An Introduction
to the
Principles of Morals
and
Legislation


Jeremy Bentham

Bencher of Lincoln’s Inn; and late of Queen’s College, Oxford, M.A. with the last corrections by the Author, and additions from Dumont’s Traités de Legislation, &c.

logo

The first edition of this work was printed in the year 1780.

The work was first published in 1789.

This web edition published by eBooks@Adelaide.

Last updated Wednesday, February 26, 2014 at 12:55.

To the best of our knowledge, the text of this
work is in the “Public Domain” in Australia.
HOWEVER, copyright law varies in other countries, and the work may still be under copyright in the country from which you are accessing this website. It is your responsibility to check the applicable copyright laws in your country before downloading this work.

eBooks@Adelaide
The University of Adelaide Library
University of Adelaide
South Australia 5005

Table of Contents

Preface.

Of the Principle of Utility.

Of Principles Adverse to that of Utility.

Of the Four Sanctions or Sources of Pain and Pleasure.

Value of a Lot of Pleasure or Pain, How to Be Measured.

Pleasures and Pains, Their Kinds.

Of Circumstances Influencing Sensibility.

Of Human Actions in General.

Of Intentionality.

Of Consciousness.

Of Motives.

  1. Different Senses of the word, Motive.
  2. No Motives either constantly good, or constantly bad.
  3. Catalogue of Motives corresponding to that of Pleasures and Pains.
  4. Order of Pre-eminence among Motives.
  5. Conflict among Motives.

Of Human Dispositions in General.

Of the Consequences of a Mischievous Act.

  1. Shapes in which the Mischief of an Act may show itself.
  2. How Intentionality, &c. may influence the Mischief of an Act.

Of Circumstances Influencing the Degree of Alarm.

Reasons for Considering Certain Actions as Crimes.

Chapter XV.

  1. General View of Cases unmeet for Punishment.
  2. Cases in which Punishment is groundless.
  3. Cases in which Punishment must be inefficacious.
  4. Cases where Punishment is unprofitable.
  5. Cases where Punishment is needless.

Of the Proportion Between Punishments and Offences.

Of the Properties to Be Given to a Lot of Punishment.

Chapter XVIII.

  1. Classes of Offences.
  2. Divisions and Sub-divisions.
  3. Advantages of the present Method.
  4. Characters of the Five Classes.

Chapter XIX.

  1. Limits between Private Ethics and the Art of Legislation.
  2. Jurisprudence, its Branches.

Essay on the Promulgation of Laws, and the Reasons Thereof; with Specimen of a Penal Code.

Essay on the Influence of Time and Place in Matters of Legislation.

Preface.

The following sheets were, as the title-page expresses, printed so long ago as the year 1780. The design, in pursuance of which they were written, was not so extensive as that announced by the present title. They had at that time no other destination than that of serving as an introduction to a plan of a penal code, in terminis, designed to follow them, in the same volume.

The body of the work had received its completion according to the then present extent of the author’s views, when, in the investigation of some flaws he had discovered, he found himself unexpectedly entangled in an unsuspected corner of the metaphysical maze. A suspension, at first not apprehended to be more than a temporary one, necessarily ensued: suspension brought on coolness, and coolness, aided by other concurrent causes, ripened into disgust.

Imperfections pervading the whole mass had already been pointed out by the sincerity of severe and discerning friends; and conscience had certified the justness of their censure. The inordinate length of some of the chapters, the apparent inutility of others, and the dry and metaphysical turn of the whole, suggested an apprehension, that, if published in its present form, the work would contend under great disadvantages for any chance, it might on other accounts possess, of being read, and consequently of being of use.

But, though in this manner the idea of completing the present work slid insensibly aside, that was not by any means the case with the considerations which had led him to engage in it. Every opening, which promised to afford the lights he stood in need of, was still pursued: as occasion arose, the several departments connected with that in which he had at first engaged, were successively explored; insomuch that, in one branch or other of the pursuit, his researches have nearly embraced the whole field of legislation.

Several causes have conspired at present to bring to light, under this new title, a work which under its original one had been imperceptibly, but as it had seemed irrevocably, doomed to oblivion. In the course of eight years, materials for various works, corresponding to the different branches of the subject of legislation, had been produced, and some nearly reduced to shape: and, in every one of those works, the principles exhibited in the present publication had been found so necessary, that, either to transcribe them piecemeal, or to exhibit them somewhere, where they could be referred to in the lump, was found unavoidable. The former course would have occasioned repetitions too bulky to be employed without necessity in the execution of a plan unavoidably so voluminous: the latter was therefore indisputably the preferable one.

To publish the materials in the form in which they were already printed, or to work them up into a new one, was therefore the only alternative: the latter had all along been his wish; and, had time and the requisite degree of alacrity been at command, it would as certainly have been realized. Cogent considerations, however, concur with the irksomeness of the task, in placing the accomplishment of it at present at an unfathomable distance.

Another consideration is, that the suppression of the present work, had it been ever so decidedly wished, is no longer altogether in his power. In the course of so long an interval, various incidents have introduced copies into various hands, from some of which they have been transferred, by deaths and other accidents, into others that are unknown to him. Detached, but considerable extracts, have even been published, without any dishonourable views (for the name of the author was very honestly subjoined to them), but without his privity, and in publications undertaken without his knowledge.

It may perhaps be necessary to add, to complete his excuse for offering to the public a work pervaded by blemishes, which have not escaped even the author’s partial eye, that the censure, so justly bestowed upon the form, did not extend itself to the matter.

In sending it thus abroad into the world with all its imperfections upon its head, he thinks it may be of assistance to the few readers he can expect, to receive a short intimation of the chief particulars, in respect of which it fails of corresponding with his maturer views. It will thence be observed how in some respects it fails of quadrating with the design announced by its original title, as in others it does with that announced by the one it bears at present.

An introduction to a work which takes for its subject the totality of any science, ought to contain all such matters, and such matters only, as belong in common to every particular branch of that science, or at least to more branches of it than one. Compared with its present title, the present work fails in both ways of being conformable to that rule.

As an introduction to the principles of morals, in addition to the analysis it contains of the extensive ideas signified by the terms pleasure, pain, motive, and disposition, it ought to have given a similar analysis of the not less extensive, though much less determinate, ideas annexed to the terms emotion, passion, appetite, virtue, vice, and some others, including the names of the particular virtues and vices. But as the true, and, if he conceives right, the only true groundwork for the development of the latter set of terms, has been laid by the explanation of the former, the completion of such a dictionary, so to style it, would, in comparison of the commencement, be little more than a mechanical operation.

Again, as an introduction to the principles of legislation in general, it ought rather to have included matters belonging exclusively to the civil branch, than matters more particularly applicable to the penal: the latter being but a means of compassing the ends proposed by the former. In preference, therefore, or at least in priority, to the several chapters which will be found relative to punishment, it ought to have exhibited a set of propositions which have since presented themselves to him as affording a standard for the operations performed by government, in the creation and distribution of proprietary and other civil rights. He means certain axioms of what may be termed mental pathology, expressive of the connexion betwixt the feelings of the parties concerned, and the several classes of incidents, which either call for, or are produced by, operations of the nature above mentioned.*

The consideration of the division of offences, and every thing else that belongs to offences, ought, besides, to have preceded the consideration of punishment: for the idea of punishment presupposes the idea of offence: punishment, as such, not being inflicted but in consideration of offence.

Lastly, the analytical discussions relative to the classification of offences would, according to his present views, be transferred to a separate treatise, in which the system of legislation is considered solely in respect of its form: in other words, in respect of its method and terminology.

In these respects, the performance fails of coming up to the author’s own ideas of what should have been exhibited in a work, bearing the title he has now given it, viz. that of an Introduction to the Principles of Morals and Legislation. He knows however of no other that would be less unsuitable: nor, in particular, would so adequate an intimation of its actual contents have been given, by a title corresponding to the more limited design, with which it was written; viz. that of serving as an introduction to a penal code.

Yet more. Dry and tedious as a great part of the discussions it contains must unavoidably be found by the bulk of readers, he knows not how to regret the having written them, nor even the having made them public. Under every head, the practical uses, to which the discussions contained under that head appeared applicable, are indicated: nor is there, he believes, a single proposition that he has not found occasion to build upon in the penning of some article or other of those provisions of detail, of which a body of law, authoritative or unauthoritative, must be composed. He will venture to specify particularly, in this view, the several chapters shortly characterized by the words Sensibility, Actions, Intentionality, Consciousness, Motives, Dispositions, Consequences. Even in the enormous chapter on the division of offences, which, notwithstanding the forced compression the plan has undergone in several of its parts, in manner there mentioned, occupies no fewer than one hundred and four closely printed quarto pages, the ten concluding ones are employed in a statement of the practical advantages that may be reaped from the plan of classification which it exhibits. Those in whose sight the Defence of Usury has been fortunate enough to find favour, may reckon, as one instance of those advantages, the discovery of the principles developed in that little treatise. In the preface to an anonymous tract published so long ago as in 1776,* he had hinted at the utility of a natural classification of offences, in the character of a test for distinguishing genuine from spurious ones. The case of usury is one among a number of instances of the truth of that observation. A note at the end of Sect. xxxv. Chap. xvi. of the present publication, may serve to show how the opinions developed in that tract owed their origin to the difficulty experienced in the attempt to find a place in his system for that imaginary offence. To some readers, as a means of helping them to support the fatigue of wading through an analysis of such enormous length, he would almost recommend the beginning with those ten concluding pages.

One good at least may result from the present publication; viz. that the more he has trespassed on the patience of the reader on this occasion, the less need he will have so to do on future ones: so that this may do to those, the office which is done by books of pure mathematics to books of mixed mathematics and natural philosophy. The narrower the circle of readers is, within which the present work may be condemned to confine itself, the less limited may be the number of those to whom the fruits of his succeeding labours may be found accessible. He may therefore, in this respect, find himself in the condition of those philosophers of antiquity, who are represented as having held two bodies of doctrine, a popular and an occult one: but with this difference, that in his instance the occult and the popular will, he hopes, be found as consistent as in those they were contradictory; and that, in his production, whatever there is of occultness has been the pure result of sad necessity, and in no respect of choice.

Having, in the course of this advertisement, had such frequent occasion to allude to different arrangements, as having been suggested by more extensive and maturer views, it may perhaps contribute to the satisfaction of the reader, to receive a short intimation of their nature: the rather, as without such explanation, references made here and there to unpublished works might be productive of perplexity and mistake. The following, then, are the titles of the works by the publication of which his present designs would be completed. They are exhibited in the order which seemed to him best fitted for apprehension, and in which they would stand disposed, were the whole assemblage ready to come out at once: but the order in which they will eventually appear, may probably enough be influenced in some degree by collateral and temporary considerations.

Part the 1st. — Principles of legislation in matters of civil, more distinctively termed private distributive, or for shortness, distributive, law.

Part the 2d. — Principles of legislation in matters of penal law.

Part the 3d. — Principles of legislation in matters of procedure: uniting in one view the criminal and civil branches, between which no line can be drawn, but a very indistinct one, and that continually liable to variation.

Part the 4th. — Principles of legislation in matters of reward.

Part the 5th. — Principles of legislation in matters of public distributive, more concisely as well as familiarly termed constitutional, law.

Part the 6th. — Principles of legislation in matters of political tactics: or of the art of maintaining order in the proceedings of political assemblies, so as to direct them to the end of their institution; viz. by a system of rules, which are to the constitutional branch, in some respects, what the law of procedure is to the civil and the penal.

Part the 7th. — Principles of legislation in matters betwixt nation and nation, or, to use a new though not inexpressive appellation, in matters of international law.

Part the 8th. — Principles of legislation in matters of finance.

Part the 9th. — Principles of legislation in matters of political economy.

Part the 10th. — Plan of a body of law, complete in all its branches, considered in respect of its form; in other words, in respect of its method and terminology; including a view of the origination and connexion of the ideas expressed by the short list of terms, the exposition of which contains all that can be said with propriety to belong to the head of universal jurisprudence.

The use of the principles laid down under the above several heads is to prepare the way for the body of law itself exhibited in terminis: and which, to be complete with reference to any political state, must consequently be calculated for the meridian, and adapted to the circumstances, of some one such state in particular.

Had he an unlimited power of drawing upon time, and every other condition necessary, it would be his wish to postpone the publication of each part to the completion of the whole. In particular, the use of the ten parts, which exhibit what appear to him the dictates of utility in every line, being no other than to furnish reasons for the several corresponding provisions contained in the body of law itself, the exact truth of the former can never be precisely ascertained, till the provisions, to which they are destined to apply, are themselves ascertained, and that in terminis. But as the infirmity of human nature renders all plans precarious in the execution, in proportion as they are extensive in the design, and as he has already made considerable advances in several branches of the theory, without having made correspondent advances in the practical applications, he deems it more than probable, that the eventual order of publication will not correspond exactly with that which, had it been equally practicable, would have appeared most eligible. Of this irregularity the unavoidable result will be, a multitude of imperfections, which, if the execution of the body of law in terminis had kept pace with the development of the principles, so that each part had been adjusted and corrected by the other, might have been avoided. His conduct, however, will be the less swayed by this inconvenience, from his suspecting it to be of the number of those in which the personal vanity of the author is much more concerned, than the instruction of the public: since whatever amendments may be suggested in the detail of the principles, by the literal fixation of the provisions to which they are relative, may easily be made in a corrected edition of the former, succeeding upon the publication of the latter.

In the course of the ensuing pages, references will be found, as already intimated, some to the plan of a penal code, to which this work was meant as an introduction; some to other branches of the above-mentioned general plan, under titles somewhat different from those by which they have been mentioned here. The giving this warning is all which it is in the author’s power to do, to save the reader from the perplexity of looking out for what has not as yet any existence. The recollection of the change of plan will in like manner account for several similar incongruities not worth particularizing.

Allusion was made, at the outset of this advertisement, to some unspecified difficulties as the causes of the original suspension, and unfinished complexion, of the present work. Ashamed of his defeat, and unable to dissemble it, he knows not how to refuse himself the benefit of such an apology as a slight sketch of the nature of those difficulties may afford.

The discovery of them was produced by the attempt to solve the questions that will be found at the conclusion of the volume: 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?

To give a complete and correct answer to these questions, it is but too evident that the relations and dependencies of every part of the legislative system, with respect to every other, must have been comprehended and ascertained. But it is only upon a view of these parts themselves, that such an operation could have been performed. To the accuracy of such a survey one necessary condition would therefore be, the complete existence of the fabric to be surveyed. Of the performance of this condition no example is as yet to be met with any where. Common law, as it styles itself in England, judiciary law, as it might more aptly be styled every where, that fictitious composition which has no known person for its author, no known assemblage of words for its substance, forms every where the main body of the legal fabric: like that fancied ether, which, in default of sensible matter, fills up the measure of the universe. Shreds and scraps of real law, stuck on upon that imaginary ground, compose the furniture of every national code. What follows? That he who, for the purpose just mentioned, or for any other, wants an example of a complete body of law to refer to, must begin with making one.

There is, or rather there ought to be, a logic of the will, as well as of the understanding: the operations of the former faculty are neither less susceptible, nor less worthy, than those of the latter, of being delineated by rules. Of these two branches of that recondite art, Aristotle saw only the latter: succeeding logicians, treading in the steps of their great founder, have concurred in seeing with no other eyes. Yet so far as a difference can be assigned between branches so intimately connected, whatever difference there is, in point of importance, is in favour of the logic of the will; since it is only by their capacity of directing the operations of this faculty, that the operations of the understanding are of any consequence.

Of this logic of the will, the science of law, considered in respect of its form, is the most considerable branch — the most important application. It is, to the art of legislation, what the science of anatomy is to the art of medicine: with this difference, that the subject of it is what the artist has to work with, instead of being what he has to operate upon. Nor is the body politic less in danger from a want of acquaintance with the one science, than the body natural from ignorance in the other. One example, amongst a thousand that might be adduced in proof of this assertion, may be seen in the note which terminates this volume.

Such, then, were the difficulties: such the preliminaries:— an unexampled work to achieve, and then a new science to create: a new branch to add to one of the most abstruse of sciences.

Yet more: a body of proposed law, how complete soever, would be comparatively useless and uninstructive, unless explained and justified, and that in every tittle, by a continued accompaniment, a perpetual commentary of reasons:* which reasons, that the comparative value of such as point in opposite directions may be estimated, and the conjunct force of such as point in the same direction may be felt, must be marshalled, and put under subordination to such extensive and leading ones as are termed principles. There must be therefore, not one system only, but two parallel and connected systems, running on together; the one of legislative provisions, the other of political reasons; each affording to the other correction and support.

Are enterprises like these achievable? He knows not. This only he knows, that they have been undertaken, proceeded in, and that some progress has been made in all of them. He will venture to add, if at all achievable, never at least by one, to whom the fatigue of attending to discussions, as arid as those which occupy the ensuing pages, would either appear useless, or feel intolerable. He will repeat it boldly (for it has been said before him), truths that form the basis of political and moral science are not to be discovered but by investigations as severe as mathematical ones, and beyond all comparison more intricate and extensive. The familiarity of the terms is a presumption, but it is a most fallacious one, of the facility of the matter. Truths in general have been called stubborn things: the truths just mentioned are so in their own way. They are not to be forced into detached and general propositions, unincumbered with explanations and exceptions. They will not compress themselves into epigrams. They recoil from the tongue and the pen of the declaimer. They flourish not in the same soil with sentiment. They grow among thorns; and are not to be plucked, like daisies, by infants as they run. Labour, the inevitable lot of humanity, is in no tract more inevitable than here. In vain would an Alexander bespeak a peculiar road for royal vanity, or a Ptolemy a smoother one for royal indolence. There is no King’s Road, no Stadtholder’s Gate, to legislative, any more than to mathematic science.

* For example: It is worse to lose than simply not to gain. A loss falls the lighter by being divided. The suffering, of a person hurt in gratification of enmity, is greater than the gratification produced by the same cause. These, and a few others which he will have occasion to exhibit at the head of another publication, have the same claim to the appellation of axioms, as those given by mathematicians under that name; since, referring to universal experience as their immediate basis, they are incapable of demonstration, and require only to be developed and illustrated, in order to be recognised as incontestable.

The first edition was published in 1789, in quarto.

* A Fragment on Government, &c. reprinted 1822.

Such as obligation, right, power, possession, title, exemption, immunity, franchise, privilege, nullity, validity, and the like.

* To the aggregate of them a common denomination has since been assigned — the rationale.

Chapter I.

Of the Principle of Utility.

I.

Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. They govern us in all we do, in all we say, in all we think: every effort we can make to throw off our subjection, will serve but to demonstrate and confirm it. In words a man may pretend to abjure their empire: but in reality he will remain subject to it all the while. The principle of utility* recognises this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and of law. Systems which attempt to question it, deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light.

But enough of metaphor and declamation: it is not by such means that moral science is to be improved.

* Note by the Author, July 1822 —

To this denomination has of late been added, or substituted, the greatest happiness or greatest felicity principle: this for shortness, instead of saying at length that principle which states the greatest happiness of all those whose interest is in question, as being the right and proper, and only right and proper and universally desirable, end of human action: of human action in every situation, and in particular in that of a functionary or set of functionaries exercising the powers of Government. The word utility does not so clearly point to the ideas of pleasure and pain as the words happiness and felicity do: nor does it lead us to the consideration of the number, of the interests affected; to the number, as being the circumstance, which contributes, in the largest proportion, to the formation of the standard here in question; the standard of right and wrong, by which alone the propriety of human conduct, in every situation, can with propriety be tried. This want of a sufficiently manifest connexion between the ideas of happiness and pleasure on the one hand, and the idea of utility on the other, I have every now and then found operating, and with but too much efficiency, as a bar to the acceptance, that might otherwise have been given, to this principle.

II.

The principle of utility is the foundation of the present work: it will be proper therefore at the outset to give an explicit and determinate account of what is meant by it. By the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question: or, what is the same thing in other words, to promote or to oppose that happiness. I say of every action whatsoever; and therefore not only of every action of a private individual, but of every measure of government.

[Principle.] The word principle is derived from the Latin principium: which seems to be compounded of the two words primus, first, or chief, and cipium, a termination which seems to be derived from capio, to take, as in mancipium, municipium; to which are analogous auceps, forceps, and others. It is a term of very vague and very extensive signification: it is applied to any thing which is conceived to serve as a foundation or beginning to any series of operations: in some cases, of physical operations: but of mental operations in the present case.

The principle here in question may be taken for an act of the mind; a sentiment; a sentiment of approbation; a sentiment which, when applied to an action, approves of its utility, as that quality of it by which the measure of approbation or disapprobation bestowed upon it ought to be governed.

III.

By utility is meant that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness (all this in the present case comes to the same thing), or (what comes again to the same thing) to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered: if that party be the community in general, then the happiness of the community: if a particular individual, then the happiness of that individual.

IV.

The interest of the community is one of the most general expressions that can occur in the phraseology of morals: no wonder that the meaning of it is often lost. When it has a meaning, it is this. The community is a fictitious body, composed of the individual persons who are considered as constituting as it were its members. The interest of the community then is, what? — the sum of the interests of the several members who compose it.

V.

It is in vain to talk of the interest of the community, without understanding what is the interest of the individual.* A thing is said to promote the interest, or to be for the interest, of an individual, when it tends to add to the sum total of his pleasures: or, what comes to the same thing, to diminish the sum total of his pains.

* [Interest, &c.] Interest is one of those words, which not having any superior genus, cannot in the ordinary way be defined.

VI.

An action then may be said to be conformable to the principle of utility, or, for shortness sake, to utility (meaning with respect to the community at large), when the tendency it has to augment the happiness of the community is greater than any it has to diminish it.

VII.

A measure of government (which is but a particular kind of action, performed by a particular person or persons) may be said to be conformable to or dictated by the principle of utility, when in like manner the tendency which it has to augment the happiness of the community is greater than any which it has to diminish it.

VIII.

When an action, or in particular a measure of government, is supposed by a man to be conformable to the principle of utility, it may be convenient, for the purposes of discourse, to imagine a kind of law or dictate, called a law or dictate of utility: and to speak of the action in question, as being conformable to such law or dictate.

IX.

A man may be said to be a partizan of the principle of utility, when the approbation or disapprobation he annexes to any action, or to any measure, is determined, by and proportioned to the tendency which he conceives it to have to augment or to diminish the happiness of the community: or in other words, to its conformity or unconformity to the laws or dictates of utility.

X.

Of an action that is conformable to the principle of utility, one may always say either that it is one that ought to be done, or at least that it is not one that ought not to be done. One may say also, that it is right it should be done; at least that it is not wrong it should be done: that it is a right action; at least that it is not a wrong action. When thus interpreted, the words ought, and right and wrong, and others of that stamp, have a meaning: when otherwise, they have none.

XI.

Has the rectitude of this principle been ever formally contested? It should seem that it had, by those who have not known what they have been meaning. Is it susceptible of any direct proof? It should seem not: for that which is used to prove every thing else, cannot itself be proved: a chain of proofs must have their commencement somewhere. To give such proof is as impossible as it is needless.

XII.

Not that there is or ever has been that human creature breathing, however stupid or perverse, who has not on many, perhaps on most occasions of his life, deferred to it. By the natural constitution of the human frame, on most occasions of their lives men in general embrace this principle, without thinking of it: if not for the ordering of their own actions, yet for the trying of their own actions, as well as of those of other men. There have been, at the same time, not many, perhaps, even of the most intelligent, who have been disposed to embrace it purely and without reserve. There are even few who have not taken some occasion or other to quarrel with it, either on account of their not understanding always how to apply it, or on account of some prejudice or other which they were afraid to examine into, or could not bear to part with. For such is the stuff that man is made of: in principle and in practice, in a right track and in a wrong one, the rarest of all human qualities is consistency.

XIII.

When a man attempts to combat the principle of utility, it is with reasons drawn, without his being aware of it, from that very principle itself. His arguments, if they prove any thing, prove not that the principle is wrong, but that, according to the applications he supposes to be made of it, it is misapplied. Is it possible for a man to move the earth? Yes; but he must first find out another earth to stand upon.

“The principle of utility (I have heard it said) is a dangerous principle: it is dangerous on certain occasions to consult it.” This is as much as to say, what? that it is not consonant to utility, to consult utility; in short, that it is not consulting it, to consult it.

Addition by the Author, July 1822 —

Not long after the publication of the Fragment on Government, anno 1776, in which, in the character of an all-comprehensive and all-commanding principle, the principle of utility was brought to view, one person by whom observation to the above effect was made was Alexander Wedderburn, at that time Attorney or Solicitor General, afterwards successively Chiet Justice of the Common Pleas, and Chancellor of England, under the successive titles of Lord Loughborough and Earl of Rosslyn. It was made — not indeed in my hearing, but in the hearing of a person by whom it was almost immediately communicated to me. So far from being self-contradictory, it was a shrewd and perfectly true one. By that distinguished functionary, the state of the Government was thoroughly understood: by the obscure individual, at that time not so much as supposed to be so: his disquisitions had not been as yet applied, with any thing like a comprehensive view, to the field of Constitutional Law, nor therefore to those features of the English Government, by which the greatest happiness of the ruling one with or without that of a favoured few, are now so plainly seen to be the only ends to which the course of it has at any time been directed. The principle of utility was an appellative, at that time employed — employed by me, as it had been by others, to designate that which, in a more perspicuous and instructive manner, may, as above, be designated by the name of the greatest happiness principle. “This principle (said Wedderburn) is a dangerous one.” Saying so, he said that which, to a certain extent, is strictly true: a principle, which lays down, as the only right and justifiable end of Government, the greatest happiness of the greatest number — how can it be denied to be a dangerous one? dangerous it unquestionably is, to every government which has for its actual end or object, the greatest happiness of a certain one, with or without the addition of some comparatively small number of others, whom it is matter of pleasure or accommodation to him to admit, each of them, to a share in the concern, on the footing of so many junior partners. Dangerous it therefore really was, to the interest — the sinister interest — of all those functionaries, himself included, whose interest it was, to maximize delay, vexation, and expense, in judicial and other modes of procedure, for the sake of the profit, extractible out of the expense. In a Government which had for its end in view the greatest happiness of the greatest number, Alexander Wedderburn might have been Attorney General and then Chancellor: but he would not have been Attorney General with £15,000 a-year, nor Chancellor with a peerage, with a veto upon all justice, with £25,000 a-year, and with 500 sinecures at his disposal, under the name of Ecclesiastical Benefices, besides et cœteras.

XIV.

To disprove the propriety of it by arguments is impossible; but, from the causes that have been mentioned, or from some confused or partial view of it, a man may happen to be disposed not to relish it. Where this is the case, if he thinks the settling of his opinions on such a subject worth the trouble, let him take the following steps, and at length, perhaps, he may come to reconcile himself to it.

1. Let him settle with himself, whether he would wish to discard his principle altogether; if so, let him consider what it is that all his reasonings (in matters of politics especially) can amount to?

2. If he would, let him settle with himself, whether he would judge and act without any principle, or whether there is any other he would judge and act by?

3. If there be, let him examine and satisfy himself whether the principle he thinks he has found is really any separate intelligible principle; or whether it be not a mere principle in words, a kind of phrase, which at bottom expresses neither more nor less than the mere averment of his own unfounded sentiments; that is, what in another person he might be apt to call caprice?

4. If he is inclined to think that his own approbation or disapprobation, annexed to the idea of an act, without any regard to its consequences, is a sufficient foundation for him to judge and act upon, let him ask himself whether his sentiment is to be a standard of right and wrong, with respect to every other man, or whether every man’s sentiment has the same privilege of being a standard to itself?

5. In the first case, let him ask himself whether his principle is not despotical, and hostile to all the rest of human race?

6. In the second case, whether it is not anarchial, and whether at this rate there are not as many different standards of right and wrong as there are men? and whether even to the same man, the same thing, which is right to-day, may not (without the least change in its nature) be wrong to-morrow? and whether the same thing is not right and wrong in the same place at the same time? and in either case, whether all argument is not at an end? and whether, when two men have said, “I like this,” and “I don’t like it,” they can (upon such a principle) have any thing more to say?

7. If he should have said to himself, No: for that the sentiment which he proposes as a standard must be grounded on reflection, let him say on what particulars the reflection is to turn? If on particulars having relation to the utility of the act, then let him say whether this is not deserting his own principle, and borrowing assistance from that very one in opposition to which he sets it up: or if not on those particulars, on what other particulars?

8. If he should be for compounding the matter, and adopting his own principle in part, and the principle of utility in part, let him say how far he will adopt it?

9. When he has settled with himself where he will stop, then let him ask himself how he justifies to himself the adopting it so far? and why he will not adopt it any farther?

10. Admitting any other principle than the principle of utility to be a right principle, a principle that it is right for a man to pursue; admitting (what is not true) that the word right can have a meaning without reference to utility, let him say whether there is any such thing as a motive that a man can have to pursue the dictates of it: if there is, let him say what that motive is, and how it is to be distinguished from those which enforce the dictates of utility: if not, then lastly let him say what it is this other principle can be good for?

Chapter II.

Of Principles Adverse to that of Utility.

I.

If the principle of utility be a right principle to be governed by, and that in all cases, it follows from what has been just observed, that whatever principle differs from it in any case must necessarily be a wrong one. To prove any other principle, therefore, to be a wrong one, there needs no more than just to show it to be what it is, a principle of which the dictates are in some point or other different from those of the principle of utility: to state it is to confute it.

II.

A principle may be different from that of utility in two ways: 1. By being constantly opposed to it: this is the case with a principle which may be termed the principle of asceticism.* 2. By being sometimes opposed to it, and sometimes not, as it may happen: this is the case with another, which may be termed the principle of sympathy and antipathy.

* [Asceticism.] Ascetic is a term that has been sometimes applied to Monks. It comes from a Greek word which signifies exercise. The practices by which Monks sought to distinguish themselves from other men were called their Exercises. These exercises consisted in so many contrivances they had for tormenting themselves. By this they thought to ingratiate themselves with the Deity. For the Deity, said they, is a Being of infinite benevolence: now a Being of the most ordinary benevolence is pleased to see others make themselves as happy as they can: therefore to make ourselves as unhappy as we can is the way to please the Deity. If any body ask them, what motive they could find for doing all this? Oh! said they, you are not to imagine that we are punishing ourselves for nothing: we know very well what we are about. You are to know, that for every grain of pain it costs us now, we are to have a hundred grains of pleasure by and by. The case is, that God loves to see us torment ourselves at present: indeed he has as good as told us so. But this is done only to try us, in order just to see how we should behave: which it is plain he could not know, without making the experiment. Now then, from the satisfaction it gives him to see us make ourselves as unhappy as we can make ourselves in this present life, we have a sure proof of the satisfaction it will give him to see us as happy as he can make us in a life to come.

III.

By the principle of asceticism I mean that principle, which, like the principle of utility, approves or disapproves of any action, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question; but in an inversive manner: approving of actions in as far as they tend to diminish his happiness; disapproving of them in as far as they tend to augment it.

IV.

It is evident that any one who reprobates any the least particle of pleasure, as such, from whatever source derived, is pro tanto a partizan of the principle of asceticism. It is only upon that principle, and not from the principle of utility, that the most abominable pleasure which the vilest of malefactors ever reaped from his crime would be to be reprobated, if it stood alone. The case is, that it never does stand alone; but is necessarily followed by such a quantity of pain (or, what comes to the same thing, such a chance for a certain quantity of pain) that the pleasure in comparison of it, is as nothing: and this is the true and sole, but perfectly sufficient, reason for making it a ground for punishment.

V.

There are two classes of men of very different complexions, by whom the principle of asceticism appears to have been embraced; the one a set of moralists, the other a set of religionists. Different accordingly have been the motives which appear to have recommended it to the notice of these different parties. Hope, that is, the prospect of pleasure, seems to have animated the former: hope, the aliment of philosophic pride: the hope of honour and reputation at the hands of men. Fear, that is, the prospect of pain, the latter: fear, the offspring of superstitious fancy: the fear of future punishment at the hands of a splenetic and revengeful Deity. I say in this case fear: for of the invisible future, fear is more powerful than hope. These circumstances characterize the two different parties among the partizans of the principle of asceticism: the parties and their motives different, the principle the same.

VI.

The religious party, however, appear to have carried it farther than the philosophical: they have acted more consistently and less wisely. The philosophical party have scarcely gone farther than to reprobate pleasure: the religious party have frequently gone so far as to make it a matter of merit and of duty to court pain. The philosophical party have hardly gone farther than the making pain a matter of indifference. It is no evil, they have said: they have not said, it is a good. They have not so much as reprobated all pleasure in the lump. They have discarded only what they have called the gross; that is, such as are organical, or of which the origin is easily traced up to such as are organical: they have even cherished and magnified the refined. Yet this, however, not under the name of pleasure: to cleanse itself from the sordes of its impure original, it was necessary it should change its name: the honourable, the glorious, the reputable, the becoming, the honestum, the decorum, it was to be called: in short, any thing but pleasure.

VII.

From these two sources have flowed the doctrines from which the sentiments of the bulk of mankind have all along received a tincture of this principle; some from the philosophical, some from the religious, some from both. Men of education more frequently from the philosophical, as more suited to the elevation of their sentiments: the vulgar more frequently from the superstitious, as more suited to the narrowness of their intellect, undilated by knowledge: and to the abjectness of their condition, continually open to the attacks of fear. The tinctures, however, derived from the two sources, would naturally intermingle, insomuch that a man would not always know by which of them he was most influenced: and they would often serve to corroborate and enliven one another. It was this conformity that made a kind of alliance between parties of a complexion otherwise so dissimilar: and disposed them to unite upon various occasions against the common enemy, the partizan of the principle of utility, whom they joined in branding with the odious name of Epicurean.

VIII.

The principle of asceticism, however, with whatever warmth it may have been embraced by its partizans as a rule of private conduct, seems not to have been carried to any considerable length, when applied to the business of government. In a few instances it has been carried a little way by the philosophical party: witness the Spartan regimen. Though then, perhaps, it may be considered as having been a measure of security: and an application, though a precipitate and perverse application, of the principle of utility. Scarcely in any instances, to any considerable length, by the religious: for the various monastic orders, and the societies of the Quakers, Dumplers, Moravians, and other religionists, have been free societies, whose regimen no man has been astricted to without the intervention of his own consent. Whatever merit a man may have thought there would be in making himself miserable, no such notion seems ever to have occurred to any of them, that it may be a merit, much less a duty, to make others miserable: although it should seem, that if a certain quantity of misery were a thing so desirable, it would not matter much whether it were brought by each man upon himself, or by one man upon another. It is true, that from the same source from whence, among the religionists, the attachment to the principle of asceticism took its rise, flowed other doctrines and practices, from which misery in abundance was produced in one man by the instrumentality of another: witness the holy wars, and the persecutions for religion. But the passion for producing misery in these cases proceeded upon some special ground: the exercise of it was confined to persons of particular descriptions: they were tormented, not as men, but as heretics and infidels. To have inflicted the same miseries on their fellow-believers and fellow-sectaries, would have been as blameable in the eyes even of these religionists, as in those of a partizan of the principle of utility. For a man to give himself a certain number of stripes was indeed meritorious: but to give the same number of stripes to another man, not consenting, would have been a sin. We read of saints, who for the good of their souls, and the mortification of their bodies, have voluntarily yielded themselves a prey to vermin: but though many persons of this class have wielded the reins of empire, we read of none who have set themselves to work, and made laws on purpose, with a view of stocking the body politic with the breed of highwaymen, housebreakers, or incendiaries. If at any time they have suffered the nation to be preyed upon by swarms of idle pensioners, or useless placemen, it has rather been from negligence and imbecility, than from any settled plan for oppressing and plundering of the people.* If at any time they have sapped the sources of national wealth, by cramping commerce, and driving the inhabitants into emigration, it has been with other views, and in pursuit of other ends. If they have declaimed against the pursuit of pleasure, and the use of wealth, they have commonly stopped at declamation: they have not, like Lycurgus, made express ordinances for the purpose of banishing the precious metals. If they have established idleness by a law, it has been not because idleness, the mother of vice and misery, is itself a virtue, but because idleness (say they) is the road to holiness. If under the notion of fasting, they have joined in the plan of confining their subjects to a diet, thought by some to be of the most nourishing and prolific nature, it has been not for the sake of making them tributaries to the nations by whom that diet was to be supplied, but for the sake of manifesting their own power, and exercising the obedience of the people. If they have established, or suffered to be established, punishments for the breach of celibacy, they have done no more than comply with the petitions of those deluded rigorists, who, dupes to the ambitious and deep-laid policy of their rulers, first laid themselves under that idle obligation by a vow.

* So thought Anno 1780 and 1789 — Not so Anno 1814. — J. Bentham.

IX.

The principle of asceticism seems originally to have been the reverie of certain hasty speculators, who having perceived, or fancied, that certain pleasures, when reaped in certain circumstances, have, at the long run, been attended with pains more than equivalent to them, took occasion to quarrel with every thing that offered itself under the name of pleasure. Having then got thus far, and having forgot the point which they set out from, they pushed on, and went so much further as to think it meritorious to fall in love with pain. Even this, we see, is at bottom but the principle of utility misapplied.

X.

The principle of utility is capable of being consistently pursued; and it is but tautology to say, that the more consistently it is pursued, the better it must ever be for human-kind. The principle of asceticism never was, nor ever can be, consistently pursued by any living creature. Let but one tenth part of the inhabitants of this earth pursue it consistently, and in a day’s time they will have turned it into a hell.

XI.

Among principles adverse* to that of utility, that which at this day seems to have most influence in matters of government, is what may be called the principle of sympathy and antipathy. By the principle of sympathy and antipathy, I mean that principle which approves or disapproves of certain actions, not on account of their tending to augment the happiness, nor yet on account of their tending to diminish the happiness of the party whose interest is in question, but merely because a man finds himself disposed to approve or disapprove of them: holding up that approbation or disapprobation as a sufficient reason for itself, and disclaiming the necessity of looking out for any extrinsic ground. Thus far in the general department of morals: and in the particular department of politics, measuring out the quantum (as well as determining the ground) of punishment, by the degree of the disapprobation.

* The following Note was first printed in January 1789:—

It ought rather to have been styled, more extensively, the principle of caprice. Where it applies to the choice of actions to be marked out for injunction or prohibition, for reward or punishment, (to stand, in a word, as subjects for obligations to be imposed), it may indeed with propriety be termed, as in the text, the principle of sympathy and antipathy. But this appellative does not so well apply to it, when occupied in the choice of the events which are to serve as sources of title with respect to rights: where the actions prohibited and allowed, the obligations and rights being already fixed, the only question is, under what circumstances a man is to be invested with the one or subjected to the other? from what incidents occasion is to be taken to invest a man, or to refuse to invest him, with the one, or to subject him to the other? In this latter case it may more appositely be characterized by the name of the phantastic principle. Sympathy and antipathy are affections of the sensible faculty. But the choice of titles with respect to rights, especially with respect to proprietary rights, upon grounds unconnected with utility, has been in many instances the work, not of the affections but of the imagination.

When, in justification of an article of English Common Law, calling uncles to succeed in certain cases in preference to fathers, Lord Coke produced a sort of ponderosity he had discovered in rights, disqualifying them from ascending in a straight line, it was not that he loved uncles particularly, or hated fathers, but because the analogy, such as it was, was what his imagination presented him with, instead of a reason, and because, to a judgment unobservant of the standard of utility, or unacquainted with the art of consulting it, where affection is out of the way, imagination is the only guide.

When I know not what ingenious grammarian invented the proposition Delegatus non potest delegare, to serve as a rule of law, it was not surely that he had any antipathy to delegates of the second order, or that it was any pleasure to him to think of the ruin which, for want of a manager at home, may befal the affairs of a traveller, whom an unforeseen accident has deprived of the object of his choice: it was, that the incongruity, of giving the same law to objects so contrasted as active and passive are, was not to be surmounted, and that -atus chimes, as well as it contrasts, with -are.

When that inexorable maxim (of which the dominion is no more to be defined, than the date of its birth, or the name of its father, is to be found) was imported from England for the government of Bengal, and the whole fabric of judicature was crushed by the thunders of ex post facto justice, it was not surely that the prospect of a blameless magistracy perishing in prison afforded any enjoyment to the unoffended authors of their misery; but that the music of the maxim, absorbing the whole imagination, had drowned the cries of humanity along with the dictates of common sense.aFiat Justitia, ruat cælum, says another maxim, as full of extravagance as it is of harmony: Go heaven to wreck — so justice be but done:— and what is the ruin of kingdoms, in comparison of the wreck of heaven?

So again, when the Prussian chancellor, inspired with the wisdom of I know not what Roman sage, proclaimed in good Latin, for the edification of German ears, Servitus servitutis non datur [Cod. Fred. tom. ii. par. 2. liv. 2, tit. x. § 6, p. 308], it was not that he had conceived any aversion to the lifeholder who, during the continuance of his term, should wish to gratify a neighbour with a right of way or water, or to the neighbour who should wish to accept of the indulgence; but that, to a jurisprudential ear, -tus -tutis sound little less melodious than -atus -are. Whether the melody of the maxim was the real reason of the rule, is not left open to dispute: for it is ushered in by the conjunction quia, reason’s appointed harbinger: quia servitus servitutis non datur.

Neither would equal melody have been produced, nor indeed could similar melody have been called for, in either of these instances, by the opposite provision: it is only when they are opposed to general rules, and not when by their conformity they are absorbed in them, that more specific ones can obtain a separate existence. Delegatus potest delegare, and Servitus servitutis datur, provisions already included under the general adoption of contracts, would have been as unnecessary to the apprehension and the memory, as, in comparison of their energetic negatives, they are insipid to the ear.

Were the inquiry diligently made, it would be found that the goddess of harmony has exercised more influence, however latent, over the dispensations of Themis, than her most diligent historiographers, or even her most passionate panegyrists, seem to have been aware of. Every one knows, how, by the ministry of Orpheus, it was she who first collected the sons of men beneath the shadow of the sceptre: yet, in the midst of continual experience, men seem yet to learn, with what successful diligence she has laboured to guide it in its course. Every one knows, that measured numbers were the language of the infancy of law: none seem to have observed, with what imperious sway they have governed her maturer age. In English jurisprudence in particular, the connexion betwixt law and music, however less perceived than in Spartan legislation, is not perhaps less real nor less close. The music of the Office, though not of the same kind, is not less musical in its kind, than the music of the Theatre; that which hardens the heart, than that which softens it:— sostenutos as long, cadences as sonorous; and those governed by rules, though not yet promulgated, not less determinate. Search indictments, pleadings, proceedings in chancery, conveyances: whatever trespasses you may find against truth and common sense, you will find none against the laws of harmony. The English Liturgy, justly as this quality has been extolled in that sacred office, possesses not a greater measure of it, than is commonly to be found in an English Act of Parliament. Dignity, simplicity, brevity, precision, intelligibility, possibility of being retained or so much as apprehended, every thing yields to Harmony. Volumes might be filled, shelves loaded, with the sacrifices that are made to this insatiate power. Expletives, her ministers in Grecian poetry, are not less busy, though in different shape and bulk, in English legislation; in the former, they are monosyllables;a in the latter, they are whole lines.b To return to the principle of sympathy and antipathy: a term preferred at first, on account of its impartiality, to the principle of caprice. The choice of an appellative, in the above respects too narrow, was owing to my not having, at that time, extended my views over the civil branch of law, any otherwise than as I had found it inseparably involved in the penal. But when we come to the former branch, we shall see the phantastic principle making at least as great a figure there, as the principle of sympathy and antipathy in the latter.

In the days of Lord Coke, the light of utility can scarcely be said to have as yet shone upon the face of Common Law. If a faint ray of it, under the name of the argumentum ab inconvenienti, is to be found in a list of about twenty topics exhibited by that great lawyer as the co-ordinate leaders of that all-perfect system, the admission, so circumstanced, is as sure a proof of neglect, as, to the statues of Brutus and Cassius, exclusion was a cause of notice. It stands, neither in the front, nor in the rear, nor in any post of honour; but huddled in towards the middle, without the smallest mark of preference. [Coke Littleton. 11. a.] Nor is this Latin inconvenience by any means the same thing with the English one. It stands distinguished from mischief: and because by the vulgar it is taken for something less bad, it is given by the learned as something worse. The law prefers a mischief to an inconvenience, says an admired maxim, and the more admired, because as nothing is expressed by it, the more is supposed to be understood.

Not that there is any avowed, much less a constant opposition, between the prescriptions of utility and the operations of the common law: such constancy we have seen to be too much even for ascetic fervor. [Supra, par. x.] From time to time, instinct would unavoidably betray them into the paths of reason: instinct which, however it may be cramped, can never be killed by education. The cobwebs spun out of the materials brought together by “the competition of opposite analogies,” can never have ceased being warped by the silent attraction of the rational principle: though it should have been, as the needle is to the magnet, without the privity of conscience.

a Additional Note by the Author, July 1822 — Add, and that the bad system, of Mahometan and other native law, was to be put down at all events, to make way for the inapplicable and still more mischievous system, of English Judge-made law, and, by the hand of his accomplice Hastings, was to be put into the pocket of Impey — importer of this instrument of subversion —£8000 a-year contrary to law, in addition to the £8000 a-year lavished upon him, with the customary profusion, by the hand of law. — See the Account of this transaction in Mill’s British India.To this Governor a statue is erecting by a vote of East India Directors and Proprietors: on it should be inscribed —Let it but put money into our pockets, no tyranny too flagitious to be worshipped by us.To this statue of the Arch-malefactor should be added, for a companion, that of the long-robed accomplice: the one lodging the bribe in the hand of the other. The hundred millions of plundered and oppressed Hindoos and Mahometans pay for the one: a Westminster-Hall subscription might pay for the other.What they have done for Ireland with her seven millions of souls, the authorised deniers and perverters of justice have done for Hindostan with her hundred millions. In this there is nothing wonderful. The wonder is — that, under such institutions, men, though in ever such small number, should be found, whom the view of the injustices which, by English Judge-made law, they are compelled to commit, and the miseries they are thus compelled to produce, deprive of health and rest. Witness the Letter of an English Hindostan Judge, Sept. 1, 1819, which lies before me. I will not make so cruel a requital for his honesty, as to put his name in print: indeed the House of Commons’ Documents already published leave little need of it.

a Μεν, τοι, γε, νυν, &c.

b And be it further enacted by the authority aforesaid, that — Provided always, and it is hereby further enacted and declared that —&c. &c.

XII.

It is manifest, that this is rather a principle in name than in reality: it is not a positive principle of itself, so much as a term employed to signify the negation of all principle. What one expects to find in a principle is something that points out some external consideration, as a means of warranting and guiding the internal sentiments of approbation and disapprobation: this expectation is but ill fulfilled by a proposition, which does neither more nor less than hold up each of those sentiments as a ground and standard for itself.

XIII.

In looking over the catalogue of human actions (says a partizan of this principle) in order to determine which of them are to be marked with the seal of disapprobation, you need but to take counsel of your own feelings: whatever you find in yourself a propensity to condemn, is wrong for that very reason. For the same reason it is also meet for punishment: in what proportion it is adverse to utility, or whether it be adverse to utility at all, is a matter that makes no difference. In that same proportion also is it meet for punishment: if you hate much, punish much: if you hate little, punish little: punish as you hate. If you hate not at all, punish not at all: the fine feelings of the soul are not to be overborne and tyrannized by the harsh and rugged dictates of political utility.

XIV.

The various systems that have been formed concerning the standard of right and wrong, may all be reduced to the principle of sympathy and antipathy. One account may serve for all of them. They consist all of them in so many contrivances for avoiding the obligation of appealing to any external standard, and for prevailing upon the reader to accept of the author’s sentiment or opinion as a reason, and that a sufficient one, for itself. The phrases different, but the principle the same.*

* It is curious enough to observe the variety of inventions men have hit upon, and the variety of phrases they have brought forward, in order to conceal from the world, and, if possible, from themselves, this very general and therefore very pardonable self-sufficiency.

1. One man [Lord Shaftesbury, Hutchinson, Hume, &c.] says, he has a thing made on purpose to tell him what is right and what is wrong; and that it is called a moral sense: and then he goes to work at his ease, and says, such a thing is right, and such a thing is wrong — why? “because my moral sense tells me it is.”

2. Another man [Dr. Beattie] comes and alters the phrase: leaving out moral, and putting in common, in the room of it. He then tells you, that his common sense teaches him what is right and wrong, as surely as the other’s moral sense did: meaning by common sense, a sense of some kind or other, which, he says, is possessed by all mankind: the sense of those, whose sense is not the same as the author’s, being struck out of the account as not worth taking. This contrivance does better than the other; for a moral sense, being a new thing, a man may feel about him a good while without being able to find it out: but common sense is as old as the creation; and there is no man but would be ashamed to be thought not to have as much of it as his neighbours. It has another great advantage: by appearing to share power, it lessens envy: for when a man gets up upon this ground, in order to anathematize those who differ from him, it is not by a sic volo sic jubeo, but by a velitis jubeatis.

3. Another man [Dr. Price] comes, and says, that as to a moral sense indeed, he cannot find that he has any such thing: that however he has an understanding, which will do quite as well. This understanding, he says, is the standard of right and wrong: it tells him so and so. All good and wise men understand as he does: if other men’s understandings differ in any point from his, so much the worse for them: it is a sure sign they are either defective or corrupt.

4. Another man says, that here is an eternal and immutable Rule of Right: that that rule of right dictates so and so: and then he begins giving you his sentiments upon any thing that comes uppermost: and these sentiments (you are to take for granted) are so many branches of the eternal rule of right.

5. Another man [Dr. Clark], or perhaps the same man (it’s no matter) says, that there are certain practices conformable, and others repugnant, to the Fitness of Things; and then he tells you at his leisure, what practices are conformable and what repugnant: just as he happens to like a practice or dislike it.

6. A great multitude of people are continually talking of the Law of Nature; and then they go on giving you their sentiments about what is right and what is wrong: and these sentiments, you are to understand, are so many chapters, and sections of the Law of Nature.

7. Instead of the phrase, Law of Nature, you have sometimes Law of Reason, Right Reason, Natural Justice, Natural Equity, Good Order. Any of them will do equally well. This latter is most used in politics. The three last are much more tolerable than the others, because they do not very explicitly claim to be any thing more than phrases: they insist but feebly upon the being looked upon as so many positive standards of themselves, and seem content to be taken, upon occasion, for phrases expressive of the conformity of the thing in question to the proper standard, whatever that may be. On most occasions, however, it will be better to say utility: utility is clearer, as referring more explicitly to pain and pleasure.

8. We have one philosopher [Woolaston], who says, there is no harm in any thing in the world but in telling a lie: and that if, for example, you were to murder your own father, this would only be a particular way of saying, he was not your father. Of course, when this philosopher sees any thing that he does not like, he says, it is a particular way of telling a lie. It is saying, that the act ought to be done, or may be done, when, in truth, it ought not to be done.

9. The fairest and openest of them all is that sort of man who speaks out, and says, I am of the number of the Elect: now God himself takes care to inform the Elect what is right: and that with so good effect, that let them strive ever so, they cannot help not only knowing it but practising it. If therefore a man wants to know what is right and what is wrong, he has nothing to do but come to me.

It is upon the principle of antipathy that such and such acts are often reprobated on the score of their being unnatural: the practice of exposing children, established among the Greeks and Romans, was an unnatural practice. Unnatural, when it means any thing, means unfrequent: and there it means something; although nothing to the present purpose. But here it means no such thing: for the frequency of such acts is perhaps the great complaint. It therefore means nothing; nothing, I mean, which there is in the act itself. All it can serve to express is, the disposition of the person who is talking of it: the disposition he is in to be angry at the thoughts of it. Does it merit his anger? Very likely it may: but whether it does or no is a question, which, to be answered rightly, can only be answered upon the principle of utility.

Unnatural, is as good a word as moral sense, or common sense; and would be as good a foundation for a system. Such an act is unnatural; that is, repugnant to nature: for I do not like to practise it; and, consequently, do not practise it. It is therefore repugnant to what ought to be the nature of every body else.

The mischief common to all these ways of thinking and arguing (which, in truth, as we have seen, are but one and the same method, couched in different forms of words) is their serving as a cloke, and pretence, and aliment, to despotism: if not a despotism in practice, a despotism however in disposition: which is but too apt, when pretence and power offer, to show itself in practice. The consequence is, that with intentions very commonly of the purest kind, a man becomes a torment either to himself or his fellow-creatures. If he be of the melancholy cast [Dr. Price,] he sits in silent grief, bewailing their blindness and depravity: if of the irascible [Dr. Beattie,] he declaims with fury and virulence against all who differ from him; blowing up the coals of fanaticism, and branding with the charge of corruption and insincerity, every man who does not think, or profess to think as he does.

If such a man happens to possess the advantages of style, his book may do a considerable deal of mischief before the nothingness of it is understood.

These principles, if such they can be called, it is more frequent to see applied to morals than to politics: but their influence extends itself to both. In politics, as well as morals, a man will be at least equally glad of a pretence for deciding any question in the manner that best pleases him, without the trouble of inquiry. If a man is an infallible judge of what is right and wrong in the actions of private individuals, why not in the measures to be observed by public men in the direction of those actions? Accordingly (not to mention other chimeras) I have more than once known the pretended law of nature set up in legislative debates, in opposition to arguments derived from the principle of utility.

“But is it never, then, from any other considerations than those of utility, that we derive our notions of right and wrong?” I do not know: I do not care. Whether a moral sentiment can be originally conceived from any other source than a view of utility, is one question: whether upon examination and reflection it can, in point of fact, be actually persisted in and justified on any other ground, by a person reflecting within himself, is another: whether in point of right it can properly be justified on any other ground, by a person addressing himself to the community, is a third. The two first are questions of speculation: it matters not, comparatively speaking, how they are decided. The last is a question of practice: the decision of it is of as much importance as that of any can be.

“I feel in myself,” say you, “a disposition to approve of such or such an action in a moral view: but this is not owing to any notions I have of its being a useful one to the community. I do not pretend to know whether it be an useful one or not: it may be, for aught I know, a mischievous one.” ‘But is it then,’ say I, ‘a mischievous one? Examine; and if you can make yourself sensible that it is so, then, if duty means any thing, that is, moral duty, it is your duty at least to abstain from it: and more than that, if it is what lies in your power, and can be done without too great a sacrifice, to endeavour to prevent it. It is not your cherishing the notion of it in your bosom, and giving it the name of virtue, that will excuse you.’

“I feel in myself,” say you again, “a disposition to detest such or such an action in a moral view; but this is not owing to any notions I have of its being a mischievous one to the community. I do not pretend to know whether it be a mischievous one or not: it may be not a mischievous one: it may be, for aught I know, an useful one.”—‘May it indeed,’ say I, ‘an useful one? but let me tell you then, that unless duty, and right and wrong, be just what you please to make them, if it really be not a mischievous one, and any body has a mind to do it, it is no duty of your’s, but, on the contrary, it would be very wrong in you, to take upon you to prevent him: detest it within yourself as much as you please; that may be a very good reason (unless it be also a useful one) for your not doing it yourself: but if you go about, by word or deed, to do any thing to hinder him, or make him suffer for it, it is you, and not he, that have done wrong: it is not your setting yourself to blame his conduct, or branding it with the name of vice, that will make him culpable, or you blameless. Therefore, if you can make yourself content that he shall be of one mind, and you of another, about that matter, and so continue, it is well: but if nothing will serve you, but that you and he must needs be of the same mind, I’ll tell you what you have to do: it is for you to get the better of your antipathy, not for him to truckle to it.’

XV.

It is manifest, that the dictates of this principle will frequently coincide with those of utility, though perhaps without intending any such thing. Probably more frequently than not: and hence it is that the business of penal justice is carried on upon that tolerable sort of footing upon which we see it carried on in common at this day. For what more natural or more general ground of hatred to a practice can there be, than the mischievousness of such practice? What all men are exposed to suffer by, all men will be disposed to hate. It is far yet, however, from being a constant ground: for when a man suffers, it is not always that he knows what it is he suffers by. A man may suffer grievously, for instance, by a new tax, without being able to trace up the cause of his sufferings to the injustice of some neighbour, who has eluded the payment of an old one.

XVI.

The principle of sympathy and antipathy is most apt to err on the side of severity. It is for applying punishment in many cases which deserve none: in many cases which deserve some, it is for applying more than they deserve. There is no incident imaginable, be it ever so trivial, and so remote from mischief, from which this principle may not extract a ground of punishment. Any difference in taste: any difference in opinion: upon one subject as well as upon another. No disagreement so trifling which perseverance and altercation will not render serious. Each becomes in the other’s eyes an enemy, and, if laws permit, a criminal.* This is one of the circumstances by which the human race is distinguished (not much indeed to its advantage) from the brute creation.

* King James the First of England had conceived a violent antipathy against Arians: two of whom he burnt.a This gratification he procured himself without much difficulty: the notions of the times were favourable to it. He wrote a furious book against Vorstius, for being what was called an Arminian: for Vorstius was at a distance. He also wrote a furious book, called “A Counterblast to Tobacco,” against the use of that drug, which Sir Walter Raleigh had then lately introduced. Had the notions of the times co-operated with him, he would have burnt the Anabaptist and the smoker of tobacco in the same fire. However, he had the satisfaction of putting Raleigh to death afterwards, though for another crime.

Disputes concerning the comparative excellence of French and Italian music have occasioned very serious bickerings at Paris. One of the parties would not have been sorry (says Mr. D’Alembertb ) to have brought government into the quarrel. Pretences were sought after and urged. Long before that, a dispute of like nature, and of at least equal warmth, had been kindled at London upon the comparative merits of two composers at London; where riots between the approvers and disapprovers of a new play are, at this day, not unfrequent. The ground of quarrel between the Big-endians and the Little-endians in the fable, was not more frivolous than many an one which has laid empires desolate. In Russia, it is said, there was a time when some thousands of persons lost their lives in a quarrel, in which the government had taken part, about the number of fingers to be used in making the sign of the cross. This was in days of yore: the ministers of Catherine II. are better instructedc than to take any other part in such disputes, than that of preventing the parties concerned from doing one another a mischief.

a Hume’s Hist. vol. 6.

b Melanges Essai sur la Liberté de la Musique.

c Instruct. art. 474, 475, 476.

XVII.

It is not, however, by any means unexampled for this principle to err on the side of lenity. A near and perceptible mischief moves antipathy. A remote and imperceptible mischief, though not less real, has no effect. Instances in proof of this will occur in numbers in the course of the work. It would be breaking in upon the order of it to give them here.

See ch. xviii. [Division], par. 42, 44.

XVIII.

It may be wondered, perhaps, that in all this while no mention has been made of the theological principle; meaning that principle which professes to recur for the standard of right and wrong to the will of God. But the case is, this is not in fact a distinct principle. It is never any thing more or less than one or other of the three before-mentioned principles presenting itself under another shape. The will of God here meant cannot be his revealed will, as contained in the sacred writings: for that is a system which nobody ever thinks of recurring to at this time of day, for the details of political administration: and even before it can be applied to the details of private conduct, it is universally allowed, by the most eminent divines of all persuasions, to stand in need of pretty ample interpretations: else to what use are the works of those divines? And for the guidance of these interpretations, it is also allowed, that some other standard must be assumed. The will then which is meant on this occasion, is that which may be called the presumptive will: that is to say, that which is presumed to be his will on account of the conformity of its dictates to those of some other principle. What then may be this other principle? it must be one or other of the three mentioned above: for there cannot, as we have seen, be any more. It is plain, therefore, that, setting revelation out of the question, no light can ever be thrown upon the standard of right and wrong, by any thing that can be said upon the question, what is God’s will. We may be perfectly sure, indeed, that whatever is right is conformable to the will of God: but so far is that from answering the purpose of showing us what is right, that it is necessary to know first whether a thing is right, in order to know from thence whether it be conformable to the will of God.*

* The principle of theology refers every thing to God’s pleasure. But what is God’s pleasure? God does not, he confessedly does not now, either speak or write to us. How then are we to know what is his pleasure? By observing what is our own pleasure, and pronouncing it to be his. Accordingly, what is called the pleasure of God is and must necessarily be (revelation apart) neither more nor less than the good pleasure of the person, whoever he be, who is pronouncing what he believes, or pretends, to be God’s pleasure. How know you it to be God’s pleasure that such or such an act should be abstained from? whence come you even to suppose as much? “Because the engaging in it would, I imagine, be prejudicial upon the whole to the happiness of mankind;” says the partizan of the principle of utility: “Because the commission of it is attended with a gross and sensual, or at least with a trifling and transient satisfacfaction;” says the partizan of the principle of asceticism: “Because I detest the thoughts of it; and I cannot, neither ought I to be called upon to tell why;” says he who proceeds upon the principle of antipathy. In the words of one or other of these must that person necessarily answer (revelation apart) who professes to take for his standard the will of God.

XIX.

There are two things which are very apt to be confounded, but which it imports us carefully to distinguish:— the motive or cause, which, by operating on the mind of an individual, is productive of any act: and the ground or reason which warrants a legislator, or other by-stander, in regarding that act with an eye of approbation. When the act happens, in the particular instance in question, to be productive of effects which we approve of, much more if we happen to observe that the same motive may frequently be productive, in other instances, of the like effects, we are apt to transfer our approbation to the motive itself, and to assume, as the just ground for the approbation we bestow on the act, the circumstance of its originating from that motive. It is in this way that the sentiment of antipathy has often been considered as a just ground of action. Antipathy, for instance, in such or such a case, is the cause of an action which is attended with good effects: but this does not make it a right ground of action in that case, any more than in any other. Still farther. Not only the effects are good, but the agent sees beforehand that they will be so. This may make the action indeed a perfectly right action: but it does not make antipathy a right ground of action. For the same sentiment of antipathy, if implicitly deferred to, may be, and very frequently is, productive of the very worst effects. Antipathy, therefore, can never be a right ground of action. No more, therefore, can resentment, which, as will be seen more particularly hereafter, is but a modification of antipathy. The only right ground of action, that can possibly subsist, is, after all, the consideration of utility, which, if it is a right principle of action, and of approbation, in any one case, is so in every other. Other principles in abundance, that is, other motives, may be the reasons why such and such an act has been done: that is, the reasons or causes of its being done: but it is this alone that can be the reason why it might or ought to have been done. Antipathy or resentment requires always to be regulated, to prevent its doing mischief: to be regulated by what? always by the principle of utility. The principle of utility neither requires nor admits of any other regulator than itself.

Objections to the Principle of Utility Answered.

Trifling scruples and “trifling verbal difficulties may be raised in opposition to the principle of utility, but no real and distinct objection can be opposed to it. Indeed, how can it be combated, if not by reasons drawn from the principle itself? To say that it is dangerous, is to say that to consult utility is contrary to utility.

The difficulty in this question arises from the perversity of language. Virtue has been represented as opposed to utility. Virtue, it has been said, consists in the sacrifice of our interests to our duties. In order to express these ideas clearly; it is necessary to observe, that there are interests of different orders, and that different interests are in certain circumstances incompatible. Virtue is the sacrifice of a smaller to a greater interest — of a momentary to a permanent interest — of a doubtful to a certain interest. Every idea of virtue, which is not derived from this notion, is as obscure as the motive to it is precarious.

Those who, for the sake of peace, seeking to distinguish politics and morals, assign utility as the principle of the first, and justice of the second, only exhibit the confusion of their ideas. The whole difference between politics and morals is this: the one directs the operations of governments, the other directs the proceedings of individuals; their common object is happiness. That which is politically good cannot be morally bad; unless the rules of arithmetic, which are true for great numbers, are false as respects those which are small.

Evil may be done, whilst it is believed that the principle of utility is followed. A feeble and limited mind may deceive itself, by considering only a part of the good and evil. A man under the influence of passion may deceive himself, by setting an extreme value upon one advantage which hides from him the inconveniences attending upon it. What constitutes a wicked man, is the habit of seeking pleasures hurtful to others; and even this supposes the absence of many kinds of pleasures. But we ought not to charge upon this principle the faults which are opposed to it, and which it alone can serve to remove. If a man calculate badly, it is not arithmetic which is in fault, it is himself. If the reproaches which are heaped upon Machiavel are well founded, his errors do not arise from his having made use of the principle of utility; but from his having made false applications of it. The author of Anti-Machiavel has well understood this. He has refuted “The Prince,” by shewing that its maxims are mischievous, and that bad faith is bad policy.

Those who, after reading the Offices of Cicero and the platonic moralists, have a confused notion of utility as opposed to honesty, often quote the saying of Aristides with regard to the project which Themistocles had unfolded to him alone: “The project of Themistocles is very advantageous,” said Aristides to the assembled people, “but it is very unjust.” They think they see here a decided opposition between utility and justice; but they deceive themselves: there is only a comparison of good and evil. Injustice is a term which presents to the mind the collection of all the evils resulting from a situation in which men can no longer trust one another. Aristides should have said, “The project of Themistocles would be useful for a moment, and hurtful for ages: what it would bestow is nothing in comparison with what it would take away.”*

This principle of utility, it is said, is only the renewal of epicurism, and it is known what ravages this doctrine made in manners: it was always the doctrine of the most corrupt men.

Epicurus, it is true, is the only one among the ancients who has the merit of having known the true source of morality; but to suppose that his doctrine leads to the consequences imputed to it, is to suppose that happiness can be the enemy of happiness itself. “Sic prasentibus utaris voluptatibus ut futuris non noceas.” Seneca is here in accordance with Epicurus: and what more can be desired in morals than the cutting off of every pleasure hurtful to one’s self or to others. But is not this the principle of utility?

“But it may be said, every one will be constituting himself judge of this utility: every obligation will cease when he no longer thinks he perceives in it his own interest.

Every one will constitute himself judge of his own utility; this is and this ought to be, otherwise man would not be a reasonable being. He who is not a judge of what is suitable for himself, is less than an infant, is a fool. The obligation which binds men to their engagements, is nothing but a feeling of an interest of a superior class, which outweighs an inferior interest. Men are not always held by the particular utility of a certain engagement; but in the case in which the engagement becomes burthensome to one of the parties, they are still held by the general utility of engagements — by the confidence that each enlightened man wishes to have placed in his word, that he may be considered as trustworthy, and enjoy the advantages attached to probity and esteem. It is not the engagement which constitutes the obligation by itself; for there are some void engagements; there are some unlawful. Why? Because they are considered as hurtful. It is the utility of the contract which gives it force.

The most exalted acts of virtue may be easily reduced to a calculation of good and evil. This is neither to degrade nor to weaken them, but to represent them as the effects of reason, and to explain them in a simple and intelligible manner.

Let us observe the circle in which we are compelled to move when the principle of utility is not recognized. I ought to keep my promise. Why? Because my conscience prescribes it. How do you know that your conscience prescribes it? Because I have an internal feeling of it. Why ought you to obey your conscience? Because God is the author of my nature; and to obey my conscience, is to obey God. Why ought you to obey God? Because it is my first duty. How do you know this? Because my conscience tells me so —&c. Such is the eternal round from which there is no exit: such is the source of obstinate and invincible errors; for if there is no where any judge but feeling, there is no method of distinguishing between the injunctions of an enlightened and a blind conscience. All persecutors have had the same title, and all fanatics possess the same right.

If you would reject the principle of utility, because it may be ill applied, what would you substitute in its stead? What rule have you found which cannot be abused? — what infallible guide do you possess?

Would you substitute some despotic principle, which directs men to act in a certain manner, without knowing why, from pure obsequiousness?

Would you substitute some anarchical and capricious principle, founded solely upon internal and peculiar feelings?

In these cases, what are the motives by which you would determine men to follow you? Would they be independent of their interest? If they do not agree with you, how will you reason with them? — how will you attempt to conciliate them? Where would you cite all the sects, all the opinions, all the contradictions, which overspread the earth, if not to the tribunal of their common interest.

The most obstinate adversaries of the principle of utility are those who fix themselves upon what they call the religious principle. They profess to take the will of God for the sole rule of good and evil. It is the only rule, they say, which possesses all the requisite characters, being infallible, universal, supreme, &c.

I reply, that the religious principle is not a distinct principle; that it is one or other of those of which we have already spoken, presented under another aspect. What is called the will of God, can only be presumed to be his will, except where God has explained himself to us by immediate and peculiar revelations. But how shall a man presume upon the will of God? According to his own will? Now his own will is always directed by one of the three before-mentioned principles. How do you know that God has willed a certain thing? “Because it would be prejudicial to the happiness of men,” replies the partisan of utility. “Because it includes a gross and sensual pleasure that God disapproves,” replies the ascetic. “Because it wounds my conscience, because it is contrary to my natural feelings, and ought to be detested without examination,” is the language of antipathy.

But revelation, it may be said, is the direct expression of the will of God. In it there is nothing arbitrary. It is a guide which ought to govern all human reasoning.

I shall not indirectly reply, that revelation is not universal; that among Christian nations there are many individuals who do not admit it, and that some common principle of reasoning is required for all men.

But I say that revelation is not a system of politics or of morals; that its precepts require to be explained, modified, limited the one by the other; that taken in a literal sense, they would overturn the world, annihilate self-defence, industry, commerce, reciprocal attachments. Ecclesiastical history is one incontestible proof of the frightful evils which result from religious maxims ill understood.

How great the differences between Protestant and Catholic theologians! between the moderns and the ancients! The evangelical morality of Paley is not the evangelical morality of St. Nicholas; that of the Jansenists is not the same as that of the Jesuits. The interpreters of the sacred writings divide them selves into three classes: one class is guided by criticism; the principle of utility; another follows ascetism; the other follows the confused impressions of sympathy and antipathy. The first, far from excluding pleasures, offer them as a proof of the goodness of God. The ascetics are the mortal enemies of pleasures: if they allow them, it is never for their own sake, but as a means to a certain necessary end. The last approve or condemn them according to their fancy, without being determined by the consideration of their consequences. Revelation is not therefore a separate principle: this title can only be given to what does not require proof, and which may be employed to prove every thing else.

The following paragraphs are inserted here from Dumont’s “Traités de Legislation,” in order to complete the exhibition of Bentham’s principles, as published in his lifetime. —[Ed.]

* This anecdote is not worth quoting, except for the purpose of explaining the meaning of the words, since its falsehood is demonstrated. (See Mitford’s History of Greece.) Plutarch, who desired to honour the Athenians, has been greatly embarrassed in reconciling this noble sentiment of justice with the greater part of their history.

Chapter III.

Of the Four* Sanctions or Sources of Pain and Pleasure.

I.

It has been shown that the happiness of the individuals, of whom a community is composed, that is, their pleasures and their security, is the end and the sole end which the legislator ought to have in view: the sole standard, in conformity to which each individual ought, as far as depends upon the legislator, to be made to fashion his behaviour. But whether it be this or any thing else that is to be done, there is nothing by which a man can ultimately be made to do it, but either pain or pleasure. Having taken a general view of these two grand objects (viz. pleasure, and what comes to the same thing, immunity from pain) in the character of final causes; it will be necessary to take a view of pleasure and pain itself, in the character of efficient causes or means.

* The following is an extract from a letter of Bentham’s to Dumont, dated Oct. 28, 1821:—

Sanctions. Since the Traites, others have been discovered. There are now, I. Human: six, viz. 1. Physical; 2. Retributive; 3. Sympathetic; 4. Antipathetic; 5. Popular, or Moral; 6. Political, including Legal and Administrative.

“II. Superhuman vice Religious: all exemplifiable in the case of drunkenness; viz. the punitory class.

Note — Sanctions in genere duæ, punitoriæ et remuneratoriæ; in serie, septem ut super; seven multiplied by two, equal fourteen.

“The Judicatory of the popular or moral sanction has two Sections: that of the few, and that of the many: Aristocratical and Democratical: their laws, their decisions, are to a vast extent opposite.”

II.

There are four distinguishable sources from which pleasure and pain are in use to flow: considered separately, they may be termed the physical, the political, the moral, and the religious: and inasmuch as the pleasures and pains belonging to each of them are capable of giving a binding force to any law or rule of conduct, they may all of them be termed sanctions.

Sanctio, in Latin, was used to signify the act of binding, and, by a common grammatical transition, any thing which serves to bind a man: to wit, to the observance of such or such a mode of conduct. According to a Latin grammarian,a the import of the word is derived by rather a far-fetched process (such as those commonly are, and in a great measure indeed must be, by which intellectual ideas are derived from sensible ones) from the word sanguis, blood: because among the Romans, with a view to inculcate into the people a persuasion that such or such a mode of conduct would be rendered obligatory upon a man by the force of what I call the religious sanction (that is, that he would be made to suffer by the extraordinary interposition of some superior being, if he failed to observe the mode of conduct in question) certain ceremonies were contrived by the priests: in the course of which ceremonies the blood of victims was made use of.

A Sanction then is a source of obligatory powers or motives: that is, of pains and pleasures; which, according as they are connected with such or such modes of conduct, operate, and are indeed the only things which can operate, as motives. See Chap. x. [Motives.]

a Servius. See Ainsworth’s Dict. ad verbum Sanctio.

III.

If it be in the present life, and from the ordinary course of nature, not purposely modified by the interposition of the will of any human being, nor by any extraordinary interposition of any superior invisible being, that the pleasure or the pain takes place or is expected, it may be said to issue from, or to belong to, the physical sanction.

IV.

If at the hands of a particular person or set of persons in the community, who under names correspondent to that of judge, are chosen for the particular purpose of dispensing it, according to the will of the sovereign or supreme ruling power in the state, it may be said to issue from the political sanction.

V.

If at the hands of such chance persons in the community, as the party in question may happen in the course of his life to have concerns with, according to each man’s spontaneous disposition, and not according to any settled or concerted rule, it may be said to issue from the moral or popular sanction.

Better termed popular, as more directly indicative of its constituent cause; as likewise of its relation to the more common phrase public opinion, in French opinion publique, the name there given to that tutelary power, of which of late so much is said, and by which so much is done. The latter appellation is however unhappy and inexpressive; since if opinion is material, it is only in virtue of the influence it exercises over action, through the medium of the affections and the will.

VI.

If from the immediate hand of a superior invisible being, either in the present life, or in a future, it may be said to issue from the religious sanction.

VII.

Pleasures or pains which may be expected to issue from the physical, political, or moral sanctions, must all of them be expected to be experienced, if ever, in the present life: those which may be expected to issue from the religious sanction, may be expected to be experienced either in the present life or in a future.

VIII.

Those which can be experienced in the present life, can of course be no others than such as human nature in the course of the present life is susceptible of: and from each of these sources may flow all the pleasures or pains of which, in the course of the present life, human nature is susceptible. With regard to these, then (with which alone we have in this place any concern), those of them which belong to any one of those sanctions, differ not ultimately in kind from those which belong to any one of the other three: the only difference there is among them lies in the circumstances that accompany their production. A suffering which befals a man in the natural and spontaneous course of things, shall be styled, for instance, a calamity; in which case, if it be supposed to befal him through any imprudence of his, it may be styled a punishment issuing from the physical sanction. Now this same suffering, if inflicted by the law, will be what is commonly called a punishment; if incurred for want of any friendly assistance, which the misconduct, or supposed misconduct, of the sufferer has occasioned to be withholden, a punishment issuing from the moral sanction; if through the immediate interposition of a particular providence, a punishment issuing from the religious sanction.

IX.

A man’s goods, or his person, are consumed by fire. If this happened to him by what is called an accident, it was a calamity: if by reason of his own imprudence (for instance, from his neglecting to put his candle out), it may be styled a punishment of the physical sanction: if it happened to him by the sentence of the political magistrate, a punishment belonging to the political sanction — that is, what is commonly called a punishment: if for want of any assistance which his neighbour withheld from him out of some dislike to his moral character, a punishment of the moral sanction: if by an immediate act of God’s displeasure, manifested on account of some sin committed by him, or through any distraction of mind, occasioned by the dread of such displeasure, a punishment of the religious sanction.*

* A suffering conceived to befal a man by the immediate act of God, as above, is often, for shortness sake, called a judgment: instead of saying, a suffering inflicted on him in consequence of a special judgment formed, and resolution thereupon taken, by the Deity.

X.

As to such of the pleasures and pains belonging to the religious sanction, as regard a future life, of what kind these may be, we cannot know. These lie not open to our observation. During the present life they are matter only of expectation: and, whether that expectation be derived from natural or revealed religion, the particular kind of pleasure or pain, if it be different from all those which lie open to our observation, is what we can have no idea of. The best ideas we can obtain of such pains and pleasures are altogether unliquidated in point of quality. In what other respects our ideas of them may be liquidated, will be considered in another place.

See ch. xv. [Cases unmeet], par. 2, Note.

XI.

Of these four sanctions, the physical is altogether, we may observe, the ground-work of the political and the moral: so is it also of the religious, in as far as the latter bears relation to the present life. It is included in each of those other three. This may operate in any case (that is, any of the pains or pleasures belonging to it may operate) independently of them: none of them can operate but by means of this. In a word, the powers of nature may operate of themselves; but neither the magistrate, nor men at large, can operate, nor is God in the case in question supposed to operate, but through the powers of nature.

XII.

For these four objects, which in their nature have so much in common, it seemed of use to find a common name. It seemed of use, in the first place, for the convenience of giving a name to certain pleasures and pains, for which a name equally characteristic could hardly otherwise have been found: in the second place, for the sake of holding up the efficacy of certain moral forces, the influence of which is apt not to be sufficiently attended to. Does the political sanction exert an influence over the conduct of mankind? The moral, the religious sanctions, do so too. In every inch of his career are the operations of the political magistrate liable to be aided or impeded by these two foreign powers: who, one or other of them, or both, are sure to be either his rivals or his allies. Does it happen to him to leave them out in his calculations? he will be sure almost to find himself mistaken in the result. Of all this we shall find abundant proofs in the sequel of this work. It behoves him, therefore, to have them continually before his eyes; and that under such a name as exhibits the relation they bear to his own purposes and designs.

Chapter IV.

Value of a Lot of Pleasure or Pain, How to Be Measured.

I.

Pleasures then, and the avoidance of pains are the ends which the legislator has in view: it behoves him therefore to understand their value. Pleasures and pains are the instruments he has to work with: it behoves him therefore to understand their force, which is again, in another point of view, their value.

II.

To a person considered by himself, the value of a pleasure or pain considered by itself, will be greater or less, according to the four following circumstances:*

  1. Its intensity.
  2. Its duration.
  3. Its certainty or uncertainty.
  4. Its propinquity or remoteness.

* These circumstances have since been denominated elements or dimensions of value in a pleasure or a pain.

Not long after the publication of the first edition, the following memoriter verses were framed, in the view of lodging more effectually, in the memory, these points, on which the whole fabric of morals and legislation may be seen to rest.

  • Intense, long, certain, speedy, fruitful, pure
  • Such marks in pleasures and in pains endure.
  • Such pleasures seek, if private be thy end:
  • If it be publie, wide let them extend.
  • Such pains avoid, whichever be thy view:
  • If pains must come, let them extend to few.
III.

These are the circumstances which are to be considered in estimating a pleasure or a pain considered each of them by itself. But when the value of any pleasure or pain is considered for the purpose of estimating the tendency of any act by which it is produced, there are two other circumstances to be taken into the account; these are,

  1. Its fecundity, or the chance it has of being followed by sensations of the same kind: that is, pleasures, if it be a pleasure: pains, if it be a pain.
  2. Its purity, or the chance it has of not being followed by sensations of the opposite kind: that is, pains, if it be a pleasure: pleasures, if it be a pain.

These two last, however, are in strictness scarcely to be deemed properties of the pleasure or the pain itself; they are not, therefore, in strictness to be taken into the account of the value of that pleasure or that pain. They are in strictness to be deemed properties only of the act, or other event, by which such pleasure or pain has been produced; and accordingly are only to be taken into the account of the tendency of such act or such event.

IV.

To a number of persons, with reference to each of whom the value of a pleasure or a pain is considered, it will be greater or less, according to seven circumstances: to wit, the six preceding ones; viz.

  1. Its intensity.
  2. Its duration.
  3. Its certainty or uncertainty.
  4. Its propinquity or remoteness.
  5. Its fecundity.
  6. Its purity.

And one other; to wit:

  1. Its extent; that is, the number of persons to whom it extends; or (in other words) who are affected by it.
V.

To take an exact account, then, of the general tendency of any act, by which the interests of a community are affected, proceed as follows. Begin with any one person of those whose interests seem most immediately to be affected by it: and take an account.

1. Of the value of each distinguishable pleasure which appears to be produced by it in the first instance.

2. Of the value of each pain which appears to be produced by it in the first instance.

3. Of the value of each pleasure which appears to be produced by it after the first. This constitutes the fecundity of the first pleasure and the impurity of the first pain.

4. Of the value of each pain which appears to be produced by it after the first. This constitutes the fecundity of the first pain, and the impurity of the first pleasure.

5. Sum up all the values of all the pleasures on the one side, and those of all the pains on the other. The balance, if it be on the side of pleasure, will give the good tendency of the act upon the whole, with respect to the interests of that individual person; if on the side of pain, the bad tendency of it upon the whole.

6. Take an account of the number of persons whose interests appear to be concerned; and repeat the above process with respect to each. Sum up the numbers expressive of the degrees of good tendency, which the act has, with respect to each individual, in regard to whom the tendency of it is good upon the whole: do this again with respect to each individual, in regard to whom the tendency of it is good upon the whole: do this again with respect to each individual, in regard to whom the tendency of it is bad upon the whole. Take the balance; which, if on the side of pleasure, will give the general good tendency of the act, with respect to the total number or community of individuals concerned; if on the side of pain, the general evil tendency, with respect to the same community.

VI.

It is not to be expected that this process should be strictly pursued previously to every moral judgment, or to every legislative or judicial operation. It may, however, be always kept in view: and as near as the process actually pursued on these occasions approaches to it, so near will such process approach to the character of an exact one.

VII.

The same process is alike applicable to pleasure and pain, in whatever shape they appear; and by whatever denomination they are distinguished: to pleasure, whether it be called good (which is properly the cause or instrument of pleasure), or profit (which is distant pleasure, or the cause or instrument of distant pleasure), or convenience, or advantage, benefit, emolument, happiness, and so forth: to pain, whether it be called evil (which corresponds to good), or mischief, or inconvenience, or disadvantage, or loss, or unhappiness, and so forth.

VIII.

Nor is this a novel and unwarranted, any more than it is a useless theory. In all this there is nothing but what the practice of mankind, wheresoever they have a clear view of their own interest, is perfectly conformable to. An article of property, an estate in land, for instance, is valuable: on what account? On account of the pleasures of all kinds which it enables a man to produce, and, what comes to the same thing, the pains of all kinds which it enables him to avert. But the value of such an article of property is universally understood to rise or fall according to the length or shortness of the time which a man has in it the certainty or uncertainty of its coming into possession: and the nearness or remoteness of the time at which, if at all, it is to come into possession. As to the intensity of the pleasures which a man may derive from it, this is never thought of, because it depends upon the use which each particular person may come to make of it; which cannot be estimated till the particular pleasures he may come to derive from it, or the particular pains he may come to exclude by means of it, are brought to view. For the same reason, neither does he think of the fecundity or purity of those pleasures.

Thus much for pleasure and pain, happiness and unhappiness, in general. We come now to consider the several particular kinds of pain and pleasure.

Chapter V.

Pleasures and Pains, Their Kinds.

I.

Having represented what belongs to all sorts of pleasures and pains alike, we come now to exhibit, each by itself, the several sorts of pains and pleasures. Pains and pleasures may be called by one general word, interesting perceptions. Interesting perceptions are either simple or complex. The simple ones are those which cannot any one of them be resolved into more: complex are those which are resolvable into divers simple ones. A complex interesting perception may accordingly be composed either, 1. Of pleasures alone: 2. Of pains alone: or, 3. Of a pleasure or pleasures, and a pain or pains together. What determines a lot of pleasure, for example, to be regarded as one complex pleasure, rather than as divers simple ones, is the nature of the exciting cause. Whatever pleasures are excited all at once by the action of the same cause, are apt to be looked upon as constituting all together but one pleasure.

II.

