so justly, as well as beautifully, described in Milton’s Comus: [48]

`How charming is divine philosophy

Not harsh and crabbed as dull fools suppose…’

During the course of his pilgrim’s progress, Orestes A. Brownson took up many of the popular doctrines of his time, but he consistently ridiculed Benthamism.  In particular, he repudiated the democracy of “the greatest good of the greatest number, as taught by that grave and elaborate humbug, Jeremy Bentham”. [49]  “Hildreth,” he wrote in a review of the Theory of Morals, “has studied Benthamism until his own head is more confused, if possible, than ever was Bentham’s own head”. [50]

Likewise, if one surveys the controversial writings and the systematic political treatises of the first six or seven decades of the nineteenth century, one finds that the leaders of thought were untouched by or were unfriendly to Benthamism.  John Adams, Jefferson, John Taylor, Madison, Calhoun - none of these seems to have known Bentham’s contributions to political theory. [51] Nathaniel Chipman’s Principles of Government (1833) shows some utilitarian influence, but it is the utilitarianism, not of Bentham, but of Paley. [52]  Lieber makes one reference to Bentham in the Political Ethics, and relegates him to a footnote in the Civil Liberty. [53]  Woolsey curtly rejects the greatest happiness principle, and dismisses the Austinian concept of rights as “a gloomy system”. [54]

48. Ibid., p. 481.

49. Brownson’s Works (20 vols., Detroit, 1882-1887), Vol. 20, p. 354.  The best biography is Arthur M. Schlesinger, Jr., Orestes A. Brownson: A Pilgrim’s Progress (Boston, 1939).

50. Ibid., Vol. 14, p. 237.

51. “Neither his readings in theology nor his later acquaintance with the critical work of Bentham seems to have shaken his confidence [in Locke’s theory of natural rights].”  Abbot E. Smith, James Madison, Builder (New York, 1937), p. 95.  For the Bentham-Madison correspondence growing out of Bentham’s offer to codify American law, see Works of Jeremy Bentham, Vol. 4, pp. 453-507; G. Hunt (ed.), Writings of James Madison (New York, 1900-1910), Vol. 8, p. 400; and Charles Francis Adams (ed.), Memoirs of John Quincy Adams (12 vols., Philadelphia, 1874-1877), Vol. 3, pp. 511-512.  On Jefferson’s lack of familiarity with Bentham’s writings, see Julian S. Waterman, loc. cit., p. 648.

52. Principles of Government: A Treatise on Free Institutions (Burlington, 1833), especially pp. 85 and 96.

53. Political Ethics (2 vols., Boston, 1838), Vol. 1, p. 356; On Civil Liberty and Self-Government (enlarged ed., Philadelphia, 1859), p. 195.

54. T. D. Woolsey, Political Science (2nd ed., New York, 1889), pp. 1-2 (happiness principle) and p. 130 (Austinianism).


In the last two or three decades of the century, to be sure, there emerged what Professor Dicey would call a Benthamite cross-current in American juristic and political thought.  Oliver Wendell Holmes, Jr., was one of the first to subject Austinianism to critical analysis; and although he did not follow the doctrine of sovereignty all the way, he did accept, and he continued to adhere to, the Austinian concept of rights and of natural law. [55]  A. Lawrence Lowell, writing in 1897, on “The Limits of Sovereignty,” declared that “it is due to Austin, more than anyone else, with the possible exception of Bentham, that the idea [of natural rights] has fallen into discredit, and has been abandoned by almost every scholar in England and America”. [56]  This was no doubt an exaggeration, even in respect of the prevalence of Austinianism among scholars; certainly it is not true that the main current of political thought was Benthamite or Austinian.  In this connection, the analysis of W. W. Willoughby is of interest.  In his Nature of the State (1896), he substituted utility for natural rights “as the positive basis upon which the state rests”. [57]  He went on to say, however, very cogently as it seems to me, that “resting, as we do, our origin upon a forcible separation from England, and founding the justification for our acts upon so-called natural or unalienable rights of liberty, we have not been disposed to see in legal authority the sole source of legal rights, nor to concede to its sovereignty such a legally despotic character as logically follows from the Austinian view”. [58]


American vs. English response to the French Revolution

The passage just quoted suggests another and no doubt a more basic reason for the failure of Benthamism to become a main current in American thought.  Halevy has acutely observed that Bentham’s influence outside his own land was greatest in such countries or areas as Russia, Spain, and Spanish America, and that it was least in nations which like France and Germany had a “philosophic tradition”. [59]  Extending this generalization to include the United

