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We are only in the middle of p. 5 of Bentham's Preface, though the focus of this essay will be on the series of footnotes (8-17) which appear on p. 7. In order to get there, however, a few things more need to be said about pp. 5-7. After charging his age with being an enervate breed which is "ever on his knees before the footstool of Authority," he goes on to observe that the process of statute-making, much less the uncertainty of common law statutory origins, ought to make one pause before according so much unquestioned deference to statutes. The adoption or rejection of law often turns on "circumstances with which the utility of it has no imaginable connection." Those who truly know the way statutes are adoped "will not be quite so zealous, perhaps, as our Author has been to terrify men from setting up what is now 'private judgment,' against what once was 'public': nor to thunder down the harsh epithet of 'arrogance' on those who, with whatever success, are occupied in bringing rude establishments to the test of polished reason." What Bentham wants people to realize is that if "there be some institutions which it is 'arrogance' to attack, there may be others which it is effrontery to defend" (p.5 bottom). It is in this context that his cute fn. 7 should be noted. Tourreil, an obscure Frenchman, defended torture, while Beccaria, the world-known Italian, condemned it. As Bentham remarks in the note. "He (Tourreil) is now forgotten." The age, therefore, belongs to those who take on the censorial role.

Bentham does seem to deride, in ways that I don't think he is right, the mere exposition of the law. "The business of simple exposition is a harvest in which there seemed no likelihood of there being any want of labourers: and into which therefore I had little ambition to thrust my sickle" (p.6). As a matter of fact, there weren't many expositors. The fact that B's work was so widely and quickly regarded is testimony to the uniqueness of his effort. In fact, Bentham really has very little "historical sense" to him; he is a great critic, analyst and system builder, but doesn't seem to have a historical bone in his body. Hence his "choice" not to be an expositor arises, as with most of us, not because it is simply a useless endeavor but because, in fact, he can't do it.

After a few more paragraphs in which he contrasts his work with B, Bentham then turns to the Introduction of B's work (bottom of p.6). But then he has to make a few more parting shots before he gets to work. It is not, he says, because the Introduction was worse than any other part of it; it simply was easily separated from what preceded and followed (p.7). Then, before he gets to the exposition of 47-53 of B, he resorts to a rhetorical device that keeps him away from his seeming goal for at least four more pages. The rhetoricians call it paralepsis (paralipsis) and may be defined as "stating and drawing attention to something in the very act of pretending to pass over it." It is a species of irony. An example of it would be as follows (not a real example). If Senator Kennedy had said, in the Roberts confirmation hearing, "Time doesn't permit me to mention all those memos in which you represented an anemic commitment to civil rights," and then he went on to his "major" point, the thing that would be ringing in our ears is the alleged deficiency of Judge Roberts on civil rights issues. Kennedy had "passed over" it by drawing attention to it.

Bentham's Paralepsis

This is precisely what Bentham does in notes 8-17 of the Preface. He is making the point that the digression in 47-53 isn't worse than any other part of the whole. Space in this essay only permits two examples to give us a flavor of Bentham's relentless intellect.

1. For example, "It is not here, for example, he would persuade us, that a trader who occupies a booth at a fair is a fool for his pains." What does he mean? Well, check out fn. 8. In B's discussion of burglary he says that burglary "cannot be committed in a tent or a booth erected in a market fair; though the owner may lodge therein: for the Law regards thus highly nothing but permanent edficies; a house, or church; the wall, or gate of a town; and it is the folly of the owner to lodge in so fragile a tenement." Bentham can hardly restrain his scorn. "It is not altogether clear which of two things the trader ought to do: quit his business and not go to the fair at all: or leave his goods without any body to take care of them." In other words, Bentham points out the huge gap in the common law--people at fairs, who have lots of their goods to protect, are seemingly not protected by the laws against burglary. This is completely ridiculous to Bentham. And, to make things worse, because B speaks with such an authoritative tone throughout his work, he gives the impression that this is the way things must be.

2. Let's continue with the idea of burglary for a moment. Bentham says. "It is not here (i.e., in pages 47-53), that after telling us, in express terms, there must be an 'actual breaking' to make burglary, he tells us, in the same breath, and in terms equally express, where burglary may be without actual breaking; and this because 'the Law will not suffer itself to be trifled with" (fn 10). Then, if we turn to fn. 10 we discover the following in B's words. "There must be an actual breaking, not a mere legal clausum fregit (by leaping over invisible ideal boundaries..) but a substantial and forcible irruption." Then, B goes on to say, after listing several other cases, "all these entries have been adjudged burglarious, though there was no actual breaking." Again, Bentham is beside himself when the great authority B says, in the space of a page, things that are self-contradictory. Burglary requires a breaking. Burglary doesn't require a breaking. And, then, to top it off, he quotes B to say, "the Law will not suffer itself to be trifled with by such evasions.' Bentham comments: "Can it be more egregiously trifled with than by such reasons?"

Comment and Conclusion

Much more can be said by way of Bentham's examples, but you get the picture. He will "pass over" other sections of the book, where he no doubt had made copious notes when he studied B for the first time, because he only wants to focus on 47-53. However B's method and comments in other areas is simply "too good to lose." Thus, Bentham brings up many examples of it. He is enraged by B because B is full of contradictions and then proclaims that things are exactly the way they should be. For an ambitious 28 year-old with an incisive mind and an impatient disposition, this simply isn't acceptable.

In closing, however, I want to say something in B's defense. B's great contribution was to gather and systematize the CL from decisions, treatises and statutes that were largely inaccessible to almost all lawyers and judges. He brought them together in one place. This work was not easy work (and I don't think Bentham appreciates that). And, when you rummage through six centuries of CL decisions and statutes and treatises, what do you think you find? Tons of contradictions. B happens to be the one who brings this to the surface. That he covered over his treatment with a philosophy encouraging the status quo was to be expected. He did, however, produce enough of a work to show to the world what Bentham would contend: that the CL, rather than being an orderly system of consistent precedents, was really a jerry-rigged series of inconsistent and obscure decisions. B should have been thanked for his labors, I think.

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