The several simple pleasures of which human nature is susceptible, seem to be as follows: 1. The pleasures of sense. 2. The pleasures of wealth. 3. The pleasures of skill. 4. The pleasures of amity. 5. The pleasures of a good name. 6. The pleasures of power. 7. The pleasures of piety. 8. The pleasures of benevolence. 9. The pleasures of malevolence. 10. The pleasures of memory. 11. The pleasures of imagination. 12. The pleasures of expectation. 13. The pleasures dependent on association. 14. The pleasures of relief.

III.

The several simple pains seem to be as follows: 1. The pains of privation. 2. The pains of the senses. 3. The pains of awkwardness. 4. The pains of enmity. 5. The pains of an ill name. 6. The pains of piety. 7. The pains of benevolence. 8. The pains of malevolence. 9. The pains of the memory. 10. The pains of the imagination. 11. The pains of expectation. 12. The pains dependent on association.*

* The catalogue here given, is what seemed to be a complete list of the several simple pleasures and pains of which human nature is susceptible: insomuch, that if, upon any occasion whatsoever, a man feels pleasure or pain, it is either referable at once to some one or other of these kinds, or resolvable into such as are. It might perhaps have been a satisfaction to the reader, to have seen an analytical view of the subject, taken upon an exhaustive plan, for the purpose of demonstrating the catalogue to be what it purports to be, a complete one. The catalogue is in fact the result of such an analysis; which, however, I thought it better to discard at present, as being of too metaphysical a cast, and not strictly within the limits of this design. See ch. xv. [Cases unmeet] par. 2. Note.

IV.

1. The pleasures of sense seem to be as follows: 1. The pleasures of the taste or palate; including whatever pleasures are experienced in satisfying the appetites of hunger and thirst. 2. The pleasure of intoxication. 3. The pleasures of the organ of smelling. 4. The pleasures of the touch. 5. The simple pleasures of the ear; independent of association. 6. The simple pleasures of the eye; independent of association. 7. The pleasure of the sexual sense. 8. The pleasure of health: or, the internal pleasurable feeling or flow of spirits (as it is called) which accompanies a state of full health and vigour; especially at times of moderate bodily exertion. 9. The pleasures of novelty: or, the pleasures derived from the gratification of the appetite of curiosity, by the application of new objects to any of the senses.*

* There are also pleasures of novelty, excited by the appearance of new ideas; these are pleasures of the imagination. See infra, xiii.

V.

2. By the pleasures of wealth may be meant those pleasures which a man is apt to derive from the consciousness of possessing any article or articles which stand in the list of instruments of enjoyment or security, and more particularly at the time of his first acquiring them; at which time the pleasure may be styled a pleasure of gain or a pleasure of acquisition: at other times a pleasure of possession.

3. The pleasures of skill, as exercised upon particular objects, are those which accompany the application of such particular instruments of enjoyment to their uses, as cannot be so applied without a greater or less share of difficulty or exertion.

For instance, the pleasure of being able to gratify the sense of hearing, by singing, or performing upon any musical instrument. The pleasure thus obtained, is a thing superadded to, and perfectly distinguishable from, that which a man enjoys from hearing another person perform in the same nanner.

VI.

4. The pleasures of amity, or self-recommendation, are the pleasures that may accompany the persuasion of a man’s being in the acquisition or the possession of the good-will of such or such assignable person or persons in particular: or, as the phrase is, of being upon good terms with him or them and as a fruit of it, of his being in a way to have the benefit of their spontaneous and gratuitous services.

VII.

5. The pleasures of a good name are the pleasures that accompany the persuasion of a man’s being in the acquisition or the possession of the good-will of the world about him; that is, of such members of society as he is likely to have concerns with; and as a means of it, either their love or their esteem, or both: and as a fruit of it, of his being in the way to have the benefit of their spontaneous and gratuitous services. These may likewise be called the pleasures of good repute, the pleasures of honour, or the pleasures of the moral sanction.

See ch. iii. [Sanctions.]

VIII.

6. The pleasures of power are the pleasures that accompany the persuasion of a man’s being in a condition to dispose people, by means of their hopes and fears, to give him the benefit of their services: that is, by the hope of some service, or by the fear of some disservice, that he may be in the way to render them.

IX.

7. The pleasures of piety are the pleasures that accompany the belief of a man’s being in the acquisition or in possession of the good-will or favour of the Supreme Being: and as a fruit of it, of his being in a way of enjoying pleasures to be received by God’s special appointment, either in this life, or in a life to come. These may also be called the pleasures of religion, the pleasures of a religious disposition, or the pleasures of the religious sanction.

See ch. iii. [Sanctions.]

X.

8. The pleasures of benevolence are the pleasures resulting from the view of any pleasures supposed to be possessed by the beings who may be the objects of benevolence; to wit, the sensitive beings we are acquainted with; under which are commonly included, 1. The Supreme Being. 2. Human beings. 3. Other animals. These may also be called the pleasures of good-will, the pleasures of sympathy, or the pleasures of the benevolent or social affections.

XI.

9. The pleasures of malevolence are the pleasures resulting from the view of any pain supposed to be suffered by the beings who may become the objects of malevolence; to wit, 1. Human beings. 2. Other animals. These may also be styled the pleasures of ill-will, the pleasures of the irascible appetite, the pleasures of antipahy, or the pleasures of the malevolent or dissocial affections.

XII.

10. The pleasures of the memory are the pleasures which, after having enjoyed such and such pleasures, or even in some cases after having suffered such and such pains, a man will now and then experience, at recollecting them exactly in the order and in the circumstances in which they were actually enjoyed or suffered. These derivative pleasures may of course be distinguished into as many species as there are of original perceptions, from whence they may be copied. They may also be styled pleasures of simple recollection.

XIII.

11. The pleasures of the imagination are the pleasures which may be derived from the contemplation of any such pleasures as may happen to be suggested by the memory, but in a different order, and accompanied by different groups of circumstances. These may accordingly be referred to any one of the three cardinal points of time, present, past, or future. It is evident they may admit of as many distinctions as those of the former class.

XIV.

12. The pleasures of expectation are the pleasures that result from the contemplation of any sort of pleasure, referred to time future, and accompanied with the sentiment of belief. These also may admit of the same distinctions.*

* In contradistinction to these, all other pleasures may be termed pleasures of enjoyment.

XV.

13. The pleasures of association are the pleasures which certain objects or incidents may happen to afford, not of themselves, but merely in virtue of some association they have contracted in the mind with certain objects or incidents which are in themselves pleasurable. Such is the case, for instance, with the pleasure of skill, when afforded by such a set of incidents as compose a game of chess. This derives its pleasurable quality from its association partly with the pleasures of skill, as exercised in the production of incidents pleasurable of themselves: partly from its association with the pleasures of power. Such is the case also with the pleasure of good luck, when afforded by such incidents as compose the game of hazard, or any other game of chance, when played at for nothing. This derives its pleasurable quality from its association with one of the pleasures of wealth; to wit, with the pleasure of acquiring it.

XVI.

14. Farther on we shall see pains grounded upon pleasures; in like manner may we now see pleasures grounded upon pains. To the catalogue of pleasures may accordingly be added the pleasures of relief: or, the pleasures which a man experiences when, after he has been enduring a pain of any kind for a certain time, it comes to cease, or to abate. These may of course be distinguished into as many species as there are of pains: and may give rise to so many pleasures of memory, of imagination, and of expectation.

XVII.

1. Pains of privation are the pains that may result from the thought of not possessing in the time present any of the several kinds of pleasures. Pains of privation may accordingly be resolved into as many kinds as there are of pleasures to which they may correspond, and from the absence whereof they may be derived.

XVIII.

There are three sorts of pains which are only so many modifications of the several pains of privation. When the enjoyment of any particular pleasure happens to be particularly desired, but without any expectation approaching to assurance, the pain of privation which thereupon results takes a particular name, and is called the pain of desire, or of unsatisfied desire.

XIX.

Where the enjoyment happens to have been looked for with a degree of expectation approaching to assurance, and that expectation is made suddenly to cease, it is called a pain of disappointment.

XX.

A pain of privation takes the name of a pain of regret in two cases. 1. Where it is grounded on the memory of a pleasure, which having been once enjoyed, appears not likely to be enjoyed again: 2. Where it is grounded on the idea of a pleasure, which was never actually enjoyed, nor perhaps so much as expected, but which might have been enjoyed (it is supposed) had such or such a contingency happened, which, in fact, did not happen.

XXI.

2. The several pains of the senses seem to be as follows: 1. The pains of hunger and thirst: or, the disagreeable sensations produced by the want of suitable substances which need at times to be applied to the alimentary canal. 2. The pains of the taste: or, the disagreeable sensations produced by the application of various substances to the palate, and other superior parts of the same canal. 3. The pains of the organ of smell: or, the disagreeable sensations produced by the effluvia of various substances when applied to that organ. 4. The pains of the touch: or, the disagreeable sensations produced by the application of various substances to the skin. 5. The simple pains of the hearing: or, the disagreeable sensations excited in the organ of that sense by various kinds of sounds; independently (as before) of association. 6. The simple pains of the sight: or, the disagreeable sensations, if any such there be, that may be excited in the organ of that sense by visible images, independent of the principle of association. 7. The pains resulting from excessive heat or cold, unless these be referable to the touch. 8. The pains of disease: or, the acute and uneasy sensations resulting from the several diseases and indispositions to which human nature is liable. 9. The pain of exertion, whether bodily or mental: or, the uneasy sensation which is apt to accompany any intense effort, whether of mind or body.

The pleasure of the sexual sense seems to have no positive pain to correspond to it: it has only a pain of privation, or pain of the mental class, the pain of unsatisfied desire. If any positive pain of body result from the want of such indulgence, it belongs to the head of pains of disease.

XXII.

3. The pains of awkwardness are the pains which sometimes result from the unsuccessful endeavour to apply any particular instruments of enjoyment or security to their uses, or from the difficulty a man experiences in applying them.*

The pleasures of novelty have no positive pains corresponding to them. The pain which a man experiences when he is in the condition of not knowing what to do with himself, that pain, which in French is expressed by a single word ennui, is a pain of privation: a pain resulting from the absence, not only of all the pleasures of novelty, but of all kinds of pleasure whatsoever.

The pleasures of wealth have also no positive pains corresponding to them: the only pains opposed to them are pains of privation. If any positive pains result from the want of wealth, they are referable to some other class of positive pains; principally to those of the senses. From the want of food, for instance, result the pains of hunger; from the want of clothing, the pains of cold; and so forth.

* It may be a question, perhaps, whether this be a positive pain of itself, or whether it be nothing more than a pain of privation, resulting from the consciousness of a want of skill. It is, however, but a question of words, nor does it matter which way it be determined.

XXIII.

4. The pains of enmity are the pains that may accompany the persuasion of a man’s being obnoxious to the ill-will of such or such an assignable person or persons in particular: or, as the phrase is, of being upon ill terms with him or them: and, in consequence, of being obnoxious to certain pains of some sort or other, of which he may be the cause.

XXIV.

5. The pains of an ill-name are the pains that accompany the persuasion of a man’s being obnoxious, or in a way to be obnoxious to the ill-will of the world about him. These may likewise be called the pains of ill-repute, the pains of dishonour, or the pains of the moral sanction.

In as far as a man’s fellow-creatures are supposed to be determined by any event not to regard him with any degree of esteem or good will, or to regard him with a less degree of esteem or good will than they would otherwise; not to do him any sorts of good offices, or not to do him so many good offices as they would otherwise; the pain resulting from such consideration may be reckoned a pain of privation: as far as they are supposed to regard him with such a degree of aversion or disesteem as to be disposed to do him positive ill offices, it may be reckoned a positive pain. The pain of privation, and the positive pain, in this case run one into another indistinguishably.

XXV.

6. The pains of piety are the pains that accompany the belief of a man’s being obnoxious to the displeasure of the Supreme Being: and, in consequence, to certain pains to be inflicted by his especial appointment, either in this life or in a life to come. These may also be called the pains of religion; the pains of a religious disposition; or the pains of the religious sanction. When the belief is looked upon as well-grounded, these pains are commonly called religious terrors; when looked upon as ill-grounded, superstitious terrors.

There seem to be no positive pains to correspond to the pleasures of power. The pains that a man may feel from the want or the loss of power, in as far as power is distinguished from all other sources of pleasure, seem to be nothing more than pains of privation.

The positive pains of piety, and the pains of privation, opposed to the pleasures of piety, run one into another in the same manner as the positive pains of enmity, or of an ill name, do with respect to the pains of privation, opposed to the pleasures of amity, and those of a good name. If what is apprehended at the hands of God is barely the not receiving pleasure, the pain is of the privative class: if, moreover, actual pain be apprehended, it is of the class of positive pains.

XXVI.

7. The pains of benevolence are the pains resulting from the view of any pains supposed to be endured by other beings. These may also be called the pains of good-will, of sympathy, or the pains of the benevolent or social affections.

XXVII.

8. The pains of malevolence are the pains resulting from the view of any pleasures supposed to be enjoyed by any beings who happen to be the objects of a man’s displeasure. These may also be styled the pains of ill-will, of antipathy, or the pains of the malevolent or dissocial affections.

XXVIII.

9. The pains of the memory may be grounded on every one of the above kinds, as well of pains of privation as of positive pains. These correspond exactly to the pleasures of the memory.

XXIX.

10. The pains of the imagination may also be grounded on any one of the above kinds, as well of pains of privation as of positive pains: in other respects they correspond exactly to the pleasures of the imagination.

XXX.

11. The pains of expectation may be grounded on each one of the above kinds, as well of pains of privation as of positive pains. These may be also termed pains of apprehension.§

§ In contradistinction to these, all other pains may be termed pains of sufferance.

XXXI.

12. The pains of association correspond exactly to the pleasures of association.

XXXII.

Of the above list, there are certain pleasures and pains which suppose the existence of some pleasure or pain of some other person, to which the pleasure or pain of the person in question has regard: such pleasures and pains may be termed extra-regarding. Others do not suppose any such thing: these may be termed self-regarding.* The only pleasures and pains of the extra-regarding class are those of benevolence, and those of malevolence: all the rest are self-regarding.

* See chap. x. [Motives.]

By this means the pleasures and pains of amity may be the more clearly distinguished from those of benevolence: and on the other hand, those of enmity from those of malevolence. The pleasures and pains of amity and enmity are of the self-regarding cast: those of benevolence and malevolence of the extra-regarding.

XXXIII.

Of all these several sorts of pleasures and pains, there is scarce any one which is not liable, on more accounts than one, to come under the consideration of the law. Is an offence committed? It is the tendency which it has to destroy, in such or such persons, some of these pleasures, or to produce some of these pains, that constitutes the mischief of it, and the ground for punishing it. It is the prospect of some of these pleasures, or of security from some of these pains, that constitutes the motive or temptation: it is the attainment of them that constitutes the profit of the offence. Is the offender to be punished? It can be only by the production of one or more of these pains, that the punishment can be inflicted.

It would be a matter not only of curiosity, but of some use, to exhibit a catalogue of the several complex pleasures and pains, analyzing them at the same time into the several simple ones, of which they are respectively composed. But such a disquisition would take up too much room to be admitted here. A short specimen, however, for the purpose of illustration, can hardly be dispensed with.

The pleasures taken in at the eye and ear are generally very complex. The pleasures of a country scene, for instance, consist commonly, amongst others, of the following pleasures:

I. Pleasures of the senses.

1. The simple pleasure of sight, excited by the perception of agreeable colours and figures, green fields, waving foliage, glistening water, and the like.

2. The simple pleasure of the ear, excited by the perceptions of the chirping of birds, the murmuring of waters, the rustling of the wind among the trees.

3. The pleasures of the smell, excited by the perceptions of the fragrance of flowers, of newmown hay, or other vegetable substances, in the first stages of fermentation.

4. The agreeable inward sensation, produced by a brisk circulation of the blood, and the ventilation of it in the lungs by a pure air, such as that in the country frequently is in comparison of that which is breathed in towns.

II. Pleasures of the imagination produced by association.

1. The idea of the plenty, resulting from the possession of the objects that are in view, and of the happiness arising from it.

2. The idea of the innocence and happiness of the birds, sheep, cattle, dogs, and other gentle or domestic animals.

3. The idea of the constant flow of health, supposed to be enjoyed by all these creatures: a notion which is apt to result from the occasional flow of health enjoyed by the supposed spectator.

4. The idea of gratitude, excited by the contemplation of the all-powerful and beneficent Being, who is looked up to as the author of these blessings.

These four last are all of them, in some measure at least, pleasures of sympathy.

The depriving a man of this group of pleasures is one of the evils apt to result from imprisonment; whether produced by illegal violence, or in the way of punishment, by appointment of the laws.

Chapter VI.

Of Circumstances Influencing Sensibility.

I.

Pain and pleasure are produced in men’s minds by the action of certain causes. But the quantity of pleasure and pain runs not uniformly in proportion to the cause; in other words, to the quantity of force exerted by such cause. The truth of this observation rests not upon any metaphysical nicety in the import given to the terms cause, quantity, and force: it will be equally true in whatsoever manner such force be measured.

II.

The disposition which any one has to feel such or such a quantity of pleasure or pain, upon the application of a cause of given force, is what we term the degree or quantum of his sensibility. This may be either general, referring to the sum of the causes that act upon him during a given period: or particular, referring to the action of any one particular cause, or sort of cause.

III.

But in the same mind such and such causes of pain or pleasure will produce more pain or pleasure than such or such other causes of pain or pleasure: and this proportion will in different minds be different. The disposition which any one has to have the proportion in which he is affected by two such causes, different from that in which another man is affected by the same two causes, may be termed the quality or bias of his sensibility. One man, for instance, may be most affected by the pleasures of the taste; another by those of the ear. So also, if there be a difference in the nature or proportion of two pains or pleasures which they respectively experience from the same cause; a case not so frequent as the former. From the same injury, for instance, one man may feel the same quantity of grief and resentment together as another man: but one of them shall feel a greater share of grief than of resentment: the other, a greater share of resentment than of grief.

IV.

Any incident which serves as a cause, either of pleasure or of pain, may be termed an exciting cause: if of pleasure, a pleasurable cause: if of pain, a painful, afflictive, or dolorific cause.*

* The exciting cause, the pleasure or pain produced by it, and the intention produced by such pleasure or pain in the character of a motive, are objects so intimately connected, that, in what follows, I fear I have not, on every occasion, been able to keep them sufficiently distinct. I thought it necessary to give the reader this warning; after which, should there be found any such mistakes, it is to be hoped they will not be productive of much confusion.

V.

Now the quantity of pleasure, or of pain, which a man is liable to experience upon the application of an exciting cause, since they will not depend altogether upon that cause, will depend in some measure upon some other circumstance or circumstances: these circumstances, whatsoever they be, may be termed circumstances influencing sensibility.

Thus, in physical bodies, the momentum of a ball put in motion by impulse, will be influenced by the circumstance of gravity: being in some directions increased, in others diminished by it. So in a ship, put in motion by the wind, the momentum and direction will be influenced not only by the attraction of gravity, but by the motion and resistance of the water, and several other circumstances.

VI.

These circumstances will apply differently to different exciting causes; insomuch that to a certain exciting cause, a certain circumstance shall not apply at all, which shall apply with great force to another exciting cause. But without entering for the present into these distinctions, it may be of use to sum up all the circumstances which can be found to influence the effect of any exciting cause. These, as on a former occasion, it may be as well first to sum up together in the concisest manner possible, and afterwards to allot a few words to the separate explanation of each article. They seem to be as follows: 1. Health. 2. Strength. 3. Hardiness. 4. Bodily imperfection. 5. Quantity and quality of knowledge. 6. Strength of intellectual powers. 7. Firmness of mind. 8. Steadiness of mind. 9. Bent of inclination. 10. Moral sensibility. 11. Moral biases. 12. Religious sensibility. 13. Religious biases. 14. Sympathetic sensibility. 15. Sympathetic biases. 16. Antipathetic sensibility. 17. Antipathetic biases. 18. Insanity. 19. Habitual occupations. 20. Pecuniary circumstances. 21. Connexions in the way of sympathy. 22. Connexions in the way of antipathy. 23. Radical frame of body. 24. Radical frame of mind. 25. Sex. 26. Age. 27. Rank. 28. Education. 29. Climate. 30. Lineage. 31. Government. 32. Religious profession.

An analytical view of all these circumstances will be given at the conclusion of the chapter: to which place it was necessary to refer it, as it could not well have been understood, till some of them had been previously explained.

To search out the vast variety of exciting or moderating causes, by which the degree or bias of a man’s sensibility may be influenced, to define the boundaries of each, to extricate them from the entanglements in which they are involved, to lay the effect of each article distinctly before the reader’s eye, is, perhaps, if not absolutely the most difficult task, at least one of the most difficult tasks, within the compass of moral physiology. Disquisitions on this head can never be completely satisfactory without examples. To provide a sufficient collection of such examples, would be a work of great labour as well as nicety: history and biography would need to be ransacked: a vast course of reading would need to be travelled through on purpose. By such a process the present work would doubtless have been rendered more amusing; but in point of bulk so enormous, that this single chapter would have been swelled into a considerable volume. Feigned cases, although they may upon occasion serve to render the general matter tolerably intelligible, can never be sufficient to render it palatable. On this therefore, as on so many other occasions, I must confine myself to dry and general instruction: discarding illustration, although sensible that without it instruction cannot manifest half its efficacy. The subject, however, is so difficult, and so new, that I shall think I have not ill succeeded, if, without pretending to exhaust it, I shall have been able to mark out the principal points of view, and to put the matter in such a method as may facilitate the researches of happier inquirers.

The great difficulty lies in the nature of the words; which are not, like pain and pleasure, names of homogeneous real entities, but names of various fictitious entities, for which no common genus is to be found: and which therefore, without a vast and roundabout chain of investigation, can never be brought under any exhaustive plan of arrangement, but must be picked up here and there as they happen to occur.

VII.

1. Health is the absence of disease, and consequently of all those kinds of pain which are among the symptoms of disease. A man may be said to be in a state of health, when he is not conscious of any uneasy sensations, the primary seat of which can be perceived to be any where in his body. In point of general sensibility, a man who is under the pressure of any bodily indisposition, or, as the phrase is, is in an ill state of health, is less sensible to the influence of any pleasurable cause, and more so to that of any afflictive one, than if he were well.

It may be thought, that in a certain degree of health, this negative account of the matter hardly comes up to the case. In a certain degree of health, there is often such a kind of feeling diffused over the whole frame, such a comfortable feel, or flow of spirits, as it is called, as may with propriety come under the head of positive pleasure. But without experiencing any such pleasurable feeling, if a man experience no painful one, he may be well enough said to be in health.

VIII.

2. The circumstance of strength, though in point of causality closely connected with that of health, is perfectly distinguishable from it. The same man will indeed generally be stronger in a good state of health than in a bad one. But one man, even in a bad state of health, may be stronger than another even in a good one. Weakness is a common concomitant of disease: but in consequence of his radical frame of body, a man may be weak all his life long, without experiencing any disease. Health, as we have observed, is principally a negative circumstance: strength a positive one. The degree of a man’s strength can be measured with tolerable accuracy.*

* The most accurate measure that can be given of a man’s strength, seems to be that which is taken from the weight or number of pounds and ounces he can lift with his hands in a given attitude. This indeed relates immediately only to his arms: but these are the organs of strength which are most employed; of which the strength corresponds with most exactness to the general state of the body with regard to strength; and in which the quantum of strength is easiest measured. Strength may accordingly be distinguished into general and particular.

Weakness is a negative term, and imports the absence of strength. It is, besides, a relative term, and accordingly imports the absence of such a quantity of strength as makes the share, possessed by the person in question, less than that of some person he is compared to. Weakness, when it is at such a degree as to make it painful for a man to perform the motions necessary to the going through the ordinary functions of life, such as to get up, to walk, to dress one’s self, and so forth, brings the circumstance of health into question, and puts a man into that sort of condition in which he is said to be in ill health.

IX.

3. Hardiness is a circumstance which, though closely connected with that of strength, is distinguishable from it. Hardiness is the absence of irritability. Irritability respects either pain, resulting from the action of mechanical causes; or disease, resulting from the action of causes purely physiological. Irritability, in the former sense, is the disposition to undergo a greater or less degree of pain upon the application of a mechanical cause; such as are most of those applications by which simple afflictive punishments are inflicted, as whipping, beating, and the like. In the latter sense, it is the disposition to contract disease with greater or less facility, upon the application of any instrument acting on the body by its physiological properties; as in the case of fevers, or of colds, or other inflammatory diseases, produced by the application of damp air: or to experience immediate uneasiness, as in the case of relaxation or chilliness produced by an over or under proportion of the matter of heat.

Hardiness, even in the sense in which it is opposed to the action of mechanical causes, is distinguishable from strength. The external indications of strength are the abundance and firmness of the muscular fibres: those of hardiness, in this sense, are the firmness of the muscular fibres, and the callosity of the skin. Strength is more peculiarly the gift of nature: hardiness, of education. Of two persons who have had, the one the education of a gentleman, the other that of a common sailor, the first may be the stronger, at the same time that the other is the hardier.

X.

4. By bodily imperfection may be understood that condition which a person is in, who either stands distinguished by any remarkable deformity, or wants any of those parts or faculties, which the ordinary run of persons of the same sex and age are furnished with: who, for instance, has a hare-lip, is deaf, or has lost a hand. This circumstance, like that of ill health, tends in general to diminish more or less the effect of any pleasurable circumstance, and to increase that of any afflictive one. The effect of this circumstance, however, admits of great variety: inasmuch as there are a great variety of ways in which a man may suffer in his personal appearance, and in his bodily organs and faculties: all which difference will be taken notice of in their proper places.

See B. I. tit. [Irrep. Corp. Injuries.]

XI.

5. So much for circumstances belonging to the condition of the body: we come now to those which concern the condition of the mind: the use of mentioning these will be seen hereafter. In the first place may be reckoned the quantity and quality of the knowledge the person in question happens to possess: that is, of the ideas which he has actually in store, ready upon occasion to call to mind: meaning such ideas as are in some way or other of an interesting nature: that is, of a nature in some way or other to influence his happiness, or that of other men. When these ideas are many, and of importance, a man is said to be a man of knowledge; when few, or not of importance, ignorant.

XII.

6. By strength of intellectual powers may be understood the degree of facility which a man experiences in his endeavours to call to mind as well such ideas as have been already aggregated to his stock of knowledge, as any others, which, upon any occasion that may happen, he may conceive a desire to place there. It seems to be on some such occasion as this that the words parts and talents are commonly employed. To this head may be referred the several qualities of readiness of apprehension, accuracy and tenacity of memory, strength of attention, clearness of discernment, amplitude of comprehension, vividity and rapidity of imagination. Strength of intellectual powers, in general, seems to correspond pretty exactly to general strength of body: as any of these qualities in particular does to particular strength.

XIII.

7. Firmness of mind on the one hand, and irritability on the other, regard the proportion between the degrees of efficacy with which a man is acted upon by an exciting cause, of which the value lies chiefly in magnitude, and one of which the value lies chiefly in propinquity.* A man may be said to be of a firm mind, when small pleasures or pains, which are present or near, do not affect him, in a greater proportion to their value, than greater pleasures or pains, which are uncertain or remote; of an irritable mind, when the contrary is the case.

* See chap. iv. [Value.]

When, for instance, having been determined, by the prospect of some inconvenience, not to disclose a fact, although he should be put to the rack, he perseveres in such resolution after the rack is brought into his presence, and even applied to him.

XIV.

8. Steadiness regards the time during which a given exciting cause of a given value continues to affect a man in nearly the same manner and degree as at first, no assignable external event or change of circumstances intervening to make an alteration in its force.

The facility with which children grow tired of their play-things, and throw them away, is an instance of unsteadiness: the perseverance with which a merchant applies himself to his traffic, or an author to his book, may be taken for an instance of the contrary. It is difficult to judge of the quantity of pleasure or pain in these cases, but from the effects which it produces in the character of a motive; and even then it is difficult to pronounce, whether the change of conduct happens by the extinction of the old pleasure or pain, or by the intervention of a new one.

XV.

9. By the bent of a man’s inclinations may be understood the propensity he has to expect pleasure or pain from certain objects, rather than from others. A man’s inclinations may be said to have such or such a bent, when, amongst the several sorts of objects which afford pleasure in some degree to all men, he is apt to expect more pleasure from one particular sort, than from another particular sort, or more from any given particular sort, than another man would expect from that sort; or when, amongst the several sorts of objects, which to one man afford pleasure, whilst to another they afford none, he is apt to expect, or not to expect, pleasure from an object of such or such a sort: so also with regard to pains. This circumstance, though intimately connected with that of the bias of a man’s sensibility, is not undistinguishable from it. The quantity of pleasure or pain, which on any given occasion a man may experience from an application of any sort, may be greatly influenced by the expectations he has been used to entertain of pleasure or pain from that quarter; but it will not be absolutely determined by them: for pleasure or pain may come upon him from a quarter from which he was not accustomed to expect it.

XVI.

10. The circumstances of moral, religious, sympathetic and antipathetic sensibility, when closely considered, will appear to be included in some sort under that of bent of inclination. On account of their particular importance they may, however, be worth mentioning apart. A man’s moral sensibility may be said to be strong, when the pains and pleasures of the moral sanction* show greater in his eyes, in comparison with other pleasures and pains (and consequently exert a stronger influence), than in the eyes of the persons he is compared with; in other words, when he is acted on with more than ordinary efficacy by the sense of honour: it may be said to be weak, when the contrary is the case.

* See ch. v. [Pleasures and Pains.]

XVII.

11. Moral sensibility seems to regard the average effect or influence of the pains and pleasures of the moral sanction, upon all sorts of occasions to which it is applicable, or happens to be applied. It regards the average force or quantity of the impulses the mind receives from that source during a given period. Moral bias regards the particular acts on which, upon so many particular occasions, the force of that sanction is looked upon as attaching. It regards the quality or direction of those impulses. It admits of as many varieties, therefore, as there are dictates which the moral sanction may be conceived to issue forth. A man may be said to have such or such a moral bias, or to have a moral bias in favour of such or such an action, when he looks upon it as being of the number of those of which the performance is dictated by the moral sanction.

XVIII.

12. What has been said with regard to moral sensibility, may be applied, mutatis mutandis, to religious.

XIX.

13. What has been said with regard to moral biases, may also be applied, mutatis mutandis, to religious biases.

XX.

14. By sympathetic sensibility is to be understood the propensity that a man has to derive pleasure from the happiness, and pain from the unhappiness, of other sensitive beings. It is the stronger, the greater the ratio of the pleasure or pain he feels on their account is to that of the pleasure or pain which (according to what appears to him) they feel for themselves.

XXI.

15. Sympathetic bias regards the description of the parties who are the objects of a man’s sympathy: and of the acts or other circumstances of or belonging to those persons, by which the sympathy is excited. These parties may be, 1. Certain individuals. 2. Any subordinate class of individuals. 3. The whole nation. 4. Human kind in general. 5. The whole sensitive creation. According as these objects of sympathy are more numerous, the affection, by which the man is biased, may be said to be the more enlarged.

XXII.

16, 17. Antipathetic sensibility and anti-pathetic biases are just the reverse of sympathetic sensibility and sympathetic biases. By antipathetic sensibility is to be understood the propensity that a man has to derive pain from the happiness, and pleasure from the unhappiness, of other sensitive beings.

XXIII.

18. The circumstance of insanity of mind corresponds to that of bodily imperfection. It admits, however, of much less variety, inasmuch as the soul is (for aught we can perceive) one indivisible thing, not distinguishable, like the body, into parts. What lesser degrees of imperfection the mind may be susceptible of, seem to be comprisable under the already-mentioned heads of ignorance, weakness of mind, irritability, or unsteadiness; or under such others as are reducible to them. Those which are here in view are those extraordinary species and degrees of mental imperfection, which, wherever they take place, are as conspicuous and as unquestionable as lameness or blindness in the body: operating partly, it should seem, by inducing an extraordinary degree of the imperfections above mentioned, partly by giving an extraordinary and preposterous bent to the inclinations.

XXIV.

19. Under the head of a man’s habitual occupations, are to be understood, on this occasion, as well those which he pursues for the sake of profit, as those which he pursues for the sake of present pleasure. The consideration of the profit itself belongs to the head of a man’s pecuniary circumstances. It is evident, that if by any means a punishment, or any other exciting cause, has the effect of putting it out of his power to continue in the pursuit of any such occupation, it must on that account be so much the more distressing. A man’s habitual occupations, though intimately connected in point of causality with the bent of his inclinations, are not to be looked upon as precisely the same circumstance. An amusement, or channel of profit, may be the object of a man’s inclinations, which has never been the subject of his habitual occupations: for it may be, that though he wished to betake himself to it, he never did, it not being in his power: a circumstance which may make a good deal of difference in the effect of any incident by which he happens to be debarred from it.

XXV.

20. Under the head of pecuniary circumstances, I mean to bring to view the proportion which a man’s means bear to his wants: the sum total of his means of every kind, to the sum total of his wants of every kind. A man’s means depend upon three circumstances: 1. His property. 2. The profit of his labour. 3. His connexions in the way of support. His wants seem to depend upon four circumstances: 1. His habits of expense. 2. His connexions in the way of burthen. 3. Any present casual demand he may have. 4. The strength of his expectation. By a man’s property is to be understood, whatever he has in store independent of his labour. By the profit of his labour is to be understood the growing profit. As to labour, it may be either of the body principally, or of the mind principally, or of both indifferently: nor does it matter in what manner, nor on what subject, it be applied, so it produce a profit. By a man’s connexions in the way of support, are to be understood the pecuniary assistances, of whatever kind, which he is in a way of receiving from any persons who, on whatever account, and in whatever proportion, he has reason to expect should contribute gratis to his maintenance: such as his parents, patrons, and relations. It seems manifest, that a man can have no other means than these. What he uses, he must have either of his own, or from other people: if from other people, either gratis or for a price. As to habits of expense, it is well known, that a man’s desires are governed in a great degree by his habits. Many are the cases in which desire (and consequently the pain of privation connected with it* ) would not even subsist at all, but for previous enjoyment. By a man’s connexions in the way of burthen, are to be understood whatever expense he has reason to look upon himself as bound to be at in the support of those who by law, or the customs of the world, are warranted in looking up to him for assistance; such as children, poor relations, superannuated servants, and any other dependents whatsoever. As to present casual demand, it is manifest, that there are occasions on which a given sum will be worth infinitely more to a man than the same sum would, at another time: where, for example, in a case of extremity, a man stands in need of extraordinary medical assistance: or wants money to carry on a law-suit, on which his all depends: or has got a livelihood waiting for him in a distant country, and wants money for the charges of conveyance. In such cases, any piece of good or ill fortune, in the pecuniary way, might have a very different effect from what it would have at any other time. With regard to strength of expectation; when one man expects to gain or to keep a thing which another does not, it is plain the circumstance of not having it will affect the former very differently from the latter; who, indeed, commonly will not be affected by it at all.

* See ch. v. [Pleasures and Pains.]

XXVI.

21. Under the head of a man’s connexions in the way of sympathy, I would bring to view the number and description of the persons in whose welfare he takes such a concern, as that the idea of their happiness should be productive of pleasure, and that of their unhappiness of pain to him: for instance, a man’s wife, his children, his parents, his near relations, and intimate friends. This class of persons, it is obvious, will for the most part include the two classes by which his pecuniary circumstances are affected: those, to wit, from whose means he may expect support, and those whose wants operate on him as a burthen. But it is obvious, that besides these, it may very well include others, with whom he has no such pecuniary connexion: and even with regard to these, it is evident that the pecuniary dependence, and the union of affections, are circumstances perfectly distinguishable. Accordingly, the connexions here in question, independently of any influence they may have on a man’s pecuniary circumstances, have an influence on the effect of any exciting causes whatsoever. The tendency of them is to increase a man’s general sensibility; to increase, on the one hand, the pleasure produced by all pleasurable causes; on the other, the pain produced by all afflictive ones. When any pleasurable incident happens to a man, he naturally, in the first moment, thinks of the pleasure it will afford immediately to himself: presently afterwards, however (except in a few cases, which it is not worth while here to insist on), he begins to think of the pleasure which his friends will feel upon their coming to know of it: and this secondary pleasure is commonly no mean addition to the primary one. First comes the self-regarding pleasure: then comes the idea of the pleasure of sympathy, which you suppose that pleasure of your’s will give birth to in the bosom of your friend: and this idea excites again in your’s a new pleasure of sympathy, grounded upon his. The first pleasure issuing from your own bosom, as it were from a radiant point, illuminates the bosom of your friend: reverberated from thence, it is reflected with augmented warmth to the point from whence it first proceeded: and so it is with pains.*

Nor does this effect depend wholly upon affection. Among near relations, although there should be no kindness, the pleasures and pains of the moral sanction are quickly propagated by a peculiar kind of sympathy: no article, either of honour or disgrace, can well fall upon a man, without extending to a certain distance within the circle of his family. What reflects honour upon the father, reflects honour upon the son: what reflects disgrace, disgrace. The cause of this singular and seemingly unreasonable circumstance (that is, its analogy to the rest of the phenomena of the human mind), belongs not to the present purpose. It is sufficient if the effect be beyond dispute.

* This is one reason why legislators in general like better to have married people to deal with than single; and people that have children than such as are childless. It is manifest that the stronger and more numerous a man’s connexions in the way of sympathy are, the stronger is the hold which the law has upon him. A wife and children are so many pledges a man gives to the world for his good behaviour.

XXVII.

22. Of a man’s connexions in the way of antipathy, there needs not any thing very particular to be observed. Happily there is no primæval and constant source of antipathy in human nature, as there is of sympathy. There are no permanent sets of persons who are naturally and of course the objects of antipathy to a man, as there are who are the objects of the contrary affection. Sources, however, but too many, of antipathy, are apt to spring up upon various occasions during the course of a man’s life: and whenever they do, this circumstance may have a very considerable influence on the effects of various exciting causes. As on the one hand a punishment, for instance, which tends to separate a man from those with whom he is connected in the way of sympathy, so on the other hand, one which tends to force him into the company of those with whom he is connected in the way of antipathy, will, on that account, be so much the more distressing. It is to be observed, that sympathy itself multiplies the sources of antipathy. Sympathy for your friend gives birth to antipathy on your part against all those who are objects of antipathy, as well as to sympathy for those who are objects of sympathy to him. In the same manner does antipathy multiply the sources of sympathy; though commonly perhaps with rather a less degree of efficacy. Antipathy against your enemy is apt to give birth to sympathy on your part towards those who are objects of antipathy, as well as to antipathy against those who are objects of sympathy, to him.

XXVIII.

23. Thus much for the circumstances by which the effect of any exciting cause may be influenced, when applied upon any given occasion, at any given period. But besides these supervening incidents, there are other circumstances relative to a man, that may have their influence, and which are co-eval to his birth. In the first place, it seems to be universally agreed, that in the original frame or texture of every man’s body, there is a something which, independently of all subsequently intervening circumstances, renders him liable to be affected by causes producing bodily pleasure or pain, in a manner different from that in which another man would be affected by the same causes. To the catalogue of circumstances influencing a man’s sensibility, we may therefore add his original or radical frame, texture, constitution, or temperament of body.

XXIX.

24. In the next place, it seems to be pretty well agreed, that there is something also in the original frame or texture of every man’s mind, which, independently of all exterior and subsequently intervening circumstances, and even of his radical frame of body, makes him liable to be differently affected by the same exciting causes, from what another man would be. To the catalogue of circumstances influencing a man’s sensibility, we may therefore further add his original or radical frame, texture, constitution, or temperament of mind.*

* The characteristic circumstances whereby one man’s frame of body or mind, considered at any given period, stands distinguished from that of another, have been comprised by metaphysicians and physiologists under the name idiosyncrasy, from διος, peculiar, and συνϰϱασις, composition.

XXX.

It seems pretty certain, all this while, that a man’s sensibility to causes producing pleasure or pain, even of mind, may depend in a considerable degree upon his original and acquired frame of body. But we have no reason to think that it can depend altogether upon that frame: since, on the one hand, we see persons whose frame of body is as much alike as can be conceived, differing very considerably in respect of their mental frame: and, on the other hand, persons whose frame of mind is as much alike as can be conceived, differing very conspicuously in regard to their bodily frame.

Those who maintain, that the mind and the body are one substance, may here object, that upon that supposition the distinction between frame of mind and frame of body is but nominal, and that accordingly there is no such thing as a frame of mind distinct from the frame of body. But granting, for argument-sake, the antecedent, we may dispute the consequence. For if the mind be but a part of the body, it is at any rate of a nature very different from the other parts of the body.

A man’s frame of body cannot in any part of it undergo any considerable alteration without its being immediately indicated by phænomena discernible by the senses. A man’s frame of mind may undergo very considerable alterations, his frame of body remaining the same to all appearance; that is, for any thing that is indicated to the contrary by phenomena cognizable to the senses: meaning those of other men.

XXXI.

It seems indisputable also, that the different sets of external occurrences that may befal a man in the course of his life, will make great differences in the subsequent texture of his mind at any given period: yet still those differences are not solely to be attributed to such occurrences. Equally far from the truth seems that opinion to be (if any such be maintained) which attributes all to nature, and that which attributes all to education. The two circumstances will therefore still remain distinct, as well from one another, as from all others.

XXXII.

Distinct however as they are, it is manifest, that at no period in the active part of a man’s life can they either of them make their appearance by themselves. All they do is to constitute the latent ground-work which the other supervening circumstances have to work upon: and whatever influence those original principles may have, is so changed and modified, and covered over, as it were, by those other circumstances, as never to be separately discernible. The effects of the one influence are indistinguishably blended with those of the other.

XXXIII.

The emotions of the body are received, and with reason, as probable indications of the temperature of the mind. But they are far enough from conclusive. A man may exhibit, for instance, the exterior appearances of grief, without really grieving at all, or at least in any thing near the proportion in which he appears to grieve. Oliver Cromwell, whose conduct indicated a heart more than ordinarily callous, was as remarkably profuse in tears. Many men can command the external appearances of sensibility with very little real feeling. The female sex commonly with greater facility than the male: hence the proverbial expression of a woman’s tears. To have this kind of command over one’s self, was the characteristic excellence of the orator of ancient times, and is still that of the player in our own.

Hume’s Hist.

The quantity of the sort of pain, which is called grief, is indeed hardly to be measured by any external indications. It is neither to be measured, for instance, by the quantity of the tears, nor by the number of moments spent in crying. Indications rather less equivocal may, perhaps, be afforded by the pulse. A man has not the motions of his heart at command as he has those of the muscles of his face. But the particular significancy of these indications is still very uncertain. All they can express is, that the man is affected; they cannot express in what manner, nor from what cause. To an affection resulting in reality from such or such a cause, he may give an artificial colouring, and attribute it to such or such another cause. To an affection directed in reality to such or such a person as its object, he may give an artificial bias, and represent it as if directed to such or such another object. Tears of rage he may attribute to contrition. The concern he feels at the thoughts of a punishment that awaits him, he may impute to a sympathetic concern for the mischief produced by his offence.

A very tolerable judgment, however, may commonly be formed by a discerning mind, upon laying all the external indications exhibited by a man together, and at the same time comparing them with his actions.

A remarkable instance of the power of the will, over the external indications of sensibility, is to be found in Tacitus’s story of the Roman soldier, who raised a mutiny in the camp, pretending to have lost a brother by the lawless cruelty of the General. The truth was, he never had had a brother.

XXXIV.

The remaining circumstances may, with reference to those already mentioned, be termed secondary influencing circumstances. These have an influence, it is true, on the quantum or bias of a man’s sensibility, but it is only by means of the other primary ones. The manner in which these two sets of circumstances are concerned, is such that the primary ones do the business, while the secondary ones lie most open to observation. The secondary ones, therefore, are those which are most heard of; on which account it will be necessary to take notice of them: at the same time that it is only by means of the primary ones that their influence can be explained; whereas the influence of the primary ones will be apparent enough, without any mention of the secondary ones.

XXXV.

25. Among such of the primitive modifications of the corporeal frame as may appear to influence the quantum and bias of sensibility, the most obvious and conspicuous are those which constitute the sex. In point of quantity, the sensibility of the female sex appears in general to be greater than that of the male. The health of the female is more delicate than that of the male: in point of strength and hardiness of body, in point of quantity and quality of knowledge, in point of strength of intellectual powers, and firmness of mind, she is commonly inferior: moral, religious, sympathetic, and antipathetic sensibility are commonly stronger in her than in the male. The quality of her knowledge, and the bent of her inclinations, are commonly in many respects different. Her moral biases are also, in certain respects, remarkably different: chastity, modesty, and delicacy, for instance, are prized more than courage in a woman: courage, more than any of those qualities, in a man. The religious biases in the two sexes are not apt to be remarkably different: except that the female is rather more inclined than the male to superstition: that is, to observances not dictated by the principle of utility; a difference that may be pretty well accounted for by some of the before-mentioned circumstances. Her sympathetic biases are in many respects different for her own offspring all their lives long, and for children in general while young, her affection is commonly stronger than that of the male. Her affections are apt to be less enlarged: seldom expanding themselves so much as to take in the welfare of her country in general, much less that of mankind, or the whole sensitive creation: seldom embracing any extensive class or division, even of her own countrymen, unless it be in virtue of her sympathy for some particular individuals that belong to it. In general, her antipathetic, as well as sympathetic biases, are apt to be less conformable to the principle of utility than those of the male; owing chiefly to some deficiency in point of knowledge, discernment, and comprehension. Her habitual occupations of the amusing kind are apt to be in many respects different from those of the male. With regard to her connexions in the way of sympathy, there can be no difference. In point of pecuniary circumstances, according to the customs of perhaps all countries, she is in general less independent.

XXXVI.

26. Age is of course divided into divers periods, of which the number and limits are by no means uniformly ascertained. One might distinguish it, for the present purpose, into, 1. Infancy. 2. Adolescence. 3. Youth. 4. Maturity. 5. Decline. 6. Decrepitude. It were lost time to stop on the present occasion to examine it at each period, and to observe the indications it gives, with respect to the several primary circumstances just reviewed. Infancy and decrepitude are commonly inferior to the other periods, in point of health, strength, hardiness, and so forth. In infancy on the part of the female, the imperfections of that sex are enhanced: on the part of the male, imperfections take place mostly similar in quality, but greater in quantity, to those attending the states of adolescence, youth, and maturity in the female. In the stage of decrepitude both sexes relapse into many of the imperfections of infancy. The generality of these observations may easily be corrected upon a particular review.

XXXVII.

27. Station, or rank in life, is a circumstance, that, among a civilized people, will commonly undergo a multiplicity of variations. Cæteris paribus, the quantum of sensibility appears to be greater in the higher ranks of men than in the lower. The primary circumstances in respect of which this secondary circumstance is apt to induce or indicate a difference, seem principally to be as follows: 1. Quantity and quality of knowledge. 2. Strength of mind. 3. Bent of inclination. 4. Moral sensibility. 5. Moral biases. 6. Religious sensibility. 7. Religious biases. 8. Sympathetic sensibility. 9. Sympathetic biases. 10. Antipathetic sensibility. 11. Antipathetic biases. 12. Habitual occupations. 13. Nature and productiveness of a man’s means of livelihood. 14. Connexions importing profit. 15. Habit of expense. 16. Connexions importing burthen. A man of a certain rank will frequently have a number of dependents besides those whose dependency is the result of natural relationship. As to health, strength, and hardiness, if rank has any influence on these circumstances, it is but in a remote way, chiefly by the influence it may have on his habitual occupations.

XXXVIII.

28. The influence of education is still more extensive. Education stands upon a footing somewhat different from that of the circumstances of age, sex, and rank. These words, though the influence of the circumstances they respectively denote exerts itself principally, if not entirely, through the medium of certain of the primary circumstances before mentioned, present, however, each of them a circumstance which has a separate existence of itself. This is not the case with the word education: which means nothing any farther than as it serves to call up to view some one or more of those primary circumstances. Education may be distinguished into physical and mental; the education of the body and that of the mind: mental, again, into intellectual and moral; the culture of the understanding, and the culture of the affections. The education a man receives, is given to him partly by others, partly by himself. By education, then, nothing more can be expressed than the condition a man is in in respect of those primary circumstances, as resulting partly from the management and contrivance of others, principally of those who, in the early periods of his life, have had dominion over him, partly from his own. To the physical part of his education, belong the circumstances of health, strength, and hardiness: sometimes, by accident, that of bodily imperfection; as where by intemperance or negligence an irreparable mischief happens to his person. To the intellectual parts, those of quantity and quality of knowledge, and in some measure perhaps those of firmness of mind and steadiness. To the moral part, the bent of his inclinations, the quantity and quality of his moral, religious, sympathetic, and antipathetic sensibility: to all three branches indiscriminately, but under the superior control of external occurrences, his habitual recreations, his property, his means of livelihood, his connexions in the way of profit and of burthen, and his habits of expense. With respect, indeed, to all these points, the influence of education is modified, in a manner more or less apparent, by that of exterior occurrences; and in a manner scarcely at all apparent, and altogether out of the reach of calculation, by the original texture and constitution as well of his body as of his mind.

XXXIX.

29. Among the external circumstances by which the influence of education is modified, the principal are those which come under the head of climate.* This circumstance places itself in front, and demands a separate denomination, not merely on account of the magnitude of its influence, but also on account of its being conspicuous to every body, and of its applying indiscriminately to great numbers at a time. This circumstance depends for its essence upon the situation of that part of the earth which is in question, with respect to the course taken by the whole planet in its revolution round the sun: but for its influence it depends upon the condition of the bodies which compose the earth’s surface at that part, principally upon the quantities of sensible heat at different periods, and upon the density, and purity, and dryness or moisture of the circumambient air. Of the so often mentioned primary circumstances, there are few of which the production is not influenced by this secondary one; partly by its manifest effects upon the body; partly by its less perceptible effects upon the mind. In hot climates, men’s health is apt to be more precarious than in cold: their strength and hardiness less: their vigour, firmness, and steadiness of mind less: and thence indirectly their quantity of knowledge: the bent of their inclinations different: most remarkably so in respect of their superior propensity to sexual enjoyments, and in respect of the earliness of the period at which that propensity begins to manifest itself: their sensibilities of all kinds more intense: their habitual occupations savouring more of sloth than of activity: their radical frame of body less strong, probably, and less hardy: their radical frame of mind less vigorous, less firm, less steady.

* Upon reflection, I seem to have overlooked, in the chapter on circumstances influencing sensibility, the circumstance of the face, or rather texture of the country: that being a circumstance which the purpose for which I was then considering the subject did not necessarily bring to view: had I strictly pursued the exhaustive plan, this oversight would probably not have happened. The article which comes nearest is that of climate; but the word climate will scarcely with propriety serve to bring to view that of the texture of the country. The word climate denotes primarily the situation or inclination of the part of the earth in question, with reference to the part marked out by that planet in its orbit round the sun: and thence derivatively the degree of heat which, during a given period, is excited in that part. It may thence again serve to bring to view the state of the air in respect to density, purity, and dryness or moisture. But the evenness or unevenness of the surface of the earth, with its elevation or depression, the proportion between earth and water in any given spot, and the quality of each; these are particulars which can not properly be referable, any of them, to the head of climate.

It is evident that the circumstances comprehended under the head of texture of the earth, may have an influence on those which, in a secondary manner, are included under the head of climate. The density of the air, its dryness and moistness, and the temperature of the atmosphere and the earth together, in respect of heat and cold, depend for the most part on the elevation or depression of the earth’s surface, the proportion between earth and water, and quality of both these elements. But the texture of the earth does not, except in as far as it influences the climate, exert any direct influence on the state and condition of the men themselves who are its inhabitants. It exerts, indeed, partly through the medium of climate, and partly by its own immediate efficacy, an influence over the vegetables and animals, which are of a nature to be either of use or detriment to man; and thence again, by another channel, over the state and condition of man himself. It was the remoteness of this latter influence which is exerted by the texture of the earth upon man, that was the reason of its being overlooked on the occasion before mentioned.

XL.

30. Another article in the catalogue of secondary circumstances, is that of race or lineage: the national race or lineage a man issues from. This circumstance, independently of that of climate, will commonly make some difference in point of radical frame of mind and body. A man of negro race, born in France or England, is a very different being, in many respects, from a man of French or English race. A man of Spanish race, born in Mexico or Peru, is at the hour of his birth a different sort of being, in many respects, from a man of the original Mexican or Peruvian race. This circumstance, as far as it is distinct from climate, rank, and education, and from the two just mentioned, operates chiefly through the medium of moral, religious, sympathetic, and antipathetic biases.

XLI.

31. The last circumstance but one, is that of government: the government a man lives under at the time in question; or rather that under which he has been accustomed most to live. This circumstance operates principally through the medium of education: the magistrate operating in the character of a tutor upon all the members of the state, by the direction he gives to their hopes and to their fears. Indeed, under a solicitous and attentive government, the ordinary preceptor, nay even the parent himself, is but a deputy, as it were, to the magistrate: whose controlling influence, different in this respect from that of the ordinary preceptor, dwells with a man to his life’s end. The effects of the peculiar power of the magistrate are seen more particularly in the influence it exerts over the quantum and bias of men’s moral, religious, sympathetic, and antipapathetic sensibilities. Under a well-constituted, or even under a well-administered though ill-constituted government, men’s moral sensibility is commonly stronger, and their moral biases more conformable to the dictates of utility: their religious sensibility frequently weaker, but their religious biases less unconformable to the dictates of utility: their sympathetic affections more enlarged, directed to the magistrate more than to small parties or to individuals, and more to the whole community than to either: their antipathetic sensibilities less violent, as being more obsequious to the influence of well-directed moral biases, and less apt to be excited by that of ill-directed religious ones: their antipathetic biases more conformable to well-directed moral ones, more apt (in proportion) to be grounded on enlarged and sympathetic than on narrow and self-regarding affections, and accordingly, upon the whole, more conformable to the dictates of utility.

XLII.

32. The last circumstance is that of religious profession: the religious profession a man is of: the religious fraternity of which he is a member. This circumstance operates principally through the medium of religious sensibility and religious biases. It operates, however, as an indication more or less conclusive, with respect to several other circumstances. With respect to some, scarcely but through the medium of the two just mentioned: this is the case with regard to the quantum and bias of a man’s moral, sympathetic, and antipathetic sensibility: perhaps in some cases with regard to quantity and quality of knowledge, strength of intellectual powers, and bent of inclination. With respect to others, it may operate immediately of itself: this seems to be the case with regard to a man’s habitual occupations, pecuniary circumstances, and connexions in the way of sympathy and antipathy. A man who pays very little inward regard to the dictates of the religion which he finds it necessary to profess, may find it difficult to avoid joining in the ceremonies of it, and bearing a part in the pecuniary burthens it imposes.* By the force of habit and example he may even be led to entertain a partiality for persons of the same profession, and a proportionable antipathy against those of a rival one. In particular, the antipathy against persons of different persuasions is one of the last points of religion which men part with. Lastly, it is obvious, that the religious profession a man is of cannot but have a considerable influence on his education. But, considering the import of the term education, to say this is perhaps no more than saying in other words what has been said already.

* The ways in which a religion may lessen a man’s means, or augment his wants, are various. Sometimes it will prevent him from making a profit of his money: sometimes from setting his hand to labour. Sometimes it will oblige him to buy dearer food instead of cheaper: sometimes to purchase useless labour: sometimes to pay men for not labouring: sometimes to purchase trinkets, on which imagination alone has set a value: sometimes to purchase exemptions from punishment, or titles to felicity in the world to come.

XLIII.

These circumstances, all or many of them, will need to be attended to as often as upon any occasion any account is taken of any quantity of pain or pleasure, as resulting from any cause. Has any person sustained an injury? they will need to be considered in estimating the mischief of the offence. Is satisfaction to be made to him? they will need to be attended to in adjusting the quantum of that satisfaction. Is the injurer to be punished? they will need to be attended to in estimating the force of the impression that will be made on him by any given punishment.

XLIV.

It is to be observed, that though they seem all of them, on some account or other, to merit a place in the catalogue, they are not all of equal use in practice. Different articles among them are applicable to different exciting causes. Of those that may influence the effect of the same exciting cause, some apply indiscriminately to whole classes of persons together; being applicable to all, without any remarkable difference in degree: these may be directly and pretty fully provided for by the legislator. This is the case, for instance, with the primary circumstances of bodily imperfection, and insanity: with the secondary circumstance of sex: perhaps with that of age: at any rate, with those of rank, of climate, of lineage, and of religious profession. Others, however they may apply to whole classes of persons, yet in their application to different individuals are susceptible of perhaps an indefinite variety of degrees. These cannot be fully provided for by the legislator; but, as the existence of them, in every sort of case, is capable of being ascertained, and the degree in which they take place is capable of being measured, provision may be made for them by the judge, or other executive magistrate, to whom the several individuals that happen to be concerned may be made known. This is the case, 1. With the circumstance of health. 2. In some sort with that of strength. 3. Scarcely with that of hardiness: still less with those of quantity and quality of knowledge, strength of intellectual powers, firmness or steadiness of mind; except in as far as a man’s condition, in respect of those circumstances, may be indicated by the secondary circumstances of sex, age, or rank: hardly with that of bent of inclination, except in as far as that latent circumstance is indicated by the more manifest one of habitual occupations: hardly with that of a man’s moral sensibility or biases, except in as far as they may be indicated by his sex, age, rank, and education: not at all with his religious sensibility and religious biases, except in as far as they may be indicated by the religious profession he belongs to: not at all with the quantity or quality of his sympathetic or antipathetic sensibilities, except in as far as they may be presumed from his sex, age, rank, education, lineage, or religious profession. It is the case, however, with his habitual occupations, with his pecuniary circumstances, and with his connexions in the way of sympathy. Of others, again, either the existence cannot be ascertained, or the degree cannot be measured. These, therefore, cannot be taken into account, either by the legislator or the executive magistrate. Accordingly, they would have no claim to be taken notice of, were it not for those secondary circumstances by which they are indicated, and whose influence could not well be understood without them. What these are, has been already mentioned.

XLV.

It has already been observed, that different articles in this list of circumstances apply to different exciting causes: the circumstance of bodily strength, for instance, has scarcely any influence of itself (whatever it may have in a roundabout way, and by accident) on the effect of an incident which should increase or diminish the quantum of a man’s property. It remains to be considered, what the exciting causes are with which the legislator has to do. These may, by some accident or other, be any whatsoever: but those with which he has principally to do, are those of the painful or afflictive kind. With pleasurable ones he has little to do, except now and then by accident: the reasons of which may be easily enough perceived, at the same time that it would take up too much room to unfold them here. The exciting causes with which he has principally to do, are, on the one hand, the mischievous acts, which it is his business to prevent; on the other hand, the punishments, by the terror of which it is his endeavour to prevent them. Now of these two sets of exciting causes, the latter only is of his production: being produced partly by his own special appointment, partly in conformity to his general appointment, by the special appointment of the judge. For the legislator, therefore, as well as for the judge, it is necessary (if they would know what it is they are doing when they are appointing punishment) to have an eye to all these circumstances. For the legislator, lest, meaning to apply a certain quantity of punishment to all persons who shall put themselves in a given predicament, he should unawares apply to some of those persons much more or much less than he himself intended: for the judge, lest, in applying to a particular person a particular measure of punishment, he should apply much more or much less than was intended, perhaps by himself, and at any rate by the legislator. They ought each of them, therefore, to have before him, on the one hand, a list of the several circumstances by which sensibility may be influenced; on the other hand, a list of the several species and degrees of punishment which they purpose to make use of: and then, by making a comparison between the two, to form a detailed estimate of the influence of each of the circumstances in question, upon the effect of each species and degree of punishment.

There are two plans or orders of distribution, either of which might be pursued in the drawing up this estimate. The one is to make the name of the circumstance take the lead, and under it to represent the different influences it exerts over the effects of the several modes of punishment: the other is to make the name of the punishment take the lead, and under it to represent the different influences which are exerted over the effects of it by the several circumstances above mentioned. Now of these two sorts of objects, the punishment is that to which the intention of the legislator is directed in the first instance. This is of his own creation, and will be whatsoever he thinks fit to make it: the influencing circumstance exists independently of him, and is what it is whether he will or no. What he has occasion to do is to establish a certain species and degree of punishment: and it is only with reference to that punishment that he has occasion to make any inquiry concerning any of the circumstances here in question. The latter of the two plans therefore is that which appears by far the most useful and commodious. But neither upon the one or the other plan can any such estimate be delivered here.*

* This is far from being a visionary proposal, not reducible to practice. I speak from experience, having actually drawn up such an estimate, though upon the least commodious of the two plans, and before the several circumstances in question had been reduced to the precise number and order in which they are here enumerated. This is a part of the matter destined for another work. See ch. xv. [Cases unmeet] par. 2. Note. There are some of these circumstances that bestow particular denominations on the persons they relate to: thus, from the circumstance of bodily imperfections, persons are denominated deaf, dumb, blind, and so forth: from the circumstance of insanity, idiots, and maniacs: from the circumstance of age, infants: for all which classes of persons particular provision is made in the Code. See B. I. tit. [Exemptions.] Persons thus distinguished will form so many articles in the catalogus personarum privilegiatarum. See Appendix, tit. [Composition.]

XLVI.

Of the several circumstances contained in this catalogue, it may be of use to give some sort of analytic view; in order that it may be the more easily discovered if any which ought to have been inserted are omitted; and that, with regard to those which are inserted, it may be seen how they differ and agree.

In the first place, they may be distinguished into primary and secondary: those may be termed primary, which operate immediately of themselves: those secondary, which operate not but by the medium of the former. To this latter head belong the circumstances of sex, age, station in life, education, climate, lineage, government, and religious profession: the rest are primary. These again are either connate or adventitious: those which are connate, are radical frame of body and radical frame of mind. Those which are adventitious, are either personal, or exterior. The personal, again, concern either a man’s dispositions, or his actions. Those which concern his dispositions, concern either his body or his mind. Those which concern his body are health, strength, hardiness, and bodily imperfection. Those which concern his mind, again, concern either his understanding or his affections. To the former head belong the circumstances of quantity and quality of knowledge, strength of understanding, and insanity. To the latter belong the circumstances of firmness of mind, steadiness, bent of inclination, moral sensibility, moral biases, religious sensibility, religious biases, sympathetic sensibility, sympathetic biases, antipathetic sensibility, and antipathetic biases. Those which regard his actions, are his habitual occupations. Those which are exterior to him, regard either the things or the persons which he is concerned with: under the former head come his pecuniary circumstances;* under the latter, his connexions in the way of sympathy and antipathy.

Uses of the Preceding Observations.

As it is not possible to calculate the movement of a vessel, without knowing the circumstances which influence its speed; such as the force of the winds, the resistance of the water, the shape of the vessel, the weight of its burden, &c.; in the same manner, one cannot work with certainty in matters of legislation, without considering all the circumstances which influence sensibility.

I shall limit myself here, to what concerns the penal code: it requires in all its parts a scrupulous attention to this diversity.

1. In estimating the evil of an offence. In effect, the same nominal offence is not the same real offence, when the sensibility of the individual injured is not the same. A certain action, for example, would be a serious insult to a woman, whilst it is indifferent to a man. A certain corporal injury, if done to a sick person, would endanger his life, but would be of no consequence to a person in good health. An imputation which would ruin the fortune or the honour of a certain individual, would do no injury to another individual.

2. In giving a suitable satisfaction to an injured person. The same nominal satisfaction is not the same real satisfaction, when the sensibility materially differs. A pecuniary satisfaction for an affront may be agreeable or offensive, according to the rank, the fortune, or the prejudices of a person. Am I insulted? A pardon publicly asked would be a sufficient satisfaction on the part of my superior or my equal, but not on that of my inferior.

3. In estimating the force and impression of punishment upon delinquents. The same nominal punishment is not the same real punishment, when the sensibility is essentially different. Banishment would be a very unequable punishment in the case of a young and an old man; of a bachelor and the father of a family; for a workman who has not the means of subsistence out of his own country, and a rich man who need only change the scene of his pleasures. Imprisonment would be an unequable punishment for a man and a woman; for a sick person and a person in health; for a rich man, whose family would not suffer by his absence; and for a man who lives by his labour, and who would leave his family in poverty.

4. In transplanting a law from one country to another. The same law verbally would not be the same law really, when the sensibility of the two people is essentially different. A certain law in Europe produces the happiness of families; transported into Asia, it would become the scourge of society: women in Europe are accustomed to enjoy their liberty, and even to govern the house: women in Asia are prepared, by their education, for the seclusion of the seraglio, and even for slavery. Marriage in Europe and the East is not a contract of the same kind; if it were sought to subject it to the same rules, it would evidently cause unhappiness to all the parties interested.

The same punishments for the same offences, is often said. This adage has an appearance of justice and impartiality, which seduces superficial minds. To give it a reasonable meaning, it would be necessary to determine beforehand what is meant by the same punishments and the same offences. An inflexible law — a law which should regard neither sex, nor age, nor fortune, nor rank, nor education, nor the moral nor religious prejudices of individuals — would be doubly vicious, as inefficacious, or as tyrannical. Too severe for some, too lenient for others; always sinning by excess or defect; under an appearance of equality, it would hide the most monstrous inequality.

When a man of large fortune, and a man of moderate fortune, are condemned to the same fine, is the punishment the same? do they suffer the same evil? The manifest inequality of such treatment, is it not rendered more hateful by the derisory equality? Is not the design of the law missed, since the one may lose the means of his existence, whilst the other escapes with triumph? When a strong young man and a feeble old man are both condemned to be loaded with fetters for the same number of years, a sophist skilful in darkening the most evident truths, might contend for the equality of the punishment; but the unsophisticated populace, faithful to nature and just feeling, would murmur internally at beholding such injustice; and their indignation changing its object, would pass from the criminal to the judge, and from the judge to the legislature.

I am aware that specious objections may be urged. It may be asked, “How is it possible to take an account of all the circumstances which influence sensibility? How can internal and hidden dispositions be appreciated; such as strength of mind, degree of knowledge, inclinations, sympathies? How can the different qualities of all beings be measured? A father of a family may consult these internal dispositions, these diversities of character, in the treatment of his children; but a public instructor, charged with a limited number of pupils, could not. The legislator, who has in view a whole people, is by much stronger reason obliged to confine himself to general laws, and must fear lest he should render them complicated by descending to particular cases. If he leave to the judge the right of varying the application of the laws according to this infinite diversity of circumstances and characters, there will be no limits to the arbitrariness of his judgments: under pretence of seizing the true spirit of the legislator, the judges will make the laws the instruments of their whims and fancies. Sed aliter leges aliter philosophi tollunt astutias: leges quatenus manu tenere possunt philosophi, quatenus ratione et intelligentia —(De. Off. 3. 17.)”

It is not necessary to answer, but to explain: all such observations exhibit a difficulty, rather than an objection. The principle is not denied: it is only its application which is deemed impossible.

1. It is allowed that the greater part of these differences of sensibility are inappreciable: that it is impossible to prove their existence in individual cases, or to measure their force or degree; but fortunately these interior and hidden dispositions, if it may be so said, have external and manifest indications. These are the circumstances which have been called secondary: sex, age, rank, race, climate, government, education, religious profession; circumstances evident and palpable, which represent the interior dispositions. Here then the legislator is relieved from a part of his difficulty. He does not stop at metaphysical and moral qualities: he lays hold only of ostensible circumstances. He directs, for example, the modification of a certain punishment; not on account of the greater sensibility of the individual, or on account of his steadiness, strength of mind, or knowledge, but on account of his sex or age.

It is true, that presumption drawn from these circumstances are liable to be defective. It may happen that a youth of fifteen years old is more enlightened than a man of thirty: it may happen that a certain woman has more courage and less modesty than a certain man; but these presumptions will have in general all the justice necessary to prevent the laws being tyrannical; and, above all, to conciliate to the legislator the suffrages of public opinion.

2. These secondary circumstances are not only easily seized: they are few in number; they form general classes. Grounds of justification, of extenuation or of aggravation, with regard to the different offences, may be drawn from them. Thus complexity disappears, and simplicity is easily restored throughout.

3. There is nothing arbitrary. It is not the judge, it is the law itself, which modifies a certain punishment, according to the sex, the age, the religious profession, &c. As to other circumstances, which must absolutely be left to the examination of the judge, as the greater or less derangement in the mind, the greater or less in point of strength, the greater or less in point of fortune; the legislator who can pronounce nothing as to individual cases, directs the tribunals by general rules, and leaves them a certain latitude, that they may proportion their judgment to the particular nature of the circumstance.

What is recommended here is not an Utopian idea. There never was a legislator so barbarous or so stupid as to neglect all the circumstances influencing sensibility. They have had a regard to them more or less confused, which has guided them in the establishment of civil and political rights: they have shown more or less regard to circumstances in the institution of punishments: hence arises the admitted differences with regard to women, children, freemen, slaves, soldiers, ecclesiastics, &c.

Draco appears alone to have rejected all these considerations, at least in penal matters. All offences appeared to him equal, because they were all violations of the law. He condemned all offenders to death, without distinction. He confounded, he overturned all the principles of human sensibility. His horrid work did not long endure; and it is doubtful if his laws were ever literally obeyed.

Without falling into this extreme, how many faults have not been committed of the same kind! There would be no end of citing examples. There have been sovereigns who have chosen to lose whole provinces, and to shed floods of human blood, rather than to respect a particular sensibility of a people, or tolerate a custom indifferent in itself, or respect an ancient prejudice, a certain dress, a certain form of prayers.

A prince of our own times, active, enlightened, animated by the desire of glory and the happiness of his subjects, undertook to reform every thing in his states; and caused them all to revolt against him.* At the approach of death, recollecting all the vexations of his life, he desired that there should be engraven upon his tomb, that he had been unhappy in all his enterprises. He ought also to have had engraved there, for the instruction of posterity, that he had always been ignorant of the art of managing the desires, the inclinations, and the sensibilities of men.

When legislators shall study the human heart; when they shall show their attention to the different degrees and different kinds of sensibility, by limitations and modifications; these condescensions on the part of power will charm like paternal endearments. Conduct of this kind is the foundation of the approbation, which is sometimes bestowed upon the laws, under the vague terms of humanity, equity, suitableness, moderation, and wisdom.

In this respect, there is a striking analogy between the art of the legislator and that of the physician. The catalogue of circumstances influencing sensibility is necessary in both their sciences. What distinguishes the physician from the empiric is the attention which the first pays to every thing which constitutes the particular state of the individual. But it is especially in diseases which affect the mind; in those which concern morality; when hurtful habits are to be surmounted, and new ones formed, that it is necessary to study every thing which affects the dispositions of the invalid; since a single error in this respect may change all the results, and increase the evil, instead of remedying it.

* As to a man’s pecuniary circumstances, the causes on which those circumstances depend, do not come all of them under the same class. The absolute quantum of a man’s property does indeed come under the same class with his pecuniary circumstances in general: so does the profit he makes from the occupation which furnishes him with the means of livelihood. But the occupation itself concerns his own person, and comes under the same head as his habitual amusements: as likewise his habits of expense: his connexions in the ways of profit and of burthen, under the same head as his connexions in the way of sympathy: and the circumstances of his present demand for money, and strength of expectation, come under the head of those circumstances relative to his person which regard his affections.

The following paragraphs are inserted here from Dumont’s “Traites de Legislation,” in order to complete the exhibition of Bentham’s principles as published in his lifetime. — Ed.

* Joseph II.

Chapter VII.

Of Human Actions in General.

I.

The business of government is to promote the happiness of the society, by punishing and rewarding. That part of its business which consists in punishing, is more particularly the subject of penal law. In proportion as an act tends to disturb that happiness, in proportion as the tendency of it is pernicious, will be the demand it creates for punishment. What happiness consists of, we have already seen: enjoyment of pleasures, security from pains.

II.

The general tendency of an act is more or less pernicious, according to the sum total of its consequences, that is, according to the difference between the sum of such as are good, and the sum of such as are evil.

III.

It is to be observed, that here, as well as henceforward, wherever consequences are spoken of, such only are meant as are material. Of the consequences of any act, the multitude and variety must needs be infinite: but such of them only as are material are worth regarding. Now among the consequences of an act, be they what they may, such only, by one who views them in the capacity of a legislator, can be said to be material, as either consist of pain or pleasure, or have an influence in the production of pain or pleasure.

Or of importance.

In certain cases the consequences of an act may be material by serving as evidences indicating the existence of some other material fact, which is even antecedent to the act of which they are the consequences: but even here, they are material only because, in virtue of such their evidentiary quality, they have an influence, at a subsequent period of time, in the production of pain and pleasure: for example, by serving as grounds for conviction, and thence for punishment. See tit. [Simple Falsehoods], verbo [Material.]

IV.

It is also to be observed, that into the account of the consequences of the act, are to be taken not such only as might have ensued, were intention out of the question, but such also as depend upon the connexion there may be between these first-mentioned consequences and the intention. The connexion there is between the intention and certain consequences is, as we shall see hereafter, a means of producing other consequences. In this lies the difference between rational agency and irrational.

See P. I. tit. [Exemptions], and tit. [Extenuations.]

V.

Now the intention, with regard to the consequences of an act, will depend upon two things: 1. The state of the will or intention, with respect to the act itself. And, 2. The state of the understanding, or perceptive faculties, with regard to the circumstances which it is, or may appear to be, accompanied with. Now with respect to these circumstances, the perceptive faculty is susceptible of three states: consciousness, unconsciousness, and false consciousness. Consciousness, when the party believes precisely those circumstances, and no others, to subsist, which really do subsist: unconsciousness, when he fails of perceiving certain circumstances to subsist, which, however, do subsist: false consciousness, when he believes or imagines certain circumstances to subsist, which in truth do not subsist.

VI.

In every transaction, therefore, which is examined with a view to punishment, there are four articles to be considered: 1. The act itself, which is done. 2. The circumstances in which it is done. 3. The intentionality that may have accompanied it. 4. The consciousness, unconsciousness, or false consciousness, that may have accompanied it.

What regards the act and the circumstances will be the subject of the present chapter: what regards intention and consciousness, that of the two succeeding.

VII.

There are also two other articles on which the general tendency of an act depends: and on that, as well as on other accounts, the demand which it creates for punishment. These are, 1. The particular motive or motives which gave birth to it. 2. The general disposition which it indicates. These articles will be the subject of two other chapters.

VIII.

Acts may be distinguished in several ways, for several purposes.

They may be distinguished, in the first place, into positive and negative. By positive are meant such as consist in motion or exertion: by negative, such as consist in keeping at rest; that is, in forbearing to move or exert one’s self in such and such circumstances. Thus, to strike is a positive act: not to strike on a certain occasion, a negative one. Positive acts are styled also acts of commission; negative, acts of omission or forbearance.*

* The distinction between positive and negative acts runs through the whole system of offences, and sometimes makes a material difference with regard to their consequences. To reconcile us the better to the extensive, and, as it may appear on some occasions, the inconsistent signification here given to the word act, it may be considered, 1. That in many cases, where no exterior or overt act is exercised, the state which the mind is in at the time when the supposed act is said to happen, is as truly and directly the result of the will, as any exterior act, how plain and conspicuous soever. The not revealing a conspiracy, for instance, may be as perfectly the act of the will, as the joining in it. In the next place, that even though the mind should never have had the incident in question in contemplation (insomuch that the event of its not happening should not have been so much as obliquely intentional), still the state the person’s mind was in at the time when, if he had so willed, the incident might have happened, is in many cases productive of as material consequences; and not only as likely, but as fit to call for the interposition of other agents, as the opposite one. Thus, when a tax is imposed, your not paying it is an act which at any rate must be punished in a certain manner, whether you happened to think of paying it or not.

IX.

Such acts, again, as are negative, may either be absolutely so, or relatively: absolutely, when they import the negation of all positive agency whatsoever; for instance, not to strike at all: relatively, when they import the negation of such or such a particular mode of agency; for instance, not to strike such a person or such a thing, or in such a direction.

X.

It is to be observed, that the nature of the act, whether positive or negative, is not to be determined immediately by the form of the discourse made use of to express it. An act which is positive in its nature may be characterized by a negative expression: thus, not to be at rest, is as much as to say to move. So also an act, which is negative in its nature, may be characterized by a positive expression: thus, to forbear or omit to bring food to a person in certain circumstances, is signified by the single and positive term to starve.

XI.

In the second place, acts may be distinguished into external and internal. By external, are meant corporal acts; acts of the body: by internal, mental acts; acts of the mind. Thus, to strike is an external or exterior act: to intend to strike, an internal or interior one.

[Exterior.] An exterior act is also called by lawyers overt

XII.

Acts of discourse are a sort of mixture of the two: external acts, which are no ways material, nor attended with any consequences, any farther than as they serve to express the existence of internal ones. To speak to another to strike, to write to him to strike, to make signs to him to strike, are all so many acts of discourse.

XIII.

Third, Acts that are external may be distinguished into transitive and intransitive. Acts may be called transitive, when the motion is communicated from the person of the agent to some foreign body: that is, to such a foreign body on which the effects of it are considered as being material; as where a man runs against you, or throws water in your face. Acts may be called intransitive, when the motion is communicated to no other body, on which the effects of it are regarded as material, than some part of the same person in whom it originated; as where a man runs, or washes himself.

The distinction is well known to the later grammarians: it is with them indeed that it took its rise; though by them it has been applied rather to the names than to the things themselves. To verbs, signifying transitive acts, as here described, they have given the name of transitive verbs: those significative of intransitive acts they have termed intransitive. These last are still more frequently called neuter; that is, neither active nor passive. The appellation seems improper: since, instead of their being neither, they are both in one.

To the class of acts that are here termed intransitive, belong those which constitute the third class in the system of offences. See ch. [Division], and B. I. tit. [Self-regarding Offences.]

XIV.

An act of the transitive kind may be said to be in its commencement, or in the first stage of its progress, while the motion is confined to the person of the agent, and has not yet been communicated to any foreign body, on which the effects of it can be material. It may be said to be in its termination, or to be in the last stage of its progress, as soon as the motion or impulse has been communicated to some such foreign body. It may be said to be in the middle or intermediate stage or stages of its progress, while the motion, having passed from the person of the agent, has not yet been communicated to any such foreign body. Thus, as soon as a man has lifted up his hand to strike, the act he performs in striking you is in its commencement: as soon as his hand has reached you, it is in its termination. If the act be the motion of a body which is separated from the person of the agent before it reaches the object, it may be said, during that interval, to be in its intermediate progress,* or in gradu mediativo: as in the case where a man throws a stone or fires a bullet at you.

* Or in its migration, or in transitu.

XV.

An act of the intransitive kind may be said to be in its commencement, when the motion or impulse is as yet confined to the member or organ in which it originated; and has not yet been communicated to any member or organ that is distinguishable from the former. It may be said to be in its termination, as soon as it has been applied to any other part of the same person. Thus, where a man poisons himself: while he is lifting up the poison to his mouth, the act is in its commencement; as soon as it has reached his lips, it is in its termination.

These distinctions will be referred to in the next chapter: ch. viii. [Intentionality]: and applied to practice in B. I. tit. [Extenuations.]

XVI.

In the third place, acts may be distinguished into transient and continued. Thus, to strike is a transient act, to lean, a continued one. To buy, a transient act: to keep in one’s possession, a continued one.

XVII.

In strictness of speech there is a difference between a continued act and a repetition of acts. It is a repetition of acts, when there are intervals filled up by acts of different natures: a continued act, when there are no such intervals. Thus, to lean, is one continued act: to keep striking, a repetition of acts.

XVIII.

There is a difference, again, between a repetition of acts, and a habit or practice. The term repetition of acts may be employed, let the acts in question be separated by ever such short intervals, and let the sum total of them occupy ever so short a space of time. The term habit is not employed but when the acts in question are supposed to be separated by long-continued intervals, and the sum total of them to occupy a considerable space of time. It is not (for instance) the drinking ever so many times, nor ever so much at a time, in the course of the same sitting, that will constitute a habit of drunkenness: it is necessary that such sittings themselves be frequently repeated. Every habit is a repetition of acts; or, to speak more strictly, when a man has frequently repeated such and such acts after considerable intervals, he is said to have persevered in or contracted a habit: but every repetition of acts is not a habit.

[Habit.] A habit, it should seem, can hardly in strictness be termed an aggregate of acts: acts being a sort of real archetypal entities, and habits a kind of fictitious entities or imaginary beings, supposed to be constituted by, or to result as it were out of, the former.

XIX.

Fourth, acts may be distinguished into indivisible and divisible. Indivisible acts are merely imaginary, they may be easily conceived, but can never be known to be exemplified. Such as are divisible may be so, with regard either to matter or to motion. An act indivisible with regard to matter, is the motion or rest of one single atom of matter. An act indivisible, with regard to motion, is the motion of any body, from one single atom of space to the next to it.

Fifth, acts may be distinguished into simple and complex: simple, such as the act of striking, the act of leaning, or the act of drinking, above instanced: complex, consisting each of a multitude of simple acts, which, though numerous and heterogeneous, derive a sort of unity from the relation they bear to some common design or end; such as the act of giving a dinner, the act of maintaining a child, the act of exhibiting a triumph, the act of bearing arms, the act of holding a court, and so forth.

XX.

It has been every now and then made a question, what it is in such a case that constitutes one act: where one act has ended, and another act has begun: whether what has happened has been one act or many.* These questions, it is now evident, may frequently be answered, with equal propriety, in opposite ways: and if there be any occasions on which they can be answered only in one way, the answer will depend upon the nature of the occasion, and the purpose for which the question is proposed. A man is wounded in two fingers at one stroke — Is it one wound or several? A man is beaten at 12 o’clock, and again at 8 minutes after 12 — Is it one beating or several? You beat one man, and instantly in the same breath you beat another — Is this one beating or several? In any of these cases it may be one, perhaps, as to some purposes, and several as to others. These examples are given, that men may be aware of the ambiguity of language: and neither harass themselves with unsolvable doubts, nor one another with interminable disputes.

* Distinctions like these come frequently in question in the course of Procedure.

XXI.

So much with regard to acts considered in themselves: we come now to speak of the circumstances with which they may have been accompanied. These must necessarily be taken into the account before any thing can be determined relative to the consequences. What the consequences of an act may be upon the whole can never otherwise be ascertained: it can never be known whether it is beneficial, or indifferent, or mischievous. In some circumstances, even to kill a man may be a beneficial act: in others, to set food before him may be a pernicious one.

XXII.

Now the circumstances of an act, are, what? Any objects whatsoever. Take any act whatsoever, there is nothing in the nature of things that excludes any imaginable object from being a circumstance to it. Any given object may be a circumstance to any other.

Or entities. See B. II. tit. [Evidence], § [Facts.]

The etymology of the word circumstance is perfectly characteristic of its import: circum stantia, things standing round: objects standing round a given object. I forget what mathematician it was that defined God to be a circle, of which the centre is every where, but the circumference no where. In like manner, the field of circumstances belonging to any act may be defined a circle, of which the circumference is nowhere, but of which the act in question is the centre. Now then, as any act may, for the purpose of discourse, be considered as a centre, any other act or object whatsoever may be considered as of the number of those that are standing round it.

XXIII.

We have already had occasion to make mention for a moment of the consequences of an act: these were distinguished into material and immaterial. In like manner may the circumstances of it be distinguished. Now materiality is a relative term: applied to the consequences of an act, it bore relation to pain and pleasure: applied to the circumstances, it bears relation to the consequences. A circumstance may be said to be material, when it bears a visible relation in point of causality to the consequences: immaterial, when it bears no such visible relation.

XXIV.

The consequences of an act are events. A circumstance may be related to an event in point of causality in any one of four ways: 1. In the way of causation or production. 2. In the way of derivation. 3. In the way of collateral connexion. 4. In the way of conjunct influence. It may be said to be related to the event in the way of causation, when it is of the number of those that contribute to the production of such event: in the way of derivation, when it is of the number of the events to the production of which that in question has been contributory: in the way of collateral connexion, where the circumstance in question, and the event in question, without being either of them instrumental in the production of the other, are related, each of them, to some common object, which has been concerned in the production of them both: in the way of conjunct influence, when, whether related in any other way or not, they have both of them concurred in the production of some common consequence.

See B. II. tit. [Evidence], § [Facts.]

XXV.

