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Special issue

Bentham and Australia

Bentham et l’Australie
David Llewellyn

Résumés

L'utilitarisme benthamien a été influent en Grande-Bretagne pendant la première moitié du XIXe siècle. Bentham et ses partisans s'intéressèrent plus particulièrement aux colonies britanniques. En conséquence, les principales institutions australiennes ont été fortement influencées par les idées de Bentham, notamment en ce qui concerne les questions relatives à la démocratie, la loi et la punition. Les philosophes radicaux à Londres, et leurs disciples dans les colonies, ont eu une profonde influence sur leur développement par leur action au parlement, et en tant que théoriciens et militants. Cet article attire l’attention sur certains des domaines d’influence des idées de Bentham en Australie et essaie de comprendre pourquoi l’Australie a été décrite comme une société benthamienne.

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Texte intégral

Introduction

  • 1 McMahon, Darrin, The Pursuit of Happiness, a History from the Greeks to the Present (London, Allen (...)

1The early nineteenth century was a time of political uncertainty in Britain. American independence and federation, along with the French revolution, provided examples of extreme changes in social order that both inspired and threatened. In 1835 de Musset declared ‘All that was is no longer, and all that will be is not yet made’.1 The new world had not yet taken shape, and the future was vague and difficult to discern.

2Bentham’s political and legal writings helped define many developments in de Musset’s emerging world, particularly in British colonies. In the Australian context, Bentham’s first intervention was in relation to penal reform. Bentham encouraged incarceration in his panopticon in preference to transportation, which he opposed as he thought it excessively punitive and did not promote reform in the prisoner. In this context, in 1803, he advised Lieutenant Governor David Collins just prior to Collins’ setting sail for Bass Strait to create a new convict settlement. Five years later, Bentham’s writings on sources of the Governor’s authority may have helped bring about the Rum Rebellion in New South Wales, resulting in the removal of Governor Bligh. These activities are briefly discussed in the next section.

3By the 1830s Bentham had a significant following of democratic reformers, largely through his association with James Mill and Francis Place. One group, known as the philosophic radicals, had a particular interest in the Australian colonies, and included parliamentarians William Molesworth and Charles Buller. John Stuart Mill worked closely with them, but from outside of parliament. Main attributes of Bentham’s ideas they adopted included assessing law, including constitutions, from the perspective of the ‘greatest happiness’ principle, including subjecting law to a cost-benefit analysis; a rejection of natural law and natural rights along with the promotion of law by legislation; and laws to enhance the accountability of parliament to the people, including a wide franchise.

4One of the first policy interventions in the Australian colonies by the philosophic radicals and their close colleagues, was the promotion of the theory of ‘systematic colonisation’ developed by Edward Gibbon Wakefield. Briefly, Wakefield’s system encouraged disposal of land in Australia by sale at a set minimum price rather than by grant. This intervention is discussed in the third section.

5Systematic colonisation had a political aspect, as Wakefield’s system encouraged colonial independence, and the philosophic radicals looked towards the development of democratic institutions in the colonies. Section four discusses the involvement of Bentham’s followers in early to mid-century democratic reform in Australia. During the 1830s Bentham’s followers had participated in democratic movements that gained traction in Britain. They played an important role in the passage of the Reform Bill of 1832, and also in drafting and promoting the 1838 Charter. The Charter inspired a decade of agitation for its six points of democratic reform. In Australia, the desire for the creation of representative institutions had existed from the early days of European arrival, and were proposed both by the autocratic governor and civilians. By the late 1820s the civilian population outnumbered the combined convict and military population, and during the 1830s Australia began to emerge from its status as a penal colony. Serious attention was given to the systems under which civil society could flourish. Just at this time followers of Jeremy Bentham, including the philosophic radicals, became interested in colonial economics, social organisation, and politics, alongside their active involvement in British democratic reform. Some of Bentham’s followers, such as Buller, Molesworth and J.S. Mill in Britain, and Henry Chapman in Australia, played important roles in writing and promoting colonial constitutions that were ever more democratic and representative.

  • 2 Collins, Hugh, « Political Ideology in Australia: The Distinctiveness of a Benthamite Society » in (...)

6The Benthamite contribution to Australia also extended to fields such as the construction of local government, education, electoral laws, women’s empowerment, and, arguably, the character of Australian liberalism. In fact, so profound an effect was had by Bentham and his followers that Hugh Collins has referred to Australia as a Benthamite society.2 Many others, too, over the last 200 years have noted the central role Bentham’s ideas, and the activities of Bentham himself along with his followers, in the development of Australian society and its institutions. Section five and six examines the flavour of liberalism that emerged in Australia, with particular reference to Bentham’s political philosophy. Section five notes that Australia has been characterised both as individualistic, and as directed towards state action. Section six examines claims by scholars that tend, in different ways, to reconcile these characterisations. The ideas of scholars such as Frederick Rosen, Len Hume, and Michael James are drawn together, providing differing perspectives on the tension in Australia between individualism and collectivism, and the relationship of this tension to Benthamism.

7In total, it becomes apparent that Bentham’s ideas have been influential in the development of Australia for almost the entire period since the arrival of the first fleet, and that Australia provides on example of a world de Musset could not have hoped to foresee.

Early days

  • 3 Bentham, Jeremy, Writings on Australia (London, University College London, 2018).
  • 4 Twenty-Eighth Report from the Select Committee on Finance, &c—Police, including Convict Establishme (...)

8During 2018 the Bentham Project, as part of its continuing production of the The Collected Works of Jeremy Bentham, published Writings on Australia, comprising seven works by Bentham directly relating to the earliest days of the British presence in Australia.3 The collection showcases Bentham’s political, legal and practical arguments against the penal settlement in New South Wales. Bentham’s interest in New South Wales was inspired by his promotion of his panopticon prison system, a system of punishment and reform that he saw as superior to existing methods, including transportation. One of his first interventions in government policy was during 1798 when Bentham unofficially provided details of the penal colony at New South Wales to the House of Commons Select Committee on Finance for its report on convict establishments.4 Bentham’s object was to expose the costs and failures of the transportation system in contrast with the advantages he believed would attend his panopticon.

  • 5 Collins’ attempt to found a colony at Port Phillip failed and the party moved on to Van Diemen’s La (...)
  • 6 Bentham, J., A Plea for the Constitution. For a discussion on this and related themes see Causer, T (...)
  • 7 Bentham, J., A Plea for the Constitution, p.11
  • 8 Bentham, J., A Plea for the Constitution, p.85
  • 9 Bentham, J., A Plea for the Constitution, p.10
  • 10 Atkinson, Alan « Jeremy Bentham and the Rum Rebellion », Journal of the Royal Australian Historical (...)
  • 11 Atkinson, A., « Rum Rebellion » p.3. For a discussion of alternative routes of transmission see for (...)

9In 1803, Bentham met with Lieutenant Governor David Collins, the leader of an expedition to Port Phillip to found a new penal colony.5 Collins dined with Bentham three times in London during January and February just after being commissioned as lieutenant governor for a new settlement in Bass Strait, and prior to setting sail in April. Bentham had sent to Collins some of his pamphlets, and discussed the panopticon with him. The idea seems to have gained Collins’ approval. Just prior to Collins’ departure Bentham also sent to him his freshly printed pamphlet A Plea for the Constitution. In this pamphlet Bentham argued that the Governor of New South Wales lacked parliamentary authority to govern.6 Without this his was a ‘lawless power.’7 He argued that the ‘subversion of English liberties’ had been ‘the very object and final cause of the foundation of this English colony.’8 The colony had no legal basis, and was a ‘Colossus mounted upon a straw.’9 Atkinson suggests that Bentham’s ideas later provided the justification for the Rum Rebellion of 1808.10 The armed rebellion saw the overthrow of the Governor, William Bligh. Atkinson has observed that this connection with Bentham is an unexplored element in Australian history. He suggests that, as Bentham had informed few people of his ideas for fear of raising insurrection in the colony, it may have been through Collins that the ideas underpinning the Rum Rebellion reached Sydney.11

  • 12 See paper in the present special issue. See Design 5 - Architects Pty Ltd, The Separate (Model) Pri (...)

