The publication of Philip Schofield's magisterial edition of Bentham's Of the Limits of the Penal Branch of Jurisprudence Footnote ¹ affords an opportunity to reflect more generally on the aspect of Bentham's early work that gave rise to the frustration vented by George Wilson in the letter quoted above. That frustration – and the resulting exasperation – reflected a dozen years’ observation of Bentham's early career. By the beginning of 1776 they had known one another long enough for Wilson to ask to be ‘remember'd’ to Bentham's brother Samuel ‘in the most magnificent manner imaginable’.Footnote ² Bentham's first major publication, A Fragment on Government, was to appear – anonymously – on 18 April 1776; and its ‘fragmentary’ character reflected the fact that it had been quarried from A Comment on the Commentaries, in which Bentham dealt at length and at large with Blackstone's account of English law. Yet that broader work was itself a digression from the more far-reaching role in jurisprudence to which Bentham had aspired throughout his adult life. By the mid-1770s he had already written extensively on what he then entitled Elements of Critical Jurisprudence or Principles of Legal Polity.Footnote ³ Within that context, again, Bentham was concentrating his attention on the theme and problems of punishment. Writing – or at least drafting a letter – to Voltaire, probably in November 1776, he referred to ‘a thick volume . . . entitled Theory of Punishment’. Manuscript material on that subject was, to be sure, already in waiting; but no such ‘volume’ would ever appear.Footnote ⁴

Bentham declared in the letter just cited that he intended to ‘bestow . . . the rest of his days’ upon his ‘Theory of Punishment’; but (as Wilson and others might have foreseen) this programme was not to be fulfilled. He worked on the subject in the early months of 1777, and was able to report in April that Wilson had read ‘a Chapter or two’ with approval and the exclamation ‘Well I wish to God it were out.’Footnote ⁵ Writing to his father on 25 August from Battle (where he and Wilson were staying), Bentham said that he hoped to be able ‘to committ [the book] to the press as soon as I return to London’. On 8 October, however, he wrote uneasily in response to his father's ‘offer about the printing of my book’. By late November he was hoping soon to ‘begin to revise for publication’, but this was to be another instance of ‘hope deferred’.Footnote ⁶ Two new factors contributed to that further – and, as it would prove, indefinite – delay. The first of these was indeed closely linked to the work on punishment: the title-page of A View of the Hard-Labour Bill, besides identifying the author as ‘Jeremy Bentham, of Lincoln's Inn, Esq.’, refers explicitly to ‘penal jurisdiction in general’. When it was about to be published in the spring of 1778, Bentham wrote to William Eden, by whom the bill had been drafted, with a manuscript of his preface (considerably abridged in the printed version).Footnote ⁷ Copies were sent to all the judges, including Bentham's old adversary Blackstone, from whom (Bentham told François Jean Chastellux) he received a courteous and complimentary reply and a copy of the revised text of the bill.Footnote ⁸

The letter to Chastellux and letters of the same period addressed to André Morellet and to Jean le Rond d'Alembert echo and confirm what Bentham had said earlier in his letter to Voltaire. He saw himself as participating with them in what has come to be called the Enlightenment. From Helvétius (he told d'Alembert) he had taken up ‘le flambeau que j’ espere porter un jour dans les sentiers les plus etroits de la politique et peut-etre de la morale’; and from d'Alembert himself he had grasped ‘le fil du labyrinthe des connoissances humaines’. Regarding that claim it is noteworthy that the draft letter in which it is made is followed in Bentham's file of what he called ‘Legislaturientes epistolae’ by a fifty-page account – also headed ‘a d'A[lembert]’ – of some basic elements in Bentham's thinking at this period, and especially of his theory of fictions. The relation between that theory and d'Alembert's concept of êtres fictifs is, to be sure, debatable; but d'Alembert was certainly an important figure for Bentham at this period – and was, for that matter, to be significant in the later development of his theory of fictions.Footnote ⁹

