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LECT. XIJI.

THE UTILITARIAN PHILOSOPHY.

399

that it presupposes the theory of Equality. The greatest number is the greatest number of men taken as units; 'one shall only count for one,' said Bentham emphatically and over and over again. In fact, the most conclusive objection to the doctrine would consist in denying this equality; and I have myself heard an Indian Brahmin dispute it on the ground that, according to the clear teaching of his religion, a Brahmin was entitled to twenty times as much happiness as anybody else. Now how did this fundamental assumption of equality, which (I may observe) broadly distinguishes Bentham's theories from some systems with which it is supposed to share the reproach of having pure selfishness for its base-how did it suggest itself to Bentham's mind? He saw plainly-nobody more clearlythat men are not as a fact equal; the proposition that men are by nature equal he expressly denounced as an anarchical sophism. Whence then came the equality which is a postulate of his famous doctrine about the greatest happiness of the greatest number? I venture to think that this doctrine is nothing more than a working rule of legislation, and that in this form it was originally conceived by Bentham. Assume a numerous and tolerably homogeneous community-assume a Sovereign whose commands take a legislative shape-assume great energy, actual or potential, in this legislature the only possible, the

1 400

BENTHAM AS A MORALIST.

LECT. XI.

only conceivable, principle which can guide legislation on a great scale is the greatest happiness of the greatest number. It is in fact a condition of legislation which, like certain characteristics of laws, has grown out of the distance from which sovereign power acts upon subjects in modern political societies, and of the necessity under which it is thereby placed of neglecting differences, even real differences, between the units of which they are composed. Bentham was in truth neither a jurist nor a moralist in the proper sense of the word. (He theorises not on law but on legislation; when carefully examined, he may be seen to be a legislator even in morals. No doubt his language seems sometimes to imply that he is explaining moral phenomena; in reality he wishes to alter or re-arrange them according to a working rule gathered from his reflections on legislation. This transfer of his working rule from legislation to morality seems to me the true ground of the criticisms to which Bentham is justly open as an analyst of moral facts.

INDEX.

A

ACCEPTANCE

CCEPTANCE of stock, effect of, 163;
not always voluntary, ib.; by King
of Erin from the Emperor, 165; from
the successor of St. Patrick, 166
Agnatic kindred in Roman law, 106, 112
Aicill, Book of, 12; probably oldest of
the Irish Law Tracts, 24; relates the
story of Cormac, 37; advanced legal
views of, 45; on dog-fights and bees,
46; on rule of legitimacy, 53, 59; on
fuidhir tenancy, 174; on distribution
of the Irish family, 208; on the
Geilfine group, 219

Aires, the nobles, 136; seven grades of,

ib.
Alfred, feud law of, 303
Alienation of tribal lands, how limited,
108; in Hindoo law, 109; in Russia,
ib.; decision of Madras High Court
on, 110

Analytical Jurists, the, 343; Bentham
on legislation, Austin on jurispru-
dence, ib.; Hobbes on government,
354; assertions of, in regard to sove-
reignty, 357; on force and order, 372;
limits of analytical system, 385; in-
fluence of the analytical system, 397
Anglo-Norman settlement in Ireland,
effects of, 54

Argyll, Duke of, on the 'Reign of Law,'
373

Aristocracy, modern, the rise of, 130;
original in some communities, 133; a
sovereign government, 350

Aryan customs, bond between East and
West, 20. See Institutions.