10While Bentham’s various efforts to have the transportation system terminated were not successful during his lifetime, his prison design was eventually implemented in the Australian colonies, an example being the Separate Prison at Port Arthur in Tasmania, completed in 1852.12 Another legacy of his anti-transportation stance was that during the 1830s and 40s followers of Bentham were prominent in the movement demanding the cessation of transportation to Australia. They considered the transportation system little more than a form of slavery, which they opposed. They argued the system interfered with the establishment of civil society and was economically disruptive. Amid criticism of the ills of transportation, the Wakefield system of land sales offered advantages including that it was anti-slavery and could be used to fund civilian migration. After considerable agitation, transportation ceased to New South Wales and Van Diemen’s Land during the early 1850s, and to Western Australia in 1868.

Wakefield

11During the 1820s Bentham gained a group of followers who, over the coming decades, became extremely influential in British politics and reform. These included the young men John Stuart Mill, John Roebuck, William Molesworth, and Charles Buller, all born during the first decade of the nineteenth century. All occupied a place in parliament at various times, and, with others, formed a group that became known as the ‘philosophic radicals’. Their influence was immense, not least because they showed an interest in the colonies, at the time an unfashionable subject. The successes of the Benthamite utilitarians were noted by Thomas de Quincey. In 1836, he wrote:

  • 13 DeQuincey, Thomas, A Tory's Account of Toryism, Whiggism, and Radicalism in a Letter to a Friend in (...)

the Radicals wear the erect and cheerful air of men confident in their own resources; borrowing nothing, owing nothing; having no exposures to fear, no ultimate defeats to face; the sole question for them being, as to the particular point at which their victories will stop.13

  • 14 For law of rent see Ricardo, David, On the Principles of Political Economy and Taxation (London, Jo (...)
  • 15 For a discussion of the association between Ricardo’s law of rent and Wakefield’s system, see Kittr (...)

12The most significant vehicle for their reforming ideas in the colonies was Edward Gibbon Wakefield’s project of systematic colonisation. Primarily an economic theory, based on Ricardo’s law of rent, Wakefield developed his system while serving a prison sentence for abduction.14 He had plenty of time to read of the experiences of colonists in North America. Particularly from the observations of Robert Gourlay in Canada, he noted that spreading a population thinly tended to result in the decline of civilisation, a loss of capital, and low wages. Wakefield’s solution was to concentrate the population by applying a fixed and high price for land, which, he theorised, would keep wages and profits higher than they would be without restriction.15

  • 16 Mills, Richard, The Colonization of Australia, 1829-42 – the Wakefield Experiment in Empire Buildin (...)
  • 17 Bentham, J., Colonization Company Proposal.
  • 18 Pike, Douglas, Paradise of Dissent (London, Longmans, Green, 1957) p.57, 91.

13Wakefield’s ideas were first implemented in Australia as Ripon’s Rules in 1831 in New South Wales after lobbying of the Colonial Office in London by Bentham’s followers, including by a youthful John Stuart Mill.16 The rules required land be sold rather than granted. They helped concentrate the settlement, preventing the population spreading too thinly. Bentham gave Wakefield’s theories his stamp of approval in 1831. From Wakefield’s ideas, he wrote out a plan for the settlement of South Australia.17 Bentham’s involvement in, and encouragement of the foundation of South Australia has led historian Douglas Pike to suggest he should be considered a founder of the colony.18 An important aspect of the foundation of South Australia in 1837 was that the colony would not rely on convict labour. It was to be a colony of free-settlers.

  • 19 Weinstein, David, « Imagining Darwinism » in Utilitarianism and Empire, ed. Bart Schultz and Georgi (...)

14The English philosopher, Henry Sidgwick, declared that the Colonization Society, which promoted Wakefield’s ideas, represented ‘one of the most remarkable triumphs of constructive theorising that English history has to show’ and he continued ‘[w]e may fairly attribute the success of Australia and New Zealand to the Colonization Society.’19 Richard Mills, in his Colonization of Australia published in 1915, noted that of Wakefield’s ideas one was most resilient:

  • 20 Mills, R., Colonization of Australia, p.viii

the Wakefield theory had a definite political as well as a social and economic side. Indeed, this was the only permanent part of the Wakefield system, for it was especially in the direction of responsible government for colonies that Wakefield and his followers achieved lasting results.20

Democracy

15Bentham and his followers were active supporters of democracy. Bentham’s various proposals for democratic reform were later visible in the activities of his followers in relation to the Australian colonies. Benthamite utilitarianism proposes that society should be ordered to maximise happiness in the population. As a result, Bentham was an early advocate of democracy. Bentham’s journal, the Westminster Review, declared:

  • 21 « Edinburgh Review, No. XCVII: Article on Mill’s Essays on Government, &c. ("Greatest Happiness” Pr (...)

If the happiness of men was the object of government, it was plain that this object was to be obtained by their being governed with a view to their own interest, and not to the interest of somebody else. The way to effect this was that they should govern themselves.21

  • 22 Halévy, Elie, The Growth of Philosophical Radicalism (London, Faber and Faber, 1972), p.130
  • 23 New, Chester, Lord Durham: A Biography of John George Lambton, First Earl of Durham (Oxford, Claren (...)
  • 24 Rosen, Frederick, « Introduction » in Bentham’s Theory of Law and Public Opinion, eds. Xiaobo Zhai (...)

16Bentham developed his ideas in works such as his 1817 ‘Plan of Parliamentary Reform’, from which he produced the ‘Radical Reform Bill’, published in 1819. This called for universal suffrage, annual parliaments and the secret ballot. The reforms were based on the idea of the greatest happiness, rather than on social contract.22 Bentham explicitly and powerfully rejected the idea of natural rights. Chester New notes ‘Englishmen were more easily led to democracy by a new theory of true British origin, free from the stigma of the French Revolution.’23 In these works, Bentham included monarchy and aristocracy, though by 1818 he had become republican, and his later Constitutional Code placed political sovereignty solely in the people.24

  • 25 See Hamburger, Joseph, James Mill and the Art of Revolution (Westport, Conn., Greenwood Press, 1977
  • 26 Ward, John T., Chartism (London, Batsford, 1973), pp.83-4; Lovett, William, The Life and Struggles (...)
  • 27 Harrop, Angus, The Amazing Career of Edward Gibbon Wakefield, with Extracts from "a Letter from Syd (...)

17Consistent with Bentham’s desire for broader democratic representation, his followers played an important role in pro-democratic campaigns and reforms of the era. For example, they were active, and, arguably, pivotal in the campaign for the Reform Bill of 1832.25 Benthamites Francis Place and John Roebuck, with William Lovett, wrote the 1838 Charter.26 Meanwhile, Wakefield and Buller assisted Lord Durham on his journeys in Canada in response to rebellion in the Canadian colonies. The resulting Durham Report is credited with introducing responsible government to British colonies, whereby the executive is drawn from the legislature, providing colonies with considerable independence.27 Of this report, E.M. Wrong states:

  • 28 Wrong, Edward M., Charles Buller and Responsible Government (Oxford, Clarendon Press, 1926), p.25; (...)

The Report was a Radical document, part of a Radical plan for imperial reform, put forward by men who belonged to the moderate wing of a small Radical group. The mission was a success neither for Tory nor for Whig policy, but in reality the greatest Radical achievement between the Reform Bill and the repeal of the corn laws.28

  • 29 The legislature was to comprise 24 members elected by councillors, and 12 Crown appointees. Sweetma (...)
  • 30 Sweetman, E., Australian Constitutional Development, pp.143-50; See also Wallas, Graham « Jeremy Be (...)

