Principles of Penal Law, by Jeremy Bentham

Appendix —

On Death-Punishment.

Jeremy Bentham to His Fellow-Citizens of France.

  1. Introduction.
  2. Bad property the first — Inefficiency.
  3. Bad Property the second — Irremissibility.
  4. Bad property the third — Tendency to produce Crimes.
  5. Bad property the fourth — Enhancing the evil effects of undue Pardon.
  6. Causes of the general approval of it.
  7. Its Inefficiency and Needlessness proved by experience.
  8. Capital Punishments.

§ I.

Introduction.

Fellow-Citizens! — Hear me speak a second time!

1. Among the topics of the day§ I behold the punishment of death. Shall it be abolished?

2. This question is of the number of those which for threescore years or thereabouts have been familiar to me: for these eightand-twenty years my thoughts on subjects of this nature have had the honour and good fortune of being viewed among you with eyes not altogether unfavourable: of these thoughts some there are, which, if capable of being of use at any time, present a better chance of being so at the present than at any other; and, moreover, as not being very likely to make their appearance from any other quarter. Put together, these reasons will (I flatter myself) be regarded as affording a tolerably sufficient warrant for this address.

3. Now, then, as to this same question. The punishment of death — shall it be abolished? I answer —Yes. Shall there be any exception to this rule? I answer, so far as regards subsequential offences, No: meaning, by subsequential, an offence committed on any day subsequent to that which stands appointed by the law, as that after which no such act of punishment shall be performed.

4. Meantime, on the part of rulers, general custom — general at least, not to say universal — delivers its testimony in favour of this punishment. This considered, a consequence is — that to justify the abolition of it, determinate reasons are requisite: this I cannot but acknowledge.

5. Well, then, various features of inaptitude — features peculiar to itself — features such as, when taken together, will be seen to be absolutely conclusive — I have to charge it with. Inaptitude is a term of reference:— subject-matter of reference, the end in view. End in view, on the present occasion, prevention of the like acts of maleficence in future. This is, at any rate, the main end: any others, of which mention may come to be made, will be seen to be of no other than subordinate importance.

6. Features of inaptitude, or say, in other words, bad properties. Here they follow:—

i. Bad property the first —Inefficiency:— comparative inefficiency — inefficiency, in comparison with other modes of punishment.

ii. Bad property the second —Irremissibility:— incapacity of being remitted as to the remainder, after a part has been undergone.

iii. Bad property the third —Positive maleficence:— tendency to produce crimes.

iv. Bad property the fourth —Enhancing the evils produced by ill-applied pardon.— Under these several heads, explanations will follow.

7. In favour of this punishment — in support of it against the argument afforded by the proof of all these its bad properties — the only argument adducible will be found to be — that presumption of its aptitude which is afforded by the extensiveness, as above, of the acceptance given to it. This presumption will be seen repelled, by indication made of the sources of the attachment to it thus manifested by rulers — sources, among which will not be found any experience of its comparative conduciveness to the only proper ends to which it is or can be directed.

8. To the proof of the bad properties thus charged upon it, you will see added the proof afforded of its needlessness: afforded — by experiments actually made, and the experience thereby obtained.

Should all these truths be rendered manifest and incontestable, can any further reason or argument in support of the proposed abolition of it be desired?

9. But, in and for the cases in which, at present, application is made of it, a succedaneum to it will be necessary. A succedaneum preferable to it in every imaginable particular will accordingly be indicated, and proposed for your consideration.

§ ii. —i.

Bad property the first — Inefficiency.

I. — 1. Now, then, for bad property the first —Inefficiency: that is to say, with reference to that same end in view, namely, prevention of acts similar to that in consideration of which application is made of it: I mean, acts on the part of individuals, other than the one to whom, on the individual occasion in question, it is applied; for, as to that one, the efficiency of it in this respect cannot (it must be confessed) be disputed.

2. Causes of this inefficiency, these —

i.Cause the first. On the part of the several descriptions of persons whose co-operation is necessary to the conviction of the criminal, reluctance as to the performance of their respective parts in the melancholy drama. These persons are —

  1. The Informer or Informers.

  2. Prosecutor or Prosecutors.

  3. Witnesses.

  4. Judges.

  5. Where Jury-trial is in use, Jurymen.

In any one of these several situations, let but the necessary service be withheld, the denunciation made of this punishment fails of being productive of the preventive effect looked for and endeavoured to be produced.

3. ii.Cause the second. On the part of the delinquent himself — that is to say, on the part of persons at large, considered as standing exposed to the temptation of becoming delinquents in this shape — comparative insensibility to the danger of punishment in this shape:— as to this matter, presently.

4. Look first at cause the first. Prodigious is the counteracting force with which you will see this same reluctance tending to destroy the efficiency of this mode of punishment:— prodigious, in comparison of that with which it acts in relation to any other mode.

5. And, as the dissocial affections decrease in strength, and the social increase — in a word, as civilization advances — the reluctance to contribute to the infliction of this punishment will increase: so, therefore, in the eyes of the individual in question, the apparent improbability of its infliction, and thence in his instance the probability of its being without effect.

6. Now for a measure of the degree of this same reluctance. Would you have an instructive one? Take, for the subject-matter of observation, a place, in which sympathy, for sufferings ordained by law, may be stated as being at its minimum — the heart of an English judge.