Athens, formed from a coalescence of
village communities, 84; its empire
not legislative, 385

BENEFICES

Augustus, Marriage Law of, 336
Austin, John, unknown abroad, 343
his Province of Jurisprudence de-
termined,' 345; nature of his proposi-
tions, 346; his definition of sove-
reignty, 347, 348; the individual or
collegiate sovereign, 349; various
forms of monarchy, 350; the govern-
ment of Great Britain, an aristocracy,
ib.; the sovereign determinate, 351;
obeyed by the large majority, 352;
must receive habitual obedience, 353;
difficulty as to obedience to the See of
Rome, ib.; uncontrolled by any human
superior, ib.; compared with Hobbes,
354, 356; force of society, 358;
sovereignty an abstraction, 359; eli-
mination of historical influences, 360;
scientific method, 361; law depend-
ent upon sovereignty, 362; right,
duty, and punishment, 363; cus-
tomary law, ib.; sovereigns command
what they permit, 364; the Greek
tyrants, 365; theory of morality,
366, 367; his utilitarianism, 368; on
law of God, 369; the most serious
blemish in his work, ib.; his analysis
of extant governments, 376; on anar-
chy, 377; on state of nature, 378;
no sovereign in very small group,
379; quotes Montesquieu, ib.; on
particular commands, 382; on cus-
tomary law, 392

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DD

402

INDEX.

BIRTH

on law reforms, 397; his working
rule true in legislation rather than in
morals, 400

Birth and wealth, opposition between, a
modern idea, 134

Birthright, the reward of the distributer
of an estate, 197; to be distinguished
from primogeniture, ib.; sometimes
enjoyed by the younger son, ib.;
thus connected with borough English,

ib.

Bishops, Ancient Irish, multitude and
servile position of, 235; dependent
on religious houses, 236; religious
kinship, 237

Blackstone on borough English, 222;
on hazards of taking distress, 273;
his method opposed by Bentham and
Austin, 347; his definition of law,
371

Bo-aire, or cow-nobleman, 135; an en-
riched peasant, 165

Borough English, 222; similar custom

in law of Wales, 223
Bracton on primogeniture, 125; on dis-
traint, 270, 277

Brahmins, the only true caste, 245;
their dislike of woman's property,
325; authors of 'Suttee,' 335
Brehon Laws. See Irish Law Tracts
Brehons, the, a class of professional law-
yers, 24; hereditary, ib.; compared
with the Druids, 28, 32; universal
referees, ib.; their schools numerous,
ib.; their cosmogony, 34; the king
and the brehon, 36; judges but not
priests, 38; acted by arbitration, ib. ;
on voluntary submission of litigants,
43; declared law through hypothetical
cases, 44; influence of their self-as-
sertion, 51; with their pupils consti-
tuted a true family, 243; incorrectly
described as a caste, 244; became
hereditary, 245; accompanied dis-
trainer in action of distress, 286;
equity and reasonableness displayed
in the law of distress, 291

Bride-price, widely diffused Aryan cus-
tom, 324

Bryce, Mr., on influence of the Roman
Empire, 165

Burton, Mr., on legitimacy in Scotland,
60; on succession, 204

CHIEF

CESAR, his description of the Celts

in Gaul, 5; on writing of the
Gauls, 13; his account of the
Druids, 28; of the three Celtic
orders, 29; failed to observe the
divisions of septs and families, 30;
found the Celts polygamous, 59;
on noble class among Celts, 132;
on the debtors of Celtic chiefs, 167
Canon Law, origin of, 63; on consan-
guinity, 213

Capital, formerly more important than
land, 168; in the hands of the nobles,
169; source of power over the poorer
classes, ib.

Capitis Deminutio,' of the Roman law,

218

Caste, origin of, 244; tendency of trades
to become hereditary, 245; Brahmins
the only true hereditary caste, ib.;
resemblance to literary fosterage in
the Brehon Tracts, 246

Cattle, wealth in, 137; reward of ser-
vice to the chief, 142; object of a
Kafir chief's retainers, 143; cattle
stealing, 144; in Ireland a 'survival,'
ib.; importance of in early ages. 147;
original capital,' ib.; origin of pe-
cunia, 148; their importance in Ro-
man law and among the Hindoos, ib.;
most valuable when men settled to
cultivate land, ib.; measure of value,
149; in Brehon laws, ib.; value of, for
labour in tillage, ib.; cause of their
protection in Rome and India, 150;
Irish system of giving stock, 151;
source of vassalage, 152; resembling
commendation, 158; source of power
to the nobles, 168; regulated by the
Brehon laws, 169; distraint of, 262;
impounding, 263

Ceile, or Kyle, a vassal to the chief,

158

Celtic societies, 4; three orders of, 29;
polygamy among, 59; land system,
96; society described by Sir W. Scott,

141

Chief, Ancient Aryan, or King, appears
as priest, judge, and captain, 35
Chief, the elective, succeeds the patri-
archal power, 117; sometimes with
Council of Kinsmen, ib.; his status,
119 seq.; the source of primogeni-
ture, 120; Irish tribal chief, 127;
the Norman nobles as Irish chiefs,

INDEX.