The second factor diverting Bentham's attention from his ‘capital work’ must now be considered. Writing to his father on 8 October 1777, Bentham mentions having seen a newspaper ‘Advertisement by the Oeconomical Society of Bern in Switzerland offering a premium of 50 Louis for a Draught of a Code of Criminal Law to be produced before 1st July 1779’. He adds that ‘[i]t gave me some pleasure to see this, as it is a proof of the attention bestow'd on these subjects in other countries besides our own.’Footnote ¹⁰ There is at this stage no suggestion that Bentham himself might enter the competition, nor do his letters during the next six months or so mention such a possibility. In the spring of 1778, however, with his work on Eden's penitentiary bill completed, he wrote a long account of his activities in a letter to a family friend of earlier years. The Rev. John Forster was then chaplain in St Petersburg, and the Empress Catherine was one of the sovereigns – actually, or believed to be potentially, ‘enlightened’ – whom Bentham had in mind when writing his ‘Legislaturientes epistolae’. Catherine's appointment in 1767 of a Commission to draw up a new code of law for the Russian empire was known to Bentham in the 1769 English translation of the account of the matter by Mikhail Tatischev, to whom Forster had introduced him, and with whom he seems to have been in occasional contact in the 1770s.

In his letter to Forster Bentham says that he had

Not until the early autumn, however, is there any evidence of his having begun serious work on the Code. In a letter to his brother on 10/11 September he says ‘I have begun my Code of Criminal Law which I take more pleasure in than in my Punishments.’ And a reference to the presentation of the Code ‘by July next’ makes it clear that he now intended to enter the Bern competition.Footnote ¹² By the following March he was referring to ‘a not improbable method of conveying Code to Berne by the Post franco: which would give me till within a fortnight of July in point of time. I am going to write about it to the Secretary Triboulet.’Footnote ¹³ Three weeks later, on 30 March 1779, Bentham wrote a long letter to Franz Ludwig Tribolet, secretary since 1769 of the Oeconomical Society of Bern.Footnote ¹⁴ Assuring Tribolet that he was ‘le seul anglois qui s'occupe à un tel dessein’, he set out ‘une idée très courte et par conséquent tres imparfaite de mon plan’. This need not be reviewed at length here, though it does afford evidence that, together with other indications, should illuminate a crucial and recurrent theme in Bentham's thought.

Only towards the end of this account of the penal code as he saw it in 1779 does Bentham deal with what would eventually become the Introduction to the Principles of Morals and Legislation. He already envisaged introductory chapters dealing with the evaluation of pleasures and pains; with the various species of those experiences; with the corresponding motives; with the understanding and the will in respect of intention or its absence; with rules of proportionality between offences and punishments; with the nature of the harm caused by an offence; and with the division of offences. These chapters would be followed by a further three dealing with what Bacon called Leges Legum – with the composition, promulgation and interpretation of the law. Then, after a reference to procedure and evidence, Bentham says, ‘Le tout finit par un analyse des moyens que semble fournir la nature des choses pour prèvenir les délites [sic]’. The essential shape of what has perhaps been Bentham's best-known book here makes its earliest appearance.

In 1779, however, there was no question of separate publication of an introduction which even ten years later remained incomplete. The urgency now was to complete the substantive code by the required date. That deadline seems, indeed, to have been extended from the original date in July. Bentham was at work on ‘the doctrine of “Motives” . . . Item that of “Dispositions” ’ in the course of September;Footnote ¹⁵ and by late November he reported to his brother ‘Quant au Code, il paroit decidé que je le ferai imprimer d'abord: et que dans cet etat j’ enverrai l'exemplaire a Berne.’Footnote ¹⁶ Thereafter, however, the emphasis shifts to the possibility of presenting the Code to rulers in central and eastern Europe, and above all to the Empress Catherine. Samuel returned repeatedly in his letters to this possibility and revealed increasing anxiety at Jeremy's failure to report any substantial progress. When George Wilson wrote to Samuel at length (and in French at Bentham's insistence) in March/April 1780, he said that he had had no greater success in ascertaining how Bentham's work on the Code had progressed:

Writing in late January 1780, Samuel said ‘You must send me 2 or 3 copies of the English and ½ a dozen at least of the German Translation’ – unaware, it seems, of the fact that so much of ‘the English’ remained unwritten, while ‘the German Translation’ did not, and never would, exist.Footnote ¹⁸ Printing of the introduction, however, had begun. On 1 April 1780, Bentham wrote to Samuel:

A day or two later Bentham returned to the subject:

Writing again on 10 April, Bentham said that he had already received

Here Bentham refers forward to a later paragraph:

Promising to send Samuel by early July ‘as much [of the Introduction] as happens to be done for your own reading’, Bentham added that ‘Wilson expressed more satisfaction at the 2d Sheet than I ever knew him to express in my life.’ At the same time Bentham referred to ‘the uncertainty there is whether any more of [his Code] will be published than the Introduction’ – seemingly the earliest reference to the possibility that the Introduction might be published as a separate work.Footnote ²¹ Ironically, Samuel was at almost the same time writing to his brother in terms that assumed a very different set of circumstances:

One may well wonder what Bentham thought of this ‘fraternal correction’ by his much younger brother!