55. Cf. note 4 above; and see “Codes and the Arrangement of Law,” American Law Review, Vol. 5, p. 1 (1870), reprinted in Harvard Law Review, Vol. 44, pp. 725-737 (Mar., 1931); “Natural Law,” in Collected Legal Papers (London, 1920), especially pp. 313-314; and cf. the statement by Judge Learned Hand: “Nor again do I suppose that I am asked to discuss… his [Holmes’s] understanding of law, so strictly Austinian …” F. Frankfurter (ed.), Mr. Justice Holmes (New York, 1931), p. 127 - quoted in Mark DeWolfe Howe (ed.), Holmes-Pollock Letters (2 vols., Cambridge, 1941), Vol. 2, p. 263, n. 2.

56. Essays on Government (Boston, 1897), p. 193.

57. Op. cit. (New York, 1896), p. 113.

58. Ibid., p. 166.

59. Growth of Philosophical Radicalism, p. 296.


States, one might reasonably suppose that even if Bentham had been more fortunate in his American interpreters, his doctrine would have encountered an immovable obstacle in our deep-seated Lockean tradition.  A more detailed and (I hope) more convincing analysis would run somewhat as follows: In respect of the future of Benthamism, the decisive period in both countries was that between the French Revolution and (say) 1815.  In England, to abridge a long story, the reaction to the French Revolution was so strong and so enduring that no doctrine at all tainted with Jacobinism could win widespread acceptance.  By 1815, however, there was a demand, as Professor Carl Becker has put it, for “a distinctively British road to democracy”; and Bentham pointed the way”. [60]  The teacher who could lead England in the path of reform must not talk of the social contract, of natural rights, or rights of man, or of liberty, fraternity, and equality.  Bentham and his disciples precisely satisfied this requirement.” Thus Professor Dicey. [61]

In the United States, on the other hand, the reaction to the French Revolution was not so extreme. [62]  There were, to be sure, bitter attacks on Paine and the Jacobins; but only one “tie-wig” Federalist, Fisher Ames, repudiated the natural law concept. [63]  The case of John Quincy Adams is particularly interesting.  In his Letters of Publicola (1791), he attacked Paine and the French Revolution without himself abandoning the natural rights heritage of our own Revolution.  Years later, as American minister in London, he became an intimate friend of Bentham and accompanied the aged philosopher on the famous “antejentacular and post-prandial circumgyrations”. [64]  To the end, however, he retained his faith in the philosophy of natural rights.  “The theory of the rights of man,” he wrote in 1835, “has taken deep root in the soil of civil society.  It has allied itself with the feelings of humanity and the precepts of Christian benevolence…  It has linked itself with religious doctrines and religious fervor”. [65]

60. Declaration of Independence (New York, 1922), p. 296.

61. Lectures on the Relation between Law and Public Opinion in England (2nd. ed., London, 1914), p. 171.

62. See C. D. Hazen, Contemporary American Opinion of the French Revolution (Baltimore, 1897).

63. Wright, op. cit., p. 138.

64. C. F. Adams (ed.), Memoirs of John Quincy Adams (10 vols., Philadelphia, 1874-1877), Vol. 3, pp. 511-512,537-555,560-565.  See also the letter from Bentham to Adams, Works of Jeremy Bentham, Vol. 10, pp. 554-555.

65. Memoirs, Vol. 9, p. 251; quoted, Wright, op. cit., p. 211.  Illuminating discussion of the religious basis of the natural rights doctrine as a reason for its per‑[durance in American thought will be found in Alice M. Baldwin’s New England Clergy and the American Revolution (Durham, 1928).]

HHC: [bracketed] displayed on p.869 of original.


In this country, then, although the natural rights concept has not been a continuously vital and active element in our political thought, it has always been a viable one.  Indeed, one can go further and say that here it was utilitarianism which became discredited by the use to which it was put in the great political debates of the nineteenth century.  Thus in the state convention debates of the twenties and thirties, some opponents of the extension of the franchise opposed the democratic natural rights argument with a case grounded on utilitarian principles.  P. P. Barbour, for example, in the Virginia convention (1829-1830) argued in this fashion: “Is it not a solecism to say that rights, which have their very being as a consequence of government, are to be controlled by principles applying solely to a state of things when there was not government?” [66]  “In politics, as in morals,” he went on to say, “the best test of propriety is practical utility”. [67]  Also in the slavery controversy, anti-slavery arguments premised on natural rights were sometimes countered by appeals to the principle of utility.  Cooper’s utilitarian defense of slavery has been mentioned.  To take another example, James Henry Hammond, repudiating natural law, based slavery “on the revealed Will of God - on custom - on utility - on the happiness of the greatest number…” [68]  Thus, by a curious twist in the course of thought, a doctrine which in England was on the side of the future was here discredited by its association with the forces of reaction.