An example may be of use. In the year 1628, Villiers, Duke of Buckingham, favourite and minister of Charles I, of England, received a wound and died. The man who gave it him was one Felton, who, exasperated at the mal-administration of which that minister was accused, went down from London to Portsmouth, where Buckingham happened then to be, made his way into his anti-chamber, and finding him busily engaged in conversation with a number of people round him, got close to him, drew a knife, and stabbed him. In the effort, the assassin’s hat fell off, which was found soon after, and, upon searching him, the bloody knife. In the crown of the hat were found scraps of paper, with sentences expressive of the purpose he was come upon. Here then, suppose the event in question is the wound received by Buckingham: Felton’s drawing out his knife, his making his way into the chamber, his going down to Portsmouth, his conceiving an indignation at the idea of Buckingham’s administration, that administration itself, Charles’s appointing such a minister, and so on, higher and higher without end, are so many circumstances, related to the event of Buckingham’s receiving the wound, in the way of causation or production: the bloodiness of the knife, a circumstance related to the same event in the way of derivation: the finding of the hat upon the ground, the finding the sentences in the hat, and the writing them, so many circumstances related to it in the way of collateral connexion: and the situation and conversations of the people about Buckingham, were circumstances related to the circumstances of Felton’s making his way into the room, going down to Portsmouth, and so forth, in the way of conjunct influence; inasmuch as they contributed in common to the event of Buckingham’s receiving the wound, by preventing him from putting himself upon his guard upon the first appearance of the intruder.*

* The division may be farther illustrated and confirmed by the more simple and particular case of animal generation. To production corresponds paternity: to derivation, filiation: to collateral connexion, collateral consanguinity: to conjunct influence, marriage and copulation.

If necessary, it might be again illustrated by the material image of a chain, such as that which, according to the ingenious fiction of the ancients, is attached to the throne of Jupiter. A section of this chain should then be exhibited by way of specimen, in the manner of the diagram of a pedigree. Such a figure I should accordingly have exhibited, had it not been for the apprehension that an exhibition of this sort, while it made the subject a small matter clearer to one man out of a hundred, might, like the mathematical formularies we see sometimes employed for the like purpose, make it more obscure and formidable for the other ninety-nine.

XXVI.

These several relations do not all of them attach upon an event with equal certainty. In the first place, it is plain, indeed, that every event must have some circumstance or other, and in truth, an indefinite multitude of circumstances, related to it in the way of production: it must of course have a still greater multitude of circumstances related to it in the way of collateral connexion. But it does not appear necessary that every event should have circumstances related to it in the way of derivation: nor therefore that it should have any related to it in the way of conjunct influence. But of the circumstances of all kinds which actually do attach upon an event, it is only a very small number that can be discovered by the utmost exertion of the human faculties: it is a still smaller number that ever actually do attract our notice: when occasion happens, more or fewer of them will be discovered by a man in proportion to the strength, partly of his intellectual powers, partly of his inclination. It appears therefore that the multitude and description of such of the circumstances belonging to an act, as may appear to be material, will be determined by two considerations. 1. By the nature of things themselves. 2. By the strength or weakness of the faculties of those who happen to consider them.

The more remote a connexion of this sort is, of course the more obscure. It will often happen that a connexion, the idea of which would at first sight appear extravagant and absurd, shall be rendered highly probable, and indeed indisputable, merely by the suggestion of a few intermediate circumstances.

At Rome, 390 years before the Christian æra, a goose sets up a cackling: two thousand years afterwards a king of France is murdered. To consider these two events, and nothing more, what can appear more extravagant than the notion that the former of them should have had any influence on the production of the latter? Fill up the gap, bring to mind a few intermediate circumstances, and nothing can appear more probable. It was the cackling of a parcel of geese, at the time the Gauls had surprised the Capitol, that saved the Roman commonwealth: had it not been for the ascendancy that commonwealth acquired afterwards over most of the nations of Europe, amongst others over France, the Christian religion, humanly speaking, could not have established itself in the manner it did in that country. Grant then, that such a man as Henry IV. would have existed, no man, however, would have had those motives by which Ravaillac, misled by a mischievous notion concerning the dictates of that religion, was prompted to assassinate him.

XXVII.

Thus much it seemed necessary to premise in general, concerning acts and their circumstances, previously to the consideration of the particular sorts of acts with their particular circumstances, with which we shall have to do in the body of the work. An act of some sort or other is necessarily included in the notion of every offence. Together with this act, under the notion of the same offence, are included certain circumstances: which circumstances enter into the essence of the offence, contribute by their conjunct influence to the production of its consequences, and in conjunction with the act are brought into view by the name by which it stands distinguished. These we shall have occasion to distinguish hereafter by the name of criminative circumstances. Other circumstances again entering into combination with the act and the former set of circumstances, are productive of still farther consequences. These additional consequences if they are of the beneficial kind bestow, according to the value they bear in that capacity, upon the circumstances to which they owe their birth, the appellation of exculpative* or extenuative circumstances: if of the mischievous kind, they bestow on them the appellation of aggravative circumstances. Of all these different sets of circumstances, the criminative are connected with the consequences of the original offence, in the way of production; with the act, and with one another, in the way of conjunct influence: the consequences of the original offence with them, and with the act respectively, in the way of derivation: the consequences of the modified offence, with the criminative, exculpative, and extenuative circumstances respectively, in the way also of derivation: these different sets of circumstances, with the consequences of the modified act or offence, in the way of production: and with one another (in respect of the consequences of the modified act or offence) in the way of conjunct influence. Lastly, whatever circumstances can be seen to be connected with the consequences of the offence, whether directly in the way of derivation, or obliquely in the way of collateral affinity (to wit, in virtue of its being connected, in the way of derivation, with some of the circumstances with which they stand connected in the same manner) bear a material relation to the offence in the way of evidence, they may accordingly be styled evidentiary circumstances, and may become of use, by being held forth upon occasion as so many proofs, indications, or evidences of its having been committed.§

See B. I. tit. [Crim. Circumstances.]

* See B. I. tit. [Justifications.]

See B. I. tit. [Extenuations.]

See B. I. tit. [Aggravations.]

See B. I. tit. [Accessory Offences], and B. II. tit. [Evidence.]

§ It is evident that this analysis is equally applicable to incidents of a purely physical nature, as to those in which moral agency is concerned. If therefore it be just and useful here, it might be found not impossible, perhaps, to find some use for it in natural philosophy.

Chapter VIII.

Of Intentionality.

I.

So much with regard to the two first of the articles upon which the evil tendency of an action may depend: viz. the act itself, and the general assemblage of the circumstances with which it may have been accompanied. We come now to consider the ways in which the particular circumstance of intention may be concerned in it.

II.

First, then, the intention or will may regard either of two objects: 1. The act itself: or, 2. Its consequences. Of these objects, that which the intention regards may be styled intentional. If it regards the act, then the act may be said to be intentional. if the consequences, so also then may the consequences. If it regards both the act and the consequences, the whole action may be said to be intentional. Whichever of those articles is not the object of the intention, may of course be said to be unintentional.

On this occasion the words voluntary and involuntary are commonly employed. These, however, I purposely abstain from, on account of the extreme ambiguity of their signification. By a voluntary act is meant, sometimes, any act in the performance of which the will has had any concern at all; in this sense it is synonymous to intentional: sometimes such acts only, in the production of which the will has been determined by motives not of a painful nature; in this sense it is synonymous to unconstrained, or uncoerced: sometimes such acts only, in the production of which the will has been determined by motives, which, whether of the pleasurable or painful kind, occurred to a man himself, without being suggested by any body else; in this sense it is synonymous to spontaneous. The sense of the word involuntary does not correspond completely to that of the word voluntary. Involuntary is used in opposition to intentional, and to unconstrained; but not to spontaneous. It might be of use to confine the signification of the words voluntary and involuntary to one single and very narrow case, which will be mentioned in the next note.

III.

The act may very easily be intentional without the consequences; and often is so. Thus, you may intend to touch a man, without intending to hurt him: and yet, as the consequences turn out, you may chance to hurt him.

IV.

The consequences of an act may also be intentional, without the act’s being intentional throughout; that is, without its being intentional in every stage of it: but this is not so frequent a case as the former. You intend to hurt a man, suppose, by running against him, and pushing him down; and you run towards him accordingly: but a second man coming in on a sudden between you and the first man, before you can stop yourself, you run against the second man, and by him push down the first.

V.

But the consequences of an act cannot be intentional, without the act’s being itself intentional in at least the first stage. If the act be not intentional in the first stage, it is no act of your’s: there is accordingly no intention on your part to produce the consequences: that is to say, the individual consequences. All there can have been on your part is a distant intention to produce other consequences, of the same nature, by some act of your’s, at a future time: or else, without any intention, a bare wish to see such event take place. The second man, suppose, runs of his own accord against the first, and pushes him down. You had intentions of doing a thing of the same nature: viz. To run against him, and push him down yourself; but you had done nothing in pursuance of those intentions: the individual consequences therefore of the act, which the second man performed in pushing down the first, cannot be said to have been on your part intentional.*

* To render the analysis here given of the possible states of the mind in point of intentionality absolutely complete, it must be pushed to such a farther degree of minuteness, as to some eyes will be apt to appear trifling. On this account it seemed advisable to discard what follows, from the text to a place where any one who thinks proper may pass by it. An act of the body, when of the positive kind, is a motion: now in motion there are always three articles to be considered: 1. The quantity of matter that moves: 2. The direction in which it moves: and, 3. The velocity with which it moves. Correspondent to these three arictles, are so many modes of intentionality, with regard to an act, considered as being only in its first stage. To be completely unintentional, it must be unintentional with respect to every one of these three particulars. This is the case with those acts which alone are properly termed involuntary: acts, in the performance of which the will has no sort of share; such as the contraction of the heart and arteries.

Upon this principle, acts that are unintentional in their first stage, may be distinguished into such as are completely unintentional, and such as are incompletely unintentional: and these again may be unintentional, either in point of quantity of matter alone, in point of direction alone, in point of velocity alone, or in any two of these points together.

The example given further on may easily be extended to this part of the analysis, by any one who thinks it worth the while.

There seem to be occasions in which even these disquisitions, minute as they may appear, may not be without their use in practice. In the case of homicide, for example, and other corporal injuries, all the distinctions here specified may occur, and in the course of trial may, for some purpose or other, require to be brought to mind, and made the subject of discourse. What may contribute to render the mention of them pardonable, is the use that might possibly be made of them in natural philosophy. In the hands of an expert metaphysician, these, together with the foregoing chapter on human actions, and the section on facts in general, in title, Evidence of the Book of Procedure, might, perhaps, be made to contribute something towards an exhaustive analysis of the possible varieties of mechanical inventions.

VI.

Second. A consequence, when it is intentional, may either be directly so, or only obliquely. It may be said to be directly or lineally intentional, when the prospect of producing it constituted one of the links in the chain of causes by which the person was determined to do the act. It may be said to be obliquely or collaterally intentional, when, although the consequence was in contemplation, and appeared likely to ensue in case of the act’s being performed, yet the prospect of producing such consequence did not constitute a link in the aforesaid chain.

VII.

Third. An incident, which is directly intentional, may either be ultimately so, or only mediately. It may be said to be ultimately intentional, when it stands last of all exterior events in the aforesaid chain of motives; insomuch that the prospect of the production of such incident, could there be a certainty of its taking place, would be sufficient to determine the will, without the prospect of its producing any other. It may be said to be mediately intentional, and no more, when there is some other incident, the prospect of producing which forms a subsequent link in the same chain: insomuch that the prospect of producing the former would not have operated as a motive, but for the tendency which it seemed to have towards the production of the latter.

VIII.

Fourth. When an incident is directly intentional, it may either be exclusively so, or inexclusively. It may be said to be exclusively intentional, when no other but that very individual incident would have answered the purpose, insomuch that no other incident had any share in determining the will to the act in question. It may be said to have been inexclusively intentional, when there was some other incident, the prospect of which was acting upon the will at the same time.

Or concurrently.

IX.

Fifth. When an incident is inexclusively intentional, it may be either conjunctively so, disjunctively, or indiscriminately. It may be said to be conjunctively intentional with regard to such other incident, when the intention is to produce both: disjunctively, when the intention is to produce either the one or the other indifferently, but not both: indiscriminately, when the intention is indifferently to produce either the one or the other, or both, as it may happen.

X.

Sixth. When two incidents are disjunctively intentional, they may be so with or without preference. They may be said to be so with preference, when the intention is, that one of them in particular should happen rather than the other: without preference, when the intention is equally fulfilled, whichever of them happens.

There is a difference between the case where an incident is altogether unintentional, and that in which, it being disjunctively intentional with reference to another, the preference is in favour of that other. In the first case, it is not the intention of the party that the incident in question should happen at all: in the latter case, the intention is rather that the other should happen: but if that cannot be, then that this in question should happen, rather than that neither should, and that both, at any rate, should not happen.

All these are distinctions to be attended to in the use of the particle or: a particle of very ambiguous import, and of great importance in legislation. See Append. tit. [Composition.]

XI.

One example will make all this clear. William II. king of England, being out a staghunting, received from Sir Walter Tyrrel a wound, of which he died.* Let us take this case, and diversify it with a variety of suppositions, correspondent to the distinctions just laid down.

1. First, then, Tyrrel did not so much as entertain a thought of the king’s death; or, if he did, looked upon it as an event of which there was no danger. In either of these cases, the incident of his killing the king was altogether unintentional.

2. He saw a stag running that way, and he saw the king riding that way at the same time: what he aimed at was to kill the stag: he did not wish to kill the king: at the same time he saw, that if he shot, it was as likely he should kill the king as the stag: yet for all that, he shot, and killed the king accordingly. In this case, the incident of his killing the king was intentional, but obliquely so.

3. He killed the king on account of the hatred he bore him, and for no other reason than the pleasure of destroying him. In this case, the incident of the king’s death was not only directly but ultimately intentional.

4. He killed the king, intending fully so to do; not for any hatred he bore him, but for the sake of plundering him when dead. In this case, the incident of the king’s death was directly intentional, but not ultimately: it was mediately intentional.

5. He intended neither more nor less than to kill the king. He had no other aim nor wish. In this case, it was exclusively as well as directly intentional: exclusively, to wit, with regard to every other material incident.

6. Sir Walter shot the king in the right leg, as he was plucking a thorn out of it with his left hand. His intention was, by shooting the arrow into his leg through his hand, to cripple him in both those limbs at the same time. In this case, the incident of the king’s being shot in the leg was intentional: and that conjunctively with another which did not happen; viz. his being shot in the hand.

7. The intention of Tyrrel was to shoot the king either in the hand or in the leg, but not in both; and rather in the hand than in the leg. In this case, the intention of shooting in the hand was disjunctively concurrent, with regard to the other incident, and that with preference.

8. His intention was to shoot the king either in the leg or the hand, whichever might happen, but not in both. In this case, the intention was inexclusive, but disjunctively so: yet that, however, without preference.

9. His intention was to shoot the king either in the leg or the hand, or in both, as it might happen. In this case, the intention was indiscriminately concurrent, with respect to the two incidents.

* Hume’s Hist.

XII.

It is to be observed, that an act may be unintentional in any stage or stages of it, though intentional in the preceding: and, on the other hand, it may be intentional in any stage or stages of it, and yet unintentional in the succeeding. But whether it be intentional or no in any preceding stage, is immaterial, with respect to the consequences, so it be unintentional in the last. The only point, with respect to which it is material, is the proof. The more stages the act is unintentional in, the more apparent it will commonly be, that it was unintentional with respect to the last. If a man, intending to strike you on the cheek, strikes you in the eye, and puts it out, it will probably be difficult for him to prove that it was not his intention to strike you in the eye. It will probably be easier, if his intention was really not to strike you, or even not to strike at all.

See ch. vii. [Actions], par. 14.

XIII.

It is frequent to hear men speak of a good intention, of a bad intention; of the goodness and badness of a man’s intention: a circumstance on which great stress is generally laid. It is indeed of no small importance, when properly understood: but the import of it is to the last degree ambiguous and obscure. Strictly speaking, nothing can be said to be good or bad, but either in itself; which is the case only with pain or pleasure: or on account of its effects; which is the case only with things that are the causes or preventives of pain and pleasure. But in a figurative and less proper way of speech, a thing may also be styled good or bad, in consideration of its cause. Now the effects of an intention to do such or such an act, are the same objects which we have been speaking of under the appellation of its consequences: and the causes of intention are called motives. A man’s intention, then, on any occasion may be styled good or bad, with reference either to the consequences of the act, or with reference to his motives. If it be deemed good or bad in any sense, it must be either because it is deemed to be productive of good or of bad consequences, or because it is deemed to originate from a good or from a bad motive. But the goodness or badness of the consequences depend upon the circumstances. Now the circumstances are no objects of the intention. A man intends the act; and by his intention produces the act: but as to the circumstances, he does not intend them: he does not, inasmuch as they are circumstances of it, produce them. If by accident there be a few which he has been instrumental in producing, it has been by former intentions, directed to former acts, productive of those circumstances as the consequences: at the time in question, he takes them as he finds them. Acts, with their consequences, are objects of the will as well as of the understanding: circumstances, as such, are objects of the understanding only. All he can do with these, as such, is to know or not to know them: in other words, to be conscious of them, or not conscious. To the title of Consciousness belongs what is to be said of the goodness or badness of a man’s intention, as resulting from the consequences of the act: and to the head of Motives, what is to be said of his intention, as resulting from the motive.

Chapter IX.

Of Consciousness.

I.

So far with regard to the ways in which the will or intention may be concerned in the production of any incident: we come now to consider the part which the understanding or perceptive faculty may have borne, with relation to such incident.

II.

A certain act has been done, and that intentionally: that act was attended with certain circumstances: upon these circumstances depended certain of its consequences; and amongst the rest, all those which were of a nature purely physical. Now then, take any one of these circumstances, it is plain, that a man, at the time of doing the act from whence such consequences ensued, may have been either conscious, with respect to this circumstance, or unconscious. In other words, he may either have been aware of the circumstance, or not aware: it may either have been present to his mind, or not present. In the first case, the act may be said to have been an advised act, with respect to that circumstance: in the other case, an unadvised one.

III.

There are two points, with regard to which an act may have been advised or unadvised: 1. The existence of the circumstance itself. 2. The materiality of it.*

* See ch. vii. [Actions], par. 3.

IV.

It is manifest, that with reference to the time of the act, such circumstance may have been either present, past, or future.

V.

An act which is unadvised, is either heedless, or not heedless. It is termed heedless, when the case is thought to be such, that a person of ordinary prudence, if prompted by an ordinary share of benevolence, would have been likely to have bestowed such and so much attention and reflection upon the material circumstances, as would have effectually disposed him to prevent the mischievous incident from taking place: not heedless, when the case is not thought to be such as above mentioned.

See ch. vi. [Sensibility], par. 12.

See B. I. tit. [Extenuations.]

VI.

Again. Whether a man did or did not suppose the existence or materiality of a given circumstance, it may be that he did suppose the existence and materiality of some circumstance, which either did not exist, or which, though existing, was not material. In such case the act may be said to be misadvised, with respect to such imagined circumstance: and it may be said, that there has been an erroneous supposition, or a mis-supposal in the case.

VII.

Now a circumstance, the existence of which is thus erroneously supposed, may be material either, 1. In the way of prevention: or, 2. In that of compensation. It may be said to be material in the way of prevention, when its effect or tendency, had it existed, would have been to prevent the obnoxious consequences: in the way of compensation, when that effect or tendency would have been to produce other consequences, the beneficialness of which would have out-weighed the mischievousness of the others.

VIII.

It is manifest, that, with reference to the time of the act, such imaginary circumstance may in either case have been supposed either to be present, past, or future.

IX.

To return to the example exhibited in the preceding chapter.

10. Tyrrel intended to shoot in the direction in which he shot: but he did not know that the king was riding so near that way. In this case, the act he performed in shooting, the act of shooting, was unadvised, with respect to the existence of the circumstance of the king’s being so near riding that way.

11. He knew that the king was riding that way: but at the distance at which the king was, he knew not of the probability there was that the arrow would reach him. In this case, the act was unadvised, with respect to the materiality of the circumstance.

12. Somebody had dipped the arrow in poison, without Tyrrel’s knowing of it. In this case, the act was unadvised, with respect to the existence of a past circumstance.

13. At the very instant that Tyrrel drew the bow, the king, being screened from his view by the foliage of some bushes, was riding furiously, in such manner as to meet the arrow in a direct line: which circumstance was also more than Tyrrel knew of. In this case, the act was unadvised, with respect to the existence of a present circumstance.

14. The king being at a distance from court, could get nobody to dress his wound till the next day; of which circumstance Tyrrel was not aware. In this case, the act was unadvised, with respect to what was then a future circumstance.

15. Tyrrel knew of the king’s being riding that way, of his being so near, and so forth; but being deceived by the foliage of the bushes, he thought he saw a bank between the spot from which he shot, and that to which the king was riding. In this case the act was misadvised, proceeding on the mis-supposal of a preventive circumstance.

16. Tyrrel knew that every thing was as above, nor was he deceived by the supposition of any preventive circumstance. But he believed the king to be an usurper: and supposed he was coming up to attack a person whom Tyrrel believed to be the rightful king, and who was riding by Tyrrel’s side. In this case, the act was also misadvised, but proceeded on the mis-supposal of a compensative circumstance.

X.

Let us observe the connexion there is between intentionality and consciousness. When the act itself is intentional, and with respect to the existence of all the circumstances advised, as also with respect to the materiality of those circumstances, in relation to a given consequence, and there is no mis-supposal with regard to any preventive circumstance, that consequence must also be intentional: in other words, advisedness, with respect to the circumstances, if clear from the mis-supposal of any preventive circumstance, extends the intentionality from the act to the consequences. Those consequences may be either directly intentional, or only obliquely so: but at any rate they cannot but be intentional.

XI.

To go on with the example. If Tyrrel intended to shoot in the direction in which the king was riding up, and knew that the king was coming to meet the arrow, and knew the probability there was of his being shot in that same part in which he was shot, or in another as dangerous, and with that same degree of force, and so forth, and was not misled by the erroneous supposition of a circumstance by which the shot would have been prevented from taking place, or any such other preventive circumstance, it is plain he could not but have intended the king’s death. Perhaps he did not positively wish it; but for all that, in a certain sense he intended it.

XII.

What heedlessness is in the case of an unadvised act, rashness is in the case of a misadvised one. A misadvised act, then, may be either rash or not rash. It may be termed rash, when the case is thought to be such, that a person of ordinary prudence, if prompted by an ordinary share of benevolence, would have employed such and so much attention and reflection to the imagined circumstance, as, by discovering to him the non-existence, improbability, or immateriality of it, would have effectually disposed him to prevent the mischievous incident from taking place.

XIII.

In ordinary discourse, when a man does an act of which the consequences prove mischievous, it is a common thing to speak of him as having acted with a good intention or with a bad intention; of his intention being a good one or a bad one. The epithets good and bad are all this while applied, we see, to the intention: but the application of them is most commonly governed by a supposition formed with regard to the nature of the motive. The act, though eventually it prove mischievous, is said to be done with a good intention, when it is supposed to issue from a motive which is looked upon as a good motive: with a bad intention, when it is supposed to be the result of a motive which is looked upon as a bad motive. But the nature of the consequences intended, and the nature of the motive which gave birth to the intention, are objects which, though intimately connected, are perfectly distinguishable. The intention might therefore with perfect propriety be styled a good one, whatever were the motive. It might be styled a good one, when not only the consequences of the act prove mischievous, but the motive which gave birth to it was what is called a bad one. To warrant the speaking of the intention as being a good one, it is sufficient if the consequences of the act, had they proved what to the agent they seemed likely to be, would have been of a beneficial nature. And in the same manner the intention may be bad, when not only the consequences of the act prove beneficial, but the motive which gave birth to it was a good one.

XIV.

Now, when a man has a mind to speak of your intention as being good or bad, with reference to the consequences, if he speaks of it at all he must use the word intention, for there is no other. But if a man means to speak of the motive from which your intention originated, as being a good or a bad one, he is certainly not obliged to use the word intention: it is at least as well to use the word motive. By the supposition he means the motive; and very likely he may not mean the intention. For what is true of the one is very often not true of the other. The motive may be good when the intention is bad: the intention may be good when the motive is bad: whether they are both good or both bad, or the one good and the other bad, makes, as we shall see hereafter, a very essential difference with regard to the consequences.* It is therefore much better, when motive is meant, never to say intention.

* See ch. xii. [Consequences.]

XV.

An example will make this clear. Out of malice a man prosecutes you for a crime of which he believes you to be guilty, but of which in fact you are not guilty. Here the consequences of his conduct are mischievous: for they are mischievous to you at any rate, in virtue of the shame and anxiety which you are made to suffer while the prosecution is depending: to which is to be added, in case of your being convicted, the evil of the punishment. To you therefore they are mischievous; nor is there any one to whom they are beneficial. The man’s motive was also what is called a bad one: for malice will be allowed by every body to be a bad motive. However, the consequences of his conduct, had they proved such as he believed them likely to be, would have been good: for in them would have been included the punishment of a criminal, which is a benefit to all who are exposed to suffer by a crime of the like nature. The intention, therefore, in this case, though not, in a common way of speaking, the motive, might be styled a good one. But of motives more particularly in the next chapter.

XVI.

In the same sense, the intention, whether it be positively good or no, so long as it is not bad, may be termed innocent. Accordingly, let the consequences have proved mischievous, and let the motive have been what it will, the intention may be termed innocent in either of two cases: 1. In the case of un-advisedness with respect to any of the circumstances on which the mischievousness of the consequences depended: 2. In the case of mis-advisedness with respect to any circumstance, which, had it been what it appeared to be, would have served either to prevent or to outweigh the mischief.

XVII.

A few words for the purpose of applying what has been said to the Roman law. Unintentionality, and innocence of intention, seem both to be included in the case of infortunium, where there is neither dolus nor culpa. Unadvisedness coupled with heedlessness, and mis-advisedness coupled with rashness, correspond to the culpa sine dolo. Direct intentionality corresponds to dolus. Oblique intentionality seems hardly to have been distinguished from direct: were it to occur, it would probably be deemed also to correspond to dolus. The division into culpa lata, levis, and levissima, is such as nothing certain can correspond to. What is it that it expresses? A distinction, not in the case itself, but only in the sentiments which any person (a judge, for instance) may find himself disposed to entertain with relation to it; supposing it already distinguished into three subordinate cases by other means.

The word dolus seems ill enough contrived: the word culpa as indifferently. Dolus, upon any other occasion, would be understood to imply deceit, concealment, clandestinity: but here it is extended to open force. Culpa, upon any other occasion, would be understood to extend to blame of every kind: it would therefore include dolus.

See B. I. tit. [Theft], verbo [amenable.]

Dolus, an virtus, quis in hoste requirat?

Virgil.

—δολῳ ηε ϰαι αμφαδον.

Homer.

I pretend not here to give any determinate explanation of a set of words, of which the great misfortune is, that the import of them is confused and indeterminate. I speak only by approximation. To attempt to determine the precise import that has been given them by a hundredth part of the authors that have used them, would be an endless task. Would any one talk intelligibly on this subject in Latin? let him throw out dolus altogether: let him keep culpa, for the purpose of expressing not the case itself, but the sentiment that is entertained concerning a case described by other means. For intentionality, let him coin a word boldly, and say intentionalitas: for unintentionality, non-intentionalitas. For unadvisedness, he has already the word inscitia; though the words imprudentia, inobservantia, were it not for the other senses they are used in, would do better: for unadvisedness coupled with heedlessness, let him say inscitia culpabilis: for unadvisedness without heedlessness, inscitia inculpabilis: for mis-advisedness coupled with rashness, error culpabilis, error temerarius, or error cum temeritate: for mis-advisedness without rashness, error inculpabilis, error non-temerarius, or error sine temeritate.

It is not unfrequent likewise to meet with the phrase, malo animo: a phrase still more indeterminate, if possible, than any of the former. It seems to have reference either to intentionality, or to consciousness, or to the motive, or to the disposition, or to any two or more of these taken together; nobody can tell which: these being objects which seem to have never hitherto been property distinguished and defined.

XVIII.

The above-mentioned definitions and distinctions are far from being mere matters of speculation. They are capable of the most extensive and constant application, as well to moral discourse as to legislative practice. Upon the degree and bias of a man’s intention, upon the absence or presence of consciousness or mis-supposal, depend a great part of the good and bad, more especially of the bad consequences of an act; and on this, as well as other grounds, a great part of the demand for punishment.* The presence of intention with regard to such or such a consequence, and of consciousness with regard to such or such a circumstance, of the act, will form so many criminative circumstances, or essential ingredients in the composition of this or that offence: applied to other circumstances, consciousness will form a ground of aggravation, annexable to the like offence. In almost all cases, the absence of intention with regard to certain consequences, and the absence of consciousness, or the presence of mis-supposal, with regard to certain circumstances, will constitute so many grounds of extenuation.§

* See ch. xv. [Cases unmeet.]

See B. I. tit. [Circumstances influencing.]

See B. I. tit. [Aggravations.]

§ See B. I. tit. [Extenuations.]

Chapter X.

Of Motives.

§ 1.

Different Senses of the word, Motive.

I.

It is an acknowledged truth, that every kind of act whatever, and consequently every kind of offence, is apt to assume a different character, and be attended with different effects, according to the nature of the motive which gives birth to it. This makes it requisite to take a view of the several motives by which human conduct is liable to be influenced.

Note by the Author, July 1822 —

For a tabular simultaneous view of the whole list of motives, in conjunction with the corresponding pleasures and pains, interests and desires, see, by the same author, Table of the Springs of Action, &c. with Explanatory Notes and Observations. London, 1817, Hunter, St. Paul’s Church Yard, 8vo, pp. 32.

The word inducement has of late presented itself, as being in its signification more comprehensive than the word motive, and on some occasions more apposite.

II.

By a motive, in the most extensive sense in which the word is ever used with reference to a thinking being, is meant any thing that can contribute to give birth to, or even to prevent, any kind of action. Now the action of a thinking being is the act either of the body, or only of the mind: and an act of the mind is an act either of the intellectual faculty, or of the will. Acts of the intellectual faculty will sometimes rest in the understanding merely, without exerting any influence in the production of any acts of the will. Motives, which are not of a nature to influence any other acts than those, may be styled purely speculative motives, or motives resting in speculation. But as to these acts, neither do they exercise any influence over external acts, or over their consequences, nor consequently over any pain or any pleasure that may be in the number of such consequences. Now it is only on acount of their tendency to produce either pain or pleasure, that any acts can be material. With acts, therefore, that rest purely in the understanding, we have not here any concern: nor therefore with any object, if any such there be, which, in the character of a motive, can have no influence on any other acts than those.

III.

The motives with which alone we have any concern, are such as are of a nature to act upon the will. By a motive, then, in this sense of the word, is to be understood any thing whatsoever, which, by influencing the will of a sensitive being, is supposed to serve as a means of determining him to act, or voluntarily to forbear to act, upon any occasion. Motives of this sort, in contradistinction to the former, may be styled practical motives, or motives applying to practice.

When the effect or tendency of a motive is to determine a man to forbear to act, it may seem improper to make use of the term motive: since motive, properly speaking, means that which disposes an object to move. We must, however, use that improper term, or a term which, though proper enough, is scarce in use, the word determinative. By way of justification, or at least apology, for the popular usage in this behalf, it may be observed, that even forbearance to act, or the negation of motion (that is, of bodily motion), supposes an act done, when such forbearance is voluntary. It supposes, to wit, an act of the will, which is as much a positive act, as much a motion, as any other act of the thinking substance.

IV.

Owing to the poverty and unsettled state of language, the word motive is employed indiscriminately to denote two kinds of objects, which, for the better understanding of the subject, it is necessary should be distinguished. On some occasions it is employed to denote any of those really existing incidents from whence the act in question is supposed to take its rise. The sense it bears on these occasions may be styled its literal or unfigurative sense. On other occasions it is employed to denote a certain fictitious entity, a passion, an affection of the mind, an ideal being, which upon the happening of any such incident is considered as operating upon the mind, and prompting it to take that course, towards which it is impelled by the influence of such incident. Motives of this class are Avarice, Indolence, Benevolence, and so forth; as we shall see more particularly farther on. This latter may be styled the figurative sense of the term motive.

V.

As to the real incidents to which the name of motive is also given, these too are of two very different kinds. They may be either, 1. The internal perception of any individual lot of pleasure or pain, the expectation of which is looked upon as calculated to determine you to act in such or such a manner; as the pleasure of acquiring such a sum of money, the pain of exerting yourself on such an occasion, and so forth: Or, 2. Any external event, the happening whereof is regarded as having a tendency to bring about the perception of such pleasure or such pain: for instance, the coming up of a lottery ticket, by which the possession of the money devolves to you; or the breaking out of a fire in the house you are in, which makes it necessary for you to quit it. The former kind of motives may be termed interior, or internal: the latter exterior, or external.

VI.

Two other senses of the term motive need also to be distinguished. Motive refers necessarily to action. It is a pleasure, pain, or other event, that prompts to action. Motive, then, in one sense of the word, must be previous to such event. But, for a man to be governed by any motive, he must in every case look beyond that event which is called his action; he must look to the consequences of it: and it is only in this way that the idea of pleasure, of pain, or of any other event, can give birth to it. He must look, therefore, in every case, to some event posterior to the act in contemplation: an event which as yet exists not, but stands only in prospect. Now, as it is in all cases difficult, and in most cases unnecessary, to distinguish between objects so intimately connected, as the posterior possible object which is thus looked forward to, and the present existing object or event which takes place upon a man’s looking forward to the other, they are both of them spoken of under the same appellation, motive. To distinguish them, the one first mentioned may be termed a motive in prospect, the other a motive in esse: and under each of these denominations will come as well exterior as internal motives. A fire breaks out in your neighbour’s house: you are under apprehension of its extending to your own: you are apprehensive, that if you stay in it, you will be burnt: you accordingly run out of it. This then is the act: the others are all motives to it. The event of the fire’s breaking out in your neighbour’s house is an external motive, and that in esse: the idea or belief of the probability of the fire’s extending to your own house, that of your being burnt if you continue, and the pain you feel at the thought of such a catastrophe, are all so many internal events, but still in esse: the event of the fire’s actually extending to your own house, and that of your being actually burnt by it, external motives in prospect: the pain you would feel at seeing your house a-burning, and the pain you would feel while you yourself were burning, internal motives in prospect: which events, according as the matter turns out, may come to be in esse: but then of course they will cease to act as motives.

VII.

Of all these motives, which stand nearest to the act to the production of which they all contribute, is that internal motive in esse which consists in the expectation of the internal motive in prospect: the pain or uneasiness you feel at the thoughts of being burnt.* All other motives are more or less remote: the motives in prospect, in proportion as the period at which they are expected to happen is more distant from the period at which the act takes place, and consequently later in point of time: the motives in esse, in proportion as they also are more distant from that period, and consequently earlier in point of time.

* Whether it be the expectation of being burnt or the pain that accompanies that expectation, that is the immediate internal motive spoken of, may be difficult to determine. It may even be questioned, perhaps, whether they are distinct entities. Both questions, however, seem to be mere questions of words, and the solution of them altogether immaterial. Even the other kinds of motives, though for some purposes they demand a separate consideration, are, however, so intimately allied, that it will often be scarce practicable, and not always material, to avoid confounding them, as they have always hitherto been confounded.

Under the term esse must be included as well past existence, with reference to a given period, as present. They are equally real, in comparison with what is as yet but future. Language is materially deficient, in not enabling us to distinguish with precision between existence as opposed to unreality, and present existence as opposed to past. The word existence in English, and esse, adopted by lawyers from the Latin, have the inconvenience of appearing to confine the existence in question to some single period considered as being present.

VIII.

It has already been observed, that with motives of which the influence terminates altogether in the understanding, we have nothing here to do. If, then, amongst objects that are spoken of as motives with reference to the understanding, there be any which concern us here, it is only in as far as such objects may, through the medium of the understanding, exercise an influence over the will. It is in this way, and in this way only, that any objects, in virtue of any tendency they may have to influence the sentiment of belief, may in a practical sense act in the character of motives. Any objects, by tending to induce a belief concerning the existence, actual, or probable, of a practical motive; that is, concerning the probability of a motive in prospect, or the existence of a motive in esse; may exercise an influence on the will, and rank with those other motives that have been placed under the name of practical. The pointing out of motives such as these, is what we frequently mean when we talk of giving reasons. Your neighbour’s house is on fire as before. I observe to you, that at the lower part of your neighbour’s house is some wood-work, which joins on to your’s; that the flames have caught this wood-work, and so forth; which I do in order to dispose you to believe as I believe, that if you stay in your house much longer you will be burnt. In doing this, then, I suggest motives to your understanding; which motives, by the tendency they have to give birth to or strengthen a pain, which operates upon you in the character of an internal motive in esse, join their force, and act as motives upon the will.

§ 2.

No Motives either constantly good, or constantly bad.

IX.

In all this chain of motives, the principal or original link seems to be the last internal motive in prospect; it is to this that all the other motives in prospect owe their materiality: and the immediately acting motive its existence. This motive in prospect, we see, is always some pleasure, or some pain: some pleasure, which the act in question is expected to be a means of continuing or producing: some pain which it is expected to be a means of discontinuing or preventing. A motive is substantially nothing more than pleasure or pain, operating in a certain manner.

X.

Now, pleasure is in itself a good; nay, even setting aside immunity from pain, the only good: pain is in itself an evil; and, indeed, without exception, the only evil; or else the words good and evil have no meaning. And this is alike true of every sort of pain, and of every sort of pleasure. It follows, therefore, immediately and incontestibly, that there is no such thing as any sort of motive that is in itself a bad one.*

* Let a man’s motive be ill-will; call it even malice, envy, cruelty; it is still a kind of pleasure that is his motive: the pleasure he takes at the thought of the pain which he sees, or expects to see, his adversary undergo. Now even this wretched pleasure, taken by itself, is good: it may be faint; it may be short; it must at any rate be impure: yet while it lasts, and before any bad consequences arrive, it is as good as any other that is not more intense. See ch. iv. [Value.]

XI.

It is common, however, to speak of actions as proceeding from good or bad motives: in which case the motives meant are such as are internal. The expression is far from being an accurate one; and as it is apt to occur in the consideration of almost every kind of offence, it will be requisite to settle the precise meaning of it, and observe how far it quadrates with the truth of things.

XII.

With respect to goodness and badness, as it is with every thing else that is not itself either pain or pleasure, so is it with motives. If they are good or bad, it is only on account of their effects: good, on account of their tendency to produce pleasure, or avert pain: bad, on account of their tendency to produce pain or avert pleasure. Now the case is, that from one and the same motive, and from every kind of motive, may proceed actions that are good, others that are bad, and others that are indifferent. This we shall proceed to shew with respect to all the different kinds of motives, as determined by the various kinds of pleasures and pains.

XIII.

Such an analysis, useful as it is, will be found to be a matter of no small difficulty; owing, in great measure, to a certain perversity of structure which prevails more or less throughout all languages. To speak of motives, as of any thing else, one must call them by their names. But the misfortune is, that it is rare to meet with a motive of which the name expresses that and nothing more. Commonly along with the very name of the motive, is tacitly involved a proposition imputing to it a certain quality; a quality which, in many cases, will appear to include that very goodness or badness, concerning which we are here inquiring whether, properly speaking, it be or be not imputable to motives. To use the common phrase, in most cases, the name of the motive is a word which is employed either only in a good sense, or else only in a bad sense. Now, when a word is spoken of as being used in a good sense, all that is necessarily meant is this: that in conjunction with the idea of the object it is put to signify, it conveys an idea of approbation; that is, of a pleasure or satisfaction, entertained by the person who employs the term, at the thoughts of such object. In like manner, when a word is spoken of as being used in a bad sense, all that is necessarily meant is this: that, in conjunction with the idea of the object it is put to signify, it conveys an idea of disapprobation: that is, of a displeasure entertained by the person who employs the term at the thoughts of such object. Now, the circumstance on which such approbation is grounded will, as naturally as any other, be the opinion of the goodness of the object in question, as above explained: such, at least, it must be, upon the principle of utility: so, on the other hand, the circumstance on which any such disapprobation is grounded, will, as naturally as any other, be the opinion of the badness of the object: such, at least, it must be, in as far as the principle of utility is taken for the standard.

Now there are certain motives which, unless in a few particular cases, have scarcely any other name to be expressed by but such a word as is used only in a good sense. This is the case, for example, with the motives of piety and honour. The consequence of this is, that if, in speaking of such a motive, a man should have occasion to apply the epithet bad to any actions which he mentions as apt to result from it, he must appear to be guilty of a contradiction in terms. But the names of motives which have scarcely any other name to be expressed by, but such a word as is used only in a bad sense, are many more.* This is the case, for example, with the motives of lust and avarice. And accordingly, if, in speaking of any such motive, a man should have occasion to apply the epithets good on indifferent to any actions which he mentions as apt to result from it, he must here also appear to be guilty of a similar contradiction.

This perverse association of ideas cannot, it is evident, but throw great difficulties in the way of the inquiry now before us. Confining himself to the language most in use, a man can scarce avoid running, in appearance, into perpetual contradictions. His propositions will appear, on the one hand, repugnant to truth; and on the other hand, adverse to utility. As paradoxes, they will excite contempt: as mischievous paradoxes, indignation. For the truths he labours to convey, however important, and however salutary, his reader is never the better: and he himself is much the worse. To obviate this inconvenience completely, he has but this one unpleasant remedy; to lay aside the old phraseology and invent a new one. Happy the man whose language is ductile enough to permit him this resource. To palliate the inconvenience, where that method of obviating it is impracticable, he has nothing left for it but to enter into a long discussion, to state the whole matter at large, to confess, that for the sake of promoting the purposes, he has violated the established laws of language, and to throw himself upon the mercy of his readers.

* For the reason, see chap. xi. [Dispositions], par. 17, note.

To this imperfection of language, and nothing more, are to be attributed, in great measure, the violent clamours that have from time to time been raised against those ingenious moralists, who, travelling out of the beaten tract of speculation, have found more or less difficulty in disentangling themselves from the shackles of ordinary language: such as Rochefoucault, Mandeville, and Helvetius. To the unsoundness of their opinions, and, with still greater injustice, to the corruption of their hearts, was often imputed, what was most commonly owing either to a want of skill in matters of language on the part of the author, or a want of discernment, possibly now and then in some instances a want of probity, on the part of the commentator.

Happily, language is not always so intractable, but that by making use of two words instead of one, a man may avoid the inconvenience of fabricating words that are absolutely new. Thus instead of the word lust, by putting together two words in common use, he may frame the neutral expression, sexual desire: instead of the word avarice, by putting together two other words also in common use, he may frame the neutral expression, pecuniary interest. This, accordingly, is the course which I have taken. In these instances, indeed, even the combination is not novel: the only novelty there is consists in the steady adherence to the one neutral expression, rejecting altogether the terms, of which the import is infected by adventitious and unsuitable ideas.

In the catalogue of motives, corresponding to the several sorts of pains and pleasures, I have inserted such as have occurred to me. I cannot pretend to warrant it complete. To make sure of rendering it so, the only way would be, to turn over the dictionary from beginning to end: an operation which, in a view to perfection, would be necessary for more purposes than this. See B. I. tit. [Defamation], and Append. tit. [Composition.]

§ 3.

Catalogue of Motives corresponding to that of Pleasures and Pains.

XIV.

From the pleasures of the senses, considered in the gross, results the motive which, in a neutral sense, may be termed physical desire: in a bad sense, it is termed sensuality. Name used in a good sense it has none. Of this, nothing can be determined, till it be considered separately, with reference to the several species of pleasures to which it corresponds.

XV.

In particular, then, to the pleasures of the taste or palate corresponds a motive, which in a neutral sense having received no name that can serve to express it in all cases, can only be termed, by circumlocution, the love of the pleasures of the palate. In particular cases it is styled hunger: in others, thirst. The love of good cheer expresses this motive, but seems to go beyond: intimating, that the pleasure is to be partaken of in company, and involving a kind of sympathy. In a bad sense, it is styled in some cases greediness, voraciousness, gluttony: in others, principally when applied to children, lickerishness. It may in some cases also be represented by the word daintiness. Name used in a good sense it has none. 1. A boy, who does not want for victuals, steals a cake out of a pastry-cook’s shop, and eats it. In this case his motive will be universally deemed a bad one: and if it be asked what it is, it may be answered, perhaps, lickerishness. 2. A boy buys a cake out of a pastry-cook’s shop, and eats it. In this case his motive can scarcely be looked upon as either good or bad, unless his master should be out of humour with him; and then perhaps he may call it lickerishness, as before. In both cases, however, his motive is the same. It is neither more nor less than the motive corresponding to the pleasures of the palate.*

Hunger and thirst, considered in the light of motives, import not so much the desire of a particular kind of pleasure, as the desire of removing a positive kind of pain. They do not extend to the desire of that kind of pleasure which depends on the choice of foods and liquors.

* It will not be worth while, in every case, to give an instance in which the action may be indifferent: if good as well as bad actions may result from the same motive, it is easy to conceive, that also may be indifferent.

XVI.

To the pleasures of the sexual sense corresponds the motive which, in a neutral sense, may be termed sexual desire. In a bad sense, it is spoken of under the name of lasciviousness, and a variety of other names of reprobation. Name used in a good sense, it has none.

1. A man ravishes a virgin. In this case the motive is, without scruple, termed by the name of lust, lasciviousness, and so forth; and is universally looked upon as a bad one. 2. The same man, at another time, exercises the rights of marriage with his wife. In this case the motive is accounted, perhaps, a good one, or at least indifferent: and here people would scruple to call it by any of those names. In both cases, however, the motive may be precisely the same. In both cases it may be neither more nor less than sexual desire.

Love indeed includes sometimes this idea: but then it can never answer the purpose of exhibiting it separately: since there are three motives, at least, that may all of them be included in it, besides this: the love of beauty corresponding to the pleasures of the eye, and the motives corresponding to those of amity and benevolence. We speak of the love of children, of the love of parents, of the love of God. These pious uses protect the appellation, and preserve it from the ignominy poured forth upon its profane associates. Even sensual love would not answer the purpose; since that would include the love of beauty.

XVII.

To the pleasures of curiosity corresponds the motive known by the same name: and which may be otherwise called the love of novelty, or the love of experiment; and, on particular occasions, sport, and sometimes play.

1. A boy, in order to divert himself, reads an improving book: the motive is accounted, perhaps, a good one: at any rate, not a bad one. 2. He sets his top a-spinning: the motive is deemed, at any rate, not a bad one. 3. He sets loose a mad ox among a crowd: his motive is now, perhaps, termed an abominable one. Yet in all three cases the motive may be the very same: it may be neither more nor less than curiosity.

XVIII.

As to the other pleasures of sense, they are of too little cousequence to have given any separate denominations to the corresponding motives.

XIX.

To the pleasures of wealth corresponds the sort of motive which, in a neutral sense, may be termed pecuniary interest. In a bad sense, it is termed, in some cases, avarice, covetousness, rapacity, or lucre: in other cases, niggardliness: in a good sense, but only in particular cases, economy and frugality; and in some cases the word industry may be applied to it: in a sense nearly indifferent, but rather bad than otherwise, it is styled, though only in particular cases, parsimony.

1. For money you gratify a man’s hatred, by putting his adversary to death. 2. For money you plough his field for him. In the first case your motive is termed lucre, and is accounted corrupt and abominable: and in the second, for want of a proper appellation, it is styled industry; and is looked upon as innocent at least, if not meritorious. Yet the motive is in both cases precisely the same; it is neither more nor less than pecuniary interest.

XX.

The pleasures of skill are neither distinct enough, nor of consequence enough, to have given any name to the corresponding motive.

XXI.

To the pleasures of amity corresponds a motive which, in a neutral sense, may be termed the desire of ingratiating one’s self. In a bad sense, it is in certain cases styled servility: in a good sense it has no name that is peculiar to it: in the cases in which it has been looked on with a favourable eye, it has seldom been distinguished from the motive of sympathy or benevolence, with which, in such cases, it is commonly associated.

1. To acquire the affections of a woman before marriage, to preserve them afterwards, you do every thing, that is consistent with other duties, to make her happy: in this case your motive is looked upon as laudable, though there is no name for it. 2. For the same purpose, you poison a woman with whom she is at enmity: in this case, your motive is looked upon as abominable, though still there is no name for it. 3. To acquire or preserve the favour of a man who is richer or more powerful than yourself, you make yourself subservient to his pleasures. Let them even be lawful pleasures, if people choose to attribute your behaviour to this motive, you will not get them to find any other name for it than servility. Yet in all three cases the motive is the same: it is neither more nor less than the desire of ingratiating yourself.

XXII.

To the pleasures of the moral sanction, or, as they may otherwise be called, the pleasures of a good name, corresponds a motive which, in a neutral sense, has scarcely yet obtained any adequate appellative. It may be styled the love of reputation. It is nearly related to the motive last preceding: being neither more nor less than the desire of ingratiating one’s self with, or, as in this case we should rather say, of recommending one’s self to, the world at large. In a good sense, it is termed honour, or the sense of honour; or rather, the word honour is introduced somehow or other upon the occasion of its being brought to view: for in strictness the word honour is put rather to signify that imaginary object, which a man is spoken of as possessing upon the occasion of his obtaining a conspicuous share of the pleasures that are in question. In particular cases, it is styled the love of glory. In a bad sense, it is styled, in some cases, false honour; in others, pride; in others, vanity. In a sense not decidedly bad, but rather bad than otherwise, ambition. In an indifferent sense, in some cases, the love of fame; in others, the sense of shame. And, as the pleasures belonging to the moral sanction run undistinguishably into the pains derived from the same source,* it may also be styled, in some cases, the fear of dishonour, the fear of disgrace, the fear of infamy, the fear of ignominy, or the fear of shame.

1. You have received an affront from a man: according to the custom of the country, in order, on the one hand, to save yourself from the shame of being thought to bear it patiently; on the other hand, to obtain the reputation of courage; you challenge him to fight with mortal weapons. In this case your motive will by some people be accounted laudable, and styled honour: by others it will be accounted blameable, and these, if they call it honour, will prefix an epithet of improbation to it, and call it false honour. 2. In order to obtain a post of rank and dignity, and thereby to increase the respect paid you by the public, you bribe the electors who are to confer it, or the judge before whom the title to it is in dispute. In this case your motive is commonly accounted corrupt and abominable, and is styled, perhaps, by some such name as dishonest or corrupt ambition, as there is no single name for it. 3. In order to obtain the good-will of the public, you bestow a large sum in works of private charity or public utility. In this case people will be apt not to agree about your motive. Your enemies will put a bad colour upon it, and call it ostentation: your friends, to save you from this reproach, will choose to impute your conduct not to this motive but to some other; such as that of charity (the denomination in this case given to private sympathy), or that of public spirit. 4. A king, for the sake of gaining the admiration annexed to the name of conqueror (we will suppose power and resentment out of the question), engages his kingdom in a bloody war. His motive, by the multitude (whose sympathy for millions is easily overborne by the pleasure which their imagination finds in gaping at any novelty they observe in the conduct of a single person), is deemed an admirable one. Men of feeling and reflection, who disapprove of the dominion exercised by this motive on this occasion, without always perceiving that it is the same motive which in other instances meets with their approbation, deem it an abominable one; and because the multitude, who are the manufacturers of language, have not given them a simple name to call it by, they will call it by some such compound name as the love of false glory or false ambition. Yet in all four cases the motive is the same: it is neither more nor less than the love of reputation.

* See chap. vi. [Pleasures and Pains], par. 24, note.

A man’s bearing an affront patiently, that is, without taking this method of doing what is called wiping it off, is thought to import one or other of two things: either that he does not possess that sensibility to the pleasures and pains of the moral sanction, which, in order to render himself a respectable member of society, a man ought to possess: or, that he does not possess courage enough to stake his life for the chance of gratifying that resentment which a proper sense of the value of those pleasures and those pains it is thought would not fail to inspire. True it is, that there are divers other motives, by any of which the same conduct might equally be produced: the motives corresponding to the religious sanction, and the motives that come under the head of benevolence. Piety towards God, the practice in question being generally looked upon as repugnant to the dictates of the religious sanction; sympathy for your antagonist himself, whose life would be put to hazard at the same time with your own: sympathy for his connexions; the persons who are dependent on him in the way of support, or connected with him in the way of sympathy: sympathy for your own connexions: and even sympathy for the public, in cases where the man is such that the public appears to have a material interest in his life. But in comparison with the love of life, the influence of the religious sanction is known to be in general but weak; especially among people of those classes who are here in question: a sure proof of which is the prevalence of this very custom. Where it is so strong as to preponderate, it is so rare, that, perhaps, it gives a man a place in the calendar: and, at any rate, exalts him to the rank of martyr. Moreover, the instances in which either private benevolence or public spirit predominate over the love of life, will also naturally be but rare: and, owing to the general propensity to detraction, it will also be much rarer for them to be thought to do so. Now, when three or more motives, any one of them capable of producing a given mode of conduct, apply at once, that which appears to be the most powerful is that which will of course be deemed to have actually done the most: and, as the bulk of mankind, on this as on other occasions, are disposed to decide peremptorily upon superficial estimates, it will generally be looked upon as having done the whole.

The consequence is, that when a man of a certain rank forbears to take this chance of revenging an affront, his conduct will, by most people, be imputed to the love of life: which, when it predominates over the love of reputation, is, by a not unsalutary association or ideas, stigmatized with the reproachful name of cowardice.

XXIII.

To the pleasures of power corresponds the motive which, in a neutral sense, may be termed the love of power. People, who are out of humour with it, sometimes call it the lust of power. In a good sense, it is scarcely provided with a name. In certain cases this motive, as well as the love of reputation, are confounded under the same name, ambition. This is not to be wondered at, considering the intimate connexion there is between the two motives in many cases: since it commonly happens, that the same object which affords the one sort of pleasure, affords the other sort at the same time; for instance, offices, which are at once posts of honour and places of trust: and since at any rate reputation is the road to power.

1. If, in order to gain a place in administration, you poison the man who occupies it. 2. If, in the same view, you propose a salutary plan for the advancement of the public welfare; your motive is in both cases the same. Yet in the first case it is accounted criminal and abominable: in the second case allowable, and even laudable.

XXIV.

To the pleasures as well as to the pains of the religious sanction corresponds a motive which has, strictly speaking, no perfectly neutral name applicable to all cases, unless the word religion be admitted in this character: though the word religion, strictly speaking, seems to mean not so much the motive itself, as a kind of fictitious personage, by whom the motive is supposed to be created, or an assemblage of acts, supposed to be dictated by that personage: nor does it seem to be completely settled into a neutral sense. In the same sense it is also, in some cases, styled religious zeal: in other cases, the fear of God. The love of God, though commonly contrasted with the fear of God, does not come strictly under this head. It coincides properly with a motive of a different denomination; viz. a kind of sympathy or good-will, which has the Deity for its object. In a good sense, it is styled devotion, piety, and pious zeal. In a bad sense, it is styled, in some cases, superstition, or superstitious zeal; in other cases, fanaticism, or fanatic zeal in a sense not decidedly bad, because not appropriated to this motive, enthusiasm, or enthusiastic zeal.

1. In order to obtain the favour of the Supreme Being, a man assassinates his lawful sovereign. In this case the motive is now almost universally looked upon as abominable, and is termed fanaticism: formerly it was by great numbers accounted laudable, and was by them called pious zeal. 2. In the same view, a man lashes himself with thongs. In this case, in yonder house, the motive is accounted laudable, and is called pious zeal: in the next house it is deemed contemptible, and called superstition. 3. In the same view, a man eats a piece of bread (or at least what to external appearance is a piece of bread) with certain ceremonies. In this case, in yonder house, his motive is looked upon as laudable, and is styled piety and devotion: in the next house it is deemed abominable, and styled superstition, as before: perhaps even it is absurdly styled impiety. 4. In the same view, a man holds a cow by the tail while he is dying. On the Thames the motive would in this case be deemed contemptible, and called superstition: on the Ganges it is deemed meritorious, and called piety. 5. In the same view, a man bestows a large sum in works of charity, or public utility. In this case the motive is styled laudable, by those at least to whom the works in question appear to come under this description; and by these at least it would be styled piety. Yet in all these cases the motive is precisely the same: it is neither more nor less than the motive belonging to the religious sanction.*

* I am aware, or at least I hope, that people in general, when they see the matter thus stated, will be ready to acknowledge, that the motive in these cases, whatever be the tendency of the acts which it produces, is not a bad one: but this will not render it the less true, that hitherto, in popular discourse, it has been common for men to speak of acts, which they could not but acknowledge to have originated from this source, as proceeding from a bad motive. The same observation will apply to many of the other cases.

XXV.

To the pleasures of sympathy corresponds the motive which, in a neutral sense, is termed good-will. The word sympathy may also be used on this occasion; though the sense of it seems to be rather more extensive. In a good sense, it is styled benevolence: and in certain cases, philanthropy: and, in a figurative way, brotherly love; in others, humanity; in others, charity; in others, pity and compassion; in others, mercy; in others, gratitude; in others, tenderness; in others, patriotism; in others, public spirit. Love is also employed in this as in so many other senses. In a bad sense, it has no name applicable to it in all cases: in particular cases it is styled partiality. The word zeal, with certain epithets prefixed to it, might also be employed sometimes on this occasion, though the sense of it be more extensive; applying sometimes to ill as well as to good will. It is thus we speak of party zeal, national zeal, and public zeal. The word attachment is also used with the like epithets: we also say family-attachment. The French expression, esprit de corps, for which as yet there seems to be scarcely any name in English, might be rendered, in some cases, though rather inadequately, by the terms corporation-spirit, corporation-attachment, or corporation-zeal.

1. A man who has set a town on fire is apprehended and committed: out of regard or compassion for him, you help him to break prison. In this case the generality of people will probably scarcely know whether to condemn your motive or to applaud it: those who condemn your conduct, will be disposed rather to impute it to some other motive: if they style it benevolence or compassion, they will be for prefixing an epithet, and calling it false benevolence or false compassion.* 2. The man is taken again, and is put upon his trial; to save him, you swear falsely in his favour. People, who would not call your motive a bad one before, will perhaps call it so now. 3. A man is at law with you about an estate: he has no right to it: the judge knows this, yet, having an esteem or affection for your adversary, adjudges it to him. In this case the motive is by every body deemed abominable, and is termed injustice and partiality. 4. You detect a statesman in receiving bribes: out of regard to the public interest, you give information of it, and prosecute him. In this case, by all who acknowledge your conduct to have originated from this motive, your motive will be deemed a laudable one, and styled public spirit. But his friends and adherents will not choose to account for your conduct in any such manner: they will rather attribute it to party enmity. 5. You find a man on the point of starving: you relieve him; and save his life. In this case your motive will by every body be accounted laudable, and it will be termed compassion, pity, charity, benevolence. Yet in all these cases the motive is the same: it is neither more nor less than the motive of good-will.

* Among the Greeks, perhaps the motive, and the conduct it gave birth to, would, in such a case, have been rather approved than disapproved of. It seems to have been deemed an act of heroism on the part of Hercules, to have delivered his friend Theseus from hell: though divine justice, which held him there, should naturally have been regarded as being at least upon a footing with human justice. But to divine justice, even when acknowledged under that character, the respect paid at that time of day does not seem to have been very profound, or well-settled: at present, the respect paid to it is profound and settled enough, though the name of it is but too often applied to dictates which could have had no other origin than the worst sort of human caprice.

XXVI.

To the pleasures of malevolence, or antipathy, corresponds the motive which, in a neutral sense, is termed antipathy or displeasure: and, in particular cases, dislike, aversion, abhorrence, and indignation: in a neutral sense, or perhaps a sense leaning a little to the bad side, ill-will: and, in particular cases, anger, wrath, and enmity. In a bad sense, it is styled, in different cases, wrath, spleen, ill-humour, animosity, hatred, malice, rancour, rage, fury, cruelty, tyranny, envy, jealousy, revenge, misanthropy, and by other names, which it is hardly worth while to endeavour to collect. Like good-will, it is used with epithets expressive of the persons who are the objects of the affection. Hence we hear of party enmity, party rage, and so forth. In a good sense, there seems to be no single name for it. In compound expressions it may be spoken of in such a sense, by epithets, such as just and laudable, prefixed to words that are used in a neutral or nearly neutral sense.

1. You rob a man: he prosecutes you, and gets you punished: out of resentment you set upon him, and hang him with your own hands. In this case your motive will universally be deemed detestable, and will be called malice, cruelty, revenge, and so forth. 2. A man has stolen a little money from you: out of resentment you prosecute him, and get him hanged by course of law. In this case people will probably be a little divided in their opinions about your motive: your friends will deem it a laudable one, and call it a just or laudable resentment: your enemies will perhaps be disposed to deem it blameable, and call it cruelty, malice, revenge, and so forth: to obviate which, your friends will try perhaps to change the motive, and call it public spirit. 3. A man has murdered your father: out of resentment you prosecute him, and get him put to death in course of law. In this case your motive will be universally deemed a laudable one, and styled, as before, a just or laudable resentment: and your friends, in order to bring forward the more amiable principle from which the malevolent one, which was your immediate motive, took it srise, will be for keeping the latter out of sight, speaking of the former only, under some such name as filial piety. Yet in all these cases the motive is the same: it is neither more nor less than the motive of ill-will.

Here, as elsewhere, it may be observed, that the same words which are mentioned as names of motives, are also many of them names of passions, appetites, and affections: fictitious entities, which are framed only by considering pleasures or pains in some particular point of view. Some of them are also names of moral qualities. This branch of nomenclature is remarkably entangled: to unravel it completely would take up a whole volume; not a syllable of which would belong properly to the present design.

XXVII.

To the several sorts of pains, or at least to all such of them as are conceived to subsist in an intense degree, and to death, which, as far as we can perceive, is the termination of all the pleasures, as well as all the pains we are acquainted with, corresponds the motive which, in a neutral sense, is styled, in general, self-preservation; the desire of preserving one’s self from the pain or evil in question. Now in many instances the desire of pleasure, and the sense of pain, run into one another undistinguishably. Self-preservation, therefore, where the degree of the pain which it corresponds to is but slight, will scarcely be distinguishable, by any precise line, from the motives corresponding to the several sorts of pleasures. Thus in the case of the pains of hunger and thirst: physical want will in many cases be scarcely distinguishable from physical desire. In some cases it is styled, still in a neutral sense, self-defence. Between the pleasures and the pains of the moral and religious sanctions, and consequently of the motives that correspond to them, as likewise between the pleasures of amity, and the pains of enmity, this want of boundaries has already been taken notice of.* The case is the same between the pleasures of wealth, and the pains of privation corresponding to those pleasures. There are many cases, therefore, in which it will be difficult to distinguish the motive of self-preservation from pecuniary interest, from the desire of ingratiating one’s self, from the love of reputation, and from religious hope: in which cases, those more specific and explicit names will naturally be preferred to this general and inexplicit one. There are also a multitude of compound names, which either are already in use, or might be devised, to distinguish the specific branches of the motive of self-preservation from those several motives of a pleasurable origin: such as the fear of poverty, the fear of losing such or such a man’s regard, the fear of shame, and the fear of God. Moreover, to the evil of death corresponds, in a neutral sense, the love of life; in a bad sense, cowardice: which corresponds also to the pains of the senses, at least when considered as subsisting in an acute degree. There seems to be no name for the love of life that has a good sense; unless it be the vague and general name of prudence.

1. To save yourself from being hanged, pilloried, imprisoned, or fined, you poison the only person who can give evidence against you. In this case your motive will universally be styled abominable: but as the term self-preservation has no bad sense, people will not care to make this use of it: they will be apt rather to change the motive, and call it malice. 2. A woman, having been just delivered of an illegitimate child, in order to save herself from shame, destroys the child, or abandons it. In this case, also, people will call the motive a bad one; and, not caring to speak of it under a neutral name, they will be apt to change the motive, and to call it by some such name as cruelty. 3. To save the expense of a half-penny, you suffer a man, whom you could preserve at that expense, to perish with want, before your eyes. In this case your motive will be universally deemed an abominable one; and, to avoid calling it by so indulgent a name as self-preservation, people will be apt to call it avarice and niggardliness, with which indeed in this case it indistinguishably coincides: for the sake of finding a more reproachful appellation, they will be apt likewise to change the motive, and term it cruelty. 4. To put an end to the pain of hunger, you steal a loaf of bread. In this case your motive will scarcely, perhaps, be deemed a very bad one; and, in to order express more indulgence for it, people will be apt to find a stronger name for it than self-preservation, terming it necessity. 5. To save yourself from drowning, you beat off an innocent man who has got hold of the same plank. In this case your motive will in general be deemed neither good nor bad; and it will be termed self-preservation, or necessity, or the love of life. 6. To save your life from a gang of robbers, you kill them in the conflict. In this case the motive may, perhaps, be deemed rather laudable than otherwise; and, besides self-preservation, is styled also self-defence. 7. A soldier is sent out upon a party against a weaker party of the enemy: before he gets up with them, to save his life, he runs away. In this case the motive will universally be deemed a contemptible one, and will be called cowardice. Yet in all these various cases, the motive is still the same: it is neither more nor less than self-preservation.

* See ch. v. [Pleasures and Pains], par. 24, 25.

XXVIII.

In particular, to the pains of exertion corresponds the motive which, in a neutral sense, may be termed the love of ease, or by a longer circumlocution, the desire of avoiding trouble. In a bad sense, it is termed indolence.* It seems to have no name that carries with it a good sense.

1. To save the trouble of taking care of it, a parent leaves his child to perish. In this case the motive will be deemed an abominable one, and because indolence will seem too mild a name for it, the motive will, perhaps, be changed, and spoken of under some such term as cruelty. 2. To save yourself from an illegal slavery, you make your escape. In this case the motive will be deemed certainly not a bad one; and, because indolence, or even the love of ease, will be thought too unfavourable a name for it, it will, perhaps, be styled the love of liberty. 3. A mechanic, in order to save his labour, makes an improvement in his machinery. In this case, people will look upon his motive as a good one; and finding no name for it that carries a good sense, they will be disposed to keep the motive out of sight: they will speak rather of his ingenuity, than of the motive which was the means of his manifesting that quality. Yet in all these cases the motive is the same: it is neither more nor less than the love of ease.

* It may seem odd at first sight to speak of the love of ease as giving birth to action: but exertion is as natural an effect of the love of ease as inaction is, when a smaller degree of exertion promises to exempt a man from a greater.

XXIX.

It appears, then, that there is no such thing as any sort of motive which is a bad one in itself: nor, consequently, any such thing as a sort of motive, which in itself is exclusively a good one. And as to their effects, it appears too that these are sometimes bad, at other times either indifferent or good: and this appears to be the case with every sort of motive. If any sort of motive, then, is either good or bad on the score of its effects, this is the case only on individual occasions, and with individual motives; and this is the case with one sort of motive as well as with another. If any sort of motive, then, can, in consideration of its effects, be termed with any propriety a bad one, it can only be with reference to the balance of all the effects it may have had of both kinds within a given period, that is, of its most usual tendency.

XXX.

What then? (it will be said) are not lust, cruelty, avarice, bad motives? Is there so much as any one individual occasion, in which motives like these can be otherwise than bad? No, certainly: and yet the proposition, that there is no one sort of motive but what will on many occasions be a good one, is nevertheless true. The fact is, that these are names which, if properly applied, are never applied but in the cases where the motives they signify happen to be bad. The names of these motives, considered apart from their effects, are sexual desire, displeasure, and pecuniary interest. To sexual desire, when the effects of it are looked upon as bad, is given the name of lust. Now lust is always a bad motive. Why? Because if the case be such that the effects of the motive are not bad, it does not go, or at least ought not to go, by the name of lust. The case is, then, that when I say, “Lust is a bad motive,” it is a proposition that merely concerns the import of the word lust; and which would be false if transferred to the other word used for the same motive, sexual desire. Hence we see the emptiness of all those rhapsodies of common-place morality, which consist in the taking of such names as lust, cruelty, and avarice, and branding them with marks of reprobation: applied to the thing, they are false; applied to the name, they are true, indeed, but nugatory. Would you do a real service to mankind, show them the cases in which sexual desire merits the name of lust; displeasure, that of cruelty; and pecuniary interest, that of avarice.

XXXI.

If it were necessary to apply such denominations as good, bad, and indifferent, to motives, they might be classed in the following manner, in consideration of the most frequent complexion of their effects. In the class of good motives might be placed the articles of, 1. Goodwill. 2. Love of reputation. 3. Desire of amity. And, 4. Religion. In the class of bad motives, 5. Displeasure. In the class of neutral or indifferent motives, 6. Physical desire. 7. Pecuniary interest. 8. Love of power. 9. Self-preservation; as including the fear of the pains of the senses, the love of ease, and the love of life.

XXXII.

This method of arrangement, however, cannot but be imperfect; and the nomenclature belonging to it is in danger of being fallacious. For by what method of investigation can a man be assured, that with regard to the motives ranked under the name of good, the good effects they have had, from the beginning of the world, have, in each of the four species comprised under this name, been superior to the bad? Still more difficulty would a man find in assuring himself, that with regard to those which are ranked under the name of neutral or indifferent, the effects they have had have exactly balanced each other, the value of the good being neither greater nor less than that of the bad. It is to be considered, that the interests of the person himself can no more be left out of the estimate, than those of the rest of the community. For what would become of the species, if it were not for the motives of hunger and thirst, sexual desire, the fear of pain, and the love of life? Nor in the actual constitution of human nature is the motive of displeasure less necessary, perhaps, than any of the others: although a system, in which the business of life might be carried on without it, might possibly be conceived. It seems, therefore, that they could scarcely, without great danger of mistakes, be distinguished in this manner, even with reference to each other.

XXXIII.

The only way, it should seem, in which a motive can with safety and propriety be styled good or bad, is with reference to its effects in each individual instance; and principally from the intention it gives birth to: from which arise, as will be shown hereafter, the most material part of its effects. A motive is good, when the intention it gives birth to is a good one; bad, when the intention is a bad one: and an intention is good or bad, according to the material consequences that are the objects of it. So far is it from the goodness of the intention’s being to be known only from the species of the motive. But from one and the same motive, as we have seen, may result intentions of every sort of complexion whatsoever. This circumstance, therefore, can afford no clue for the arrangement of the several sorts of motives.

XXXIV.

A more commodious method, therefore, it should seem, would be to distribute them according to the influence which they appear to have on the interests of the other members of the community, laying those of the party himself out of the question; to wit, according to the tendency which they appear to have to unite, or disunite, his interests and theirs. On this plan they may be distinguished into social, dissocial, and self-regarding. In the social class may be reckoned, 1. Good-will. 2. Love of reputation. 3. Desire of amity. 4. Religion. In the dissocial may be placed, 5. Displeasure. In the self-regarding class, 6 Physical desire. 7. Pecuniary interest. 8. Love of power. 9. Self-preservation; as including the fear of the pains of the senses, the love of ease, and the love of life.

XXXV.

With respect to the motives that have been termed social, if any farther distinction should be of use, to that of good-will alone may be applied the epithet of purely-social; while the love of reputation, the desire of amity, and the motive of religion, may together be comprised under the division of semi-social: the social tendency being much more constant and unequivocal in the former than in any of the three latter. Indeed these last, social as they may be termed, are self-regarding at the same time.*

* “Religion,” says the pious Addison, somewhere in the Spectator, “is the highest species of self-love.”

§ 4.

Order of Pre-eminence among Motives.

XXXVI.

Of all these sorts of motives, good-will is that of which the dictates, taken in a general view, are surest of coinciding with those of the principle of utility. For the dictates of utility are neither more nor less than the dictates of the most extensive and enlightened (that is well-advised) benevolence. The dictates of the other motives may be conformable to those of utility, or repugnant, as it may happen.

When a man is supposed to be prompted by any motive to engage, or not to engage, in such or such an action, it may be of use, for the convenience of discourse, to speak of such motive as giving birth to an imaginary kind of law or dictate, enjoining him to engage, or not to engage, in it. (See ch. i.)

See ch. iv. [Value], and ch. vi. [Sensibility], par. 21.

See ch. ix. [Consciousness.]

XXXVII.

In this, however, it is taken for granted, that in the case in question the dictates of benevolence are not contradicted by those of a more extensive, that is enlarged, benevolence. Now when the dictates of benevolence, as respecting the interests of a certain set of persons, are repugnant to the dictates of the same motive, as respecting the more important§ interests of another set of persons, the former dictates, it is evident, are repealed, as it were, by the latter: and a man, were he to be governed by the former, could scarcely, with propriety, be said to be governed by the dictates of benevolence. On this account, were the motives on both sides sure to be alike present to a man’s mind, the case of such a repugnancy would hardly be worth distinguishing, since the partial benevolence might be considered as swallowed up in the more extensive: if the former prevailed, and governed the action, it must be considered as not owing its birth to benevolence, but to some other motive: if the latter prevailed, the former might be considered as having no effect. But the case is, that a partial benevolence may govern the action, without entering into any direct competition with the more extensive benevolence which would forbid it; because the interests of the less numerous assemblage of persons may be present to a man’s mind, at a time when those of the more numerous are either not present, or, if present, make no impression. It is in this way that the dictates of this motive may be repugnant to utility, yet still be the dictates of benevolence. What makes those of private benevolence conformable upon the whole to the principle of utility, is, that in general they stand unopposed by those of public: if they are repugnant to them, it is only by accident. What makes them the more conformable, is, that in a civilized society, in most of the cases in which they would of themselves be apt to run counter to those of public benevolence, they find themselves opposed by stronger motives of the self-regarding class, which are played off against them by the laws; and that it is only in cases where they stand unopposed by the other more salutary dictates, that they are left free. An act of injustice or cruelty, committed by a man for the sake of his father or his son, is punished, and with reason, as much as if it were committed for his own.

§ Or valuable. See ch. iv. [Value.]

XXXVIII.

After good-will, the motive of which the dictates seem to have the next best chance for coinciding with those of utility, is that of the love of reputation. There is but one circumstance which prevents the dictates of this motive from coinciding in all cases with those of the former. This is, that men in their likings and dislikings, in the dispositions they manifest to annex to any mode of conduct their approbation or their disapprobation, and in consequence to the person who appears to practise it, their good or their ill will, do not govern themselves exclusively by the principle of utility. Sometimes it is the principle of asceticism they are guided by: sometimes the principle of sympathy and antipathy. There is another circumstance, which diminishes, not their conformity to the principle of utility, but only their efficacy in comparison with the dictates of the motive of benevolence. The dictates of this motive will operate as strongly in secret as in public: whether it appears likely that the conduct which they recommend will be known or not: those of the love of reputation will coincide with those of benevolence only in proportion as a man’s conduct seems likely to be known. This circumstance, however, does not make so much difference as at first sight might appear. Acts, in proportion as they are material, are apt to become known:* and in point of reputation, the slightest suspicion often serves for proof. Besides, if an act be a disreputable one, it is not any assurance a man can have of the secrecy of the particular act in question, that will of course surmount the objections he may have against engaging in it. Though the act in question should remain secret, it will go towards forming a habit, which may give birth to other acts, that may not meet with the same good fortune. There is no human being, perhaps, who is at years of discretion, on whom considerations of this sort have not some weight: and they have the more weight upon a man, in proportion to the strength of his intellectual powers, and the firmness of his mind. Add to this, the influence which habit itself, when once formed, has in restraining a man from acts towards which, from the view of the disrepute annexed to them, as well as from any other cause, he has contracted an aversion. The influence of habit, in such cases, is a matter of fact, which, though not readily accounted for, is acknowledged and indubitable.

* See B. II. tit. [Evidence.]

See ch. vi. [Sensibility], par. 12, 13.

Strictly speaking, habit, being but a fictitious entity, and not really any thing distinct from the acts or perceptions by which it is said to be formed, cannot be the cause of any thing. The enigma, however, may be satisfactorily solved upon the principle of association, of the nature and force of which a very satisfactory account may be seen in Dr. Priestley’s edition of Hartley on Man.

XXXIX.

After the dictates of the love of reputation come, as it should seem, those of the desire of amity. The former are disposed to coincide with those of utility, inasmuch as they are disposed to coincide with those of benevolence. Now those of the desire of amity are apt also to coincide, in a certain sort, with those of benevolence. But the sort of benevolence, with the dictates of which the love of reputation coincides, is the more extensive; that with which those of the desire of amity coincide, the less extensive. Those of the love of amity have still, however, the advantage of those of the self-regarding motives. The former, at one period or other of his life, dispose a man to contribute to the happiness of a considerable number of persons: the latter, from the beginning of life to the end of it, confine themselves to the care of that single individual. The dictates of the desire of amity, it is plain, will approach nearer to a coincidence with those of the love of reputation, and thence with those of utility, in proportion, cæteris paribus, to the number of the persons whose amity a man has occasion to desire: and hence it is, for example, that an English member of parliament, with all his own weaknesses, and all the follies of the people whose amity he has to cultivate, is probably, in general, a better character than the secretary of a vizier at Constantinople, or of a naib in Indostan.

XL.

The dictates of religion are, under the infinite diversity of religions, so extremely variable, that it is difficult to know what general account to give of them, or in what rank to place the motive they belong to. Upon the mention of religion, people’s first thoughts turn naturally to the religion they themselves profess. This is a great source of miscalculation, and has a tendency to place this sort of motive in a higher rank than it deserves. The dictates of religion would coincide, in all cases, with those of utility, were the Being, who is the object of religion, universally supposed to be as benevolent as he is supposed to be wise and powerful; and were the notions entertained of his benevolence, at the same time, as correct as those which are entertained of his wisdom and his power. Unhappily, however, neither of these is the case, He is universally supposed to be all-powerful: for by the Deity, what else does any man mean than the Being, whatever he be, by whom every thing is done? And as to knowledge, by the same rule that he should know one thing, he should know another. These notions seem to be as correct, for all material purposes, as they are universal. But among the votaries of religion (of which number the multifarious fraternity of Christians is but a small part) there seem to be but few (I will not say how few) who are real believers in his benevolence. They call him benevolent in words, but they do not mean that he is so in reality. They do not mean that he is benevolent as man is conceived to be benevolent: they do not mean that he is benevolent in the only sense in which benevolence has a meaning. For if they did, they would recognise that the dictates of religion could be neither more nor less than the dictates of utility: not a tittle different: not a tittle less or more. But the case is, that on a thousand occasions they turn their backs on the principle of utility. They go astray after the strange principles its antagonists: sometimes it is the principle of asceticism: sometimes the principle of sympathy and antipathy.* Accordingly, the idea they bear in their minds, on such occasions, is but too often the idea of malevolence; to which idea, stripping it of its own proper name, they bestow the specious appellation of the social motive. The dictates of religion, in short, are no other than the dictates of that principle which has been already mentioned under the name of the theological principle. These, as has been observed, are just as it may happen, according to the biases of the person in question, copies of the dictates of one or other of the three original principles: sometimes, indeed, of the dictates of utility; but frequently of those of asceticism, or those of sympathy and antipathy. In this respect they are only on a par with the dictates of the love of reputation: in another they are below it. The dictates of religion are in all places intermixed more or less with dictates unconformable to those of utility, deduced from texts, well or ill interpreted, of the writings held for sacred by each sect: unconformable, by imposing practices sometimes inconvenient to a man’s self, sometimes pernicious to the rest of the community. The sufferings of uncalled martyrs, the calamities of holy wars and religious persecutions, the mischiefs of intolerant laws, (objects which can here only be glanced at, not detailed), are so many additional mischiefs over and above the number of those which were ever brought into the world by the love of reputation. On the other hand, it is manifest, that with respect to the power of operating in secret, the dictates of religion have the same advantage over those of the love of reputation and the desire of amity, as is possessed by the dictates of benevolence.

* Ch. ii. [Principles Adverse], par. 18.

Sometimes, in order the better to conceal the cheat (from their own eyes doubtless as well as from others) they set up a phantom of their own, which they call Justice: whose dictates are to modify (which being explained, means to oppose) the dictates of benevolence. But justice, in the only sense in which it has a meaning, is an imaginary personage, feigned for the convenience of discourse, whose dictates are the dictates of utility, applied to certain particular cases. Justice, then, is nothing more than an imaginary instrument, employed to forward, on certain occasions, and by certain means, the purposes of benevolence. The dictates of justice are nothing more than a part of the dictates of benevolence, which, on certain occasions, are applied to certain subjects; to wit, to certain actions.

See ch. ii. [Principles Adverse, &c.]

XLI.

Happily, the dictates of religion seem to approach nearer and nearer to a coincidence with those of utility every day. But why? Because the dictates of the moral sanction do so: and those coincide with or are influenced by these. Men of the worst religions, influenced by the voice and practice of the surrounding world, borrow continually a new and a new leaf out of the book of utility: and with these, in order not to break with their religion, they endeavour, sometimes with violence enough, to patch together and adorn the repositories of their faith.

XLII.

As to the self-regarding and dissocial motives, the order that takes place among these, and the preceding one, in point of extra-regarding influence, is too evident to need insisting on. As to the order that takes place among the motives of the self-regarding class, considered in comparison with one another, there seems to be no difference which on this occasion would be worth mentioning. With respect to the dissocial motive, it makes a difference (with regard to its extra-regarding effects) from which of two sources it originates; whether from self-regarding or from social considerations. The displeasure you conceive against a man may be founded either on some act which offends you in the first instance, or on an act which offends you no otherwise than because you look upon it as being prejudicial to some other party on whose behalf you interest yourself; which other party may be, of course, either a determinate individual, or any assemblage of individuals, determinate or indeterminate.* It is obvious enough, that a motive, though in itself dissocial, may, by issuing from a social origin, possess a social tendency; and that its tendency, in this case, is likely to be the more social, the more enlarged the description is of the persons whose interests you espouse. Displeasure, venting itself against a man, on account of a mischief supposed to be done by him to the public, may be more social in its effects than any good-will, the exertions of which are confined to an individual.

* See ch. vi. [Sensibility], par. 21.

See supra, par. 37.

§ 5.

Conflict among Motives.

XLIII.

When a man has it in contemplation to engage in any action, he is frequently acted upon at the same time by the force of divers motives: one motive, or set of motives, acting in one direction; another motive, or set of motives, acting as it were in an opposite direction: the motives on one side disposing him to engage in the action; those on the other, disposing him not to engage in it. Now, any motive the influence of which tends to dispose him to engage in the action in question, may be termed an impelling motive: any motive, the influence of which tends to dispose him not to engage in it, a restraining motive. But these appellations may of course be interchanged, according as the act is of the positive kind, or the negative.

See ch. vii. [Actions], par. 8.

XLIV.

It has been shown, that there is no sort of motive but may give birth to any sort of action. It follows, therefore, that there are no two motives but may come to be opposed to one another. Where the tendency of the act is bad, the most common case is for it to have been dictated by a motive either of the self-regarding, or of the dissocial class. In such case the motive of benevolence has commonly been acting, though ineffectually, in the character of a restraining motive.

XLV.

An example may be of use, to show the variety of contending motives, by which a man may be acted upon at the same time. Crillon, a Catholic (at a time when it was generally thought meritorious among Catholics to extirpate Protestants), was ordered by his king, Charles IX. of France, to fall privately upon Coligny, a Protestant, and assassinate him: his answer was, “Excuse me, Sire: but I’ll fight him with all my heart.” Here, then, were all the three forces above mentioned, including that of the political sanction, acting upon him at once. By the political sanction, or at least so much of the force of it as such a mandate, from such a sovereign, issued on such an occasion, might be supposed to carry with it, he was enjoined to put Coligny to death in the way of assassination: by the religious sanction, that is, by the dictates of religious zeal, he was enjoined to put him to death in any way: by the moral sanction, or in other words, by the dictates of honour, that is, of the love of reputation, he was permitted (which permission, when coupled with the mandates of his sovereign, operated, he conceived, as an injunction) to fight the adversary upon equal terms: by the dictates of enlarged benevolence (supposing the mandate to be unjustifiable) he was enjoined not to attempt his life in any way, but to remain at peace with him: supposing the mandate to be unjustifiable, by the dictates of private benevolence he was enjoined not to meddle with him at any rate. Among this confusion of repugnant dictates, Crillon, it seems, gave the preference, in the first place, to those of honour: in the next place, to those of benevolence. He would have fought, had his offer been accepted: as it was not, he remained at peace.