7. Case, prosecution for theft. Subject-matter, nine and thirty pieces of gold; value, nine and thirty pounds sterling: Judge’s charge — Gentlemen of the Jury, find the value nine and thirty shillings. Note, that, in England — the verdicts of jurymen are given on their oaths; and that the breach of an oath is termed perjury; and to induce a man to commit perjury, is termed subornation of perjury.

8. For what purpose, then, this subornation? For the purpose of preventing the execution of the law:— that law which he too is sworn to execute. Why thus seek to prevent the execution of the law? Because, by the law in question, where the value of the subject-matter of a theft was as high as forty shillings, no less punishment was allowed to be inflicted than a sort of olla podrida, called felony, of the ingredients of which death was one: and at the expense of this compound of perjury and subornation of perjury, and not otherwise, the substitution of a different punishment to death-punishment, on these terms, and no others, was effectible. Recommendation, given to a jury — to this effect, and with this effect — has long been a common practice.

9. When such is the reluctance, in a heart of such hardness as that of an English judge, steeled against all generous affections by sinister interest with the accompanying prejudices, think what it must be in a heart of average consistence, in the several other situations above mentioned.

10. Fellow-Citizens! who can now doubt but that, of the reluctance thus produced, impunity in vast abundance must have been the effect? And of the impunity, increase in the multitude of the several crimes: effect actually produced, the reverse of the effect intended, and supposed to be produced?

11. Is there any other punishment, in regard to which any such reluctance can be seen to have place? No, not one.

12. Think of the multitudes of men, of so many different classes, whose breasts one inclination or other employs itself in hardening against impressions from the fear of sufferance in this shape.

i. Military men, against death by warfare.

ii. Men of education, against death by duelling. In this case, the fact of the insensibility is out of dispute: its propriety is a consideration that belongs not to the present purpose.

iii. Seafaring men, of the non-military, as well as the military class.

iv. Men engaged for subsistence, in various occupations, in greater or less degree unhealthy.

But — why all this rambling? this resort to other countries? The question is a local one. Insensibility — to what? to the fear of death. In what place? In the hearts of Frenchmen. Wanted, for the occasion, a measure for the force of this quality. Fellow-Citizens! would you have a correct one? Look at home: Look at the work of the Three Days!

§ iii. —ii.

Bad Property the second — Irremissibility.

1. For this purpose, punishments may be distinguished into continuous and instantaneous: continuous, those which, being in their nature capable of continuing to be inflicted and suffered, for and during a length of time more or less considerable, may, after having been suffered for and during a part of that same time, be made to cease as to what remains of them: instaneous, such of which, if any part is suffered, so is every other part. Of the instantaneous, and in this sense, of the irremissible sort, is (as every one sees) death punishment.

2. By remission, understand — not prevention of the whole, but, after a part has been already undergone, prevention of the remainder.

3. Whatsoever, on the occasion in question, may be the demand for the remission of the punishment — death-punishment being thus instantaneous, is not capable of being remitted; consequently, in every case in which justice requires such remission, it is productive of injustice.

4. Of occasions, on which it may be manifestly desirable, that the punishment which a man has been sentenced to suffer should thus be remitted — examples (you will see) are these:—

i. Discovery of the innocence of the supposed criminal.

ii. Special service, in some determinate shape, capable of being rendered — by the criminal in question, and not by any other person.

iii. Indication, for example, of evidence probative of delinquency, in any shape, on the part of some other person.

iv. Or, of innocence on the part of some other person, who otherwise would have been convicted of delinquency, no matter in what shape.

v. Special service, in any other shape whatsoever, in which service can be rendered to mankind.

5. Death-punishment is thus rendered unapt — in comparison, not only of all continuous, but of other instantaneous punishments; for, in the case of every such punishment — mulct, pillory, whipping, for example — after the punishment has been undergone, there the man is, in a capacity of receiving satisfaction, in the shape of compensation, and whatever other shapes may be indicated — by the nature of the supposed offence committed, the punishment undergone, and the circumstances of the individual sufferer; in such sort that, suffering and satisfaction taken together, he may be — not a sufferer, but rather a gainer, upon the balance of the account.

6. And note — that, at the charge of some fund or other, satisfaction in the pecuniary shape, say in one word compensation, the man should be made to receive, in every case; that is to say, at the charge of individual witnesses and prosecutors, one or both, wherever the falsehood, by which the conviction was produced, had evil consciousness or temerity for its accompaniment on their part: failing that private fund — then at the charge of the public fund.

7. And thus it is — that, not only is death-punishment a punishment, of the infliction of which irreparable wrong may be the consequence; but it is the only mode of punishment of which so deplorable a result is a necessary consequence.

8. The comparative inefficiency of this punishment, in consequence of men’s reluctance to contribute to the infliction of it, has just been brought to view. To that same inefficiency, this same irremissibility cannot but be, in a greater or less degree, contributory. By the thought — that, should the suffering which his testimony, if given, will be productive of, turn out to be wrongful, the wrong will be irreparable — can it be, but that a man will be restrained from delivering such testimony, on many an occasion on which he would have delivered it, had the punishment been of no other sort than one, of which, if eventually found undue, the remainder might be remitted — and, for the part already undergone, reparation made? Reader! whoever you are, put this question to yourself, and make answer to it.

§ iv. — iii.

Bad property the third — Tendency to produce Crimes.