When Samuel wrote again only a few days later, his uneasiness had increased:

He still hoped that, in accordance with the plan the brothers then had in mind, Bentham might follow him to Russia, bringing with him the Code manuscript (provided that it was ‘finished so far as to have no further occasion for books – no – if it be entirely finished and has passed Wilson's examination’).Footnote ²³ Not for another five years, in the event, did Bentham at last join his brother in Russia. Other possibilities intervened, offering Bentham the prospect of advancing his career in England. These indeed arose from Samuel's journey to Russia, for which letters of recommendation had been provided by the Earl of Shelburne. Between September 1779 and June or early July 1780 Bentham sent Shelburne ‘intelligence’ reports from Samuel's letters; and on 26 July the earl replied. He apologized for the delay in ‘thanking him for his great civility and attention’ – delay due to his not having Bentham's ‘Direction . . . and lately the Health of his Family’. He would ‘be glad of an opportunity of seeing him any morning except Fryday in this week or Monday in the next, as early as Mr Bentham pleases’.

Nothing came immediately of this courteous invitation. Bentham replied on the following day, expressing the hope that ‘it will not be imputed to any want of respect or gratitude that he declines waiting on his Lordship for the present, being about to leave London for the summer in the course of a few days’.Footnote ²⁴ In fact it was not until mid-August that he and Wilson left London to spend the summer at Thorpe. The inadequacy of this response to Shelburne reflects Bentham's characteristic tendency to hang back when faced with what others would have seen as golden opportunities for self-advancement. At the end of a long letter to his brother on 6 August he suggested reasons for declining the invitation:

Meanwhile the Introduction to the Code was still proving problematic. In the letter just cited Bentham says,

At the same time Bentham had been pursuing the possibility of a German translation by Johann Friedrich Schiller, ‘who lives here by his pen being employed by German Booksellers’. Of Schiller's version of Adam Smith's Wealth of Nations,

Undeterred, in mid-August, Bentham

Appearances, however, were deceptive: ‘He turned out after all to be a more respectable man than one should easily meet with, having been 19 years in this country.’ Moreover, Bentham continued,

Fair prospects, however, soon faded. Writing to Samuel on 29 October Bentham said that he had ‘not heard anything from Schiller, though he promised me to write as soon as he had heard from his bookseller. I wrote to him about a week ago but have had no answer. Some how or other’ (Bentham still believed) ‘it will certainly be done by him: the only question will be whether it will be necessary for me to be at any expence about it.’ A week or so later, Bentham said ‘Well my Sam, the business of the translation is now I hope tolerably well settled.’ Schiller had been corresponding with the Leipzig bookseller Reich, who had turned down the proposed translation of the Code as a whole, but had now been approached with a view to his publishing the translation of the Introduction by Schiller, who ‘reckons to translate 3 or 4 of my sheets in a week, and send it off 7 or 8 sheets at a time’. Further letters in November and December indicated that matters were proceeding in accordance with this forecast; and Schiller's enthusiasm was such that, if no bookseller could be persuaded to undertake publication, he proposed that he and Bentham should jointly finance the project. Schiller hoped to complete the translation by February 1781 and estimated a further two months for printing. By the end of the year he had translated, though not yet revised, 108 pages.Footnote ²⁸ All this makes it the more remarkable that after the end of 1780 there seems to be no reference in surviving correspondence to the projected German translation apart from Samuel's remark in one of his letters – ‘Don't attach yourself to Germans. There is something in their general character [remainder illegible]’.Footnote ²⁹

The suspension of the translation may, however, have been, at least in part, the result of difficulties Bentham had encountered in the original Introduction. In early August 1780, as already noted, Bentham referred to his having had to rewrite a substantial part of the Introduction. The point was dealt with more fully in a letter to Samuel at the end of October:

Bentham then says, ‘In my last . . . of Aug. 9th I sent you the Prospectus in its corrected state.’ No such letter seems to be extant, but the Prospectus referred to is presumably the ‘Plan of a Penal code – Prospectus’ to be found in one of the Bentham letter-books in the British Library. This is headed ‘Prospectus of a Work entitled Plan of a Penal Code by Jeremy Bentham’. The Code was to be in two Books, the first dealing with offences, the second with penal procedure, while an appendix would be devoted to the composition, promulgation, interpretation and improvement of the law – with, in effect, the form of the law, the substance having been dealt with in Book I.Footnote ³¹ How much – or how little – of this ambitious programme had been achieved at this stage cannot be determined with any certainty.