Here a multitude of questions might arise. Supposing the dictates of the political sanction to follow the mandate of the sovereign, of what kind were the motives which they afforded him for compliance? The answer is, of the self-regarding kind at any rate: inasmuch as, by the supposition, it was in the power of the sovereign to punish him for non-compliance, or reward him for compliance. Did they afford him the motive of religion? (I mean independently of the circumstance of heresy above mentioned.) The answer is, Yes, if his notion was, that it was God’s pleasure he should comply with them: No, if it was not. Did they afford him the motive of the love of reputation? Yes, if it was his notion that the world would expect and require that he should comply with them. No, if it was not. Did they afford him that of benevolence? Yes, if it was his notion that the community would, upon the whole be the better for his complying with them. No, if it was not. But did the dictates of the political sanction, in the case in question, actually follow the mandates of the sovereign; in other words, was such a mandate legal? This, we see, is a mere question of local jurisprudence, altogether foreign to the present purpose.

The idea of the case here supposed is taken from an anecdote in real history, but varies from it in several particulars.

XLVI.

What is here said about the goodness and badness of motives, is far from being a mere matter of words. There will be occasion to make use of it hereafter for various important purposes. I shall have need of it for the sake of dissipating various prejudices, which are of disservice to the community, sometimes by cherishing the flame of civil dissensions,* at other times by obstructing the course of justice. It will be shown, that in the case of many offences, the consideration of the motive is a most material one: for that, in the first place, it makes a very material difference in the magnitude of the mischief. in the next place, that it is easy to be ascertained; and thence may be made a ground for a difference in the demand for punishment: but that in other cases it is altogether incapable of being ascertained; and that, were it capable of being ever so well ascertained, good or bad, it could make no difference in the demand for punishment: that in all cases, the motive that may happen to govern a prosecutor is a consideration totally immaterial: whence may be seen the mischievousness of the prejudice that is so apt to be entertained against informers; and the consequence it is of that the judge, in particular, should be proof against the influence of such delusions.

Lastly, the subject of motives is one with which it is necessary to be acquainted, in order to pass a judgment on any means that may be proposed for combating offences in their source.

But before the theoretical foundation for these practical observations can be completely laid, it is necessary we should say something on the subject of disposition: which, accordingly, will furnish matter for the ensuing chapter.

* See B. I. tit. [Rebellion.]

Ib. tit. [Simp. Corp. Injuries], [Homicide.]

See ch. xi. [Dispositions.]

See Essay on Indirect Methods of Preventing Offences.

Chapter XI.

Of Human Dispositions in General.

I.

In the foregoing chapter it has been shown at large, that goodness or badness cannot, with any propriety, be predicated of motives. Is there nothing, then, about a man that can properly be termed good or bad, when, on such or such an occasion, he suffers himself to be governed by such or such a motive? Yes, certainly: his disposition. Now disposition is a kind of fictitious entity, feigned for the convenience of discourse, in order to express what there is supposed to be permanent in a man’s frame of mind, where, on such or such an occasion, he has been influenced by such or such a motive, to engage in an act, which, as it appeared to him, was of such or such a tendency.

II.

It is with disposition as with every thing else: it will be good or bad according to its effects; according to the effects it has in augmenting or diminishing the happiness of the community. A man’s disposition may accordingly be considered in two points of view: according to the influence it has, either, 1. On his own happiness: or, 2. On the happiness of others. Viewed in both these lights together, or in either of them indiscriminately, it may be termed, on the one hand, good; on the other, bad; or, in flagrant cases, depraved.§ Viewed in the former of these lights, it has scarcely any peculiar name which has as yet been appropriated to it. It might be termed, though but inexpressively, frail or infirm, on the one hand: sound or firm, on the other. Viewed in the other light, it might be termed beneficent or meritorious, on the one hand: pernicious or mischievous, on the other. Now of that branch of a man’s disposition, the effects of which regard in the first instance only himself, there needs not much to be said here. To reform it when bad, is the business rather of the moralist than the legislator: nor is it susceptible of those various modifications which make so material a difference in the effects of the other. Again, with respect to that part of it, the effects whereof regard others in the first instance, it is only in as far as it is of a mischievous nature that the penal branch of law has any immediate concern with it: in as far as it may be of a beneficent nature, it belongs to a hitherto but little cultivated, and as yet unnamed branch of law, which might be styled the remuneratory.

§ It might also be termed virtuous, or vicious. The only objection to the use of those terms on the present occasion is, the great quantity of good and bad repute that respectively stand annexed to them. The inconvenience of this is, their being apt to annex an ill-proportioned measure of disrepute to dispositions which are ill-constituted only with respect to the party himself: involving them in such a degree of ignominy as should be appropriated to such dispositions only as are mischievous with regard to others. To exalt weaknesses to a level with crimes, is a way to diminish the abhorrence which ought to be reserved for crimes. To exalt small evils to a level with great ones, is the way to diminish the share of attention which ought to be paid to great ones.

III.

A man, then, is said to be of a mischievous disposition, when, by the influence of no matter what motives, he is presumed to be more apt to engage, or form intentions of engaging, in acts which are apparently of a pernicious tendency, than in such as are apparently of a beneficial tendency: of a meritorious or beneficent disposition, in the opposite case.

IV.

I say presumed: for, by the supposition, all that appears is one single action, attended with one single train of circumstances: but from that degree of consistency and uniformity which experience has shown to be observable in the different actions of the same person, the probable existence (past or future) of a number of acts of a similar nature is naturally and justly inferred from the observation of one single one. Under such circumstances, such as the motive proves to be in one instance, such is the disposition to be presumed to be in others.

V.

I say apparently mischievous; that is, apparently with regard to him; such as to him appear to possess that tendency: for from the mere event, independent of what to him it appears beforehand likely to be, nothing can be inferred on either side. If to him it appears likely to be mischievous, in such case, though in the upshot it should prove innocent, or even beneficial, it makes no difference; there is not the less reason for presuming his disposition to be a bad one: if to him to appears likely to be beneficial or innocent, in such case, though in the upshot it should prove pernicious, there is not the more reason on that account for presuming his disposition to be a good one. And here we see the importance of the circumstances of intentionality,* consciousness, unconsciousness, and mis-supposal.

* See ch. viii.

See ch. ix.

VI.

The truth of these positions depends upon two others, both of them sufficiently verified by experience: The one is, that in the ordinary course of things the consequences of actions commonly turn out conformable to intentions. A man who sets up a butcher’s shop, and deals in beef, when he intends to knock down an ox, commonly does knock down an ox; though by some unlucky accident he may chance to miss his blow and knock down a man: he who sets up a grocer’s shop, and deals in sugar, when he intends to sell sugar, commonly does sell sugar; though by some unlucky accident he may chance to sell arsenic in the room of it.

VII.

The other is, that a man who entertains intentions of doing mischief at one time is apt to entertain the like intentions at another.

To suppose a man to be of a good disposition, and at the same time likely, in virtue of that very disposition, to engage in an habitual train of mischievous actions, is a contradiction in terms: nor could such a proposition ever be advanced, but from the giving, to the thing which the word disposition is put for, a reality which does not belong to it. If, then, for example, a man of religious disposition should, in virtue of that very disposition, be in the habit of doing mischief, for instance by persecuting his neighbours, the case must be, either that his disposition, though good in certain respects, is not good upon the whole; or that a religious disposition is not in general a good one.

VIII.

There are two circumstances upon which the nature of the disposition, as indicated by any act, is liable to depend: 1. The apparent tendency of the act: 2. The nature of the motive which gave birth to it. This dependency is subject to different rules, according to the nature of the motive. In stating them, I suppose all along the apparent tendency of the act to be, as it commonly is, the same as the real.

IX.

1. Where the tendency of the act is good, and the motive is of the self-regarding kind. In this case, the motive affords no inference on either side. It affords no indication of a good disposition: but neither does it afford any indication of a bad one.

A baker sells his bread to a hungry man who asks for it. This, we see, is one of those acts of which, in ordinary cases, the tendency is unquestionably good. The baker’s motive is the ordinary commercial motive of pecuniary interest. It is plain, that there is nothing in the transaction, thus stated, that can afford the least ground for presuming that the baker is a better or a worse man than any of his neighbours.

X.

2. Where the tendency of the act is bad, and the motive, as before, is of the self-regarding kind. In this case, the disposition indicated is a mischievous one.

A man steals bread out of a baker’s shop: this is one of those acts of which the tendency will readily be acknowledged to be bad. Why, and in what respects it is so, will be stated farther on. His motive, we will say, is that of pecuniary interest; the desire of getting the value of the bread for nothing. His disposition, accordingly, appears to be a bad one: for every one will allow a thievish disposition to be a bad one.

See ch. xii. [Consequences], and Code, B. I. tit. [Theft.]

XI.

3. Where the tendency of the act is good, and the motive is the purely social one of good-will. In this case the disposition indicated is a beneficent one.

A baker gives a poor man a loaf of bread. His motive is compassion; a name given to the motive of benevolence, in particular cases of its operation. The disposition indicated by the baker, in this case, is such as every man will be ready enough to acknowledge to be a good one.

XII.

4. Where the tendency of the act is bad, and the motive is the purely social one of good-will. Even in this case, the disposition which the motive indicates is dubious: it may be a mischievous or a meritorious one, as it happens; according as the mischievousness of the act is more or less apparent.

XIII.

It may be thought, that a case of this sort cannot exist; and that to suppose it, is a contradiction in terms. For the act is one which, by the supposition, the agent knows to be a mischievous one. How, then, can it be, that good-will, that is, the desire of doing good, could have been the motive that led him into it? To reconcile this, we must advert to the distinction between enlarged benevolence and confined.* The motive that led him into it, was that of confined benevolence. Had he followed the dictates of enlarged benevolence, he would not have done what he did. Now, although he followed the dictates of that branch of benevolence, which in any single instance of its exertion is mischievous, when opposed to the other, yet, as the cases which call for the exertion of the former are, beyond comparison, more numerous than those which call for the exertion of the latter, the disposition indicated by him, in following the impulse of the former, will often be such as in a man, of the common run of men, may be allowed to be a good one upon the whole.

* See ch. x. [Motives.]

XIV.

A man with a numerous family of children, on the point of starving, goes into a baker’s shop, steals a loaf, divides it all among the children, reserving none of it for himself. It will be hard to infer that that man’s disposition is a mischievous one upon the whole. Alter the case: give him but one child, and that hungry perhaps, but in no imminent danger of starving: and now let the man set fire to a house full of people, for the sake of stealing money out of it to buy the bread with. The disposition here indicated will hardly be looked upon as a good one.

XV.

Another case will appear more difficult to decide than either. Ravaillac assassinated one of the best and wisest of sovereigns, at a time when a good and wise sovereign, a blessing at all times so valuable to a state, was particularly precious; and that to the inhabitants of a populous and extensive empire. He is taken, and doomed to the most excruciating tortures. His son, well persuaded of his being a sincere penitent, and that mankind, in case of his being at large, would have nothing more to fear from him, effectuates his escape: Is this, then, a sign of a good disposition in the son, or of a bad one? Perhaps some will answer, of a bad one; for, besides the interest which the nation has in the sufferings of such a criminal, on the score of the example, the future good behaviour of such a criminal is more than any one can have sufficient ground to be persuaded of.

XVI.

Well, then, let Ravaillac, the son, not facilitate his father’s escape; but content himself with conveying poison to him, that at the price of an easier death he may escape his torments. The decision will now, perhaps, be more difficult. The act is a wrong one, let it be allowed, and such as ought by all means to be punished: but is the disposition manifested by it a bad one? Because the young man breaks the laws in this one instance, is it probable, that if let alone, he would break the laws in ordinary instances, for the satisfaction of any inordidate desires of his own? The answer of most men would probably be in the negative.

XVII.

5. Where the tendency of the act is good, and the motive is a semi-social one, the love of reputation. In this case, the disposition indicated is a good one.

In a time of scarcity, a baker, for the sake of gaining the esteem of the neighbourhood, distributes bread gratis among the industrious poor. Let this be taken for granted: and let it be allowed to be a matter of uncertainty, whether he had any real feeling for the sufferings of those whom he has relieved, or no. His disposition, for all that, cannot, with any pretence of reason, be termed otherwise than a good and beneficent one. It can only be in consequence of some very idle prejudice, if it receives a different name.

The bulk of mankind, ever ready to depreciate the character of their neighbours, in order indirectly to exalt their own, will take occasion to refer a motive to the class of bad ones as often as they can find one still better, to which the act might have owed its birth. Conscious that his own motives are not of the best class, or persuaded that if they be, they will not be referred to that class by others; afraid of being taken for a dupe, and anxious to show the reach of his penetration; each man takes care, in the first place, to impute the conduct of every other man to the least laudable of the motives that can account for it: in the next place, when he has gone as far that way as he can, and cannot drive down the individual motive to any lower class, he changes his battery, and attacks the very class itself. To the love of reputation he will accordingly give a bad name upon every occasion, calling it ostentation, vanity, or vain-glory.

Partly to the same spirit of detraction, the natural consequence of the sensibility of men to the force of the moral sanction, partly to the influence of the principle of asceticism, may, perhaps, be imputed the great abundance of bad names of motives, in comparison of such as are good or neutral: and, in particular, the total want of neutral names for the motives of sexual desire, physical desire in general, and pecuniary interest. The superior abundance, even of good names, in comparison of neutral ones, would, if examined, be found rather to confirm than disprove the above remark. The language of a people on these points may, perhaps, serve in some measure as a key to their moral sentiments. But such speculative disquisitions are foreign to the purpose of the present work.

XVIII.

6. Where the tendency of the act is bad, and the motive, as before, is a semi-social one, the love of reputation. In this case, the disposition which it indicates is more or less good or bad: in the first place, according as the tendency of the act is more or less mischievous: in the next place, according as the dictates of the moral sanction, in the society in question, approach more or less to a coincidence with those of utility. It does not seem probable, that in any nation, which is in a state of tolerable civilization, in short, in any nation in which such rules as these can come to be consulted, the dictates of the moral sanction will so far recede from a coincidence with those of utility (that is, of enlightened benevolence) that the disposition indicated in this case can be otherwise than a good one upon the whole.

XIX.

An Indian receives an injury, real or imaginary, from an Indian of another tribe. He revenges it upon the person of his antagonist with the most excruciating torments: the case being, that cruelties inflicted on such an occasion gain him reputation in his own tribe. The disposition manifested in such a case can never be deemed a good one, among a people ever so few degrees advanced, in point of civilization, above the Indians.

XX.

A nobleman (to come back to Europe) contracts a debt with a poor tradesman. The same nobleman, presently afterwards, contracts a debt, to the same amount, to another nobleman, at play. He is unable to pay both: he pays the whole debt to the companion of his amusements, and no part of it to the tradesman. The disposition manifested in this case can scarcely be termed otherwise than a bad one. It is certainly, however, not so bad as if he had paid neither. The principle of love of reputation, or (as it is called in the case of this partial application of it) honour, is here opposed to the worthier principle of benevolence, and gets the better of it. But it gets the better also of the self-regarding principle of pecuniary interest. The disposition, therefore, which it indicates, although not so good a one as that in which the principle of benevolence predominates, is better than one in which the principle of self-interest predominates. He would be the better for having more benevolence: but would he be the better for having no honour? This seems to admit of great dispute.*

* See the case of Duels discussed in B. I. tit. [Homicide.]

XXI.

7. Where the tendency of the act is good, and the motive is the semi-social one of religion. In this case, the disposition indicated by it (considered with respect to the influence of it on the man’s conduct towards others) is manifestly a beneficent and meritorious one.

A baker distributes bread gratis among the industrious poor. It is not that he feels for their distresses: nor is it for the sake of gaining reputation among his neighbours. It is for the sake of gaining the favour of the Deity; to whom, he takes for granted, such conduct will be acceptable. The disposition manifested by such conduct is plainly what every man would call a good one.

XXII.

8. Where the tendency of the act is bad, and the motive is that of religion, as before. In this case the disposition is dubious. It is good or bad, and more or less good or bad, in the first place, as the tendency of the act is more or less mischievous; in the next place, according as the religious tenets of the person in question approach more or less to a coincidence with the dictates of utility.

XXIII.

It should seem from history, that even in nations in a tolerable state of civilization in other respects, the dictates of religion have been found so far to recede from a coincidence with those of utility; in other words, from those of enlightened benevolence; that the disposition indicated in this case may even be a bad one upon the whole. This, however, is no objection to the inference which it affords of a good disposition in those countries (such as perhaps are most of the countries of Europe at present) in which its dictates respecting the conduct of a man towards other men approach very nearly to a coincidence with those of utility. The dictates of religion, in their application to the conduct of a man in what concerns himself alone, seem in most European nations to savour a good deal of the ascetic principle: but the obedience to such mistaken dictates indicates not any such disposition as is likely to break out into acts of pernicious tendency with respect to others. Instances in which the dictates of religion lead a man into acts which are pernicious in this latter view, seem at present to be but rare: unless it be acts of persecution, or impolitic measures on the part of government, where the law itself is either the principal actor, or an accomplice in the mischief. Ravaillac, instigated by no other motive than this, gave his country one of the most fatal stabs that a country ever received from a single hand: but happily the Ravaillacs are but rare. They have been more frequent, however, in France, than in any other country during the same period: and it is remarkable, that in every instance it is this motive that has produced them. When they do appear, however, nobody, I suppose, but such as themselves, will be for terming a disposition, such as they manifest, a good one. It seems hardly to be denied, but that they are just so much the worse for their notions of religion; and that had they been left to the sole guidance of benevolence, and the love of reputation, without any religion at all, it would have been but so much the better for mankind. One may say nearly the same thing, perhaps, of those persons who, without any particular obligation, have taken an active part in the execution of laws made for the punishment of those who have the misfortune to differ with the magistrate in matters of religion, much more of the legislator himself, who has put it in their power. If Louis XIV, had had no religion, France would not have lost 800,000 of its most valuable subjects. The same thing may be said of the authors of the wars called holy ones; whether waged against persons called Infidels, or persons branded with the still more odious name of Heretics. In Denmark, not a great many years ago, a a sect is said to have arisen, who by a strange perversion of reason took it into their heads, that, by leading to repentance, murder, or any other horrid crime, might be made the road to heaven. It should all along, however, be observed, that instances of this latter kind were always rare; and that, in almost all the countries of Europe, instances of the former kind, though once abundantly frequent, have for some time ceased. In certain countries, however, persecution at home (or what produces a degree of restraint, which is one part of the mischiefs of persecution; I mean the disposition to persecute whensoever occasion happens) is not yet at an end: insomuch that if there is no actual persecution, it is only because there are no heretics; and if there are no heretics, it is only because there are no thinkers.*

* See B. I. tit. [Offences against Religion.]

XXIV.

9. Where the tendency of the act is good, and the motive (as before) is the dissocial one of ill-will. In this case, the motive seems not to afford any indication on either side: it is no indication of a good disposition; but neither is it any indication of a bad one.

You have detected a baker in selling short weight: you prosecute him for the cheat. It is not for the sake of gain that you engaged in the prosecution; for there is nothing to be got by it: it is not from public spirit: it is not for the sake of reputation; for there is no reputation to be got by it: it is not in the view of pleasing the Deity: it is merely on account of a quarrel you have with the man you prosecute. From the transaction, as thus stated, there does not seem to be any thing to be said either in favour of your disposition or against it. The tendency of the act is good: but you would not have engaged in it, had it not been from a motive which there seems no particular reason to conclude will ever prompt you to engage in an act of the same kind again. Your motive is of that sort which may, with least impropriety, be termed a bad one: but the act is of that sort, which, were it engaged in ever so often, could never have any evil tendency; nor indeed any other tendency than a good one. By the supposition, the motive it happened to be dictated by was that of ill-will: but the act itself is of such a nature as to have wanted nothing but sufficient discernment on your part in order to have been dictated by the most enlarged benevolence. Now, from a man’s having suffered himself to be induced to gratify his resentment by means of an act of which the tendency is good, it by no means follows that he would be ready on another occasion, through the influence of the same sort of motive, to engage in any act of which the tendency is a bad one. The motive that impelled you was a dissocial one: but what social motive could there have been to restrain you? None, but what might have been outweighed by a more enlarged motive of the same kind. Now, because the dissocial motive prevailed when it stood alone, it by no means follows that it would prevail when it had a social one to combat it.

XXV.

10. Where the tendency of the act is bad, and the motive is the dissocial one of malevolence. In this case, the disposition it indicates is of course a mischievous one.

The man who stole the bread from the baker, as before, did it with no other view than merely to impoverish and afflict him: accordingly, when he had got the bread, he did not eat, or sell it; but destroyed it. That the disposition, evidenced by such a transaction, is a bad one, is what every body must perceive immediately.

XXVI.

Thus much with respect to the circumstances from which the mischievousness or meritoriousness of a man’s disposition is to be inferred in the gross: we come now to the measure of that mischievousness or meritoriousness, as resulting from those circumstances. Now with meritorious acts and dispositions we have no direct concern in the present work. All that penal law is concerned to do, is to measure the depravity of the disposition where the act is mischievous. To this object, therefore, we shall here confine ourselves.

XXVII.

It is evident, that the nature of a man’s disposition must depend upon the nature of the motives he is apt to be influenced by; in other words, upon the degree of his sensibility to the force of such and such motives. For his disposition is, as it were, the sum of his intentions: the disposition he is of during a certain period, the sum or result of his intentions during that period. If, of the acts he has been intending to engage in during the supposed period, those which are apparently of a mischievous tendency bear a large proportion to those which appear to him to be of the contrary tendency, his disposition will be of the mischievous cast: if but a small proportion, of the innocent or upright.

XXVIII.

Now intentions, like every thing else, are produced by the things that are their causes: and the causes of intentions are motives. If, on any occasion, a man forms either a good or a bad intention, it must be by the influence of some motive.

XXIX.

When the act, which a motive prompts a man to engage in, is of a mischievous nature, it may, for distinction’s sake, be termed a seducing or corrupting motive: in which case also any motive which, in opposition to the former, acts in the character of a restraining motive, may be styled a tutelary, conservatory, preservatory, or preserving motive.

XXX.

Tutelary motives may again be distinguished into standing or constant, and occasional. By standing tutelary motives, I mean such as act with more or less force in all, or at least in most cases, tending to restrain a man from any mischievous acts he may be prompted to engage in; and that with a force which depends upon the general nature of the act, rather than upon any accidental circumstance with which any individual act of that sort may happen to be accompanied. By occasional tutelary motives, I mean such motives as may chance to act in this direction or not, according to the nature of the act, and of the particular occasion on which the engaging in it is brought into contemplation.

XXXI.

Now it has been shown, that there is no sort of motive by which a man may not be prompted to engage in acts that are of a mischievous nature; that is, which may not come to act in the capacity of a seducing motive. It has been shown, on the other hand, that there are some motives which are remarkably less likely to operate in this way than others. It has also been shown, that the least likely of all is that of benevolence or good-will: the most common tendency of which, it has been shown, is to act in the character of a tutelary motive. It has also been shown, that even when by accident it acts in one way in the character of a seducing motive, still in another way it acts in the opposite character of a tutelary one. The motive of good-will, in as far as it respects the interests of one set of persons, may prompt a man to engage in acts which are productive of mischief to another and more extensive set: but this is only because his good-will is imperfect and confined; not taking into contemplation the interests of all the persons whose interests are at stake. The same motive, were the affection it issued from more enlarged, would operate effectually, in the character of a constraining motive, against that very act to which, by the supposition, it gives birth. This same sort of motive may therefore, without any real contradiction or deviation from truth, be ranked in the number of standing tutelary motives, notwithstanding the occasions in which it may act at the same time in the character of a seducing one.

XXXII.

The same observation, nearly, may be applied to the semi-social motive of love of reputation. The force of this, like that of the former, is liable to be divided against itself. As in the case of good-will, the interests of some of the persons, who may be the objects of that sentiment, are liable to be at variance with those of others: so in the case of love of reputation, the sentiments of some of the persons, whose good opinion is desired, may be at variance with the sentiments of other persons of that number. Now in the case of an act, which is really of a mischievous nature, it can scarcely happen that there shall be no persons whatever who will look upon it with an eye of disapprobation. It can scarcely ever happen, therefore, that an act really mischievous shall not have some part at least, if not the whole, of the force of this motive to oppose it; nor, therefore, that this motive should not act with some degree of force in the character of a tutelary motive. This, therefore, may be set down as another article in the catalogue of standing tutelary motives.

XXXIII.

The same observation may be applied to the desire of amity, though not in altogether equal measure. For, notwithstanding the mischievousness of an act, it may happen, without much difficulty, that all the persons for whose amity a man entertains any particular present desire which is accompanied with expectation, may concur in regarding it with an eye rather of approbation than the contrary. This is but too apt to be the case among such fraternities as those of thieves, smugglers, and many other denominations of offenders. This, however, is not constantly, nor indeed most commonly the case; insomuch that the desire of amity may still be regarded, upon the whole, as a tutelary motive, were it only from the closeness of its connexion with the love of reputation. And it may be ranked among standing tutelary motives, since, where it does apply, the force with which it acts depends not upon the occasional circumstances of the act which it opposes, but upon principles as general as those upon which depend the action of the other semi-social motives.

XXXIV.

The motive of religion is not altogether in the same case with the three former. The force of it is not, like theirs, liable to be divided against itself; I mean in the civilized nations of modern times, among whom the notion of the unity of the Godhead is universal. In times of classical antiquity it was otherwise. If a man got Venus on his side, Pallas was on the other: if Æolus was for him, Neptune was against him. Æneas, with all his piety, had but a partial interest at the court of heaven. That matter stands upon a different footing now-a-days. In any given person, the force of religion, whatever it be, is now all of it on one side. It may balance, indeed, on which side it shall declare itself: and it may declare itself, as we have seen already in but too many instances, on the wrong as well as on the right. It has been, at least till lately, perhaps is still accustomed so much to declare itself on the wrong side, and that in such material instances, that on that account it seemed not proper to place it, in point of social tendency, on a level altogether with the motive of benevolence. Where it does act, however, as it does in by far the greatest number of cases, in opposition to the ordinary seducing motives, it acts, like the motive of benevolence, in an uniform manner, not depending upon the particular circumstances that may attend the commission of the act; but tending to oppose it, merely on account of its mischievousness, and therefore with equal force, in whatsoever circumstances it may be proposed to be committed. This, therefore, may also be added to the catalogue of standing tutelary motives.

XXXV.

As to the motives which may operate occasionally in the character of tutelary motives, these, it has been already intimated, are of various sorts, and various degrees of strength in various offences: depending not only upon the nature of the offence, but upon the accidental circumstances in which the idea of engaging in it may come in contemplation. Nor is there any sort of motive which may not come to operate in this chaacter; as may be easily conceived. A thief, for instance, may be prevented from engaging in a projected scheme of house-breaking, by sitting too long over his bottle,* by a visit from his doxy, by the occasion he may have to go elsewhere, in order to receive his dividend of a former booty; and so on.

* Love of the pleasures of the palate.

Pecuniary interest.

XXXVI.

There are some motives, however, which seem more apt to act in this character than others; especially as things are now constituted, now that the law has every where opposed to the force of the principal seducing motives, artificial tutelary motives of its own creation. Of the motives here meant it will be necessary to take a general view. They seem to be reducible to two heads, viz. 1. The love of ease; a motive put into action by the prospect of the trouble of the attempt; that is, the trouble which it may be necessary to bestow in overcoming the physical difficulties that may accompany it. 2. Self-preservation, as opposed to the dangers to which a man may be exposed in the prosecution of it.

XXXVII.

These dangers may be either, 1. Of a purely physical nature: or, 2. Dangers resulting from moral agency; in other words, from the conduct of any such persons to whom the act, if known, may be expected to prove obnoxious. But moral agency supposes knowledge with respect to the circumstances that are to have the effect of external motives in giving birth to it. Now the obtaining such knowledge, with respect to the commission of any obnoxious act, on the part of any persons who may be disposed to make the agent suffer for it, is called detection, and the agent concerning whom such knowledge is obtained, is said to be detected. The dangers, therefore, which may threaten an offender from this quarter, depend, whatever they be, on the event of his detection; and may, therefore, be all of them comprised under the article of the danger of detection.

XXXVIII.

The danger depending upon detection may be divided again into two branches: 1. That which may result from any opposition that may be made to the enterprise by persons on the spot; that is, at the very time the enterprise is carrying on: 2. That which respects the legal punishment, or other suffering, that may await at a distance upon the issue of the enterprise.

XXXIX.

It may be worth calling to mind on this occasion, that among the tutelary motives, which have been styled constant ones, there are two, of which the force depends (though not so entirely as the force of the occasional ones which have been just mentioned, yet in a great measure) upon the circumstance of detection. These, it may be remembered, are, the love of reputation, and the desire of amity. In proportion, therefore, as the chance of being detected appears greater, these motives will apply with the greater force: with the less force, as it appears less. This is not the case with the two other standing tutelary motives, that of benevolence, and that of religion.

XL.

We are now in a condition to determine, with some degree of precision, what is to be understood by the strength of a temptation, and what indication it may give of the degree of mischievousness in a man’s disposition in the case of any offence. When a man is prompted to engage in any mischievous act, we will say, for shortness, in an offence, the strength of the temptation depends upon the ratio between the force of the seducing motives on the one hand, and such of the occasional tutelary ones, as the circumstances of the case call forth into action, on the other. The temptation, then, may be said to be strong, when the pleasure or advantage to be got from the crime is such as in the eyes of the offender must appear great in comparison of the trouble and danger that appear to him to accompany the enterprise: slight or weak, when that pleasure or advantage is such as must appear small in comparison of such trouble and such danger. It is plain, the strength of the temptation depends not upon the force of the impelling (that is, of the seducing) motives altogether: for let the opportunity be more favourable, that is, let the trouble, or any branch of the danger, be made less than before, it will be acknowledged, that the temptation is made so much the stronger: and on the other hand, let the opportunity become less favourable, or, in other words, let the trouble, or any branch of the danger, be made greater than before, the temptation will be so much the weaker.

Now, after taking account of such tutelary motives as have been styled occasional, the only tutelary motives that can remain are those which have been termed standing ones. But those which have been termed the standing tutelary motives, are the same that we have been styling social. It follows, therefore, that the strength of the temptation, in any case, after deducting the force of the social motives, is as the sum of the forces of the seducing, to the sum of the forces of the occasional tutelary motives.

XLI.

It remains to be inquired, what indication concerning the mischievousness or depravity of a man’s disposition is afforded by the strength of the temptation, in the case where any offence happens to have been committed. It appears, then, that the weaker the temptation is, by which a man has been overcome, the more depraved and mischievous it shows his disposition to have been. For the goodness of his disposition is measured by the degree of his sensibility to the action of the social motives:* in other words, by the strength of the influence which those motives have over him. Now, the less considerable the force is by which their influence on him has been overcome, the more convincing is the proof that has been given of the weakness of that influence.

Again, the degree of a man’s sensibility to the force of the social motives being given, it is plain that the force with which those motives tend to restrain him from engaging in any mischievous enterprise will be as the apparent mischievousness of such enterprise, that is, as the degree of mischief with which it appears to him likely to be attended. In other words, the less mischievous the offence appears to him to be, the less averse he will be, as far as he is guided by social considerations, to engage in it: the more mischievous, the more averse. If, then, the nature of the offence is such as must appear to him highly mischievous, and yet he engages in it notwithstanding, it shows, that the degree of his sensibility to the force of the social motives is but slight; and consequently that his disposition is proportionably depraved. Moreover, the less the strength of the temptation was, the more pernicious and depraved does it show his disposition to have been. For the less the strength of the temptation was, the less was the force which the influence of those motives had to overcome: the clearer, therefore, is the proof that has been given of the weakness of that influence.

* Supra, par. 27, 28.

XLII.

From what has been said, it seems that, for judging of the indication that is afforded concerning the depravity of a man’s disposition by the strength of the temptation, compared with the mischievousness of the enterprise, the following rules may be laid down:

Rule 1. The strength of the temptation being given, the mischievousness of the disposition manifested by the enterprise, is as the apparent mischievousness of the act.

Thus, it would show a more depraved disposition, to murder a man for a reward of a guinea, or falsely to charge him with a robbery for the same reward, than to obtain the same sum from him by simple theft: the trouble he would have to take, and the risk he would have to run, being supposed to stand on the same footing in the one case as in the other.

Rule 2. The apparent mischievousness of the act being given, a man’s disposition is the more depraved, the slighter the temptation is by which he has been overcome.

Thus, it shows a more depraved and dangerous disposition, if a man kill another out of mere sport, as the Emperor of Morocco, Muley Mahomet, is said to have done great numbers; than out of revenge, as Sylla and Marius did thousands; or in the view of self-preservation, as Augustus killed many; or even for lucre, as the same Emperor is said to have killed some. And the effects of such a depravity, on that part of the public which is apprized of it, run in the same proportion. From Augustus, some persons only had to fear, under some particular circumstances: from Muley Mahomet, every man had to fear at all times.

Rule 3. The apparent mischievousness of the act being given, the evidence which it affords of the depravity of a man’s disposition is the less conclusive, the stronger the temptation is by which he has been overcome.

Thus, if a poor man, who is ready to die with hunger, steal a loaf of bread, it is a less explicit sign of depravity, than if a rich man were to commit a theft to the same amount. It will be observed, that in this rule all that is said is, that the evidence of depravity is in this case the less conclusive: it is not said that the depravity is positively the less. For in this case it is possible, for any thing that appears to the contrary, that the theft might have been committed, even had the temptation been not so strong. In this case, the alleviating circumstance is only a matter of presumption; in the former, the aggravating circumstance is a matter of certainty.

Rule 4. Where the motive is of the dissocial kind, the apparent mischievousness of the act, and the strength of the temptation, being given, the depravity is as the degree of deliberation with which it is accompanied.

For in every man, be his disposition ever so depraved, the social motives are those which, wherever the self-regarding ones stand neuter, regulate and determine the general tenor of his life. If the dissocial motives are put in action, it is only in particular circumstances, and on particular occasions; the gentle but constant force of the social motives being for a while subdued. The general and standing bias of every man’s nature is, therefore, towards that side to which the force of the social motives would determine him to adhere. This being the case, the force of the social motives tends continually to put an end to that of the dissocial ones; as, in natural bodies, the force of friction tends to put an end to that which is generated by impulse. Time, then, which wears away the force of the dissocial motives, adds to that of the social. The longer, therefore, a man continues, on a given occasion, under the dominion of the dissocial motives, the more convincing is the proof that has been given of his insensibility to the force of the social ones.

Thus, it shows a worse disposition, where a man lays a deliberate plan for beating his antagonist, and beats him accordingly, than if he were to beat him upon the spot, in consequence of a sudden quarrel: and worse again, if, after having had him a long while together in his power, he beats him at intervals, and at his leisure.*

* See B. I. tit. [Confinement.]

XLIII.

The depravity of disposition indicated by an act is a material consideration in several respects. Any mark of extraordinary depravity, by adding to the terror already inspired by the crime, and by holding up the offender as a person from whom there may be more mischief to be apprehended in future, adds in that way to the demand for punishment. By indicating a general want of sensibility on the part of the offender, it may add in another way also to the demand for punishment. The article of disposition is of the more importance, inasmuch as, in measuring out the quantum of punishment, the principle of sympathy and antipathy is apt to look at nothing else. A man who punishes because he hates, and only because he hates, such a man, when he does not find any thing odious in the disposition, is not for punishing at all; and when he does, he is not for carrying the punishment further than his hatred carries him. Hence the aversion we find so frequently expressed against the maxim, that the punishment must rise with the strength of the temptation; a maxim, the contrary of which, as we shall see, would be as cruel to offenders themselves, as it would be subversive of the purposes of punishment.

Chapter XII.

Of the Consequences of a Mischievous Act.

§ 1.

Shapes in which the Mischief of an Act may show itself.

I.

Hitherto we have been speaking of the various articles or objects on which the consequences or tendency of an act may depend: of the bare act itself: of the circumstances it may have been, or may have been supposed to be, accompanied with: of the consciousness a man may have had with respect to any such circumstances: of the intentions that may have preceded the act: of the motives that may have given birth to those intentions: and of the disposition that may have been indicated by the connexion between such intentions and such motives. We now come to speak of consequences or tendency: an article which forms the concluding link in all this chain of causes and effects, involving in it the materiality of the whole. Now, such part of this tendency as is of a mischievous nature, is all that we have any direct concern with; to that, therefore, we shall here confine ourselves.

II.

The tendency of an act is mischievous when the consequences of it are mischievous; that is to say, either the certain consequences or the probable. The consequences, how many and whatsoever they may be, of an act, of which the tendency is mischievous, may, such of them as are mischievous, be conceived to constitute one aggregate body, which may be termed the mischief of the act.

III.

This mischief may frequently be distinguished, as it were, into two shares or parcels: the one containing what may be called the primary mischief; the other, what may be called the secondary. That share may be termed the primary, which is sustained by an assignable individual, or a multitude of assignable individuals. That share may be termed the secondary, which, taking its origin from the former, extends itself either over the whole community, or over some other multitude of unassignable individuals.

IV.

The primary mischief of an act may again be distinguished into two branches: 1. The original: and, 2. The derivative. By the original branch, I mean that which alights upon and is confined to any person who is a sufferer in the first instance, and on his own account; the person, for instance, who is beaten, robbed, or murdered. By the derivative branch, I mean any share of mischief which may befal any other assignable persons in consequence of his being a sufferer, and no otherwise. These persons must, of course, be persons who, in some way or other, are connected with him. Now, the ways in which one person may be connected with another, have been already seen: they may be connected in the way of interest (meaning self-regarding interest) or merely in the way of sympathy. And again, persons connected with a given person, in the way of interest, may be connected with him either by affording support to him, or by deriving it from him.*

* See ch. vi. [Sensibility.]

V.

The secondary mischief, again, may frequently be seen to consist of two other shares or parcels: the first consisting of pain; the other of danger. The pain which it produces is a pain of apprehension; a pain grounded on the apprehension of suffering such mischiefs or inconveniences, whatever they may be, as it is the nature of the primary mischief to produce. It may be styled, in one word, the alarm. The danger is the chance, whatever it may be, which the multitude it concerns may, in consequence of the primary mischief, stand exposed to, of suffering such mischiefs or inconveniences. For danger is nothing but the chance of pain, or, what comes to the same thing, of loss of pleasure.

VI.

An example may serve to make this clear. A man attacks you on the road, and robs you. You suffer a pain on the occasion of losing so much money: you also suffered a pain at the thoughts of the personal ill-treatment you apprehended he might give you, in case of your not happening to satisfy his demands. These together constitute the original branch of the primary mischief, resulting from the act of robbery. A creditor of your’s, who expected you to pay him with part of that money, and a son of your’s, who expected you to have given him another part, are in consequence disappointed. You are obliged to have recourse to the bounty of your father, to make good part of the deficiency. These mischiefs together make up the derivative branch. The report of this robbery circulates from hand to hand, and spreads itself in the neighbourhood. It finds its way into the newspapers, and is propagated over the whole country. Various people, on this occasion, call to mind the danger which they and their friends, as it appears from this example, stand exposed to in travelling; especially such as may have occasion to travel the same road. On this occasion they naturally feel a certain degree of pain: slighter or heavier, according to the degree of ill-treatment they may understand you to have received; the frequency of the occasion each person may have to travel in that same road, or its neighbourhood; the vicinity of each person to the spot; his personal courage; the quantity of money he may have occasion to carry about with him; and a variety of other circumstances. This constitutes the first part of the secondary mischief, resulting from the act of robbery; viz. the alarm. But people of one description or other, not only are disposed to conceive themselves to incur a chance of being robbed, in consequence of the robbery committed upon you, but (as will be shown presently) they do really incur such a chance. And it is this chance which constitutes the remaining part of the secondary mischief of the act of robbery; viz. the danger.

Viz. a pain of privation. See ch. v. [Pleasures and Pains], par. 17.

Viz. a pain of apprehension, grounded on the prospect of organical pain, or whatever other mischiefs might have ensued from the ill treatment. Ib. par. 30.

VII.

Let us see what this chance amounts to; and whence it comes. How is it, for instance, that one robbery can contribute to produce another? In the first place, it is certain that it cannot create any direct motive. A motive must be the prospect of some pleasure, or other advantage, to be enjoyed in future: but the robbery in question is past: nor would it furnish any such prospect were it to come; for it is not one robbery that will furnish pleasure to him who may be about to commit another robbery. The consideration that is to operate upon a man, as a motive or inducement to commit a robbery, must be the idea of the pleasure he expects to derive from the fruits of that very robbery: but this pleasure exists independently of any other robbery.

VIII.

The means, then, by which one robbery tends, as it should seem, to produce another robbery, are two: 1. By suggesting to a person exposed to the temptation, the idea of committing such another robbery (accompanied, perhaps, with the belief of its facility.) In this case the influence it exerts applies itself, in the first place, to the understanding. 2. By weakening the force of the tutelary motives which tend to restrain him from such an action, and thereby adding to the strength of the temptation.* In this case the influence applies itself to the will. These forces are, 1. The motive of benevolence, which acts as a branch of the physical sanction. 2. The motive of self-preservation, as against the punishment that may stand provided by the political sanction. 3. The fear of shame; a motive belonging to the moral sanction. 4. The fear of the divine displeasure; a motive belonging to the religious sanction. On the first and last of these forces it has, perhaps, no influence worth insisting on; but it has on the other two.

* See ch. xi. [Dispositions], par. 40.

To wit, in virtue of the pain it may give a man to be a witness to, or otherwise conscious of, the sufferings of a fellow-creature: especially when he is himself the cause of them: in a word, the pain of sympathy. See ch. v. [Pleasures and Pains], par. 26.

IX.

The way in which a past robbery may weaken the force with which the political sanction tends to prevent a future robbery, may be thus conceived. The way in which this sanction tends to prevent a robbery, is by denouncing some particular kind of punishment against any who shall be guilty of it: the real value of which punishment will of course be diminished by the real uncertainty: as also, if there be any difference, the apparent value by the apparent uncertainty. Now this uncertainty is proportionably increased by every instance in which a man is known to commit the offence, without undergoing the punishment. This, of course, will be the case with every offence for a certain time; in short, until the punishment allotted to it takes place. If punishment takes place at last, this branch of the mischief of the offence is then at last, but not till then, put a stop to.

X.

The way in which a past robbery may weaken the force with which the moral sanction tends to prevent a future robbery, may be thus conceived. The way in which the moral sanction tends to prevent a robbery is by holding forth the indignation of mankind as ready to fall upon him who shall be guilty of it. Now this indignation will be the more formidable, according to the number of those who join in it: it will be the less so, the fewer they are who join in it. But there cannot be a stronger way of showing that a man does not join in whatever indignation may be entertained against a practice, than the engaging in it himself. It shows not only that he himself feels no indignation against it, but that it seems to him there is no sufficient reason for apprehending what indignation may be felt against it by others. Accordingly, where robberies are frequent, and unpunished, robberies are committed without shame. It was thus amongst the Grecians formerly. It is thus among the Arabs still.

See Hom. Odyss. L. xix. l. 395. Ib. L. iii. l. 71. Plato de Rep. L. i. p. 576, edit. Ficin. Thucyd. L. i. And see B. I. tit. [Offences against External Security.]

XI.

In whichever way, then, a past offence tends to pave the way for the commission of a future offence, whether by suggesting the idea of committing it, or by adding to the strength of the temptation, in both cases it may be said to operate by the force or influence of example.

XII.

The two branches of the secondary mischief of an act, the alarm and the danger, must not be confounded: though intimately connected, they are perfectly distinct: either may subsist without the other. The neighbourhood may be alarmed with the report of a robbery, when, in fact, no robbery either has been committed, or is in a way to be committed: a neighbourhood may be on the point of being disturbed by robberies, without knowing any thing of the matter. Accordingly, we shall soon perceive, that some acts produce alarm without danger: others, danger without alarm.

XIII.

As well the danger as the alarm may again be divided, each of them, into two branches: the first, consisting of so much of the alarm or danger as may be apt to result from the future behaviour of the same agent: the second, consisting of so much as may be apt to result from the behaviour of other persons: such others, to wit, as may come to engage in acts of the same sort and tendency.*

* To the former of these branches is opposed so much of the force of any punishment, as is said to operate in the way of reformation: to the latter, so such as is said to operate in the way of example. See ch. xv. [Cases unmeet], par. 2, note.

XIV.

The distinction between the primary and the secondary consequences of an act, must be carefully attended to. It is so just, that the latter may often be of a directly opposite nature to the former. In some cases, where the primary consequences of the act are attended with a mischief, the secondary consequences may be beneficial, and that to such a degree, as even greatly to outweigh the mischief of the primary. This is the case, for instance, with all acts of punishment, when properly applied. Of these, the primary mischief being never intended to fall but upon such persons as may happen to have committed some act which it is expedient to prevent; the secondary mischief, that is, the alarm and the danger, extends no farther than to such persons as are under temptation to commit it: in which case, in as far as it tends to restrain them from committing such acts, it is of a beneficial nature.

XV.

Thus much with regard to acts that produce positive pain, and that immediately. This case, by reason of its simplicity, seemed the fittest to take the lead. But acts may preduce mischief in various other ways, which, together with those already specified, may all be comprised by the following abridged analysis.

Mischief may admit of a division in any one of three points of view: 1. According to its own nature. 2. According to its cause. 3. According to the person, or other party, who is the object of it. With regard to its nature, it may be either simple or complex: when simple, it may either be positive or negative: positive, consisting of actual pain: negative, consisting of the loss of pleasure. Whether simple or complex, and whether positive or negative, it may be either certain or contingent. When it is negative, it consists of the loss of some benefit or advantage: this benefit may be material in both or either of two ways: 1. By affording actual pleasure: or, 2. By averting pain or danger, which is the chance of pain; that is, by affording security. In as far, then, as the benefit which a mischief tends to avert is productive of security, the tendency of such mischief is to produce insecurity. 2. With regard to its cause, mischief may be produced either by one single action, or not without the concurrence of other actions: if not without the concurrence of other actions, these others may be the actions either of the same person, or of other persons: in either case, they may be either acts of the same kind as that in question, or of other kinds. 3. Lastly, with regard to the party who is the object of the mischief, or, in other words, who is in a way to be affected by it, such party may be either an assignable individual, or assemblage of individuals, or else a multitude of unassignable individuals. When the object is an assignable individual, this individual may either be the person himself, who is the author of the mischief, or some other person. When the individuals, who are the objects of it, are an unassignable multitude, this multitude may be either the whole political community or state, or some subordinate division of it. Now, when the object of the mischief is the author himself, it may be styled self-regarding: when any other party is the object, extra-regarding: when such other party is an individual, it may be styled private: when a subordinate branch of the community, semi-public: when the whole community, public. Here, for the present, we must stop. To pursue the subject through its inferior distinctions, will be the business of the chapter which exhibits the division of offences.*

The cases which have been already illustrated, are those in which the primary mischief is not necessarily otherwise than a simple one, and that positive: present, and therefore certain: producible by a single action, without any necessity of the concurrence of any other action, either on the part of the same agent, or of others; and having for its object an assignable individual, or, by accident, an assemblage of assignable individuals: extra-regarding, therefore, and private. This primary mischief is accompanied by a secondary; the first branch of which is sometimes contingent and sometimes certain, the other never otherwise than contingent: both extra-regarding and semi-public: in other respects, pretty much upon a par with the primary mischief; except that the first branch, viz. the alarm, though inferior in magnitude to the primary, is, in point of extent, and therefore, upon the whole, in point of magnitude, much superior.

There may be other points of view, according to which mischief might be divided, besides these: but this does not prevent the division here given from being an exhaustive one. A line may be divided in any one of an infinity of ways, and yet without leaving in any one of those cases any remainder. See ch. xviii. [Division], par. 1, note.

Ch. v. [Pleasures and Pains], par. 1.

See ch. xviii. [Division], par. 4, note.

* Ch. xviii.

XVI.

Two instances more will be sufficient to illustrate the most material of the modifications above exhibited.

A man drinks a certain quantity of liquor, and intoxicates himself. The intoxication in this particular instance does him no sort of harm: or, what comes to the same thing, none that is perceptible. But it is probable, and, indeed, next to certain, that a given number of acts of the same kind would do him a very considerable degree of harm; more or less according to his constitution and other circumstances; for this is no more than what experience manifests every day. It is also certain, that one act of this sort, by one means or other, tends considerably to increase the disposition a man may be in to practise other acts of the same sort; for this also is verified by experience. This, therefore, is one instance where the mischief producible by the act is contingent; in other words, in which the tendency of the act is no otherwise mischievous than in virtue of its producing a chance of mischief. This chance depends upon the concurrence of other acts of the same kind; and those such as must be practised by the same person. The object of the mischief is that very person himself who is the author of it, and he only, unless by accident. The mischief is, therefore, private and self-regarding.

As to its secondary mischief, alarm, it produces none: it produces, indeed, a certain quantity of danger by the influence of example; but it is not often that this danger will amount to a quantity worth regarding.

XVII.

Again. A man omits paying his share to a public tax. This, we see, is an act of the negative kind.* Is this, then, to be placed upon the list of mischievous acts? Yes, certainly. Upon what grounds? Upon the following. To defend the community against its external as well as its internal adversaries, are tasks, not to mention others of a less indispensable nature, which cannot be fulfilled but at a considerable expense. But whence is the money for defraying this expense to come? It can be obtained in no other manner than by contributions to be collected from individuals: in a word, by taxes. The produce, then, of these taxes is to be looked upon as a kind of benefit which it is necessary the governing part of the community should receive for the use of the whole. This produce, before it can be applied to its destination, requires that there should be certain persons commissioned to receive and to apply it. Now, if these persons, had they received it, would have applied it to its proper destination, it would have been a benefit: the not putting them in a way to receive it, is then a mischief. But it is possible, that if received, it might not have been applied to its proper destination; or that the services, in consideration of which it was bestowed, might not have been performed. It is possible, that the under-officer, who collected the produce of the tax, might not have paid it over to his principal: it is possible that the principal might not have forwarded it on according to its farther destination; to the judge, for instance, who is to protect the community against its clandestine enemies from within, or the soldier, who is to protect it against its open enemies from without: it is possible that the judge, or the soldier, had they received it, would not, however, been induced by it to fulfil their respective duties: it is possible that the judge would not have sat for the punishment of criminals, and the decision of controversies: it is possible that the soldier would not have drawn his sword in the defence of the community. These, together with an infinity of other intermediate acts, which for the sake of brevity I pass over, form a connected chain of duties, the discharge of which is necessary to the preservation of the community. They must every one of them be discharged, ere the benefit to which they are contributory can be produced. If they are all discharged, in that case the benefit subsists, and any act, by tending to intercept that benefit, may produce a mischief. But if any of them are not, the benefit fails: it fails of itself: it would not have subsisted, although the act in question (the act of non-payment) had not been committed. The benefit is therefore contingent; and, accordingly, upon a certain supposition, the act which consists in the averting of it is not a mischievous one. But this supposition, in any tolerably-ordered government, will rarely indeed be verified. In the very worst-ordered government that exists, the greatest part of the duties that are levied are paid over according to their destination: and, with regard to any particular sum that is attempted to be levied upon any particular person upon any particular occasion, it is therefore manifest, that, unless it be certain that it will not be so disposed of, the act of withholding it is a mischievous one.

The act of payment, when referable to any particular sum, especially if it be a small one, might also have failed of proving beneficial on another ground: and, consequently, the act of non-payment, of proving mischievous. It is possible that the same services, precisely, might have been rendered without the money as with it. If, then, speaking of any small limited sum, such as the greatest which any one person is called upon to pay at a time, a man were to say, that the non-payment of it would be attended with mischievous consequences; this would be far from certain: but what comes to the same thing as if it were, it is perfectly certain when applied to the whole. It is certain, that if all of a sudden the payment of all taxes was to cease, there would no longer be any thing effectual done, either for the maintenance of justice, or for the defence of the community against its foreign adversaries: that therefore the weak would presently be oppressed and injured in all manner of ways, by the strong at home, and both together overwhelmed by oppressors from abroad. Upon the whole, therefore, it is manifest, that in this case, though the mischief is remote and contingent, though in its first appearance it consists of nothing more than the interception of a benefit, and though the individuals, in whose favour that benefit would have been reduced into the explicit form of pleasure or security, are altogether unassignable, yet the mischievous tendency of the act is not on all these accounts the less indisputable. The mischief, in point of intensity and duration, is indeed unknown: it is uncertain: it is remote. But in point of extent it is immense: and in point of fecundity, pregnant to a degree that baffles calculation.

* See ch. vii. [Actions], par. 8.

XVIII.

It may now be time to observe, that it is only in the case where the mischief is extra-regarding, and has an assignable person or persons for its object, that so much of the secondary branch of it as consists in alarm can have place. When the individuals it affects are uncertain, and altogether out of sight, no alarm can be produced: as there is nobody whose sufferings you can see, there is nobody whose sufferings you can be alarmed at. No alarm, for instance, is produced by non-payment to a tax. If, at any distant and uncertain period of time, such offence should chance to be productive of any kind of alarm, it would appear to proceed, as indeed immediately it would proceed, from a very different cause. It might be immediately referable, for example, to the act of a legislator, who should deem it necessary to lay on a new tax, in order to make up for the deficiency occasioned in the produce of the old one: or it might be referable to the act of an enemy, who, under favour of a deficiency thus created in the fund allotted for defence, might invade the country, and exact from it much heavier contributions than those which had been thus withholden from the sovereign.*

As to any alarm which such an offence might raise among the few who might chance to regard the matter with the eyes of statesmen, it is of too slight and uncertain a nature to be worth taking into the account.

* The investigation might, by a process rendered obvious by analogy, be extended to the consequences of an act of a beneficial nature. In both instances, a third order of consequences may be reckoned to have taken place, when the influence of the act, through the medium of the passive faculty of the patient, has come to affect his active faculty. In this way, 1. Evil may flow out of evil: — instance; the exertions of industry put a stop to by the extinction of inducement, resulting from a continued chain of acts of robbery or extortion. 2. Good out of evil: — instance; habits of depredation put a stop to by a steady course of punishment. 3. Evil out of good: — instance; habits of industry put a stop to by an excessive course of gratuitous bounty. 4. Good out of good: — instance; a constant and increasing course of industry, excited and kept up by the rewards afforded by a regular and increasing market for the fruits of it.

§ 2.

How Intentionality, &c. may influence the Mischief of an Act.

XIX.

We have seen the nature of the secondary mischief, which is apt to be reflected, as it were, from the primary, in the cases where the individuals who are the objects of the mischief are assignable. It is now time to examine into the circumstances upon which the production of such secondary mischief depends. These circumstances are no others than the four articles which have formed the subjects of the four last preceding chapters: viz. 1. The intentionality. 2. The consciousness. 3. The motive. 4. The disposition. It is to be observed all along, that it is only the danger that is immediately governed by the real state of the mind in respect to those articles: it is by the apparent state of it that the alarm is governed. It is governed by the real only in as far as the apparent happens, as in most cases it may be expected to do, to quadrate with the real. The different influences of the articles of intentionality and consciousness may be represented in the several cases following.

XX.

Case 1. Where the act is so completely unintentional, as to be altogether involuntary. In this case it is attended with no secondary mischief at all.

A bricklayer is at work upon a house: a passenger is walking in the street below. A fellow-workman comes and gives the brick-layer a violent push, in consequence of which he falls upon the passenger, and hurts him. It is plain there is nothing in this event that can give other people, who may happen to be in the street, the least reason to apprehend any thing in future on the part of the man who fell, whatever there may be with regard to the man who pushed him.

XXI.

Case 2. Where the act, though not unintentional, is unadvised, insomuch that the mischievous part of the consequences is unintentional, but the unadvisedness is attended with heedlessness. In this case the act is attended with some small degree of secondary mischief, in proportion to the degree of heedlessness.

A groom being on horseback, and riding through a frequented street, turns a corner at full pace, and rides over a passenger, who happens to be going by. It is plain, by this behaviour of the groom, some degree of alarm may be produced, less or greater, according to the degree of heedlessness betrayed by him: according to the quickness of his pace, the fulness of the street, and so forth. He has done mischief, it may be said, by his carelessness, already: who knows but that on other occasions the like cause may produce the like effect?

XXII.

Case 3. Where the act is misadvised with respect to a circumstance which, had it existed, would fully have excluded or (what comes to the same thing) outweighed the primary mischief: and there is no rashness in the case. In this case the act is attended with no secondary mischief at all.

It is needless to multiply examples any farther.

XXIII.

Case 4. Where the act is misadvised with respect to a circumstance which would have excluded or counterbalanced the primary mischief in part, but not entirely: and still there is no rashness. In this case the act is attended with some degree of secondary mischief, in proportion to that part of the primary which remains unexcluded or uncounterbalanced.

XXIV.

Case 5. Where the act is misadvised with respect to a circumstance which, had it existed, would have excluded or counterbalanced the primary mischief entirely, or in part: and there is a degree of rashness in the supposal. In this case the act is also attended with a farther degree of secondary mischief, in proportion to the degree of rashness.

XXV.

Case 6. Where the consequences are completely intentional, and there is no missupposal in the case. In this case the secondary mischief is at the highest.

XXVI.

Thus much with regard to intentionality and consciousness. We now come to consider in what manner the secondary mischief is affected by the nature of the motive.

Where an act is pernicious in its primary consequences, the secondary mischief is not obliterated by the goodness of the motive; though the motive be of the best kind. For, notwithstanding the goodness of the motive, an act, of which the primary consequences are pernicious, is produced by it in the instance in question, by the supposition. It may, therefore, in other instances: although this is not so likely to happen from a good motive as from a bad one.*

* An act of homicide, for instance, is not rendered innocent, much less beneficial, merely by its proceeding from a principle of religion, of honour (that is, of love of reputation), or even of benevolence. When Ravaillac assassinated Henry IV. it was from a principle of religion. But this did not so much as abate from the mischief of the act: it even rendered the act still more mischievous, for a reason that we shall see presently, than if it had originated from a principle of revenge. When the conspirators against the late king of Portugal attempted to assassinate him, it is said to have been from a principle of honour. But this, whether it abated or no, will certainly not be thought to have outweighed, the mischief of the act. Had a son of Ravaillac’s, as in the case before supposed,a merely on the score of filial affection, and not in consequence of any participation in his crime, put him to death in order to rescue him from the severer hands of justice, the motive, although it should not be thought to afford any proof of a mischievous disposition, and should, even in case of punishment, have made such rescuer an object of pity, would hardly have made the act of rescue a beneficial one.

a Ch. xi. [Dispositions], par. 15.

XXVII.

An act which, though pernicious in its primary consequences, is rendered in other respects beneficial upon the whole, by virtue of its secondary consequences, is not changed back again, and rendered pernicious upon the whole by the badness of the motive: although the motive be of the worst kind.

The prosecution of offences, for instance, proceeds most commonly from one or other, or both together, of two motives, the one of which is of the self-regarding, the other of the dissocial kind: viz. pecuniary interest, and ill-will: from pecuniary interest, for instance, whenever the obtaining pecuniary amends for damage suffered is one end of the prosecution. It is common enough indeed to hear men speak of prosecutions undertaken from public spirit; which is a branch, as we have seen,a of the principle of benevolence. Far be it from me to deny but that such a principle may very frequently be an ingredient in the sum of motives, by which men are engaged in a proceeding of this nature. But whenever such a proceeding is engaged in from the sole influence of public spirit, uncombined with the least tincture of self-interest or ill-will, it must be acknowledged to be a proceeding of the heroic kind. Now acts of heroism are, in the very essence of them, but rare: for if they were common, they would not be acts of heroism. But prosecutions for crimes are very frequent, and yet, unless in very particular circumstances indeed, they are never otherwise than beneficial.

a See ch. x. [Motives], par. 25.

XXVIII.

But when not only the primary consequences of an act are pernicious, but, in other respects, the secondary likewise, the secondary mischief may be aggravated by the nature of the motive: so much of that mischief, to wit, as respects the future behaviour of the same person.

XXIX.

It is not from the worst kind of motive, however, that the secondary mischief of an act receives its greatest aggravation.

XXX.

The aggravation which the secondary mischief of an act, in as far as it respects the future behaviour of the same person, receives from the nature of a motive in an individual case, is as the tendency of the motive to produce, on the part of the same person, acts of the like bad tendency with that of the act in question.

XXXI.

The tendency of a motive to produce acts of the like kind, on the part of any given person, is as the strength and constancy of its influence on that person, as applied to the production of such effects.

XXXII.

The tendency of a species of motive to give birth to acts of any kind, among persons in general, is as the strength, constancy, and extensiveness* of its influence, as applied to the production of such effects.

* Ch. iv. [Value.]

XXXIII.

Now the motives, whereof the influence is at once most powerful, most constant, and most extensive, are the motives of physical desire, the love of wealth, the love of ease, the love of life, and the fear of pain: all of them self-regarding motives. The motive of displeasure, whatever it may be in point of strength and extensiveness, is not near so constant in its influence (the case of mere antipathy excepted) as any of the other three. A pernicious act, therefore, when committed through vengeance, or otherwise through displeasure, is not nearly so mischievous as the same pernicious act, when committed by force of any one of those other motives.

It is for this reason that a threat, or other personal outrage, when committed on a stranger, in pursuance of a scheme of robbery, is productive of more mischief in society, and accordingly is, perhaps, every where more severely punished, than an outrage of the same kind offered to an acquaintance, in prosecution of a scheme of vengeance. No man is always in a rage. But, at all times, every man, more or less, loves money. Accordingly, although a man by his quarrelsomeness should for once have been engaged in a bad action, he may nevertheless remain a long while, or even his whole lifetime, without engaging in another bad action of the same kind: for he may very well remain his whole lifetime without engaging in so violent a quarrel: nor at any rate will he quarrel with more than one, or a few people at a time. But if a man, by his love of money, has once been engaged in a bad action, such as a scheme of robbery, he may at any time, by the influence of the same motive, be engaged in acts of the same degree of enormity. For take men throughout, if a man loves money to a certain degree to-day, it is probable that he will love it, at least in equal degree, to-morrow. And if a man is disposed to acquire it in that way, he will find inducement to rob, wheresoever and whensoever there are people to be robbed.

XXXIV.

As to the motive of religion, whatever it may sometimes prove to be in point of strength and constancy, it is not in point of extent so universal, especially in its application to acts of a mischievous nature, as any of the three preceding motives. It may, however, be as universal in a particular state, or in a particular district of a particular state. It is liable indeed to be very irregular in its operations. It is apt, however, to be frequently as powerful as the motive of vengeance, or indeed any other motive whatsoever. It will sometimes even be more powerful than any other motive. It is at any rate much more constant. A pernicious act, therefore, when committed through the motive of religion, is more mischievous than when committed through the motive of ill-will.

If a man happen to take it into his head to assassinate with his own hands, or with the sword of justice, those whom he calls heretics, that is, people who think, or perhaps only speak, differently upon a subject which neither party understands, he will be as much inclined to do this at one time as at another. Fanaticism never sleeps: it is never glutted: it is never stopped by philanthrophy; for it makes a merit of trampling on philantrophy: it is never stopped by conscience; for it has pressed conscience into its service. Avarice, lust, and vengeance, have piety, benevolence, honour; fanaticism has nothing to oppose it.

XXXV.

Lastly, The secondary mischief, to wit, so much of it as hath respect to the future behaviour of the same person, is aggravated or lessened by the apparent depravity or beneficence of his disposition: and that in the proportion of such apparent depravity or beneficence.

XXXVI.

The consequences we have hitherto been speaking of are the natural consequences of which the act, and the other articles we have been considering, are the causes: consequences that result from the behaviour of the individual, who is the offending agent, without the interference of political authority. We now come to speak of punishment: which, in the sense in which it is here considered, is an artificial consequence, annexed by political authority to an offensive act, in one instance; in the view of putting a stop to the production of events similar to the obnoxious part of its natural consequences, in other instances.

Chapter XIII.*

Of Circumstances Influencing the Degree of Alarm.

I.

The Situation of the Offender.

There are some offences which all the world can commit: there are others, the commission of which depends upon a particular situation; that is to say, it is this particular situation which gives the individual the opportunity of offending.

What is the effect of this circumstance upon alarm? It tends generally to diminish it, by restricting its sphere.

A theft produces a general alarm: an act of peculation by a guardian against his ward produces hardly any.

Some alarm is inspired by an act of extortion on the part of an officer of police: a contribution levied by robbers upon the highway would inspire much more. Why is this? It is because it is well known, that the most determined extortioner in office has some bridle and some restraint. He requires opportunities and pretexts for abusing his power; whilst the highway robbers menace all the world at all times, and are not at all restrained by public opinion.

This circumstance operates in the same manner upon other classes of offences, such as seduction, adultery, &c. The first woman who is met cannot be seduced in the same manner as she may be robbed. Such an enterprise requires a continued acquaintance, a certain association of rank and fortune; in a word, the advantages of a particular position.

Of two murders, the one committed in order to succeed to an estate, the other in a course of robbery: the first exhibits the most atrocious character, but the second excites the most alarm. The man who believes himself secure from the evil designs of his heirs, experiences no sensible alarm from the first event; but what security can he have against robbers? Add to this, that the miscreant who would commit murder that he might succeed to an inheritance, will not transform himself into a murderer on the highway. He would risk much for an estate, which he would not risk for a few shillings.

This observation extends to all offences implying violation of trust, and abuse of confidence or power, public or private. Such offences cause so much the less alarm, inasmuch as the situation of the offender is the more particular; that there are a smaller number of persons in a similar situation; and hence, that the sphere of the offence is more restricted.

An important exception is found in those cases in which the individual is clothed with great powers; when he can extend the sphere of his actions over a great number of persons. Though his situation be particular, it increases the alarm, instead of restricting it. When the object of a judge is to pillage, to murder, to tyrannize; when the object of a military officer is to steal, to vex, to shed blood; the alarm which they excite is proportioned to the extent of their powers, and may surpass that of the most atrocious robberies.

In these elevated situations it is not necessary to be criminal: a simple fault, free from evil intention, may cause a lively alarm. Is an innocent person sentenced to death by an upright but ignorant judge? As soon as the fault is known, public confidence is wounded, the shock makes itself felt, and the alarm produced rises to a high degree.

Happily, this species of alarm may be at once arrested by displacing the incapable subject of it.

* The chapter here numbered xiii. is inserted from Dumont’s Traités de Legislation, Vol. II. chapters vii. ix. x. xi. xii. and xiii., in order to complete the exhibition of Bentham’s principles as published in his lifetime. — Ed.

II.

The Ease or Difficulty of preventing the Crime.

The mind at once is led to compare the means of attack and defence; and accordingly, as the crime is considered more or less easy of commission, the alarm is more or less lively. This is one of the reasons which raise the mischief of an act of robbery so far above the mischief of a simple theft. Force can accomplish many things which would be beyond the reach of cunning. With respect to robbery, that which attacks the dwelling-house is more alarming than that which takes place upon the highway: that which is committed at night, than that which is executed in open day: that which is combined with incendiarism, than that which is limited to the ordinary methods.

On the other hand, the greater the apparent ease of opposing a crime, the less alarming it appears. The alarm will not be so lively when the offence cannot be completed without the consent of the party suffering. It is easy to apply this principle to fraudulent acquisition, seduction, duels, self-regarding offences, and particularly to suicide.

The rigour of the laws against domestic theft has been founded, without doubt, upon the difficulty of opposing this offence. But the aggravation which results from this circumstance is not equal to the effect of another circumstance which tends to diminish the alarm; namely, the peculiarity of the situation which furnishes the opportunity for the theft. The domestic thief, once discovered, is no longer dangerous. He requires my consent, in order to rob me: I must introduce him into my house, and give him my confidence. With so much facility for securing myself, he can only inspire me with a very feeble alarm.*

* The principal reason against the severity of punishment in this case is, that it renders masters disinclined to prosecute the offence, and consequently favours impunity.

III.

The greater or less Facility with which the Offender can be concealed.

The alarm is greater, when, by the nature or the circumstances of the crime, it is more difficult to discover or to recognise its author. If the delinquent remain unknown, the success of his crime is an encouragement to him and to others: no limits can be discovered to those crimes which remain unknown, whilst the party injured loses all hope of indemnification.

There are some crimes which admit of precautions particularly adapted for concealment: such as the disguising of the person; the choice of night for the period of action; the sending of anonymous threatening letters for the purpose of extorting undue concessions.

There are also separate crimes, to which recourse may be had, in order to render the discovery of other offences more difficult. An individual may be confined or conveyed away, or destroyed, in order that the criminal may free himself from the danger to be apprehended from his testimony.

In those cases where, from the nature of the crime, the criminal is necessarily known, the alarm is considerably diminished. Hence personal injuries, resulting from a momentary transport of passion excited by the presence of an adversary, inspire less alarm than a theft which affects concealment; although the evil of the first class may be greater, or may chance to be so, in the first case.

IV.

The Character of the Offender.

The character of an offender is judged of from the nature of his offence, and especially from the extent of its mischief: from the evil of the first class; which is the part most apparent in it. But his character may be also judged of from circumstances; from the particulars of his conduct whilst committing the crime itself. Thus, the character of a man will appear more or less dangerous, according as the tutelary motives appear to have more or less influence over him, when compared with the force of the seductive motives.

Character ought on two accounts to be regarded, in the choice of, and the quantity of a punishment: first, because it either increases or diminishes the alarm; secondly, because it furnishes an indication of the sensibility of the subject. It is not necessary to employ such strong measures to repress a weak, but naturally good character, as are required for an opposite temperament.

Let us examine the grounds of aggravation which may be drawn from this source.

1. The less the party injured was in a condition to defend himself, the more strongly the sentiment of natural compassion ought to act. The laws of honour come to the support of this instinct of pity, and make it an imperious duty to succour the weak, and to spare him who is no longer able to resist. First indication of a dangerous character — Weakness oppressed.

2. If weakness alone ought to awaken compassion, the appearance of a suffering individual ought to act in this direction with a double force. The simple refusal of relief to the distressed, raises a presumption little favourable to the character of an individual: but what must his character be, who seizes the moment of calamity for the purpose of increasing the anxiety of an afflicted mind; the moment of disgrace, in order to render it more bitter by a new affront; the moment of indigence, for the purpose of entirely stripping its victims? Second indication of a dangerous character — Distress aggravated.

3. It is an essential branch of moral policy, that those who have been accustomed to reflection, and who may be presumed to possess wisdom and experience, should be treated with respect by those who have not acquired the same habits, or possessed the same advantages of education. This species of superiority is generally received by the more elevated ranks from those below them; by old persons from younger persons of the same rank; and by certain professions set apart for the public instruction. There exists among the mass of the people certain sentiments of deference and respect, in relation to these distinctions; and this respect, greatly useful in repressing without effort the seductive passions, is one of the best foundations for manners and laws. Third indication of a dangerous character — Respect towards superiors disregarded.*

4. When the motives which have led to the commission of an offence have been comparatively light and frivolous, the sentiments of honour and benevolence must have had but little force. If the man who is urged by an imperious desire of vengeance to transgress the laws of humanity is esteemed dangerous, what should be thought of him who gives way to acts of ferocity, from a simple motive of curiosity, of imitation, or of amusement? Fourth indication of a dangerous character — Gratuitous cruelty.

5. Time is particularly favourable to the development of the tutelary motives. During the first assault of passion, as under a thunder-stroke, the sentiments of virtue may yield for a moment: but if the heart is not perverted, reflection will soon restore them to their first force, and establish their triumph. If a sufficiently long time elapse between the conception of a crime and its accomplishment, it is an unequivocal proof of matured and consolidated wickedness. Fifth indication of a dangerous character — Premeditation.

6. The number of accomplices is another mark of depravity: concert supposes reflection. The union of many persons against a single innocent person also displays a cruel cowardice. Sixth indication of a dangerous character — Conspiracy.

To these causes of aggravation may be added two other causes, not so easily classed: falsehood, and violation of confidence.

Falsehood stamps a character with a deep and degrading stain, which even the most brilliant qualities cannot efface. Public opinion is right in this respect. Truth is one of the first wants of man; it is one of the elements of our existence; necessary as the light of the day to us. At every moment of our lives, we are obliged to build our judgments, and to direct our conduct, upon the knowledge of facts, of which there are only a few that can pass under our own observation. Hence there follows the most absolute necessity for our trusting to the reports of others. If falsehood is mingled with these reports, our judgments become erroneous, our progress faulty, our hopes deceived: we live in a state of unquiet distrust, and know not where to seek for security. In a word, falsehood includes the principle of every evil, since it would bring in its train the dissolution of human society.

The importance of truth is so great, that the least violation of its laws, even in trifling matters, always draws after it a certain danger: the slightest wandering is an attack upon the respect due to it: the first transgression facilitates the second, by familiarizing the odious idea of a lie. If the evil of falsehood is so great in things which are unimportant in themselves, what will it be in those greater occasions when it serves as an instrument of crime?

Falsehood is sometimes an essential circumstance in a crime; sometimes simply an accessory. It is necessarily comprised in perjury, in fraudulent acquisition, and all its modifications. In other offences, it is only collateral and accidental. It is only by relation to these last, that it can furnish a separate cause of aggravation.

Violation of confidence refers to a particular position; to a power confided, which imposes on the delinquent an obligation which he has violated. It may sometimes be considered as the principal offence, sometimes only as an accessory offence. It is not necessary here to consider the details.

We may here make one general observation with respect to all these sources of aggravation. Although they all furnish unfavourable indications as to the character of the offender, this is not a reason for proportionably augmenting his punishment. It is sufficient if a certain modification be given to it, which shall have some analogy with this accessory offence, and which shall serve to waken in the minds of the citizens a salutary antipathy against this aggravating circumstance. This will become more clear, when we treat of the methods of rendering punishments characteristic.

We proceed, however, to the extenuations which may be drawn from this same source, and which have the effect of more or less diminishing the demand for punishment. I call those circumstances which tend to diminish alarm, Extenuations, because they furnish a favourable indication with regard to the character of the individual. They may be reduced to nine:—

  1. Absence of evil intention.
  2. Self-preservation.
  3. Previous provocation.
  4. Preservation of dear connections.
  5. Overstepping the bounds of necessary defence.
  6. Submission to threats.
  7. Submission to authority.
  8. Intoxication.
  9. Infancy.

One point common to these circumstances, except the two last, is, that the offence has not had its source in the will of the offender. The first cause is the act of another; a foreign will, or some physical accident. Apart from this event, he would have remained as innocent to the end of his life, as he had been till then; and even should he not be punished, his future conduct would be as good as if he had not committed the offence in question.

Each of these circumstances requires details and explanations. I confine myself here to observing, that it will be necessary to leave great latitude to the judge for appreciating these different sources of extenuation, their validity and extent.

With respect to a provocation received, for example, this provocation should have been recently given, in order to merit indulgence: it ought to have been received in the course of the same quarrel. But what constitutes the same quarrel? what ought to be considered a recent injury? It is necessary to trace these lines of demarcation. “Let not the sun go down upon your wrath,” is the precept of the Scriptures. Sleep ought to calm the transport of the passions, the fever of the senses, and prepare the mind for the influence of the tutelary motives. This natural period might serve, in the case of homicide, to separate that which is premeditated, from that which is not.

In the case of intoxication, it is necessary to examine whether the intention to commit the offence did not exist beforehand: whether the intoxication has not been feigned: whether it had not for its object to embolden the individual in the commission of the crime. A relapse ought perhaps to destroy the excuse which might be drawn from this source. He who knows, by experience, that wine renders him dangerous, does not deserve any indulgence for those excesses into which it may lead him.

The English law does not admit intoxication as a ground of excuse. This would be, it is said, to excuse one crime by another. This morality appears hard and unthinking: it is derived from the principle of asceticism.

Whilst, as to infancy, this does not refer to that age at which the offender does not know that he is responsible for what he does, and where punishments would be inefficacious. To what good purpose punish judicially, for the crime of incendiarism, an infant of four years old?

Within what limits ought this source of extenuation to be confined? It seems that a reasonable limit is the period when a man is considered to have arrived at such maturity as no longer to require a guardian; and he becomes his own master. Before this period, it is not expected that he has sufficient reason for the management of his own affairs.

It is not said that, with respect to every crime committed before mature age, the ordinary punishment ought necessarily to be diminished. This diminution ought to depend upon the whole circumstances. But what is intended to be said is, that this period being passed, punishment ought no longer to be diminished on this account.

On account of minority in age, infamous punishments are principally remitted. He who has no hope of reviving honour, is with difficulty again incited to virtue.

When I speak of majority, I do not mean the Roman majority, fixed at twenty-five years; because there is injustice and folly in restraining the liberty of the man for so long a time, and keeping him in the bonds of infancy after the full development of his faculties. The period which I have in view is the English period of twenty-one years. Before this age, Pompey had conquered provinces; and Pliny the younger had sustained with honour the interests of his fellow-citizens at the bar. Great Britain was governed by a minister, who managed the complicated system of her finances with eclât, before the age at which, in the other parts of Europe, he would have been allowed to sell an acre of land.

Case in which there is no Alarm.

The alarm is absolutely null in the case in which the only persons exposed to the danger, if there are any, are unsusceptible of fear.

This circumstance explains the insensibility of many nations with respect to infanticide; that is to say, homicide committed upon a new-born child, with the consent of its father and mother. I say their consent; for without this, the alarm would be nearly the same as if it respected an adult. The less infants are susceptible of fear for themselves, the more the tenderness of parents is apt to be alarmed for them.

I pretend not to justify these nations. They are so much the more barbarous, inasmuch as they have given to the father the right of disposing of the new born babe, without the consent of the mother, who, after all the dangers of maternity, finds herself deprived of its reward, and reduced, by this unworthy slavery, to the same condition with those inferior creatures whose fecundity is a burthen to us. Infanticide, such as I have defined it to be, cannot be punished as a principal offence, since it produces no evil of the first or second class; but it ought to be punished as a step towards other crimes, furnishing an indication against the characters of its authors. The sentiments of respect for humanity cannot be too strongly fortified; nor can too great a repugnance be inspired against every thing which leads to habits of cruelty. Infanticide ought therefore to be punished, by attaching to it some disgrace. The fear of shame is commonly its cause: it requires, therefore, a greater stigma to repress it. But, at the same time, the occasions for punishment should be rendered rare, by requiring clear proof of its commission.

The laws against this offence, upon pretence of humanity, have been most manifest violations of it. Compare the crime and the punishment. What is the crime? The death of an infant, which has ceased to exist before it has known existence; an event which cannot excite the slightest uneasiness in the imagination of the most fearful, and which can leave no regrets but with those who, from a feeling of shame and of pity, have refused to prolong its days, commenced under such unhappy auspices. And what is the punishment? A barbarous punishment, an ignominious death, inflicted upon an unhappy mother, whose crime itself proves her excessive sensibility: on a woman led astray by despair, who has injured herself alone, by refusing to yield to the sweetest instinct of nature. She is devoted to infamy, because she too deeply dreaded shame; and the existence of her friends, who survive her, is poisoned by opprobrium and ignominy! But if the legislator himself has been the first cause of the evil; if he can be considered as the true murderer of these innocent creatures, how much more odious would this rigour appear! It is, however, he alone, who by acting harshly against her frailty has excited this direful combat in the heart of a mother, between tenderness and shame.

Of the Cases in which the Danger is greater than the Alarm.

Although alarm in general corresponds with danger, there are some cases in which this proportion is not exact: the danger may be greater than the alarm.

This happens in those mixed offences which include a private evil, and a danger which is proper to them in their character of public offences.

It might happen in a state, that a prince should be robbed by unfaithful officers, and the public oppressed by the vexations of his subordinates. The accomplices in these disorders might compose a threatening phalanx, allowing nothing to approach the throne but mercenary eulogiums; insomuch that truth should become the greatest of all crimes. Timidity, under the mask of prudence, would soon form the national character. If, during this universal abasement of courage, a virtuous citizen should venture to denounce the offenders, and should become the victim of his zeal, his loss would excite but little alarm: his magnanimity would only be considered as an act of folly; and each one, promising to himself that he would not act like him, would behold, without emotion, a misfortune which he would see that he had the means of avoiding. But the alarm, in thus subsiding, would make way for a more considerable mischief: this mischief consists in the danger of impunity for all public offences, in the cessation of all voluntary services to justice, in the profound indifference of individuals to every thing which does not personally affect them.

It is said, that in certain of the Italian states, those who have given evidence against thieves and robbers have been exposed to the vengeance of their accomplices, and obliged to seek in flight that security which the laws could not give them; it being more dangerous for individuals to lend their services to justice, than to arm themselves against it: a witness running more danger than an assassin. The alarm which results from this state of things is weak; because no one need expose himself to this mischief, but the danger is increased in the same proportion.

* It was from not having known the utility, not to say the necessity, of this subordination, that the French fell, during the revolution, into that excess of folly which delivered them up to unheard of evils, and which has carried desolation to the four quarters of the world: it was because they had no superiors in France, that there was no security. The principle of equality includes within itself that of anarchy: it is the total of the small masses of particular influence which sustains the grand barrier of the laws against the torrent of the passions.

An interesting question in morals and legislation arises here —

If an individual perform actions which the public opinion condemns, and which, according to the principles of utility, it ought not to condemn, can an unfavourable indication be drawn from hence with respect to the character of that individual?

I reply, that a good man, though he submit in general to the tribunal of public opinion, may reserve to himself the right of private judgment in particular cases, when the judgment of this tribunal appears to him opposed to his reason and his happiness, or when it exacts from him a painful sacrifice, without any real utility to any person. Take a Jew to Lisbon, for example: he dissimulates, he violates the laws, he braves an opinion which has in its favour all the force of the popular sanction: is he, therefore, the most wicked of men? Do you believe him capable of every crime? Will he be a slanderer, a thief, a perjurer, if he could hope not to be discovered? No: a Jew in Portugal is not more addicted to these crimes than others. A monk allows himself in secret to violate some of the absurd and painful observances of his convent: does it follow, that he would be a deceitful and dangerous man, ready to violate his word upon a point in which probity was concerned? Such a conclusion would be very ill founded. Good sense, enlightened by interest, is sufficient to detect a general error, and does not on that account lead to the contempt of essential laws.

Chapter XIV.

Reasons for Considering Certain Actions as Crimes.*

We have made an analysis of evil. This analysis shows, that there are certain actions from which there results more evil than good: it is actions of this kind, or, at least, those which have been reputed such, that legislators have prohibited. A prohibited action is what is called a crime: to make these prohibitions respected, it has been necessary to institute punishments.

But is it proper to consider certain actions as crimes? or, in other terms, is it proper to subject them to legal punishments?

What a question! Is not all the world agreed upon it? Is it necessary to prove a recognised truth, a truth so well established in the minds of men?

All the world may be agreed; but upon what is this agreement founded? Ask each one his reasons. You will find a strange diversity of sentiments and principles: you will find it not only among the people, but among the philosophers. Is it lost time to seek for an uniform base of agreement upon so essential an object?

The agreement which exists is only founded upon prejudices; and those prejudices vary according to times and places, according to opinions and customs. I have always been told that such an action was a crime, and I think that it is a crime. Such is the guide of the people, and even of the legislator. But if custom has considered innocent actions as crimes; if it have considered small offences as great ones, and great offences as small ones; if it vary every where, it is clear that it ought to be subjected to a rule, and not be taken as the rule itself. We appeal, then, here to the principle of utility: it confirms the decisions of prejudice wherever they are just; it annuls them wherever they are pernicious.

I suppose myself a stranger to all our present denominations of vice or virtue: I am called to consider human actions only with relation to their good or evil effects. I open two accounts; I place on the side of pure profit all pleasures; I place on the side of loss all pains: I faithfully weigh the interests of all parties; the man whom prejudice brands as vicious; he who is accounted virtuous, are, for the moment, equal before me. I wish to judge the prejudice itself, and to weigh in this new balance all actions, with the intention of forming a catalogue of those which ought to be permitted, and of those which ought to be prohibited.

