are voluntary spectators; it is desirable to find some persons whose duty it should be to attend. Clergymen seem to Mr. Bentham to be fittest for this service. And if the taking of oaths in courts of justice is still to be continued, the administration of them cannot be entrusted to more proper hands.' Attendance for a certain time in courts of justice, might likewise be required from young men as a necessary qualification for public office. Editors of newspapers should have free access to all the records of the courts, with full liberty to print what they wished. It is doubtful whether the parties might not be allowed to publish a statement of facts before the cause is tried. As to the internal economy of the court, the room should be large enough to contain seats for two hundred persons; the judge's seat standing alone and raised above the rest. His secretaries are to sit beneath him but in a higher place than all others. The judge is to wear a full cloak, both to mark his office, and to conceal any personal defects. The prisoner, or defendant, is to be placed in a raised box, the witnesses being examined before him and the whole assembly. Another important rule is, that the judge should not only pronounce his judgment, but assign his reasons for it-the same to be also done when the punishment is aggravated or relaxed. 'La publicité et la motivation des jugements expliquent la bonne conduite des grands juges d'Angleterre. S'ils sont les meilleurs juges du monde, c'est parcequ'ils sont les mieux surveillés.'* p. 193.

Mr. Bentham next treats, with great ability, the difficult subject of appeal. Nothing but the absolute necessity of courts of appeal should suffer so powerful a weapon of oppression and vexation to be put within reach of the wealthy or roguish litigant. The object therefore is to ascertain in what manner the evils of appeal may be best remedied. No ordinary courts ought to possess an appellate jurisdiction, which should belong to separate tribunals. The fundamental rule is, that the courts of appeal should admit in evidence no other proofs than those offered to the court whose judgment is appealed against.' This rule is only to be relaxed when the appellant complains of the suppression or rejection of evidence ; and in this case, the court of appeal should direct a new trial in another court. The courts of appeal, which should be in the metropolis, are to decide entirely on documentary evidence. Some measures are pointed out by which appellants of bad faith

*Judices (says Lord Bacon) sententiæ suæ rationes adducant, idque palam et adstante corona: ut quod ipsa potestate sit liberum, fama tamen et existimatione sit circumscriptum. De Augm, Scient. lib. viii. Aph. 38.

may

may be punished. An appeal should lie in all causes, of whatever nature, from the decision of the first court; but there ought to be only one degree of appeal, and the decision of the court should be final. As to the judges of appeal, they are to be chosen from the judges of the inferior courts.

We fear that our readers' appetite for jurisprudence must be already satisfied by the above extracts, and that we should not gain a willing audience to a statement and examination of Mr. Bentham's and Mr. Dumont's opposite arguments on the merits or demerits of Trial by Jury. As the subject should be discussed at length, or not at all, we are forced to embrace the latter alternative.

Mr. Dumont closes the first division of this book by a parallel between Montesquieu and Mr. Bentham. He first collects the few passages scattered up and down the Esprit des Lois, which relate to judicature; and he ingeniously remarks, that the want of arrangement in that work gives it an appearance of containing more than it really contains, as the reader imagines that much has been said on a subject which has been often mentioned. It is hardly possible to conceive two minds more opposite than those of Montesquieu and Bentham. The one, having no fixed principle or standard, flying from subject to subject, despatching doctrines, on which the well-being of nations depends, with an epigram or a comparison; mixing his treatise with historical discussions and incredible stories from his favourite Jesuits, defending all established systems, and rather accounting for laws than examining their merits or defects; while his doctrines on climate enable him to prove, that what is beneficial to one people is hurtful to another; seems rather to inquire what government is, than what it ought to be and his work has a nearer resemblance to a speculative history, than a theory of politics. The true character of the Esprit des Lois was given by Madame du Deffand, when she called it de l'esprit sur les lois. The writer is constantly struggling after neat sayings and lively paradoxes; and the discovery of the means best suited to promote the happiness of man in a community is so very subordinate to the display of the ingenuity of the learned president, that we cannot consent to call his work a valuable political treatise, though it has undoubtedly given an impulse to political speculation; and no one can read it without gaining much important information on matters of fact, or conceiving great admiration for the genius

* This is Blackstone's great defect. When he has succeeded in pointing out the original reasons for making a law, he wishes the reader to think that he has proved its expediency now and for ever. He shews why a law is, not why it should be.

of

of the author. As a speculative work it is certainly inferior to the earliest regular treatise on government, the Politics of Aristotle; and it must now be considered rather as a subject of literary history than a living oracle of political wisdom. Mr. Bentham, on the other hand, sets out, like a German professor, with a regular apparatus of scientific principles. The object which (according to Mr. Dumont) he always has in view, is the prevention of evil; the standard by which he judges all actions and institutions is, general utility, or the greatest happiness of the greatest number. The two false principles which have (he conceives) chiefly misled political writers are, religious ascetism and caprice; which last is resolved into two branches, sympathy and antipathy. He supposes that human nature is every where essentially the same, being subject only to accidental varieties. So far, it must be owned, there is no great novelty. The doctrine, that the happiness of the community is the object of government, is at least as old as the Politics of Aristotle; and even Montesquieu, if it had been mentioned to him, must have admitted it. But it seems to us, that Mr. Bentham's great merit lies not in discovering but applying this criterion, and shewing the importance of constantly keeping it in view.

Clavum adfixus et hærens

Nusquam amittebat, oculosque sub astra tenebat.