1. Now comes bad property the third —Tendency of this punishment to produce crime. Paradoxical as it may seem — the proposition by which this property is attributed to this same punishment, is not the less true. For this so extraordinary a property, it is indebted to its capacity of being applied to the extinction of evidence. For, you will see immediately, whatsoever evil is producible by false evidence, that same evil is producible by extinction of true evidence.

2. By false evidence, a man may be invested with a right that does not belong to him; he may be divested of a right that does belong to him: so, therefore, may he by extinction of true evidence.

3. By false evidence, a guiltless man may be made to suffer punishment, whether in the shape of death-punishment, or any other; a guilty man may be acquittal be exempted from all punishment — and, unreclaimed, let loose upon society, to add to the number of his crimes. So likewise may evil in these shapes be produced, by extinction of true evidence.

4. But, if any sort of crime there be, to which death-punishment is attached — then so it is — that, by prosecution, as for a crime of that sort, with false evidence for the support of it, and conviction thereupon pronounced, may a man be put out of the way — and the evidence, which he would have delivered on the occasion of such other suit, extinguished.

5. In this case, here is a man, who has been seduced and converted into a murderer. Seduced? and by whom? Even by the law herself, who has thus put arms into his hands, having prepared the judge and his subordinates to serve him in the character of instruments and accomplices. And thus it is — that, by means of death-punishment, may be produced — wrongs and crimes to any amount, which would not otherwise have had place.

6. In a word, death-punishment puts it in the power of any ill-disposed person, by extinction put upon true evidence, to produce any evil, producible by him by means of false evidence. By no other mode of punishment can evil, in this shape, be produced.

§ V. — iv.

Bad property the fourth — Enhancing the evil effects of undue Pardon.

1. Throughout the civilized world, pardon is as yet upon an unapt footing: and of this inaptitude, death-punishment is the main cause. Fellow-Citizens! you look for explanation: here it follows.

2. Punishment is everywhere an evil; but everywhere a necessary one: punishment, that is to say, suffering applied purposely by public functionaries. No punishment, no government; no government, no political society.

3. Punishment is everywhere necessary: the application of it is everywhere a necessary part of judicial procedure. But of that same procedure, power of pardon is moreover a requisite part; power of pardon, that is to say, as above, power of arresting the hands of the judge, and preventing him from applying punishment, notwithstanding that demand for it, which the conviction of the accused has proved to have place. Requisite, I say — not necessary: for, without the existence of any such power, government might be anywhere carried on. But in this case, evils of no small magnitude would unavoidably have place — evils which, by apt application of pardon-power, may be excluded; and, by such application as is actually made of them — are, in a degree more or less considerable, everywhere excluded.

4. On the other hand — evils there are, which are liable to be produced by pardon-power where unaptly applied; and, unaptly applied it is — when applied otherwise than under certain restrictions, of which presently. Not inconsiderable will these same evils be seen to be: and, in death-punishment you will see a main cause of them.

5. In what way? you ask. I answer — in this way. Whenever monarchy has place — a public functionary there is, in whose hands pardon-power has place; and the monarch is that functionary. How the case stands in this respect under a pure aristocracy, as in Switzerland — how, in a representative democracy, as in the Anglo-American United States — I stay not to inquire: to the present purpose any such inquiry would be irrelevant: only that you may see they are not overlooked, is this brief mention made of those cases.

6. You — so long as you have a king — you will have a functionary, in whose hands this same pardon-power will remain lodged. But, having in hand this power, he will have in hand an instrument, with which, if death has place in the list of punishments, it depends upon him, (unless restrained by conditions which will presently be brought to view)— yes, upon him it does depend, for the gratification of whatever may at any time be his desires, to produce evil without stint. Take for example murder: applying to murder this same power — it depends upon him — to murder any man — and as many men, as, at any time or times, it pleases him so to deal with; to apply to that purpose — not his own hands only, but any hand or hands, which, by remuneration, he can engage to lend themselves to this service. In a word, in this same power he possesses an instrument, which (always supposing death to have place on the list of punishments,) is, in the very nature of it, a perennial source of delusion corruption, and misrule, in every imaginable shape.

7. How so? you ask. I answer, thus: Wherever, with a title such as that of king, a monarch has place — so it is that, under the influence of fear and hope, imagination has exalted him into a being of a superior order — a sort of god. In this god upon earth, the people behold the god of their idolatry:— image, deputy, and representative, of the God which is in heaven. As such they worship him, they bow down to him, they kneel to him, they pray to him. Whatsoever it is that he bids them do, that of course they feel disposed to do, repelling as undutiful the consideration of what may be the consequences. To this maleficent exaltation, death-punishment is in a prodigious degree contributory. In the hands of the God of heaven, is the power of life and death: so accordingly is it in the hands of this god upon earth; in his hands and no others. The God which is in heaven has his attributes: some of them belong to him in severalty; others he holds in joint-tenancy, having for partner this his likeness — the god upon earth. In the import of the word mercy is included, the supposition of the existence of a power of producing pain and pleasure — of producing it in cases, in which the production of it is not required by justice; or, on any other score, by the greatest-happiness principle. Mercy is of the number of the attributes of the God of heaven: it is of the number of those, in which, by law, he has for partner, this his deputy — the god upon earth.

8. Thus mischievous is this same word mercy. In a Penal Code, having for its first principle the greatest-happiness principle — no such word would have place.

9. Power on the one part is created by obedience on the other part: correspondent, with perfect exactness, is this same power with this same obedience: correspondent and proportionate; neither greater nor less. By whatever hand political power in any shape is holden, a perpetual operation of it is — the pushing the power onwards, in every direction in which the man finds obedience yielding to it, and in every such hand, the abuse of this same power, except in so far as kept down by appropriate checks — rises in proportion to the quantity of it.