Meanwhile the relationship with Shelburne made as much progress as Bentham was prepared to accept. In mid-November he reported to Samuel that he had ‘not yet been to [Shelburne]. Now I suppose it is designed I should go as I please; but I think it will wait till Introd. is printed. He will then know the better in what character to receive me.’Footnote ³² In the event, however, it was Bentham himself who was to ‘receive’ Shelburne when they met – at last – in the summer of 1781.Footnote ³³ The date of their first meeting cannot be precisely determined. Writing to Shelburne on 18 July, Bentham refers to ‘the conversation I was last honoured with’, which seems to imply that they had met and talked more than once, the first meeting at Bentham's Lincoln's Inn chambers having been followed by his visiting Shelburne House. Since that visit, he now assured Shelburne, ‘the nature of my design has led me to bestow upon the constitutional branch of law a share of attention which certainly has not been the less solicitous for a hint which fell from your Lordship on that subject’. Shelburne's ‘hint’ had in fact (as Bentham's draft of the letter reveals) been the ‘question put to me by your Lordship . . . how it happen'd that I had not made the constitutional branch of the law the first object of my enquiry’.Footnote ³⁴ Over forty years later the uneasiness this question caused still survived – complicated by uncertain memory – in a note added to the 1823 edition of the Introduction to the Principles:

At the time his response to Shelburne had been quite different, and the ground on which it rested had varied as he wrestled with the phrasing of his letter in July 1781. In the letter he finally sent, he said that in the time since he received Shelburne's ‘hint’,

In an earlier draft Bentham had adopted a different approach, referring to Shelburne's question about constitutional law as ‘one of those which convey instruction as they seem to demand it: had it been my good fortune to have been earlier in the way of receiving such lessons, my book would have been better, and sooner written’.Footnote ³⁷ He then suggests that ‘the answer’ to Shelburne's question which he ‘could not then give’ would be found in a paragraph of the sixteenth chapter of his Introduction – a paragraph which is unfortunately not specifically identified and which may not have survived Bentham's extensive revisions of that lengthy chapter.Footnote ³⁸

Bentham then puts this in the context of his view of government. There are two draft versions here. In the first

Revising this passage again, Bentham wrote

Then, after suggesting that ‘farther elucidations would be most commodiously given by means of such occasional extemporaneous illustrations as the turn of the conversation may demand’, Bentham continues,

The confused metaphors perhaps reflect Bentham's difficulty in resolving the problem Shelburne had posed.

Replying on 26 July (from Cheltenham) to the letter Bentham eventually sent, Shelburne said that he had ‘brought the Fragment here meaning to read it again’ and suggesting that Bentham might join him at Bowood after ‘the end of next Week’. True to form – but perhaps this time on more genuine grounds – Bentham deferred his acceptance until, on medical advice, he had spent some time sea-bathing at Chatham. Eventually, on 17 August, Bentham began what was to be for the next two months (in Ian Christie's editorial words) ‘a memorable experience of gracious living in an intellectual household which was also a focus of national politics’.Footnote ³⁹ Letters – especially long letters to George Wilson – provide a detailed record of that experience but do not throw light specifically either on the personal relationship between host and guest or on the development of Bentham's work on the Introduction to his penal code. In both respects it is necessary to look elsewhere.

One source is to be found in the long Preface to the 1823 edition of A Fragment on Government written by Bentham and printed but not then published. It is a source to be used with the caution that is always advisable in regard to personal recollections of times long past. What Bentham says is that a few days after his arrival at Bowood,

Bentham claims that he was later able ‘to do something for him’; but he insists that what he did ‘was always in pursuit of the greatest happiness principle and that Shelburne did not know of it beforehand.Footnote ⁴⁰

In the winter and spring following the Bowood visit Bentham's surviving correspondence is unusually sparse. Five letters to Samuel between November 1781 and April 1782 are missing, and only one other letter written by Bentham in the following six months survives. That letter, however, is of critical importance. Prompted by Shelburne, Bentham wrote, on 3 June 1782, to Lord Ashburton, whom he had met at Bowood, with a copy of the already printed part of his Introduction, and an explanation of the development of the work. He went on to expound the origin and scope of the continuation he now envisaged.Footnote ⁴¹ This is set out as a series of chapters numbered from 18 to 40 sequentially with those already printed and ending with chapters on ‘Indirect or preventive Legislation’ and on the ‘Influence of time and place on the expediency of a law’. Bentham then explained that the subject of reward, which might logically have been dealt with together with punishment, was such as ‘in a volume of itself . . . might be rather more readable than the rest’. As for the substantive code,