18Just prior to accompanying Durham on his mission to Canada in 1838, Charles Buller had been appointed as Parliamentary Agent in Westminster to represent the interests of New South Wales colonists. Continuing the work of Henry Lytton Bulwer, the previous representative, Buller helped draft a constitution for New South Wales. The constitution fell short of Buller’s ambitions for colonial democracy, particularly as the legislature was not directly elected by the people. However, the constitution did include the creation of council districts with elected councilors. The council districts acted as areas from which the legislature was drawn by a secondary voting system.29 The resemblance of the district structure to Bentham’s Constitutional Code is striking, at a time when the code was influential in the creation of municipal districts in the United Kingdom.30

  • 31 Buller, Charles, Responsible Government for Colonies (London, Ridgway, 1840)

19In 1840 Buller also wrote a series of articles promoting colonial democracy for the Colonial Gazette. These were later republished as a book, Responsible Government for Colonies.31 He drew unflattering attention to the decision-making structure in the Colonial Office in London, dubbing the beleaguered London bureaucrat who really makes the decisions ‘Mr. Mothercountry’.

  • 32 Molesworth’s strong links to the Benthamite group are described in Grote, H., Life of Sir William M (...)

20Some eight years later, William Molesworth gave a long and influential speech in the House of Commons in favour of colonial self-government.32 After a Privy Council enquiry set in motion by Lord Grey (who had been involved in the Wakefield project since the first days), New South Wales, Victoria and South Australia were invited to design new constitutions for themselves.

  • 33 Melbourne, A.C.V., Early Constitutional Development in Australia, 419-20, quoting F. Rogers to R. W (...)
  • 34 Melbourne, Alexander C.V. « The Establishment of Responsible Government », in Cambridge History of (...)
  • 35 In fact, Bentham argued for full adult franchise. See Bentham, Jeremy, First Principles Preparatory (...)

21Sir Frederic Rogers, Commissioner of Emigration in London, commented that the bills submitted from New South Wales, South Australia and Victoria were ‘little less than a legislative Declaration of Independence on the part of the Australian colonies’.33 Herman Merivale, who had lectured in political economy at Oxford, and became Under-Secretary for the Colonies, observed approvingly that the South Australian constitution was ‘the only thorough Benthamite constitution in the Empire’,34 possessing as it did fully elected houses and full adult male franchise.35

22The role of the utilitarians in colonial reform was well-known during the nineteenth century. For example, Fawcett writes:

  • 36 Fawcett, M., Life of William Molesworth, pp.2-3

In one of Miss Martineau’s concluding chapters, she says: “Next to Ireland, our Colonies continue to be the opprobrium of our empire.” The half-century which has passed since these words were written has converted the “opprobrium of our empire” into its greatest glory and pride. A group of men, represented inside Parliament by Lord Durham, Charles Buller and Sir William Molesworth, and outside Parliament by Edward Gibbon Wakefield and John Stuart Mill, deserve the chief credit of this brilliant transformation.36

23It was not just in London that supporters of Bentham’s political formulations worked. For example, Henry Chapman, while in Victoria, wrote the legislation implementing the secret ballot in that colony in 1856. Bentham had strongly supported the secret ballot, and his followers were great publicists for the idea. For example, it had been included as one of the six points of the Charter in 1838. Before coming to the Australian colonies, Chapman had worked closely with Roebuck, one of the authors of the Charter, assisting him with his electoral campaign in Bath in 1832. Chapman then went to Canada where he established a newspaper that promoted radical ideas. Returning to London as a representative of the Assembly of Lower Canada he attended meetings of the London Working Men’s Association, mixed with the radical circle, and wrote pamphlets published by Roebuck.

  • 37 Chapman, Henry, Parliamentary Government; or Responsible Ministries for the Australian Colonies (Ho (...)
  • 38 Chapman, H., Parliamentary Government, pp.9-10, 36

24In 1843, having qualified as a barrister, Chapman went to New Zealand, where he served as a judge. In 1852, he moved to Van Diemen’s Land to become Colonial Secretary. While in Van Diemen’s Land he published Parliamentary Government; or Responsible Ministries for the Australian Colonies. This thirty-nine page pamphlet argued for responsible government, describing the principles of the system and its virtues over existing systems of government in the colonies. He compared the system of government in the United States with that of responsible government, suggesting that responsible government was more responsive to the wishes of the people. In the United States, he argued, the legislature and the executive could oppose each other for years – the confidence of the people’s representatives was not a prerequisite for executive power, and the only check on executive power was a return to the electorate every four years: ‘The election of the head of the executive every four years is their sole expedient to secure responsibility.’37 He argued that a strong executive, drawn from parliament, and with sanction of the people, is efficient and effective.38

25Neale notes his Benthamite cast of mind:

  • 39 Neale, R. S. « H.S. Chapman and the ‘Victorian’ Ballot », in Historical Studies, Australia and New (...)

Following Bentham he wrote, ‘The object of Reform is to obtain good government, that which secures to the great body of the people the greatest aggregate of happiness ... of the several instruments of government, by far the most important in its effects upon the happiness of the community is the body in which the power of making laws resides – in other words, the Parliament.’ Parliament, however, was not representative of the people, and, like all parliaments, was concerned solely to promote the interests of the class by which it was chosen. Thus it followed, ‘that good government cannot be attained but by an extension of the suffrage to the great body of the people’.39

  • 40 Scott, Ernest « The History of the Victorian Ballot », in The Victorian Historical Magazine, VIII ( (...)

26Simultaneously with Chapman’s secret ballot legislation in Victoria, South Australia and Tasmania implemented very similar systems. In South Australia, the legislation was written by George Kingston. Kingston was an early member of the South Australia Society in London, migrating with the first shipload of settlers to South Australia in 1836. Key elements of the secret ballot systems developed in these colonies were adopted internationally including in the United States and the United Kingdom. The ballot system adopted in the United States was referred to as the ‘Australia Ballot’.40

  • 41 For example, see Bentham, J., Constitutional Code, Schofield 7, p.98.

27Following the mid-century democratic reforms in the Australian colonies, each experienced upheavals resulting in their continued democratisation. Of particular note is the early adoption of women’s voting in Australia and New Zealand. Bentham had been a strong advocate for women’s participation in democracy.41 Towards the end of the century the two British colonies founded directly under the Wakefield system, New Zealand and South Australia, implemented women’s voting, in 1893 and 1894 respectively. In South Australia, the reform also included opening parliamentary candidacy to women. Though this occurred some sixty years after Bentham’s death, it is notable that these world-leading reforms occurred in the two British colonies most closely identified with Bentham and his associates.

Liberalism

28The expression of liberalism in the Australian colonies during the second half of the nineteenth century can be associated with Bentham. The question of the balance between the state and the individual, and the most effective economic system to achieve positive outcomes for all was an important intellectual issue during the period.