10. Fellow-Citizens! certain restrictions (I have said) there are, without which, by this same power, evils cannot fail to be produced. The restrictions I had thus in view, are these which follow:—

11. i. Restriction the first. — No pardon granted, but on condition — that, to the fact of its being granted, and the grounds on which it is grounded, the same publicity be given as to the fact, and ground of the conviction.

12. Proper grounds for pardon, these:—

i. Multitude of the delinquents. This applies, of course, not to any one separately considered, but to a part of the number:— a part, greater or less, according to the circumstances of the individual case.

ii. Since the conviction, discovery made of the convict’s non-guiltiness.

iii. On condition of receipt of the pardon, and not otherwise, special service in any shape rendered, or on adequate grounds expected to be rendered, by the convict; such service not being otherwise obtainable on such good terms.

iv. Special service, in the particular shape of indication made — of not less maleficent delinquency on the same occasion, or on any other occasion, on the part of some other individual; or needful evidence afforded, such as is not extractible from the delinquent himself.

v. In case of infliction, apprehension of displeasure at the hands of the people.

vi. In case of infliction, apprehension of displeasure at the hands of this or that foreign power.

13. What! says somebody — if the remission has for its ground — apprehension of displeasure at the hands of the people, or at the hand of a foreign power, would any such allegation be compatible with the dignity of the government? would it not be a confession of weakness? I answer — Against this evil, such as it is, the door might be shut without difficulty. Whether it has place or no, depends on the complexion given to the discourse, which on this occasion is employed: in the case where the people were in question, a tone of sympathy, or say of paternal condescension, would be the tone proper to be assumed: in the case where a foreign power was in question, a tone of civility and general desire of amity.

14. As to the time of the publicity, both that, and the time of the pardon, might and should be left to be appointed by the powerholder in question, and left to be determined by circumstances. In many, if not in most, cases of special service, what might happen is, that by the publicity the service expected would be prevented from being received.

15. ii. Restriction the second. — As to the relative time of the grant of the pardon on the ground of special service — the grant should not be made, unless and until the service had been performed: in other words, it should be made conditional; and the condition should be — actual receipt of the expected service: or at any rate, performance of so much as depended upon the individual in question towards the receipt of it. Reason — But for this condition, the ground in question might, where it had no existence, (no such service being so much as expected) be successfully employed as a pretence for pardon, in cases in which pardon was unmeet.

16. iii. Restriction the third. — In the mean time, instead of definitive, the remission might be temporary, or say — in the word commonly employed — a respite.

17. iv. Restriction the fourth. — Where, to the particular ground of the pardon — namely, the particular service thus performed — publicity is not given at the time of the publicity given to the pardon itself,— still, to the general ground —special service expected, the publicity might be given, and, on the same occasion, an engagement entered into — to give publicity to the particulars of the service, so soon as that could be done without detriment to the public interest.

18. v. Restriction the fifth. — Lest this engagement should be a pretence — a list should be kept of all these cases of publicity delayed: and, at the recurrence of some certain period — twelve months, for example — publicity should be given to a list of those several engagements: the notice, requisite for explanations and justification, being, in the instance of each delinquent, inserted under appropriate heads.

19. From pardon-power unrestricted, comes impunity to delinquency in all shapes: from impunity to delinquency in all shapes, impunity to maleficence in all shapes: from impunity to maleficence in all shapes, dissolution of government: from dissolution of government, dissolution of political society.

20. All this while, no such sweeping results have place. Whence happens this? Only from the influence of two causes:— 1. One is — on the part of those on whose hands the power of pardon is lodged, non-existence of sinister interest adequate to the production of such result: on the contrary, existence of an interest adequate to the prevention of it. 2. The other is — the preventive tutelary power of public opinion.

21. Still, only in part is it — that, by their united power, these two causes have the effect of warding off this calamitous state of things. As to the first,— to no inconsiderable degree, as you will see, the functionaries in whose hands the power of pardoning is lodged, have an interest, and that an adequate, and but too effective interest, in the production of the evils in question: as to the second— namely, public opinion — you will see it is itself influenced and determined, by those same men, who are thus under the dominion of that same sinister interest; and that to such a degree, that they are, actually and purposely, instrumental in giving birth to these same evils.

22. Then as to death. That being the case, you will see how it is — that, in the place which death has in the list of punishments, originates so large a portion of that same sinister interest, and at the same time of the power of giving effect to it. This is what you will see immediately, when the cause of the attachment of rulers in general to this mode of punishment, comes to be brought to view: from all which you will see — how important it is that those same restrictive applications should accordingly be made.

§ vi.

Causes of the general approval of it.

1. But (says somebody)— the application so universally made of it — is not this a strong presumptive proof of the need there is of it? Is it not everywhere in use? in use under every form of government? What is more — is it not generally, is it not almost universally, approved? by some a more, by others a less extended application of it? by almost everybody, to some cases, approved, or at any rate to one case — the case of murder — the application of it? Here, then, is not public opinion thus decidedly, and to this degree, in favour of it? Exists there, then, in the whole business of government, a practice, in favour of which a more strongly presumptive proof has place, than that which is seen to plead in favour of this? Of the application made of it in practice, the cause (you say) may be seen in the interest of kings— that sinister interest which you have been holding up to view:— but — public opinion — does not public opinion likewise thus declare in favour of it? and, in the maintenance of this or any other practice in use, on the part of kings or any other rulers, can public opinion have any such, or any other, sinister interest?