The next paragraph opens with the words ‘My present plan . . . ’; but what follows is in fact a series of options illustrating graphically the tendency Wilson deplored in his friend. It is true that Bentham had reached one firm decision: ‘to publish what is printed of the Introduction by itself’ – though even that was ‘to wait . . . for the completion of the book on Indirect legislation’. These two would be published together,

Predictably, the paragraph ends with a statement of indecision – ‘What I shall finish next . . . I have not yet determined.’

Yet Bentham's sense of vocation remained as strong and as grandiose as ever:

The plans – and the hesitations – expressed in the letter to Ashburton appear in summary form in a document published by Hart as an appendix to Of Laws in General. (It was indeed from that document that the title of Hart's volume was derived.)Footnote ⁴² This originally envisaged the continuation of the introduction to the penal code in what would have been chapters 17 to 41, of which chapters 38 to 41 would have dealt with ‘Indirect Legislation’, with the ‘Influence of Place and Time on the expediency of a law’, with the ‘Idea of a complete corpus Juris’, and finally with the ‘Plan of Book I’. This is followed, in the fifth of the columns into which the manuscript is ruled, by ‘Ordo March 1782’. Under that heading Bentham made another aborted attempt to organize the material he was finding so recalcitrant; but it is a further and more successful attempt that is crucially important here. In this scheme Bentham renumbered what would have been chapters 17–37 as i–xxi. These Roman numerals make sense only if they apply to chapters in a distinct work, and that is clearly what was envisaged at that stage. Just when that stage was reached is a more difficult problem to resolve.

Before pursuing that problem, we should note that, sometime in 1783, Bentham made various adjustments to the text already in print of the Introduction to his penal code. These were indicated either in the text or in the list of errata at the end of the 1789 edition. Some are alternatives to words or phrases in the text. Others are substantive. In Chapter vii (‘Of Human Actions in General’), for instance, Bentham added the distinction between simple and complex acts. At the end of Chapter x a reference to the ‘Essay on Indirect Legislation’ was to replace ‘See Append. tit. (Preventive Institutions)’; and later in the chapter we find ‘See . . . Ch. xviii (Indirect Legislation)’. In amending the long footnote at the beginning of Chapter xvi Bentham sought to clarify the distinction between the ‘congruencies’ of objects and their usual ‘names’ by inserting ‘real’ in the first case and ‘current’ in the other; and he proposed to replace ‘a conformable set of names’ by ‘other more apposite denominations’. He also extended from thirteen items to nineteen the list of the ‘principal kinds of offences against property’.

Other instances could be cited; but it is more important here to consider the evidence these textual adjustments provide of Bentham's having been, in 1783, actively considering the publication of the Introduction, certainly before the substantive Code and probably without its extension beyond Chapter xvii. When he first met Jacques-Pierre Brissot in December 1782 he must have told him that this was soon to take place; and Brissot prematurely announced in 1783 the forthcoming publication of Bentham's Principes de législation sur les lois pénales.Footnote ⁴³ Bentham may have given similarly optimistic indications to Samuel, who said in a letter of 30 May/10 June, ‘I wonder I hear nothing about “Principles of Penal Jurisprudence”.’Footnote ⁴⁴ Writing again a few weeks later, Samuel put the case for having the French text of the Code printed and published in Russia.Footnote ⁴⁵ Bentham, writing to his father from Brompton in Kent on 8 July, was presumably referring to work on the Code when he said that his situation there was ‘very favourable to the only occupation and the only amusement I am capable of . . . I get forward here much better than at London.’Footnote ⁴⁶ Samuel, writing on 16/27 July, was still pursuing the possibility of a French text for Russian readers, but was uncertain as to the scale of the work his brother had in mind: ‘As you profess it to be a Corps detaillé and complete ensemble 700 pages 8vo. however closely printed appear to be very little to contain so much matter.’Footnote ⁴⁷