  • 42 Rowse, Tim, Australian Liberalism and National Character (Malmsbury, Kibble Books, 1978), p.10

29Australia is considered by most commentators to have an almost continuous heritage of liberalism in one form or other. Rowse, for example suggests that ‘Australia has long been recognised as an almost uniquely successful “fragment” of European liberalism; it is one of the few nations whose evolution to liberal democracy has been linear and relatively non-violent.’42

  • 43 Hartwell, Max, « Introduction », in Melleuish, Gregory, A Short History of Australian Liberalism (S (...)
  • 44 McNaughtan, I.D., « Colonial Liberalism, 1851-92 », in Australia: A Social and Political History, e (...)
  • 45 Sawer, Marian, The Ethical State? Social Liberalism in Australia (Carlton, Melbourne University Pre (...)
  • 46 Sawer, M., Ethical State? p.3, 34, referring to Hancock, W.K., Australia (London, Ernest Benn, 1930 (...)
  • 47 Sawer, M., Ethical State? p.34

30Scholars have differed in their characterisation of Australian liberalism. For example, Hartwell suggests that in Australia the minimally interventionist liberal state was never achieved, but Australia came close during the late nineteenth century.43 McNaughton sees the rise of the Benthamite polity, with its tendency towards state action cast as positive liberty, as having socialist characteristics.44 Meanwhile, Marian Sawer finds Australia around the turn of the twentieth century influenced by ‘new liberalism’, a political culture in which private pleasure was subordinated to common good.45 Sawer is writing against what she considers something of a consensus among Australian historians that Australia is fundamentally Benthamite, with an emphasis on individualism.46 Nevertheless, she points to a strong Benthamite influence in Australia prior to the 1880s, which she considers strongly individualistic.47

31Sawer’s suggestion of early Benthamite influence is supported by an observation by Charles Pearson in 1879, in which he identified seven economists with particular influence on the colony of Victoria. He stated:

  • 48 Pearson, Charles « Democracy in Victoria », Fortnightly Review, 31 (1879), pp.688-717, p.690

J.S. Mill, Fawcett, Thorold Rogers, Cliffe Leslie, Bagehot, Freeman, Cornewall Lewis, &c., are perhaps not as well known or as judiciously estimated in Victoria as in England, but they here exercise incomparably more influence.48

  • 49 Sawer, M., Ethical State? p.3, 11, 13, 41 and generally. Also see Freeden, Michael, Ideologies and (...)

32These economists were engaged in a discussion of the means by which the poor may be lifted with minimal restraint upon ambitions for liberty. Of the seven names selected by Pearson as having particular influence in Victorian liberal ideas at least four – Mill, Bagehot, Cornewall Lewis, and Fawcett – had strong links with Benthamite utilitarianism. Further, the ideas of Cliffe Leslie and Rogers were in strong accord with the ambitions of the utilitarians. However, Sawer suggests that by the late nineteenth century the new liberalism of T.H. Green became predominant. She considers new liberalism closer to socialism than liberalism.49

  • 50 Melleuish, Gregory, A Short History of Australian Liberalism (St Leonards, Centre for Independent S (...)
  • 51 Butlin, N.G., Barnard, A., Pincus, J.J., Government and Capitalism: Public and Private Choice in Tw (...)

33Melleuish disagrees with the characterisation of Australia as leaning towards socialism during this period. He sees Australia as primarily based on a laissez-faire system. He suggests that the emphasis on the interventionist state in much historical scholarship has had a political motivation. He states that by elevating the state in historical narratives, ‘recent developments in Australian liberalism, such as economic rationalism, can be defined as aberrant and not in line with the best traditions of Australian liberalism.’50 Melleuish’s suggestion that Australia was primarily laissez faire is supported by total government taxation revenue per head in 1900 having been roughly six percent of gross domestic product per head. Including the activities of state owned enterprises such as rail and post, total government expenditure came to some twenty per cent of gross domestic product.51

34Taken together scholars have cast Australia throughout the nineteenth century both as strongly supporting the freedom of the individual and as becoming strongly collectivist. Similarly, Australia has been characterised as Benthamite, or far removed from Benthamism.

Security liberalism and Australian institutions

  • 52 See also Weinstein, David, Utilitarianism and the New Liberalism (Cambridge, Cambridge University P (...)

35The Benthamite polity can provide the basis for various shades of liberalism. It can also be the basis for either laissez-faire or collectivist economic principles.52 Various systems can be consistent with the higher principle of the ‘greatest happiness’. Many scholars have argued that in Australia this has tended towards the creation of a hybrid political makeup.

  • 53 The original United States’ system saw the upper house elected once removed from the people, as con (...)

36The Lockean liberal state, with its emphasis on strong constitutional restraints on the exercise of power, as evident in the United States Constitution, was not established in Australia. Rather, consistent with Benthamism, those constraints were removed to a significant extent by moving towards a system where the interests of the executive and the legislature were combined, control of the legislature was imposed by an enfranchised public who voted directly for their representatives, and metaphysical limits, such as natural rights, were not imposed on government capacity to act.53 Harrison Moore, writing in 1910, identified a key reason for the difference between the United States’ model and the Australian:

  • 54 Moore, W., Constitution of Australia, p.612

The American Constitution was born in distrust. To possess power was to abuse it; therefore in devising the organs of government the first object was less to secure their cooperation than to ensure that each might be a check upon the natural tendencies of the other.54

  • 55 Moore, W., Constitution of Australia, p.613

37Harrison Moore finds that the Australian federal constitution, on the other hand, ‘bears every mark of confidence in the capacity of the people to undertake every function of government’.55

  • 56 Kelly, P.J., Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law (Oxford, Cla (...)

38Paul Kelly notes that the idea that maximum social well-being ought to be the ultimate object of the legislator pervades Bentham’s works.56 For the prominent and influential A.V. Dicey, utilitarianism swept away old abuses, and helped create the conditions for human flourishing:

  • 57 Dicey, A.V., Lectures on the Relation between Law and Public Opinion in England During the Nineteen (...)

[Utilitarianism] was a principle big with revolution; it involved the abolition of every office or institution which could not be defended on the ground of calculable benefit to the public … as in any State the poor and the needy always constitute the majority of the nation, the favourite dogma of Benthamism pointed to the conclusion - utterly foreign to the English statesmanship of the eighteenth century - that the whole aim of legislation should be to promote happiness, not of the nobility or the gentry, or even the shopkeepers, but of the artisans and other wage-earners.57

39As a result of this shift, during the nineteenth century there was a change in expectation as to what government should do, how it should be formed, and how liberty could be realised. Rosen suggests that Bentham developed his ideas within a framework of a security-oriented liberalism:

  • 58 Rosen, Frederick, « The Origin of Liberal Utilitarianism: Jeremy Bentham and Liberty » in Victorian (...)

[Bentham’s] commitment to political democracy, to gradual reform based on security of expectation and to an extension of suffrage and participation to as many members of society as possible may have involved a rejection of some ideas traditionally associated with liberty, but in their place he developed new ideas.... within a framework of liberty conceived in terms of security.... Bentham’s concentration on security - on the instruments of good government - enabled him to move beyond the Lockean conception of the minimal state towards one more appropriate for a modern democratic society where security would be conceived more widely in terms of education, health, and welfare as well as real property and wealth.58

40Consistent with this conception of a security-liberty, Dicey found that the years of reform during the nineteenth century after the 1832 Reform Bill had resulted in enormous change. These included:

  • 59 Dicey, A.V. « Fifty Years of Reform in England », The Nation, xxxv (20 July, 1882), pp.49-50, p.49

The emancipation of the West Indian slaves, the Factory Acts, the amendment of the Poor Law, the reform of municipal corporations, the mitigation of the criminal code, the foundation of a system of national education, the repeal of the Corn Laws - these and a host of minor improvements, such as the establishment of the penny post or the abolition of the press gang, were all the more or less direct fruits of Parliamentary reform.59

  • 60 Burton, John, « An Outline of the Opinions of Jeremy Bentham » in Bentham, Jeremy, Benthamiana: Or (...)
  • 61 « Chadwick, Sir Edwin », in An Oxford Companion to the Romantic Age: British Culture, 1776–1832, ed (...)
  • 62 Place, Francis, Letter to James Turner, 19 October, 1834, in Wallas, Graham, The Life of Francis Pl (...)

41Many other reforms were introduced, resulting in the provision of services and interference in economic life. In Britain, even by 1844, John Hill Burton, in his introduction to Benthamania, could mention many state reforms associated with Bentham. Just a few are: education of the poor; postage; registration of births, marriages and deaths; the census; circulation of parliamentary papers; prison reform; electoral reforms; and a register of real property.60 Edwin Chadwick, a secretary to Bentham during the 1820s, later promoted sanitation, the gathering of statistics, and inspection of public services.61 The design of the public service also has a considerable Benthamite influence, as does regulation of working hours.62 Len Hume suggests that:

  • 63 Hume, L.J. « Jeremy Bentham and the Nineteenth-Century Revolution in Government », The Historical J (...)