I answer — the case is — that, in regard to this practice, public opinion has a sinister interest. Public opinion is — in every country, where civilization and aristocracy have place — the child and disciple of aristocracy; and, in the sinister interest, by which monarchy is wedded to this practice, aristocracy has no small share.

2. Moreover, not only, in one shape, is sinister interest created as above by power: but, in another shape also, it is created by pride; and, in this case too, aristocracy has its full share. Look now if this be not the case. Whatsoever presents itself as constituting the distinction between the higher and lower orders, the higher orders take a pleasure in the possession of: death-punishment presents itself to them as contributing to this distinction: for, wherever death has place, the lower are sure to stand more exposed to it than the higher orders.

3. Take for instance, depredation. In some cases, death-punishment has commonly been applied to this maleficent practice. What are those cases? Those in which it is more particularly the practice of the lower orders: for instance, highway robbery, house robbery, and pocket-picking, in the literal sense of the word: they having in indigence an excitement which does not so strongly apply to the higher orders.

4. In other cases, instead of death-punishment, the punishment applied to it is one, which, susceptible as it is of variation upon a scale of indefinite length — such as pecuniary punishments and imprisonment — may be at pleasure reduced to next to nothing. What are these cases? They are those, in which the maleficent forbidden practice is more particularly the practice of the higher orders: for instance, extortion, in which case it may be styled the crime of office— official situations being those by which are afforded the means necessary to the commission of it.

5. In other cases, again — instead of being punished, it is licensed and established by law. What are these cases? They are those, in which the maleficent practice is exclusively the practice of the higher orders: for instance, where sinecurism, pay of useless or needless offices, or overpay of useful and needful offices, is the shape in which it veils itself: sinecurism— a mode of obtaining money on false pretences.

6. So much for sinister interest. But, in support of death-punishment, acts, moreover, the never-failing offspring and accompaniment of sinister interest, interest-begotten prejudice.

7. Again — those who believe in the Christian religion, believe also in the Jewish religion; and under the Jewish religion, abundant was the application made of death-punishment; and thus may be seen authority-begotten prejudice operating in support of it.

8. Lastly, under all governments, from and ever since the earliest times, death-punishment has been in customary use: and thus may be seen primæval prejudice, and custom-begotten prejudice, testifying in favour of it, and operating in support of it. Several causes concurred in bringing it into, and have concurred in keeping it in, use:— 1. The strength of the antipathy excited by the acts to which it was applied: 2. The influence which groundless antipathy had in the choice made of punishments in those rude ages, on which the light of the greatest-happiness principle had not yet dawned: 3. Personal interest, and aptitude for the purpose of vengeance, in the breasts of rulers: 4. The non-existence as yet of its present succedaneum — prison discipline: 5. The deficiency of prison-room, for want of the quantity of capital necessary to the establishment of it. Without need of recurring to its supposed efficiency, sufficient, surely, to account for the universality of death-punishment, is the sum of all these causes.

§ vii.

Its Inefficiency and Needlessness proved by experience.

1. Closed, on this subject, you have been seeing the eyes of rulers, and by what causes, against reason:— closed, behold them now, against experience.

2. On this subject, the following is the information, for which I find the question indebted, to our fellow-citizen —M. Lucas:— In Tuscany, in the whole interval between the abolition of death-punishment, in that Grand Duchy, by the Emperor Leopold, while Grand Duke — and the re-establishment of it — the average number of crimes was considerably less than those after that same reestablishment: length of the interval many years: and, in that same interval, assassinations no more than six: while, in the Roman States, not much larger than Tuscany, the number, in a quarter of a year, was no less than sixty.

3. For the first of these so highly instructive and interesting articles of information, we were already indebted to my friend — the illustrious Howard, familiarly known by the name of Prison Howard: for the other, I know not that we are indebted to anybody but M. Lucas.

4. That, by all this put together, the ruling few should, in many places, be engaged to abstain willingly from thus dealing with the subject many, is little to be hoped for: but, that the subject many, although the ruling few are not tired of thus dealing with them — should, sooner or later, be tired of being thus dealt with — and that, to such a degree as to do what depends upon them towards engaging the ruling few to cease thus dealing with them, seems not too much to hope for. If so, who can refuse to say — the sooner the oppressed bestir themselves, and the more they bestir themselves, the better?

Whatever may have been the case antecedently to this experience — subsequently to the demonstration thus afforded of the needlessness and uselessness of this so highly objectionable mode of punishment, the leaving it unabolished, was everywhere without excuse. Nor could the practice have anywhere remained unabolished, but for the original influence of the above-mentioned causes of error, and in particular, sinister interest, the progenitor of all the others. And therefore it is — that, to account for men’s thus shutting their eyes against the light — the force, by which they appear to have been closed, has thus been presented to your view.

*∗* While these pages are under revision, comes in the London newspaper, the Spectator. A masterly article, on this subject, presenting itself as operating powerfully in support of the policy here recommended — it is here subjoined. The No. is 182, for the week ending Saturday, May 28, 1831.

Capital Punishments.