Samuel, writing on 14/25 October 1783, also provides the next evidence we have. By then the possibility of Bentham's joining his brother in Russia was being actively considered; but Samuel warned – ‘Do not however think of coming unless you can stay at least till the spring, or even if we see occasion till the latter end of the summer.’ One purpose would be the brothers’ ‘reading over your works together and gutting them to make them pallateable [sic] to this country’. However, if the printing of Bentham's work had already started, his Russian visit should be postponed until the spring.Footnote ⁴⁸ Many of Bentham's letters to his brother in Russia have not survived, and references there to his progress – or lack of progress – in his work are known only from Samuel's replies. Thus, in a letter completed on 9 March 1784, Bentham had said that ‘Projet is . . . near finished’ – referring to the work under the French title that eventually became Projet d'un corps complet de droit.Footnote ⁴⁹ Samuel's reply, written on 7/18 April 1784, did not reach Bentham until 4 July, when he was preoccupied by his duties as executor of his uncle George Woodward Grove's will (and also suffering from eye trouble). He had written to Samuel on 28 April with the news of their uncle's death at Whitchurch in Hampshire; but that letter did not reach Krichev until the end of August. Earlier in the summer, plans for Bentham to join his brother were taking shape. In a long letter written in the latter part of June, Samuel dealt with such matters as the ‘Cloaths’ Bentham should bring with him.Footnote ⁵⁰ This letter did not arrive until 3 November, when Bentham was still at Whitchurch, where it was followed two days later by a letter of 14/25 September – a fortnight after Samuel had received the news of his uncle's death. He was ‘affraid [sic] of your being obliged to postpone your visit to me but I hope at any rate to see you this year’.Footnote ⁵¹

In fact the brothers did not meet again for another year and more; but Bentham's journey to Russia was his principal concern after he had returned to London from Whitchurch. His letters to Samuel in the early months of 1785 are missing; and other correspondence of that period is limited and principally concerned with necessary travel arrangements. The value of the relationship with Lansdowne (as Shelburne had now become) was demonstrated at this stage, and its cordiality is manifest in a letter he wrote to Bentham on 9 April 1785:

Almost on the eve of his departure on 6 August Bentham wrote to Lansdowne that he had been ‘perfectly oppressed of late with so many repeated marks of your Lordship's kindness’ and that he ‘felt some compunction at the thoughts [sic] of giving so much exercise to hands so much better employed in wielding the reins of government’.Footnote ⁵³

For Bentham's journey to Russia the principal source of information is in his letters to his father, which amount in effect to a lengthy travel journal.Footnote ⁵⁴ Interesting though this is in other respects, it tells us nothing of any progress Bentham may have made in his own thinking and writing. He certainly had Code material with him and was at work on it now that it was intended especially for the eyes of the Empress Catherine. In one of the shorter letters to his father from Krichev, dated 16/27 June 1786, Bentham says that besides his assistance to Samuel,

On 24 September George Wilson (replying belatedly to a letter Bentham had written on 20 May/9 June which had miscarried) told Bentham that

When Wilson goes on to refer to Paley's ‘clear, manly, simple style’, we may suspect an oblique animadversion on his friend's prose; but Bentham, replying on 19/30 December, assumed a certain jocularity when he expressed

Wilson must surely have recognized here the tendency he had so long deplored. Bentham was again ‘running from a good scheme to a better’; but at least he could now plead in extenuation that both Wilson and Trail had ‘passed sentence on my Introduction to a Penal Code, alias Principles of Legislation, alias I don't know what besides, and there's an end of it’.Footnote ⁵⁷ The rest of this letter is mostly concerned with arrangements for the preparation, printing and eventual publication of Panopticon (Bentham's ‘little tinsel’), the manuscript of which was sent for Wilson and Trail to deal with. Bentham did, however, return finally to the Introduction and to the Code it was meant to introduce:

As for the Code, Bentham says that it

When he next wrote to Wilson, on 9/20 February 1787, Bentham said that he was ‘writing letters to you abusing Pitt for being about to reduce the rate of interest, and abusing the world for limiting the rate of interest at all’ – the earliest reference to what became A Defence of Usury. He was also ‘marginal-contenting Essai sur les Recompenses about the size of Beccaria's book, with Voltaire's Comment added to it’. This was the material he had already, in the letter to Ashburton, envisaged as a separate work; but it was not to be published until 1811, when it appeared in the second volume of Dumont's Théorie des Peines et des Récompenses. Bentham also told Wilson that ‘All that I have to say on the civil branch of the law is marginal-contented and ready for reading were you but here’, adding that it was ‘a preceding introductory book’.Footnote ⁵⁹