The operation, which at first appears so complicated, becomes easy, by means of the distinction which we have made between the evil of the first, the second, and the third order.

Have I to examine an act attacking the security of an individual? I compare all the pleasure, or, in other terms, all the profit which arises from this act to its author, with all the evil, or all the loss, which results from it to the party injured. I see at once that the evil of the first order surpasses the good of the first order. But I do not stop there. This action is followed by danger and alarm to society: the evil which was confined at first to a single person, spreads itself over all in the shape of fear. The pleasure resulting from the action is only for one: the pain is for a thousand, for ten thousand, for all. The disproportion, already prodigious, appears almost infinite, if I pass on to the evil of the third order, by considering, that if the act in question were not repressed, there would result from it an universal and durable discouragement, a cessation of labour, and at last the dissolution of society.

I shall consider the strongest desires, those the satisfaction of which is accompanied with the greatest pleasures; and it will be seen that their satisfaction, when it is obtained at the expense of security, is much more fruitful of evil than of good.

1. Let us first take enmity: it is the most fruitful cause of attacks upon honour and the person. I have conceived, it matters not on what account, enmity against you. Passion leads me astray: I insult you, I degrade you, I wound you. The spectacle of your suffering gives me, at least for a time, a feeling of pleasure. But even for this time, can it be believed that the pleasure I feel is equal to the pain you suffer? If even each atom of your pain could be painted in my mind, is it probable that each atom of pleasure which corresponds to it, would appear to me to have the same intensity? and yet there are only some scattered atoms of your sufferings which present themselves to my distracted and troubled imagination: as to you, not one of them can be lost; as to me, the greater part is always dissipated in pure loss. But this pleasure, such as it is, is not slow in letting its natural impurity break out. Humanity, a principle which nothing perhaps can stifle in the most atrocious minds, awakens a secret remorse in mine: fears of all kinds; fear of vengeance, either on your part, or on the part of those connected with you; fear of the public voice; religious fears, if there remain any spark of religion in me: all these fears will soon arise to trouble my security and corrupt my triumph. The passion has faded; the pleasure is destroyed; internal reproach succeeds it. But on your side the suffering still endures, and may have a long duration. It is thus with slight wounds that time can heal: what will it be in those cases in which, from the nature of the injury, the wound is incurable, when the limbs have been cut off, the features disfigured, or the faculties destroyed? Weigh these evils, their intensity, their duration, their consequences; measure all their dimensions, and see how in all senses the pleasure is inferior to the pain.

Let us pass on to the effects of the second order. The news of your misfortune spreads over all minds the poison of fear. Every man who has an enemy, or who may have an enemy, thinks with dread on every thing which can inspire the passion of hatred: among feeble beings, who have so many things for which to envy one another, about which to dispute; whom a thousand little rivalries place without ceasing, in opposition to one another; the spirit of revenge announces a train of endless evils.

Hence, every act of cruelty produced by a passion, of which the principle is in all hearts, and by which every body may suffer, causes an alarm, which will continue until the punishment of the guilty has removed the danger to the side of injustice and enmity. This is a suffering common to all; and we ought not to forget another pain, which results from it, that pain of sympathy which is felt by generous minds on beholding crimes of this nature.

2. If we, secondly, examine those actions which may arise from that imperious motive, from that desire to which nature has confided the perpetuity of the species, and so large a portion of man’s happiness; we shall see, that when it injures personal security, or the domestic condition, the good which results from its satisfaction bears no comparison with the evil to which it gives rise.

I speak here only of that attack which manifestly compromises the security of the person — Rape. It is not proper, by a gross and puerile joke, to deny the existence of this crime, and to diminish the horror of it. Notwithstanding all that may be said in this respect, even those women who are most prodigal of their favours, would not like that a brutal fury should ravish them. But here the magnitude of the alarm renders useless all discussion respecting the primitive evil: whatever may be the case with the actual crime, the possibility of its perpetration will always be an object of dread. The more universal the desire which gives birth to this crime, the greater its alarm and its force. In those times when the laws had not sufficient power to repress it, or manners were not sufficiently regulated to disgrace it, it gave rise to revenges, of which history has preserved some recollection. Whole nations have interested themselves in the quarrel, and hatred has been transmitted from fathers to their sons. It seems that the severe confinement of the Greek women, unknown in the time of Homer, owed its origin to a period of trouble and revolution, in which the feebleness of the laws had multiplied disorders of this kind, and disseminated a general terror.

3. With regard to the motive of cupidity. If we compare the pleasure of acquiring by usurpation, with the pain of losing, the one will not be found an equivalent for the other. But there are cases in which, if it were possible to restrain their effects to evils of the first order, the good would have an incontestible preponderance over the evil. In considering such crimes in this point of view only, no good reason can be assigned for the rigour of the laws. Every thing turns upon the evils of the second order: it is these which give to the action the character of a crime; it is these which render punishment necessary. Suppose, for example, the physical desire has for its object the satisfying of hunger; that a poor man, pressed with want, steals a loaf in the house of a rich man, which perhaps may save his life: can the good which he has done to himself, and the evil he has done to the rich man, be considered equal? The same observation may be applied to less striking examples. Suppose that a man pillages the public funds: he enriches himself, and impoverishes nobody: the wrong he does to individuals reduces itself to impalpable portions. It is not, therefore, on account of the evil of the first order that it is necessary to consider these actions as crimes: it is on account of the evils of the second order.

If the pleasures attached to the satisfaction of desires, so powerful as enmity, lust, and hunger, in opposition to the will of the parties interested, is far from equalling the evils which arise from such satisfaction, the disproportion will appear much greater with regard to less active and powerful motives.

The desire of self-preservation is the only one which still demands a separate consideration.

Suppose this desire regards an evil which the laws themselves would impose upon an individual, it is necessary that this should be for some very pressing reason, such as the necessity of putting in execution the punishments directed by the tribunals; punishments, without which there would be no security, no government. Now, if the desire to escape from this punishment is satisfied, the law is found in this respect struck with impotence. The evil which results from this satisfaction is, then, that which results from the impotence of the laws, or (which amounts to the same thing) the non-existence of all law. But the evil which results from the non-existence of laws is in effect the assemblage of the different evils which laws are established to prevent; that is to say, of all the evils that men are liable to experience from men. A single triumph of this kind on the part of an individual over the laws, is not sufficient to strike the whole system with impotence. Nevertheless, every example of this kind is a symptom of weakness, a step towards destruction. There results from it an evil of the second order: an alarm, a danger at least; and if the laws connive at this evasion, they are in contradiction with their proper ends: for the purpose of avoiding a small evil, they admit another much more than its equivalent.

There remains the case in which an individual repels an evil to which the laws do not wish to expose him. But since they do not wish that he should submit to this evil, they wish that he should not submit to it. To avert this evil is in itself a good. It is possible that, in endeavouring to preserve himself, the individual may cause an evil more than equivalent to this good. The evil which he has caused in his self-defence, is it confined to what was necessary for this object, or has it exceeded it? What relation does the evil done bear to the evil averted? Is it equal? Is it greater? Is it less? Would the evil averted have been susceptible of indemnification, if, instead of being prevented by such costly proceedings, the party had temporarily submitted to it? These are so many questions of fact, which the law ought to take into consideration in establishing regulations in detail, with regard to self-defence. It is a subject which belongs to the penal code; in the examination of the means of justification or extenuation with regard to offences. It is enough to observe here, that in all cases, whatever may be the evil of the first order, all the evil that an individual can do in self-defence, does not produce any alarm, any danger. If the individual be not attacked, and his security compromised, other persons have nothing to fear from him.

* This chapter is inserted from Dumont’s “Traités de Legislation,” Vol. I. ch. ii., in order to complete the exhibition of Bentham’s principles as published in his lifetime. — Ed.

Chapter XV.

§ 1.

General View of Cases unmeet for Punishment.

I.

The general object which all laws have, or ought to have, in common, is to augment the total happiness of the community; and therefore, in the first place, to exclude, as far as may be, every thing that tends to subtract from that happiness: in other words, to exclude mischief.

II.

But all punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.*

* What follows, relative to the subject of punishment, ought regularly to be preceded by a distinct chapter on the ends of punishment. But having little to say on that particular branch of the subject, which has not been said before, it seemed better, in a work, which will at any rate be but too volumnious, to omit this title, reserving it for another, hereafter to be published, entitled, Rationale of Punishment.a To the same work I must refer the analysis of the several possible modes of punishment, a particular and minute examination of the nature of each, and of its advantages and disadvantages, and various other disquisitions, which did not seem absolutely necessary to be inserted here. A very few words, however, concerning the ends of punishment, can scarcely be dispensed with.

The immediate principal end of punishment is to controul action. This action is either that of the offender, or of others: that of the offender it controuls by its influence, either on his will, in which case it is said to operate in the way of reformation; or on his physical power, in which case it is said to operate by disablement: that of others it can influence no otherwise than by its influence over their wills; in which case it is said to operate in the way of example. A kind of collateral end, which it has a natural tendency to answer, is that of affording a pleasure or satisfaction to the party injured, where there is one, and, in general, to parties whose ill-will, whether on a self-regarding account, or on the account of sympathy or antipathy, has been excited by the offence. This purpose, as far as it can be answered gratis, is a beneficial one. But no punishment ought to be allotted merely to this purpose, because (setting aside its effects in the way of controul) no such pleasure is ever produced by punishment as can be equivalent to the pain. The punishment, however, which is allotted to the other purpose, ought, as far as it can be done without expense, to be accommodated to this. Satisfaction thus administered to a party injured, in the shape of a dissocial pleasure,b may be styled a vindictive satisfaction or compensation: as a compensation, administered in the shape of a self-regarding profit, or stock of pleasure, may be styled a lucrative one. See B. I. tit. vi. [Compensation.] Example is the most important end of all, in proportion as the number of the persons under temptation to offend is to one.

a This is the work which, from the Author’s papers, has since been published by Mr. Dumont, in French, in company with The Rationale of Reward added to it, for the purpose of mutual illustration. Both of these have since been published in English from the Author’s MSS., and are reprinted in this edition.

b See ch. x. [Motives.]

III.

It is plain, therefore, that in the following cases, punishment ought not to be inflicted.

1. Where it is groundless; where there is no mischief for it to prevent; the act not being mischievous upon the whole.

2. Where it must be inefficacious; where it cannot act so as to prevent the mischief.

3. Where it is unprofitable, or too expensive; where the mischief it would produce would be greater than what it would prevent.

4. Where it is needless; where the mischief may be prevented, or cease of itself, without it; that is, at a cheaper rate.

§ 2.

Cases in which Punishment is groundless.

IV.

These are, 1. Where there has never been any mischief; where no mischief has been produced to any body by the act in question. Of this number are those in which the act was such as might, on some occasions, be mischievous or disagreeable, but the person whose interest it concerns gave his consent to the performance of it.* This consent, provided it be free, and fairly obtained,* is the best proof that can be produced, that, to the person who gives it, no mischief, at least no immediate mischief, upon the whole, is done. For no man can be so good a judge as the man himself, what it is gives him pleasure or displeasure.

* See B. I. tit. [Justifications.]

V.

2. Where the mischief was outweighed: although a mischief was produced by that act, yet the same act was necessary to the production of a benefit which was of greater value than the mischief. This may be the case with any thing that is done in the way of precaution against instant calamity, as also with any thing that is done in the exercise of the several sorts of powers necessary to be established in every community, to wit, domestic, judicial, military, and supreme.*

See supra, ch. iv. [Value.]

VI.

3. Where there is a certainty of an adequate compensation; and that in all cases where the offence can be committed. This supposes two things: 1. That the offence is such as admits of an adequate compensation: 2. That such a compensation is sure to be forthcoming. Of these suppositions, the latter will be found to be a merely ideal one: a supposition that cannot, in the universality here given to it, be verified by fact. It cannot, therefore, in practice, be numbered amongst the grounds of absolute impunity. It may, however, be admitted as a ground for an abatement of that punishment, which other considerations, standing by themselves, would seem to dictate.

This, for example, seems to have been one ground, at least, of the favour shown by perhaps all systems of laws, to such offenders as stand upon a footing of responsibility: shown, not directly indeed to the persons themselves; but to such offences as none but responsible persons are likely to have the opportunity of enaging in. In particular, this seems to be the reason why embezzlement, in certain cases, has not commonly been punished upon the footing of theft: nor mercantile frauds upon that of common sharping.a

a See tit. [Simple Merc. Defraudment.]

§ 3.

Cases in which Punishment must be inefficacious.

VII.

These are, 1. Where the penal provision is not established until after the act is done. Such are the cases, 1. Of an ex-post facto law, where the legislator himself appoints not a punishment till after the act is done. 2. Of a sentence beyond the law; where the judge, of his own authority, appoints a punishment which the legislator had not appointed.

VIII.

2. Where the penal provision, though established, is not conveyed to the notice of the person on whom it seems intended that it should operate. Such is the case where the law has omitted to employ any of the expedients which are necessary, to make sure that every person whatsoever, who is within the reach of the law, be apprized of all the cases whatsoever, in which (being in the station of life he is in) he can be subjected to the penalties of the law.

See B. II. Appendix, tit. iii. [Promulgation.]

IX.

3. Where the penal provision, though it were conveyed to a man’s notice, could produce no effect on him, with respect to the preventing him from engaging in any act of the sort in question. Such is the case, 1. In extreme infancy; where a man has not yet attained that state or disposition of mind in which the prospect of evils so distant as those which are held forth by the law, has the effect of influencing his conduct. 2. In insanity, where the person, if he has attained to that disposition, has since been deprived of it through the influence of some permanent though unseen cause. 3. In intoxication; where he has been deprived of it by the transient influence of a visible cause: such as the use of wine, or opium, or other drugs, that act in this manner on the nervous system: which condition is indeed neither more nor less than a temporary insanity produced by an assignable cause.§

§ Notwithstanding what is here said, the cases of infancy and intoxication (as we shall see hereafter) cannot be looked upon in practice as affording sufficient grounds for absolute impunity. But this exception in point of practice is no objection to the propriety of the rule in point of theory. The ground of the exception is neither more nor less than the difficulty there is of ascertaining the matter of fact: viz. whether at the requisite point of time the party was actually in the state in question; that is, whether a given case comes really under the rule. Suppose the matter of fact capable of being perfectly ascertained, without danger or mistake, the impropriety of punishment would be as indubitable in these cases as in any other.a

The reason that is commonly assigned for the establishing an exemption from punishment in favour of infants, insane persons, and persons under intoxication, is either false in fact, or confusedly expressed. The phrase is, that the will of these persons concurs not with the act; that they have no vicious will; or, that they have not the free use of their will. But suppose all this to be true; what is it to the purpose? Nothing: except in as far as it implies the reason given in the text.

a See B. I. tit. iv. [Exemptions], and tit. vii. [Extenuations.]

X.

4. Where the penal provision (although, being conveyed to the party’s notice, it might very well prevent his engaging in acts of the sort in question, provided he knew that it related to those acts) could not have this effect with regard to the individual act he is about to engage in: to wit, because he knows not that it is of the number of those to which the penal provision relates. This may happen, 1. In the case of unintentionality; where he intends not to engage, and thereby knows not that he is about to engage, in the act in which eventually he is about to engage.* 2. In the case of unconsciousness; where, although he may know that he is about to engage in the act itself, yet, from not knowing all the material circumstances attending it, he knows not of the tendency it has to produce that mischief, in contemplation of which it has been made penal in most instances. 3. In the case of mis-supposal; where, although he may know of the tendency the act has to produce that degree of mischief, he supposes it, though mistakenly, to be attended with some circumstance, or set of circumstances, which, if it had been attended with, it would either not have been productive of that mischief, or have been productive of such a greater degree of good, as has determined the legislator in such a case not to make it penal.

* See ch. viii. [Intentionality.]

See ch. ix. [Consciousness.]

XI.

5. Where, though the penal clause might exercise a full and prevailing influence, were it to act alone, yet by the predominant influence of some opposite cause upon the will, it must necessarily be ineffectual: because the evil which he sets himself about to undergo, in the case of his not engaging in the act, is so great, that the evil denounced by the penal clause, in case of his engaging in it, cannot appear greater. This may happen, 1. In the case of physical danger; where the evil is such as appears likely to be brought about by the unassisted powers of nature. 2. In the case of a threatened mischief; where it is such as appears likely to be brought about through the intentional and conscious agency of man.

The influences of the moral and religious sanctions, or, in other words, of the motives of love of reputation and religion, are other causes, the force of which may, upon particular occasions, come to be greater than that of any punishment which the legislator is able, or at least which he will think proper, to apply. These, therefore, it will be proper for him to have his eye upon. But the force of these influences is variable and different in different times and places: the force of the foregoing influences is constant and the same, at all times and every where. These, therefore, it can never be proper to look upon as safe grounds for establishing absolute impunity: owing (as in the abovementioned cases of infancy and intoxication) to the impracticability of ascertaining the matter of fact.

XII.

6. Where, though the penal clause may exert a full and prevailing influence over the will of the party, yet his physical faculties (owing to the predominant influence of some physical cause) are not in a condition to follow the determination of the will: insomuch that the act is absolutely involuntary. Such is the case of physical compulsion or restraint, by whatever means brought about; where the man’s hand, for instance, is pushed against some object which his will disposes him not to touch; or tied down from touching some object which his will disposes him to touch.

§ 4.

Cases where Punishment is unprofitable.

XIII.

These are, 1. Where, on the one hand, the nature of the offence; on the other hand, that of the punishment, are, in the ordinary state of things, such, that when compared together, the evil of the latter will turn out to be greater than that of the former.

XIV.

Now the evil of the punishment divides itself into four branches, by which so many different sets of persons are affected. 1. The evil of coercion or restraint; or the pain which it gives a man not to be able to do the act, whatever it be, which by the apprehension of the punishment he is deterred from doing. This is felt by those by whom the law is observed. 2. The evil of apprehension; or the pain which a man, who has exposed himself to punishment, feels at the thoughts of undergoing it. This is felt by those by whom the law has been broken, and who feel themselves in danger of its being executed upon them. 3. The evil of sufferance: or the pain which a man feels, in virtue of the punishment itself, from the time when he begins to undergo it. This is felt by those by whom the law is broken, and upon whom it comes actually to be executed. 4. The pain of sympathy, and the other derivative evils resulting to the persons who are in connection with the several classes of original sufferers just mentioned.§ Now of these four lots of evil, the first will be greater or less, according to the nature of the act from which the party is restrained: the second and third according to the nature of the punishment which stands annexed to that offence.

See ch. v. [Pleasures and Pains.]

§ See ch. xii. [Consequences], par. 4.

XV.

On the other hand, as to the evil of the offence, this will also, of course, be greater or less, according to the nature of each offence. The proportion between the one evil and the other will therefore be different in the case of each particular offence. The cases, therefore, where punishment is unprofitable on this ground, can by no other means be discovered, than by an examination of each particular offence; which is what will be the business of the body of the work.

XVI.

2. Where, although in the ordinary state of things, the evil resulting from the punishment is not greater than the benefit which is likely to result from the force with which it operates, during the same space of time, towards the excluding the evil of the offence, yet it may have been rendered so by the influence of some occasional circumstances. In the number of these circumstances may be, 1. The multitude of delinquents at a particular juncture; being such as would increase, beyond the ordinary measure, the quantum of the second and third lots, and thereby also of a part of the fourth lot, in the evil of the punishment. 2. The extraordinary value of the services of some one delinquent; in the case where the effect of the punishment would be to deprive the community of the benefit of those services. 3. The displeasure of the people; that is, of an indefinite number of the members of the same community, in cases where (owing to the influence of some occasional incident) they happen to conceive that the offence or the offender ought not to be punished at all, or at least ought not to be punished in the way in question. 4. The displeasure of foreign powers; that is, of the governing body, or a considerable number of the members of some foreign community or communities, with which the community in question is connected.

§ 5.

Cases where Punishment is needless.

XVII.

These are, 1. Where the purpose of putting an end to the practice may be attained as effectually at a cheaper rate: by instruction, for instance, as well as by terror: by informing the understanding, as well as by exercising an immediate influence on the will. This seems to be the case with respect to all those offences which consist in the disseminating pernicious principles in matters of duty; of whatever kind the duty be; whether political, or moral, or religious. And this, whether such principles be disseminated under, or even without, a sincere persuasion of their being beneficial. I say, even without: for though in such a case it is not instruction that can prevent the writer from endeavouring to inculcate his principles, yet it may the readers from adopting them; without which, his endeavouring to inculcate them will do no harm. In such a case, the sovereign will commonly have little need to take an active part: if it be the interest of one individual to inculcate principles that are pernicious, it will as surely be the interest of other individuals to expose them. But if the sovereign must needs take a part in the controversy, the pen is the proper weapon to combat error with, not the sword.

Chapter XVI.

Of the Proportion Between Punishments and Offences.

I.

We have seen that the general object of all laws is to prevent mischief; that is to say, when it is worth while; but that, where there are no other means of doing this than punishment, there are four cases in which it is not worth while.

II.

When it is worth while, there are four subordinate designs or objects, which, in the course of his endeavours to compass, as far as may be, that one general object, a legislator, whose views are governed by the principle of utility, comes naturally to propose to himself.

III.

1. His first, most extensive, and most eligible object, is to prevent, in as far as it is possible, and worth while, all sorts of offences whatsoever:* in other words, so to manage, that no offence whatsoever may be committed.

* By offences I mean, at present, acts which appear to him to have a tendency to produce mischief.

IV.

2. But if a man must needs commit an offence of some kind or other, the next object is to induce him to commit an offence less mischievous, rather than one more mischievous: in other words, to choose always the least mischievous of two offences that will either of them suit his purpose.

V.

3. When a man has resolved upon a particular offence, the next object is to dispose him to do no more mischief than is necessary to his purpose: in other words, to do as little mischief as is consistent with the benefit he has in view.

VI.

4. The last object is, whatever the mischief be which it is proposed to prevent, to prevent it at as cheap a rate as possible.

VII.

Subservient to these four objects, or purposes, must be the rules or canons by which the proportion of punishments* to offences is to be governed.

* [Punishments.] The same rules (it is to be observed) may be applied, with little variation, to rewards as well as punishment: in short, to motives in general, which, according as they are of the pleasurable or painful kind, are of the nature of reward or punishment: and, according as the act they are applied to produce is of the positive or negative kind, are styled impelling or restraining. See ch. x. [Motives], par. 43.

VIII.

Rule 1. — 1. The first object, it has been seen, is to prevent, in as far as it is worth while, all sorts of offences: therefore,

The value of the punishment must not be less in any case than what is sufficient to outweigh that of the profitof the offence.

If it be, the offence (unless some other considerations, independent of the punishment, should intervene and operate efficaciously in the character of tutelary motives ) will be sure to be committed not withstanding:§ the whole lot of punishment will be thrown away: it will be altogether inefficatious.*

[Profit.] By the profit of an offence, is to be understood, not merely the pecuniary profit, but the pleasure or advantage, of whatever kind it be, which a man reaps, or expects to reap, from the gratification of the desire which prompted him to engage in the offence.a

It is the profit (that is, the expectation of the profit) of the offence that constitutes the impelling motive, or, where there are several, the sum of the impelling motives, by which a man is prompted to engage in the offence. It is the punishment, that is, the expectation of the punishment, that constitutes the restraining motive, which, either by itself, or in conjunction with others, is to act upon him in a contrary direction, so as to induce him to abstain from engaging in the offence. Accidental circumstances apart, the strength of the temptation is as the force of the seducing, that is, of the impelling motive or motives. To say then, as authors of great merit and great name have said, that the punishment ought not to increase with the strength of the temptation, is as much as to say in mechanics, that the moving force or momentum of the power need not increase in proportion to the momentum of the burthen.

a See ch. x. [Motives], § 1.

Beccaria, dei diletti, § 6, id. trad. par. Morellet, § 23.

See ch. xi. [Dispositions], par. 29.

§ It is a well-known adage, though it is to be hoped not a true one, that every man has his price. It is commonly meant of a man’s virtue. This saying, though in a very different sense, was strictly verified by some of the Anglo-Saxon laws: by which a fixed price was set, not upon a man’s virtue indeed, but upon his life: that of the sovereign himself among the rest. For 200 shillings you might have killed a peasant:b for six times as much, a nobleman: for six-and-thirty times as much you might have killed the king. A king in those days was worth exactly 7200 shillings. If, then, the heir to the throne, for example, grew weary of waiting for it, he had a secure and legal way of gratifying his impatience: he had but to kill the king with one hand, and pay himself with the other, and all was right. An Earl Godwin, or a Duke Streon, could have bought the lives of a whole dynasty. It is plain, that if ever a king in those days died in his bed, he must have had something else, besides this law, to thank for it. This being the production of a remote and barbarous age, the absurdity of it is presently recognised: but, upon examination, it would be found, that the freshest laws of the most civilized nations are continually falling into the same error.c This, in short, is the case wheresoever the punishment is fixed while the profit of delinquency is indefinite: or, to speak more precisely, where the punishment is limited to such a mark, that the profit of delinquency may reach beyond it.

b Wilkin’s Leg. Anglo-Sax. p. 71, 72. See Hume, Vol. I. App. I. p. 219.

c See in particular the English Statute Laws throughout, Bonaparte’s Penal Code, and the recently enacted or not enacted Spanish Penal Code. —Note by the Author, July 1822.

* See ch. xv. [Cases unmeet], § 1.

IX.

The above rule has been often objected to, on account of its seeming harshness: but this can only have happened for want of its being properly understood. The strength of the temptation, cæteris paribus, is as the profit of the offence: the quantum of the punishment must rise with the profit of the offence: cæteris paribus, it must therefore rise with the strength of the temptation. This there is no disputing. True it is, that the stronger the temptation, the less conclusive is the indication which the act of delinquency affords of the depravity of the offender’s disposition. So far, then, as the absence of any aggravation, arising from extraordinary depravity of disposition, may operate, or at the utmost, so far as the presence of a ground of extenuation, resulting from the innocence or beneficence of the offender’s disposition, can operate, the strength of the temptation may operate in abatement of the demand for punishment. But it can never operate so far as to indicate the propriety of making the punishment ineffectual, which it is sure to be when brought below the level of the apparent profit of the offence.

The partial benevolence which should prevail for the reduction of it below this level, would counteract as well those purposes which such a motive would actually have in view, as those more extensive purposes which benevolence ought to have in view: it would be cruelty not only to the public, but to the very persons in whose behalf it pleads: in its effects, I mean, however opposite in its intention. Cruelty to the public, that is, cruelty to the innocent, by suffering them, for want of an adequate protection, to lie exposed to the mischief of the offence: cruelty even to the offender himself, by punishing him to no purpose, and without the chance of compassing that beneficial end, by which alone the introduction of the evil of punishment is to be justified.

See ch. xi. [Dispositions], par. 42.

X.

Rule 2. But whether a given offence shall be prevented in a given degree by a given quantity of punishment, is never any thing better than a chance; for the purchasing of which, whatever punishment is employed, is so much expended in advance. However, for the sake of giving it the better chance of out-weighing the profit of the offence,

The greater the mischief of the offence, the greater is the expense, which it may be worth while to be at, in the way of punishment.*

* For example, if it can ever be worth while to be at the expense of so horrible a punishment as that of burning alive, it will be more so in the view of preventing such a crime as that of murder or incendiarism, than in the view of preventing the uttering of a piece of bad money. See B. I. tit. [Defraudment touching the Coin] and [Incendiarism.]

XI.

Rule 3. The next object is, to induce a man to choose always the least mischievous of two offences: therefore,

Where two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less.

Espr. des Loix, L. vi. c. 16.

XII.

Rule 4. When a man has resolved upon a particular offence, the next object is, to induce him to do no more mischief than what is necessary for his purpose: therefore

The punishment should be adjusted in such manner to each particular offence, that for every part of the mischief there may be a motive to restrain the offender from giving birth to it.

If any one have any doubt of this, let him conceive the offence to be divided into as many separate offences as there are distinguishable parcels of mischief that result from it. Let it consist, for example, in a man’s giving you ten blows, or stealing from you ten shillings. If, then, for giving you ten blows, he is punished no more than for giving you five, the giving you five of these ten blows is an offence for which there is no punishment at all: which being understood, as often as a man gives you five blows, he will be sure to give you five more, since he may have the pleasure of giving you these five for nothing. In like manner, if for stealing from you ten shillings, he is punished no more than for stealing five, the stealing of the remaining five of those ten shillings is an offence for which there is no punishment at all. This rule is violated in almost every page of every body of laws I have ever seen.

The profit, it is to be observed, though frequently, is not constantly, proportioned to the mischief: for example, where a thief, along with the things he covets, steals others which are of no use to him. This may happen through wantonness, indolence, precipitation, &c. &c.

XIII.

Rule 5. The last object is, whatever mischief is guarded against, to guard against it at as cheap a rate as possible: therefore

The punishment ought in no case to be more than what is necessary to bring it into conformity with the rules here given.

XIV.

Rule 6. It is further to be observed, that owing to the different manners and degrees in which persons under different circumstances are affected by the same exciting cause, a punishment which is the same in name will not always either really produce, or even so much as appear to others to produce, in two different persons the same degree of pain: therefore,

That the quantity actually inflicted on each individual offender may correspond to the quantity intended for similar offenders in general, the several circumstances influencing sensibility ought always to be taken into account.

See ch. vi. [Sensibility.]

XV.

Of the above rules of proportion, the four first, we may perceive, serve to mark out the limits on the side of diminution; the limits below which a punishment ought not to be diminished: the fifth, the limits on the side of increase; the limits above which it ought not to be increased. The five first are calculated to serve as guides to the legislator: the sixth is calculated, in some measure, indeed, for the same purpose; but principally for guiding the judge in his endeavours to conform, on both sides, to the intentions of the legislator.

XVI.

Let us look back a little. The first rule, in order to render it more conveniently applicable to practice, may need, perhaps, to be a little more particularly unfolded. It is to be observed, then, that for the sake of accuracy it was necessary, instead of the word quantity, to make use of the less perspicuous term value. For the word quantity will not properly include the circumstances either of certainty or proximity: circumstances which, in estimating the value of a lot of pain or pleasure, must always be taken into the account.§ Now, on the one hand, a lot of punishment is a lot of pain; on the other hand, the profit of an offence is a lot of pleasure, or what is equivalent to it. But the profit of the offence is commonly more certain than the punishment, or, what comes to the same thing, appears so at least to the offender. It is, at any rate, commonly more immediate. It follows, therefore, that, in order to maintain its superiority over the profit of the offence, the punishment must have its value made up in some other way, in proportion to that whereby it falls short in the two points of certainty and proximity. Now, there is no other way in which it can receive any addition to its value, but by receiving an addition in point of magnitude. Wherever, then, the value of the punishment falls short, either in point of certainty, or of proximity, of that of the profit of the offence, it must receive a proportionable addition in point of magnitude.*

§ See ch. iv. [Value.]

* It is for this reason, for example, that simple compensation is never looked upon as sufficient punishment for theft or robbery.

XVII.

Yet farther. To make sure of giving the value of the punishment the superiority over that of the offence, it may be necessary, in some cases, to take into the account the profit not only of the individual offence to which the punishment is to be annexed, but also of such other offences of the same sort as the offender is likely to have already committed without detection. This random mode of calculation, severe as it is, it will be impossible to avoid having recourse to, in certain cases: in such, to wit, in which the profit is pecuniary, the chance of detection very small, and the obnoxious act of such a nature as indicates a habit: for example, in the case of frauds against the com. If it be not recurred to, the practice of committing the offence will be sure to be, upon the balance of the account, a gainful practice. That being the case, the legislator will be absolutely sure of not being able to suppress it, and the whole punishment that is bestowed upon it will be thrown away. In a word (to keep to the same expressions we set out with) that whole quantity of punishment will be inefficacious.

XVIII.

Rule 7. These things being considered, the three following rules may be laid down by way of supplement and explanation to Rule 1.

To enable the value of the punishment to outweigh that of the profit of the offence, it must be increased, in point of magnitude, in proportion as it falls short in point of certainty.

XIX.

Rule 8. Punishment must be further increased in point of magnitude, in proportion as it falls short in point of proximity.

XX.

Rule 9. Where the act is conclusively indicative of a habit, such an increase must be given to the punishment as may enable it to outweigh the profit not only of the individual offence, but of such other like offences as are likely to have been committed with impunity by the same offender.

XXI.

There may be a few other circumstances or considerations which may influence, in some small degree, the demand for punishment: but as the propriety of these is either not so demonstrable, or not so constant, or the application of them not so determinate, as that of the foregoing, it may be doubted whether they be worth putting on a level with the others.

XXII.

Rule 10. When a punishment, which in point of quality is particularly well calculated to answer its intention, cannot exist in less than a certain quantity, it may sometimes be of use, for the sake of employing it, to stretch a little beyond that quantity which, on other accounts, would be strictly necessary.

XXIII.

Rule 11. In particular, this may sometimes be the case, where the punishment proposed is of such a nature as to be particularly well calculated to answer the purpose of a moral lesson.

A punishment may be said to be calculated to answer the purpose of a moral lesson, when, by reason of the ignominy it stamps upon the offence, it is calculated to inspire the public with sentiments of aversion towards those pernicious habits and dispositions with which the offence appears to be connected; and thereby to inculcate the opposite beneficial habits and dispositions.

It is this, for example, if any thing, that must justify the application of so severe a punishment as the infamy of a public exhibition, hereinafter proposed, for him who lifts up his hand against a woman, or against his father. See B. I. tit. [Simp. Corporal Injuries.]

It is partly on this principle, I suppose, that military legislators have justified to themselves the inflicting death on the soldier who lifts up his hand against his superior officer.

XXIV.

Rule 12. The tendency of the above considerations is to dictate an augmentation in the punishment: the following rule operates in the way of diminution. There are certain cases (it has been seen) in which, by the influence of accidental circumstances, punishment may be rendered unprofitable in the whole: in the same cases it may chance to be rendered unprofitable as to a part only. Accordingly,

In adjusting the quantum of punishment, the circumstances, by which all punishment may be rendered unprofitable, ought to be attended to.

See ch. xv. [Cases unmeet], § 4.

XXV.

Rule 13. It is to be observed, that the more various and minute any set of provisions are, the greater the chance is that any given article in them will not be borne in mind: without which, no benefit can ensue from it. Distinctions, which are more complex than what the conceptions of those whose conduct it is designed to influence can take in, will even be worse than useless. The whole system will present a confused appearance: and thus the effect, not only of the proportions established by the articles in question, but of whatever is connected with them, will be destroyed.* To draw a precise line of direction in such case seems impossible. However, by way of memento, it may be of some use to subjoin the following rule.

Among provisions designed to perfect the proportion between punishments and offences, if any occur, which, by their own particular good effects, would not make up for the harm they would do by adding to the intricacy of the Code, they should be omitted.

* See B. II. tit. [Purposes.] Append. tit. [Composition.]

Notwithstanding this rule, my fear is, that in the ensuing model, I may be thought to have carried my endeavours at proportionality too far. Hitherto scarce any attention has been paid to it. Montesquieu seems to have been almost the first who has had the least idea of any such thing. In such a matter, therefore, excess seemed more eligible than defect. The difficulty is to invent: that done, if any thing seems superfluous, it is easy to retrench.

XXVI.

It may be remembered, that the political sanction, being that to which the sort of punishment belongs, which in this chapter is all along in view, is but one of four sanctions, which may all of them contribute their share towards producing the same effects. It may be expected, therefore, that in adjusting the quantity of political punishment, allowance should be made for the assistance it may meet with from those other controuling powers. True it is, that from each of these several sources a very powerful assistance may sometimes be derived. But the case is, that (setting aside the moral sanction, in the case where the force of it is expressly adopted into and modified by the political) the force of those other powers is never determinate enough to be depended upon. It can never be reduced, like political punishment, into exact lots, nor meted out in number, quantity, and value. The legislator is therefore obliged to provide the full complement of punishment, as if he were sure of not receiving any assistance whatever from any of those quarters. If he does, so much the better: but lest he should not, it is necessary he should, at all events, make that provision which depends upon himself.

See B. I. tit. [Punishments.]

XXVII.

It may be of use, in this place, to recapitulate the several circumstances, which, in establishing the proportion betwixt punishments and offences, are to be attended to. These seem to be as follows:—

I.

On the part of the Offence.

  1. The profit of the offence;
  2. The mischief of the offence;
  3. The profit and mischief of other greater or lesser offences, of different sorts, which the offender may have to choose out of;
  4. The profit and mischief of other offences, of the same sort, which the same offender may probably have been guilty of already.
II.

On the part of the Punishment:

  1. The magnitude of the punishment: composed of its intensity and duration;
  2. The deficiency of the punishment in point of certainty;
  3. The deficiency of the punishment in point of proximity;
  4. The quality of the punishment;
  5. The accidental advantage in point of quality of a punishment, not strictly needed in point of quantity;
  6. The use of a punishment of a particular quality, in the character of a moral lesson.
III.

On the part of the Offender:

  1. The responsibility of the class of persons in a way to offend;
  2. The sensibility of each particular offender.
  3. The particular merits or useful qualities of any particular offender, in case of a punishment which might deprive the community of the benefit of them;
  4. The multitude of offenders on any particular occasion.
IV.

On the part of the Public, at any particular conjuncture:

  1. The inclinations of the people, for or against any quantity or mode of punishment;
  2. The inclinations of foreign powers.
V.

On the part of the Law: that is, of the public for a continuance.

  1. The necessity of making small sacrifices, in point of proportionality, for the sake of simplicity.
XXVIII.

There are some, perhaps, who, at first sight, may look upon the nicety employed in the adjustment of such rules, as so much labour lost: for gross ignorance, they will say, never troubles itself about laws, and passion does not calculate. But the evil of ignorance admits of cure: and as to the proposition that passion does not calculate, this, like most of these very general and oracular propositions, is not true. When matters of such importance as pain and pleasure are at stake, and these in the highest degree (the only matters, in short, that can be of importance) who is there that does not calculate? Men calculate, some with less exactness, indeed, some with more: but all men calculate. I would not say, that even a madman does not calculate.§ Passion calculates, more or less, in every man: in different men, according to the warmth or coolness of their dispositions: according to the firmness or irritability of their minds: according to the nature of the motives by which they are acted upon. Happily, of all passions, that is the most given to calculation, from the excesses of which, by reason of its strength, constancy, and universality, society has most to apprehend:* I mean that which corresponds to the motive of pecuniary interest: so that these niceties, if such they are to be called, have the best chance of being efficacious, where efficacy is of the most importance.

See Append. tit. [Promulgation.]

§ There are few madmen but what are observed to be afraid of the strait waistcoat.

* See ch. xii. [Consequences], par. 33.

Chapter XVII.

Of the Properties to Be Given to a Lot of Punishment.

I.

It has been shown what the rules are, which ought to be observed in adjusting the proportion between the punishment and the offence. The properties to be given to a lot of punishment, in every instance, will, of course, be such as it stands in need of, in order to be capable of being applied, in conformity to those rules: the quality will be regulated by the quantity.

II.

The first of those rules, we may remember, was, that the quantity of punishment must not be less, in any case, than what is sufficient to outweigh the profit of the offence: since, as often as it is less, the whole lot (unless by accident the deficiency should be supplied from some of the other sanctions) is thrown away; it is inefficacious. The fifth was, that the punishment ought in no case to be more than what is required by the several other rules: since, if it be, all that is above that quantity is needless. The fourth was, that the punishment should be adjusted in such manner to each individual offence, that every part of the mischief of that offence may have a penalty (that is, a tutelary motive) to encounter it: otherwise, with respect to so much of the offence as has not a penalty to correspond to it, it is as if there were no punishment in the case. Now, to none of those rules can a lot of punishment be conformable, unless, for every variation in point of quantity, in the mischief of the species of offence to which it is annexed, such lot of punishment admits of a correspondent variation. To prove this, let the profit of the offence admit of a multitude of degrees. Suppose it, then, at any one of these degrees: if the punishment be less than what is suitable to that degree, it will be inefficacious; it will be so much thrown away: if it be more, as far as the difference extends, it will be needless; it will therefore be thrown away also in that case.

The first property, therefore, that ought to be given to a lot of punishment, is that of being variable in point of quantity, in conformity to every variation which can take place in either the profit or mischief of the offence. This property might, perhaps, be termed, in a single word, variability.

III.

A second property, intimately connected with the former, may be styled equability. It will avail but little, that a mode of punishment (proper in all other respects) has been established by the legislator; and that capable of being screwed up or let down to any degree that can be required; if, after all, whatever degree of it be pitched upon, that same degree shall be liable, according to circumstances, to produce a very heavy degree of pain, or a very slight one, or even none at all. In this case, as in the former, if circumstances happen one way, there will be a great deal of pain produced which will be needless: if the other way, there will be no pain at all applied, or none that will be efficacious. A punishment, when liable to this irregularity, may be styled an unequable one: when free from it an equable one. The quantity of pain produced by the punishment will, it is true, depend in a considerable degree upon circumstances distinct from the nature of the punishment itself: upon the condition which the offender is in, with respect to the circumstances by which a man’s sensibility is liable to be influenced. But the influence of these very circumstances will in many cases be reciprocally influenced by the nature of the punishment: in other words, the pain which is produced by any mode of punishment, will be the joint effect of the punishment which is applied to him, and the circumstances in which he is exposed to it. Now there are some punishments, of which the effect may be liable to undergo a greater alteration by the influence of such foreign circumstances, than the effect of other punishments is liable to undergo. So far, then, as this is the case, equability or unequability may be regarded as properties belonging to the punishment itself.

IV.

An example of a mode of punishment which is apt to be unequable, is that of banishment, when the locus a quo (or place the party is banished from) is some determinate place appointed by the law, which perhaps the offender cares not whether he ever see or no. This is also the case with pecuniary, or quasi-pecuniary punishment, when it respects some particular species of property, which the offender may have been possessed of, or not, as it may happen. All these punishments may be split down into parcels, and measured out with the utmost nicety: being divisible by time, at least, if by nothing else. They are not, therefore, any of them defective in point of variability: and yet, in many cases, this defect in point of equability may make them as unfit for use as if they were.*

* By the English law, there are several offences which are punished by a total forfeiture of moveables, not extending to immoveables. This is the case with suicide, and with certain species of theft and homicide. In some cases, this is the principal punishment: in others, even the only one. The consequence is, that if a man’s fortune happens to consist in moveables, he is ruined; if in immoveables, he suffers nothing.

V.

The third rule of proportion was, that where two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less. Now, to be sufficient for this purpose, it must be evidently and uniformly greater: greater, not in the eyes of some men only, but of all men who are liable to be in a situation to take their choice between the two offences; that is, in effect, of all mankind. In other words, the two punishments must be perfectly commensurable. Hence arises a third property, which may be termed commensurability: to wit, with reference to other punishments.

See View of the Hard-Labour Bill. Lond. 1778, p. 100.

For the idea of this property, I must acknowledge myself indebted to an anonymous letter in the St. James’s Chronicle, of the 27th of September 1777; the author of which is totally unknown to me. If any one should be disposed to think lightly of the instruction, on account of the channel by which it was first communicated, let him tell me where I can find an idea more ingenious or original.

VI.

But punishments of different kinds are in very few instances uniformly greater one than another; especially when the lowest degrees of that which is ordinarily the greater, are compared with the highest degrees of that which is ordinarily the less: in other words, punishments of different kinds are in few instances uniformly commensurable. The only certain and universal means of making two lots of punishment perfectly commensurable, is by making the lesser an ingredient in the composition of the greater. This may be done in either of two ways. 1. By adding to the lesser punishment another quantity of punishment of the same kind. 2. By adding to it another quantity of a different kind. The latter mode is not less certain than the former; for though one cannot always be absolutely sure, that to the same person a given punishment will appear greater than another given punishment; yet one may be always absolutely sure, that any given punishment, so as it does but come into contemplation, will appear greater than none at all.

VII.

Again: Punishment cannot act any farther than in as far as the idea of it, and of its connection with the offence, is present in the mind. The idea of it, if not present, cannot act at all; and then the punishment itself must be inefficacious. Now, to be present, it must be remembered, and to be remembered it must have been learnt. But of all punishments that can be imagined, there are none of which the connection with the offence is either so easily learnt, or so efficaciously remembered, as those of which the idea is already in part associated with some part of the idea of the offence; which is the case when the one and the other have some circumstance that belongs to them in common. When this is the case with a punishment and an offence, the punishment is said to bear an analogy to, or to be characteristic of, the offence.Characteristicalness is, therefore, a fourth property, which on this account ought to be given, whenever it can conveniently be given, to a lot of punishment.

See Montesq. Esp. des Loix. L. xii. ch. iv. He seems to have the property of characteristicalness in view; but that the idea he had of it was very indistinct, appears from the extravagant advantages he attributes to it.

VIII.

It is obvious, that the effect of this contrivance will be the greater, as the analogy is the closer. The analogy will be the closer, the more material that circumstance is, which is in common. Now, the most material circumstance that can belong to an offence and a punishment in common, is the hurt or damage which they produce. The closest analogy, therefore, that can subsist between an offence and the punishment annexed to it, is that which subsists between them when the hurt or damage they produce is of the same nature: in other words, that which is constituted by the circumstance of identity in point of damage.§ Accordingly, the mode of punishment, which of all others bears the closest analogy to the offence, is that which in the proper and exact sense of the word is termed retaliation. Retaliation, therefore, in the few cases in which it is practicable, and not too expensive, will have one great advantage over every other mode of punishment.

See ch. vii. [Actions], par. 3.

§ Besides this, there are a variety of other ways in which the punishment may bear an analogy to the offence. This will be seen by looking over the table of punishments.

IX.

Again: It is the idea only of the punishment (or, in other words, the apparent punishment) that really acts upon the mind; the punishment itself (the real punishment) acts not any farther than as giving rise to that idea. It is the apparent punishment, therefore, that does all the service; I mean in the way of example, which is the principal object. It is the real punishment that does all the mischief.* Now the ordinary and obvious way of increasing the magnitude of the apparent punishment, is by increasing the magnitude of the real. The apparent magnitude, however, may to a certain degree be increased by other less expensive means: whenever, therefore, at the same time that these less expensive means would have answered that purpose, an additional real punishment is employed, this additional real punishment is needless. As to these less expensive means, they consist, 1. In the choice of a particular mode of punishment; a punishment of a particular quality, independent of the quantity. 2. In a particular set of solemnities distinct from the punishment itself, and accompanying the execution of it.

See ch. xv. [Cases unmeet], § 1, 2, note.

* See ch. xv. [Cases unmeet], § 4, par. 3.

See B. I. tit [Punishments.]

See B. II. tit. [Execution.]

X.

A mode of punishment, according as the appearance of it bears a greater proportion to the reality, may be said to be the more exemplary. Now, as to what concerns the choice of the punishment itself, there is not any means by which a given quantity of punishment can be rendered more exemplary, than by choosing it of such a sort as shall bear an analogy to the offence. Hence, another reason for rendering the punishment analogous to, or in other words characteristic of, the offence.

XI.

Punishment, it is still to be remembered, is in itself an expense: it is in itself an evil. Accordingly, the fifth rule of proportion is, not to produce more of it than what is demanded by the other rules. But this is the case as often as any particle of pain is produced, which contributes nothing to the effect proposed. Now, if any mode of punishment is more apt than another to produce any such superfluous and needless pain, it may be styled unfrugal; if less, it may be styled fiugal. Frugality, therefore, is a sixth property to be wished for in a mode of punishment.

Ch. xv. [Cases unmeet], par. 2.

XII.

The perfection of frugality, in a mode of punishment, is where not only no superfluous pain is produced on the part of the person punished, but even that same operation, by which he is subjected to pain, is made to answer the purpose of producing pleasure on the part of some other person. Understand a profit or stock of pleasure of the self-regarding kind; for a pleasure of the dissocial kind is produced almost, of course, on the part of all persons in whose breasts the offence has excited the sentiment of ill-will. Now, this is the case with pecuniary punishment, as also with such punishments of the quasipecuniary kind as consist in the subtraction of such a species of possession as is tranferable from one party to another. The pleasure, indeed, produced by such an operation, is not in general equal to the pain:§ it may, however, be so in particular circumstances, as where he, from whom the thing is taken, is very rich, and he, to whom it is given, very poor; and, be it what it will, it is always so much more than can be produced by any other mode of punishment.

§ See ch. xv. [Cases unmeet], par. 2, note.

XIII.

The properties of exemplarity and frugality seem to pursue the same immediate end, though by different courses. Both are occupied in diminishing the ratio of the real suffering to the apparent: but exemplarity tends to increase the apparent: frugality to reduce the real.

XIV.

Thus much concerning the properties to be given to punishments in general, to whatsoever offences they are to be applied. Those which follow are of less importance, either as referring only to certain offences in particular, or depending upon the influence of transitory and local circumstances.

In the first place, the four distinct ends into which the main and general end of punishment is divisible,§ may give rise to so many distinct properties, according as any particular mode of punishment appears to be more particularly adapted to the compassing of one or of another of those ends. To that of example, as being the principal one, a particular property has already been adapted. There remain the three inferior ones of reformation, disablement, and compensation.

XV.

A seventh property, therefore, to be wished for in a mode of punishment, is that of subserviency to reformation, or reforming tendency. Now any punishment is subservient to reformation, in proportion to its quantity: since the greater the punishment a man has experienced, the stronger is the tendency it has to create in him an aversion towards the offence which was the cause of it; and that with respect to all offences alike. But there are certain punishments which, with regard to certain offences, have a particular tendency to produce that effect by reason of their quality: and where this is the case, the punishments in question, as applied to the offences in question, will pro tanto have the advantage over all others. This influence will depend upon the nature of the motive which is the cause of the offence: the punishment, most subservient to reformation, will be the sort of punishment that is best calculated to invalidate the force of that motive.

XVI.

Thus, in offences originating from the motive of ill-will,* that punishment has the strongest reforming tendency, which is best calculated to weaken the force of the irascible affections; and more particularly, in that sort of offence which consists in an obstinate refusal, on the part of the offender, to do something which is lawfully required of him, and in which the obstinacy is in great measure kept up by his resentment against those who have an interest in forcing him to compliance, the most efficacious punishment seems to be that of confinement to spare diet.

* See ch. x. [Motives.]

See B. I. tit. [Offences against Justice.]

XVII.

Thus, also, in offences which owe their birth to the joint influence of indolence and pecuniary interest, that punishment seems to possess the strongest reforming tendency, which is best calculated to weaken the force of the former of those dispositions. And more particularly, in the cases of theft, embezzlement, and every species of defraudment, the mode of punishment best adapted to this purpose seems, in most cases, to be that of penal labour.

XVIII.

An eighth property to be given to a lot of punishment in certain cases, is that of efficacy with respect to disablement, or, as it might be styled more briefly, disabling efficacy. This is a property which may be given in perfection to a lot of punishment; and that with much greater certainty than the property of subserviency to reformation. The inconvenience is, that this property is apt, in general, to run counter to that of frugality: there being, in most cases, no certain way of disabling a man from doing mischief, without, at the same time, disabling him, in a great measure, from doing good, either to himself or others. The mischief, therefore, of the offence must be so great as to demand a very considerable lot of punishment, for the purpose of example, before it can warrant the application of a punishment equal to that which is necessary for the purpose of disablement.

XIX.

The punishment, of which the efficacy in this way is the greatest, is evidently that of death. In this case the efficacy of it is certain. This accordingly is the punishment peculiarly adapted to those cases in which the name of the offender, so long as he lives, may be sufficient to keep a whole nation in a flame. This will now and then be the case with competitors for the sovereignty, and leaders of the factions in civil wars: though, when applied to offences of so questionable a nature, in which the question concerning criminality turns more upon success than any thing else; an infliction of this sort may seem to savour more of hostility than punishment. At the same time this punishment, it is evident, is in an eminent degree unfrugal; which forms one among the many objections there are against the use of it, in any but very extraordinary cases.

See B. I. tit. [Punishments.]

XX.

In ordinary cases the purpose may be sufficiently answered by one or other of the various kinds of confinement and banishment: of which, imprisonment is the most strict and efficacious. For when an offence is so circumstanced that it cannot be committed but in a certain place, as is the case, for the most part, with offences against the person, all the law has to do, in order to disable the offender from committing it, is to prevent his being in that place. In any of the offences which consist in the breach or the abuse of any kind of trust, the purpose may be compassed at a still cheaper rate, merely by forfeiture of the trust: and in general, in any of those offences which can only be committed under favour of some relation in which the offender stands with reference to any person, or sets of persons, merely by forfeiture of that relation: that is, of the right of continuing to reap the advantages belonging to it. This is the case, for instance, with any of those offences which consist in an abuse of the privileges of marriage, or of the liberty of carrying on any lucrative or other occupation.

XXI.

The ninth property is that of subserviency to compensation. This property of punishment, if it be vindictive compensation that is in view, will, with little variation, be in proportion to the quantity: if lucrative, it is the peculiar and characteristic property of pecuniary punishment.

XXII.

In the rear of all these properties may be introduced that of popularity; a very fleeting and indeterminate kind of property, which may belong to a lot of punishment one moment, and be lost by it the next. By popularity is meant the property of being acceptable, or rather not unacceptable, to the bulk of the people, among whom it is proposed to be established. In strictness of speech, it should rather be called absence of unpopularity; for it cannot be expected, in regard to such a matter as punishment, that any species or lot of it should be positively acceptable and grateful to the people: it is sufficient, for the most part, if they have no decided aversion to the thoughts of it. Now the property of characteristicalness, above noticed, seems to go as far towards conciliating the approbation of the people to a mode of punishment, as any; insomuch that popularity may be regarded as a kind of secondary quality, depending upon that of characteristicalness. The use of inserting this property in the catalogue, is chiefly to make it serve by way of memento to the legislator, not to introduce, without a cogent necessity, any mode or lot of punishment, towards which he happens to perceive any violent aversion entertained by the body of the people.

The property of characteristicalness, therefore, is useful in a mode of punishment in three different ways: 1. It renders a mode of punishment, before infliction, more easy to be borne in mind: 2. It enables it, especially after infliction, to make the stronger impression, when it is there; that is, renders it the more exemplary: 3. It tends to render it more acceptable to the people, that is, it renders it the more popular.

XXIII.

The effects of unpopularity in a mode of punishment are analogous to those of unfrugality. The unnecessary pain which denominates a punishment unfrugal, is most apt to be that which is produced on the part of the offender. A portion of superfluous pain is in like manner produced when the punishment is unpopular: but in this case it is produced on the part of persons altogether innocent, the people at large. This is already one mischief; and another is, the weakness which it is apt to introduce into the law. When the people are satisfied with the law, they voluntarily lend their assistance in the execution: when they are dissatisfied, they will naturally withhold that assistance; it is well if they do not take a positive part in raising impediments. This contributes greatly to the uncertainty of the punishment; by which, in the first instance, the frequency of the offence receives an increase. In process of time, that deficiency, as usual, is apt to draw on an increase in magnitude: an addition of a certain quantity which otherwise would be needless.*

* See ch. xv. [Cases unmeet], § v.

XXIV.

This property, it is to be observed, necessarily supposes, on the part of the people, some prejudice or other, which it is the business of the legislator to endeavour to correct. For if the aversion to the punishment in question were grounded on the principle of utility, the punishment would be such as, on other accounts, ought not to be employed: in which case its popularity or unpopularity would never be worth drawing into question. It is properly, therefore, a property not so much of the punishment as of the people: a disposition to entertain an unreasonable dislike against an object which merits their approbation. It is the sign also of another property; to wit, indolence or weakness, on the part of the legislator: in suffering the people, for the want of some instruction, which ought to be and might be given them, to quarrel with their own interest. Be this as it may, so long as any such dissatisfaction subsists, it behoves the legislator to have an eye to it, as much as if it were ever so well grounded. Every nation is liable to have its prejudices and its caprices, which it is the business of the legislator to look out for, to study, and to cure.

See ch. xv. [Cases unmeet], § iv. par. 4.

XXV.

The eleventh and last of all the properties that seem to be requisite in a lot of punishment, is that of remissibility. The general presumption is, that when punishment is applied, punishment is needful: that it ought to be applied, and therefore cannot want to be remitted. But in very particular, and those always very deplorable cases, it may by accident happen otherwise. It may happen that punishment shall have been inflicted, where, according to the intention of the law itself, it ought not to have been inflicted: that is, where the sufferer is innocent of the offence. At the time of the sentence passed he appeared guilty: but since then, accident has brought his innocence to light. This being the case, so much of the destined punishment as he has suffered already, there is no help for. The business is then to free him from as much as is yet to come. But is there any yet to come? There is very little chance of their being any, unless it be so much as consists of chronical punishment: such as imprisonment, banishment, penal labour, and the like. So much as consists in acute punishment, to wit, where the penal process itself is over presently, however permanent the punishment may be in its effects, may be considered as irremissible. This is the case, for example, with whipping, branding, mutilation, and capital punishment. The most perfectly irremissible of any is capital punishment. For though other punishments cannot, when they are over, be remitted, they may be compensated for; and although the unfortunate victim cannot be put into the same condition, yet possibly means may be found of putting him into as good a condition as he would have been in if he had never suffered. This may in general be done very effectually where the punishment has been no other than pecuniary.

There is another case in which the property of remissibility may appear to be of use: this is, where, although the offender has been justly punished, yet on account of some good behaviour of his, displayed at a time subsequent to that of the commencement of the punishment, it may seem expedient to remit a part of it. But this it can scarcely be, if the proportion of the punishment is, in other respects, what it ought to be. The purpose of example is the more important object, in comparison of that of reformation. It is not very likely, that less punishment should be required for the former purpose than for the latter. For it must be rather an extraordinary case, if a punishment, which is sufficient to deter a man who has only thought of it for a few moments, should not be sufficient to deter a man who has been feeling it all the time. Whatever, then, is required for the purpose of example, must abide at all events: it is not any reformation on the part of the offender that can warrant the remitting of any part of it: if it could, a man would have nothing to do but to reform immediately, and so free himself from the greatest part of that punishment which was deemed necessary. In order, then, to warrant the remitting of any part of a punishment upon this ground, it must first be supposed that the punishment at first appointed was more than was necessary for the purpose of example, and consequently that a part of it was needless upon the whole. This, indeed, is apt enough to be the case, under the imperfect systems that are as yet on foot: and therefore, during the continuance of those systems, the property of remissibility may, on this second ground likewise, as well as on the former, be deemed a useful one. But this would not be the case in any new-constructed system, in which the rules of proportion above laid down should be observed. In such a system, therefore, the utility of this property would rest solely on the former ground.

See View of the Hard Labour Bill, p. 109.

See ch. xv. [Cases unmeet], par. 2, note.

XXVI.

Upon taking a survey of the various possible modes of punishment, it will appear evidently, that there is not any one of them that possesses all the above properties in perfection. To do the best that can be done in the way of punishment, it will therefore be necessary, upon most occasions, to compound them, and make them into complex lots, each consisting of a number of different modes of punishment put together: the nature and proportions of the constituent parts of each lot being different, according to the nature of the offence which it is designed to combat.

XXVII.

It may not be amiss to bring together, and exhibit in one view, the eleven properties above established. They are as follows:—

Two of them are concerned in establishing a proper proportion between a single offence and its punishment; viz.

One, in establishing a proportion between more offences than one, and more punishments than one; viz.

A fourth contributes to place the punishment in that situation in which alone it can be efficacious; and at the same time to be bestowing on it the two farther properties of exemplarity and popularity; viz.

Two others are concerned in excluding all useless punishment; the one indirectly, by heightening the efficacy of what is useful; the other in a direct way; viz.

Three others contribute severally to the three inferior ends of punishment; viz.

Another property tends to exclude a collateral mischief, which a particular mode of punishment is liable accidentally to produce; viz.

The remaining property tends to palliate a mischief, which all punishment, as such, is liable accidentally to produce; viz.

The properties of commensurability, characteristicalness, exemplarity, subserviency to reformation, and efficacy in disabling, are more particularly calculated to augment the profit which is to be made by punishment: trugality, subserviency to compensation, popularity, and remissibility, to diminish the expense: variability and equability are alike subservient to both those purposes.

XXVIII.

We now come to take a general survey of the system of offences; that is, of such acts to which, on account of the mischievous consequences they have a natural tendency to produce, and in the view of putting a stop to those consequences, it may be proper to annex a certain artificial consequence, consisting of punishment, to be inflicted on the authors of such acts, according to the principles just established.

Chapter XVIII.

§ 1.

Classes of Offences.

I.

*It is necessary, at the outset, to make a distinction between such acts as are or may be, and such as ought to be offences. Any act may be an offence, which they whom the community are in the habit of obeying shall be pleased to make one: that is, any act which they shall be pleased to prohibit or to punish. But, upon the principle of utility, such acts alone ought to be made offences, as the good of the community requires should be made so.

* This chapter is an attempt to put our ideas of offences into an exact method. The particular uses of method are various: but the general one is, to enable men to understand the things that are the subjects of it. To understand a thing, is to be acquainted with its qualities or properties. Of these properties, some are common to it with other things; the rest, peculiar. But the qualities which are peculiar to any one sort of thing are few indeed, in comparison with those which are common to it with other things. To make it known in respect of its difference, would therefore be doing little, unless it were made known also by its genus. To understand it perfectly, a man must therefore be informed of the points in which it agrees, as well as of those in which it disagrees, with all other things. When a number of objects, composing a logical whole, are to be considered together, all of these possessing with respect to one another a certain congruency or agreement denoted by a certain name, there is but one way of giving a perfect knowledge of their nature; and that is, by distributing them into a system of parcels, each of them a part, either of some other parcel, or, at any rate, of the common whole. This can only be done in the way of bipartition, dividing each superior branch into two, and but two, immediately subordinate ones; beginning with the logical whole, dividing that into two parts, then each of those parts into two others; and so on. These first-distinguished parts agree in respect of those properties which belong to the whole: they differ in respect of those properties which are peculiar to each. To divide the whole into more than two parcels at once, for example into three, would not answer the purpose; for, in fact, it is but two objects that the mind can compare together exactly at the same time. Thus, then, let us endeavour to deal with offences; or rather, strictly speaking, with acts which possess such properties as seem to indicate them fit to be constituted offences. The task is arduous; and, as yet at least, perhaps for ever, above our force. There is no speaking of objects but by their names: but the business of giving them names has always been prior to the true and perfect knowledge of their natures. Objects the most dissimilar have been spoken of and treated as if their properties were the same. Objects the most similar have been spoken of and treated as if they had scarce any thing in common. Whatever discoveries may be made concerning them, how different soever their real congruencies and disagreements may be found to be from those which are indicated by their names, it is not without the utmost difficulty that any means can be found out of expressing those discoveries by other more apposite denominations. Change the import of the old names, and you are in perpetual danger of being misunderstood: introduce an entire new set of names, and you are sure not to be understood at all. Complete success, then, is, as yet at least, unattainable. But an attempt, though imperfect, may have its use: and, at the worst, it may accelerate the arrival of that perfect system, the possession of which will be the happiness of some maturer age. Gross ignorance descries no difficulties; imperfect knowledge finds them out, and struggles with them: it must be perfect knowledge that overcomes them.

II.

The good of the community cannot require, that any act should be made an offence, which is not liable, in some way or other, to be detrimental to the community. For in the case of such an act, all punishment is groundless.*

* See ch. xv. [Cases umeet] § 2, par. 1.

III.

But if the whole assemblage of any number of individuals be considered as constituting an imaginary compound body, a community or political state; any act that is detrimental to any one or more of those members is, as to so much of its effects, detrimental to the state.

IV.

An act cannot be detrimental to a state, but by being detrimental to some one or more of the individuals that compose it. But these individuals may either be assignable or unassignable.

[Assignable.] That is, either by name, or at least by description, in such manner as to be sufficiently distinguished from all others; for instance, by the circumstance of being the owner or occupier of such and such goods. See B. I. tit. [Personation.] Supra, ch. xii. [Consequences] par. 15.

V.

When there is any assignable individual to whom an offence is detrimental, that person may either be a person other than the offender, or the offender himself.

VI.

Offences that are detrimental, in the first instance, to assignable persons other than the offender, may be termed by one common name, offences against individuals. And of these may be composed the 1st class of offences. To contrast them with offences of the 2d and 4th classes, it may also sometimes be convenient to style them private offences. To contrast them at the same time with offences of the 3d class, they may be styled private extra-regarding offences.

VII.

When it appears, in general, that there are persons to whom the act in question may be detrimental, but such persons cannot be individually assigned, the circle within which it appears that they may be found, is either of less extent than that which comprises the whole community, or not. If of less, the persons comprised within this lesser circle may be considered for this purpose as composing a body of themselves; comprised within, but distinguishable from, the greater body of the whole community. The circumstance that constitutes the union between the members of this lesser body, may be either their residence within a particular place, or, in short, any other less explicit principle of union, which may serve to distinguish them from the remaining members of the community. In the first case, the act may be styled an offence against a neighbourhood: in the second, an offence against a particular class of persons in the community. Offences, then, against a class or neighbourhood, may, together, constitute the 2d class of offences. To contrast them with private offences on the one hand, and public on the other, they may also be styled semi-public offences.

With regard to offences against a class or neighbourhood, it is evident, that the fewer the individuals are, of which such class is composed, and the narrower that neighbourhood is, the more likely are the persons, to whom the offence is detrimental, to become assignable: insomuch that, in some cases, it may be difficult to determine concerning a given offence, whether it be an offence against individuals, or against a class or neighbourhood. It is evident, also, that the larger the class or neighbourhood is, the more it approaches to a coincidence with the great body of the state. The three classes, therefore, are liable, to a certain degree, to run into one another, and be confounded. But this is no more than what is the case, more or less, with all those ideal compartments under which men are wont to distribute objects for the convenience of discourse.

VIII.

Offences, which in the first instance are detrimental to the offender himself, and to no one else, unless it be by their being detrimental to himself, may serve to compose a third class. To contrast them the better with offences of the first, second, and fourth classes, all which are of a transitive nature, they might be styled intransitive* offences; but still better, self-regarding.

* See ch. vii. [Actions] par. 13.

IX.

The fourth class may be composed of such acts as ought to be made offences, on account of the distant mischief which they threaten to bring upon an unassignable indefinite multitude of the whole number of individuals, of which the community is composed; although no particular individual should appear more likely to be a sufferer by them than another. These may be called public offences, or offences against the state.

X.

A fifth class, or appendix, may be composed of such acts as, according to the circumstances in which they are committed, and more particularly according to the purposes to which they are applied, may be detrimental in any one of the ways in which the act of one man can be detrimental to another. These may be termed multiform, or heterogeneous offences. Offences that are in this case may be reduced to two great heads: 1. Offences by falsehood: and, 2. Offences against trust.

1. Offences by falsehood: 2. Offences against trust. See also par. 20 to 30, and 66. Maturer views have suggested the feasibility, and the means, of ridding the system of this anomalous excrescence. Instead of considering these as so many divisions of offences, divided into genera, correspondent and collateral to the several genera distinguished by other appellations, they may be considered as so may specific differences, respectively applicable to those genera. Thus, in the case of a simple personal injury, in the operation of which a plan of falsehood has been employed, it seems more simple and more natural to consider the offence thus committed as a particular species or modification of the genus of offence termed a simple personal injury, than to consider the simple personal injury, when effected by such means, as a modification of the division of offences entitled Offences through falsehood. By this means, the circumstances of the intervention of falsehood as an instrument, and of the existence of a particular obligation of the nature of a trust, will be reduced to a par with various other classes of circumstances capable of affording grounds of modification, commonly of aggravation or extenuation, to various genera of offences: instance, premeditation and conspiracy, on the one hand; provocation received, and intoxication, on the other. This class will appear, but too plainly, as a kind of botch in comparison of the rest. But such is the fate of science, and more particularly of the moral branch; the distribution of things must in a great measure be dependent on their names: arrangement, the work of mature reflection, must be ruled by nomenclature, the work of popular caprice.

In the book of the laws, offences must therefore be treated of, as much as possible, under their accustomed names. Generical terms, which are in continual use, and which express ideas for which there are no other terms in use, cannot safely be discarded. When any such occur, which cannot be brought to quadrate with such a plan of classification as appears to be most convenient upon the whole, what then is to be done? There seems to be but one thing, which is, to retain them, and annex them to the regular part of the system in the form of an appendix. Though they cannot, when entire, be made to rank under any of the classes established in the rest of the system, the divisions to which they give title may be broken down into lesser divisions, which may not be alike intractable. By this means, how discordant soever with the rest of the system they may appear to be at first sight, on a closer inspection they may be found conformable.

This must inevitably be the case with the names of offences, which are so various and universal in their nature, as to be capable, each of them, of doing whatever mischief can be done by any other kind or kinds of offences whatsoever. Offences of this description may well be called anomalous.

Such offences, it is plain, cannot but shew themselves equally intractable under every kind of system. Upon whatever principle the system be constructed, they cannot, any of them, with any degree of propriety, be confined to any one division. If, therefore, they constitute a blemish in the present system, it is such a blemish as could not be avoided but at the expense of a greater. The class they are here thrown into will traverse, in its subordinate ramifications, the other classes and divisions of the present system: true, but so would they of any other. An irregularity, and that but a superficial one, is a less evil than continual error and contradiction. But even this slight deviation, which the fashion of language seemed to render unavoidable at the outset, we shall soon find occasion to correct as we advance. For though the first great parcels into which the offences of this class are divided are not referable, any of them, to any of the former classes, yet the subsequent lesser subdivisions arc.

§ 2.

Divisions and Sub-divisions.

XI.

Let us see by what method these classes may be farther subdivided. First, then, with regard to offences against individuals.

In the present period of existence, a man’s being and well being, his happiness and his security, in a word, his pleasures and his immunity from pains, are all dependant, more or less, in the first place, upon his own person; in the next place, upon the exterior objects that surround him. These objects are either things, or other persons. Under one or other of these classes must evidently be comprised every sort of exterior object, by means of which his interest can be affected. If, then, by means of any offence, a man should on any occasion become a sufferer, it must be in one or other of two ways: 1. absolutely, to wit, immediately in his own person; in which case the offence may be said to be an offence against his person: or, 2. relatively, by reason of some material relation* which the before-mentioned exterior objects may happen to bear, in the way of causality (See ch. vii. Actions, par. 24), to his happiness. Now in as far as a man is in a way to derive either happiness or security from any object which belongs to the class of things, such thing is said to be his property, or at least he is said to have a property or an interest therein: an offence, therefore, which tends to lessen the facility he might otherwise have of deriving happiness or security from an object which belongs to the class of things, may be styled an offence against his property. With regard to persons, in as far as, from objects of this class, a man is in a way to derive happiness or security, it is in virtue of their services, in virtue of some services, which, by one sort of inducement or another, they may be disposed to render him. Now, then, take any man, by way of example, and the disposition, whatever it may be, which he may be in to render you service, either has no other connection to give birth or support to it, than the general one which binds him to the whole species, or it has some other connection more particular. In the latter case, such a connection may be spoken of as constituting, in your favour, a kind of fictitious or incorporeal object of property, which is styled your condition. An offence, therefore, the tendency of which is to lessen the facility you might otherwise have of deriving happiness from the services of a person thus specially connected with you, may be styled an offence against your condition in life, or simply against your condition. Conditions in life must evidently be as various as the relations by which they are constituted. This will be seen more particularly farther on. In the mean time, those of husband, wife, parent, child, master, servant, citizen of such or such a city, natural-born subject of such or such a country, may answer the purpose of examples.

Where there is no such particular connection, or (what comes to the same thing) where the disposition, whatever it may be, which a man is in to render you service, is not considered as depending upon such connection, but simply upon the good-will he bears to you; in such case, in order to express what chance you have of deriving a benefit from his services, a kind of fictitious object of property is spoken of, as being constituted in your favour, and is called your reputation. An offence, therefore, the tendency of which is to lessen the facility you might otherwise have had of deriving happiness or security from the services of persons at large, whether connected with you or not by any special tie, may be styled an offence against your reputation. It appears, therefore, that if by any offence an individual becomes a sufferer, it must be in one or other of the four points above mentioned; viz. his person, his property, his condition in life, or his reputation. These sources of distinction, then, may serve to form so many subordinate divisions. If any offences should be found to affect a person in more than one of these points at the same time, such offences may respectively be put under so many separate divisions; and such compound divisions may be subjoined to the preceding simple ones. The several divisions (simple and compound together) which are hereinafter established, stand as follows: 1. Offences against person. 2. Offences against reputation. 3. Offences against property. 4. Offences against condition. 5. Offences against person and property together. 6. Offences against person and reputation together.*

* See ch. vii. [Actions] par. 3 and 24.

If, by reason of the word relation, this part of the division should appear obscure, the unknown term may be got rid of in the following manner. Our ideas are derived, all of them, from the senses; pleasurable and painful ones, therefore, among the rest: consequently, from the operation of sensible objects upon our senses. A man’s happiness, then, may be said to depend more or less upon the relation he bears to any sensible object, when such subject is in a way that stands a chance, greater or less, of producing to him, or averting from him, pain or pleasure. Now this, if at all, it must do in one or other of two ways: 1. In an active way, properly so called; viz. by motion: or, 2. In a passive or quiescent way, by being moved to, or acted upon: and in either case, either, 1. in an immediate way, by acting upon, or being acted on by, the organs of sense, without the intervention of any other external object: or, 2. in a more or less remote way, by acting upon, or being acted on by, some other external object, which (with the intervention of a greater or less number of such objects, and at the end of more or less considerable intervals of time) will come at length to act upon, or be acted upon by, those organs. And this is equally true, whether the external objects in question be things or persons. It is also equally true of pains and pleasures of the mind, as of those of the body: all the difference is, that in the production of these, the pleasure or pain may result immediately from the perception which it accompanies: in the production of those of the mind, it cannot result from the action of an object of sense, any otherwise than by association; to wit, by means of some connexion which the perception has contracted with certain prior ones, lodged already in the memory.a

a See ch. v. [Pleasures and Pains] par. 15, 31. Ch. x. [Motives] par. 39, note.

See ch. x. [Motives.]

* Subsequent consideration has here suggested several alterations. The necessity of adding, to property, power, in the character of a distinguishable as well as valuable object or subject matter of possession, has presented itself to view: and in regard to the fictitious entity here termed condition (for shortness instead of saying condition in life), it has been observed to be a sort of composite object, compounded of property, reputation, power, and right to services. For this composite object the more proper place was therefore at the tail of the several simple ones. — Note by the Editor, July 1822.

XII.

Next with regard to semi-public offences. Pain, considered with reference to the time of the act from which it is liable to issue, must, it is evident, be either present, past, or future. In as far as it is either present or past, it cannot be the result of any act which comes under the description of a semi-public offence: for if it be present or past, the individuals who experience, or who have experienced, it are assignable. There remains that sort of mischief, which, if it ever come to exist at all, is as yet but future: mischief, thus circumstanced, takes the name of danger. Now, then, when by means of the act of any person a whole neighbourhood, or other class of persons, are exposed to danger, this danger must either be intentional on his part, or unintentional. If unintentional, such danger, when it is converted into actual mischief, takes the name of a calamity: offences, productive of such danger, may be styled semi-public offences operating through calamity; or, more briefly, offences through calamity. If the danger be intentional, insomuch that it might be produced, and might convert itself into actual mischief, without the concurrence of any calamity, it may be said to originate in mere delinquency: offences, then, which, without the concurrence of any calamity, tend to produce such danger as disturbs the security of a local, or other subordinate class of persons, may be styled semi-public offences operating merely by delinquency, or, more briefly, offences of mere delinquency.

Supra, par. 4, note.

See ch. xii. [Consequences.]

See ch. viii. [Intentionality.]

XIII.

With regard to any farther sub-divisions, offences against calamity will depend upon the nature of the several calamities to which man, and the several things that are of use to him, stand exposed. These will be considered in another place.§

§ See B. I. tit. [Semi-public Offences.] In the mean time, that of pestilence may serve as an example. A man, without any intention of giving birth to such a calamity, may expose a neighbourhood to the danger of it, by breaking quarantine, or violating any of those other preventive regulations which governments, at certain conjunctures, may find it expedient to have recourse to, for the purpose of guarding against such danger.

XIV.

Semi-public offences of mere delinquency will follow the method of division applied to offences against individuals. It will easily be conceived, that whatever pain or inconvenience any given individual may be made to suffer, to the danger of that pain or inconvenience may any number of individuals, assignable or not assignable, be exposed. Now there are four points or articles, as we have seen, in respect to which an individual may be made to suffer pain or inconvenience. If, then, with respect to any one of them, the connection of causes and effects is such, that to the danger of suffering in that article a number of persons, who individually are not assignable, may, by the delinquency of one person, be exposed, such article will form a ground of distinction, on which a particular sub-division of semi-public offences may be established. if, with respect to any such article, no such effect can take place, that ground of distinction will lie for the present unoccupied: ready, however, upon any change of circumstances, or in the manner of viewing the subject, to receive a correspondent sub-division of offences, if ever it should seem necessary that any such offences should be created.

XV.

We come next to self-regarding offences; or, more properly, to acts productive in the first instance of no other than a self-regarding mischief: acts which, if in any instance it be thought fit to constitute them offences, will come under the denomination of offences against one’s self. This class will not for the present give us much trouble. For it is evident, that in whatever points a man is vulnerable by the hand of another, in the same points may he be conceived to be vulnerable by his own. Whatever divisions, therefore, will serve for the first class, the same will serve for this. As to the questions, What acts are productive of a mischief of this stamp? and, among such as are, which it may, and which it may not, be worth while to treat upon the footing of offences? these are points (the latter of which at least is) too unsettled, and too open to controversy, to be laid down with that degree of confidence which is implied in the exhibition of properties which are made use of as the groundwork of an arrangement. Properties for this purpose ought to be such as show themselves at first glance, and appear to belong to the subject beyond dispute.

See ch. xv. [Cases unmeet] § 4.

XVI.

Public offences may be distributed under eleven divisions.* 1. Offences against external security. 2. Offences against justice. 3. Offences against the preventive branch of the police. 4. Offences against the public force. 5. Offences against the positive increase of the national felicity. 6. Offences against the public wealth. 7. Offences against population. 8. Offences against the national wealth. 9. Offences against the sovereignty. 10. Offences against religion. 11. Offences against the national interest in general. The way in which these several sorts of offences connect with one another, and with the interest of the public, that is, of an unassignable multitude of the individuals of which that body is composed, may be thus conceived.

* In this part of the analysis, I have found it necessary to deviate in some degree from the rigid rules of the exhaustive method I set out with. By me, or by some one else, this method may, perhaps, be more strictly pursued at some maturer period of the science. At present, the benefit that might result from the unrelaxed observance of it, seemed so precarious, that I could not help doubting whether it would pay for the delay and trouble, Doubtless such a method is eminently instructive: but the fatigue of following it out is so great, not only to the author, but probably also to the reader, that if carried to its utmost length at the first attempt, it might perhaps do more disservice in the way of disgust, than service in the way of information. For knowledge, like physic, how salutary soever in itself, becomes no longer of any use, when made too unpalatable to be swallowed. Meantime, it cannot but be a mortifying circumstance to a writer, who is sensible of the importance of his subject, and anxious to do it justice, to find himself obliged to exhibit what he perceives to be faulty, with any view, how indistinct soever, of something more perfect before his eyes. If there be any thing new and original in this work it is to the exhaustive method, so often aimed at, that I am indebted for it. It will, therefore, be no great wonder if I should not be able to quit it without reluctance. On the other hand, the marks of stiffness which will doubtless be perceived in a multitude of places, are chiefly owing to a solicitous, and not perfectly successful, pursuit of this same method. New instruments are seldom handled at first with perfect case.

XVII.

Mischief, by which the interest of the public, as above defined, may be affected, must, if produced at all, be produced either by means of an influence exerted on the operations of government, or by other means, without the exertion of such influence. To begin with the latter case: mischief, be it what it will, and let it happen to whom it will, must be produced either by the unassisted powers of the agent in question, or by the instrumentality of some other agents. In the latter case, these agents will be either persons or things. Persons, again, must be either not members of the community in question, or members. Mischief produced by the instrumentality of persons, may accordingly be produced by the instrumentality either of external or of internal adversaries. Now when it is produced by the agent’s own unassisted powers, or by the instrumentality of internal adversaries, or only by the instrumentality of things, it is seldom that it can show itself in any other shape (setting aside any influence it may exert on the operations of government) than either that of an offence against assignable individuals, or that of an offence against a local or other subordinate class of persons. If there should be a way in which mischief can be produced, by any of these means, to individuals altogether unassignable, it will scarcely be found conspicuous or important enough to occupy a title by itself: it may accordingly be referred to the miscellaneous head of offences against the national interest in general. The only mischief, of any considerable account, which can be made to impend indiscriminately over the whole number of members in the community, is that complex kind of mischief which results from a state of war, and is produced by the instrumentality of external adversaries: by their being provoked, for instance, or invited, or encouraged to invasion. In this way may a man very well bring down a mischief, and that a very heavy one, upon the whole community in general, and that without taking a part in any of the injuries which came in consequence to be offered to particular individuals.

Next with regard to the mischief which an offence may bring upon the public by its influence on the operations of the government. This it may occasion either, 1. In a more immediate way, by its influence on those operations themselves: 2. In a more remote way, by its influence on the instruments by, or by the help of which those operations should be performed: or, 3. In a more remote way still, by its influence on the sources from whence such instruments are to be derived. First, then, as to the operations of government, the tendency of these, in as far as it is conformable to what on the principle of utility it ought to be, is in every case either to avert mischief from the community, or to make an addition to the sum of positive good.* Now mischief, we have seen, must come either from external adversaries, from internal adversaries, or from calamities. With regard to mischief from external adversaries, there requires no further division. As to mischief from internal adversaries, the expedients employed for averting it may be distinguished into such as may be applied before the discovery of any mischievous design in particular, and such as can not be employed but in consequence of the discovery of some such design: the former of these are commonly referred to a branch which may be styled the preventive branch of the police: the latter to that of justice. Second. As to the instruments which government, whether in the averting of evil or in the producing of positive good, can have to work with, these must be either persons or things. Those which are destined to the particular function of guarding against mischief from adversaries in general, but more particularly from external adversaries, may be distinguished from the rest under the collective appellation of the public military force, and, for conciseness sake, the military force. The rest may be characterised by the collective appellation of the public wealth. Thirdly. With regard to the sources or funds from whence these instruments, howsoever applied, must be derived, such of them as come under the denomination of persons must be taken out of the whole number of persons that are in the community, that is, out of the total population of the state; so that the greater the population, the greater may, cæteris paribus, be this branch of the public wealth; and the less, the less. In like manner, such as come under the denomination of things may be, and most of them commonly are, taken out of the sum total of those things which are the separate properties of the several members of the community: the sum of which properties may be termed the national wealth: so that the greater the national wealth, the greater, cæteris paribus, may be this remaining branch of the public wealth; and the less, the less. It is here to be observed, that if the influence exerted on any occasion by an individual over the operations of the government be pernicious, it must be in one or other of two ways: 1. By causing, or tending to cause, operations not to be performed which ought to be performed; in other words, by impeding the operations of government: or, 2. By causing operations to be performed which ought not to be performed; in other words, by misdirecting them. Last, to the total assemblage of the persons by whom the several political operations above mentioned come to be performed, we set out with applying the collective appellation of the government. Among these persons there commonly* is some one person, or body of persons, whose office it is to assign and distribute to the rest their several departments, to determine the conduct to be pursued by each in the performance of the particular set of operations that belongs to him, and even upon occasion to exercise his function in his stead. Where there is any such person, or body of persons, he or it may, according as the turn of the phrase requires, be termed the sovereign, or the sovereignty. Now it is evident, that to impede or misdirect the operations of the sovereign, as here described, may be to impede or misdirect the operations of the several departments of government, as described above.