Two men were hanged on Wednesday; one for sheep-stealing, the other for stealing in a dwelling-house. It was alleged, in aggravation of the crime of the former, that his character was bad — he was what the French call a mauvais sujet; it does not appear that he had ever been tried before: the thefts of the latter had been numerous and extensive. The execution of these men for crimes unaccompanied by the slightest violence, has very naturally attracted the notice of a large and respectable class of the community, to whom the sanguinary character of our code has long been a subject of regret. It indeed appears singular, on a first view of the subject, that in free England, as it is usually called, the number of crimes punishable with death should be greater than in any other European state — that we who boast so highly of our civilization should display in our practice greater barbarism than the least enlightened of our neighbours. On a closer inspection of the case, however, the wonder will vanish. Our race of real freedom is only beginning; hitherto there has been freedom for a party — licence for a faction, but the great mass of the people have been in bondage. In purely despotic countries, the king can afford to be just. Joseph the Second abolished the punishment of death throughout his dominions. Even now it is inflicted there only for murder and treason. The emperor has his Lichtensteins and his Esterhazys, as we have our Northumberlands and our Newcastles; but Austria has no Sarums nor Gattons — the curse of the rotten boroughs has not visited her. In states, again, where freedom is a living substance as well as a form, the government can show mercy. America has almost no capital punishments: America has neither boroughs nor boroughmongers. In England, “law grinds the poor.” And why? The remainder of the line supplies the ready answer —“rich men make the law!” Here is the secret of our bloody code — of the perverse ingenuity by which its abominations have so long been defended — of the dogged obstinacy with which all attempts to wash them away has been withstood. “Whoso stealeth a sheep, let him die the death,” says the statute: could so monstrous a law have been enacted, had our legislators been chosen by the people of England? But our lawmakers hitherto have been our landlords. By the sale of his sheep, the farmer pays his rent; by the rent of the farmer, the luxury of the Member is upheld; touch one link, touch all. The price of blood, some six hundred years ago, was equal to forty pounds of our degenerate coin. In process of time, silver fell in the market, and with it the life of an Englishman, twenty-fold. Sir Robert Peel, moderate in all things, raised the sum from £2 to £5. Why not to £500 — why not to £5000? In point of moral guilt, is not he who filches a shilling as criminal as he that filches a million? If we hang for example, the lesser crime is of necessity the more frequent, and most calls for repression. Besides, it is the poor — they who most require protective laws, that are the sufferers by petty plunder. There’s the rub. “Rich men make the law.” Rich men alone suffer by the abstraction of large sums — hence the bloody penalty. But the remedy is nigh at hand — it is even now come. The bill, which gives us good legislators, insures for us good laws. Men impartially chosen will judge impartially. We shall no more have one rule for the rich and another for the poor; nor shall we any longer have the pain of listening to the defence, in the high Court of Parliament, of absurdities which have long been condemned by sensible men in every other place in the empire. Reform will satisfy the yearnings of humanity as amply as the hopes of patriotism.

* In preparing the Rationale of Punishment for its appearance before the English public, the Editor has taken the volume entitled Théorie des Peines, published by M. Dumont, as the groundwork of his labours; but having availed himself, wherever he could, of the original manuscripts, his will in many instances not be found a literal translation of M. Dumont’s work.

* In the French, there exists for the designation of the act one name, viz. punition — acte de punition; and for the designation of the evil, the result or produce of that act, another name, viz. peine.

But though exempt from the ambiguity by which, as above, the English language is deteriorated, the French labours under another. By the word peine, the result is indeed secured against being confounded with the act that caused it. But, on the other hand, the use of this word is not confined to the case in which the object designated by it is the result of an act emanating from the will of a sentient being; it is at least as frequently employed to designate the object itself, without regard to the cause by which it has been produced.

Besides being too broad in one direction, the import of it is too narrow in another. It is synonymous to, and not more than co-extensive with, douleur: it fails of including that modification of evil which is of the purely negative cast, consisting of the absence, certain, or more or less probable, of this or that modification of pleasure.

* To him who would understand what he hears or what he says, positive and negative are adjuncts; the use of which is not more necessary in electricity and galvanism than in law, and especially in penal law.

* The distinctions between these several objects may be illustrated by an example.

In 1769, a jury gave a verdict of £4,000 damages against the Earl of Halifax, for the wrongful imprisonment of John Wilkes, Esq. on suspicion of being the author of a state libel. It may be inquired, what sort of act did the jury perform, when by giving this verdict they appointed the sum in question to be paid by the one person to the other?

It was intended to be an act of punishment. If any juryman being angry with Lord Halifax also intended to produce pain in him, on account of the pleasure he took in thinking of that pain; in the case of such juryman it was an act of vengeance; being done, however, on account of an act that had been done, viz. the imprisonment of Mr. Wilkes, it was not an act of antipathy.

If any juryman did it with a view of deterring Lord Halifax, or any one who might occupy that nobleman’s place in future, from doing acts of the like kind, and of preventing the mischief apprehended from such acts, it was in him an act for amendment and determent. It could not, however, operate for the purpose of disablement, the paying of a sum of money, having no tendency to disable Lord Halifax, or those holding the same office, from imprisoning others who might become the objects of their dislike.

It was not an act of immediate self-defence, for self-defence implies attack, that is, implies that there is some person who is actually using his endeavours to do mischief to the party defending himself. If, however, any juryman, thinking himself in danger of suffering in the like, or any other manner from Lord H., and persons liable to act as he did, joined in the verdict with the view of preserving himself from such suffering, to wit, by means of the restraint which the fear of similar punishment might be expected to impose on Lord Halifax and such other persons, on the part of such juryman it was an act of self-preservation.