Since the publication of Werner Stark's edition of Bentham's economic writings, it has been very difficult to interpret Bentham as a consistent supporter of laissez faire. … [Bentham’s] description of the health minister's functions, for example, clearly implied that there would exist a body of regulations relating to the sale of drugs, the sale of goods unfit for human consumption, the state of burial grounds, unhealthy employments such as mining, and the pollution of the air by factories, and that the regulations would apply indiscriminately to public and private establishments. In these passages, and in the closely related passages dealing with the preventive service minister, he gave no hint that there existed an economic mechanism that could be relied on to produce favourable results and that ought not to be disturbed.63

  • 64 Mills, Kerry Fraser, Of the People, by the People, for the People: Law-Making in New South Wales, 1 (...)

42In Australia, the changes were felt. Despite a commitment to a laissez-faire economy, state action was evident. Kerry Mills writes that Bentham’s ideas loomed large in the New South Wales legislature.64 She suggests that the major figures in the press and government ‘knew about Bentham and perceived the need either to invoke his policies or to demonstrate their inapplicability when advancing their own legislative schemes….’ She continues:

  • 65 Mills, K., Law-Making in NSW, p.84

that utilitarianism could lead to extensions of both laissez faire and state intervention, by the testing of policy against its effect on human happiness or the greater public good, appears apposite for New South Wales.65

  • 66 Report from the Select Committee of the Disposal of Lands in the British Colonies, Together with th (...)

43Perhaps the most striking early example of the operation of free-market economics alongside government intervention in Australia is that of Wakefieldian land policy. Under Ripon’s Rules the free-market operated within a set of government-imposed rules derived from economic theory. Wakefield also recognized the need for additional state interference in colonial economies. He referred to the use of public money – substantially gained from the sale of land – for use in ‘great works of national improvement’, including roads, harbours, railroads. While in Britain these were in the hands of private individuals, he suggested in Australia they might be built and operated by government.66

  • 67 Rosen, « The Origin of Liberal Utilitarianism » p.65
  • 68 Kelly, P.J., Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law (Oxford, Cla (...)
  • 69 Postema, Gerald, Bentham and the Common Law Tradition (Oxford, Clarendon Press, 1986), pp.371-3.

44Rosen provides an answer to fears that enhanced state action might result in the despotic state. He argues: ‘Where Halévy saw [in Bentham’s system] legislative supremacy and potential despotism, Bentham saw legislative dependence, security against misrule, and hence liberty.’67 Rosen suggests critics do not take into account the safeguards that Bentham included in his plan for a legislature, in particular the high levels of publicity accorded to public action, the disciplining effects of democracy on government, and the educative effect of democracy on the populace. Meanwhile, Postema notes that Bentham recognised that enlightened public opinion could help overcome a potentially oppressive majoritariansim.68 Free flow of information was central to Bentham’s system.69

  • 70 Hume, L.J., « Foundations of Populism and Pluralism: Australian Writings on Politics to 1860 » in A (...)

45Reflecting concerns that the utilitarian polity might threaten liberalism, Len Hume is sceptical that utilitarianism can be characterised as a form of liberalism at all. Addressing questions about the relationship between liberalism and utilitarianism, Hume identifies several streams of thought in Australian political culture operating alongside each other. Populism, utilitarianism and civic republicanism each had a presence during the period he discusses, to the late 1850s.70 Utilitarianism finds society divided into the governing few and the oppressed, and the principle forms of oppression are legislation and a corrupt or inefficient administration. Hume characterises the utilitarian solution:

  • 71 Hume, L., « Populism and Pluralism », p.45

[I]ts principle remedy is good legislation; that political action should be directed to making legislation and government conform to their ‘true end’; and that in the first instance this must be achieved through the substitution of ‘responsibility’ for ‘irresponsibility’ at all points in the system.71

  • 72 Hume, L., « Populism and Pluralism », p.46

46Hume notes that while some radicals quoted Bentham or appealed to the greatest happiness formula, in fact the most important element was ‘their sharing with Bentham and his immediate disciples a common cast of thought’. Rights, for example, were rarely invoked, and instead replaced by ‘some utilitarian test of public interest’.72 Hume, however, differentiates the character of mid-nineteenth century liberalism in Britain, and its association with utilitarianism, with the expression of liberalism and utilitarianism in Australia. He first notes that for both polities:

  • 73 Hume, L., « Populism and Pluralism », p.47

Utilitarianism and liberalism were combined in an alliance or joint venture, not a merger. Although utilitarianism was capable of generating liberal components for its program, and in practice did so (for example, an insistent demand for freedom of the press), it was not fundamentally committed to the promotion of liberty. The liberal elements in its program were means, not ends. In its theory it shared with the mid-century liberalism a set of individualist assumptions, but it developed and evaluated these in a different way. The difference can be seen in the attitudes of these two wings of radicalism to the market economy. Utilitarianism valued markets in so far as they appeared to be efficient in satisfying the wants and choices of individuals. The more market-oriented forms of liberalism valued them in so far as they contributed to the making of relationships and obligations voluntary throughout society... The former element was indeed present in the Australian populism of this period, although it did often lead to judgments entirely favourable to unrestricted markets. The latter was rare, if not altogether absent.73

  • 74 Hume, L., « Populism and Pluralism », p.47

47Hume suggests that liberalism was more overtly present in civic republicanism which ‘sought to limit executive power and thus safeguard individual rights’, something populism and utilitarianism failed to do.74

  • 75 James, Michael. « The Constitution in Australian Political Thought » in The Constitutional Challeng (...)
  • 76 James, M., « The Constitution in Australian Political Thought », p.11

48Michael James notes that the Benthamite influence has acted powerfully on the way constitutional command theory has informed constitutional practice in Australia. This fundamentally affects the attitudes of politicians and the population in their perception of what government is for, and their attitude to liberty.75 James notes that British constitutional theory and practice underwent a profound revolution between ‘the seventeenth and eighteenth centuries, when Britain was colonising America, and ... the nineteenth century, when the Australian colonies were being formed’.76 James argues that Australian constitutional practice:

  • 77 James, M., « The Constitution in Australian Political Thought », p.13

was based on Jeremy Bentham’s revival of Hobbes’ command theory of law, according to which laws were to be understood solely as expressions of the will of the sovereign. Bentham found himself, consequently, in agreement with those who argued that the constitution did not prescribe the separation of powers; the whole idea of such a separation was nonsense, since there must ultimately exist a unitary source of law which was itself above the law.77

49And thus:

  • 78 James, M., « The Constitution in Australian Political Thought », p.14

When Bentham was converted to the cause of radical parliamentary reform, then, it was not out of any concern for individual liberty. Rather, his aim was to ensure that the unlimited powers of the sovereign would be used to promote the welfare of the community as a whole rather than the ‘sinister interests’ of the ruling elites.78

50In James’ reading of Bentham, individual liberty was subservient to the welfare of the community, as expressed through the legislature, informed by the enfranchised adult population.

  • 79 Collins, H., « Political Ideology in Australia » p.148
  • 80 Collins, H., « Political Ideology in Australia » p.151
  • 81 Collins writes that for the supporters of laissez-faire ‘Theirs are the certainties and disappointm (...)