From this analysis, by which the connection between the several above-mentioned heads of offences is exhibited, we may now collect a definition for each article. By offences against external security, we may understand such offences whereof the tendency is to bring upon the public a mischief resulting from the hostilities of foreign adversaries. By offences against justices, such offences whereof the tendency is to impede or misdirect the operations of that power, which is employed in the business of guarding the public against the mischiefs resulting from the delinquency of internal adversaries, as far as it is to be done by expedients, which do not come to be applied in any case till after the discovery of some particular design of the sort of those which they are calculated to prevent. By offences against the preventive branch of the police, such offences whereof the tendency is to impede or misdirect the operations of that power, which is employed in guarding against mischiefs resulting from the delinquency of internal adversaries, by expedients that come to be applied before-hand; or of that which is employed in guarding against the mischiefs that might be occasioned by physical calamities. By offences against the public force, such offences whereof the tendency is to impede or misdirect the operations of that power which is destined to guard the public from the mischiefs which may result from the hostility of foreign adversaries, and, in case of necessity, in the capacity of ministers of justice, from mischiefs of the number of those which result from the delinquency of internal adversaries. By offences against the increase of the national felicity, such offences whereof the tendency is to impede or misapply the operations of those powers that are employed in the conducting of various establishments, which are calculated to make, in so many different ways, a positive addition to the stock of public happiness. By offences against the public wealth, such offences whereof the tendency is to diminish the amount, or misdirect the application, of the money and other articles of wealth, which the government reserves as a fund, out of which the stock of instruments employed in the service above mentioned may be kept up. By offences against population, such offences whereof the tendency is to diminish the numbers, or impair the political value, of the sum total of the members of the community. By offences against the national wealth, such offences whereof the tendency is to diminish the quantity, or impair the value, of the things which compose the separate properties or estates of the several members of the community.

The idea of government, it may be observed, is introduced here without any preparation. The fact of its being established, I assume as notorious, and the necessity of it as alike obvious and incontestible. Observations indicating that necessity, if any such should be thought worth looking at in this view, may be found by turning to a passage in a former chapter, where they were incidentally adduced for the purpose of illustration. See ch. xii. [Consequences] par. 17.

See infra, par. 54, note. Even this head, ample as it is, and vague as it may seem to be, will not, when examined by the principle of utility, serve, any more than another, to secrete any offence which has no title to be placed there. To show the pain or loss of pleasure which is likely to ensue, is a problem, which before a legislator can justify himself in adding the act to the catalogue of offences, he may in this case, as in every other, be called upon to solve.

* For examples, see infra, par. 54, note. This branch of the business of government, a sort of work of supererogation, as it may be called, in the calendar of political duty, is comparatively but of recent date. It is not for this that the untutored many could have originally submitted themselves to the dominion of the few. It was the dread of evil, not the hope of good, that first cemented societies together. Necessaries come always before luxuries. The state of language marks the progress of ideas. Time out of mind, the military department has had a name: so has that of justice: the power which occupies itself in preventing mischief, not till lately, and that but a loose one, the police: for the power which takes for its object the introduction of positive good, no peculiar name, however inadequate, seems yet to have been devised.

The functions of justice, and those of the police, must be apt, in many points, to run one into another: especially as the business would be very badly managed if the same persons, whose more particular duty it is to act as officers of the police, were not upon occasion to act in the capacity of officers of justice. The ideas, however, of the two functions may still be kept distinct: and I see not where the line of separation can be drawn, unless it be as above.

As to the word police, though of Greek extractraction, it seems to be of French growth: it is from France, at least, that it has been imported into Great Britain, where it still retains its foreign garb: in Germany, if it did not originate there, it has at least been naturalized. Taken all together, the idea belonging to it seems to be too multifarious to be susceptible of any single definition. Want of words obliged me to reduce the two branches here specified into one. Who would have endured, in this place, to have seen two such words as the phthano-paranomic or crime-preventing and the phthano-symphoric or calamity-preventing, branches of the police? The inconvenience of uniting the two branches under the same denomination, are, however, the less, inasmuch as the operations requisite to be performed for the two purposes will in many cases be the same. Other functions, commonly referred to the head of police, may be referred either to the head of that power which occupies itself in promoting, in a positive way, the increase of the national felicity, or of that which employs itself in the management of the public wealth. See infra, par. 54, note.

It is from abroad that those pernicious enterprises are most apt to originate, which come backed with a greater quantity of physical force than the persons who are, in a more particular sense, the officers of justice, are wont to have at their command. Mischief, the perpetration of which is ensured by a force of such magnitude, may therefore be looked upon in general as the work of external adversaries. Accordingly, when the persons by whom it is perpetrated, are in such force as to bid defiance to the ordinary efforts of justice, they loosen themselves from their original denomination, in proportion as they increase in force, till at length they are looked upon as being no longer members of the state, but as standing altogether upon a footing with external adversaries. Give force enough to robbery, and it swells into rebellion: give permanence enough to rebellion, and it settles into hostility.

It must be confessed, that in common speech the distinction here established between the public wealth and the national wealth is but indifferently settled: nor is this to be wondered at; the ideas themselves, though here necessary to be distinguished, being so frequently convertible. But I am mistaken if the language will furnish any other two words that would express the distinction better. Those in question will, I imagine, be allowed to be thus far well chosen, that if they were made to change their places, the import given to them would not appear to be quite so proper as that which is given to them as they stand at present.

* I should have been afraid to have said necessarily. In the United Provinces, in the Helvetic, or even in the Germanic body, where is that one assembly in which an absolute power over the whole resides? where was there in the Roman Commonwealth? I would not undertake for certain to find an answer to all these questions.

XVIII.

In this deduction, it may be asked, what place is left for religion? This we shall see presently. For combating the various kinds of offences above enumerated, that is, for combating all the offences (those not excepted which we are now about considering) which it is in man’s nature to commit, the state has two great engines, punishment and reward: punishment, to be applied to all, and upon all ordinary occasions: reward, to be applied to a few, for particular purposes, and upon extraordinary occasions. But whether or no a man has done the act which renders him an object meet for punishment or reward, the eyes of those, whosoever they be, to whom the management of these engines is entrusted, cannot always see, nor, where it is punishment that is to be administered, can their hands be always sure to reach him. To supply these deficiencies in point of power, it is thought necessary, or at least useful (without which the truth of the doctrine would be nothing to the purpose), to inculcate into the minds of the people the belief of the existence of a power applicable to the same purposes, and not liable to the same deficiencies: the power of a supreme invisible being, to whom a disposition of contributing to the same ends to which the several institutions already mentioned are calculated to contribute, must for this purpose be ascribed. It is of course expected that this power will, at one time or other, be employed in the promoting of those ends: and to keep up and strengthen this expectation among men, is spoken of as being the employment of a kind of allegorical personage, feigned, as before,* for convenience of discourse, and styled religion. To diminish, then, or misapply the influence of religion, is pro tanto to diminish or misapply what power the state has of combating with effect any of the before enumerated kinds of offences; that is, all kinds of offences whatsoever. Acts that appear to have this tendency may be styled offences against religion. Of these, then, may be composed the tenth division of the class of offences against the state.

* See par. 17, with regard to justice.

It may be observed, that upon this occasion I consider religion in no other light, than in respect of the influence it may have on the happiness of the present life. As to the effects it may have in assuring us of and preparing us for a better life to come, this is a matter which comes not within the cognizance of the legislator. See tit. [Offences against Religion.]

I say offences against religion, the fictitious entity: not offences against God, the real being. For, what sort of pain should the act of a feeble mortal occasion to a being unsusceptible of pain? How should an offence affect him? Should it be an offence against his person, his property, his reputation, or his condition?

It has commonly been the way to put offences against religion foremost. The idea of precedence is naturally enough connected with that of reverence. Ex Διος αϱχωμεαθα. But for expressing reverence, there are other methods enough that are less equivocal. And in point of method and perspicuity, it is evident, that with regard to offences against religion, neither the nature of the mischief which it is their tendency to produce, nor the reason there may be for punishing them, can be understood, but from the consideration of the several mischiefs which result from the several other sorts of offences. In a political view, it is only because those others are mischievous, that offences against religion are so too.

XIX.

If there be any acts which appear liable to affect the state in any one or more of the above ways, by operating in prejudice of the external security of the state, or of its internal security; of the public force; of the increase of the national felicity; of the public wealth; of the national population; of the national wealth; of the sovereignty; or of religion; at the same time that it is not clear in which of all these ways they will affect it most nor but that, according to contingencies, they may affect it in one of these ways only, or in another; such acts may be collected together under a miscellaneous division by themselves, and styled offences against the national interest in general. Of these, then, may be composed the eleventh and last division of the class of offences against the state.

XX.

We come now to class the fifth: consisting of multiform offences. These, as has been already intimated, are either offences by falsehood, or offences concerning trust. Under the head of offences by falsehood, may be comprehended, 1. Simple falsehoods. 2. Forgery. 3. Personation. 4. Perjury. Let us observe in what particulars these four kinds of falsehood agree, and in what they differ.

This division of falsehoods, it is to be observed, is not regularly drawn out: that being what the nature of the case will not here admit of. Falsehood may be infinitely diversified in other ways than these. In a particular case, for instance, simple falsehood, when uttered by writing, is distinguished from the same falsehood when uttered by word of mouth; and has had a particular name given to it accordingly: I mean, where it strikes against reputation; in which case, the instrument it has been uttered by has been called a libel. Now it is obvious, that in the same manner it might have received a distinct name in all other cases where it is uttered by writing. But there has not happened to be any thing in particular that has disposed mankind in those cases to give it such a name. The case is, that among the infinity of circumstances by which it might have been diversified, those which constitute it a libel, happen to have engaged a peculiar share of attention on the part of the institutors of language; either in virtue of the influence which these circumstances have on the tendency of the act, or in virtue of any particular degree of force with which on any other account they may have disposed it to strike upon the imagination.

XXI.

Offences by falsehood, however diversified in other particulars, have this in common, that they consist in some abuse of the faculty of discourse, or rather, as we shall see hereafter, of the faculty of influencing the sentiment of belief in other men, whether by discourse or otherwise. The use of discourse is to influence belief, and that in such manner as to give other men to understand that things are as they are really. Falsehoods, of whatever kind they be, agree in this: that they give men to understand that things are otherwise than as in reality they are.

See B. I. tit. [Falsehoods.]

XXII.

Personation, forgery, and perjury, are each of them distinguished from other modes of uttering falsehood by certain special circumstances. When a falsehood is not accompanied by any of those circumstances, it may be styled simple falsehood. These circumstances are, 1. The form in which the falsehood is uttered. 2. The circumstance of its relating or not to the identity of the person of him who utters it. 3. The solemnity of the occasion on which it is uttered.* The particular application of these distinctive characters may more commodiously be reserved for another place.

* There are two other circumstances still more material; viz. 1. The parties whose interest is affected by the falsehood. 2. The point or article in which that interest is affected. These circumstances, however, enter not into the composition of the generical character. Their use is, as we shall see, to characterize the several species of each genus. See B. I. tit. [Falsehoods.]

Ibid.

XXIII.

We come now to the sub-divisions of offences by falsehood. These will bring us back into the regular track of analysis, pursued, without deviation, through the four preceding classes.

By whatever means a mischief is brought about, whether falsehood be or be not of the number, the individuals liable to be affected by it must either be assignable or unassignable. If assignable, there are but four material articles in respect to which they can be affected; to wit, their persons, their properties, their reputations, and their conditions in life. The case is the same, if, though unassignable, they are comprisable in any class subordinate to that which is composed of the whole number of members of the state. If the falsehood tend to the detriment of the whole state, it can only be by operating in one or other of the characters, which every act that is an offence against the state must assume; viz. that of an offence against external security, against justice, against the preventive branch of the police, against the public force, against the increase of the national felicity, against the public wealth, against the national population, against the national wealth, against the sovereignty of the state, or against its religion.

XXIV.

It is the common property, then, of the offences that belong to this division, to run over the same ground that is occupied by those of the preceding classes. But some of them, as we shall see, are apt, on various occasions, to drop or change the names which bring them under this division: this is chiefly the case with regard to simple falsehoods. Others retain their names unchanged; and even thereby supersede the names which would otherwise belong to the offences which they denominate: this is chiefly the case with regard to personation, forgery, and perjury. When this circumstance, then, the circumstance of falsehood, intervenes, in some cases the name which takes the lead, is that which indicates the offence by its effect; in other cases, it is that which indicates the expedient or instrument, as it were, by the help of which the offence is committed. Falsehood, take it by itself, consider it as not being accompanied by any other material circumstances, nor therefore productive of any material effects, can never, upon the principle of utility, constitute any offence at all. Combined with other circumstances, there is scarce any sort of pernicious effect which it may not be instrumental in producing. It is therefore rather in compliance with the laws of language, than in consideration of the nature of the things themselves, that falsehoods are made separate mention of under the name and in the character of distinct offences. All this would appear plain enough, if it were now a time for entering into particulars: but that is what cannot be done, consistently with any principle of order or convenience, until the inferior divisions of those other classes shall have been previously exhibited.

XXV.

We come now to offences against trust. A trust is, where there is any particular act which one party, in the exercise of some power, or some right, which is conferred on him, is bound to perform for the benefit of another. Or, more fully, thus: A party is said to be invested with a trust, when, being invested with a power, or with a right, there is a certain behaviour which, in the exercise of that power, or of that right, he is bound to maintain for the benefit of some other party. In such case, the party first mentioned is styled a trustee: for the other party, no name has ever yet been found: for want of a name, there seems to be no other resource than to give a new and more extensive sense to the word beneficiary, or to say at length the party to be benefited.*

The trustee is also said to have a trust conferred or imposed upon him, to be invested with a trust, to have had a trust given him to execute, to perform, to discharge, or to fulfil. The party to be benefited, is said to have a trust established or created in his favour; and so on through a variety of other phrases.

Powers, though not a species of rights (for the two sorts of fictitious entities, termed a power and a right, are altogether disparate), are yet so far included under rights, that wherever the word power may be employed, the word right may also be employed: The reason is, that wherever you may speak of a person as having a power, you may also speak of him as having a right to such power: but the converse of this proposition does not hold good: there are cases in which, though you may speak of a man as having a right, you can not speak of him as having a power, or in any other way make any mention of that word. On various occasions you have a right, for instance, to the services of the magistrate: but if you are a private person, you have no power over him: all the power is on his side. This being the case, as the word right was employed, the word power might, perhaps, without any deficiency in the sense, have been omitted. On the present occasion, however, as in speaking of trusts this word is commonly made more use of than the word right, it seemed most eligible, for the sake of perspicuity, to insert them both.

It may be expected that, since the word trust has been here expounded, the words power and right, upon the meaning of which the exposition of the word trust is made to depend, should be expounded also: and certain it is, that no two words can stand more in need of it than these do. Such exposition I accordingly set about to give, and indeed have actually drawn up: but the details into which I found it necessary to enter for this purpose, were of such length as to take up more room than could consistently be allotted to them in this place. With respect to these words, therefore, and a number of others, such as possession, title, and the like, which in point of import are inseparably connected with them, instead of exhibiting the exposition itself, I must content myself with giving a general idea of the plan which I have pursued in framing it: and as to every thing else, I must leave the import of them to rest upon whatever footing it may happen to stand upon in the apprehension of each reader. Power and right, and the whole tribe of fictious entities of this stamp, are all of them, in the sense which belongs to them in a book of jurisprudence, the results of some manifestation or other of the legislator’s will with respect to such or such an act. Now every such manifestation is either a prohibition, a command, or their respective negations; viz. a permission, and the declaration which the legislator makes of his will when on any occasion he leaves an act uncommanded. Now, to render the expression of the rule more concise, the commanding of a positive act may be represented by the prohibition of the negative act which is opposed to it. To know, then, how to expound a right, carry your eye to the act which, in the circumstances in question, would be a violation of that right: the law creates the right by prohibiting that act. Power, whether over a man’s own person, or over other persons, or over things, is constituted in the first instance by permission: but in as far as the law takes an active part in corroborating it, it is created by prohibition, and by command: by prohibition of such acts (on the part of other persons) as are judged incompatible with the exercise of it; and upon occasion, by command of such acts as are judged to be necessary for the removal of such or such obstacles of the number of those which may occur to impede the exercise of it. For every right which the law confers on one party, whether that party be an individual, a subordinate class of individuals, or the public, it thereby imposes on some other party a duty or obligation. But there may be laws which command or prohibit acts, that is, impose duties, without any other view than the benefit of the agent: these generate no rights: duties, therefore, may be either extra-regarding or self-regarding: extra-regarding have rights to correspond to them: self-regarding, none.

That the exposition of the words power and right must, in order to be correct, enter into a great variety of details, may be presently made appear. One branch of the system of rights and powers, and but one, are those of which property is composed: to be correct, then, it must, among other things, be applicable to the whole tribe of modifications of which property is susceptible. But the commands and prohibitions, by which the powers and rights that compose those several modifications are created, are of many different forms: to comprise the exposition in question within the compass of a single paragraph, would therefore be impossible: to take as many paragraphs for it as would be necessary in order to exhibit these different forms, would be to engage in a detail so ample, that the analysis of the several possible species of property would compose only a part of it. This labour, uninviting as it was, I have accordingly undergone: but the result of it, as may well be imagined, seemed too voluminous and minute to be exhibited in an outline like the present. Happily it is not necessary, except only for the scientific purpose of arrangement, to the understanding of any thing that need be said on the penal branch of the art of legislation. In a work which should treat of the civil branch of that art, it would find its proper place: and in such a work, if conducted upon the plan of the present one, it would be indispensable. Of the limits which seem to separate the one of these branches from the other, a pretty ample description will be found in the next chapter: from which some further lights respecting the course to be taken for developing the notions to be annexed to the words right and power, may incidentally be collected. See in particular, § 3 and 4. See also par. 55 of the present chapter.

I might have cut this matter very short, by proceeding in the usual strain, and saying, that a power was a faculty, and that a right was a privilege, and so on, following the beaten track of definition. But the inanity of such a method, in cases like the present, has been already pointed out:a a power is not a — any thing: neither is a right a — any thing: the case is, they have neither of them any superior genus: these, together with duty, obligation, and a multitude of others of the same stamp, being of the number of those fictitious entities, of which the import can by no other means be illustrated than by showing the relation which they bear to real ones.

a See Fragmen on Government, ch. v. § 6, note.

* The first of these parties is styled, in the law language, as well as in common speech, by the name here given to him. The other is styled, in the technical language of the English law, a cestuy que trust: in common speech, as we have observed, there is, unfortunately, no name for him. As to the law phrase, it is antiquated French, and though complex, it is still elliptical, and to the highest degree obscure. The phrase in full length would run in some such manner as this: cestuy al use de qui le trust est créé: he to whose use the trust or benefit is created. In a particular case, a cestuy que trust is called by the Roman law, fidei-commissarius. In imitation of this, I have seen him somewhere or other called in English a fide-committee. This term, however, seems not very expressive. A fide-committee, or, as it should have been, a fidei-committee, seems, literally speaking, to mean one who is committed to the good faith of another. Good faith seems to consist in the keeping of a promise. But a trust may be created without any promise in the case. It is indeed common enough to exact a promise, in order the more effectually to oblige a man to do that which he is made to promise he will do: but this is merely an accidental circumstance; a trust may be created without any such thing. What is it that constitutes a legal obligation in any case? A command, express or virtual, together with punishment appointed for the breach of it. By the same means may an obligation be constituted in this case as well as any other. Instead of the word beneficiary, which I found it necessary to adopt, the sense would be better expressed by some such word as beneficiendary (a word analogous in its formation to referendary), were it such an one as the ear could bring itself to endure. This would put it more effectually out of doubt, that the party meant was the party who ought to receive the benefit, whether he actually receives it or no: whereas the word beneficiary might be understood to intimate that the benefit was actually received: while in offences against trust, the mischief commonly is, that such benefit is reaped, not by the person it was designed for, but by some other: for instance, the trustee.

XXVI.

Now it may occur, that a trust is oftentimes spoken of as a species of condition:* that a trust is also spoken of as a species of property: and that a condition itself is also spoken of in the same light. It may be thought, therefore, that in the first class, the division of offences against condition should have been included under that of the offences against property: and that at any rate, so much of the fifth class now before us as contains offences against trust, should have been included under one or other of those two divisions of the first class. But upon examination it will appear, that no one of these divisions could with convenience, nor even perhaps with propriety, have been included under either of the other two. It will appear at the same time, that there is an intimate connection subsisting amongst them all: insomuch that of the lists of the offences to which they are respectively exposed, any one may serve in great measure as a model for any other. There are certain offences to which all trusts as such are exposed: to all these offences every sort of condition will be found exposed: at the same time that particular species of the offences against trust will, upon their application to particular conditions, receive different particular denominations. It will appear also, that of the two groups of offences into which the list of those against trust will be found naturally to divide itself, there is one, and but one, to which property, taken in its proper and more confined sense, stands exposed: and that these, in their application to the subject of property, will be found susceptible of distinct modifications, to which the usage of language, and the occasion there is for distinguishing them in point of treatment, make it necessary to find names.

In the first place, as there are, or at least may be (as we shall see) conditions which are not trusts, so there are trusts of which the idea would not be readily and naturally understood to be included under the word condition: add to which, that of those conditions which do include a trust, the greater number include other ingredients along with it: so that the idea of a condition, if, on the one hand, it stretches beyond the idea of a trust, does, on the other hand, fall short of it. Of the several sorts of trusts, by far the most important are those in which it is the public that stands in the relation of beneficiary. Now these trusts, it should seem, would hardly present themselves at first view upon the mention of the word condition. At any rate, what is more material, the most important of the offences against these kinds of trust would not seem to be included under the denomination of offences against condition. The offences which by this latter appellation would be brought to view, would be such only as seemed to affect the interests of an individual: of him, for example, who is considered as being invested with that condition. But in offences against public trust, it is the influence they have on the interests of the public that constitutes by much the most material part of their pernicious tendency: the influence they have on the interests of any individual, the only part of their influence which would be readily brought to view by the appellation of offences against condition, is comparatively as nothing. The word trust directs the attention at once to the interests of that party for whom the person in question is trustee: which party, upon the addition of the epithet public, is immediately understood to be the body composed of the whole assemblage, or an indefinite portion of the whole assemblage of the members of the state. The idea presented by the words public trust, is clear and unambiguous: it is but an obscure and ambiguous garb that that idea could be expressed in by the words publiccondition. It appears, therefore, that the principal part of the offences, included under the denomination of offences against trust, could not, commodiously at least, have been included under the head of offences against condition.

It is evident enough, that for the same reasons, neither could they have been included under the head of offences against property. It would have appeared preposterous, and would have argued a total inattention to the leading principle of the whole work, the principle of utility, to have taken the most mischievous and alarming part of the offences to which the public stands exposed, and forced them into the list of offences against the property of an individual; of that individual, to wit, who in that case would be considered as having in him the property of that public trust, which by the offences in question is affected.

Nor would it have been less improper to have included conditions, all of them, under the head of property: and thereby the whole catalogue of offences against condition, under the catalogue of offences against property. True it is, that there are offences against condition, which perhaps with equal propriety, and without any change in their nature, might be considered in the light of offences against property: so extensive and so vague are the ideas that are wont to be annexed to both these objects. But there are other offences, which though with unquestionable propriety they might be referred to the head of offences against condition, could not, without the utmost violence done to language, be forced under the appellation of offences against property. Property, considered with respect to the proprietor, implies invariably a benent, and nothing else: whatever obligations or burthens may, by accident, stand annexed to it, yet in itself it can never be otherwise than beneficial. On the part of the proprietor, it is created not by any commands that are laid on him, but by his being left free to do with such or such an article as he likes. The obligations it is created by, are in every instance laid upon other people. On the other hand, as to conditions, there are several which are of a mixed nature, importing as well a burthen to him who stands invested with them as a benefit: which indeed is the case with those conditions which we hear most of under that name, and which make the greatest figure.

There are even conditions which import nothing but burthen, without any spark of benefit. Accordingly, when between two parties there is such a relation, that one of them stands in the place of an object of property with respect to the other, the word property is applied only on one side; but the word condition is applied alike to both: it is but one of them that is said on that account to be possessed of a property; but both of them are alike spoken of as being possessed of, or being invested with, a condition: it is the master alone that is considered as possessing a property, of which the servant, in virtue of the services he is bound to render, is the object; but the servant, not less than the master, is spoken of as possessing or being invested with a condition.

The case is, that if a man’s condition is ever spoken of as constituting an article of his property, it is in the same loose and indefinite sense of the word in which almost every other offence that could be imagined might be reckoned into the list of offences against property. If the language, indeed, were in every instance, in which it made use of the phrase, object of property,* perspicuous enough to point out under that appellation the material and really existent body, the person or the thing in which those acts terminate, by the performance of which the property is said to be enjoyed; if, in short, in the import given to the phrase, object of property, it made no other use of it than the putting it to signify what is now called a corporeal object, this difficulty and this confusion would not have occurred. But the import of the phrase, object of property, and in consequence the import of the word property, has been made to take a much wider range. In almost every case in which the law does any thing for a man’s benefit or advantage, men are apt to speak of it, on some occasion or other, as conferring on him a sort of property. At the same time, for one reason or other, it has in several cases been not practicable, or not agreeable, to bring to view, under the appellation of the object of his property, the thing in which the acts, by the performance of which the property is said to be enjoyed, have their termination, or the person in whom they have their commencement. Yet something which could be spoken of under that appellation, was absolutely requisite. The expedient, then, has been to create, as it were, on every occasion, an ideal being, and to assign to a man this ideal being for the object of his property: and these are the sort of objects to which men of science, in taking a view of the operations of the law in this behalf, came, in process of time, to give the name of incorporeal. Now of these incorporeal objects of property, the variety is prodigious. Fictitious entities of this kind have been fabricated almost out of every thing: not conditions only (that of a trustee included) but even reputation, have been of the number. Even liberty has been considered in this same point of view: and though on so many occasions it is contrasted with property, yet on other occasions, being reckoned into the catalogue of possessions, it seems to have been considered as a branch of property. Some of these applications of the words property, object of property (the last, for instance), are looked upon, indeed, as more figurative, and less proper than the rest: but since the truth is, that where the immediate object is incorporeal, they are all of them improper, it is scarce practicable any where to draw the line.

Notwithstanding all this latitude, yet, among the relations in virtue of which you are said to be possessed of a condition, there is one, at least, which can scarcely, by the most forced construction, be said to render any other man, or any other thing, the object of your property. This is the right of persevering in a certain course of action; for instance, in the exercising of a certain trade. Now, to confer on you this right, in a certain degree at least, the law has nothing more to do than barely to abstain from forbidding you to exercise it. Were it to go farther, and, for the sake of enabling you to exercise your trade to the greater advantage, prohibit others from exercising the like, then, indeed, persons might be found, who in a certain sense, and by a construction rather forced than otherwise, might be spoken of as being the objects of your property; viz. by being made to render you that sort of negative service which consists in the forbearing to do those acts which would lessen the profits of your trade. But the ordinary right of exercising any such trade or profession, as is not the object of a monopoly, imports no such thing; and yet, by possessing this right, a man is said to possess a condition:* and by forfeiting it, to forfeit his condition.

After all, it will be seen, that there must be cases in which, according to the usage of language, the same offence may, with more or less appearance of propriety, be referred to the head of offences against condition, or that of offences against property indifferently. In such cases, the following rule may serve for drawing the line. Wherever, in virtue of your possessing a property, or being the object of a property possessed by another, you are characterized, according to the usage of language, by a particular name, such as master, servant, husband, wife, steward, agent, attorney, or the like, there the word condition may be employed in exclusion of the word property; and an offence in which, in virtue of your bearing such relation, you are concerned, either in the capacity of an offender, or in that of a party injured, may be referred to the head of offences against condition, and not to that of offences against property. To give an example: Being bound in the capacity of land-steward to a certain person, to oversee the repairing of a certain bridge, you forbear to do so: in this case, as the services you are bound to render are of the number of those which give occasion to the party, from whom they are due, to be spoken of under a certain generical name, viz, that of land steward, the offence of withholding them may be referred to the class of offences against condition. But suppose that, without being engaged in that general and miscellaneous course of service, which with reference to a particular person would denominate you his land-steward, you were bound, whether by usage or by contract, to render him that single sort of service which consists in the providing, by yourself or by others, for the repairing of that bridge: in this case, as there is not any such current denomination to which, in virtue of your being bound to render this service, you stand aggregated (for that of architect, mason, or the like, is not here in question), the offence you commit by withholding such service cannot with propriety be referred to the class of offences against condition: it can only, therefore, be referred to the class of offences against property.

By way of further distinction, it may be remarked, that where a man, in virtue of his being bound to render, or of others being bound to render him, certain services, is spoken of as possessing a condition, the assemblage of services is generally so considerable, in point of duration, as to constitute a course of considerable length, so as on a variety of occasions to come to be varied and repeated: and in most cases, when the condition is not of a domestic nature, sometimes for the benefit of one person, sometimes for that of another. Services which come to be rendered to a particular person on a particular occasion, especially if they be of short duration, have seldom the effect of occasioning either party to be spoken of as being invested with a condition. The particular occasional services which one man may come, by contract or otherwise, to be bound to render to another, are innumerably various; but the number of conditions which have names may be counted, and are, comparatively, but few.

If after all, notwithstanding the rule here given for separating conditions from articles of property, any object should present itself which should appear to be referable, with equal propriety, to either head, the inconvenience would not be material; since in such cases, as will be seen a little farther on, whichever appellation were adopted, the list of the offences, to which the object stands exposed, would be substantially the same.

These difficulties being cleared up, we now proceed to exhibit an analytical view of the several possible offences against trust.

* It is for shortness sake that the proposition is stated as it stands in the text. If critically examined, it might be found, perhaps, to be scarcely justifiable by the laws of language. For the fictitious entities, characterised by the two abstract terms, trust and condition, are not subalternate but disparate. To speak with perfect precision, we should say that he who is invested with a trust, is, on that account, spoken of as being invested with a condition; viz. the condition of a trustee. We speak of the condition of a trustee, as we speak of the condition of a husband or a father.

Infra, par. 55.

* For object of property, say now, 1827, subject-matter.

It is to be observed, that in common speech, in the phrase, the object of a man’s property, the words, the object of, are commonly left out; and by an ellipsis, which, violent as it is, is now become more familiar than the phrase at length, they have made that part of it which consists of the words, a man’s property, perform the office of the whole. In some cases, then, it was only on a part of the object that the acts in question might be performed: and to say, on this account, that the object was a man’s property, was as much as to intimate that they might be performed on any part. In other cases, it was only certain particular acts that might be exercised on the object: and to say of the object that it was his property, was as much as to intimate that any acts whatever might be exercised on it. Sometimes the acts in question were not to be exercised but at a future time, nor then, perhaps, but in the case of the happening of a particular event, of which the happening was uncertain: and to say of an object that it was his property, was as much as to intimate that the acts in question might be exercised on it at any time. Sometimes the object on which the acts in question were to have their termination, or their commencement, was a human creature: and to speak of one human creature as being the property of another, is what would shock the ear every where but where slavery is established, and even there, when applied to persons in any other condition than that of slaves. Among the first Romans, indeed, the wife herself was the property of her husband; the child, of his father; the servant, of his master. In the civilized nations of modern times, the two first kinds of property are altogether at an end; and the last, unhappily not yet at an end, but however verging, it is to be hoped, towards extinction. The husband’s property, is now the companya of his wife; the father’s the guardianship and service of his child; the master’s, the service of his servant.

a The consortium, says the English Law.

* To condition, in this case, should be added the words, in life.

XXVII.

Offences against trust may be distinguished, in the first place, into such as concern the existence of the trust in the hands of such or such a person, and such as concern the exercise of the functions that belong to it.* First, then, with regard to such as relate to its existence. An offence of this description, like one of any other description, if an offence it ought to be, must to some person or other import a prejudice. This prejudice may be distinguished into two branches: 1. That which may fall on such persons as are or should be invested with the trust: 2. That which may fall on the persons for whose sake it is or should be instituted, or on other persons at large. To begin with the former of these branches. Let any trust be conceived. The consequences which it is in the nature of it to be productive of to the possessor must, in in as far as they are material, be either of an advantageous or of a disadvantageous nature: in as far as they are advantageous, the trust may be considered as a benefit or privilege: in as far as they are disadvantageous, it may be considered as a burthen. To consider it, then, upon the footing of a benefit. The trust either is of the number of those which ought by law to subsist; that is, which the legislator meant should be established; or is not. If it is, the possession which at any time you may be deprived of, with respect to it, must at that time be either present or to come; if to come (in which case it may be regarded either as certain or as contingent), the investitive event, or event from whence your possession of it should have taken its commencement, was either an event in the production of which the will of the offender should have been instrumental, or any other event at large: in the former case, the offence may be termed wrongful non-investment of trust: in the latter case, wrongful interception of trust.* If at the time of the offence whereby you are deprived of it, you were already in possession of it, the offence may be styled wrongful divestment of trust. In any of these cases, the effect of the offence is either to put somebody else into the trust, or not: if not, it is wrongful divestment, wrongful interception, or wrongful divestment, and nothing more: if it be, the person put in possession is either the wrong doer himself, in which case it may be styled usurpation of trust; or some other person, in which case it may be styled wrongful investment, or attribution, of trust. If the trust in question is not of the number of those which ought to subsist, it depends upon the manner in which one man deprives another of it, whether such deprivation shall or shall not be an offence; and, accordingly, whether non-investment, interception, or divestment, shall or shall not be wrongful. But the putting any body into it, must at any rate be an offence: and this offence may be either usurpation or wrongful investment, as before.

In the next place, to consider it upon the footing of a burthen. In this point of view, if no other interest than that of the persons liable to be invested with it were considered, it is what ought not, upon the principle of utility, to subsist: if it ought, it can only be for the sake of the persons in whose favour it is established. If, then, it ought not on any account to subsist, neither non-investment, interception, nor divestment, can be wrongful with relation to the persons first mentioned, whatever they may be on any other account, in respect of the manner in which they happen to be performed: for usurpation, though not likely to be committed, there is the same room as before: so likewise is there for wrongful investment; which, in as far as the trust is considered as a burthen, may be styled wrongful imposition of trust. If the trust, being still of the burthensome kind, is of the number of those which ought to subsist, any offence that can be committed, with relation to the existence of it, must consist either in causing a person to be in possession of it, who ought not to be, or in causing a person not to be in possession of it, who ought to be: in the former case, it must be either usurpation or wrongful divestment, as before: in the latter case, the person who is caused to be not in possession, is either the wrong doer himself, or some other: if the wrong doer himself, either, at the time of the offence, he was in possession of it, or he was not: if he was, it may be termed wrongful abdication of trust; if not, wrongful detrectation or non-assumption: if the person, whom the offence causes not to be in the trust, is any other person, the offence must be either wrongful divestment, wrongful non-investment, or wrongful interception, as before: in any of which cases, to consider the trust in the light of a burthen, it might also be styled wrongful exemption from trust.

Lastly, with regard to the prejudice which the persons for whose benefit the trust is instituted, or any other persons whose interests may come to be affected by its existing or not existing in such or such hands, are liable to sustain. Upon examination it will appear, that by every sort of offence whereby the persons who are, or should be in possession of it, are liable, in that respect, to sustain a prejudice, the persons now in question are also liable to sustain a prejudice. The prejudice, in this case, is evidently of a very different nature from what it was of in the other: but the same general names will be applicable in this case as in that. If the beneficiaries, or persons whose interests are at stake upon the exercise of the trust, or any of them, are liable to sustain a prejudice, resulting from the quality of the person by whom it may be filled, such prejudice must result from the one or the other of two causes: 1. From a person’s having the possession of it, who ought not to have it: or 2. From a person’s not having it, who ought: whether it be a benefit or burthen to the possessor is a circumstance that to this purpose makes no difference. In the first of these cases, the offences from which the prejudice takes its rise are those of usurpation of trust, wrongful attribution of trust, and wrongful imposition of trust: in the latter, wrongful non-investment of trust, wrongful interception of trust, wrongful divestment of trust, wrongful abdication of trust, and wrongful detrectation of trust.

So much for the offences which concern the existence or possession of a trust: those which concern the exercise of the functions that belong to it, may be thus conceived. You are in possession of a trust: the time, then, for your acting in it must, on any given occasion (neglecting, for simplicity’s sake, the then present instant), be either past, or yet to come. If past, your conduct on that occasion must have been either conformable to the purposes for which the trust was instituted, or unconformable: if conformable, there has been no mischief in the case: if unconformable, the fault has been either in yourself alone, or in some other person, or in both: in as far as it has lain in yourself, it has consisted either in your not doing something which you ought to do, in which case it may be styled negative breach of trust; or in your doing something which you ought not to do: if in the doing something which you ought not to do, the party to whom the prejudice has accrued is either the same for whose benefit the trust was instituted, or some other party at large: in the former of these cases, the offence may be styled positive breach of trust; in the other, abuse of trust.* In as far as the fault lies in another person, the offence on his part may be styled disturbance of trust. Supposing the time for your acting in the trust to be yet to come, the effect of any act which tends to render your conduct unconformable to the purposes of the trust, may be either to render it actually and eventually unconformable, or to produce a chance of its being so. In the former of these cases, it can do no otherwise than take one or other of the shapes that have just been mentioned. In the latter case, the blame must lie either in yourself alone, or in some other person, or in both together, as before. If in another person, the acts whereby he may tend to render your conduct unconformable, must be exercised either on yourself, or on other objects at large. If exercised on yourself, the influence they possess must either be such as operates immediately on your body, or such as operates immediately on your mind. In the latter case, again, the tendency of them must be to deprive you either of the knowledge, or of the power, or of the inclination, which would be necessary to your maintaining such a conduct as shall be conformable to the purposes in question. If they be such, of which the tendency is to deprive you of the inclination in question, it must be by applying to your will the force of some seducing motive. Lastly, this motive must be either of the coercive, or of the alluring kind; in other words, it must present itself either in the shape of a mischief or of an advantage. Now in none of all the cases that have been mentioned, except the last, does the offence receive any new denomination: according to the event, it is either a disturbance of trust, or an abortive attempt to be guilty of that offence. In this last, it is termed bribery; and it is that particular species of it which may be termed active bribery, or bribe-giving. In this case, to consider the matter on your part, either you accept of the bribe, or you do not: if not, and you do not afterwards commit, or go about to commit, either a breach or an abuse of trust, there is no offence, on your part, in the case: if you do accept it, whether you eventually do or do not commit the breach or the abuse which it is the bribe-giver’s intention you should commit, you at any rate commit an offence which is also termed bribery; and which, for distinction sake, may be termed passive bribery, or bribe-taking.* As to any farther distinctions, they will depend upon the nature of the particular sort of trust in question, and therefore belong not to the present place. And thus we have thirteen sub-divisions of offences against trust; viz. 1. Wrongful non-investment of trust. 2. Wrongful interception of trust. 3. Wrongful divestment of trust. 4. Usurpation of trust. 5. Wrongful investment or attribution of trust. 6. Wrongful abdication of trust. 7. Wrongful detrectation of trust. 8. Wrongful imposition of trust. 9. Negative breach of trust. 10. Positive breach of trust. 11. Abuse of trust. 12. Disturbance of trust. 13. Bribery.

* We shall have occasion, a little farther on, to speak of the person in whose hands the trust exists, under the description of the person who possesses, or is in possession of it, and thence of the possession of the trust abstracted from the consideration of the possessor. However different the expression, the import is in both cases the same. So irregular and imperfect is the structure of language on this head, that no one phrase can be made to suit the idea on all the occasions on which it is requisite it should be brought to view: the phrase must be continually shifted, or new modified: so likewise in regard to conditions, and in regard to property. The being invested with, or possessing a condition; the being in possession of an article of property, that is, if the object of the property be corporeal; the having a legal title (defeasible or indefeasible) to the physical possession of it, answers to the being in possession of a trust, or the being the person in whose hands a trust exists. In like manner, to the exercise of the functions belonging to a trust, or to a condition, corresponds the enjoyment of an article of property; that is, if the object of it be corporeal, the occupation. These verbal discussions are equally tedious and indispensable. Striving to cut a new road through the wilds of jurisprudence, I find myself continually distressed for want of tools that are fit to work with. To frame a complete set of new ones, is impossible. All that can be done is, to make here and there a new one in cases of absolute necessity, and for the rest, to patch up from time to time the imperfections of the old.

As to the bipartition which this paragraph sets out with, it must be acknowledged not to be of the nature of those which to a first glance afford a sort of intuitive proof of their being exhaustive. There is not that marked connection and opposition between the terms of it, which subsists between contradictory terms, and between terms that have the same common genus. I imagine, however, that upon examination it would be found to be exhaustive notwithstanding: and that it might even be demonstrated so to be. But the demonstration would lead us too far out of the ordinary track of language.

See ch. vii. [Actions] par 3.

If advantageous, it will naturally be on account of the powers or rights that are annexed to the trust: if disadvantageous, on account of the duties.

It may seem a sort of anachronism to speak on the present occasion of a trust, condition, or other possession, as one of which it may happen that a man ought or ought not to have had possession given him by the law; for the plan here set out upon is to give such a view all along of the laws that are proposed, as shall be taken from the reasons which there are for making them: the reason, then, it would seem, should subsist before the law, not the law before the reason. Nor is this to be denied; for, unquestionably, upon the principle of utility, it may be said with equal truth of those operations by which a trust, or any other article of property, is instituted, as of any other operations of the law, that it never can be expedient they should be performed, unless some reason for performing them, deduced from that principle, can be assigned. To give property to one man, you must impose obligation on another: you must oblige him to do something which he may have a mind not to do, or to abstain from doing something which he may have a mind to do: in a word, you must in some way or other expose him to inconvenience. Every such law, therefore, must at any rate be mischievous in the first instance; and if no good effects can be produced to set against the bad, it must be mischievous upon the whole. Some reasons, therefore, in this case, as in every other, there ought to be. The truth is, that in the case before us the reasons are of too various and complicated a nature to be brought to view in an analytical outline like the present. Where the offence is of the number of those by which person or reputation are affected, the reasons for prohibiting it lie on the surface, and apply to every man alike. But property, before it can be offended against, must be created, and at the instant of its creation distributed, as it were, into parcels of different sorts and sizes, which require to be assigned, some to one man and some to another, for reasons, of which many lie a little out of sight, and which being different in different cases, would take up more room than could consistently be allotted to them here. For the present purpose, it is sufficient if it appear that, for the carrying on of the several purposes of life, there are trusts, and conditions, and other articles of property, which must be possessed by somebody: and that it is not every article that can, nor every article that ought, to be possessed by everybody. What articles ought to be created, and to what persons, and in what cases they ought to be respectively assigned, are questions which cannot be settled here. Nor is there any reason for wishing that they could, since the settling them one way or another is what would make no difference in the nature of any offence whereby any party may be exposed, on the occasion of any such institution, to sustain a detriment.

* In the former case, it may be observed, the act is of the negative kind; in the latter, it will commonly be of the positive kind.

As to the expression, non-investment of trust, I am sensible that it is not perfectly consonant to the idiom of the language: the usage is to speak of a person as being invested (that is, clothed) with a trust, not of a trust as of a thing, that is itself invested, or put on. The phrase at length would be, the non-investment of a person with a trust: but this phrase is by much too long-winded to answer the purpose of an appellative, I saw, therefore, no other resource than to venture upon the ellipsis here employed. The ancient lawyers, in the construction of their appellatives, have indulged themselves in much harsher ellipsises without scruple. See above, 25, note. It is already the usage to speak of a trust as a thing that vests, and as a thing that may be divested.

[Detrectation.] I do not find that this word has yet been received into the English language. In the Latin, however, it is very expressive, and is used in a sense exactly suitable to the sense here given to it. Militiam detrectare, to endeavour to avoid serving in the army, is a phrase not unfrequently met with in the Roman writers.

* What is here meant by abuse of trust, is the exercise of a power usurped over strangers, under favour of the powers properly belonging to the trust. The distinction between what is here meant by breach of trust, and what is here meant by abuse of trust, is not very steadily observed in common speech; and in regard to public trusts, it will even in many cases be imperceptible. The two offences are, however, in themselves perfectly distinct: since the persons, by whom the prejudice is suffered, are in many cases altogether different. It may be observed, perhaps, that with regard to abuse of trust, there is but one species here mentioned, viz. that which corresponds to positive breach of trust: none being mentioned as corresponding to negative breach of trust. The reason of this distinction will presently appear. In favour of the parties, for whose benefit the trust was created, the trustee is bound to act; and therefore, merely by his doing nothing, they may receive a prejudice: but in favour of other persons at large, he is not bound to act; and therefore it is only from some positive act on his part that any prejudice can ensue to them.

See infra; and ch. xx. [Indirect Legislation.]

See ch. xi. [Dispositions] par. 29.

* To bribe a trustee, as such, is in fact neither more nor less than to suborn him to be guilty of a breach or an abuse of trust. Now subornation is of the number of those accessory offences which every principal offence, one as will as another, is liable to be attended with. See infra, and B. I. tit. [Accessory Offences.] This particular species of subornation, however, being one that, besides its having a specific name framed to express it, is apt to engage a particular share of attention, and to present itself to view in company with other offences against trust, it would have seemed an omission not to have included it in that catalogue.

XXVIII.

From what has been said, it appears that there cannot be any other offences, on the part of a trustee, by which a beneficiary can receive on any particular occasion any assignable specific prejudice. One sort of acts, however, there are, by which a trustee may be put in some danger of receiving a prejudice, although neither the nature of the prejudice, nor the occasion on which he is in danger of receiving it, should be assignable. These can be no other than such acts, whatever they may be, as dispose the trustee to be acted upon by a given bribe with greater effect than any with which he could otherwise be acted upon; or in other words, which place him in such circumstances as have a tendency to increase the quantum of his sensibility to the action of any motive of the sort in question. Of these acts, there seem to be no others, that will admit of a description applicable to all places and times alike, than acts of prodigality on the part of the trustee. But in acts of this nature, the prejudice to the beneficiary is contingent only and unliquidated; while the prejudice to the trustee himself is certain and liquidated. If therefore, on any occasion, it should be found advisable to treat it on the footing of an offence, it will find its place more naturally in the class of self-regarding ones.

See ch. vi. [Sensibility] par. 2.

XXIX.

As to the sub-divisions of offences against trust, these are perfectly analogous to those of offences by falsehood. The trust may be private, semi-public, or public: it may concern property, person, reputation, or condition; or any two or more of those articles at a time, as will be more particularly explained in another place. Here, too, the offence, in running over the ground occupied by the three prior classes, will in some instances change its name, while in others it will not.

XXX.

Lastly, if it be asked, What sort of relation there subsists between falsehoods on one hand, and offences concerning trust on the other hand; the answer is, they are altogether disparate. Falsehood is a circumstance that may enter into the composition of any sort of offence, those concerning trust, as well as any other: in some as an accidental, in others as an essential instrument. Breach or abuse of trust are circumstances which, in the character of accidental concomitants, may enter into the composition of any other offences (those against falsehood included) besides those to which they respectively give name.

Genera of Class I.

XXXI.

Returning now to class the first, let us pursue the distribution a step farther, and branch out the several divisions of that class, as above exhibited, into their respective genera; that is, into such minuter divisions as are capable of being characterized by denominations of which a great part are already current among the people. In this place the analysis must stop. To apply it in the same regular form to any of the other classes seems scarcely practicable: to semi-public, as also to public offences, on account of the interference of local circumstances: to self-regarding ones, on account of the necessity it would create of deciding prematurely upon points which may appear liable to controversy: to offences by falsehood, and offences against trust, on account of the dependence there is between this class and the three former. What remains to be done in this way, with reference to these four classes, will require discussion, and will therefore be introduced with more propriety in the body of the work, than in a preliminary part, of which the business is only to draw outlines.

In the enumeration of these genera, it is all all along to be observed, that offences of an accessory nature are not mentioned; except unless it be here and there, where they have obtained current names which seemed too much in vogue to be omitted. Accessory offences are those which, without being the very acts from which the mischief in question takes its immediate rise, are, in the way of causality, connected with those acts. See ch. vii. [Actions] par. 24, and B. I. tit. [Accessory Offences.]

XXXII.

An act, by which the happiness of an individual is disturbed, is either simple in its effects, or complex. It may be styled simple in its effects, when it affects him in one only of the articles or points in which his interest, as we have seen, is liable to be affected: complex, when it affects him in several of those points at once. Such as are simple in their effects must of course be first considered.

XXXIII.

In a simple way, that is, in one way at a time, a man’s happiness is liable to be disturbed, either, 1. By actions referring to his own person itself; or 2. By actions referring to such external objects on which his happiness is more or less dependent. As to his own person, it is composed of two different parts, or reputed parts, his body and his mind. Acts which exert a pernicious influence on his person, whether it be on the corporeal or on the mental part of it, will operate thereon either immediately, and without affecting his will, or mediately, through the intervention of that faculty; viz. by means of the influence which they cause his will to exercise over his body. If with the intervention of his will, it must be by mental coercion; that is, by causing him to will to maintain, and thence actually to maintain, a certain conduct which it is disagreeable, or in any other way pernicious, to him to maintain. This conduct may either be positive or negative:* when positive, the coercion is styled compulsion or constraint: when negative, restraint. Now the way in which the coercion is disagreeable to him, may be by producing either pain of body, or only pain of mind. If pain of body is produced by it, the offence will come as well under this as under other denominations, which we shall come to presently. Moreover, the conduct which a man, by means of the coercion, is forced to maintain, will be determined, either specifically and originally, by the determination of the particular acts themselves, which he is forced to perform or to abstain from, or generally and incidentally, by means of his being forced to be or not to be in such or such a place. But if he is prevented from being in one place, he is confined thereby to another. For the whole surface of the earth, like the surface of any greater or lesser body, may be conceived to be divided into two, as well as into any other number of parts or spots. If the spot, then, which he is confined to, be smaller than the spot which he is excluded from, his condition may be called confinement: if larger, banishment. Whether an act, the effect of which is to exert a pernicious influence on the person of him who suffers by it, operates with or without the intervention of an act of his will, the mischief it produces will either be mortal or not mortal. If not mortal, it will either be reparable, that is, temporary; or irreparable, that is, perpetual. If reparable, the mischievous act may be termed a simple corporal injury; if irreparable, an irreparable corporal injury. Lastly, a pain that a man experiences in his mind will either be a pain of actual sufferance, or a pain of apprehension. If a pain of apprehension, either the offender himself is represented as intending to bear a part in the production of it, or he is not. In the former case, the offence may be styled menacement: in the latter case, as also where the pain is a pain of actual sufferance, a simple mental injury. And thus we have nine genera or kinds of personal injuries; which, when ranged in the order most commodious for examination, will stand as follows; viz. 1. Simple corporal injuries. 2. Irreparable corporal injuries. 3. Simple injurious restrainment. 4. Simple injurious compulsion. 5. Wrongful confinement. 6. Wrongful banishment. 7. Wrongful homicide. 8. Wrongful menacement.* 9. Simple mental injuries.

* Ch. vii. [Actions] par. 8.

Of these, and the several other leading expressions which there is occasion to bring to view in the remaining part of this analysis, ample definitions will be found in the body of the work, conceived in terminis legis. To give particular references to these definitions, would be incumbering the page to little purpose.

Injurious restrainment at large, and injurious compulsion at large, are here styled simple, in order to distinguish them from confinement, banishment, robbery, and extortion; all which are, in many cases, but so many modifications of one or other of the two first-mentioned offences.

To constitute an offence an act of simple injurious restrainment, or simple injurious compulsion, it is sufficient if the influence it exerts be, in the first place, pernicious; in the next place, exerted on the person by the medium of the will: it is not necessary that that part of the person on which it is exerted be the part to which it is pernicious: it is not even necessary that it should immediately be pernicious to either of these parts, though to one or other of them it must be pernicious in the long run, if it be pernicious at all. An act in which the body, for example, is concerned, may be very disagreeable, and thereby pernicious, to him who performs it, though neither disagreeable nor pernicious to his body: for instance, to stand or sit in public with a label on his back, or under any other circumstances of ignominy.

* It may be observed, that wrongful menacement is included as well in simple injurious restrainment, and simple injurious compulsion, except in the rare case where the motives by which one man is prevented by another from doing a thing that would have been materially to his advantage, or induced to do a thing that is materially to his prejudice, are of the alluring kind.

Although, for reasons that have been already given (supra, par. 31), no complete catalogue, nor therefore any exhaustive view, of either semi-public or self-regarding offences, can be exhibited in this chapter, it may be a satisfaction, however, to the reader, to see some sort of list of them, if it were only for the sake of having examples before his eyes. Such lists cannot any where be placed to more advantage than under the heads of the several divisions of private extra-regarding offences, to which the semi-public and self-regarding offences in question respectively correspond. Concerning the two latter, however, and the last more particularly, it must be understood, that all I mean by inserting them here is to exhibit the mischief, if any, which it is of the nature of them respectively to produce, without deciding upon the question, whether it would be worth while [See ch. xv. Cases unmeet] in every instance, for the sake of combating that mischief, to introduce the evil of punishment. In the course of this detail, it will be observed, that there are several heads of extra-regarding private offences, to which the correspondent heads, either of semi-public or self-regarding offences, or of both, are wanting. The reasons of these deficiencies will probably, in most instances, be evident enough upon the face of them. Lest they should not, they are, however, specified in the body of the work. They would take up too much room were they to be inserted here.

I. Semi-public Offences through calamity. Calamities, by which the persons or properties of men, or both, are liable to be affected, seem to be as follows: 1. Pestilence or contagion. 2. Famine, and other kinds of scarcity. 3. Mischiefs producible by persons deficient in point of understanding, such as infants, idiots, and maniacs, for want of their being properly taken care of. 4. Mischief producible by the ravages of noxious animals, such as beasts of prey, locusts, &c. &c. 5. Collapsion, or fall of large masses of solid matter, such as decayed buildings, or rocks, or masses of snow. 6. Inundation or submersion. 7. Tempest. 8. Blight. 9. Conflagration. 10. Explosion. In as far as a man may contribute by any imprudent act of his, to give birth to any of the above calamities, such act may be an offence. In as far as a man may fail to do what is incumbent on him to do towards preventing them, such failure may be an offence.

II. Semi-public Offences of mere delinquency. A whole neighbourhood may be made to suffer, 1. Simple corporal injuries: in other words, they may be made to suffer in point of health, by offensive or dangerous trades or manufactures: by selling or falsely puffing off unwholsome medicines or provisions: by poisoning or drying up of springs, destroying of aqueducts, destroying woods, walls, or other fences against wind and rain: by any kinds of artificial scarcity; or by any other calamities intentionally produced. 2 and 3. Simple injurious restrainment, and simple injurious compulsion: for instance, by obliging a whole neighbourhood, by dint of threatening handbills, or threatening discourses, publicly delivered, to join, or forbear to join, in illuminations, acclamations, outcries, invectives, subscriptions, undertakings, processions, or any other mode of expressing joy or grief, displeasure or approbation; or in short, in any other course of conduct whatsoever. 4 and 5. Confinement and banishment: by the spoiling of roads, bridges, or ferry-boats: by destroying or unwarrantably pre-occupying public carriages, or houses of accommodation. 6. By menacement: as by incendiary letters, and tumultuous assemblies: by newspapers or handbills, denouncing vengeance against persons of particular denominations: for example, against Jews, Catholics, Protestants, Scotchmen, Gascons, Catalonians, &c. 7. Simple mental injuries: as by distressful, terrifying obscene, or irreligious exhibitions: such as exposure of sores by beggars, exposure of dead bodies, exhibitions or reports of counterfeit witchcrafts or apparitions, exhibition of obscene or blasphemous prints: obscene or blasphemous discourses held in public: spreading false news of public defeats in battle, or of other misfortunes.

III. Self-regarding Offences against person. 1. Fasting. Abstinence from venery, self-flagellation, self-mutilation, and other self-denying and self-tormenting practices. 2. Gluttony, drunkenness, excessive venery, and other species of intemperance. 3. Suicide.

XXXIV.

We come now to offences against reputation merely. These require but few distinctions. In point of reputation there is but one way of suffering, which is by losing a portion of the good-will of others. Now, in respect of the good-will which others bear you, you may be a loser in either of two ways: 1. By the manner in which you are thought to behave yourself; and, 2. By the manner in which others behave, or are thought to behave, towards you. To cause people to think that you yourself have so behaved, as to have been guilty of any of those acts which cause a man to possess less than he did before of the good-will of the community, is what may be styled defamation. But such is the constitution of human nature, and such the force of prejudice, that a man, merely by manifesting his own want of good-will towards you, though ever so unjust in itself, and ever so unlawfully expressed, may in a manner force others to withdraw from you a part of theirs. When he does this by words, or by such actions as have no other effect than in as far as they stand in the place of words, the offence may be styled vilification. When it is done by such actions as, besides their having this effect, are injuries to the person, the offence may be styled a personal insult: if it has got the length of reaching the body, a corporal insult: if it stopt short before it reached that length, it may be styled insulting menacement. And thus we have two genera or kinds of offences against reputation merely; to wit, 1. Defamation: and, 2. Vilification, or Revilement.* As to corporal insults, and insulting menacement, they belong to the compound title of offences against person and reputation both together.

* I. Semi-public Offences. 1. Calumniation and vilification of particular denominations of persons; such as Jews, Catholics, &c.

II. Self-regarding Offences. 1. Incontinence in females. 2. Incest.

XXXV.

If the property of one man suffers by the delinquency of another, such property either was in trust with the offender, or it was not: if it was in trust, the offence is a breach of trust, and of whatever nature it may be in other respects, may be styled dissipation in breach of trust, or dissipation of property in trust. This is a particular case: the opposite one is the more common: in such case the several ways in which property may, by possibility, become the object of an offence, may be thus conceived. Offences against property, of whatever kind it be, may be distinguished, as hath been already intimated, into such as concern the legal possession of it, or right to it, and such as concern only the enjoyment of it, or, what is the same thing, the exercise of that right. Under the former of these heads come, as hath been already intimated, the several offences of wrongful non-collation or non-investment, wrongful interception, wrongful ablation or divestment, usurpation, and wrongful attribution. When in the commission of any of these offences a falsehood has served as an instrument, and that, as it is commonly called, a wilful, or as it might more properly be termed, an advised one, the epithet fraudulent may be prefixed to the name of the offence, or substituted in the room of the word wrongful. The circumstance of fraudulency then may serve to characterize a particular species, comprisable under each of those generic heads: in like manner, the circumstance of force, of which more a little farther on, may serve to characterize another. With respect to wrongful interception, in particular, the collative event, by which the title to the thing in question should have accrued to you, and for want of which such title is, through the delinquency of the offender, as it were, intercepted, is either an act of his own, expressing it as his will, that you should be considered by the law as the person who is legally in possession of it, or it is any other event at large: in the former case, if the thing, of which you should have been put into possession, is a sum of money to a certain amount, the offence is that which has received the name of insolvency; which branch of delinquency, in consideration of the importance and extent of it, may be treated on the footing of a distinct genus of itself.

Next with regard to such of the offences against property, as concern only the enjoys ment of the object in question. This object must be either a service, or set of services,* which should have been rendered by some person, or else an article belonging to the class of things. In the former case, the offence may be styled wrongful withholding of services: in the latter case it may admit of farther modifications, which may be thus conceived: When any object which you have had the physical occupation or enjoyment of, ceases, in any degree, in consequence of the act of another man, and without any change made in so much of that power as depends upon the intrinsic physical condition of your person, to be subject to that power; this cessation is either owing to change in the intrinsic condition of the thing itself, or in its exterior situation with respect to you; that is, to its being situated out of your reach. In the former case, the nature of the change is either such as to put it out of your power to make any use of it at all, in which case the thing is said to be destroyed, and the offence whereby it is so treated may be termed wrongful destruction: or such only as to render the uses it is capable of being put to of less value than before, in which case it is said to be damaged, or to have sustained damage, and the offence may be termed wrongful endamagement. Moreover, in as far as the value which a thing is of to you is considered as being liable to be in some degree impaired by any act on the part of any other person exercised upon that thing, although on a given occasion no perceptible damage should ensue, the exercise of any such act is commonly treated on the footing of an offence, which may be termed wrongful using or occupation.

If the cause of the thing’s failing in its capacity of being of use to you, lies in the exterior situation of it with relation to you, the offence may be styled wrongful detainment or detention. Wrongful detainment, during any given period of time, may either be accompanied with the intention of detaining the thing for ever (that is, for an indefinite time) or not: if it be, and if it be accompanied at the same time with the intention of not being amenable to law for what is done, it seems to answer to the idea commonly annexed to the word embezzlement, an offence which is commonly accompanied with breach of trust. In the case of wrongful occupation, the physical faculty of occupying may have been obtained with or without the assistance or consent of the proprietor, or other person appearing to have a right to afford such assistance or consent. If without such assistance or consent, and the occupation be accompanied with the intention of detaining the thing for ever, together with the intention of not being amenable to law for what is done, the offence seems to answer to the idea commonly annexed to the word theft or stealing. If in the same circumstances a force is put upon the body of any person who uses, or appears to be disposed to use, any endeavours to prevent the act, this seems to be one of the cases in which the offence is generally understood to come under the name of robbery.

If the physical faculty in question was obtained with the assistance or consent of a proprietor, or other person above spoken of, and still the occupation of the thing is an offence, it may have been either because the assistance or consent was not fairly, or because it was not freely obtained. If not fairly obtained, it was obtained by falsehood, which, if advised, is in such a case termed fraud; and the offence, if accompanied with the intention of not being amenable to law, may be termed fraudulent obtainment or defraudment.* If not freely obtained, it was obtained by force; to wit, either by a force put upon the body, which has been already mentioned, or by a force put upon the mind. If by a force put upon the mind, or in other words, by the application of coercive motives, it must be by producing the apprehension of some evil: which evil, if the act is an offence, must be some evil to which, on the occasion in question, the one person has no right to expose the other. This is one case, in which, if the offence be accompanied with the intention of detaining the thing for ever, whether it be or be not accompanied with the intention of not being amenable to law, it seems to agree with the idea of what is commonly meant by extortion. Now the part a man takes in exposing another to the evil in question, must be either a positive or a negative part. In the former case, again, the evil must either be present or distant. In the case, then, where the assistance or consent is obtained by a force put upon the body, or where, if by a force put upon the mind, the part taken in the exposing a man to the apprehension of the evil is positive, the evil present, and the object of it his person, and if at any rate the extortion, thus applied, be accompanied with the intention of not being amenable to law, it seems to agree with the remaining case of what goes under the name of robbery.

As to dissipation in breach of trust, this, when productive of a pecuniary profit to the trustee, seems to be one species of what is commonly meant by peculation. Another, and the only remaining one, seems to consist in acts of occupation exercised by the trustee upon the things which are the objects of the fiduciary property, for his own benefit, and to the damage of the beneficiary. As to robbery, this offence, by the manner in which the assistance or consent is obtained, becomes an offence against property and person at the same time. Dissipation in breach of trust, and peculation, may perhaps be more commodiously treated of under the head of offences against trust. After these exceptions, we have eighteen genera or principal kinds of offences against property, which, when ranged in the order most commodious for examination, may stand as follows, viz. 1. Wrongful non-investment of property. 2. Wrongful interception of property. 3. Wrongful divestment of property. 4. Usurpation of property. 5. Wrongful investment of property. 6. Wrongful withholding of services. 7. Wrongful destruction or endamagement. 8. Insolvency. 9. Wrongful obtainment of services. 10. Wrongful imposition of expense. 11. Wrongful imposition of services. 12. Wrongful occupation. 13. Wrongful detention. 14. Wrongful disturbance of proprietary rights. 15. Theft. 16. Embezzlement. 17. Defraudment. 18. Extortion.

We proceed now to consider offences which are complex in their effects. Regularly, indeed, we should come to offences against condition; but it will be more convenient to speak first of offences by which a man’s interest is affected in two of the preceding points at once.

Supra, par. 27.

See ch. ix. [Consciousness] par. 2.

The light in which the offence of insolvency is here exhibited, may perhaps at first consideration be apt to appear not only novel but improper. It may naturally enough appear, that when a man owes you a sum of money, for instance, the right to the money is your’s already, and that what he withholds from you by not paying you, is not the legal title to it, possession of it, or power over it, but the physical possession of it, or power over it, only. But upon a more accurate examination, this will be found not to be the case. What is meant by payment, is always an act of investitive power, as above explained; an expression of an act of the will, and not a physical act: it is an act exercised with relation indeed to the thing said to be paid, but not in a physical sense exercised upon it. A man who owes you ten pounds, takes up a handful of silver to that amount, and lays it down on a table at which you are sitting. If then, by words or gestures, or any means whatever, addressing himself to you, he intimates it to be his will that you should take up the money, and do with it as you please, he is said to have paid you: but if the case was, that he laid it down not for that purpose, but for some other, for instance to count it and examine it, meaning to take it up again himself, or leave it for somebody else, he has not paid you: yet the physical acts, exercised upon the pieces of money in question, are in both cases the same. Till he does express a will to that purport, what you have is not, properly speaking, the legal possession of the money, or a right to the money, but only a right to have him, or in his default perhaps a minister of justice, compelled to render you that sort of service, by the rendering of which he is said to pay you: that is, to express such will as above mentioned, with regard to some corporeal article or other of a certain species, and of value equal to the amount of what he owes you: or, in other words, to exercise in your favour an act of investitive power with relation to some such article.

True it is, that in certain cases a man may perhaps not be deemed, according to common acceptation, to have paid you, without rendering you a further set of services, and those of another sort: a set of services, which are rendered by the exercising of certain acts of a physical nature upon the very thing with which he is said to pay you; to wit, by transferring the thing to a certain place where you may be sure to find it, and where it may be convenient for you to receive it. But these services, although the obligation of rendering them should be annexed by law to the obligation of rendering those other services, in the performance of which the operation of payment properly consists, are plainly acts of a distinct nature, nor are they essential to the operation: by themselves they do not constitute it, and it may be performed without them. It must be performed without them wherever the thing to be transferred happens to be already as much within the reach, physically speaking, of the creditor, as by any act of the debtor it can be made to be.

This matter would have appeared in a clearer light, had it been practicable to enter here into a full examination of the nature of property, and the several modifications of which it is susceptible: but every thing cannot be done at once.

* Supra, par. 26.

Under wrongful withholding of services is included breach of contract: the obligation to render services may be grounded either on contract, or upon other titles; in other words, the event of a man’s engaging in a contract is one out of many other investitive events from which the right of receiving them may take its commencement. See ch. xix. [Limits] § 4.

Were the word services to be taken in its utmost latitude (negative included as well as positive), this one head would be enough to cover the whole law. To this place, then, are to be referred such services only, the withholding of which does not coincide with any of the other offences, for which separate denominations have been provided.

There are some services, we may observe, the withholding of which may affect the person, and by that means come under the negative branches of the several genera of corporal injuries; such as services due from a surgeon, an innkeeper, &c.

In the English law, detinue and detainer: detinue applied chiefly to moveables; detainer, to immoveables. Under detinue and detainer, cases are also comprised, in which the offence consists in forbearing to transfer the legal possession of the thing: such cases may be considered as coming under the head of wrongful non-investment. The distinction between mere physical possession and legal possession, where the latter is short-lived and defeasible, seems scarcely hitherto to have been attended to. In a multitude of instances they are confounded under the same expressions. The cause is, that probably under all laws, and frequently for very good reasons, the legal possession, with whatever certainty defeasible upon the event of a trial, is, down to the time of that event, in many cases aunexed to the appearance of the physical.

In attempting to exhibit the import belonging to this and other names of offences in common use, I must be understood to speak all along with the utmost diffidence. The truth is, the import given to them is commonly neither determinate nor uniform: so that, in the nature of things, no definition that can be given of them by a private person can be altogether an exact one. To fix the sense of them belongs only to the legislator.

* The remaining cases come under the head of usurpation, or wrongful investment of property. The distinction seems hardly hitherto to have been attended to: it turns, like another mentioned above, upon the distinction between legal possession and physical. The same observation may be applied to the case of extortion hereafter following.

Vide supra, par. 27.

Usury, which, if it must be an offence, is an offence committed with consent, that is, with the consent of the party supposed to be injured, cannot merit a place in the catalogue of offences, unless the consent were either unfairly obtained or unfreely: in the first case, it coincides with defraudment; in the other, with extortion.

I. Semi-public Offences. 1. Wrongful divestment, interception, usurpation, &c. of valuables, which are the property of a corporate body, or which are in the indiscriminate occupation of a neighbourhood; such as parish churches, altars, relics, and other articles appropriated to the purposes of religion: or things which are in the indiscriminate occupation of the public at large; such as milestones, market-houses, exchanges, public gardens, and cathedrals. 2. Setting on foot what have been called bubbles, or fraudulent partnerships, or gaming adventures; propagating false news, to raise or sink the value of stocks, or of any other denomination of property.

II. Self-regarding Offences. 1. Idleness. 2. Gaming. 3. Other species of prodigality.

XXXVI.

First, then, with regard to offences which affect person and reputation together. When any man, by a mode of treatment which affects the person, injures the reputation of another, his end and purpose must have been either his own immediate pleasure, or that sort of reflected pleasure, which in certain circumstances may be reaped from the suffering of another. Now the only immediate pleasure worth regarding, which any one can reap from the person of another, and which at the same time is capable of affecting the reputation of the latter, is the pleasure of the sexual appetite.§ This pleasure, then, if reaped at all, must have been reaped either against the consent of the party, or with consent. If with consent, the consent must have been obtained either freely and fairly both, or freely, but not fairly, or else not even freely; in which case, the fairness is out of the question. If the consent be altogether wanting, the offence is called rape: if not fairly obtained, seduction simply: if not freely, it may be called forcible seduction. In any case, either the offence has gone the length of consummation, or has stopt short of that period; if it has gone that length, it takes one or other of the names just mentioned: if not, it may be included alike in all cases under the denomination of a simple lascivious injury. Lastly, to take the case, where a man injuring you in your reputation, by proceedings that regard your person, does it for the sake of that sort of pleasure which will sometimes result from the contemplation of another’s pain. Under these circumstances, either the offence has actually gone the length of a corporal injury, or it has rested in menacement: in the first case, it may be styled a corporal insult; in the other, it may come under the name of insulting menacement. And thus we have six genera, or kinds of offences, against person and reputation together; which, when ranged in the order most commodious for consideration, will stand thus: 1. Corporal insults. 2. Insulting menacement. 3. Seduction. 4. Rape. 5. Forcible seduction. 6. Simple lascivious injuries.*

§ See ch. v. [Pleasures and Pains.]

* I. Semi-public Offences — none.

II. Self-regarding Offences. 1. Sacrifice of virginity. 2. Indecencies not public.

XXXVII.

Secondly, with respect to those which affect person and property together. That a force put upon the person of a man may be among the means by which the title to property may be unlawfully taken away or acquired, has been already stated. A force of this sort, then, is a circumstance which may accompany the offences of wrongful interception, wrongful divestment, usurpation, and wrongful investment. But in these cases the intervention of this circumstance does not happen to have given any new denomination to the offence. In all or any of these cases, however, by prefixing the epithet forcible, we may have so many names of offences, which may either be considered as constituting so many species of the genera belonging to the division of offences against property, or as so many genera belonging to the division now before us. Among the offences that concern the enjoyment of the thing, the case is the same with wrongful destruction and wrongful endamagement; as also with wrongful occupation and wrongful detainment. As to the offence of wrongful occupation, it is only in the case where the thing occupied belongs to the class of immoveables, that, when accompanied by the kind of force in question, has obtained a particular name, which is in common use: in this case it is called forcible entry: forcible detainment, as applied also to immoveables, but only to immoveables, has obtained, among lawyers at least, the name of forcible detainer. And thus we may distinguish ten genera, or kinds of offences against person and property together, which, omitting for conciseness sake the epithet wrongful, will stand thus: 1. Forcible interception of property. 2. Forcible divestment of property. 3. Forcible usurpation. 4. Forcible investment. 5. Forcible destruction or endamagement. 6. Forcible occupation of moveables. 7. Forcible entry. 8. Forcible detainment of moveables. 9. Forcible detainment of immoveables. 10. Robbery.§

Supra.

In the technical language of the English law, property so acquired is said to be acquired by duress.

Applied to moveables, the circumstance of force has never, at least by the technical part of the language, been taken into account: no such combination of terms as forcible occupation is in current use. The word detinue is applied to moveables only; and (in the language of the law) the word forcible has never been combined with it. The word applied to immoveables is detainer: this is combined with the word forcible; and what is singular, it is scarcely in use without that word. It was impossible to steer altogether clear of this technical nomenclature, on account of the influence which it has on the body of the language.

§ I. Semi-public Offences. 1. Incendiarism. 2. Criminal inundation.

II. Self-regarding Offences — none.

XXXVIII.

We come now to offences against condition. A man’s condition or station in life is constituted by the legal relation he bears to the persons who are about him; that is, as we have already had occasion to show, by duties, which, by being imposed on one side, give birth to rights or powers on the other. These relations, it is evident, may be almost infinitely diversified. Some means, however, may be found of circumscribing the field within which the varieties of them are displayed. In the first place, they must either be such as are capable of displaying themselves within the circle of a private family, or such as require a larger space. The conditions constituted by the former sort of relations may be styled domestic: those constituted by the latter, civil.

Supra, par. 25, note.

XXXIX.

As to domestic conditions, the legal relations by which they are constituted may be distinguished into, 1. Such as are superadded to relations purely natural: and, 2. Such as, without any such natural basis, subsist purely by institution. By relations purely natural, I mean those which may be said to subsist between certain persons in virtue of the concern which they themselves, or certain other persons, have had in the process which is necessary to the continuance of the species. These relations may be distinguished, in the first place, into contiguous and uncontiguous. The uncontiguous subsist through the intervention of such as are contiguous. The contiguous may be distinguished, in the first place, into connubial, and post-connubial.* Those which may be termed connubial, are two: 1. That which the male bears towards the female: 2. That which the female bears to the male. The post-connubial are either productive or derivative. The productive is that which the male and female above mentioned bear each of them towards the children who are the immediate fruit of their union: this is termed the relation of parentality. Now, as the parents must be, so the children may be, of different sexes. Accordingly, the relation of parentality may be distinguished into four species: 1. That which a father bears to his son: this is termed paternity. 2. That which a father bears to his daughter: this, also, is termed paternity. 3. That which a mother bears to her son: this is called maternity. 4. That which a mother bears to her daughter: this, also, is termed maternity. Uncontiguous natural relations may be distinguished into immediate and remote. Such as are immediate, are what one person bears to another in consequence of their bearing each of them one simple relation to some third person. Thus the paternal grandfather is related to the paternal grandson by means of the two different relations, of different kinds, which together they bear to the father: the brother on the father’s side, to the brother by means of the two relations of the same kind, which together they bear to the father. In the same manner we might proceed to find places in the system for the infinitely-diversified relations which result from the combinations that may be formed by mixing together the several sorts of relationships by ascent, relationships by descent, collateral relationships, and relationships by affinity: which latter, when the union between the two parties through whom the affinity takes place is sanctioned by matrimonial solemnities, are termed relationships by marriage. But this, as it would be a most intricate and tedious task, so happily is it, for the present purpose, an unnecessary one. The only natural relations to which it will be necessary to pay any particular attention, are those which, when sanctioned by law, give birth to the conditions of husband and wife, the two relations comprised under the head of parentality, and the corresponding relations comprised under the head of filiality or filiation.

What, then, are the relations of a legal kind which can be superinduced upon the above-mentioned natural relations? They must be such as it is the nature of law to give birth to and establish. But the relations which subsist purely by institution, exhaust, as we shall see, the whole stock of relationships which it is in the nature of the law to give birth to and establish. The relations, then, which can be superinduced upon those which are purely natural, cannot be in themselves any other than what are of the number of those which subsist purely by institution: so that all the difference there can be between a legal relation of the one sort, and a legal relation of the other sort, is that in the former case the circumstance which gave birth to the natural relation serves as a mark to indicate where the legal relation is to fix: in the latter case, the place where the legal relation is to attach is determined, not by that circumstance but by some other. From these considerations it will appear manifestly enough, that for treating of the several sorts of conditions, as well natural as purely conventional, in the most commodious order, it will be necessary to give the precedence to the latter. Proceeding throughout upon the same principle, we shall all along give the priority, not to those which are first by nature, but to those which are most simple in point of description. There is no other way of avoiding perpetual anticipations and repetitions.

* By the terms connubial and post-connubial, all I mean at present to bring to view is, the mere physical union, apart from the ceremonies and legal engagements that will afterwards be considered as accompanying it.

The vague and undetermined nature of the fictitious entity, called a relation, is, on occasions like the present, apt to be productive of a good deal of confusion. A relation is either said to be borne by one of the objects which are parties to it, to the other, or to subsist between them. The latter mode of phraseology is, perhaps, rather the more common. In such case the idea seems to be, that from the consideration of the two objects there results but one relation, which belongs as it were in common to them both. In some cases, this perhaps may answer the purpose very well: it will not, however, in the present case. For the present purpose it will be necessary we should conceive two relations as resulting from the two objects, and borne, since such is the phrase, by the one of them, to or towards the other: one relation borne by the first object to the second: another relation borne by the second object to the first. This is necessary on two accounts: 1. Because for the relations themselves there are in many instances separate names; for example, the relations of guardianship and wardship: in which case, the speaking of them as if they were but one, may be productive of much confusion. 2. Because the two different relationships give birth to so many conditions: which conditions are so far different, that what is predicated and will hold good of the one, will, in various particulars, as we shall see, not hold good of the other.

XL.

We come now to consider the domestic or family relations, which are purely of legal institution. It is to these, in effect, that both kinds of domestic conditions, considered as the work of law, are indebted for their origin. When the law, no matter for what purpose, takes upon itself to operate in a matter in which it has not operated before, it can only be by imposing obligation.* Now when a legal obligation is imposed on any man, there are but two ways in which it can, in the first instance, be enforced. The one is by giving the power of enforcing it to the party in whose favour it is imposed, the other is by reserving that power to certain third persons, who, in virtue of their possessing it, are styled ministers of justice. In the first case, the party favoured is said to possess not only a right as against the party obliged, but also a power over him: in the second case, a right only, uncorroborated by power. In the first case, the party favoured may be styled a superior, and as they are both members of the same family, a domestic superior, with reference to the party obliged; who, in the same case, may be styled a domestic inferior, with reference to the party favoured. Now, in point of possibility, it is evident, that domestic conditions, or a kind of fictitious possession analogous to domestic conditions, might have been looked upon as constituted, as well by rights alone, without powers on either side, as by powers. But in point of utility it does not seem expedient: and in point of fact, probably owing to the invariable perception which men must have had of the inexpediency, no such conditions seem ever to have been constituted by such feeble bands. Of the legal relationships, then, which are capable of being made to subsist within the circle of a family, there remain those only in which the obligation is enforced by power. Now then, wherever any such power is conferred, the end or purpose for which it was conferred (unless the legislator can be supposed to act without a motive) must have been the producing of a benefit to somebody; in other words, it must have been conferred for the sake of somebody. The person, then, for whose sake it is conferred, must either be one of the two parties just mentioned, or a third party: if one of these two, it must be either the superior or the inferior. If the superior, such superior is commonly called a master; and the inferior is termed his servant: and the power may be termed a beneficial one. If it be for the sake of the inferior that the power is established, the superior is termed a guardian; and the inferior his ward: and the power being thereby coupled with a trust, may be termed a fiduciary one. If for the sake of a third party, the superior may be termed a superintendent; and the inferior his subordinate. This third party will either be an assignable individual or set of individuals, or a set of unassignable individuals. In this latter case, the trust is either a public or a semi-public one: and the condition which it constitutes is not of the domestic, but of the civil kind. In the former case, this third party, or principal, as he may be termed, either has a beneficial power over the superintendant, or he has not: if he has, the superintendant is his servant, and consequently so also is the subordinate: if not, the superintendant is the master of the subordinate; and all the advantage which the principal has over his superintendant, is that of possessing a set of rights, uncorroborated by power; and therefore, as we have seen,* not fit to constitute a condition of the domestic kind. But be the condition what it may, which is constituted by these rights, of what nature can the obligations be, to which the superintendant is capable of being subjected by means of them? They are neither more nor less than those which a man is capable of being subjected to by powers. It follows, therefore, that the functions of a principal and his superintendant coincide with those of a master and his servant; and consequently that the offences relative to the two former conditions will coincide with the offences relative to the two latter.

* See ch. xix. [Limits] § 3.

Two persons, who by any means stand engaged to live together, can never live together long, but one of them will choose that some act or other should be done, which the other will choose should not be done. When this is the case, how is the competition to be decided? Laying aside generosity and good-breeding, which are the tardy and uncertain fruits of long-established laws, it is evident that there can be no certain means of deciding it but physical power: which indeed is the very means by which family, as well as other competitions, must have been decided, long before any such office as that of legislator had existence. This, then, being the order of things which the legislator finds established by nature, how should he do better than to acquiesce in it? The persons who, by the influence of causes that prevail every where, stand engaged to live together, are, 1. Parent and child, during the infancy of the latter: 2. Man and wife: 3. Children of the same parents. Parent and child, by necessity: since, if the child did not live with the parent (or with somebody standing in the place of the parent) it could not live at all: husband and wife, by a choice approaching to necessity: children of the same parents, by the necessity of their living each of them with the parents. As between parent and child, the necessity there is of a power on the part of the parent for the preservation of the child supersedes all farther reasoning. As between man and wife, that necessity does not subsist. The only reason that applies to this case, is, the necessity of putting an end to competition. The man would have the meat roasted; the woman boiled: shall they both fast till the judge comes in to dress it for them? The woman would have the child dressed in green; the man, in blue: shall the child be naked till the judge comes in to clothe it? This affords a reason for giving a power to one or other of the parties: but it affords none for giving the power to the one rather than to the other. How then shall the legislator determine? Supposing it equally easy to give it to either, let him look ever so long for a reason why he should give it to the one rather than to the other, and he may look in vain. But how does the matter stand already? for there were men and wives (or, what comes to the same thing, male and female living together as man and wife) before there were legislators. Looking round him, then, he finds almost every where the male the stronger of the two; and therefore possessing already, by purely physical means, that power which he is thinking of bestowing on one of them by means of law. How, then, can he do so well as by placing the legal power in the same hands which are beyond comparison the more likely to be in possession of the physical? In this way, few transgressions, and few calls for punishment: in the other way, perpetual transgressions, and perpetual calls for punishment. Solon is said to have transferred the same idea to the distribution of state powers. Here, then, was generalization: here was the work of genius. But in the disposal of domestic power, every legislator, without any effort of genius, has been a Solon. So much for reason:a add to which, in point of motives,b that legislators seem all to have been of the male sex, down to the days of Catherine. I speak here of those who frame laws, not of those who touch them with a sceptre.

a Social motives: sympathy for the public: love of reputation, &c.

b Self-regarding motives: or social motives, which are social in a less extent: sympathy for persons of a particular description: persons of the same sex.

* Supra, note, page 43.

XLI.