That description is not easy to interpret; but some guidance may be provided by manuscript ‘marginals’ headed ‘Code Civil’ in the University College London collection – in particular the material Bentham envisaged as three volumes of ‘Essays’.Footnote ⁶⁰ The manuscript is undated, but there are indications of its having been written during Bentham's Russian sojourn. In his ‘Plan’ for the work he noted ‘Playfair's book’; and, writing to George Wilson in May 1787, he referred to a ‘trumpery book . . . called the Interest of Money Considered’. This was William Playfair's The Increase of Manufactures, Commerce and Finance, with the Extension of Civil Liberty, published in 1785 – ‘just before I left England’.Footnote ⁶¹ An even earlier date may be indicated when Bentham refers to one of his ‘Political Essays’ as ‘a Letter to the Rt. Rev. D^r Warren, L^d Bishop of St David's’ – John Warren, bishop of St David's from 1779 to 1783. The material summarized in these marginals, written in French in the mid or late 1780s, is also in the University College London collection.Footnote ⁶² Bentham added at the end of the marginal summary the title of a projected French version of what was planned as the Introduction to his Penal Code: ‘Principes de legislation par rapport a la Forme du Systeme des Loix [;] Y compris Projet d'un Pannomion et Elemens de Jurisprudence Universelle’. In the event nothing came at this stage of either the volumes of ‘Essays’ or the French version of the ‘Introduction’.

By the time he wrote the February 1787 letter to Wilson quoted above, Bentham was

There is perhaps a degree of paranoia in this; but in any case for the time being nothing came of the notion.

At much the same time, on 26 February 1787, Wilson, in a letter he and Trail wrote to Bentham, pressed the case for his friend's return; but he also disclaimed responsibility for the fact that ‘you have abandoned your Introduction, your Code, your Punishments, etc. The reason lies in your constitution. With one-tenth part of your genius, and a common degree of steadiness, both Sam and you would long since have risen to great eminence.’ He went on to reinforce the case for Bentham's return to England by referring to his ‘worldly interest’: ‘If your father should not be wrought on to alter his will, there is great danger of his squandering his fortune . . . there are new whims every day, and all of them expensive.’Footnote ⁶⁵ Wilson and Trail's next letter, written on 12 March, has not survived, but when Wilson wrote again, on 24 April, he had received Bentham's letter of 9/20 February and a further letter (missing) written in March. He reported that Jeremiah Bentham was

In mid-May, as yet unaware of his friends’ determination to avoid further attempts at publication by remote control, Bentham sent Wilson the manuscript of A Defence of Usury:

Bentham took a different view, however, of his father's plan to publish Panopticon. Writing to Jeremiah three weeks later, he said that he had come to realize that

Bentham added that his return to England, while not within two or three months, would not ‘be later than the winter roads are formed’.Footnote ⁶⁸

Wilson had received Bentham's mid-May letter by 14 July, when he wrote to Bentham with his comments on A Defence of Usury.Footnote ⁶⁹ He was inclined to approve of the work and referred to ‘the imminent danger it is in of losing the appearance of whatever merit it may possess by delay’. Nevertheless, Bentham complained, Wilson meant to ‘delay it till I don't know when, still less you’. Characteristically, however, he went on to suggest insertions and amendments to the text.Footnote ⁷⁰ Wilson no doubt became aware of Bentham's insistence, when writing to his father in May, that Panopticon should not be published before his return from Russia: he may have experienced yet again a familiar irritation at his friend's infirmity of purpose. There was, in any case, no further correspondence between them during the remainder of Bentham's time in Russia. He left on 19 November; by mid-December he had reached Warsaw and by 9 January Berlin. There he wrote to his father:

A month later Bentham reached England. He may have resided at first with his father and stepmother, since his Lincoln's Inn chambers had been let. By the spring, however, he had achieved, in Hendon, the suburban retreat to which he had looked forward from Russia over a year before – and in circumstances a good deal more comfortable than those he had then claimed to be prepared to accept. Writing to Samuel on 2 May 1788, he confessed to having been ‘very idle, doing very little to Code and feeling like a fish out of water’. He hoped, however, to

This implies that Bentham still envisaged publication in French, though it is difficult to determine what precisely he then intended to publish. Nor do we know whom Bentham meant to consult with a view to correcting the text. By the beginning of December he was, with the help of Samuel Romilly, in touch with Etienne Dimont, who was later to be largely responsible for presenting Bentham's ideas in French. At this stage, however, it was his early pamphlets on the political situation in France that were to be submitted for Dumont's criticisms and corrections. No progress seems to have been made during the summer and autumn in regard to the Code and the material associated with it. On 30 November 1788 Wilson wrote to Bentham in terms that must by then have been only too familiar to the recipient:

Wilson then suggested three possible ways of proceeding – ‘1st To finish the Introduction; 2nd To finish the Chapter on the division of offences . . . 3rd To publish the Chapters ending with (Properties) which contain 200 pages, and would make a reasonable volume.’Footnote ⁷³

Now, at last, Wilson's view prevailed. By 1 March 1789 Bentham could tell Lansdowne's son Lord Wycombe that

In the event, over thirty years would pass before there was any such call; but what is relevant here is the question whether there is any evidence of Bentham's having had the possibility in mind in 1789, and whether the answer to that question has any bearing upon the extensive material he had already written with a view originally to completing the introduction to his penal code.

Unfortunately Bentham's correspondence is of virtually no help here. His relations with the Lansdowne family were particularly close at this period; but most of the surviving letters were addressed to the Bowood ladies and concerned with lighter themes than his philosophy of law. And Lansdowne himself was now primarily important for Bentham as a political patron, through whose influence a seat in Parliament might be – though it was not in fact – secured. Other letters of this period – especially those to and from Dumont – are indeed concerned with Bentham's writings; but there is no mention either of the Introduction to the Principles of Morals and Legislation or of the Code it had been written to introduce.

In these circumstances such internal evidence as can be extracted from the extant manuscripts is crucial. The tentative plan for three volumes of essays itself looked back to the document outlining the scheme Bentham had in mind in 1782 (also set out in his letter to Ashburton). His plans had not then taken definitive shape; and at some point he evidently considered the possibility that some of the still unprinted chapters of the Introduction to his penal code might make a distinct work. That is surely implied by his insertion of the Roman numerals i–xxi alongside the earlier Arabic 17–37.Footnote ⁷⁵ The heading of the manuscript in question is ‘Of Laws in General. Table of the Chapters’. Now it is clear that this was intended to apply to all the chapters Bentham had first envisaged as the continuation of the already printed part of the Introduction to his penal code. The annexation of the title Of Laws in General for only a part of that material was, in a sense, usurpation. It does not follow, however, that Hart was mistaken in treating the chapters to which he gave that title (as Everett had treated them) as a work that could stand on its own. It is clear that Bentham himself had not definitively drawn the line separating that work from what became his Introduction to the Principles of Morals and Legislation. What is less clear is that a chapter heading in that text – Of the Limits of the Penal Branch of Legislation – is an appropriate title for the edition in which it has most recently appeared.

Whatever the form in which the material was originally conceived and drafted, it is clear that by 1782 Bentham had it in mind to extend the Introduction to his penal code in what would have become chapters 19–41, each with its own specific heading. When the roman numerals were inserted, however, Bentham must have been considering the possibility of publishing those chapters as a work in its own right. It is a tempting, though unverifiable, hypothesis that this was in his mind when, having returned from Russia, he was urged by Wilson to publish the Introduction to the Code more or less as it then stood in print. When he did so he decided to elucidate some of its problematic characteristics in a lengthy Preface. He says that he would have preferred to present the basic principles of his jurisprudence in a new form; but ‘an unfathomable distance’ would have intervened before that goal could be achieved. This closed the door on any immediate possibility of his fulfilling such a project at that stage. Bentham offers ‘a slight sketch’ of the questions he would have faced in doing so: ‘Wherein consisted the identity and completeness of a law? What the distinction, and where the separation, between a penal and a civil law? What the distinction, and where the separation, between the penal and other branches of the law?’Footnote ⁷⁶ Might not Bentham at this stage, with the Introduction to the Principles duly launched, have gone back to what had originally been intended as a continuation and considered it as at least a possible basis for the reformulation of basic principles that was not possible amid the pressures of 1788–9?

Speculation beyond this point lacks any substantial evidence to support it; but perhaps there is at least a hint as to the title Bentham could have thought suitable for the work in part of the subtitle in the planned French Projet mentioned above. In English translation this would read Elements of Universal Jurisprudence and that might indeed be appropriate enough for what Bentham had – or may have had – in mind as the sequel to what he had at last published in 1789. The only firm conclusion to be drawn, however, is that a work that has come to be regarded as Bentham's most original contribution to philosophical jurisprudence lay hidden for more than a century and a half, thanks largely to his own inconstancy – not to say infirmity – of purpose.