51It is fair to suggest that post-convict Australia was effectively born with the dual concept; the active state coupled with individual and economic freedom. These have operated in tandem. Hugh Collins refers to the institutional means developed by Bentham (and substantially implemented in Australia), that ‘reconcile[s] the pursuit of individual interest with the achievement of the sovereign interest or greatest happiness’.79 For Collins, this Benthamite influence was substantially introduced through the early success of Chartism in Australia.80 The net result is a society that values individualism, but will impose restrictions for the common good, and consequently a political environment that Hugh Collins suggests looks like false consciousness to both those who seek collective action and those who value the freedom of the individual.81 Accordingly, in 1930 Keith Hancock observed the possibility of a hybrid polity in which Benthamism might operate:

  • 82 Hancock, Australia, p.72.

To the Australian the state means collective power at the service of individualistic rights. Therefore he sees no opposition between his individualism and his reliance on government.82

  • 83 Collins, H., « Political Ideology in Australia » p.151, 161; Aroney, Nicholas, « Imagining a Federa (...)

52Many aspects of Australian life can be considered as resulting from the design of the Benthamite polity, with its tendency towards individualism but with a valid role for state action providing conditions for the greatest happiness. Aspects of the Benthamite influence in Australia that have been proposed include the Australian understanding of rights; important aspects of the design of the federal system; and the secularism and centralisation of the education system.83 Even the evolution of the common law, a legal system unloved by Bentham, may have strong traces of a Benthamite influence: A student of the common law might find their interest piqued by an article from 1841 in the Hobart paper The Courier, recording the tensions between an old school judge and a Benthamite reformist puisne judge:

  • 84 The Courier (Hobart), 19 February, 1841. Referring to Algernon Montagu, Puisne Judge of the Supreme (...)

The Chief Justice [of Van Diemen’s Land], imbued with the utility and correctness of those strict and exact forms with which the wisdom of our ancestors invested the operations of the law, adheres with tenacious pertinacity to their advocacy, while the Puisne Judge favours the extension of those new lights, refulgent in the temple of justice, as well as elsewhere, with which the advance of the schoolmaster, propelled by Jeremy Bentham, has illuminated mankind.84

  • 85 Llewellyn, David « Bentham and Australia », The Journal of Comparative Law, 14-2 (2019), pp.174-186 (...)

53So too, codification of law in Australia owes much to Bentham, such as in the criminal law and in the transfer of land.85 The presence of Bentham in much that informs Australian society was noted in the Empire newspaper in Sydney in 1872:

  • 86 Empire, 4 June, 1872, p.4

The successful establishment of the principles which have been embodied in the political constitutions of the Australian colonies, and in the amendments of the Criminal Law of the British Empire, is in great measure traceable to the labours of Jeremy Bentham.86

54That Benthamism continues to inform policy makers in Australia was confirmed by Terry Moran on his appointment as head of the Commonwealth Public Service in 2008. He commented:

  • 87 « Three Amigos », The Age, 9 February 2008

I have had a fortunate career, having often been in jobs where I have been able to make a difference. It’s not been about boring administration, but about improving things – the Benthamite concept that the role of government is to achieve the greatest good for the greatest number.87

Conclusion

55Bentham’s influence can be found during much of Australia’s history. As discussed in part two of this article, only fifteen years after the arrival of the first fleet Bentham intervened in an attempt to change the operations of the penal colony, and only five years after that, in 1808, the Rum Rebellion was likely to have resulted from the dissemination of his work. Section three observes the influence of Edward Gibbon Wakefield, beginning with the implementation of Ripon’s Rules in 1831 and not long after forming the basis for the foundation of South Australia. Wakefield’s ideas were promoted by followers of Bentham, including the philosophic radicals. These ideas led to significant changes to the way colonisation proceeded, and the success of Australia has been attributed to their implementation. Section four examines some important contributions to the early development of democracy in Australia, in particular focussing on the roles of Charles Buller, William Molesworth and Henry Chapman, all of whom had worked in London during the 1830s to promote democratic reform in Britain as well as in the colonies. Chapman later migrated to Australia where he drafted Victoria’s secret ballot laws, while Buller and Molesworth continued in London, involving themselves in colonial reform including helping establish ever more democratic constitutions. Sections five and six draw out different characterisations of Australian democracy and society that have emerged out of the Benthamite constitutions and habits of mind. Section five briefly examines the characterisations of Australian liberalism that have found a strong liberalism on the one hand, or a strong expression of socialism on the other hand. Both these tendencies have been attributed to Bentham’s influence. Section six develops this theme, pointing to scholars such as Paul Kelly, Len Hume, and Michael James, who have suggested various inflections on the idea that Australia has a mixed system supporting both an attitude of individualism, coupled with a substantial role for state action. This influence has been felt quite directly in many fields from the earliest days of settlement to the present day, including with the recent acknowledgement by a key public servant of the Benthamite ideal.

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Notes

1 McMahon, Darrin, The Pursuit of Happiness, a History from the Greeks to the Present (London, Allen Lane, 2006), p.278

2 Collins, Hugh, « Political Ideology in Australia: The Distinctiveness of a Benthamite Society » in Australia, the Daedalus Symposium (North Ryde, Angus & Robertson, 1985) pp.147-169

3 Bentham, Jeremy, Writings on Australia (London, University College London, 2018).

4 Twenty-Eighth Report from the Select Committee on Finance, &c—Police, including Convict Establishments', ordered to be printed 26 June 1798, in Commons Sessional Papers (1798) vol. 112, pp.21-7

5 Collins’ attempt to found a colony at Port Phillip failed and the party moved on to Van Diemen’s Land, now Tasmania, subsequently founding the settlement of Hobart. The shores of Port Phillip are now the location of Melbourne, capital of the state of Victoria.

6 Bentham, J., A Plea for the Constitution. For a discussion on this and related themes see Causer, Tim « “The evacuation of that scene of wickedness and wretchedness”: Jeremy Bentham, the Panopticon, and New South Wales, 1802-1803 » Journal of Australian Colonial History, 21 (2019) pp.1-24

7 Bentham, J., A Plea for the Constitution, p.11

8 Bentham, J., A Plea for the Constitution, p.85

9 Bentham, J., A Plea for the Constitution, p.10

10 Atkinson, Alan « Jeremy Bentham and the Rum Rebellion », Journal of the Royal Australian Historical Society 64 (1978), pp.1-13; p.1,3

11 Atkinson, A., « Rum Rebellion » p.3. For a discussion of alternative routes of transmission see forthcoming article, Brunon-Ernst, Anne, « ‘The British Constitution Conquered in New South Wales’: Bentham and Constitutional Reform in Early Australia (1803-1824) » in Causer, Tim and Philip Schofield, eds, Bentham and Australia (London, UCL Press, 2021), to be published.

12 See paper in the present special issue. See Design 5 - Architects Pty Ltd, The Separate (Model) Prison, Port Arthur; Conservation Project Report (Final report) (Port Arthur, The Port Arthur Historic Site Management Authority, 2003) at https://portarthur.org.au/wp-content/uploads/2017/12/Separate-Prison-Conservation-Project-Report.pdf.

13 DeQuincey, Thomas, A Tory's Account of Toryism, Whiggism, and Radicalism in a Letter to a Friend in Bengal in Biographies – Shakespeare, Pope, Goethe, and Schiller and on the Political Parties of Modern England, De Quincey's Works (Edinburgh, Adam and Charles Black, 1863), vol. XV, p.210. In an indication of the high spirits of the era, Harriet Grote observes: ‘I remember driving my phaeton to London one morning, with Molesworth by my side, C. Buller and Roebuck in the seat behind. During the whole six miles, these three vied with each other as to who should make the most outrageous Radical motions in the House’ in Grote, Harriet, The philosophical radicals of 1832, comprising the life of Sir William Molesworth and some incidents connected with the Reform movement from 1832 to 1842 (New York: Burt Franklin, 1970), p.6

14 For law of rent see Ricardo, David, On the Principles of Political Economy and Taxation (London, John Murray, 1817)

15 For a discussion of the association between Ricardo’s law of rent and Wakefield’s system, see Kittrell, Edward R. « Wakefield and Classical Rent Theory », in American Journal of Economics and Sociology, 25 (1966), pp.141-152 and Kittrell, Edward R. « Wakefield's Scheme of Systematic Colonization and Classical Economics », American Journal of Economics and Sociology, 32 (1973), pp.87-111

16 Mills, Richard, The Colonization of Australia, 1829-42 – the Wakefield Experiment in Empire Building (London, Sidgwick & Jackson, 1915). See also Great Britain and the Colonies 1815–1865; Debates in Economic History, ed. A.G.L. Shaw (Bungay, Suffolk, Methuen, 1970) for discussion of Bentham’s connection with Wakefield’s economics and theory of colonization, including Shaw, A.G.L., « Introduction », Semmel, Bernard, « The Philosophic Radicals and Colonialism », and Kittrell, Edward, « The Development of the Theory of Colonization in English Classical Political Economy ».