Offences to which the condition of a master, like any other kind of condition, is exposed, may, as hath been already intimated, be distinguished into such as concern the existence of the condition itself, and such as concern the performance of the functions of it, while subsisting. First, then, with regard to such as affect its existence. It is obvious enough, that the services of one man may be a benefit to another: the condition of a master may therefore be a beneficial one. It stands exposed, therefore, to the offences of wrongful non-investment, wrongful interception, usurpation, wrongful investment, and wrongful divestment. But how should it stand exposed to the offences of wrongful abdication, wrongful detrectation, and wrongful imposition? Certainly it cannot of itself; for services, when a man has the power of exacting them or not, as he thinks fit, can never be a burthen. But if to the powers, by which the condition of a master is constituted, the law thinks fit to annex any obligation on the part of the master; for instance, that of affording maintenance, or giving wages, to the servant, or paying money to any body else, it is evident, that in virtue of such obligation the condition may become a burthen. In this case, however, the condition possessed by the master will not, properly speaking, be the pure and simple condition of a master: it will be a kind of complex object, resolvable into the beneficial condition of a master, and the burthensome obligation which is annexed to it. Still, however, if the nature of the obligation lies within a narrow compass, and does not, in the manner of that which constitutes a trust, interfere with the exercise of those powers by which the condition of the superior is constituted, the latter, notwithstanding this foreign mixture, will still retain the name of mastership. In this case, therefore, but not otherwise, the condition of a master may stand exposed to the offences of wrongful abdication, wrongful detrectation, and wrongful imposition. Next as to the behaviour of persons, with reference to this condition, while considered as subsisting. In virtue of its being a benefit, it is exposed to disturbance. This disturbance will either be the offence of a stranger, or the offence of the servant himself. Where it is the offence of a stranger, and is committed by taking the person of the servant, in circumstances in which the taking of an object belonging to the class of things, would be an act of theft, or (what is scarcely worth distinguishing from theft) an act of embezzlement, it may be termed servant-stealing. Where it is the offence of the servant himself, it is styled breach of duty. Now the most flagrant species of breach of duty, and that which includes indeed every other, is that which consists in the servant’s withdrawing himself from the place in which the duty should be performed. This species of breach of duty is termed elopement. Again, in virtue of the power belonging to this condition, it is liable, on the part of the master, to abuse. But this power is not coupled with a trust. The condition of a master is therefore not exposed to any offence which is analogous to breach of trust. Lastly, on account of its being exposed to abuse, it may be conceived to stand, in point of possibility, exposed to bribery. But considering how few, and how insignificant, the persons are who are liable to be subject to the power here in question, this is an offence which, on account of the want of temptation, there will seldom be any example of in practice. We may therefore reckon thirteen sorts of offences to which the condition of a master is exposed; viz. 1. Wrongful non-investment of mastership. 2. Wrongful interception of mastership. 3. Wrongful divestment of mastership. 4. Usurpation of mastership. 5. Wrongful investment of mastership. 6. Wrongful abdication of mastership. 7. Wrongful detrectation of mastership. 8. Wrongful imposition of mastership. 9. Abuse of mastership. 10. Disturbance of mastership. 11. Breach of duty in servants. 12. Elopement of servants. 13. Servant-stealing.

Vide supra, par. 27.

In most civilized nations there is a sort of domestic condition, in which the superior is termed a master, while the inferior is termed sometimes indeed a servant, but more particularly and more frequently an apprentice. In this case, though the superior is, in point of usage, known by no other name than that of a master, the relationship is in point of fact a mixed one, compounded of that of master and that of guardian.

XLII.

As to the power by which the condition of a master is constituted, this may be either limited or unlimited. When it is altogether unlimited, the condition of the servant is styled pure slavery. But as the rules of language are as far as can be conceived from being steady on this head, the term slavery is commonly made use of wherever the limitations prescribed to the power of the master are looked upon as inconsiderable. Whenever any such limitation is prescribed, a kind of fictitious entity is thereby created, and, in quality of an incorporeal object of possession, is bestowed upon the servant: this object is of the class of those which are called rights: and in the present case is termed, in a more particular manner, a liberty: and sometimes a privilege, an immunity, or an exemption. Now those limitations on the one hand, and these liberties on the other, may, it is evident, be as various as the acts (positive or negative) which the master may or may not have the power of obliging the servant to submit to or to perform. Correspondent, then, to the infinitude of these liberties, is the infinitude of the modifications which the condition of mastership (or, as it is more common to say in such a case, that of servitude) admits of. These modifications, it is evident, may, in different countries, be infinitely diversified. In different countries, therefore, the offences characterized by the above names will, if specifically considered, admit of very different descriptions. If there be a spot upon the earth so wretched as to exhibit the spectacle of pure and absolutely unlimited slavery, on that spot there will be no such thing as any abuse of mastership; which means neither more nor less than that no abuse of mastership will there be treated on the footing of an offence. As to the question, Whether any, and what, modes of servitude ought to be established or kept on foot? this is a question, the solution of which belongs to the civil branch of the art of legislation.

XLIII.

Next with regard to the offences that may concern the condition of a servant. It might seem at first sight, that a condition of this kind could not have a spark of benefit belonging to it: that it could not be attended with any other consequences than such as rendered it a mere burthen. But a burthen itself may be a benefit, in comparison of a greater burthen. Conceive a man’s situation, then, to be such, that he must, at any rate, be in a state of pure slavery. Still may it be material to him, and highly material, who the person is whom he has for his master. A state of slavery, then, under one master, may be a beneficial state to him, in comparison with a state of slavery under another master. The condition of a servant, then, is exposed to the several offences to which a condition, in virtue of its being a beneficial one, is exposed.* More than this, where the power of the master is limited, and the limitations annexed to it, and thence the liberties of the servant, are considerable, the servitude may even be positively eligible. For amongst those limitations may be such as are sufficient to enable the servant to possess property of his own: being capable, then, of possessing property of his own, he may be capable of receiving it from his master: in short, he may receive wages, or other emoluments, from his master; and the benefit resulting from these wages may be so considerable as to outweigh the burthen of the servitude, and by that means render that condition more beneficial upon the whole, and more eligible, than that of one who is not in any respect under the controul of any such person as a master. Accordingly, by these means the condition of the servant may be so eligible, that his entrance into it, and his continuance in it, may have been altogether the result of his own choice. That the nature of the two conditions may be the more clearly understood, it may be of use to shew the sort of correspondency there is between the offences which affect the existence of the one, and those which affect the existence of the other. That this correspondency cannot but be very intimate, is obvious at first sight. It is not, however, that a given offence in the former catalogue coincides with an offence of the same name in the latter catalogue: usurpation of servantship with usurpation of mastership, for example. But the case is, that an offence of one denomination in the one catalogue coincides with an offence of a different denomination in the other catalogue. Nor is the coincidence constant and certain; but liable to contingencies, as we shall see. First, then, wrongful non-collation of the condition of a servant, if it be the offence of one who should have been the master, coincides with wrongful detrectation of mastership: if it be the offence of a third person, it involves in it non-collation of mastership, which, provided the mastership be, in the eyes of him who should have been master, a beneficial thing, but not otherwise, is wrongful. 2. Wrongful interception of the condition of a servant, if it be the offence of him who should have been master, coincides with wrongful detrectation of mastership: if it be the offence of a third person, and the mastership be a beneficial thing, it involves in it wrongful interception of mastership. 3. Wrongful ablation of servantship, if it be the offence of the master, but not otherwise, coincides with wrongful abdication of mastership: if it be the offence of a stranger, it involves in it ablation of mastership, which, in as far as the mastership is a beneficial thing, is wrongful. 4. Usurpation of servantship coincides necessarily with wrongful imposition of mastership: it will be apt to involve in it wrongful divestment of mastership; but this only in the case where the usurper, previously to the usurpation, was in a state of servitude under some other master. 5. Wrongful collation of servantship (the servantship being considered as a beneficial thing) coincides with imposition of mastership; which, if in the eyes of the pretended master, the mastership should chance to be a burthen, will be wrongful. 6. Wrongful abdication of servantship coincides with wrongful ablation of mastership. 7. Wrongful detrectation of servantship, with wrongful non-collation of mastership. 8. Wrongful imposition of servantship, if it be the offence of the pretended master, coincides with usurpation of mastership: if it be the offence of a stranger, it involves in it imposition of mastership, which, if in the eyes of the pretended master the mastership should be a burthen, will be wrongful. As to abuse of mastership, disturbance of mastership, breach of duty in servants, elopement of servants, and servant-stealing, these are offences which, without any change of denomination, bear equal relation to both conditions. And thus we may reckon thirteen sorts of offences to which the condition of a servant stands exposed; viz. 1. Wrongful non-investment of servantship. 2. Wrongful interception of servantship. 3. Wrongful divestment of servantship. 4. Usurpation of servantship. 5. Wrongful investment of servantship. 6. Wrongful abdication of servantship. 7. Wrongful detrectation of servantship. 8. Wrongful imposition of servantship. 9. Abuse of mastership. 10. Disturbance of mastership. 11. Breach of duty in servants. 12. Elopement of servants. 13. Servant-stealing.

* It may seem at first, that a person who is in the condition of a slave, could not have it in his power to engage in such course of proceeding as would be necessary, in order to give him an apparent title to be reckoned among the slaves of another master. But though a slave in point of right, it may happen that he has eloped, for instance, and is not a slave in point of fact: or, suppose him a slave in point of fact, and ever so vigilantly guarded, still a person connected with him by the ties of sympathy, might do that for him which, though willing and assenting, he might not be able to do for himself: might forge a deed of donation, for example, from the one master to the other.

XLIV.

We now come to the offences to which the condition of a guardian is exposed. A guardian is one who is invested with power over another, living within the compass of the same family, and called a ward; the power being to be exercised for the benefit of the ward. Now, then, what are the cases in which it can be for the benefit of one man, that another, living within the compass of the same family, should exercise power over him? Consider either of the parties by himself, and suppose him, in point of understanding, to be on a level with the other; it seems evident enough that no such cases can ever exist.* To the production of happiness on the part of any given person (in like manner as to the production of any other effect which is the result of human agency), three things it is necessary should concur: knowledge, inclination, and physical power. Now as there is no man who is so sure of being inclined, on all occasions, to promote your happiness, as you yourself are, so neither is there any man who, upon the whole, can have had so good opportunities as you must have had, of knowing what is most conducive to that purpose. For who should know so well as you do what it is that gives you pain or pleasure? Moreover, as to power, it is manifest that no superiority in this respect, on the part of a stranger, could, for a constancy, make up for so great a deficiency as he must lie under in respect of two such material points as knowledge and inclination. If, then, there be a case where it can be for the advantage of one man to be under the power of another, it must be on account of some palpable and very considerable deficiency, on the part of the former, in point of intellects, or (which is the same thing in other words) in point of knowledge or understanding. Now there are two cases in which such palpable deficiency is known to take place. These are, 1. Where a man’s intellect is not yet arrived at that state in which it is capable of directing his own inclination in the pursuit of happiness: this is the case of infancy. 2. Where, by some particular known or unknown circumstance, his intellect has either never arrived at that state, or having arrived at it, has fallen from it: which is the case of insanity.

By what means, then, is it to be ascertained whether a man’s intellect is in that state or no? For exhibiting the quantity of sensible heat in a human body, we have a very tolerable sort of instrument, the thermometer; but for exhibiting the quantity of intelligence, we have no such instrument. It is evident, therefore, that the line which separates the quantity of intelligence which is sufficient for the purposes of self-government from that which is not sufficient, must be, in a great measure, arbitrary. Where the insufficiency is the result of want of age, the sufficient quantity of intelligence, be it what it may, does not accrue to all at the same period of their lives. It becomes, therefore, necessary for legislators to cut the gordian knot, and fix upon a particular period, at which, and not before, truly or not, every person whatever shall be deemed, as far as depends upon age, to be in possession of this sufficient quantity.* In this case, then, a line is drawn, which may be the same for every man, and in the description of which, such as it is, whatever persons are concerned may be certain of agreeing: the circumstance of time affording a mark by which the line in question may be traced with the utmost degree of nicety. On the other hand, where the insufficiency is the result of insanity, there is not even this resource: so that here the legislator has no other expedient than to appoint some particular person or persons to give a particular determination of the question, in every instance in which it occurs, according to his or their particular and arbitrary discretion. Arbitrary enough it must be at any rate, since the only way in which it can be exercised is by considering whether the share of intelligence possessed by the individual in question does or does not come up to the loose and indeterminate idea which persons so appointed may chance to entertain with respect to the quantity which is deemed sufficient.

* Consider them together indeed, take the sum of the two interests, and the case, as we have seen (supra, par. 40), is then the reverse. That case, it is to be remembered, proceeds only upon the supposition that the two parties are obliged to live together; for suppose it to be at their option to part, the necessity of establishing the power ceases.

Ch. xix. [Limits] § 1.

See ch. xv. [Cases unmeet] § 3.

* In certain nations, women, whether married or not, have been placed in a state of perpetual wardship: this has been evidently founded on the notion of a decided inferiority in point of intellects on the part of the female sex, analogous to that which is the result of infancy or insanity on the part of the male. This is not the only instance in which tyranny has taken advantage of its own wrong, alleging as a reason for the domination it exercises, an imbecility, which, as far as it has been real, has been produced by the abuse of that very power which it is brought to justify. Aristotle, fascinated by the prejudice of the times, divides mankind into two distinct species: that of freemen, and that of slaves. Certain men were born to be slaves, and ought to be slaves. Why? Because they are so.

XLV.

The line, then, being drawn, or supposed to be so, it is expedient for a man who cannot, with safety to himself, be left in his own power, that he should be placed in the power of another. How long, then, should he remain so? Just so long as his inability is supposed to continue: that is, in the case of infancy, till he arrives at that period at which the law deems him to be of full age: in the case of insanity, till he be of sound mind and understanding. Now it is evident, that this period, in the case of infancy, may not arrive for a considerable time; and in the case of insanity, perhaps never. The duration of the power belonging to this trust must therefore, in the one case, be very considerable; in the other case, indefinite.

XLVI.

The next point to consider is, what may be the extent of it? for as to what it ought to be, that is a matter to be settled, not in a general analytical sketch, but in a particular and circumstantial dissertation. By possibility, then, this power may possess any extent that can be imagined: it may extend to any acts which, physically speaking, it may be in the power of the ward to perform himself, or be the object of, if exercised by the guardian. Conceive the power, for a moment, to stand upon this footing: the condition of the ward stands now exactly upon a footing with pure slavery. Add the obligation by which the power is turned into a trust: the limits of the power are now very considerably narrowed. What, then, is the purport of this obligation? Of what nature is the course of conduct it prescribes? It is such a course of conduct as shall be best calculated for procuring to the ward the greatest quantity of happiness which his faculties, and the circumstances he is in, will admit of: saving always, in the first place, the regard which the guardian is permitted to show to his own happiness; and, in the second place, that which he is obliged, as well as permitted, to show to that of other men. This is, in fact, no other than that course of conduct which the ward, did he but know how, ought, in point of prudence, to maintain of himself: so that the business of the former is to govern the latter precisely in the manner in which this latter ought to govern himself. Now to instruct each individual in what manner to govern his own conduct in the details of life, is the particular business of private ethics: to instruct individuals in what manner to govern the conduct of those whose happiness, during non-age, is committed to their charge, is the business of the art of private education. The details, therefore, of the rules to be given for that purpose, any more than the acts which are capable of being committed in violation of those rules, belong not to the art of legislation: since, as will be seen more particularly hereafter, such details could not, with any chance of advantage, be provided for by the legislator. Some general outlines might, indeed, be drawn by his authority; and, in point of fact, some are, in every civilized state. But such regulations, it is evident, must be liable to great variation: in the first place, according to the infinite diversity of civil conditions which a man may stand invested with in any given state: in the next place, according to the diversity of local circumstances that may influence the nature of the conditions which may chance to be established in different states. On this account, the offences which would be constituted by such regulations could not be comprised under any concise and settled denominations, capable of a permanent and extensive application. No place, therefore, can be allotted to them here.

See ch. xix. [Limits] § 1.

XLVII.

By what has been said, we are the better prepared for taking an account of the offences to which the condition in question stands exposed. Guardianship being a private trust, is of course exposed to those offences, and no others, by which a private trust is liable to be affected. Some of them, however, on account of the special quality of the trust, will admit of some further particularity of description. In the first place, breach of this species of trust may be termed mismanagement of guardianship. In the second place, of whatever nature the duties are, which are capable of being annexed to this condition, it must often happen, that in order to fulfil them, it is necessary the guardian should be at a certain particular place. Mismanagement of guardianship, when it consists in the not being, on the occasion in question, at the place in question, may be termed desertion of guardianship. Third, it is manifest enough, that the object which the guardian ought to propose to himself, in the exercise of the powers to which those duties are annexed, is to procure for the ward the greatest quantity of happiness which can be procured for him, consistently with the regard which is due to the other interests that have been mentioned: for this is the object which the ward would have proposed to himself, and might and ought to have been allowed to propose to himself, had he been capable of governing his own conduct. Now, in order to procure this happiness, it is necessary that he should possess a certain power over the objects on the use of which such happiness depends. These objects are either the person of the ward himself, or other objects that are extraneous to him. These other objects are either things or persons. As to things, then, objects of this class, in as far as a man’s happiness depends upon the use of them, are styled his property. The case is the same with the services of any persons over whom he may happen to possess a beneficial power, or to whose services he may happen to possess a beneficial right. Now when property of any kind, which is in trust, suffers by the delinquency of him with whom it is in trust, such offence, of whatever nature it is in other respects, may be styled dissipation in breach of trust: and if it be attended with a profit to the trustee, it may be styled peculation.* Fourth, for one person to exercise a power of any kind over another, it is necessary that the latter should either perform certain acts, upon being commanded so to do by the former, or at least should suffer certain acts to be exercised upon himself. In this respect, a ward must stand upon the footing of a servant: and the condition of a ward must, in this respect, stand exposed to the same offences to which that of a servant stands exposed: that is, on the part of a stranger, to disturbance, which, in particular circumstances, will amount to theft: on the part of the ward, to breach of duty: which, in particular circumstances, may be effected by elopement. Fifth, there does not seem to be any offence concerning guardianship, that corresponds to abuse of trust: I mean in the sense to which the last-mentioned denomination has been here confined. The reason is, that guardianship, being a trust of a private nature, does not, as such, confer upon the trustee any power, either over the person, or over the property, of any party, other than the beneficiary himself. If by accident it confers on the trustee a power over any persons whose services constitute a part of the property of the beneficiary, the trustee becomes thereby, in certain respects, the master of such servants. Sixth, bribery also is a sort of offence to which, in this case, there is not commonly much temptation. It is an offence, however, which by possibility is capable of taking this direction: and must therefore be aggregated to the number of the offences to which the condition of a guardian stands exposed. And thus we have in all seventeen of these offences; viz. 1. Wrongful non-investment of guardianship. 2. Wrongful interception of guardianship. 3. Wrongful divestment of guardianship. 4. Usurpation of guardianship. 5. Wrongful investment of guardianship. 6. Wrongful abdication of guardianship. 7. Detrectation of guardianship. 8. Wrongful imposition of guardianship. 9. Mismanagement of guardianship. 10. Desertion of guardianship. 11. Dissipation in prejudice of wardship. 12. Peculation in prejudice of wardship. 13. Disturbance of guardianship. 14. Breach of duty to guardians. 15. Elopement from guardians. 16. Ward-stealing. 17. Bribery in prejudice of wardship.

* Vide supra, par. 35.

par. 25.

par. 40.

XLVIII.

Next, with regard to offences to which the condition of wardship is exposed. Those which first affect the existence of the condition itself are as follows: 1. Wrongful non-investment of the condition of a ward. This, if it be the offence of one who should have been guardian, coincides with wrongful detrectation of guardianship: if it be the offence of a third person, it involves in it non-investment of guardianship, which, provided the guardianship is, in the eyes of him who should have been guardian, a desirable thing, is wrongful. 2. Wrongful interception of wardship. This, if it be the offence of him who should have been guardian, coincides with wrongful detrectation of guardianship: if it be the offence of a third person, it involves in it interception of guardianship, which, provided the guardianship is, in the eyes of him who should have been guardian, a desirable thing, is wrongful. 3. Wrongful divestment of wardship. This, if it be the offence of the guardian, but not otherwise, coincides with wrongful abdication of guardianship: if it be the offence of a third person, it involves in it divestment of guardianship, which, if the guardianship is, in the eyes of the guardian, a desirable thing, is wrongful. 4. Usurpation of the condition of a ward: an offence not very likely to be committed. This coincides at any rate with wrongful imposition of guardianship; and if the usurper were already under the guardianship of another guardian, it will involve in it wrongful divestment of such guardianship.* 5. Wrongful investment of wardship, (the wardship being considered as a beneficial thing.) This coincides with imposition of guardianship, which, if in the eyes of the pretended guardian the guardianship should be a burthen, will be wrongful. 6. Wrongful abdication of wardship. This coincides with wrongful divestment of guardianship. 7. Wrongful detrectation of wardship. This coincides with wrongful interception of guardianship. 8. Wrongful imposition of wardship. This, if the offender be the pretended guardian, coincides with usurpation of guardianship: if a stranger, it involves in it wrongful imposition of guardianship. As to such of the offences relative to this condition, as concern the consequences of it while subsisting, they are of such a nature that, without any change of denomination, they belong equally to the condition of a guardian, and that of a ward. We may therefore reckon seventeen sorts of offences relative to the condition of a ward: 1. Wrongful non-investment of wardship. 2. Wrongful interception of wardship. 3. Wrongful divestment of wardship. 4. Usurpation of wardship. 5. Wrongful investment of wardship. 6. Wrongful abdication of wardship. 7. Wrongful detrectation of wardship. 8. Wrongful imposition of wardship. 9. Mismanagement of guardianship. 10. Desertion of guardianship. 11. Dissipation in prejudice of wardship. 12. Peculation in prejudice of wardship. 13. Disturbance of guardianship. 14. Breach of duty to guardians. 15. Elopement from guardians. 16. Ward-stealing. 17. Bribery in prejudice of wardship.

* This effect, it may be thought, will not necessarily take place: since a ward may have two guardians. One man, then, is guardian by right: another man comes and makes himself so by usurpation. This may very well be, and yet the former may continue guardian notwithstanding. How then (it may be asked) is he divested of his guardianship? The answer is, Certainly not of the whole of it: but, however, of a part of it; of such part as is occupied, if one may so say, that is, of such part of the powers and rights belonging to it as are exercised, by the usurper.

XLIX.

We come now to the offences to which the condition of a parent stands exposed: and first, with regard to those by which the very existence of the condition is affected. On this occasion, in order to see the more clearly into the subject, it will be necessary to distinguish between the natural relationship, and the legal relationship, which is superinduced, as it were, upon the natural one. The natural one being constituted by a particular event, which, either on account of its being already past, or on some other account, is equally out of the power of the law, neither is, nor can be made, the subject of an offence. Is a man your father? It is not any offence of mine that can make you not his son. Is he not your father? It is not any offence of mine that can render him so. But although he does in fact bear that relation to you, I, by an offence of mine, may perhaps so manage matters, that he shall not be thought to bear it: which, with respect to any legal advantages which either he or you could derive from such relationship, will be the same thing as if he did not. In the capacity of a witness, I may cause the judges to believe that he is not your father, and to decree accordingly: or, in the capacity of a judge, I may myself decree him not to be your father. Leaving, then, the purely natural relationship as an object equally out of the reach of justice and injustice, the legal condition, it is evident, will stand exposed to the same offences, neither more nor less, as every other condition, that is capable of being either beneficial or burthensome, stands exposed to. Next with regard to the exercise of the functions belonging to this condition, considered as still subsisting. In parentality there must be two persons concerned, the father and the mother. The condition of a parent includes, therefore, two conditions; that of a father, and that of a mother, with respect to such or such a child. Now it is evident, that between these two parties, whatever beneficiary powers, and other rights, as also whatever obligations, are annexed to the condition of a parent, may be shared in any proportions that can be imagined. But if in these several objects of legal creation, each of these two parties have severally a share, and if the interests of all these parties are in any degree provided for, it is evident that each of the parents will stand, with relation to the child, in two several capacities: that of a master, and that of a guardian. The condition of a parent, then, in as far as it is the work of law, may be considered as a complex condition, compounded of that of a guardian, and that of a master. To the parent, then, in quality of guardian, results a set of duties, involving, as necessary to the discharge of them, certain powers: to the child, in the character of a ward, a set of rights corresponding to the parent’s duties, and a set of duties corresponding to his powers. To the parent, again, in quality of master, a set of beneficiary powers, without any other necessary limitation (so long as they last) than what is annexed to them by the duties incumbent on him in quality of a guardian: to the child, in the character of a servant, a set of duties corresponding to the parent’s beneficiary powers, and without any other necessary limitation (so long as they last) than what is annexed to them by the rights which belong to the child in his capacity of ward. The condition of a parent will therefore be exposed to all the offences to which either that of a guardian or that of a master are exposed: and, as each of the parents will partake, more or less, of both those characters, the offences to which the two conditions are exposed may be nominally, as they will be substantially, the same. Taking them then all together, the offences to which the condition of a parent is exposed will stand as follows: 1. Wrongful non-investment of parentality.* 2. Wrongful interception of parentality. 3. Wrongful divestment of parentality. 4. Usurpation of parentality. 5. Wrongful investment of parentality. 6. Wrongful abdication of parentality. 7. Wrongful detrectation of parentality. 8. Wrongful imposition of parentality. 9. Mismanagement of parental guardianship. 10. Desertion of parental guardianship. 11. Dissipation in prejudice of filial wardship. 12. Peculation in prejudice of filial wardship. 13. Abuse of parental powers. 14. Disturbance of parental guardianship. 15. Breach of duty to parents. 16. Elopement from parents. 17. Child-stealing. 18. Bribery in prejudice of filial wardship.

* At first view it may seem a solecism to speak of the condition of parentality as one which a man can have need to be invested with. The reason is, that it is not common for any ceremony to be required as necessary to a man’s being deemed in law the father of such or such a child. But the institution of such a ceremony, whether advisable or not, is at least perfectly conceivable. Nor are there wanting cases in which it has actually been exemplified. By an article in the Roman law, adopted by many modern nations, an illegitimate child is rendered legitimate by the subsequent marriage of his parents. If, then, a priest, or other person whose office it was, were to refuse to join a man and woman in matrimony, such refusal, besides being a wrongful non-investment with respect to the two matrimonial conditions, would be a wrongful non-investment of parentality and filiation, to the prejudice of any children who should have been legitimated.

L.

Next with regard to the offences to which the filial condition, the condition of a son or daughter, stands exposed. The principles to be pursued in the investigation of offences of this description, have already been sufficiently developed. It will be sufficient, therefore, to enumerate them without further discussion. The only peculiarities by which offences relative to the condition in question stand distinguished from the offences relative to all the preceding conditions, depend upon this one circumstance; viz. that it is certain every one must have had a father and a mother: at the same time that it is not certain that every one must have had a master, a servant, a guardian, or a ward. It will be observed all along, that where a person, from whom, if alive, the benefit would be taken, or on whom the burthen would be imposed, be dead, so much of the mischief is extinct, along with the object of the offence. There still, however, remains so much of the mischief as depends upon the advantage or disadvantage which might accrue to persons related, or supposed to be related in the several remoter degrees, to him in question. The catalogue, then, of these offences stands as follows: 1. Wrongful non-investment of filiation. This, if it be the offence of him or her who should have been recognised as the parent, coincides with wrongful detrectation of parentality: if it be the offence of a third person, it involves in it non-investment of parentality, which, provided the parentality is, in the eyes of him or her who should have been recognised as the parent, a desirable thing is wrongful. 2. Wrongful interception of filiation. This if it be the offence of him or her who should have been recognised as the parent, coincides with wrongful detrectation of parentality: if it be the offence of a third person, it involves in it interception of parentality, which, provided the parentality is, in the eyes of him or her who should have been recognised as parent, a desirable thing, is wrongful. 3. Wrongful divestment of filiation. This, if it be the offence of him or her who should be recognised as parent, coincides with wrongful abdication of parentality: if it be the offence of a third person, it involves in it divestment of parentality; to wit, of paternity, or of maternity, or of both; which, if the parentality is, in the eyes of him or her who should be recognised as parent, a desirable thing, are respectively wrongful. 4. Usurpation of filiation. This coincides with wrongful imposition of parentality; to wit, either of paternity, or of maternity, or of both; and necessarily involves in it divestment of parentality, which, if the parentality thus divested were, in the eyes of him or her who are thus divested of it, a desirable thing, is wrongful. 5. Wrongful investment of filiation, (the filiation being considered as a beneficial thing.) This coincides with imposition of parentality, which, if in the eyes of the pretended father or mother the parentality should be an undesirable thing, will be wrongful. 6. Wrongful abdication of filiation. This necessarily coincides with wrongful divestment of parentality; it also is apt to involve in it wrongful imposition of parentality; though not necessarily either to the advantage or to the prejudice of any certain person. For if a man, supposed at first to be your son, appears afterwards not to be yours, it is certain indeed that he is the son of some other man, but it may not appear who that other man is. 7. Wrongful detrectation of filiation. This coincides with wrongful non-investment or wrongful interception of parentality. 8. Wrongful imposition of filiation. This, if it be the offence of the pretended parent, coincides necessarily with usurpation of parentality: if it be the offence of a third person, it necessarily involves imposition of parentality; as also divestment of parentality: either or both of which, according to the circumstance above mentioned, may or may not be wrongful. 9. Mis-management of parental guardianship. 10. Desertion of parental guardianship. 11. Dissipation in prejudice of filial wardship. 12. Peculation in prejudice of filial wardship. 13. Abuse of parental power. 14. Disturbance of parental guardianship. 15. Breach of duty to parents. 16. Elopement from parents. 17. Child-stealing. 18. Bribery in prejudice of parental guardianship.

In English we have no word that will serve to express with propriety the person who bears the relation opposed to that of parent. The word child is ambiguous, being employed in another sense, perhaps more frequently than in this: more frequently in opposition to a person of full age, an adult, than in correlation to a parent. For the condition itself we have no other word than filiation: an ill-contrived term, not analogous to paternity and maternity: the proper term would have been filiality: the word filiation is as frequently, perhaps, and more consistently, put for the act of establishing a person in the possession of the condition of filiality.

LI.

We shall now be able to apply ourselves with some advantage to the examination of the several offences to which the marital condition, or condition of a husband, stands exposed. A husband is a man, between whom and a certain woman, who in this case is called his wife, there subsists a legal obligation for the purpose of their living together, and in particular for the purpose of a sexual intercourse to be carried on between them. This obligation will naturally be considered in four points of view: 1. In respect of its commencement. 2. In respect of the placing it. 3. In respect of the nature of it. 4. In respect of its duration. First, then, it is evident, that in point of possibility, one method of commencement is as conceivable as another: the time of its commencement might have been marked by one sort of event (by one sort of signal, as it may here be called) as well as by another. But in practice the signal has usually been, as in point of utility it ought constantly to be, a contract entered into by the parties; that is, a set of signs, pitched upon by the law, as expressive of their mutual consent to take upon them this condition. Second, and third, with regard to the placing of the obligations which are the result of the contract, it is evident that they must rest solely on one side, or mutually on both. On the first supposition, the condition is not to be distinguished from pure slavery. In this case, either the wife must be the slave of the husband, or the husband of the wife. The first of these suppositions has perhaps never been exemplified; the opposing influence of physical causes being too universal to have ever been surmounted: the latter seems to have been exemplified but too often; perhaps among the first Romans; at any rate, in many barbarous nations. Thirdly, with regard to the nature of the obligations. If they are not suffered to rest all on one side, certain rights are thereby given to the other. There must, therefore, be rights on both sides. Now, where there are mutual rights possessed by two persons, as against each other, either there are powers annexed to those rights, or not. But the persons in question are, by the supposition, to live together: in which case we have shown,* that it is not only expedient, but in a manner necessary, that on one side there should be powers. Now it is only on one side that powers can be: for suppose them on both sides, and they destroy one another. The question is, then, In which of the parties these powers shall be lodged? We have shown, that on the principle of utility they ought to be lodged in the husband. The powers, then, which subsist, being lodged in the husband, the next question is, Shall the interest of one party only, or of both, be consulted in the exercise of them? It is evident, that on the principle of utility the interests of both ought alike to be consulted: since in two persons, taken together, more happiness is producible than in one. This being the case, it is manifest, that the legal relation which the husband will bear to the wife will be a complex one, compounded of that of master and that of guardian.

* Supra.

LII.

The offences, then, to which the condition of a husband will be exposed, will be the sum of those to which the two conditions of master and guardian are exposed. Thus far the condition of a husband, with respect to the general outlines of it, stands upon the same footing as that of a parent. But there are certain reciprocal services, which being the main subject of the matrimonial contract, constitute the essence of the two matrimonial relations, and which neither a master nor guardian, as such, nor a parent, at any rate, have usually been permitted to receive. These must, of course, have been distinguished from the indiscriminate train of services at large which the husband in his character of master is empowered to exact, and of those which in his character of guardian he is bound to render. Being thus distinguished, the offences relative to the two conditions have, in many instances, in as far as they have reference to these peculiar services, acquired particular denominations. In the first place, with regard to the contract, from the celebration of which the legal condition dates its existence. It is obvious, that in point of possibility this contract might, on the part of either sex, subsist with respect to several persons of the other sex at the same time: the husband might have any number of wives; the wife might have any number of husbands: the husband might enter into the contract with a number of wives at the same time; or, if with only one at a time, he might reserve to himself a right of engaging in a similar contract with any number, or with only such or such a number of other women afterwards, during the continuance of each former contract. This latter, accordingly, is the footing upon which, as is well known, marriage is and has been established in many extensive countries; particularly in all those which profess the Mahometan religion. In point of possibility, it is evident that the like liberty might be reserved on the part of the wife: though in point of practice no examples of such an arrangement seem ever to have occurred. Which of all these arrangements is, in point of utility, the most expedient, is a question which would require too much discussion to answer in the course of an analytical process like the present, and which belongs indeed to the civil branch of legislation, rather than to the penal.* In Christian countries, the solemnization of any such contract is made to exclude the solemnization of any subsequent one during the continuance of a former: and the solemnization of any such subsequent contract is accordingly treated as an offence, under the name of Polygamy. Polygamy, then, is at any rate, on the part of the man, a particular modification of that offence which may be styled usurpation of the condition of a husband. As to its other effects, they will be different, according as it was the man only, or the woman only, or both, that were in a state of matrimony at the time of the commission of the offence. If the man only, then his offence involves in it, pro tanto, that of wrongful divestment of the condition of a wife, in prejudice of his prior wife. If the woman only, then it involves in it, pro tanto, that of wrongful divestment of the condition of a husband, in prejudice of her prior husband. If both were already married, it of course involves both the wrongful divestments which have just been mentioned. And on the other hand also, the converse of all this may be observed with regard to polygamy on the part of the woman. Second, as the engaging not to enter into any subsequent engagement of the like kind during the continuance of the first, is one of the conditions on which the law lends its sanction to the first; so another is, the inserting, as one of the articles of this engagement, an undertaking not to render to, or accept from, any other person the services which form the characteristic object of it: the rendering or acceptance of any such services is accordingly treated as an offence, under the name of adultery: under which name is also comprised the offence of the stranger, who, in the commission of the above offence, is the necessary accomplice. Third, disturbing either of the parties to this engagement, in the possession of these characteristic services, may in like manner be distinguished from the offence of disturbing them in the enjoyment of the miscellaneous advantages derivable from the same condition; and on whichever side the blame rests, whether that of the party, or that of a third person, may be termed wrongful withholding of connubial services. And thus we have one-and-twenty sorts of offences to which, as the law stands at present in Christian countries, the condition of a husband stands exposed: viz. 1. Wrongful non-investment of the condition of a husband. 2. Wrongful interception of the condition of a husband. 3. Wrongful divestment of the condition of a husband. 4. Usurpation of the condition of a husband. 5. Polygamy. 6. Wrongful investment of the condition of a husband. 7. Wrongful abdication of the condition of a husband. 8. Wrongful detrectation of the condition of a husband. 9. Wrongful imposition of the condition of a husband. 10. Mismanagement of marital guardianship. 11. Desertion of marital guardianship. 12. Dissipation in prejudice of matrimonial wardship. 13. Peculation in prejudice of matrimonial wardship. 14. Abuse of marital power. 15. Disturbance of marital guardianship. 16. Wrongful withholding of connubial services. 17. Adultery. 18. Breach of duty to husbands. 19. Elopement from husbands. 20. Wife-stealing. 21. Bribery in prejudice of marital guardianship.*

* See ch. xix. [Limits] § 4.

In this case also, if the woman knew not of the prior marriage, it is besides a species of seduction; and, in as far as it affects her, belongs to another division of the offences of this class. Vide supra, par. 36.

* I. Semi-public Offences. Falsehoods contesting, or offences against justice destroying, the validity of the marriages of people of certain descriptions; such as Jews, Quakers, Hugonots, &c. &c.

II. Self-regarding Offences. Improvident marriage on the part of minors.

LIII.

Next with regard to the offences to which the condition of a wife stands exposed. From the patterns that have been exhibited already, the coincidences and associations that take place between the offences that concern the existence of this condition and those which concern the existence of the condition of a husband, may easily enough be apprehended without farther repetitions. The catalogue of those now under consideration will be precisely the same in every article as the catalogue last exhibited.

LIV.

Thus much for the several sorts of offences relative to the several sorts of domestic conditions: those which are constituted by such natural relations as are contiguous, being included. There remain those which are uncontiguous: of which, after so much as has been said of the others, it will naturally be expected that some notice should be taken. These, however, do not afford any of that matter which is necessary to constitute a condition. In point of fact, no power seems ever to be annexed to any of them. A grandfather, perhaps, may be called by the law to take upon him the guardianship of his orphan grandson: but then the power he has belongs to him not as grandfather, but as guardian. In point of possibility, indeed, power might be annexed to these relations, just as it might to any other. But still no new sort of domestic condition would result from it: since it has been shown that there can be no others, that, being constituted by power, shall be distinct from those which have been already mentioned. Such as they are, however, they have this in common with the before-mentioned relations, that they are capable of importing either benefit or burthen: they therefore stand exposed to the several offences whereby those or any other relations are liable to be affected in point of existence. It might be expected, therefore, that in virtue of these offences, they should be added to the list of the relations which are liable to be objects of delinquency. But the fact is, that they already stand included in it: and although not expressly named, yet as effectually as if they were. On the one hand, it is only by affecting such or such a contiguous relation that any offence, affecting uncontiguous relations, can take place. On the other hand, neither can any offence, affecting the existence of the contiguous relations, be committed, without affecting the existence of an indefinite multitude of such as are uncontiguous. A false witness comes, and causes it to be believed that you are the son of a woman, who, in truth, is not your mother. What follows? An endless tribe of other false persuasions: that you are the grandson of the father and of the mother of this supposed mother: that you are the son of some husband of her’s, or, at least, of some man with whom she has cohabited: the grandson of his father and his mother; and so on: the brother of their other children, if they have any: the brother-in-law of the husbands and wives of those children, if married: the uncle of the children of those children; and so on. On the other hand, that you are not the son of your real mother, nor of your real father: that you are not the grandson of either of your real grandfathers or grandmothers; and so on without end: all which persuasions result from, and are included in, the one original false persuasion of your being the son of this your pretended mother.

It should seem, therefore, at first sight, that none of the offences against these uncontiguous relations could ever come expressly into question: for by the same rule that one ought, so it might seem ought a thousand others: the offences against the uncontiguous being merged, as it were, in those which affect the contiguous relations. So far, however, is this from being the case, that in speaking of an offence of this stamp, it is not uncommon to hear a great deal said of this or that uncontiguous relationship which it affects, at the same time that no notice at all shall be taken of any of those which are contiguous. How happens this? Because to the uncontiguous relation are annexed perhaps certain remarkable advantages or disadvantages, while to all the intermediate relations none shall be annexed which are in comparison worth noticing. Suppose Antony or Lepidus to have contested the relationship of Octavius (afterwards Augustus) to Caius Julius Cæsar. How could it have been done? It could only have been by contesting, either Octavius’s being the son of Atia, or Atia’s being the daughter of Julia, or Julia’s being the daughter of Lucius Julius Cæsar, or Lucius Julius Cæsar’s being the father of Caius. But to have been the son of Atia, or the grandson of Julia, or the great grandson of Lucius Julius Cæsar, was, in comparison, of small importance. Those intervening relationships were, comparatively speaking, of no other use to him than in virtue of their being so many necessary links in the genealogical chain which connected him with the sovereign of the empire.

As to the advantages and disadvantages which may happen to be annexed to any of those uncontiguous relationships, we have seen already that no powers over the correlative person, nor any corresponding obligations, are of the number. Of what nature, then, can they be? They are, in truth, no other than what are the result either of local and accidental institutions, or of some spontaneous bias that has been taken by the moral sanction. It would, therefore, be to little purpose to attempt tracing them out a priori by any exhaustive process: all that can be done is, to pick up and lay together some of the principal articles in each catalogue by way of specimen. The advantages which a given relationship is apt to impart, seem to be referable chiefly to the following heads: 1. Chance of succession to the property, or a part of the property, of the correlative person. 2. Chance of pecuniary support, to be yielded by the correlative person, either by appointment of law, or by spontaneous donation. 3. Accession of legal rank; including any legal privileges which may happen to be annexed to it: such as capacity of holding such and such beneficial offices; exemption from such and such burthensome obligations; for instance, paying taxes, serving burthensome offices, &c. &c. 4. Accession of rank by courtesy; including the sort of reputation which is customarily and spontaneously annexed to distinguished birth and family alliance: whereon may depend the chance of advancement in the way of marriage, or in a thousand other ways less obvious. The disadvantages which a given relation is liable to impart, seem to be referable chiefly to the following heads: 1. Chance of being obliged, either by law, or by force of the moral sanction, to yield pecuniary support to the correlative party. 2. Loss of legal rank; including the legal disabilities, as well as the burthensome obligations, which the law is apt to annex, sometimes with injustice enough, to the lower stations. 3. Loss of rank by courtesy; including the loss of the advantages annexed by custom to such rank. 4. Incapacity of contracting matrimony with the correlative person, where the supposed consanguinity or affinity lies within the prohibited degrees.*

* In pursuance of the plan adopted with relation to semi-public and self-regarding offences, it may here be proper to exhibit such a catalogue, as the nature of the design will admit, of the several genera or inferior divisions of public offences.

I. Offences against the External Security of the State. 1. Treason (in favour of foreign enemies.) It may be positive or negative (negative consisting, for example, in the not opposing the commission of positive.) 2. Espionage (in favour of foreign rivals not yet enemies.) 3. Injuries to foreigners at large (including piracy.) 4. Injuries to privileged foreigners (such as ambassadors.)

II. Offences against Justice. 1. Offences against judicial trust: viz. Wrongful non-investment of judicial trust, wrongful interception of judicial trust, wrongful divestment of judicial trust, usurpation of judicial trust, wrongful investment of judicial trust, wrongful abdication of judicial trust, wrongful detrectation of judicial trust, wrongful imposition of judicial trust, breach of judicial trust, abuse of judicial trust, disturbance of judicial trust, and bribery in prejudice of judicial trust.

Breach and abuse of judicial trust may be either intentional or unintentional. Intentional is culpable at any rate. Unintentional will preceed either from inadvertence, or from mis-supposal: if the inadvertence be coupled with heedlessness, or the mis-supposal with rashness, it is culpable: if not, blameless. For the particular acts by which the exercise of judicial trust may be disturbed, see B. I. tit. [Offences against Justice.] They are too multifarious, and too ill provided with names, to be examined here.

If a man fails in fulfilling the duties of this trust, and thereby comes either to break or to abuse it, it must be through some deficiency in the three requisite and only requisite endowments, of knowledge, inclination, and power. [See supra, par. 27.] A deficiency in any of those points, if any person be in fault, may proceed either from his own fault, or from the fault of those who should act with or under him. If persons who are in fault are persons invested with judicial trust, the offence comes under the head of breach or abuse of trust: if other persons, under that of disturbance of trust.

The ill effects of any breach, abuse, or disturbance of judicial trust, will consist in the production of some article or articles in the list of the mischiefs which it ought to be the original purpose of judicial procedure to remedy or avert, and of those which it ought to be the incidental purpose of it to avoid producing. These are either primary (that is, immediate) or remote: remote are of the 2d, 3d, or 4th order, and so on. The primary are those which import actual pain to persons assignable, and are therefore mischievous in themselves: the secondary are mischievous on account of the tendency they have to produce some article or articles in the catalogue of those of the first order; and are therefore mischievous in their effects. Those of the 3d order are mischievous only on account of the connection they have in the way of productive tendency, as before, with those of the 2d order: and so on.

Primary inconveniences, which it ought to be the object of procedure to provide against, are, 1. The continuance of the individual offence itself, and thereby the increase as well as continuance of the mischief of it. 2. The continuance of the whole mischief of the individual offence. 3. The continuance of a part of the mischief of the individual offence. 4. Total want of amends on the part of persons injured by the offence. 5. Partial want of amends on the part of persons injured by the offence. 6. Superfluous punishment of delinquents. 7. Unjust punishment of persons accused. 8. Unnecessary labour, expense, or other suffering or danger, on the part of superior judicial officers. 9. Unnecessary labour, expense, or other suffering or danger, on the part of ministerial or other subordinate judicial officers. 10. Unnecessary labour, expense, or other suffering or danger, on the part of persons whose co-operation is requisite pro renatâ, in order to make up the necessary complement of knowledge and power on the part of judicial officers, who are such by profession. 11. Unnecessary labour, expense, or other suffering or danger, on the part of persons at large, coming under the sphere of the operations of the persons above mentioned.

Secondary inconveniences are, in the purely civil branch of procedure, 1. Misinterpretation or mis-adjudication. In the penal branch, 2. Total impunity of delinquents (as favouring the production of other offences of the like nature.) 3. Partial impunity of delinquents. 4. Application of punishment improper in specie, though perhaps not in degree (this lessening the beneficial efficacy of the quantity employed.) 5. Uneconomical application of punishment, though proper, perhaps, as well in specie as in degree. 6. Unnecessary pecuniary expense on the part of the state.

Inconveniences of the 3d order are, 1. Unnecessary delay. 2. Unnecessary intricacy.

Inconveniences of the 4th order are, 1. Breach, 2. Abuse, 3. Disturbance, of judicial trust, as above; viz. in as far as these offences are preliminary to and distinct from those of the 2d and 3d orders.

Inconveniences of the 5th order are, Breach of the several regulations of procedure, or other regulations, made in the view of obviating the inconveniences above enumerated; viz. if preliminary and distinct as before.

III. Offences against the Preventive branch of the Police. 1. Offences against phthano-paranomic trust: (φθανω, to prevent; παξανομια, an offence.) 2. Offences against phthano-symphoric trust: (συμϕοξα, a calamity.) The two trusts may be termed by the common appellation of prophylactic: (πξο, before-hand, and ξυλαττω, to guard against.)

IV. Offences against the Public Force. 1. Offences against military trust, corresponding to those against judicial trust. Military desertion is a breach of military duty, or of military trust. Favouring desertion is a disturbance of it. 2. Offences against that branch of public trust which consists in the management of the several sorts of things appropriated to the purposes of war: such as arsenals, fortifications, dock-yards, ships of war, artillery, ammunition, military magazines, and so forth. It might be termed polemotumientic: from πολεμος, war: and ταμιενς, a steward.a

V. Offences against the Positive Increase of the National Felicity. 1. Offences against episturo-threptic trust: (επιστημη, knowledge; and τϱεϕω, to nourish or promote.) 2. Offences against eupædagogue trust: (ω, well; and παιδαγωγεω, to educate.) 3. Offences against noso-comial trust: (νοσος, a disease; and ϰομιζω, to take care of.) 4. Offences against moro-comial trust: (μοϱος, an insane person.) 5. Offences against ptocho-comial trust: (πτωχοι, the poor.) 6. Offences against antembletic trust: (αντεμϐαλλω, to bestow in reparation of a loss.) 7. Offences against hedonarchic trust: (ηδοναι, pleasures; and αϱχομαι, to preside over.) The above are examples of the principal establishments which should or might be set on foot for the purpose of making, in so many different ways, a positive addition to the stock of national felicity. To exhibit an exhaustive analysis of the possible total of these establishments, would not be a very easy task: nor on the present occasion is it a necessary one; for be they of what nature and in what number they may, the offences to which they stand exposed will, in as far as they are offences against trust, be in point of denomination the same: and as to what turns upon the particular nature of each trust, they will be of too local a nature to come within the present plan.

All these trusts might be comprised under some such general name as that of agatho-poieutic trust: (αγαϑοποιεω, to do good to any one.)

VI. Offences against the Public Wealth. 1. Non-payment of forfeitures. 2. Non-payment of taxes, including smuggling. 3. Breach of the several regulations made to prevent the evasion of taxes. 4. Offences against fiscal trust: the same as offences against judicial and military trusts. Offences against the original revenue, not accruing either from taxes or forfeitures, such as that arising from the public demesnes, stand upon the same footing as offences against private property. 5. Offences against demosio-tamientic trust: (δημοσια, things belonging to the public; and ταμιενς, a steward); viz. against that trust, of which the object is to apply to their several destinations such articles of the public wealth as are provided for the indiscriminate accommodation of individuals: such as public roads and waters, public harbours, post-offices, and packet-boats, and the stock belonging to them; marketplaces, and other such public buildings; race-grounds, public walks, and so forth. Offences of this description will be apt to coincide with offences against agatho-poieutic trust as above, or with offences against ethno-plutistic trust hereafter mentioned, according as the benefit in question is considered in itself, or as resulting from the application of such or such a branch or portion of the public wealth.

VII. Offences against Population. 1. Emigration. 2. Suicide. 3. Procurement of impotence or barrenness. 4. Abortion. 5. Unprolific coition. 6. Celibacy.

VIII. Offences against the National Wealth. 1. Idleness. 2. Breach of the regulations made in the view of preventing the application of industry to purposes less profitable, in prejudice of purposes more profitable. 3. Offences against ethno-plutistic trust (λαος, the nation at large; πλουτιζω, to enrich.)

IX. Offences against the Sovereignty. 1. Offences against sovereign trust: corresponding to those against judicial, prophylactic, military, and fiscal trusts. Offensive rebellion includes wrongful interception, wrongful divestment, usurpation, and wrongful investment of sovereign trust, with the offences accessary thereto. Where the trust is in a single person, wrongful interception, wrongful divestment, usurpation, and wrongful investment, cannot any of them be committed without rebellion; abdication and detrectation can never be deemed wrongful; breach and abuse of sovereign trust can scarcely be punished: no more can bribe-taking; wrongful imposition of it is scarce practicable. When the sovereignty is shared among a number, wrongful interception, wrongful divestment, usurpation, and wrongful investment, may be committed without rebellion: none of the offences against this trust are impracticable: nor is there any of them but might be punished. Defensive rebellion is disturbance of this trust. Political tumults, political defamation, and political vilification, are offences accessory to such disturbance.

Sovereign power (which, upon the principle of utility, can never be other than fiduciary) is exercised either by rule or without rule: in the latter case it may be termed autocratic: in the former case it is divided into two branches, the legislative and the executive.a In either case, where the designation of the person by whom the power is to be possessed, depends not solely upon mere physical events, such as that of natural succession, but in any sort upon the will of another person, the latter possesses an investitive power, or right of investiture, with regard to the power in question: in like manner may any person also possess a divestitive power. The powers above enumerated, such as judicial power, military power, and so forth, may therefore be exercisable by a man, either directly, propriâ manu; or indirectly, manu alienâ.b Power to be exercised manu alienâ is investitive, which may or may not be accompanied by divestitive. Of soreign power, whether autocratic, legislative, or executive, the several public trusts above mentioned form so many subordinate branches. Any of these powers may be placed, either, 1. in an individual; or, 2. in a body politic: who may be either supreme or subordinate. Subordination on the part of a magistrate is established, 1. Where he is punishable: 2. Where he is made removable: 3. When his orders are made reversible: 4. When the good or evil, which he has it in his power to produce, on the part of the common subordinate, is less in value than the good or evil which the superior has it in his power to produce on the part of the same subordinate.

X. Offences against Religion. 1. Offences tending to weaken the force of the religious sanction: including blasphemy and profaneness. 2. Offences tending to misapply the force of the religious sanction: including false prophecies, and other pretended revelations; also heresy, where the doctrine broached is pernicious to the temporal interests of the community. 3. Offences against religious trust, where any such is thought fit to be established.

XI. Offences against the National Interest in general. 1. Immoral publications. 2. Offences against the trust of an ambassador; or, as it might be termed, presbeutic trust. 3. Offences against the trust of a privy counsellor; or, as it might be termed, symbouleutic trust. 4. In pure or mixed monarchies, prodigality on the part of persons who are about the person of the sovereign, though without being invested with any specific trust. 5. Excessive gaming on the part of the same persons. 6. Taking presents from rival powers without leave.

a A number of different branches of public trust, none of which have yet been provided with appellatives, have here been brought to view: which, then, were best? to coin new names for them out of the Greek; or, instead of a word, to make use of a whole sentence? In English, and in French, there is no other alternative; no more than in any of the other southern languages. It rests with the reader to determine.

a See ch. xix. [Limits] § 3.

b In the former case, the power might be termed in one word, autochirous: in the latter, heterochirous: (αυτος, a man’s own; χειϱ, a hand; ἐιεϱος, another’s.)

LV.

We come now to civil conditions: these, it may well be imagined, may be infinitely various; as various as the acts which a man may be either commanded or allowed, whether for his own benefit, or that of others, to abstain from or to perform. As many different denominations as there are of persons distinguished with a view to such commands and allowances (those denominations only excepted which relate to the conditions above spoken of under the name of domestic ones) so many civil conditions one might enumerate. Means, however, more or less explicit, may be found out of circumscribing their infinitude.

What the materials are, if so they may be called, of which conditions, or any other kind of legal possession, can be made up, we have already seen: beneficial powers, fiduciary powers, beneficial rights, fiduciary rights, relative duties, absolute duties. But as many conditions as import a power or right of the fiduciary kind, as possessed by the person whose condition is in question, belong to the head of trusts. The catalogue of the offences to which these conditions are exposed, coincides therefore exactly with the catalogue of offences against trust: under which head they have been considered in a general point of view under the head of offences against trust: and such of them as are of a domestic nature, in a more particular manner in the character of offences against the several domestic conditions. Conditions constituted by such duties of the relative kind, as have for their counterparts trusts constituted by fiduciary powers, as well as rights on the side of the correlative party, and those of a private nature, have also been already discussed under the appellation of domestic conditions. The same observation may be applied to the conditions constituted by such powers of the beneficial kind over persons as are of a private nature: as also to the subordinate correlative conditions constituted by the duties corresponding to those rights and powers. As to absolute duties, there is no instance of a condition thus created, of which the institution is upon the principle of utility to be justified; unless the several religious conditions of the monastic kind should be allowed of as examples. There remain, as the only materials out of which the conditions which yet remain to be considered can be composed, conditions constituted by beneficial powers over things; conditions constituted by beneficial rights to things (that is, rights to powers over things), or by rights to those rights, and so on; conditions constituted by rights to services; and conditions constituted by the duties corresponding to those respective rights. Out of these are to be taken those of which the materials are the ingredients of the several modifications of property, the several conditions of proprietorship. These are the conditions, if such for a moment they may be styled, which having but here and there any specific names, are not commonly considered on the footing of conditions: so that the acts which, if such conditions were recognised, might be considered as offences against those conditions, are not wont to be considered in any other light than that of offences against property.

Now the case is, as hath been already intimated,* that of these civil conditions, those which are wont to be considered under that name, are not distinguished by any uniform and explicit line from those of which the materials are wont to be carried to the head of property: a set of rights shall, in one instance, be considered as constituting an article of property rather than a condition; while, in another instance, a set of rights of the same stamp is considered as constituting rather a condition than an article of property. This will probably be found to be the case in all languages: and the usage is different, again, in one language from what it is in another. From these causes it seems to be impracticable to subject the class of civil conditions to any exhaustive method: so that for making a complete collection of them there seems to be no other expedient than that of searching the language through for them, and taking them as they come. To exemplify this observation, it may be of use to lay open the structure, as it were, of two or three of the principal sorts or classes of conditions, comparing them with two or three articles of property which appear to be nearly of the same complexion: by this means the nature and generation, if one may so call it, of both these classes of ideal objects, may be the more clearly understood.

The several sorts of civil conditions that are not fiduciary, may all, or at least the greater part of them, be comprehended under the head of rank, or that of profession; the latter word being taken in its most extensive sense. so as to include not only what are called the liberal professions, but those also which are exercised by the several sorts of traders, artists, manufacturers, and other persons of whatsoever station, who are in the way of making a profit by their labour. Among ranks, then, as well as professions, let us, for the sake of perspicuity, take for examples such articles as stand the clearest from any mixture of either fiduciary or beneficial power. The rank of knighthood is constituted, how? by prohibiting all other persons from performing certain acts, the performance of which is the symbol of the order, at the same time that the knight in question, and his companions, are permitted: for instance, to wear a ribbon of a certain colour in a certain manner; to call himself by a certain title; to use an armorial seal with a certain mark on it. By laying all persons but the knight under this prohibition, the law subjects them to a set of duties: and since from the discharge of these duties a benefit results to the person in whose favour they are created, to wit, the benefit of enjoying such a share of extraordinary reputation and respect as men are wont to yield to a person thus distinguished, to discharge them is to render him a service: and the duty being a duty of the negative class, a duty consisting in the performance of certain acts of the negative kind, the service is what may be called a service of forbearance. It appears, then, that to generate this condition there must be two sorts of services: that which is the immediate cause of it, a service of the negative kind, to be rendered by the community at large: that which is the cause again of this service, a service of the positive kind, to be rendered by the law.

The condition of a professional man stands upon a narrower footing. To constitute this condition, there needs nothing more than a permission given him on the part of the legislator to perform those acts, in the performance of which consists the exercise of his profession: to give or sell his advice or assistance in matters of law or physic: to give or sell his services as employed in the executing or overseeing of a manufacture or piece of work of such or such a kind: to sell a commodity of such or such a sort. Here, then, we see there is but one sort of service requisite; a service which may be merely of the negative kind, to be rendered by the law: the service of permitting him to exercise his profession: a service which, if there has been no prohibition laid on before, is rendered by simply forbearing to prohibit him.

Now the ideal objects, which in the cases above specified are said to be conferred upon a man by the services that are respectively in question, are in both cases not articles of property, but conditions. By such a behaviour on the part of the law, as shall be the reverse of that whereby they were respectively produced, a man may be made to forfeit them: and what he is then said to forfeit is in neither case his property; but in one case, his rank or dignity; in the other case, his trade or his profession; and in both cases, his condition.

Other cases there are again, in which the law, by a process of the same sort with that by which it constituted the former of the two above-mentioned conditions, confers on him an ideal object, which the laws of language have placed under the head of property. The law permits a man to sell books; that is, all sorts of books in general. Thus far, all that it has done is to invest him with a condition: and this condition he would equally possess, although every body else in the world were to sell books likewise. Let the law now take an active part in his favour, and prohibit all other persons from selling books of a certain description, he remaining at liberty to sell them as before. It thereby confers on him a sort of exclusive privilege or monopoly, which is called a copy-right. But by investing him with this right, it is not said to invest him with any new sort of condition; and what it invests him with is spoken of as an article of property; to wit, of that sort of property which is termed incorporeal:* and so on in the case of an engraving, a mechanical engine, a medicine; or, in short, of a saleable article of any other sort. Yet when it gave him an exclusive right of wearing a particular sort of ribbon, the object which it was then considered as conferring on him was not an article of property, but a condition.

By forbearing to subject you to certain disadvantages, to which it subjects an alien, the law confers on you the condition of a natural-born subject; by subjecting him to them, it imposes on him the condition of an alien: by conferring on you certain privileges or rights, which it denies to a roturier, the law confers on you the condition of a gentilhomme; by forbearing to confer on him those privileges, it imposes on him the condition of a roturier. The rights, out of which the two advantageous conditions here exemplified are both of them, as it were, composed, have for their counterpart a sort of services of forbearance, rendered, as we have seen, not by private individuals, but by the law itself. As to the duties which it creates in rendering you these services, they are to be considered as duties imposed by the legislator on the ministers of justice.

It may be observed, with regard to the greater part of the conditions here comprised under the general appellation of civil, that the relations corresponding to those by which they are respectively constituted, are not provided with appellatives. The relation which has a name, is that which is borne by the party favoured to the party bound: that which is borne by the party bound to the party favoured, has not any. This is a circumstance that may help to distinguish them from those conditions which we have termed domestic. In the domestic conditions, if on the one side the party to whom the power is given is called a master; on the other side, the party over whom that power is given, the party who is the object of that power, is termed a servant. In the civil conditions, this is not the case. On the one side, a man, in virtue of certain services of forbearance, which the rest of the community are bound to render him, is denominated a knight of such or such an order: but on the other side, these services do not bestow any particular denomination on the persons from whom such services are due. Another man, in virtue of the legislator’s rendering that sort of negative service which consists in the not prohibiting him from exercising a trade, invests him at his option with the condition of a trader: it accordingly denominates him a farmer, a baker, a weaver, and so on: but the ministers of the law do not, in virtue of their rendering the man this sort of negative service, acquire for themselves any particular name. Suppose even that the trade you have the right of exercising happens to be the object of a monopoly, and that the legislator, besides rendering you himself those services which you derive from the permission he bestows on you, obliges other persons to render you those farther services which you receive from their forbearing to follow the same trade; yet neither do they, in virtue of their being thus bound, acquire any particular name.

After what has been said of the nature of the several sorts of civil conditions that have names, the offences to which they are exposed may, without much difficulty, be imagined. Taken by itself, every condition which is thus constituted by a permission granted to the possessor, is of course of a beneficial nature: it is, therefore, exposed to all those offences to which the possession of a benefit is exposed. But either on account of a man’s being obliged to persevere when once engaged in it, or on account of such other obligations as may stand annexed to the possession of it, or on account of the comparative degree of disrepute which may stand annexed to it by the moral sanction, it may by accident be a burthen: it is on this account liable to stand exposed to the offences to which, as hath been seen, every thing that partakes of the nature of a burthen stands exposed. As to any offences which may concern the exercise of the functions belonging to it, if it happens to have any duties annexed to it, such as those, for instance, which are constituted by regulations touching the exercise of a trade, it will stand exposed to so many breaches of duty; and lastly, whatsoever are the functions belonging to it, it will stand exposed at any rate to disturbance.

In the forming, however, of the catalogue of these offences, exactness is of the less consequence, inasmuch as an act, if it should happen not to be comprised in this catalogue, and yet is in any respect of a pernicious nature, will be sure to be found in some other division of the system of offences: if a baker sells bad bread for the price of good, it is a kind of fraud upon the buyer, and perhaps an injury of the simple corporal kind done to the health of an individual, or a neighbourhood: if a clothier sells bad cloth for good at home, it is a fraud; if to foreigners abroad, it may, over and above the fraud put upon the foreign purchaser, have pernicious effects, perhaps, in the prosperity of the trade at home, and become thereby an offence against the national wealth. So again with regard to disturbance: if a man be disturbed in the exercise of his trade, the offence will probably be a wrongful interception of the profit he might be presumed to have been in a way to make by it: and were it even to appear in any case that a man exercised a trade, or what is less unlikely, a liberal profession, without having profit in his view, the offence will still be reducible to the head of simple injurious restrainment or simple injurious compulsion.

* Supra, par. 17.

See ch. vii. [Actions] par. 8.

* The reason, probably, why an object of the sort here in question is referred to the head of property, is, that the chief value of it arises from its being capable of being made a source of property in the more ordinary acceptations of the word; that is, of money, consumable commodities, and so forth.

The conditions themselves having nothing that corresponds to them in England, it was necessary to make use of foreign terms.

§ 4.

Advantages of the present Method.

LVI.

A few words, for the purpose of giving a general view of the method of division here pursued, and of the advantages which it possesses, may have their use. The whole system of offences, we may observe, is branched out into five classes. In the three first, the subordinate divisions are taken from the same source; viz. from the consideration of the different points, in respect whereof the interest of an individual is exposed to suffer. By this uniformity, a considerable degree of light seems to be thrown upon the whole system; particularly upon the offences that come under the third class: objects which have never hitherto been brought into any sort of order. With regard to the fourth class, in settling the precedence between its several subordinate divisions, it seemed most natural and satisfactory to place those first, the connection whereof with the welfare of individuals seemed most obvious and immediate. The mischievous effects of those offences, which tend in an immediate way to deprive individuals of the protection provided for them against the attacks of one another, and of those which tend to bring down upon them the attacks of foreign assailants, seem alike obvious and palpable. The mischievous quality of such as tend to weaken the force that is provided to combat those attacks, but particularly the latter, though evident enough, is one link farther off in the chain of causes and effects. The ill effects of such offences as are of disservice only by diminishing the particular fund from whence that force is to be extracted, such effects, I say, though indisputable, are still more distant and out of sight. The same thing may be observed with regard to such as are mischievous only by affecting the universal fund. Offences against the sovereignty in general would not be mischievous, if offences of the several descriptions preceding were not mischievous. Nor in a temporal view are offences against religion mischievous, except in as far as, by removing, or weakening, or misapplying one of the three great incentives to virtue, and checks to vice, they tend to open the door to the several mischiefs, which it is the nature of all those other offences to produce. As to the fifth class, this, as hath already been observed, exhibits, at first view, an irregularity, which, however, seems to be unavoidable. But this irregularity is presently corrected, when the analysis returns back, as it does after a step or two, into the path from which the tyranny of language had forced it a while to deviate.

It was necessary that it should have two purposes in view: the one, to exhibit, upon a scale more or less minute, a systematical enumeration of the several possible modifications of delinquency, denominated or undenominated; the other, to find places in the list for such names of offences as were in current use: for the first purpose, nature was to set the law; for the other, custom. Had the nature of the things themselves been the only guide, every such difference in the manner of perpetration, and such only, should have served as a ground for a different denomination, as was attended with a difference in point of effect. This, however, of itself would never have been sufficient; for as on one hand the new language, which it would have been necessary to invent, would have been uncouth, and in a manner unintelligible; so on the other hand the names, which were before in current use, and which, in spite of all systems, good or bad, must have remained in current use, would have continued unexplained. To have adhered exclusively to the current language, would have been as bad on the other side; for in that case the catalogue of offences, when compared to that of the mischiefs that are capable of being produced, would have been altogether broken and uncomplete.

To reconcile these two objects, in as far as they seemed to be reconcileable, the following course has therefore been pursued. The logical whole, constituted by the sum total of possible offences, has been bisected in as many different directions as were necessary, and the process in each direction carried down to that stage at which the particular ideas thus divided found names in current use in readiness to receive them. At that period I have stopped; leaving any minuter distinctions to be enumerated in the body of the work, as so many species of the genus characterized by such or such a name. If in the course of any such process I came to a mode of conduct which, though it required to be taken notice of, and perhaps had actually been taken notice of, under all laws, in the character of an offence, had hitherto been expressed under different laws, by different circumlocutions, without ever having received any name capable of occupying the place of a substantive in a sentence, I have frequently ventured so far as to fabricate a new name for it; such an one as the idiom of the language, and the acquaintance I happened to have with it, would admit of. These names consisting in most instances, and that unavoidably, of two or three words brought together, in a language too which admits not, like the German and the Greek, of their being melted into one, can never be upon a par, in point of commodiousness, with those univocal appellatives which make part of the established stock.

In the choice of names in current use, care has been taken to avoid all such as have been grounded on local distinctions; ill founded, perhaps, in the nation in which they received their birth, and at any rate not applicable to the circumstances of other countries.

The analysis, as far as it goes, is as applicable to the legal concerns of one country as of another: and where, if it had descended into further details, it would have ceased to be so, there I have taken care always to stop: and thence it is that it has come to be so much more particular in the class of offences against individuals, than in any of the other classes. One, use, then of this arrangement, if it should be found to have been properly conducted, will be its serving to point out in what it is that the legal interests of all countries agree, and in what it is that they are liable to differ: how far a rule that is proper for one, will serve, and how far it will not serve, for another. That the legal interests of different ages and countries have nothing in common, and that they have every thing, are suppositions equally distant from the truth.*

* The above hints are offered to the consideration of the few who may be disposed to bend their minds to disquisitions of this uninviting nature: to sift the matter to the bottom, and engage in the details of illustration, would require more room than could in this place be consistently allowed.

LVII.

A natural method, such as it hath been here attempted to exhibit, seems to possess four capital advantages; not to mention others of inferior note. In the first place, it affords such assistance to the apprehension and to the memory, as those faculties would in vain look for in any technical arrangement. That arrangement of the objects of any science may, it should seem, be termed a natural one, which takes such properties to characterize them by, as men in general are, by the common constitution of man’s nature, independently of any accidental impressions they may have received from the influence of any local or other particular causes, accustomed to attend to: such, in a word, as naturally, that is, readily, and at first sight, engage, and firmly fix, the attention of any one to whom they have once been pointed out. Now by what other means should an object engage or fix a man’s attention, unless by interesting him? and what circumstance belonging to any action can be more interesting, or rather, what other circumstance belonging to it can be at all interesting to him, than that of the influence it promises to have on his own happiness, and the happiness of those who are about him? By what other mark, then, should he more easily find the place which any offence occapies in the system, or by what other clue should he more readily recall it?

See Fragment on Government, Pref. p. xlv. edit. 1776. — Pref. p. xlvii. edit. 1823.

LVIII.

In the next place, it not only gives at first glance a general intimation of the nature of each division of offences, in as far as that nature is determined by some one characteristic property, but it gives room for a number of general propositions to be formed concerning the particular offences that come under that division, in such manner as to exhibit a variety of other properties that may belong to them in common. It gives room, therefore, for the framing of a number of propositions concerning them, which, though very general, because predicated of a great number of articles, shall be as generally true.*

* Imagine what a condition a science must be in, when as yet there shall be no such thing as forming any extensive proposition relative to it, that shall be at the same time a true one: where, if the proposition shall be true of some of the particulars contained under it, it shall be false with regard to others. What a state would botany, for example, be in, if the classes were so contrived, that no common characters could be found for them? Yet in this state, and no better, seems every system of penal law to be, authoritative or unauthoritative, that has ever yet appeared. Try if it be otherwise, for instance, with the delicta privata et publica, and with the publica ordinaria, and publica extra-ordinaria of the Roman law.a All this for want of method: and hence the necessity of endeavouring to strike out a new one.

Nor is this want of method to be wondered at. A science so new as that of penal legislation, could hardly have been in any better state. Till objects are distinguished, they cannot be arranged. It is thus that truth and order go on hand in hand: it is only in proportion as the former is discovered, that the latter can be improved. Before a certain order is established, truth can be but imperfectly announced: but until a certain proportion of truth has been developed and brought to light, that order cannot be established. The discovery of truth leads to the establishment of order and the establishment of order fixes and propagates the discovery of truth.

a See Heinecc Elem. p. vii. § 79, 80.

LIX.

In the third place, it is so contrived, that the very place which any offence is made to occupy, suggests the reason of its being put there. It serves to indicate not only that such and such acts are made offences, but why they ought to be. By this means, while it addresses itself to the understanding, it recommends itself, in some measure, to the affections. By the intimation it gives of the nature and tendency of each obnoxious act, it accounts for, and in some measure vindicates, the treatment which it may be thought proper to bestow upon that act in the way of punishment. To the subject, then, it is a kind of perpetual apology; showing the necessity of every defalcation, which, for the security and prosperity of each individual, it is requisite to make from the liberty of every other. To the legislator it is a kind of perpetual lesson; serving at once as a corrective to his prejudices, and as a check upon his passions. Is there a mischief which has escaped him? in a natural arrangement, if at the same time an exhaustive one, he cannot fail to find it. Is he tempted ever to force innocence within the pale of guilt? the difficulty of finding a place for it advertises him of his error. Such are the uses of a map of universal delinquency, laid down upon the principle of utility: such the advantages, which the legislator as well as the subject may derive from it. Abide by it, and every thing that is arbitrary in legislation, vanishes. An evil-intentioned or prejudiced legislator durst not look it in the face. He would proscribe it, and with reason: it would be a satire on his laws.

LX.

In the fourth place, a natural arrangement, governed as it is by a principle which is recognised by all men, will serve alike for the jurisprudence of all nations. In a system of proposed law, framed in pursuance of such a method, the language will serve as a glossary by which all systems of positive law might be explained, while the matter serves as a standard by which they might be tried. Thus illustrated, the practice of every nation might be a lesson to every other: and mankind might carry on a mutual interchange of experiences and improvements, as easily in this as in every other walk of science. If any one of these objects should in any degree be attained, the labour of this analysis, severe as it has been, will not have been thrown away.

§ 5.

Characters of the Five Classes.

LXI.

It has been mentioned as an advantage possessed by this method, and not possessed by any other, that the objects comprised under it are cast into groups, to which a variety of propositions may be applied in common. A collection of these propositions, as applied to the several classes, may be considered as exhibiting the distinctive characters of each class. So many of these propositions as can be applied to the offences belonging to any given class, so many properties are they found to have in common: so many of these common properties as may respectively be attributed to them, so many properties may be set down to serve as characters of the class. A collection of these characters it may here be proper to exhibit. The more of them we can bring together, the more clearly and fully will the nature of the several classes, and of the offences they are composed of, be understood.

LXII.

Characters of Class 1; composed of private Offences, or Offences against assignable Individuals.

1. When arrived at their last stage (the stage of consummation) they produce, all of them, a primary mischief, as well as a secondary.

2. The individuals whom they affect in the first instance, are constantly assignable. This extends to all; to attempts and preparations, as well as to such as have arrived at the stage of consummation.*

3. Consequently they admit of compensation: in which they differ from the offences of all the other classes, as such.

4. They admit also of retaliation: in which also they differ from the offences of all the other classes.

5. There is always some person who has a natural and peculiar interest to prosecute them. In this they differ from self-regarding offences: also from semi-public and public ones; except in as far as the two latter may chance to involve a private mischief.

6. The mischief they produce is obvious: more so than that of semi-public offences: and still more so than that of self-regarding ones, or even public.

7. They are every where, and must ever be, obnoxious to the censure of the world: more so than semi-public offences as such; and still more so than public ones.

8. They are more constantly obnoxious to the censure of the world than self-regarding offences: and would be so universally, were it not for the influence of the two false principles; the principle of asceticism, and the principle of antipathy.§

9. They are less apt than semi-public and public offences to require different descriptions in different states and countries: in which respect they are much upon a par with self-regarding ones.

10. By certain circumstances of aggravation, they are liable to be transformed into semi-public offences: and by certain others, into public.

11. There can be no ground for punishing them, until they can be proved to have occasioned, or to be about to occasion, some particular mischief to some particular individual. In this they differ from semi-public offences, and from public.

12. In slight cases, compensation given to the individual affected by them, may be a sufficient ground for remitting punishment: for if the primary mischief has not been sufficient to produce any alarm, the whole of the mischief may be cured by compensation. In this also they differ from semi-public offences, and from public ones.

Ch. vii. [Actions] par. 14.

See ch. xii. [Consequences] par. 3.

That is, by their primary mischief.

* See supra, and B. I. tit. [Accessory Offences.]

See ch. xv. [Cases unmeet] par. 2, note.

[Admit.] I mean, that retaliation is capable of being applied in the cases in question; not that it ought always to be employed. Nor is it capable of being applied in every individual instance of each offence, but only in some individual instance of each species of offence.

See ch. xvii. [Properties] par. 8.

§ Ch. ii. [Principles Adverse.]

[Different Descriptions.] It seems to be from their possessing these three last properties, that the custom has arisen of speaking of them, or at least of many of them, under the name of offences against the law of nature: a vague expression, and productive of a multitude of inconveniencies. See ch. ii. [Principles Adverse.]

LXIII.

Characters of Class 2; composed of semi-public Offences, or Offences affecting a whole subordinate Class of persons.

1. As such, they produce no primary mischief. The mischief they produce consists of one or other or both branches of the secondary mischief produced by offences against individuals, without the primary.

2. In as far as they are to be considered as belonging to this class, the persons whom they affect in the first instance are not individually assignable.

3. They are apt, however, to involve or terminate in some primary mischief of the first order, which when they do, they advance into the first class, and become private offences.

4. They admit not, as such, of compensation.

5. Nor of retaliation.

6. As such, there is never any one particular individual whose exclusive interest it is to prosecute them: a circle of persons may, however, always be marked out, within which may be found some who have a greater interest to prosecute, than any who are out of that circle have.

7. The mischief they produce is in general pretty obvious; not so much so indeed as that of private offences, but more so, upon the whole, than that of self-regarding and public ones.

8. They are rather less obnoxious to the censure of the world than private offences; but they are more so than public ones: they would also be more so than self-regarding ones, were it not for the influence of the two false principles, the principle of sympathy and antipathy, and that of asceticism.

9. They are more apt than private and self-regarding offences to require different descriptions in different countries: but less so than public ones.

10. There may be ground for punishing them before they have been proved to have occasioned, or to be about to occasion, mischief to any particular individual; which is not the case with private offences.

11. In no cases can satisfaction given to any particular individual affected by them, be a sufficient ground for remitting punishment: for by such satisfaction it is but a part of the mischief of them that is cured. In this they differ from private offences; but agree with public.

LXIV.

Characters of Class 3; consisting of self-regarding Offences: Offences against one’s self.

1. In individual instances it will often be questionable, whether they are productive of any primary* mischief at all: secondary, they produce none.

2. They affect not any other individuals, assignable or not assignable, except in as far as they affect the offender himself; unless by possibility in particular cases; and in a very slight and distant manner the whole state.

3. They admit not, therefore, of compensation.

4. Nor of retaliation.

5. No person has naturally any peculiar interest to prosecute them; except in as far as in virtue of some connection he may have with the offender, either in point of sympathy or of interest, a mischief of the derivative kind may happen to devolve upon him.§

6. The mischief they produce is apt to be unobvious, and in general more questionable than that of any of the other classes.*

7. They are, however, apt, many of them, to be more obnoxious to the censure of the world than public offences; owing to the influence of the two false principles; the principle of asceticism, and the principle of antipathy. Some of them more even than semi-public, or even than private offences.

8. They are less apt than offences of any other class to require different descriptions in different states and countries.

9. Among the inducements to punish them, antipathy against the offender is apt to have a greater share than sympathy for the public.

10. The best plea for punishing them is founded on a faint probability there may be of their being productive of a mischief, which, if real, will place them in the class of public ones: chiefly in those divisions of it which are composed of offences against population, and offences against the national wealth.

* Because the person, who in general is most likely to be sensible to the mischief (if there is any) of any offence, viz. the person whom it most affects, shows by his conduct that he is not sensible of it.

See ch. vi. [Sensibility] par. 25, 26.

See ch. xii. [Consequences] par. 4.

§ Among the offences, however, which belong to this class, there are some which, in certain countries, it is not uncommon for persons to be disposed to prosecute without any artificial inducement, and merely on account of an antipathy, which such acts are apt to excite. See ch. ii. [Principles adverse] par. 11.

Accordingly, most of them are apt to be ranked among offences against the law of nature. Vide supra, Characters of the 1st class, par. 62, note.

[Inducements.] I mean the considerations, right or wrong, which induce or dispose the legislator to treat them on the footing of offences.

LXV.

Characters of Class 4; consisting of public Offences, or Offences against the State in general.

1. As such, they produce not any primary mischief; and the secondary mischief they produce, which consists frequently of danger without alarm, though great in value, is in specie very indeterminate.

2. The individuals whom they affect, in the first instance, are constantly unassignable; except in as far as by accident they happen to involve or terminate in such or such offences against individuals.

3. Consequently they admit not of compensation.

4. Nor of retaliation.

5. Nor is there any person who has naturally any particular interest to prosecute them; except in as far as they appear to affect the power, or in any other manner the private interest, of some person in authority.

6. The mischief they produce, as such, is comparatively unobvious; much more so than that of private offences, and more so likewise than that of semi-public ones.

7. They are, as such, much less obnoxious to the censure of the world, than private offences; less even than semi-public, or even than self-regarding offences; unless in particular cases, through sympathy to certain persons in authority, whose private interests they may appear to affect.

8. They are more apt than any of the other classes to admit of different descriptions, in different states and countries.

9. They are constituted, in many cases, by some circumstances of aggravation superadded to a private offence: and therefore, in these cases, involve the mischief, and exhibit the other characters belonging to both classes. They are, however, even in such cases, properly enough ranked in the 4th class, inasmuch as the mischief they produce in virtue of the properties which aggregate them to that class, eclipses and swallows up that which they produce in virtue of those properties which aggregate them to the 1st.

10. There may be sufficient ground for punishing them, without their being proved to have occasioned, or to be about to occasion, any particular mischief to any particular individual. In this they differ from private offences, but agree with semi-public ones. Here, as in semi-public offences, the extent of the mischief makes up for the uncertainty of it.

11. In no case can satisfaction, given to any particular individual affected by them, be a sufficient ground for remitting punishment. In this they differ from private offences; but agree with semi-public.

LXVI.

Characters of Class 5, or Appendix: composed of multiform or anomalous Offences; and containing Offences by falsehood, and Offences concerning trust.

1. Taken collectively, in the parcels marked out by their popular appellations, they are incapable of being aggregated to any systematical method of distribution, grounded upon the mischief of the offence.

2. They may, however, be thrown into sub-divisions, which may be aggregated to such a method of distribution.

3. These sub-divisions will naturally and readily rank under the divisions of the several preceding classes of this system.

4. Each of the two great divisions of this class spreads itself in that manner over all the preceding classes.

5. In some acts of this class, the distinguishing circumstance which constitutes the essential character of the offence, will in some instances enter necessarily, in the character of a criminative circumstance, into the constitution of the offence; insomuch that, without the intervention of this circumstance, no offence at all, of that denomination, can be committed.* In other instances, the offence may subsist without it; and where it interferes, it comes in as an accidental independent circumstance, capable of constituting a ground of aggravation.

* Instance; offences by falsehood, in the case of defraudment.

Instance; offences by falsehood, in the case of simple corporal injuries, and other offences against person.

Chapter XIX.

§ 1.

Limits between Private Ethics and the Art of Legislation.

I.

So much for the division of offences in general. Now an offence is an act prohibited, or (what comes to the same thing) an act of which the contrary is commanded by the law: and what is it that the law can be employed in doing, besides prohibiting and commanding? It should seem, then, according to this view of the matter, that were we to have settled what may be proper to be done with relation to offences, we should thereby have settled every thing that may be proper to be done in the way of law. Yet that branch which concerns the method of dealing with offences, and which is termed sometimes the criminal, sometimes the penal, branch, is universally understood to be but one out of two branches which compose the whole subject of the art of legislation; that which is termed the civil being the other. Between these two branches, then, it is evident enough there cannot but be a very intimate connection; so intimate is it indeed, that the limits between them are by no means easy to mark out. The case is the same in some degree between the whole business of legislation (civil and penal branches taken together) and that of private ethics. Of these several limits, however, it will be in a manner necessary to exhibit some idea: lest, on the one hand, we should seem to leave any part of the subject that does belong to us untouched, or, on the other hand, to deviate on any side into a track which does not belong to us.

In the course of this inquiry, that part of it I mean which concerns the limits between the civil and the penal branch of law, it will be necessary to settle a number of points, of which the connection with the main question might not at first sight be suspected. To ascertain what sort of a thing a law is; what the parts are, that are to be found in it; what it must contain in order to be complete; what the connection is between that part of a body of laws which belongs to the subject of procedure, and the rest of the law at large:— All these, it will be seen, are so many problems, which must be solved before any satisfactory answer can be given to the main question above mentioned.

Nor is this their only use: for it is evident enough, that the notion of a complete law must first be fixed, before the legislator can in any case know what it is he has to do, or when his work is done.

And the constitutional branch, what is become of it? Such is the question which many a reader will be apt to put. An answer that might be given is, that the matter of it might without much violence be distributed under the two other heads. But, as far as recollection serves, that branch, notwithstanding its importance, and its capacity of being lodged separately from the other matter, had at that time scarcely presented itself to my view in the character of a distinct one: the thread of my inquiries had not as yet reached it. But in the concluding note of this same chapter, in paragraphs 22 to the end, the omission may be seen in some measure supplied.

II.

Ethics at large may be defined, the art of directing men’s actions to the production of the greatest possible quantity of happiness, on the part of those whose interest is in view.

III.

What, then, are the actions which it can be in a man’s power to direct? They must be either his own actions, or those of other agents. Ethics, in as far as it is the art of directing a man’s own actions, may be styled the art of self-government, or private ethics.

IV.

What other agents, then, are there, which, at the same time that they are under the influence of man’s direction, are susceptible of happiness? They are of two sorts: 1. Other human beings, who are styled persons. 2. Other animals, which on account of their interests having been neglected by the insensibility of the ancient jurists, stand degraded into the class of things.§ As to other human beings, the art of directing their actions to the above end is what we mean, or at least the only thing which, upon the principle of utility, we ought to mean, by the art of government: which, in as far as the measures it displays itself in are of a permanent nature, is generally distinguished by the name of legislation: as it is by that of administration, when they are of a temporary nature, determined by the occurrences of the day.