The payment of the fine imposed could contribute nothing to the purposes of safe custody or physical restraint, neither was it an act of compulsion, for it was not designed as a means of compelling him to do anything.

It was not an act of torture; the penalty, if paid, was paid instantaneously; the act of paying ceasing of itself, and not being capable of being protracted so as to be made to cease only at a future given instance.

If any juryman did it with the view of making Mr. Wilkes amends for the pain he had suffered by the supposed injury in question, in such juryman it was an act of compensation; and if the juryman who intended to make compensation to Mr. Wilkes also thought that it was right to tax Lord Halifax to the amount of the compensation proper to be given to Mr. Wilkes, it was an act of taxation.

* Introduction to Principles of Morals and Legislation.

See Principles of Morals and Legislation, ch. 12, page 69, ‘Of the consequences of a Mischievous Act.’—“The mischief of an offence may frequently be distinguished, as it were, into two shares or parcels; the one containing what may be called the primary; the other what may be called the secondary. That share may be termed primary which is sustained by an assignable individual, or a multitude of assignable individuals. That share may be termed secondary, which, taking its origin from the former, extends itself rather over the whole community, or over some other multitude of unassignable individuals.”

For the full development of this subject, reference may be made to the chapter indicated.

* I say value, in order to include the circumstances of intensity, proximity, certainty, and duration; which magnitude, properly speaking, does not. This may serve to obviate the objections made by Locke (book II. ch. 21) against the proposition, that man is determined by the greater apparent good.

Traites, &c. tom. ii. p. 310.

* At the Cape of Good Hope, the Dutch made use of a stratagem which could only succeed among Hottentots. One of their officers having killed an individual of this inoffensive tribe, the whole nation took up the matter, and became furious and implacable. It was necessary to make an example to pacify them. The delinquent was therefore brought before them in irons, as a malefactor: he was tried with great form, and was condemned to swallow a goblet of ignited brandy. The man played his part; — he feigned himself dead, and fell motionless. His friends covered him with a cloak, and bore him away. The Hottentots declared themselves satisfied. “The worst we should have done with the man,” said they, “would have been to throw him into the fire; but the Dutch have done better — they have put the fire into the man.”—Lloyd’s Evening Post, for August or September 1776.

* That is to say, committed by those who are only restrained by the laws, and not by any other tutelary motives, such as benevolence, religion, or honour.

* One is astonished that a writer of such consummate genius as Adam Smith should have fallen into this mistake. Speaking of smuggling, he says: “The law, contrary to all the ordinary principles of justice, first creates the temptation, and then punishes those who yield to it; and it commonly enhances the punishment, too, in proportion to the very circumstance which ought certainly to alleviate it — the temptation to commit the crime.”—Wealth of Nations, b. v. ch. 2.

It is easy to estimate the profit of a crime in cases of rapacity, but how are we to ascertain it in those of malice and enmity?

The profit may be estimated by the nature of the mischief that the offender has done to his adversary. Has his conduct been more offensive than painful? The profit is the degree of humiliation that he believes his adversary to have undergone. Has he mutilated or wounded him? The profit is the degree of suffering he has inflicted.

In this, in his own opinion, consists the profit of his offence: if, then, he is punished in an analogous manner, he is struck in the most sensible part, which has, so to speak, been pointed out by himself; for it is not possible but that the mischief which he has chosen as the instrument of his vengeance, must appear hurtful to himself.

Montesquieu, after having recommended this rule of proportion, adds, “Quand il n’y a point de difference dans la peine, il faut en mettre, dans l’esperance de la gráce; en Angleterre, on n’assassine point (il auroit du dire peu), parce que les voleurs peuvent esperer d’être transportés dans les colonies, non pas les assassines.”—Esprit des Lois, lib. vi. ch. 16.

This expectation of favour, no doubt, contributes to the effect of which he speaks; but why should this manifest imperfection in the laws remain, that it may be corrected by an arbitrary act of the sovereign? If an uncertain advantage produces this measure of good, a certain advantage would operate more surely.

* See Introduction to Morals and Legislation — Circumstances influencing Sensibility.

* Senec. de Clem. chap. xxii.

* Thus from the idea of a giant, the mind passes on to every thing that is great. The Liliputians called Gulliver the Man-mountain. Or, from the idea of a giant the mind may pass to that of a dwarf.

The employment of this means of destruction ought, however, to be considered an aggravation, if there has been any danger of the fire communicating to contiguous objects.

* The law of retaliation was often adopted in the early attempts at legislation. Among the laws of Alfred we find the following article:—“Si quis alterius occulum effoderit, compenset proprio, dentem pro dente, manum pro manu, pedem pro pede, adustionem pro adustione, vulnus pro vulnere, vimen pro vimine.”—Wilk. Ll. Ang. Sax. p. 30. Art. 19.

* It is said, that in one of the cities of Greece, among the young women, instigated by I know not what disease of the imagination, the practice of suicide was for a time extremely prevalent. The magistrates, alarmed by its frequency, ordered that, as a sort of posthumous punishment, their bodies, in a state of nudity, should be drawn through the public places. Into the truth of the relation, it is needless to inquire: but the narrator adds, the offence thenceforth altogether ceased. Here, then, is an instance of the utility of a law offensive to modesty, proved by its efficacy: for what higher degree of perfection can be looked for in any penal law than that of preventing the offence?