17 Bentham, J., Colonization Company Proposal.

18 Pike, Douglas, Paradise of Dissent (London, Longmans, Green, 1957) p.57, 91.

19 Weinstein, David, « Imagining Darwinism » in Utilitarianism and Empire, ed. Bart Schultz and Georgios Varouxakis (Lanham, Md., Lexington Books, 2005), pp.189-209; p.227

20 Mills, R., Colonization of Australia, p.viii

21 « Edinburgh Review, No. XCVII: Article on Mill’s Essays on Government, &c. ("Greatest Happiness” Principle) », Westminster Review (July, 1829), pp.254-268; p.263

22 Halévy, Elie, The Growth of Philosophical Radicalism (London, Faber and Faber, 1972), p.130

23 New, Chester, Lord Durham: A Biography of John George Lambton, First Earl of Durham (Oxford, Clarendon Press, 1929), p.37

24 Rosen, Frederick, « Introduction » in Bentham’s Theory of Law and Public Opinion, eds. Xiaobo Zhai and Michael Quinn (Cambridge, Cambridge University Press, 2014), pp.1-6, p.4 referring to Lieberman, David, « Bentham’s Jurisprudence and Democratic Theory; An Alternative to Hart’s Approach » in Bentham’s Theory of Law and Public Opinion, pp.119-142, p.142 and generally. Also see Rosen, Frederick, Jeremy Bentham and Representative Democracy: A Study of the Constitutional Code (Oxford, Clarendon Press, 1983), p.8

25 See Hamburger, Joseph, James Mill and the Art of Revolution (Westport, Conn., Greenwood Press, 1977)

26 Ward, John T., Chartism (London, Batsford, 1973), pp.83-4; Lovett, William, The Life and Struggles of William Lovett (New York, Garland, 1984), pp.164-5.

27 Harrop, Angus, The Amazing Career of Edward Gibbon Wakefield, with Extracts from "a Letter from Sydney" (1829) (London, Allen & Unwin, 1928), p.190

28 Wrong, Edward M., Charles Buller and Responsible Government (Oxford, Clarendon Press, 1926), p.25; Wrong refers to the ‘philosophic radicals’ in parliament as including Charles Buller, George Grote, William Molesworth, Joseph Hume, Henry Ward, Charles Villiers, Edward Bulwer-Lytton, Temple Leader, and Edward Strutt. (p.14)

29 The legislature was to comprise 24 members elected by councillors, and 12 Crown appointees. Sweetman, Edward, Australian Constitutional Development (Melbourne, Macmillan with Melbourne University Press, 1925), pp.143-50. The idea for the double election structure, including the creation of municipalities, probably originated with Lytton Bulwer. Melbourne, Alexander C.V., Early Constitutional Development in Australia (St. Lucia, University of Queensland Press, 1963), p.235

30 Sweetman, E., Australian Constitutional Development, pp.143-50; See also Wallas, Graham « Jeremy Bentham » in Political Science Quarterly, 38 (1923), pp.45-56, p.54; Wallas, Graham, Our Social Heritage (London, Allen & Unwin, 1921), p.171; Finlayson, G.B.A.M., « The Politics of Municipal Reform, 1835 », in The English Historical Review 81 (1966), pp.673-692, p.675, 677, 692.

31 Buller, Charles, Responsible Government for Colonies (London, Ridgway, 1840)

32 Molesworth’s strong links to the Benthamite group are described in Grote, H., Life of Sir William Molesworth. See also Fawcett, Millicent, Life of the Right Hon. Sir William Molesworth, Bart., MP., F.R.S. (New York, Macmillan, 1901).

33 Melbourne, A.C.V., Early Constitutional Development in Australia, 419-20, quoting F. Rogers to R. W. Church, 23 September, 1854.

34 Melbourne, Alexander C.V. « The Establishment of Responsible Government », in Cambridge History of the British Empire (Cambridge, Cambridge University Press, 1933), vol.7, pt.I, p.290

35 In fact, Bentham argued for full adult franchise. See Bentham, Jeremy, First Principles Preparatory to Constitutional Code, in The Collected Works of Jeremy Bentham, ed. Philip Schofield (Oxford, Clarendon Press, 1989), vol. 7, pp.98-100

36 Fawcett, M., Life of William Molesworth, pp.2-3

37 Chapman, Henry, Parliamentary Government; or Responsible Ministries for the Australian Colonies (Hobart, Pratt, 1854), p.4

38 Chapman, H., Parliamentary Government, pp.9-10, 36

39 Neale, R. S. « H.S. Chapman and the ‘Victorian’ Ballot », in Historical Studies, Australia and New Zealand, 12 (1967), pp.506-521, p.512

40 Scott, Ernest « The History of the Victorian Ballot », in The Victorian Historical Magazine, VIII (November, 1920), pp.1-14, p.1

41 For example, see Bentham, J., Constitutional Code, Schofield 7, p.98.

42 Rowse, Tim, Australian Liberalism and National Character (Malmsbury, Kibble Books, 1978), p.10

43 Hartwell, Max, « Introduction », in Melleuish, Gregory, A Short History of Australian Liberalism (St Leonards, Centre for Independent Studies, 2001), p.vi.

44 McNaughtan, I.D., « Colonial Liberalism, 1851-92 », in Australia: A Social and Political History, ed. Gordon Greenwood (Sydney, Angus & Robertson, 1974), pp.98-144, p.111. McNaughton’s timeline for this shift begins with the 1850s constitutions, progressing over three decades.

45 Sawer, Marian, The Ethical State? Social Liberalism in Australia (Carlton, Melbourne University Press, 2003) p.15

46 Sawer, M., Ethical State? p.3, 34, referring to Hancock, W.K., Australia (London, Ernest Benn, 1930); Kelly, P.J., Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law (Oxford: Clarendon Press, 1990); and Hugh Collins « Political Ideology in Australia ».

47 Sawer, M., Ethical State? p.34

48 Pearson, Charles « Democracy in Victoria », Fortnightly Review, 31 (1879), pp.688-717, p.690

49 Sawer, M., Ethical State? p.3, 11, 13, 41 and generally. Also see Freeden, Michael, Ideologies and Political Theory (Oxford, Oxford University Press, 1998), p.194. Bevir likewise finds Webb discontinuous with the utilitarians. Bevir, Mark « Sidney Webb: Utilitarianism, Positivism, and Social Democracy », Journal of Modern History, 74 (2002), pp.217-252

50 Melleuish, Gregory, A Short History of Australian Liberalism (St Leonards, Centre for Independent Studies, 2001) p.vii. Relevant works by Melleuish also include Melleuish, Gregory « Australian Liberalism » in Liberalism and the Australian Federation, ed. J.R. Nethercote (Annandale, Federation Press, 2001), pp28-41; Melleuish, Gregory, Cultural Liberalism in Australia – a Study in Intellectual and Cultural History (Cambridge: Cambridge University Press, 1995); Melleuish, The Power of Ideas: Essays on Australian Politics and History (North Melbourne: Australian Scholarly Publishing, 2009).