There are many truths which, though known to mankind, are practically neglected and overlooked. For this reason, we think, that some late remarks of a contemporary journal on Mr. Bentham's greatest happiness principle,' (as he is pleased to call it,) are not quite fair. Although this phrase may degenerate into a mere catchword, like the Protestant Consitution,' or the Rights of Man,' it is of the first importance that a political writer should keep in mind the proper object of his speculations. That such simple truths may be known, and yet not used, is proved by Montesquieu's three ends of government-honour, moderation, and virtue. If Montesquieu can prove, that any institution, however barbarous or oppressive, would lead to honour in a monarchy or to virtue in a democracy, the matter is finished.† Whatever nickname, therefore,

* Mr. Bentham has now rejected this phrase on account of its ambiguity. By 6 greatest number' he meant greatest possible number.' It has been construed to mean, the majority,' or the greater number.'

We could add many other examples, if it was necessary. For instance, Hume says, 'that the ends for which government was originally instituted, are the distribution of justice and the equal protection of the citizens.'-History of England, App. II. These, no doubt, are two of the principal, but not the only objects of govern

ment.

Mr.

Mr. Bentham may give to this principle, he is highly to be praised for making it the pole-star of his course, nor suffering himself to be led astray by any delusive meteors which might cross his path.*

But it is on his discoveries of new means for attaining this end that Mr. Bentham's fame must ultimately rest. And here he seems to have been frequently guided by one of those false principles which he so much decries, viz.-antipathy. Seeing the bad effects of prejudice and attachment to the wisdom of ancestors, Mr. Bentham rushes to the opposite extreme, and seems always to think that the existence of an institution is a positive reason why it should not exist. So captivated is he with the beauty of his own inventions, that he overlooks the advantages which established institutions sometimes possess, and uses arguments in favour of his own proposals which he will not allow to weigh in favour of the customs which he attacks. Thus, in the book before us, he will not admit the division of labour to be any argument in favour of the separation of civil and criminal courts, because this separation exists: but he urges it as a reason for the separation of the professions of lawyers and judges, because it does not exist. The general character of his suggestions is novelty, ingenuity, and contrivance. He evidently loves his own speculations wit the affection of a father; and this frequently blinds him to their imperfections, and to the merits of other more common sys enis. Hence it is especially necessary, in reading his works, totkeep the judgment free and the belief suspended; which makes it the more unfortunate that he should have become the object of worship to a sect who would esteem it a sin to question his authority, and who exhibit the usual sectarian failings of clinging, with the greatest tenaciousness, to the worst errors of their High-Priest. We hardly ever remember to have read a book which contained more that is valuable and more that is worth

Mr. Dumont praises his author's method of reasoning from the general principles of human nature, and not, like Montesquieu, by collecting insulated facts. This method, in the excess to which Mr. Bentham has carried it, is liable to great danger; but we cannot accede to the objections which have lately been made to this mode of argument generally. If the first principles are true and the reasoning correct, the conclusions must likewise be true. The great danger is, that the general principles will either be false or contain ambiguous words. It is singular, that in the criticism alluded to, the writer has detected both the assumption of false propositions and the ambiguity of middle terms: and yet he lays the fault with the syllogistic method of reasoning, or the absence of induction. In inductive reasoning it is just as possible to assume false premises or to argue incorrectly.—See Edinburgh Review, No. 98. pp. 161, 188.

The remark of Aristotle, on Plato's political speculations, applies with great aptitude to Mr. Bentham's. Τὸ μὲν οὖν περιττὸν ἔχουσι πάντες οἱ τοῦ Σωκράτους λόγοι, καὶ τὸ κομψὸν, καὶ τὸ καινοτόμον, καὶ τὸ ζητητικόν, Polit. ii. 4. p. 320 Α.

N 2

less

-less than the work which we have just examined. The whole, moreover, whether true or false, is laid down in the same magisterial and dogmatic air, and the same quiet assumption of superiority. Mr. Bentham can scarcely ever refrain from calling the doctrine which he attacks a prejudice, and imputing interested motives to those who maintain it. In a part of his book which we have not noticed, he says that the opponents to a code are divided into two classes, impostors or dupes-as if it was impossible that a person could dissent from Mr. Bentham on sincere and solid conviction! In which of these two classes he may include us, for the opinions which we have expressed in this article, we neither know nor care. There are very many institutions in our Utopia different from the established order of things but neither the exclusion of lawyers from the judicial office, nor their total suppression, is among them. In the meantime, we have no doubt that Mr. Bentham has adopted these notions after diligent and anxious consideration; and we are willing to consider him neither a dupe nor impostor, although he happens to differ from us in opinion.*

ART. VIII.-Prose e Versi di Giovan Battista Niccolini, Milano. Silvestri, 1826.

MR.

R. Niccolini's name is not unknown in this country to lovers of Italian literature, and we ourselves have had occasion to speak of one of his tragedies in a former number.† The little volume before us contains but one of his tragedies, namely, Polissena. We regret this the less, as we have no intention to occupy ourselves at present with the dramatic writings of Niccolini, proposing at some future time to consider Italian tragedy generally, when this author's character as a dramatist will be duly estimated. Let none, therefore, form an opinion of Niccolini's merits from what we are about to say of him now. The reader's attention should here confine itself to the works noticed, more out of respect to the author's name, than because they deserve it.

Of his translation of Eschylus 'I sette a Teba,' we shall not speak, since a mere translation of a Greek tragedy in a foreign

* Since this Article was written, we have heard, with regret, that Mr. Dumont's death has put an end to all hopes of the continuation of his very useful labours. We cannot expect that the remainder of Mr. Bentham's papers will again fall into such able hands; but we trust that the translation of that writer's penal code, which Mr. Dumont mentions, in the book before us, as having been completed by him (p. 435), will be given to the public as a posthumous work.

+ See For. Rev. vol. 1., page 647.

tongue