403

CHRISTIANITY

128; relations of chief and tribe,
128; growth of his power over the
land, 130; his position in the Bre-
hon laws, 132; necessarily rich,
133; not in land, but in cattle, 134;
power increased by giving stock, 157;
right of refection, 161; employed the
fuidhirs on his lands, 173; derived
great increase of power by so doing,
177; private estates of, 193; in-
stances of estates divided by, 194;
possessed power of distributing in-
heritances, 196; his family venerated
as representing the purest blood, 200 ;
eldest relative preferred to eldest son,

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Code Napoléon, on personal revenge, 303
Coin and Livery, oppressive nature of
in Ireland, 128, 161
Collective ownership of the soil, primi-
tive and universal, 1

Comitatus, the companions of the King,
138; the Royal Household, 139. See
Companions

Commendation, effects of, 130, 154; ac-
counted for, 155; illustrated in Bre-
hon Tracts, 156; incurred by accept-
ing stock, 165

Companions of the King, 138; of Erin,
139; of Iceland, 140; of Highland
chiefs, 141; of Teutonic kings, ib.;
everywhere rewarded by gifts of land,
ib.; and of cattle, 142; their status
at first servile, 145; when free, not
the king's near kindred, ib.

Compurgation, an ancient test of truth,

48

Consanguinity. See Kinship
Contracts, conception of, due to the
Church, 56; influence of the Church
upon, 104

Contributory negligence, principles of, in
ancient Irish laws, 45
Coote, Mr., on origin of English insti-
tutions, 295

DUBHTHACH

Corus Besena, one of the Irish Law
Tracts, 56; deals chiefly with con-
tracts, ib. and limitations of contract,
58; on tribal property, 103; bias
of author towards the Church, 104;
on alienation of tribal land, 111, 191
Coshering, oppressive nature of, in Ire-
land, 128, 161
Co-tenancy, Irish law of, 112
Cultivating groups, 113
Cumhal, a measure of value, 149; ori-
ginally a female slave, ib.
Custumals, French manuals of feudal
rules, 6

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Dasent, Mr., his history of Burnt Njal,
140; on Norse customs, 288

Davis, Sir J., on Irish law, 18; on
Irish Land, 98; on Irish oppression,
127; on right of refection, 161; de-
nounces the Eric-Fine, 170; on
Tanistry, 205; on Gavelkind, 185,
206; on degeneracy of the Normans
settled in Ireland, 247

Dharna,' the Hindoo custom of sitting,
40, 297, 298; Lord Teignmouth's ac-
count of, 299; sanctions of, 300;
modern prohibition of, 301; survives
in native Indian States, 304

Distress, Law of, 8; forms a large part
of Brehon law, 39. See Legal Reme-
dies

Dithim, delay in pound, 281
Ditmarsh, Aristocracies in, 230
Divorce, the liberty of, facilitated the
introduction of monogamy, 60; re-
strained by Christian morality, ib.
Doniol, on English copyholds, 125
Dotatior, compulsory in Roman Law,
336; promoted by the Christian
Church, 338; its power in France,

339

Druids, mentioned in the Irish Law
Tracts, 28; described by Cæsar and
Strabo, ib.; their functions, 31; re-
sembled the Brehons, 32; believed
in the immortality of the soul, 40
Dubhthach, compiler of the Senchus
Mor, 22; blessed by St. Patrick, ib.
resembles the chief Druid of Cæsar, 33

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