51 Butlin, N.G., Barnard, A., Pincus, J.J., Government and Capitalism: Public and Private Choice in Twentieth Century Australia (Sydney, George Allen & Unwin, 1982), p.5. Text at 13 and 17 suggests the figure of twenty per cent includes the outlays of government enterprises such as rail and post. Today the figure for total taxation revenue per head stands between thirty and forty percent per head. See Smith, Julie, Taxing Popularity: The Story of Taxation in Australia (Canberra, Federalism Research Centre, 1993), 10; and Taxation During the First 100 Years of Federation, Australian Bureau of Statistics, http://www.abs.gov.au/ausstats/abs@.nsf/Previousproducts/1301.0Feature%20Article472001; [2 July, 2020]. This puts the figures for total taxation revenue per head as a percentage of GDP per head at six percent in 1901 and thirty percent in 1999.

52 See also Weinstein, David, Utilitarianism and the New Liberalism (Cambridge, Cambridge University Press, 2007) p.4. Weinstein argues against this idea. ‘The new liberalism’, he suggests, ‘absorbed more utilitarianism than the received view acknowledges.’

53 The original United States’ system saw the upper house elected once removed from the people, as continues to be the case for the election of the president. Moore, William H., The Constitution of the Commonwealth of Australia (London, Sweet & Maxwell, 1910), pp.612-3

54 Moore, W., Constitution of Australia, p.612

55 Moore, W., Constitution of Australia, p.613

56 Kelly, P.J., Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law (Oxford, Clarendon Press, 1990), p.109

57 Dicey, A.V., Lectures on the Relation between Law and Public Opinion in England During the Nineteenth Century (London, Macmillan, 1962), pp.305-6.

58 Rosen, Frederick, « The Origin of Liberal Utilitarianism: Jeremy Bentham and Liberty » in Victorian Liberalism, Nineteenth-Century Political Thought and Practice, ed. Richard Bellamy. (London, Routledge, 1990), pp.58-70, pp.67-8.

59 Dicey, A.V. « Fifty Years of Reform in England », The Nation, xxxv (20 July, 1882), pp.49-50, p.49

60 Burton, John, « An Outline of the Opinions of Jeremy Bentham » in Bentham, Jeremy, Benthamiana: Or Select Extracts from the Works of Jeremy Bentham, ed. John Hill Burton (Edinburgh, William Tate, 1843) pp.347-405, pp350-351

61 « Chadwick, Sir Edwin », in An Oxford Companion to the Romantic Age: British Culture, 1776–1832, ed. Iain McCalman (Oxford, Oxford University Press, 2001), p447

62 Place, Francis, Letter to James Turner, 19 October, 1834, in Wallas, Graham, The Life of Francis Place, 1771-1854 (London, Longmans Green, 1898) p.359. A detailed discussion of Bentham’s proposed structures for government is contained in Hume, L.J., Bentham and Bureaucracy (Cambridge, Cambridge University Press, 1981).

63 Hume, L.J. « Jeremy Bentham and the Nineteenth-Century Revolution in Government », The Historical Journal, 10 (1967), pp361-375, p.372

64 Mills, Kerry Fraser, Of the People, by the People, for the People: Law-Making in New South Wales, 1843–1855 (Ph.D., University of New England, 2006), p.84

65 Mills, K., Law-Making in NSW, p.84

66 Report from the Select Committee of the Disposal of Lands in the British Colonies, Together with the Minutes of Evidence and Appendix (London, House of Commons, 1836) p.2. See also Bland, William, William Bland – Letters to Charles Buller, Junior, Esq, M.P., from the Australian Patriotic Association, Sydney (Sydney, Welch, 1849) p.171

67 Rosen, « The Origin of Liberal Utilitarianism » p.65

68 Kelly, P.J., Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law (Oxford, Clarendon Press, 1990) p.110

69 Postema, Gerald, Bentham and the Common Law Tradition (Oxford, Clarendon Press, 1986), pp.371-3.

70 Hume, L.J., « Foundations of Populism and Pluralism: Australian Writings on Politics to 1860 » in Australian Political Ideas, ed. Geoff Stokes (Kensington, UNSW Press, 1994), pp22-76, pp.42-48

71 Hume, L., « Populism and Pluralism », p.45

72 Hume, L., « Populism and Pluralism », p.46

73 Hume, L., « Populism and Pluralism », p.47

74 Hume, L., « Populism and Pluralism », p.47

75 James, Michael. « The Constitution in Australian Political Thought » in The Constitutional Challenge: Essays on the Australian Constitution, Constitutionalism and Parliamentary Practice, ed. Michael James (St. Leonards, Centre for Independent Studies, 1982) pp.7-36, pp13-15

76 James, M., « The Constitution in Australian Political Thought », p.11

77 James, M., « The Constitution in Australian Political Thought », p.13

78 James, M., « The Constitution in Australian Political Thought », p.14

79 Collins, H., « Political Ideology in Australia » p.148

80 Collins, H., « Political Ideology in Australia » p.151

81 Collins writes that for the supporters of laissez-faire ‘Theirs are the certainties and disappointments of scriptwriters for a production they will never direct.... On the other hand ‘the economic and political history that so offends the neoconservative proves scarcely more tractable for the neomarxist.’ in ’Collins, « Political Ideology in Australia » pp.158-159. See also Hancock, W.K., Australia, p.223 for a similar point. Russel Ward has suggested that Australia in 1977 had socialistic tendencies that were designed to regulate and ameliorate the functioning of laissez-faire capitalism. See Ward, Russel, « Introduction » in Métin, Albert, Métin: Socialism without Doctrine, trad. R. Ward (Chippendale, NSW, Alternative Publishing Co-operative, 1977), p.6.

82 Hancock, Australia, p.72.

83 Collins, H., « Political Ideology in Australia » p.151, 161; Aroney, Nicholas, « Imagining a Federal Commonwealth: Australian Conceptions of Federalism, 1890-1901 », Federal Law Review 10 (2002), pp.265-294; John Gascoigne, The Enlightenment and the Origins of European Australia (Port Melbourne, Cambridge University Press, 2002), pp.105-7

84 The Courier (Hobart), 19 February, 1841. Referring to Algernon Montagu, Puisne Judge of the Supreme Court of Van Diemen's Land. Of Montagu, P.A. Howell notes that his father, Basil Montagu, Q.C. had been ‘a leader of the English law reform movement in the first decades of the nineteenth century’ Howell continues: ‘[Algernon Montagu] had steadily gained popularity because of his zeal in sweeping a clean broom through the law's unnecessary quirks, sophistries and superfluous verbiage. He was hailed as “the disciple of Jeremy Bentham and Lord Campbell” ’. Howell, P.A., « The Van Diemen's Land Judge Storm », University of Tasmania Law Review, 2 (1966), pp.253-269, p.254. In the final sentence, Howell is quoting from the Launceston Advertiser, 16 August, 1884. The father, Basil Montagu, is described as a Benthamite reformer in McLaren, John, Dewigged, Bothered, and Bewildered: British Colonial Judges on Trial, 1800-1900 (Toronto, Francis Forbes Society for Australian Legal History, 2011), p.160

85 Llewellyn, David « Bentham and Australia », The Journal of Comparative Law, 14-2 (2019), pp.174-186, pp.179-180

86 Empire, 4 June, 1872, p.4

87 « Three Amigos », The Age, 9 February 2008

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David Llewellyn, « Bentham and Australia », Revue d’études benthamiennes [En ligne], 19 | 2021, mis en ligne le 30 janvier 2021, consulté le 16 mai 2021. URL : http://journals.openedition.org/etudes-benthamiennes/8517 ; DOI : https://doi.org/10.4000/etudes-benthamiennes.8517

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David Llewellyn

Bachelor of Arts, Bachelor of Laws, University of Melbourne. PhD History, University of Melbourne

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