§ Under the Gentoo and Mahometan religions, the interests of the rest of the animal creation seem to have met with some attention. Why have they not, universally, with as much as those of human creatures, allowance made for the difference in point of sensibility? Because the laws that are, have been the work of mutual fear; a sentiment which the less rational animals have not had the same means as man has of turning to account. Why ought they not? No reason can be given. If the being eaten were all, there is very good reason why we should be suffered to eat such of them as we like to eat: we are the better for it, and they are never the worse. They have none of those long-protracted anticipations of future misery which we have. The death they suffer in our hands commonly is, and always may be, a speedier, and by that means a less painful one, than that which would await them in the inevitable course of nature. If the being killed were all, there is very good reason why we should be suffered to kill such as molest us: we should be the worse for their living, and they are never the worse of being dead. But is there any reason why we should be suffered to torment them? Not any that I can see. Are there any why we should not be suffered to torment them? Yes, several. See B. I. tit. [Cruelty to Animals.] The day has been, I grieve to say in many places it is not yet past, in which the greater part of the species, under the denomination of slaves, have been treated by the law exactly upon the same footing, as, in England for example, the inferior races of animals are still. The day may come, when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor.a It may come one day to be recognised, that the number of the legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate? What else is it that should trace the insuperable line? Is it the faculty of reason, or, perhaps, the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day, or a week, or even a month old. But suppose the case were otherwise, what would it avail? the question is not, Can they reason? nor, Can they talk? but, Can they suffer?

a See Lewis XIVth’s Code Noir.

V.

Now human creatures, considered with respect to the maturity of their faculties, are either in an adult, or in a non-adult state. The art of government, in as far as it concerns the direction of the actions of persons in a non-adult state, may be termed the art of education. In as far as this business is entrusted with those who, in virtue of some private relationship, are in the main the best disposed to take upon them, and the best able to discharge, this office, it may be termed the art of private education: in as far as it is exercised by those whose province it is to superintend the conduct of the whole community, it may be termed the art of public education.

VI.

As to ethics in general, a man’s happiness will depend, in the first place, upon such parts of his behaviour as none but himself are interested in; in the next place, upon such parts of it as may affect the happiness of those about him. In as far as his happiness depends upon the first-mentioned part of his behaviour, it is said to depend upon his duty to himself. Ethics, then, in as far as it is the art of directing a man’s actions in this respect, may be termed the art of discharging one’s duty to one’s self: and the quality which a man manifests by the discharge of this branch of duty (if duty it is to be called), is that of prudence. In as far as his happiness, and that of any other person or persons whose interests are considered, depends upon such parts of his behaviour as may affect the interests of those about him, it may be said to depend upon his duty to others; or, to use a phrase now somewhat antiquated, his duty to his neighbour. Ethics, then, in as far as it is the art of directing a man’s actions in this respect, may be termed the art of discharging one’s duty to one’s neighbour. Now the happiness of one’s neighbour may be consulted in two ways: 1. In a negative way, by forbearing to diminish it. 2. In a positive way, by studying to increase it. A man’s duty to his neighbour is accordingly partly negative and partly positive: to discharge the negative branch of it, is probity: to discharge the positive branch, beneficence.

VII.

It may here be asked, how it is that upon the principle of private ethics, legislation and religion out of the question, a man’s happiness depends upon such parts of his conduct as affect, immediately at least, the happiness of no one but himself: this is as much as to ask, What motives (independent of such as legislation and religion may chance to furnish) can one man have to consult the happiness of another? by what motives, or (which comes to the same thing) by what obligations, can he be bound to obey the dictates of probity and beneficence? In answer to this, it cannot but be admitted, that the only interests which a man at all times and upon all occasions is sure to find adequate motives for consulting, are his own. Notwithstanding this, there are no occasions in which a man has not some motives for consulting the happiness of other men. In the first place, he has, on all occasions, the purely social motive of sympathy or benevolence: in the next place, he has, on most occasions, the semisocial motives of love of amity and love of reputation. The motive of sympathy will act upon him with more or less effect, according to the bias of his sensibility:* the two other motives, according to a variety of circumstances, principally according to the strength of his intellectual powers, the firmness and steadiness of his mind, the quantum of his moral sensibility, and the characters of the people he has to deal with.

* Ch. vi. [Sensibility] par. 3.

VIII.

Now private ethics has happiness for its end: and legislation can have no other. Private ethics concerns every member; that is, the happiness and the actions of every member of any community that can be proposed: and legislation can concern no more. Thus far, then, private ethics and the art of legislation go hand in hand. The end they have, or ought to have, in view, is of the same nature. The persons whose happiness they ought to have in view, as also the persons whose conduct they ought to be occupied in directing, are precisely the same. The very acts they ought to be conversant about, are even in a great measure the same. Where, then, lies the difference? In that the acts which they ought to be conversant about, though in a great measure, are not perfectly and throughout the same. There is no case in which a private man ought not to direct his own conduct to the production of his own happiness, and of that of his fellow-creatures: but there are cases in which the legislator ought not (in a direct way at least, and by means of punishment applied immediately to particular individual acts) to attempt to direct the conduct of the several other members of the community. Every act which promises to be beneficial upon the whole to the community (himself included), each individual ought to perform of himself: but it is not every such act that the legislator ought to compel him to perform. Every act which promises to be pernicious upon the whole to the community (himself included), each individual ought to abstain from of himself; but it is not every such act that the legislator ought to compel him to abstain from.

IX.

Where, then, is the line to be drawn? — We shall not have far to seek for it. The business is to give an idea of the cases in which ethics ought, and in which legislation ought not (in a direct manner at least) to interfere. If legislation interferes in a direct manner, it must be by punishment. Now the cases in which punishment, meaning the punishment of the political sanction, ought not to be inflicted, have been already stated. If, then, there be any of these cases in which, although legislation ought not, private ethics does or ought to interfere, these cases will serve to point out the limits between the two arts or branches of science. These cases, it may be remembered, are of four sorts: 1. Where punishment would be groundless. 2. Where it would be inefficacious. 3. Where it would be unprofitable. 4. Where it would be needless. Let us look over all these cases, and see whether in any of them there is room for the interference of private ethics, at the same time that there is none for the direct interference of legislation.

I say nothing in this place of reward: because it is only in a few extraordinary cases that it can be applied, and because even where it is applied, it may be doubted, perhaps, whether the application of it can, properly speaking, be termed an act of legislation. See infia, § 3.

Ch. xv. [Cases unmeet.]

X.

1. First, then, as to the cases where punishment would be groundless. In these cases it is evident, that the restrictive interference of ethics would be groundless too. It is because, upon the whole, there is no evil in the act, that legislation ought not to endeavour to prevent it. No more, for the same reason, ought private ethics.

XI.

2. As to the cases in which punishment would be inefficacious. These, we may observe, may be divided into two sets or classes. The first do not depend at all upon the nature of the act: they turn only upon a defect in the timing of the punishment. The punishment in question is no more than what, for any thing that appears, ought to have been applied to the act in question. It ought, however, to have been applied at a different time; viz. not till after it had been properly denounced. These are the cases of an ex-post-facto law; of a judicial sentence beyond the law; and of a law not sufficiently promulgated. The acts here in question then might, for any thing that appears, come properly under the department even of coercive legislation: of course do they under that of private ethics. As to the other set of cases, in which punishment would be inefficacious; neither do these depend upon the nature of the act, that is, of the sort of act: they turn only upon some extraneous circumstances, with which an act of any sort may chance to be accompanied. These, however, are of such a nature as not only to exclude the application of legal punishment, but in general to leave little room for the influence of private ethics. These are the cases where the will could not be deterred from any act, even by the extraordinary force of artificial punishment; as in the cases of extreme infancy, insanity, and perfect intoxication: of course, therefore, it could not by such slender and precarious force as could be applied by private ethics. The case is in this respect the same, under the circumstances of unintentionality with respect to the event of the action, unconsciousness with regard to the circumstances, and mis-supposal with regard to the existence of circumstances which have not existed; as also where the force, even of extraordinary punishment, is rendered inoperative by the superior force of a physical danger or threatened mischief. It is evident, that in these cases, if the thunders of the law prove impotent, the whispers of simple morality can have but little influence.

XII.

3. As to the cases where punishment would be unprofitable. These are the cases which constitute the great field for the exclusive interference of private ethics. When a punishment is unprofitable, or in other words too expensive, it is because the evil of the punishment exceeds that of the offence. Now the evil of the punishment, we may remember,* is distinguishable into four branches: 1. The evil of coercion, including constraint or restraint, according as the act commanded is of the positive kind or the negative. 2. The evil of apprehension. 3. The evil of sufferance. 4. The derivative evils resulting to persons in connection with those by whom the three above-mentioned original evils are sustained. Now with respect to those original evils, the persons who he exposed to them may be two very different sets of persons. In the first place, persons who may have actually committed, or been prompted to commit, the acts really meant to be prohibited. In the next place, persons who may have performed, or been prompted to perform, such other acts as they fear may be in danger of being involved in the punishment designed only for the former. But of these two sets of acts, it is the former only that are pernicious: it is, therefore, the former only that it can be the business of private ethics to endeavour to prevent. The latter being by the supposition not mischievous, to prevent them is what it can no more be the business of ethics to endeavour at, than of legislation. It remains to show how it may happen, that there should be acts really pernicious, which, although they may very properly come under the censure of private ethics, may yet be no fit objects for the legislator to controul.

* See ch. xv. [Cases unmeet] § 4.

XIII.

Punishment, then, as applied to delinquency, may be unprofitable in both or either of two ways: 1. By the expense it would amount to, even supposing the application of it to be confined altogether to delinquency: 2. By the danger there may be of its involving the innocent in the fate designed only for the guilty. First, then, with regard to the cases in which the expense of the punishment, as applied to the guilty, would outweigh the profit to be made by it. These cases, it is evident, depend upon a certain proportion between the evil of the punishment and the evil of the offence. Now were the offence of such a nature, that a punishment which, in point of magnitude, should but just exceed the profit of it, would be sufficient to prevent it, it might be rather difficult perhaps to find an instance in which such punishment would clearly appear to be unprofitable. But the fact is, there are many cases in which a punishment, in order to have any chance of being efficacious, must, in point of magnitude, be raised a great deal above that level. Thus it is wherever the danger of detection is, or (what comes to the same thing,) is likely to appear to be, so small, as to make the punishment appear in a high degree uncertain. In this case it is necessary, as has been shown, if punishment be at all applied, to raise it in point of magnitude as much as it falls short in point of certainty. It is evident, however, that all this can be but guess-work: and that the effect of such a proportion will be rendered precarious, by a variety of circumstances: by the want of sufficient promulgation on the part of the law: by the particular circumstances of the temptation: and by the circumstances influencing the sensibility of the several individuals who are exposed to it.§ Let the seducing motives be strong, the offence then will at any rate be frequently committed. Now and then indeed, owing to a coincidence of circumstances more or less extraordinary, it will be detected and by that means punished. But for the purpose of example, which is the principal one, an act of punishment, considered in itself, is of no use: what use it can be of, depends altogether upon the expectation it raises of similar punishment in future cases of similar delinquency. But this future punishment, it is evident, must always depend upon detection. If then the want of detection is such as must in general (especially to eyes fascinated by the force of the seducing motives) appear too improbable to be reckoned upon, the punishment, though it should be inflicted, may come to be of no use. Here, then, will be two opposite evils running on at the same time, yet neither of them reducing the quantum of the other: the evil of the disease and the evil of the painful and inefficacious remedy. It seems to be partly owing to some such considerations, that fornication for example, or the illicit commerce between the sexes, has commonly either gone altogether unpunished, or been punished in a degree inferior to that in which, on other accounts, legislators might have been disposed to punish it.

Ch. xvi. [Proportion] par. 18, rule 7.

Ch. xv. [Cases unmeet] § 3. Append. tit. [Promulgation.]

Ch. xi. [Disposition] par. 35, &c.

§ Ch. vi. [Sensibility.]

XIV.

Second, with regard to the cases in which political punishment, as applied to delinquency, may be unprofitable, in virtue of the danger there may be of its involving the innocent in the fate designed only for the guilty. Whence should this danger, then, arise? From the difficulty there may be of fixing the idea of the guilty action; that is, of subjecting it to such a definition as shall be clear and precise enough to guard effectually against misapplication. This difficulty may arise from either of two sources: the one permanent, to wit, the nature of the actions themselves: the other occasional, I mean the qualities of the men who may have to deal with those actions in the way of government. In as far as it arises from the latter of these sources, it may depend partly upon the use which the legislator may be able to make of language; partly upon the use which, according to the apprehension of the legislator, the judge may be disposed to make of it. As far as legislation is concerned, it will depend upon the degree of perfection to which the arts of language may have been carried; in the first place, in the nation in general; in the next place, by the legislator in particular. It is to a sense of this difficulty, as it should seem, that we may attribute the caution with which most legislators have abstained from subjecting to censure, on the part of the law, such actions as come under the notion of rudeness, for example, or treachery, or ingratitude. The attempt to bring acts of so vague and questionable a nature under the controul of law, will argue either a very immature age, in which the difficulties which give birth to that danger are not descried; or a very enlightened age, in which they are overcome.*

* In certain countries, in which the voice of the people has a more especial controul over the hand of the legislator, nothing can exceed the dread which they are under of seeing any effectual provision made against the offences which come under the head of defamation, particularly that branch of it which may be styled the political. This dread seems to depend partly upon the apprehension they may think it prudent to entertain of a defect in point of ability or integrity on the part of the legislator, partly upon a similar apprehension of a defect in point of integrity on the part of the judge.

XV.

For the sake of obtaining the clearer idea of the limits between the art of legislation and private ethics, it may now be time to call to mind the distinctions above established with regard to ethics in general. The degree in which private ethics stands in need of the assistance of legislation, is different in the three branches of duty above distinguished. Of the rules of moral duty, those which seem to stand least in need of the assistance of legislation, are the rules of prudence. It can only be through some defect on the part of the understanding, if a man be ever deficient in point of duty to himself. If he does wrong, there is nothing else that it can be owing to, but either some inadvertence or some missupposal, with regard to the circumstances on which his happiness depends. It is a standing topic of complaint, that a man knows too little of himself. Be it so: but is it so certain that the legislator must know more? It is plain, that of individuals the legislator can know nothing: concerning those points of conduct which depend upon the particular circumstances of each individual, it is plain, therefore, that he can determine nothing to advantage. It is only with respect to those broad lines of conduct in which all persons, or very large and permanent descriptions of persons, may be in a way to engage, that he can have any pretence for interfering; and even here the propriety of his interference will, in most instances, lie very open to dispute. At any rate, he must never expect to produce a perfect compliance by the mere force of the sanction of which he is himself the author. All he can hope to do, is to increase the efficacy of private ethics, by giving strength and direction to the influence of the moral sanction. With what chance of success, for example, would a legislator go about to extirpate drunkenness and fornication, by dint of legal punishment? Not all the tortures which ingenuity could invent would compass it: and, before he had made any progress worth regarding, such a mass of evil would be produced by the punishment, as would exceed, a thousand-fold, the utmost possible mischief of the offence. The great difficulty would be in the procuring evidence; an object which could not be attempted, with any probability of success, without spreading dismay through every family,* tearing the bonds of sympathy asunder, and rooting out the influence of all the social motives. All that he can do, then, against offences of this nature, with any prospect of advantage, in the way of direct legislation, is to subject them, in cases of notoriety, to a slight censure, so as thereby to cover them with a slight shade of artificial disrepute.

See ch. ix. [Consciousness.]

On occasions like this, the legislator should never lose sight of the well-known story of the oculist and the sot. A countryman who had hurt his eyes by drinking, went to a celebrated oculist for advice. He found him at table with a glass of wine before him. “You must leave off drinking,” said the oculist. “How so?” says the countryman; “you don’t, and yet methinks your own eyes are none of the best.”—“That’s very true friend,” replied the oculist: “but you are to know, I love my bottle better than my eyes.”

Ch. xviii. [Division] par. 2.

* Evil of apprehension: third branch of the evil of a punishment. Ch. xv. § 4.

Derivative evils: fourth branch of the evil of a punishment. Ib.

XVI.

It may be observed, that with regard to this branch of duty, legislators have, in general, been disposed to carry their interference full as far as is expedient. The great difficulty here is, to persuade them to confine themselves within bounds. A thousand little passions and prejudices have led them to narrow the liberty of the subject in this line, in cases in which the punishment is either attended with no profit at all, or with none that will make up for the expense.

XVII.

The mischief of this sort of interference is more particularly conspicuous in the article of religion. The reasoning, in this case, is of the following stamp. There are certain errors, in matters of belief, to which all mankind are prone: and for these errors in judgment, it is the determination of a Being of infinite benevolence, to punish them with an infinity of torments. But from these errors the legislator himself is necessarily free: for the men who happen to be at hand for him to consult with, being men perfectly enlightened, unfettered, and unbiassed, have such advantages over all the rest of the world, that when they sit down to inquire out the truth relative to points so plain and so familiar as those in question, they cannot fail to find it. This being the case, when the sovereign sees his people ready to plunge headlong into an abyss of fire, shall he not stretch out a hand to save them? Such, for example, seems to have been the train of reasoning, and such the motives, which led Lewis the XIVth into those coercive measures which he took for the conversion of heretics, and the confirmation of true believers. The ground-work, pure sympathy and loving-kindness: the superstructure, all the miseries which the most determined maevolence could have devised. But of this more fully in another place.

I do not mean but that other motives of a less social nature might have introduced themselves, and probably, in point of fact, did introduce themselves, in the progress of the enterprise: But in point of possibility, the motive above mentioned, when accompanied with such a thread of reasoning, is sufficient, without any other, to account for all the effects above alluded to. If any others interfere, their interference, how natural soever, may be looked upon as an accidental and inessential circumstance, not necessary to the production of the effect. Sympathy, a concern for the danger they appear to be exposed to, gives birth to the wish of freeing them from it: that wish shews itself in the shape of a command: this command produces disobedience: disobedience on the one part, produces disappointment on the other: the pain of disappointment produces ill-will towards those who are the authors of it. The affections will often make this progress in less time than it would take to describe it. The sentiment of wounded pride, and other modifications of the love of reputation and the love of power, add fuel to the flame. A kind of revenge exasperates the severities of coercive policy.

See B. 1. tit. [Self-regarding Offences.]

XVIII.

The rules of probity are those, which in point of expediency stand most in need of assistance on the part of the legislator, and in which, in point of fact, his interference has been most extensive. There are few cases in which it would be expedient to punish a man for hurting himself: but there are few cases, if any, in which it would not be expedient to punish a man for injuring his neighbour. With regard to that branch of probity which is opposed to offences against property, private ethics depends, in a manner, for its very existence upon legislation. Legislation must first determine what things are to be regarded as each man’s property, before the general rules of ethics, on this head, can have any particular application. The case is the same with regard to offences against the state. Without legislation there would be no such things as a state: no particular persons invested with powers to be exercised for the benefit of the rest. It is plain, therefore, that in this branch the interference of the legislator cannot any where be dispensed with. We must first know what are the dictates of legislation, before we can know what are the dictates of private ethics.§

§ But suppose the dictates of legislation are not what they ought to be: what are then, or (what in this case comes to the same thing) what ought to be, the dictates of private ethics? Do they coincide with the dictates of legislation, or do they oppose them, or do they remain neuter? A very interesting question this, but one that belongs not to the present subject. It belongs exclusively to that of private ethics. Principles which may lead to the solution of it may be seen in a Fragment on Government, p. 150. Lond. edit. 1776: and p. 114, edit. 1823.

XIX.

As to the rules of beneficence, these, as far as concerns matters of detail, must necessarily be abandoned in great measure to the jurisdiction of private ethics. In many cases the beneficial quality of the act depends essentially upon the disposition of the agent; that is, upon the motives by which he appears to have been prompted to perform it: upon their belonging to the head of sympathy, love of amity, or love of reputation; and not to any head of self-regarding motives, brought into play by the force of political constraint: in a word, upon their being such as denominate his conduct free and voluntary, according to one of the many senses given to those ambiguous expressions.* The limits of the law on this head seem, however, to be capable of being extended a good deal farther than they seem ever to have been extended hitherto. In particular, in cases where the person is in danger, why should it not be made the duty of every man to save another from mischief, when it can be done without prejudicing himself, as well as to abstain from bringing it on him? This, accordingly, is the idea pursued in the body of the work.

* If we may believe M. Voltaire,a there was a time when the French ladies who thought themselves neglected by their husbands, used to petition pour être embesoignèes: the technical word which, he says, was appropriated to this purpese. These sort of law-proceedings seem not very well calculated to answer the design: accordingly we hear nothing of them now-a-days. The French ladies of the present age seem to be under no such difficulties.

a Quest, sur l’Encyclop. tom. 7, art, Impuissance.

A woman’s head-dress catches fire: water is at hand: a man, instead of assisting to quench the fire, looks on, and laughs at it. A drunken man, falling with his face downwards into a puddle, is in danger of suffocation: litting his head a little on one side would save him: another man sees this, and lets him lie. A quantity of gunpowder lies scattered about a room: a man is going into it with a lighted candle: another, knowing this, lets him go in without warning. Who is there that in any of these cases would think punishment misapplied?

XX.

To conclude this section, let us recapitulate and bring to a point the difference between private ethics, considered as an art or science, on the one hand, and that branch of jurisprudence which contains the art or science of legislation, on the other. Private ethics teaches how each man may dispose himself to pursue the course most conducive to his own happiness, by means of such motives as offer of themselves: the art of legislation (which may be considered as one branch of the science of jurisprudence) teaches how a multitude of men, composing a community, may be disposed to pursue that course which upon the whole is the most conducive to the happiness of the whole community, by means of motives to be applied by the legislator.

We come now to exhibit the limits between penal and civil jurisprudence. For this purpose it may be of use to give a distinct though summary view of the principal branches into which jurisprudence, considered in its utmost extent, is wont to be divided.

§ 2.

Jurisprudence, its Branches.

XXI.

Jurisprudence is a fictitious entity: nor can any meaning be found for the word, but by placing it in company with some word that shall be significative of a real entity. To know what is meant by jurisprudence, we must know, for example, what is meant by a book of jurisprudence. A book of jurisprudence can have but one or the other of two objects: 1. To ascertain what the law is: 2. To ascertain what it ought to be. In the former case, it may be styled a book of expository jurisprudence: in the latter, a book of censorial jurisprudence; or, in other words, a book on the art of legislation.

The word law itself, which stands so much in need of a definition, must wait for it awhile (see § 3:) for there is no doing every thing at once. In the mean time, every reader will understand it according to the notion he has been accustomed to annex to it.

XXII.

A book of expository jurisprudence is either authoritative or unauthoritative. It is styled authoritative, when it is composed by him who, by representing the state of the law to be so and so, causeth it so to be; that is, of the legislator himself: unauthoritative, when it is the work of any other person at large.

XXIII.

Now law, or the law, taken indefinitely, is an abstract and collective term; which, when it means any thing, can mean neither more nor less than the sum total of a number of individual laws taken together. It follows, that of whatever other modifications the subject of a book of jurisprudence is susceptible, they must all of them be taken from some circumstance or other of which such individual laws, or the assemblages into which they may be sorted, are susceptible. The circumstances that have given rise to the principal branches of jurisprudence we are wont to hear of, seem to be as follow: 1. The extent of the laws in question in point of dominion. 2. The political quality of the persons whose conduct they undertake to regulate. 3. The time of their being in force. 4. The manner in which they are expressed. 5. The concern which they have with the article of punishment.

In most of the European languages there are two different words for distinguishing the abstract and the concrete senses of the word law: which words are so wide asunder as not even to have any etymological affinity. In Latin, for example, there is lex for the concrete sense, jus for the abstract: in Italian, legge and diritto: in French, loi and droit: in Spanish, ley and derecho: in German, gesetz and recht. The English is at present destitute of this advantage.

In the Anglo-Saxon, besides lage, and several other words, for the concrete sense, there was the word right, answering to the German recht, for the abstract; as may be seen in the compound folc-right, and in other instances. But the word right having long ago lost this sense, the modern English no longer possesses this advantage.

XXIV.

In the first place, in point of extent, what is delivered concerning the laws in question, may have reference either to the laws of such or such a nation or nations in particular, or to the laws of all nations whatsoever: in the first case, the book may be said to relate to local; in the other, to universal, jurisprudence.

Now of the infinite variety of nations there are upon the earth, there are no two which agree exactly in their laws: certainly not in the whole; perhaps not even in any single article: and let them agree to-day, they would disagree to-morrow. This is evident enough with regard to the substance of the laws: and it would be still more extraordinary if they agreed in point of form; that is, if they were conceived in precisely the same strings of words. What is more, as the languages of nations are commonly different, as well as their laws, it is seldom that, strictly speaking, they have so much as a single word in common. However, among the words that are appropriated to the subject of law, there are some that in all languages are pretty exactly correspondent to one another: which comes to the same thing nearly as if they were the same. Of this stamp, for example, are those which correspond to the words power, right, obligation, liberty, and many others.

It follows, that if there are any books which can, properly speakin, be styled books of universal jurisprudence, they must be looked for within very narrow limits. Among such as are expository, there can be none that are authoritative: nor even, as far as the substance of the laws is concerned, any that are unauthoritative. To be susceptible of an universal application, all that a book of the expository kind can have to treat of, is the import of words: to be, strictly speaking, universal, it must confine itself to terminology. Accordingly the definitions which there has been occasion here and there to intersperse in the course of the present work, and particularly the definition hereafter given of the word law, may be considered as matter belonging to the head of universal jurisprudence. Thus far in strictness of speech: though in point of usage, where a man, in laying down what he apprehends to be the law, extends his views to a few of the nations with which his own is most connected, it is common enough to consider what he writes as relating to universal jurisprudence.

It is in the censorial line that there is the greatest room for disquisitions that apply to the circumstances of all nations alike: and in this line, what regards the substance of the laws in question is as susceptible of an universal application, as what regards the words. That the laws of all nations, or even of any two nations, should coincide in all points, would be as ineligible as it is impossible: some leading points, however, there seem to be, in respect of which the laws of all civilized nations might, without inconvenience, be the same. To mark out some of these points will, as far as it goes, be the business of the body of this work.

XXV.

In the second place, with regard to the political quality of the persons whose conduct is the object of the law. These may, on any given occasion, be considered either as members of the same state, or as members of different states: in the first case, the law may be referred to the head of internal; in the second case, to that of international* jurisprudence.

Now as to any transactions which may take place between individuals who are subjects of different states, these are regulated by the internal laws, and decided upon by the internal tribunals, of the one or the other of those states: the case is the same where the sovereign of the one has any immediate transactions with a private member of the other: the sovereign reducing himself, pro re natâ, to the condition of a private person, as often as he submits his cause to either tribunal; whether by claiming a benefit, or defending himself against a burthen. There remain, then, the mutual transactions between sovereigns as such, for the subject of that branch of jurisprudence which may be properly and exclusively termed international.

With what degree of propriety, rules for the conduct of persons of this description can come under the appellation of laws, is a question that must rest till the nature of the thing called a law shall have been more particularly unfolded.

It is evident enough, that international jurisprudence may, as well as internal, be censorial as well as expository; unauthoritative as well as authoritative.

* The word international, it must be acknowledged, is a new one; though, it is hoped, sufficiently analogous and intelligible. It is calculated to express, in a more significant way, the branch of law which goes commonly under the name of the law of nations: an appellation so uncharacteristic, that, were it not for the force of custom, it would seem rather to refer to internal jurisprudence. The chancellor D’Auguesseau has already made, I find, a similar remark: he says, that what is commonly called droit des gens, ought rather to be termed droit entre les gens.a

a Œuvres, tom. ii. p. 337, edit. 1773, 12mo.

In the times of James I. of England, and Philip III. of Spain, certain merchants at London happened to have a claim upon Philip, which his ambassador Gondemar did not think fit to satisfy. They applied for counsel to Selden, who advised them to sue the Spanish monarch in the court of King’s Bench, and prosecute him to an outlawry. They did so: and the sheriffs of London were accordingly commanded, in the usual form, to take the body of the defendant Philip, whereever it was to be found within their bailiwick. As to the sheriffs, Philip, we may believe, was in no great fear of them: but, what answered the same purpose, he happened on his part to have demands upon some other merchants, whom, so long as the outlawry remained in force, there was no proceeding against. Gondemar paid the money.a This was internal jurisprudence: if the dispute had been betwixt Philip and James himself, it would have been international.

As to the word international, from this work, or the first of the works edited in French by Mr. Dumont, it has taken root in the language. Witness Reviews and Newspapers.

a Selden’s Table-Talk, tit. Law.

XXVI.

Internal jurisprudence, again, may either concern all the members of a state indiscriminately, or such of them only as are connected in the way of residence, or otherwise, with a particular district. Jurisprudence is accordingly sometimes distinguished into national and provincial. But as the epithet provincial is hardly applicable to districts so small as many of those which have laws of their own are wont to be, such as towns, parishes, and manors; the term local (where universal jurisprudence is plainly out of the question) or the term particular, though this latter is not very characteristic, might either of them be more commodious.*

* The term municipal seemed to answer the purpose very well, till it was taken by an English author of the first eminence, to signify internal law in general, in contradistinction to international law, and the imaginary law of nature. It might still be used in this sense, without scruple, in any other language.

XXVII.

Third, with respect to time. In a work of the expository kind, the laws that are in question may either be such as are still in force at the time when the book is writing, or such as have ceased to be in force. In the latter case, the subject of it might be termed ancient; in the former, present or living jurisprudence: that is, if the substantive jurisprudence, and no other, must at any rate be employed, and that with an epithet in both cases. But the truth is, that a book of the former kind is rather a book of history than a book of jurisprudence; and, if the word jurisprudence be expressive of the subject, it is only with some such words as history or antiquities prefixed. And as the laws which are any where in question are supposed, if nothing appears to the contrary, to be those which are in force, no such epithet as that of present or living commonly appears.

Where a book is so circumstanced, that the laws which form the subject of it, though in force at the time of its being written, are in force no longer, that book is neither a book of living jurisprudence, nor a book on the history of jurisprudence: it is no longer the former, and it never was the latter. It is evident that, owing to the changes which from time to time must take place, in a greater or less degree, in every body of laws, every book of jurisprudence, which is of an expository nature, must, in the course of a few years, come to partake more or less of this condition.

The most common and most useful object of a history of jurisprudence, is to exhibit the circumstances that have attended the establishment of laws actually in force. But the exposition of the dead laws which have been superseded, is inseparably interwoven with that of the living ones which have superseded them. The great use of both these branches of science, is to furnish examples for the art of legislation.

Of what stamp are the works of Grotius, Puffendorf, and Burlamaqui? Are they political or ethical, historical or juridical, expository or censorial? Sometimes one thing, sometimes another: they seem hardly to have settled the matter with themselves. A defect this to which all books must almost unavoidably be liable, which take for their subject the pretended law of nature; an obscure phantom, which, in the imaginations of those who go in chase of it, points sometimes to manners, sometimes to laws; sometimes to what law is, sometimes to what it ought to be.b Montesquieu sets out upon the censorial plan: but long before the conclusion, as if he had forgot his first design, he throws off the censor, and puts on the antiquarian. The Marquis Beccaria’s book, the first of any account that is uniformly censorial, concludes as it sets out with penal jurisprudence.

b See ch. ii. [Principles adverse] par. 14.

XXVIII.

Fourthly, in point of expression, the laws in question may subsist either in the form of statute, or in that of customary law.

As to the difference between these two branches (which respects only the article of form or expression) it cannot properly be made appear till some progress has been made in the definition of a law.

XXIX.

Last, the most intricate distinction of all, and that which comes most frequently on the carpet, is that which is made between the civil branch of jurisprudence and the penal; which latter is wont, in certain circumstances, to receive the name of criminal.

What is a penal code of laws? What a civil code? Of what nature are their contents? Is it that there are two sorts of laws, the one penal the other civil, so that the laws in a penal code are all penal laws, while the laws in a civil code are all civil laws? Or is it, that in every law there is some matter which is of a penal nature, and which therefore belongs to the penal code; and at the same time other matter which is of a civil nature, and which therefore belongs to the civil code? Or is it, that some laws belong to one code or the other exclusively, while others are divided between the two? To answer these questions in any manner that shall be tolerably satisfactory, it will be necessary to ascertain what a law is; meaning one entire but single law: and what are the parts into which a law, as such, is capable of being distinguished: or, in other words, to ascertain what the properties are that are to be found in every object which can with propriety receive the appellation of a law. This, then, will be the business of the third and fourth sections: what concerns the import of the word criminal, as applied to law, will be discussed separately in the fifth.*

* Here ends the original work, in the state into which it was brought in November 1780. What follows is now added in January 1789.

1. The third, fourth, and fifth sections, intended, as expressed in the text, to have been added to this chapter, will not here, nor now, be given; because to give them in a manner tolerably complete and satisfactory, might require a considerable volume. This volume will form a work of itself, closing the series of works mentioned in the preface.

What follows here may serve to give a slight intimation of the nature of the task, which such a work will have to atchieve: it will at the same time furnish, not any thing like a satisfactory answer to the questions mentioned in the text, but a slight and general indication of the course to be taken for giving them such an answer.

2. What is a law? what the parts of a law? The subject of these questions, it is to be observed, is the logical, the ideal, the intellectual whole, not the physical one: the law, and not the statute. An inquiry, directed to the latter sort of object, could neither admit of difficulty nor afford instruction. In this sense, whatever is given for law by the person or persons recognised as possessing the power of making laws, is law. The Metamorphoses of Ovid, if thus given, would be law. So much as was embraced by one and the same act of authentication, so much as received the touch of the sceptre at one stroke, is one law: a whole law, and nothing more. A statute of George II. made to substitute an or instead of an and in a former statute, is a complete law; a statute containing an entire body of laws, perfect in all its parts, would not be more so. By the word law, then, as often as it occurs in the succeeding pages, is meant that ideal object, of which the part, the whole, or the multiple, or an assemblage of parts, wholes, and multiples mixed together, is exhibited by a statute; not the statute which exhibits them.

3. Every law, when complete, is either of a coercive or uncoercive nature.

A coercive law is a command.

An uncoercive, or rather a discoercive law, is the revocation in whole or in part, of a coercive law.

4. What has been termed a declaratory law, so far as it stands distinguished from either a coersive or a discoercive law, is not, properly speaking, a law. It is not the expression of an act of the will exercised at the time: it is a mere notification of the existence of a law, either of the coercive or the discoercive kind, as already subsisting: of the existence of some document expressive of some act of the will, exercised, not at the time, but at some former period. If it does any thing more than give information of this fact, viz. of the prior existence of a law of either the coercive or the discoercive kind, it ceases pro tanto to be what is meant by a declaratory law, and assuming either the coercive or the discoercive quality.

5. Every coercive law creates an offence; that is, converts an act of some sort or other into an offence. It is only by so doing that it can impose obligation, that it can produce coercion.

6. A law confining itself to the creation of an offence, and a law commanding a punishment to be administered in case of the commission of such an offence, are two distinct laws: not parts (as they seem to have been generally accounted hitherto) of one and the same law. The acts they command are altogether different; the persons they are addressed to are altogether different. Instance, Let no man steal; and, Let the judge cause whoever is convicted of stealing to be hanged.

They might be styled, the former, a simple imperative law; the other, a punitory; but the punitory, if it commands the punishment to be inflicted, and does not merely permit it, is as truly imperative as the other: only it is punitory besides, which the other is not.

7. A law of the discoercive kind, considered in itself, can have no punitory law belonging to it: to receive the assistance and support of a punitory law, it must first receive that of a simply imperative or coercive law, and it is to this latter that the punitory law will attach itself, and not to the discoercive one. Example; discoercive law. The sheriff has power to hang all such as the judge, proceeding in due course of law, shall order him to hang. Example of a coercive law, made in support of the above discoercive one: Let no man hinder the sheriff from hanging such as the judge, proceeding in due course of law, shall order him to hang. Example of a punitory law, made in support of the above coercive one: Let the judge cause to be imprisoned whosoever attempts to hinder the sheriff from hanging one whom the judge, proceeding in due course of law, has ordered him to hang.

8. But though a simply imperative law, and the punitory law attached to it, are so far distinct laws, that the former contains nothing of the latter, and the latter, in its direct tenor, contains nothing of the former; yet by implication, and that a necessary one, the punitory does involve and include the import of the simple imperative law to which it is appended. To say to the judge, Cause to be hanged whoever in due form of law is convicted of stealing, is, though not a direct, yet as intelligible a way of intimating to men in general that they must not steal, as to say to them directly, Do not steal: and one sees, how much more likely to be efficacious.

9. It should seem, then, that wherever a simply imperative law is to have a punitory one appended to it, the former might be spared altogether: in which case, saving the exception (which naturally should seem not likely to be a frequent one) of a law capable of answering its purpose without such an appendage, there should be no occasion in the whole body of the law for any other than punitory, or, in other words, than penal, laws. And this, perhaps, would be the case, were it not for the necessity of a large quantity of matter of the expository kind, of which we come now to speak.

10. It will happen in the instance of many, probably of most, possibly of all, commands endued with the force of a public law, that, in the expression given to such a command, it shall be necessary to have recourse to terms too complex in their signification, to exhibit the requisite ideas, without the assistance of a greater or less quantity of matter of an expository nature. Such terms, like the symbols used in algebraical notation, are rather substitutes and indexes to the terms capable of themselves of exhibiting the ideas in question, than the real and immediate representatives of those ideas.

Take for instance the law, Thou shalt not steal: Such a command, were it to rest there, could never sufficiently answer the purpose of a law. A word of so vague and unexplicit a meaning can no otherwise perform this office, than by giving a general intimation of a variety of propositions, each requiring, to convey it to the apprehension, a more particular and ample assemblage of terms. Stealing, for example, (according to a definition not accurate enough for use, but sufficiently so for the present purpose) is the taking of a thing which is another’s, by one who has notitleso to do, and is conscious of his having none. Even after this exposition, supposing it a correct one, can the law be regarded as completely expressed? Certainly not. For what is meant by a man’s having atitleto take a thing? To be complete, the law must have exhibited, amongst a multitude of other things, two catalogues; the one of events to which it has given the quality of conferring title in such a case; the other of the events to which it has given the quality of taking it away. What follows? That for a man to have stolen, for a man to have had no title to what he took, either no one of the articles contained in the first of those lists must have happened in his favour, or if there has, some one of the number of those contained in the second, must have happened to his prejudice.

11. Such, then, is the nature of a general law, that while the imperative part of it, the punctum saliens as it may be termed, of this artificial body, shall not take up above two or three words, its expository appendage, without which that imperative part could not rightly perform its office, may occupy a considerable volume.

But this may equally be the case with a private order given in a family. Take for instance one from a bookseller to his foreman: Remove, from this shop to my new one, my whole stock, according to this printed catalogue. Remove, from this shop to my new one, my whole stock, is the imperative matter of this order; the catalogue referred to contains the expository appendage.

12. The same mass of expository matter may serve in common for, may appertain in common to, many commands, many masses of imperative matter. Thus, amongst other things, the catalogue of collative and ablative events, with respect to titles above spoken of (see No. 9 of this note), will belong in common to all or most of the laws constitutive of the various offences against property. Thus, in mathematical diagrams, one and the same base shall serve for a whole cluster of triangles.

13. Such expository matter, being of a complexion so different from the imperative, it would be no wonder if the connection of the former with the latter should escape the observation: which, indeed, is perhaps pretty generally the case. And so long as any mass of legislative matter presents itself, which is not itself imperative, or the contrary, or of which the connection with matter of one of those two descriptions is not apprehended, so long and so far the truth of the proposition, That every law is a command or its opposite, may remain unsuspected, or appear questionable; so long also may the incompleteness of the greater part of those masses of legislative matter, which wear the complexion of complete laws upon the face of them, also the method to be taken for rendering them really complete, remain undiscovered.

14. A circumstance, that will naturally contribute to increase the difficulty of the discovery, is the great variety of ways in which the imperation of a law may be conveyed — the great variety of forms which the imperative part of a law may indiscriminately assume: some more directly, some less directly, expressive of the imperative quality. Thou shalt not steal. Let no man steal. Whoso stealeth, shall be punished so and so. If any man steal, he shall be punished so and so. Stealing is where a man does so and so; the punishment for stealing is so and so. To judges, so and so named, and so and so constituted, belong the cognizance of such and such offences; viz. stealing; and so on. These are but part of a multitude of forms of words, in any of which the command, by which stealing is prohibited, might equally be couched: and it is manifest to what a degree, in some of them, the imperative quality is clouded and concealed from ordinary apprehension.

15. After this explanation, a general proposition or two, that may be laid down, may help to afford some little insight into the structure and contents of a complete body of laws. — So many different sorts of offences created, so many different laws of the coercive kind: so many exceptions taken out of the descriptions of those offences, so many laws of the discoercive kind.

To class offences, as hath been attempted to be done in the preceding chapter, is therefore to class laws: to exhibit a complete catalogue of all the offences created by law, including the whole mass of expository matter necessary for fixing and exhibiting the import of the terms contained in the several laws, by which those offences are respectively created, would be to exhibit a complete collection of the laws in force: in a word, a complete body of law, a pannomion, if so it might be termed.

16. From the obscurity in which the limits of a law, and the distinction betwixt a law of the civil or simply imperative kind and a punitory law, are naturally involved, results the obscurity of the limits betwixt a civil and a penal code, betwixt the civil branch of the law and the penal.

The question, What parts of the total mass of legislative matter belong to the civil branch, and what to the penal? supposes that divers political states, or at least that some one such state, are to be found, having as well a civil code as a penal code, each of them complete in its kind, and marked out by certain limits. But no one such state has ever yet existed.

To put a question to which a true answer can be given, we must substitute to the foregoing question some such one as that which follows:

Suppose two masses of legislative matter to be drawn up at this time of day, the one under the name of a civil code, the other of a penal code, each meant to be complete in its kind: in what general way is it natural to suppose that the different sorts of matter, as above distinguished, would be distributed between them?

To this question the following answer seems likely to come as near as any other to the truth.

The civil code would not consist of a collection of civil laws each complete in itself, as well as clear of all penal ones.

Neither would the penal code (since we have seen that it could not) consist of a collection of punitive laws, each not only complete in itself, but clear of all civil ones. But

17. The civil code would consist chiefly of mere masses of expository matter. The imperative matter, to which those masses of expository matter respectively appertained, would be found — not in that same code — not in the civil code — nor in a pure state, free from all admixture of punitory laws; but in the penal code — in a state of combination — involved, in manner as above explained, in so may correspondent punitory laws.

18. The penal code then would consist principally of punitive laws, involving the imperative matter of the whole number of civil laws: along with which would probably also be found various masses of expository matter, appertaining, not to the civil, but to the punitory laws. The body of penal law, enacted by the Empress-Queen Maria Theresa, agrees pretty well with this account.

19. The mass of legislative matter published in French as well as German, under the auspices of Frederic II. of Prussia, by the name of Code Frederic, but never established with force of law,a appears, for example, to be almost wholly composed of masses of expository matter, the relation of which to any imperative matter appears to have been but very imperfectly apprehended.

a Mirabeau sur la Monarchie Prussienne, tom. v. liv. 8, p. 215.

20. In that enormous mass of confusion and inconsistency, the ancient Roman, or, as it is termed by way of eminence, the civil law, the imperative matter, and even all traces of the imperative character, seem at last to have been smothered in the expository. Esto had been the language of primæval simplicity: esto had been the language of the twelve tables. By the time of Justinian (so thick was the darkness raised by clouds of commentators), the penal law had been crammed into an odd corner of the civil — the whole catalogue of offences, and even of crimes, lay buried under a heap of obligations — will was hid in opinion — and the original esto had transformed itself into videtur, in the mouths even of the most despotic sovereigns.

21. Among the barbarous nations that grew up out of the ruins of the Roman empire, law, emerging from under the mountain of expository rubbish, reassumed for a while the language of command: and then she had simplicity at least, if nothing else, to recommend her.

22. Besides the civil and the penal, every complete body of law must contain a third branch, the constitutional.

The constitutional branch is chiefly employed in conferring, on particular classes of persons, powers, to be exercised for the good of the whole society, or of considerable parts of it, and prescribing duties to the persons invested with those powers.

The powers are principally constituted, in the first instance, by discoercive or permissive laws, operating as exceptions to certain laws of the coercive or imperative kind. Instance: A tax-gatherer, as such, may, on such and such an occasion, take such and such things without any othertitle.

The duties are created by imperative laws, addressed to the persons on whom the powers are conferred. Instance: On such and such an occasion, such and such a tax-gatherer shall take such and such things. Such and such a judge shall, in such and such a case, cause persons so and so offending to be hanged.

The parts which perform the function of indicating who the individuals are, who in every case shall be considered as belonging to those classes, have neither a permissive complexion, nor an imperative.

They are so many masses of expository matter, appertaining in common to all laws, into the texture of which, the names of those classes of persons have occasion to be inserted. Instance; imperative matter:— Let the judge cause whoever, in due course of law, is convicted of stealing, to be hanged. Nature of the expository matter:— Who is the person meant by the word judge? He who has been invested with that office in such a manner, and in respect of whom no event has happened, of the number of those to which the effect is given, of reducing him to the condition of one divested of that office.

23. Thus it is, that one and the same law, one and the same command, will have its matter divided, not only between two great codes, or main branches of the whole body of the laws, the civil and the penal; but amongst three such branches, the civil, the penal, and the constitutional.

24. In countries where a great part of the law exists in no other shape, than that of what in England is called common law, but might be more expressively termed judiciary, there must be a great multitude of laws, the import of which cannot be sufficiently made out for practice, without referring to this common law, for more or less of the expository matter belonging to them. Thus, in England, the exposition of the word title, that basis of the whole fabric of the laws of property, is no where else to be found. And, as uncertainty is the very essence of every particle of law so denominated (for the instant it is clothed in a certain authoritative form of words it changes its nature, and passes over to the other denomination), hence it is that a great part of the laws in being in such countries remains uncertain and incomplete. What are those countries? To this hour, every one on the surface of the globe.

25. Had the science of architecture no fixed nomenclature belonging to it — were there no settled names for distinguishing the different sorts of buildings, nor the different parts of the same building from each other — what would it be? It would be what the science of legislation, considered with respect to its form, remains at present.

Were there no architects who could distinguish a dwelling-house from a barn, or a side wall from a ceiling, what would architects be? They would be what all legislators are at present.

26. From this very slight and imperfect sketch may be collected, not an answer to the questions in the text, but an intimation, and that but an imperfect one, of the course to be taken for giving such an answer; and, at any rate, some idea of the difficulty, as well as of the necessity, of the task.

If it were thought necessary to recur to experience for proofs of this difficulty, and this necessity, they need not be long wanting.

Take, for instance, so many well-meant endeavours on the part of popular bodies, and so many well-meant recommendations in ingenious books, to restrain supreme representative assemblies from making laws in such and such cases, or to such and such an effect. Such laws, to answer the intended purpose, require a perfect mastery in the science of law, considered in respect of its form — in the sort of anatomy spoken of in the preface to this work: but a perfect, or even a moderate insight into that science, would prevent their being couched in those loose and inadequate terms, in which they may be observed so frequently to be conceived; as a perfect acquaintance with the dictates of utility on that head would, in many, if not in most, of those instances, discounsel the attempt. Keep to the letter, and in attempting to prevent the making of bad laws, you will find them prohibiting the making of the most necessary laws, perhaps even of all laws: quit the letter, and they express no more than if each man were to say, Your laws shall become ipso facto void, as often as they contain any thing which is not to my mind.

Of such unhappy attempts, examples may be met with in the legislation of many nations: but in none more frequently than in that newly-created nation, one of the most enlightened, if not the most enlightened, at this day on the globe.

27. Take for instance, the Declaration of Rights, enacted by the state of North-Carolina, in convention, in or about the month of September 1788, and said to be copied, with a small exception, from one in like manner enacted by the state of Virginia.a

a Recherches sur Les Etats Unis, 8vo. 1788, vol. i. p. 158.

The following, to go no farther, is the first and fundamental article:—

“That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”

Not to dwell on the oversight of confining to posterity the benefit of the rights thus declared, what follows? That — as against those whom the protection, thus meant to be afforded, includes — every law, or other order, divesting a man of the enjoyment of life or liberty, is void.

Therefore this is the case, amongst others, with every coercive law.

Therefore, as against the persons thus protected, every order, for example, to pay money on the score of taxation, or of debt from individual to individual, or otherwise, is void: for the effect of it, if complied with, is “to deprive and divest him,pro tanto, of the enjoyment of liberty, viz. the liberty of paying or not paying as he thinks proper: not to mention the species opposed to imprisonment, in the event of such a mode of coercion being resorted to: likewise of property, which is itself a “means of acquiring, possessing, and protecting property, and of pursuing and obtaining happiness and safety.

Therefore also, as against such persons, every order to attack an armed enemy, in time of war, is also void: for, the necessary effect of such an order is, “to deprive some of them of the enjoyment of life.

The above-mentioned consequences may suffice for examples, amongst an endless train of similar ones.b

Leaning on his elbow, in an attitude of profound and solemn meditation, “What a multitude of things there are,” exclaimed the dancing-master Marcel, “in a minuet!”— May we now add? — and in a law!

b The Virginian Declaration of Rights, said, in the French work above quoted, to have been enacted the 1st of June 1776, is not inserted in the publication entitled “The Constitutions of the several independent States of America, &c.Published by order of Congress: Philadelphia printed: Reprinted for Stockdale and Walker, London, 1782: though that publication contains the form of government enacted in the same convention, between the 6th of May and the 5th of July in the same year.But in that same publication is contained a Declaration of Rights of the province of Massachusetts, dated in the years 1779 and 1780, which in its first article is a little similar: also one of the province of Pennsylvania, dated between July 15th and September 28th, in which the similarity is rather more considerable.Moreover, the famous Declaration of Independence, published by Congress July 5th, 1776, after a preambular opening, goes on in these words: “We hold these truths to be self-evident: that all men are created equal; that they are endued by the Creator with certain unalienable rights; that amongst those are life, liberty, and the pursuit of happiness.”The Virginian Declaration of Rights is that, it seems, which claims the honour of having served as a model to those of the other Provinces; and in respect of the above leading article, at least, to the above-mentioned general Declaration of Independency. See Recherches, &c. I. 197.Who can help lamenting, that so rational a cause should be rested upon reasons, so much fitter to beget objections, than to remove them?But with men who are unanimous and hearty about measures, nothing so weak but may pass in the character of a reason: nor is this the first instance in the world, where the conclusion has supported the premises, instead of the premises the conclusion.

Essay on the Promulgation of Laws, and the Reasons Thereof; with Specimen of a Penal Code.

I.

Promulgation of the Laws.*

Let us suppose the general code completed, and that the seal of the sovereign has been set to it. What remains to be done?

That a law may be obeyed, it is necessary that it should be known: that it may be known, it is necessary that it be promulgated. But to promulgate a law, it is not only necessary that it should be published with the sound of trumpet in the streets; not only that it should be read to the people; not only even that it should be printed: all these means may be good, but they may be all employed without accomplishing the essential object. They may possess more of the appearance than the reality of promulgation. To promulgate a law, is to present it to the minds of those who are to be governed by it in such manner as that they may have it habitually in their memories, and may possess every facility for consulting it, if they have any doubts respecting what it prescribes.

There are many methods of attaining this end: none of them ought to be neglected; but it has been too common to neglect them all. The forgetfulness of legislators in this respect has exceeded every thing which could have been imagined. I speak more particularly of modern legislators. We shall find models deserving of imitation in antiquity; and it is astonishing that the example which should have had the greatest weight among Christian nations, should have had scarcely any influence in this respect. They have borrowed from Moses, laws which possessed only a relative and local utility; but they have not imitated him in that which bears the noblest character of wisdom, and which is suited to all times and all places.

It is said by some naturalists, that the ostrich is among the most stupid of birds, inasmuch as it leaves its eggs in the sand, unmindful that the passing foot may crush them. If this were true, Bacon, who has converted into sources of wisdom so many of the ancient fables, might have turned it into an apologue; and the legislator who, after having framed his laws, abandons their promulgation to chance, and thinks that his task is finished when the most important of his duties has only begun, would have been represented by the ostrich.

It is true, that before laws can be promulgated, they must exist. That which is called unwritten law, which consists of rules of jurisprudence, is a law which governs without existing. The learned may exercise their ingenuity in guessing at it; but the unlearned citizen can never know it. Were these rules to receive an authentic form, and to be promulgated, they would no longer be mere rules, but would become real laws. To render them such, has been one of the great objects of my plan; and the facility of promulgation has been one of the principal objects which I have had in view. It is with this view that I have divided the general code into particular codes, that they may be separated or collected together, according to the powers and wants of the individuals whom they respectively concern.

To promulgate the English laws as they exist at present; to pile the decisions of the judges upon the top of the statutes of parliament, would be chimerical: it would be to present the sea to those that thirst: it would do nothing for the mass of the people, who would not be able to comprehend them. A point, say the mathematicians, has no parts: so neither are there any parts in chaos.

If the laws be good, it is desirable that they should be known; if otherwise, the knowledge of them may be mischievous: for example, if you leave in your code bad coercive laws, persecuting laws, it is well that they remain undiscovered by informers. If your laws of procedure favour the impunity of crimes; if they afford means of eluding justice, of evading taxes, of cheating creditors, it is well that they remain unknown. But what other system of legislation besides this will gain by being unknown?

There are some laws which seem to have a natural notoriety: such are those which concern crimes against individuals; as theft, personal injuries, fraud, murder, &c. But this notoriety does not extend to the punishment, which, however, is the motive upon which the legislature relies for procuring obedience to the law. It does not extend even to those circumstances, often so delicate, which must be noticed before the line of demarcation can be traced among so many crimes differently punished, nor even to those actions which are either innocent or meritorious.

The dissemination of the laws ought to be regulated by the number of persons whom they concern. The universal code ought to be promulgated to all. The particular codes ought to be set before the classes to which they respectively refer. A road-book is useful, but it is of most use to those who are to be guided by its regulations, and who wish to travel.

The universal code of all secular books would be the most valuable, and almost the only one necessary for all; if not as a book of law, at least as a book of morals.

The sacred books command men to be honest: a good code would explain in what justice consists, and would exhibit in what manner it was possible to be unjust.

Probity, prudence, benevolence; these are the subjects of morality. The law ought, however, to include all that relates to probity; all that teaches men to live together without injuring each other.

There will then remain for morality, prudence and benevolence: but secure probity, and prudence will have fewer snares to escape, and will walk more securely: prevent men from injuring one another, and benevolence will have fewer sufferings to relieve.

Methods of Promulgating the Universal Code.

Schools.

It ought to be made the chief book; one of the first objects of instruction in all schools: it formed the foundation of instruction among the Hebrews; and tradition relates, that the Jewish kings were required to make a copy of the whole law with their own hands.

In those cases in which a certain degree of education is required as a pre-requisite to the enjoyment of a certain employment, the aspirant might be required to produce an exact copy of the code, written with his own hand, or translated into a foreign language.

The most important parts of it might be committed to memory, and repeated as a catechism: that, for example, which contains the definition of offences, and the reasons for their being ranged into classes.

In this manner, before sixteen years of age, without hindrance to any other studies, the pupils in public schools would become more conversant with the laws of their country, than those lawyers at present are, whose hair has grown grey in the contentions of the bar. The change would arise out of the nature of the laws themselves.

The pupils might translate the national code into the dead languages; they might translate them into the living languages; they might turn them into verse, the mother tongue of the laws.

“Teach your children,” said an ancient philosopher, “what they ought to know when they are men, and not what they ought to forget.” This philosopher would not have condemned the new study I propose.

Churches.

Why should not the reading of the laws form, as it did among the Jews, a part of divine service? Would not the association of ideas be beneficial? Would it not be well to represent the supreme Being as the protector of the laws of property and security? Would it not add dignity to the ceremony, if the laws respecting parents and children were read upon the performance of baptism? and the laws respecting husbands and wives at the time of marriage?

This public reading in places of worship would be, as respects the most ignorant classes, a means of instruction, as little costly as it would be interesting; and the code would be unnecessarily voluminous, if it would not be possible to read it through many times in the year.

Different Places.

The laws which only concern certain places; as markets, theatres, highways; ought to be fixed up in the places themselves, where it is desirable that they should be present to the minds of those who have to observe them. There are few men who would dare to violate a law, speaking as it were to all eyes, and addressing itself to all as to so many witnesses upon whom it would call to bear testimony against the evil doer.

Translations.

If the nation which ought to obey the same laws is composed of different peoples, speaking different languages, it is proper that an authentic translation of the code should be made into each of these languages. It is also proper that it should be translated into the languages of the principal nations of Europe. The interests of these nations are so mingled, that they have all occasion to understand the laws of the others. Besides, it would prevent a stranger from falling into those faults which he might otherwise commit through ignorance of the law, and also guard him from the snares which otherwise might be laid for him by abusing his ignorance. Hence would arise security for commerce, and confidence in transactions among foreign nations. It is a proceeding called for by candour and honesty.

Have you any thing contrary to the ordinances of the king? is the foolish and insidious question asked at many custom-houses of the stranger, who, perhaps for the first time, enters the kingdom. How should he know those ordinances? He might reply, Does the king himself know them? My reply may constitute either a snare or an offence. Show me your ordinances in my own language, and then, if I deceive you, punish me.

Particular Codes.

In taking up a condition, every citizen should be obliged to provide himself with the code which relates to that condition. The code, according to its extent, should be printed as a book, or on a sheet. In those cases in which the whole code cannot be printed on a sheet, an abridgement or index to it ought so to be. This sheet should be required to be stuck up in a fixed place, and its exhibition in this manner should be made a matter of police, as it respects shops, places of amusement, theatres, &c. The rogues would doubtless be disposed to throw a veil over so unwelcome a witness against them; in the same manner as certain devotees are reported to have done, when they wished not to be seen by their saints.

Laws concerning Contracts.

There is one species of promulgation specially adapted to agreements among individuals and to wills. With regard to things of sufficient value, it might be required that they should be written upon stamped paper, which should bear upon its margin a notice of the laws concerning the transaction to which it referred. This plan is borrowed from English jurisprudence: but the instances in which it has been employed are very few, in comparison with those in which it has been neglected, and in which it would have been equally useful. I have gathered with carefulness this precious seed, that its cultivation may be extended.

* Edited from the French of Dumont, and the original MSS. and printed works of Bentham.

II.

Promulgation of Reasons.

For writing laws, it is enough to know how to write: for establishing them, it is only necessary to possess power. The difficulty consists in establishing good laws. Now good laws are those for which good reasons are assignable: but it is one thing to have established good laws justifiable by good reasons; another thing to have discovered those reasons, and to have presented them to view in the most advantageous light. A third problem, yet more difficult of solution, is to find a common base for all the laws; one unique and clear principle: to shew their harmony with it; to dispose them in the best order; to give them the greatest simplicity and the greatest clearness of which they are susceptible: to find an isolated reason for a law, is to do nothing. A comparative balance for and against is desirable, since we cannot rely with confidence upon a reason, unless we can be assured that there is nothing stronger to oppose to it in a contrary direction.

To the present time, reasons have been regarded as works of supererogation.* We need not be astonished at this. Legislators have been hitherto directed upon the most important points by a species of instinct: they have felt an evil; they have confusedly sought for a remedy. Laws have been made nearly in the same manner as the first towns were built. To look for a plan among these heaps of ordinances, would be like searching for an order of architecture amidst the huts of a village. Will it be believed, that it has been laid down as a principle that a law ought only to bear a character of absolute authority? Lord Chancellor Bacon, the great restorer of learning, will not allow that reasons should be assigned, because it might lead to disputes concerning the law. He might, perhaps, have felt that the best reasons he could have given would have been found imperfect: he had no desire to satisfy the people; no inclination to take the pains necessary for satisfying them. Besides this, in his time the wisdom of kings scarcely differed from the divine: stet pro ratione voluntas, was their motto.

It must be acknowledged, that at the period at which Bacon lived, the notions respecting the principles of law were too imperfect to serve as the foundation of a reasonable system. He was more qualified than any one to expose the fallacy of the best reasons which could have been assigned for the greater part of the then existing laws; and therefore he might fear to expose them to a trial which they could not sustain. But this is no ground for fear, that laws founded upon reasons based in utility will be liable to be thus overthrown: when such a code shall have been accomplished, should all the lawyers in the world attack it with keenest appetites, what would be the result? They would be like vipers biting at a file.

There would have been many more codes supported by reasons, if those who have made the laws had believed themselves to be as superior in information to their fellow-men, as they felt themselves to be in power. Those who had felt themselves furnished with strength to enter upon the career, would not have renounced this more flattering part of their employment. If there had been no occasion to satisfy the people, they would have been desirous of satisfying themselves: they would have felt that it was not right to assume infallibility at the same moment that they renounced the guidance of reason. Those who are able to convince men, will treat them like men; those who only command, avow their inability to convince.

It is difficult, if not impossible, that the composition and sanction of a code of laws should proceed from the same hand. The situation in which a sovereign is placed, the kind of life to which he is accustomed, the duties he has to fulfil, absolutely exclude him from the knowledge of the details which such a work demands. Engaged in the labyrinths of jurisprudence, a Cæsar, a Charlemagne, a Frederick, would appear no more than an ordinary man. It is therefore impossible that such a work should be the result of the personal knowledge of a sovereign. Suppose a perfect code framed, the sovereign who should recognise its merit, and give it his support, would rank above all other sovereigns. He would not, however, be considered the author of the reasons by which the code was attended: these would have proceeded from the hand which penned them. The compiler of the code and the sovereign would each have their parts to act before the public. “You tell me,” might the latter say, “that the laws you have framed are only good and wise, and it is well: subject them to the proof.” “Sire,” might the compiler reply, “the laws which I have proposed are not the product of caprice; there is not a syllable which I have put there, for which there did not appear to me a good and conclusive reason; not a single regulation which did not appear to me the best that could be adopted under the present circumstances of your people. Permit me, then, to add my reasons throughout the whole of your code: by no other means can you be so completely assured of their merit, or I who have adopted or invented them, or the people who will have to obey them.”

Besides, if the name of the sovereign has most influence upon the present generation, that of the compiler will have most with the generations to come. Power, whilst living, may ally itself with the reputation of wisdom; but this union is dissolved by death. The veneration for great talents is increased when the foibles of the individual are forgotten, and when the dread of rivalry no longer exists. The veneration which thus attaches to the man of genius who is dead, will serve to protect his labours against precipitate change.

We proceed to consider, in greater detail, the different advantages which would result from a constant and sustained application of this method. An innovation always requires to be justified: an innovation which extends to the entire system of the laws, requires the strongest reasons for its justification.

We may observe, then, in general, that if the laws were constantly accompanied with a commentary of reasons, they would better fulfil the design of the legislator in all respects: they would be more pleasantly studied, more easily known, more constantly retained, and more cordially approved. All these desirable effects are intimately connected among themselves, and the attainment of either is one step towards obtaining the others.

If the study of the law is dry, it arises much less from the nature of the subject, than from the manner in which it has been treated. That which renders books of jurisprudence so dry and wearisome, is the confusion, the want of connection, the appearance of caprice, the difficulty of discovering any reason, and the barbarous nomenclature of the mass of incoherent and contradictory laws. Compilers have made their works an exercise of patience, and have addressed them only to the memory. The laws presented under this austere form appear only to require obedience, and never lay aside their severity. Let the laws be accompanied by justificatory reasons: this will shed a portion of interest over the laws themselves, and make the study of them agreeable. In reading the laws, we shall then learn to think, and shall discover the solution of many enigmas which had previously been inexplicable to us: by this means we shall enlarge and strengthen our minds; we shall be admitted into the counsels, as it were, of the philosophers and sages who have framed the laws, and shall find, in their works, a manual of philosophy and morals. The truths developed in the laws are interesting: and when they shall thus have been clearly arranged, and their connection exhibited, this study will become interesting to the young, instead of repulsive even to those who are compelled to engage in it. When it shall be shown to be connected with reason and philosophy, and shall have been rendered easy of acquisition, it will even become a disgrace not to be acquainted with it.

This exposition of reasons will render the laws more easily understood. A rule, the reason of which is unknown, takes no hold upon the understanding: those things are best comprehended, of which we know the why and the wherefore. The terms of law may be clear and familiar: add to them the reason of the law, and the light is increased; no doubt rests upon the real intention of the legislator; the mind of the reader holds immediate communion with the mind of the author.

The more clearly the laws are understood, the more easily will they be retained. The reasons annexed will serve as a kind of technical memory: they will serve as a species of cement, by which to unite all those regulations which would otherwise appear as fragments and dispersed ruins.

The reasons themselves would serve as a kind of guide in those cases in which the law was unknown: it would be possible to judge beforehand what its regulations would be; and by knowing the principles of the legislator, to place oneself by imagination in his situation; to divine or conjecture his will in the same manner as we conjecture what would be the determination of a reasonable being with whom we had long lived, and with whose maxims we were well acquainted.

But the greatest advantage is that which results from conciliating the approbation of all minds, by satisfying the public judgment, and obtaining obedience to the laws; not from a passive principle of blind fear alone, but with the concurrence of the will also.

When the people are dreaded, reasons are sometimes offered to them. But this extraordinary method rarely succeeds, because it is extraordinary: the people suspect there is some intention to deceive; they are put upon their guard, and yield rather to their mistrust than to their judgment.

Without reasons, all laws may be condemned or defended with equal blindness. If we listen to innovators, the most salutary law will be designated as tyrannical: if we listen to a crowd of lawyers, the most absurd law, if its origin be unknown, will pass for wisdom itself.

Exhibit the reasons of the laws, and you disarm all cheats and fanatics; because thus you will give to all discussions respecting the laws a clear and determinate object. There is the law: there is the reason assigned for that law. Is it a good reason? is it bad? The question is reduced to this simple issue. But those who have studied the progress of political quarrels, know that the object of the heads of parties especially is to avoid this fatal shoal, this examination of utility: personalities, antiquity, law of nature, laws of nations, and a thousand other terms of this kind, have been invented as a means of preventing recourse to this short method of shortening and resolving controversies.

If the laws were founded upon reason, they would infuse themselves, so to speak, into the minds of the people: they would form part of the logic of the people; they would extend their influence over their moral nature: the code of public opinion would be formed by analogy upon the code of the laws, and by the agreement between the man and the citizen: obedience to the laws would come to be hardly distinguishable from the feeling of liberty.

The commentary of reasons would be of great utility in the application of the laws: it would be a compass for the judges and all government functionaries. The reason assigned would unceasingly direct back to the intention of the legislator, all those who wandered from it. A false interpretation would not square with this reason: unintentional errors would become almost impossible: prevarications could not be hidden: the whole course of the law would be enlightened, and the citizens would judge the judges.

In a point of view still more enlarged, the adoption of this plan is recommended by its influence upon the perfection of the law. The necessity of furnishing a sufficient reason for every law, would be a preservative against a blind routine on the one hand, and a restraint to every thing arbitrary on the other. If you are required to state your reason for each proposition, it will be necessary to think, instead of to copy; to possess clear ideas, and to admit nothing without proof. There will no longer be any opportunity for preserving in the laws fantastic distinctions, useless regulations, unnecessary restraints: inconsistencies will become too prominent: the disproportion between good and evil will become too offensive. The most defective parts will continually tend towards amelioration upon the plan of the most perfect. Those parts which have attained the highest possible degree of perfection will never lose it: a good reason for their existence will always prove a safeguard, which will defend them against precipitate and capricious changes: a phalanx so strong will daunt the most audacious innovator. The strength of the reason will become the strength of the law: it will act as an anchor to prevent the vessel from being driven about by the force of the winds, or being insensibly drawn aside by the currents.

It may be said that the laws, and especially the most essential laws, are founded on such palpable truths, that it is unnecessary to prove them. The end of reasoning is conviction; but if complete conviction already exist, for what purpose employ reasoning to produce it?

There are truths which it is necessary to prove; not for their own sakes, because they are acknowledged, but that an opening may be made for the reception of other truths which depend upon them. It is necessary to demonstrate certain palpable truths, in order that others, which may depend upon them, may be adopted. It is in this manner we provide for the reception of first principles, which, once received, prepare the way for the admission of all other truths. All the world acknowledges that assassination is an evil action: its punishment ought to be severe: every body is agreed again. If it is necessary to analyze the mischievous effects of assassination, it will be necessary as a step towards bringing men to acknowledge the fitness of the law which distinguishes between different species of assassination, that it may only punish them according to their respective degrees of malignity; that those actions which bear the exterior characters of assassination, but do not produce its bitter fruits, may either not be punished, or only punished in a less degree: for example, suicide, duelling, infanticide, murder after violent provocation, &c.

In the same manner it is necessary to expose the evil of theft; not that men may be led to agree that theft is an evil, but that they may be led to acknowledge a multitude of other truths which, without this demonstration, would still be neglected. It is necessary that a variety of actions may be collected together under this head of crime, which have been hitherto neglected, and for detaching others which have no sufficient relation with crimes of this class: in a word, it is necessary for the purpose of collecting all the true and genuine species, and rejecting all the spurious, in order to establish the grounds for appointing different degrees of punishment.

Why should the laws of one state be unknown in every other? They have been thrown together at hazard, without connection, and without arrangement. There is no common measure among them. Without doubt, there are cases in which diversity of situation may demand diversity of legislation; but these cases can only exist in a few instances, and those much fewer than is usually imagined. In this respect, it will be proper to distinguish between an absolute and a temporary necessity: an absolute necessity is founded upon circumstances that cannot change; a temporary necessity is founded upon accidental circumstances, which may change.

If there be one method better calculated than another to bring nations more nearly together, this which I propose, of a system of laws founded upon reasons clearly announced, is one. The free communication of knowledge will propagate this system in all directions the instant it is created: such a system of legislation will prepare for itself a universal dominion.

Since philosophers have begun to compare the laws of different nations; when they have been able to divine any reason, to observe any relation of resemblance or of contrast, it has been a species of discovery. If legislators had been guided by the principle of utility, these researches would have been without an object: the laws derived from the same principle, tending towards the same object, would no longer present systems more ingenious than solid, in which we have to seek to find any reason at all; and in which, when any one fancies he finds a reason for a law, he thinks the law is justified.

Montesquieu has often misled his readers: he employs all his mind, that is to say, a mind of the first order, in discovering, amid the chaos of laws, the reasons which may have influenced the legislators. He has been desirous of lending them a wisdom of intention in institutions the most contradictory and the most extravagant. But when we agree with him that he has discovered their true motives, at what conclusion do we arrive? They acted upon a reason; but was this a good reason? If it were good in some respects, was it the best reason? If they had made a law directly opposed to it, would they not have done better? Such is the examination which always remains to be made: such is the examination to which he scarcely ever descends.

The science of legislation, though it has made but little progress, is much more simple than one would be led to believe, after reading Montesquieu. The principle of utility directs all reasons to a single centre: the reasons which apply to the detail of arrangements are only subordinate views of utility.

In the civil law, reasons should be drawn from four sources; that is to say, from the four objects, according to which the legislator ought to regulate his conduct in the distribution of private laws: subsistence, abundance, equality, security.

In penal laws, the reasons should be drawn from the nature of the evil of offences, and from that of the remedies of which they are susceptible. These remedies are of four kinds: preventive remedies, suppressive remedies, satisfactive remedies, penal remedies.

In the law of procedure, the reasons should equally derive their source from the different ends which ought to be kept in view: correctness of judgment, quickness, and economy.

In financial law, the reasons should be drawn from two principal objects: saving in expense, in order to avoid the evil of constraint; choice of the tax, in order to avoid its accessory inconveniencies.

There are some parts of the law in which the custom of assigning reasons has been followed to a certain point; in matters of police, of finance, and political economy. Their objects are modern: it has been necessary to create every thing, nothing relating to them being found in the ancient laws. What has been done, has been not only an invention, but a positive opposition to ancient usages and prejudices. Hence it has been necessary to combat them; it has been necessary that authority should justify itself. Such was the origin of those preambles to their laws, which procured so much credit to M. Turgot and M. Neckar.

But there are much more important branches of legislation, in which it has not been customary to assign any reasons: the civil code, the penal code, the code of procedure. If it has not been done, it is not that they have not dared to do it, but because they knew not how. Lawyers have among themselves a peculiar language, technical reasons, conventional fictions, a logic current at the bar: but they have an indistinct perception that the public will not receive it with the same complacency as themselves; that they will not be satisfied with the same jargon.

If the chancellors of kings had been such men as Turgot and Neckar, they, like them, would have felt more pride in giving their reasons than in making their edicts. In making laws, it is only necessary to occupy a certain position: in order to make a reasonable law, and to give reasons for it, it is requisite that the party be worthy of that position.

But an isolated reason is a mere trifle: the reasons for the laws, if they are good, are so connected, that unless they have been prepared for the whole body, they cannot with certainty be given for any part. Hence, in order to present in the most advantageous manner the reason for a single law, it is necessary that the plan of a system of reasons for all the laws should have been formed. It is necessary previously to have laid the foundation of a reasonable system of morality, to have analyzed the principle of utility, and to have separated it from the two false principles of sympathy and antipathy.

To give a reason for a law, is to show that it is conformable to the principle of utility.

In accordance with this principle, the repugnance which a certain action inspires is not a sufficient ground for its prohibition. Such a prohibition would only be founded upon the principle of antipathy.

The satisfaction which another action affords to us, is not a sufficient ground for a law authorising its performance. Such a law would be only founded upon the principle of sympathy.

The principal business of the laws, the only business which is evidently and incontestibly necessary, is the preventing of individuals from pursuing their own happiness, by the destruction of a greater portion of the happiness of others. To impose restraints upon the individual for his own welfare, is the business of education; the duty of the old towards the young; of the keeper towards the madman: it is rarely the duty of the legislator towards the people.

It is not a merely speculative idea which is thus recommended: a system of penal laws has been thus sketched out, and accompanied with a commentary of reasons, by which even the least important regulations are justified. I am so convinced of the necessity of this exposition of reasons, that I would not dispense with one of them at any price. To confide in what is called a feeling of justice, a feeling of truth, is a source of error. I have seen, upon a thousand occasions, that the greatest mistakes are concealed in all those feelings which are not brought to the touchstone of examination. If this feeling, this first guide, the avant courier of the mind, be correct, it will always be possible to translate it into the language of reason. Pains and pleasures, as I have repeatedly shown, are the only clear sources of ideas in morals. These ideas may be rendered familiar to all the world. The catechism of reasons is worthless, if it cannot be made the catechism of the people.

I add here, as an example of this theory, the first chapter of the Penal Code. I have not, however, given the whole of it, nor inserted all the forms and references which it ought to have, if it formed a part of the code itself. This species of precision would be superfluous here. This example may also serve as a recapitulation of this essay, by showing how its principles may be put in execution, and in what manner its theories may be carried into practice.

Penal Code. —

Table of Contents(1), as shown by Titles of Chapters and Sections.

Specimen of a Penal Code.*

Of Simple Personal Injuries.

SimpleCorporal Injury is either positive or negative. There is positive simple corporal injury, when, without lawful cause,a an individual has caused,b or contributedc to cause, to another, a corporal pain, either light or weighty,d which is not followed by any ulterior corporal evil.e There is simple corporal injury,f when, without lawful cause, an individual, seeing another in danger, abstains from helping him,g and the evil happens in consequence.

Punishments.

1. Fine. At the discretion of the tribunal.

2. Imprisonment. At the option and discretion of the tribunal.

3. Security for good Conduct. This also at option and discretion.

4. In very grave cases, Banishment from the presence of the party injured, for a time or for ever. This also at option and discretion.

5. Costs. At option and discretion.

N.B. Each of these articles requires references to the different sections of the general head of “Punishments;” there, the phrases at option and discretion should be explained.

At option, is a concise method of expressing that it will be lawful for the judge either to employ this punishment or not.

At discretion, signifies that the judge ought to employ a certain portion of this punishment, with this limitation, that he should employ so much or so little, as shall be conformable to the general rules prescribed to him under the general head of “Punishments.”

Aggravations.

1. Superiority of Age. When the offended person is older than the offender.

2. Sex. When the party injured is a female, and the delinquent a male.

The extra-portion of the punishment ought to consist of a characteristic penance, at the choice of the tribunal, with greater or less publicity, at its discretion.

3. Weakness. When the party injured is the inferior, either as respects natural strength or difference of weapons, so that he had no chance of defending himself with success.

4. Numbers. When, on account of the number of aggressors, resistance was unequal or impossible.

5. Parental Relation. When the party injured stands in the relation of father or mother, grandfather or grandmother, to the delinquent.

The delinquent in such case should always, in addition to the ordinary punishment, undergo a penance, more or less public, upon the stool of repentance, with his hands tied above his head, and an inscription stating his offence.

6. Quasi-paternity. When the delinquent is a minor, and the party injured his guardian, his preceptor, or his master.* He who brings us up is a second parent. This circumstance will still have some force; but it will be less when the delinquent has attained his majority.

If there be no ground of extenuation, an extra portion of characteristic punishment should be awarded, as for a like injury done to a parent.

7. Premeditation. The longer an offence is premeditated, the greater is the aggravation. It is written, “Let not the sun go down upon your wrath.

8. Nocturnal Irruption. This is the case when the premeditated offence is committed at night, after being concealed on the premises to wait a favourable opportunity, or when the offender has broken in, or has attempted to break into the dwelling of the party injured.

The extra portion of punishment should be characteristical at the option of the tribunal, and attended with more or less publicity at discretion.

9. Ambuscade. As when an offender makes a sudden attack upon his adversary when unprepared; as if, for example, he hide himself behind a wall, a hedge, or in a hollow way, or spreads his snare by night.

10. Violation of Asylum.

11. Violation of Sleep.

12. Clandestinity. As when the delinquent endeavours to hide himself, or to evade, by other means, the pursuit of justice.

13. Disguise. As when the delinquent, either by wearing a mask, or other clothes than his own, seeks to render himself unknown.

As an extra-punishment, he may be exposed to a penance, more or less public, in an iron mask, or in a dress similar to that in which he had disguised himself.

14. Salary. When the delinquent has been hired to commit the crime.

A characteristic punishment would be a more or less public exhibition of the delinquent, with the wages of his iniquity suspended about his neck.

There are some cases in which this punishment ought not to be inflicted, unless the offence is a very grave one. The first is, when it has not been premeditated, and when the suborner can shew some provocation received: the second is, when the suborner, thus provoked, is the weaker, or of a superior rank to the party injured.

15. Project of Coercion. When the object of the offence is to compel the party injured to do or not to do a certain thing; the offence nevertheless not being a theft or an act of clandestine or violent destruction.

Extra punishment, characteristic punishment, the extortion press, the cap of repentance: these at option of the tribunal.

Fine, even to the whole of his property; confinement, banishment, forced labour, limited or perpetual: these at discretion.

Extenuations.

When the delinquent has really received, or sincerely believes himself to have received, a provocation from the party injured, this may be a source of extenuation. That which constitutes the provocation is a wrong: this wrong may be of a legal or moral kind.

Explanations.

The sincere persuasion of even an imaginary wrong, furnishes some degree of extenuation. It is of no consequence whether the erroneous supposition in this case rest upon a point of fact or a point of law. It turns upon a point of fact, when you believe that you have received a certain damage from your adversary, and he has really not done it to you: it turns upon a point of law, when you believe that he has no right to do you a certain damage, and he really has the right to do it.

It is of no consequence to whom the wrong in question immediately refers: whether to the party himself provoked, or to any person particularly dear to him; or to the public in general, for the interests of the public ought to be dear to every one; or to the person himself who gave the provocation, for each individual should be dear to every man: consequently, if you think you see any one plunging into vice, and the vexation with which you resent his evil conduct lead you to strike him, it is a less crime than if you had struck him in the course of a quarrel arising out of your own interests.

The wrong done may be either moral or legal. A legal wrong is one which is punishable by the laws: a moral wrong may be any act, whether punishable by the laws or not, which being hurtful to the party injured, is liable to be punished by the censure of the world: for example, an act of violence, of perfidy, or of ingratitude.

General Observation.

The extenuation furnished by provocation, is greatest in proportion to the following circumstances: 1. The gravity of the wrong. 2. The recentness of its date. 3. The difficulty which the injured party might have in obtaining legal redress.

Explanations.

The gravity of the wrong, upon this occasion, ought not to be estimated simply according to the evil of such an offence to society in general, but with a view to its tendency particularly to excite resentment: consequently, a personal insult, or an act of defamation, constitutes a strongerprovocation than a theft.

The date of a provocation requires some particular remarks. At the same distance of time, a provocation may be more or less lively, according to its magnitude: that which weighs down the heart may be yet recent; whilst another, which is lighter in comparison, may be forgotten. However, as a boundary is requisite, a provocation ought not to be esteemed recent, if more than a month have elapsed between the time of its receipt, and the occurrence of the fact to which it is alleged to have given rise.

A provocation should be dated, not from the time when it occurred, but from the time when it came to the knowledge of the party injured; and even every circumstance adding much to the malignity of the action, and only becoming known after the other parts had been known, should be deemed a renewal of the provocation: thus, if after having learned that a man had beaten your son; — a month afterwards you should learn that your son had lost an arm in consequence of the blows; or that a man with arms had fallen upon your son, who was disarmed, and that he had struck him after he asked for quarter: if you should attack this man in consequence, and beat him, the provocation in this case ought to be deemed recent.

Thus a train of distinct provocations, which are all recent with respect one to another, and of which the last is recent with relation to the fact in question, ought all to be esteemed recent in relation to this fact. This succession is what properly constitutes the unity of the quarrel.

Second Extenuation.

If a man, in defending his person or his property from attack, does more injury to his adversary than was necessary for its defence, the surplus is an injury; but an injury susceptible of excuse, in consequence of the provocation. This is even the most favourable case, since it is not only recent, but immediate.

In judging whether an attack could be repulsed with less evil to the aggressor, it is necessary to place oneself in the place of the attacked, and to recollect, that in the agitation of his mind he could not coolly consider all his means of defence, and choose precisely that which should accomplish his purpose with the least possible evil to his adversary. There is a great difference in this respect between the quiet of the closet and the bustle of action.

Suppose that a man suddenly assail you with a stick, and that there is at your door a stick and a bar of iron: you seize the bar of iron and strike the man a dangerous blow, or kill him. This ought to be deemed justifiable self-defence, unless it could be proved that you had deliberately taken the bar of iron in preference to the stick, with the intention of killing him, or wounding him more than was necessary for your security.

Commentary of Reasons Upon this Law.

First Question. Why are the slightest injuries of this kind rendered punishable?

Answer. Because there is always a reason for punishing it. There is no sensation, how indifferent soever it may appear, which may not become an intolerable torment from its duration or its repetition. Let any one be allowed to touch your person in any manner whatsoever without being called to account for it: he may abuse this liberty so much as to render your life a burthen to you: you become in effect his slave: you will live in a state of perpetual fear, and the feeling of your inferiority will never quit you.

On the other hand, if the offence is slight, the punishment may be so also; and how small soever the injury may be, the punishment may be diminished in proportion; because the judge may exercise his powers of discretion in this respect on the side of gentleness.

Second Question. Why are negative offences of this class rendered punishable, as well as positive offences?

Answer. Because in the one case, as well as the other, the punishment is well grounded, is efficacious, is necessary.

Third Question. Why is an ulterior punishment added to that which is included in the obligation to render compensation for the evil done?

Answer. Without this additional punishment, it will not, in every case, be certain that the amount of punishment exceeds the profit of the offence. How can it be ascertained that the compensation directed by the judge entirely accomplished its purpose? If it be not complete, the offended party, so to speak, loses; and the offender gains. Besides, there are differences in fortune, with regard to which a proportion is with difficulty established. It is much for one to receive a certain sum: it is very little for another to pay it. The rich would be led to persuade themselves, that for a certain price they might satisfy their resentment towards those of an inferior rank.

Fourth Question. Why is a fine found among the articles of punishment?

Answer. Because money levied by way of fine produces a double advantage: as punishment, by its effect on the delinquent; as a tax, which tends to diminish by its amount the taxes imposed upon the honest citizens.

Fifth Question. Why employ imprisonment?

Answer. To provide for the case in which the delinquent shall not have wherewith to pay a fine. Also to provide for the case of a delinquent secretly supported by a party: a punishment purely pecuniary would not at all affect him.

Sixth Question. Why require security?