A third reason for the failure of Benthamism to make a strong impact on American political thought deserves brief notice.  I have previously had occasion to point out that in his second or radical phase Bentham became an admirer of the American constitutional system, and I may add that his admiration was genuine and uncritical.  In his Leading Principles of a Constitutional Code (1823), for example, he wrote: “This [the United States] Constitution has for its general end the greatest happiness of the greatest number”. [69]  England, he argued in the Constitutional Code (1830), has no con-

66. Virginia Convention: Proceedings and Debates (Richmond, 1830), p. 91.

67. Ibid., p. 94.

68. Quoted, William Sumner Jenkins, Pro-Slavery Thought in the Old .South (Chapel Hill, 1935), p. 44.

69. Works, Vol. 2, p. 269.  A little further on (p. 274), he qualifies his praise: “slave-purchasing and pertinaceously slave-holding states always excepted.”


stitution. “The Anglo-American United States” has a constitution.  “It has for object the greatest happiness of the greatest number”. [70]  He wrote to President Andrew Jackson in 1830 that he was at heart more of a United States man than an Englishman. [71]  The point is, of course, as Professor A. M. Schlesinger has observed, that “many of the ideals of political democracy for which Bentham strove were already incorporated in the form of statutes and constitutions in the United States,” and hence “it is not surprising that his doctrines were chiefly influential in America in the field of juristic science”. [72]  The point is, too, that in the context of such statements as those just quoted, his criticism of our natural rights philosophy and of our bills of rights might easily pass unnoticed.



In conclusion, one might, indeed, inquire whether Bentham’s greatest-happiness or utility principle was essentially antithetical to the natural rights concept.  To most nineteenth-century thinkers it seemed to be; but in perspective, as Ritchie was one of the first to point out, it appears to be merely a variant of it.  When Bentham said (he seems never to have written), “Each to count for one and no one for more than one,” he unwittingly accepted the basic assumption of the doctrine which he had so unremittingly attacked. [73]

This is not to say, however, that the failure of Benthamite doctrine to become a main current in American thought is altogether without significance.  Dicey and more recently G. D. H. Cole have shown quite convincingly that although Bentham’s was originally and, in a sense, accidentally an individualist doctrine, its essence, its inner logic, was collectivist.  The greatest-happiness principle (following Dicey) was “big with revolution”; its implication was that legislation should respond to the interests of the wage-earning

70. Ibid., Vol. 9, p. 9.

71. John Spencer Bassett (ed.), Correspondence of Andrew Jackson (5 vols., Washington, 1926-1931), Vol. 4, p. 46.  I am unable to agree with Mr. C. W. Everett’s statement (op. cit., pp. 209-218) that Jackson’s first message to Congress reflects Bentham’s influence in phrasing or in substance.  Everett suggests that Bentham’s disciple and Jackson’s secretary of state, Edward Livingston, may have written the message; but there is in any case no evidence of which I am aware that Livingston was acquainted with Bentham’s political, as distinguished from his juristic, theory.

72. Introduction (p. 5) to Hilda G. Lundeen, The Influence of Jeremy Bentham on English Democratic Development (University of Iowa Studies, Vol. 8, No. 3, no date).

73. David G. Ritchie, Natural Rights (3d. ed., London, 1916), p. 249.  See also Leslie Stephen, op. cit., Vol. 1, pp. 303-310, for a penetrating comparative analysis of Benthamite and natural-rights individualism.


class, which in an industrial society constitutes the “greatest number”.  Furthermore, the utilitarian theory of sovereignty provided, in parliamentary supremacy, the instrument wherewith such legislation might be shaped.  Finally, in its effective demand for a more efficient, more highly centralized, public administration, Benthamism laid the foundation of the modern service state. [74]  To end on a speculative note, I think it at least arguable that widespread acceptance of the Benthamite brand of individualism in America might well have facilitated here, as in England, rapid transition to a collectivist democracy.

74. Dicey, op. cit., pp. 303-310. Cf. G. D. H. Cole, Some Relations between Political and Economic Theory (London, 1934), pp. 45-46.