* I am sensible how imperfectly the word afflictive is calculated to express the particular kind of punishment I have here employed it to express, in contradistinction to all others; but I could find no other word in the language that would do it better. It may be some reason for employing it thus, that in French it is employed in a sense nearly, if not altogether, as confined:a and the pains it is the nature of the punishments in question to produce, Cicero expresses by a word of the same root:—“Adflictatio,” says that orator in his Tusculan Disputations, when he is defining and distinguishing the several sorts of pain, “est ægritudo cum vexatione corporis.b

a Causes Celèbres, chap. iv. p. 229. — Ed. Amsterd. 1764.

b Lib. iv. c. 8.

* The Chinese, owing perhaps to the extensive use they make of this mode of punishment, have attempted, by fixing the length and breadth at the extremities, and weight of the bamboo, to render uniform the amount of the suffering produced by this mode of punishment: but one material circumstance that they have omitted to regulate, and certainly the most difficult to regulate, is the degree of force with which the stroke is to be applied; an omission that leaves the uncertainty nearly in the same state as in this country. — See the Penal Code of China, translated by Sir G. T. Staunton, p. 24.

* The first may be included under the general name of Deformation; the second under the name of Dishabilitation: they render the organ impotent and useless. The third has already a proper name —Mutilation.

Scarification and corrosion might be employed for the same purpose. The first is attended with this inconvenience — the form which the cicatrix will take cannot be determined beforehand; it may leave none, or an accidental incision may leave a similar one. Corrosion by chemical caustics may not be liable to the same inconvenience; but its effects have not been tried.

* Stedman relates a fact which proves what has been above said of the indefinite consequences of these punishments. Speaking of a Frenchman, named Destrades, who had introduced the culture of indigo into Surinam, and who, during many years, had enjoyed general esteem in that colony, he states, that being at the house of one of his friends in Demerara, he became ill of an abscess, which formed in his shoulder. He would not suffer it to be examined: it became dangerously worse, but his resistance remained still the same: at last, not hoping for a cure, he put an end to his life with a pistol-ball, when the secret was revealed: it was found that his shoulder was marked with a letter V, or Voleur. — Narrative of an Expedition against the Revolted Negroes of Surinam, by Major Stedman, ch. 27.

* This inconvenience would be apt to be attended with effects of the most serious nature in the case of an Hindoo of any of the superior castes; an association, however involuntary, with persons of an inferior rank, or contaminated character, causing a forfeiture of caste, which, among the Hindoos, is productive of the same afflictions as excommunication at its first institution was intended to produce amongst Christians — extreme infamy, and an utter exclusion from all society but that of persons marked with the same stigma. It has been said, I hope without truth, that by some unhappy neglect, when the Rajah Nuncomar, a man of the first rank in Bengal, was in custody for the forgery for which he was afterwards tried under the laws of Great Britain, and executed, proper care was not taken to protect him from this ideal contamination. If this be true, before he was proved guilty he was made to suffer a punishment greater perhaps than that to which he was afterwards sentenced.

Howard, p. 39.

* It was mentioned as a circumstance of peculiar distress attending the fate of many of the numerous state prisoners confined in Portugal during the Marquis of Pombal’s administration, their being deparred, during a course of years, the comforts or confession. When this circumstance was brought to light, it produced a considerable degree of public indignation.

By the old law, when money was recovered against a Hundred, the Sheriff laid hold of the first Hundredor he met, and made him pay the whole. Even this was a better expedient for providing for the public burthen than the one in question.

* This objection to imprisonment is carefully removed in the plan of Panopticon Imprisonment, an account of which is given in Book V. ch. 3.

* Page 152.

Page 75.

* Page 74.

It must be acknowleged that this difficulty was very great before the invention of the plan of central inspection.

* The influence of a man’s conduct on the happiness of the whole race of sensitive beings, must be taken into the account, before it can with propriety be termed virtuous or vicious, simply and without addition. The same conduct which is pernicious, and on that account is or ought to be disreputable in society at large, is beneficial to, and on that account held in honour by, a smaller society included within the former. The member of parliament who solicits or defends for his borough a privilege detrimental — the nation, is called a patriot in his borough. The man who devised the oath by which the candidates for degrees were to engage not to propagate, elsewhere than at Oxford and Cambridge, the seeds of what was thought useful learning, was probably thought a man of great merit in those Universities.

* See Howard’s Tables.

* Of the importance of symbols, and the uses that have been made of them, by the Catholic clergy, after the example of ancient Rome, see Emile, tom iv.

* It appears from Mr. Howard, that in England there are six prisons that have Rules belonging to them. In London, two, the Fleet (p. 156,) and the King’s Bench (p. 196:) in Carmarthen, two (pp. 422, 468;) one in the Cornish borough of Lostwithiel (p. 386;) and one in Newcastle-upon-Tyne (p. 422.)

Instances of definite banishment are what one would not expect to find frequent in any system of legislation. In banishment, the object in general is to get rid of the malefactor; and what becomes of him afterwards is not minded. If it were an object of choice with the government, what country the delinquent should betake himself to, the circumstances that could not but serve to determine such a choice would naturally be such as were of a temporary nature. This, accordingly, was the case with an act of the British Parliament, which furnishes the only instance that occurs to me of a punishment of this nature. By statute 20 Geo. II. c. 46, the king is empowered to commute the punishment incurred by persons engaged in the late rebellion, into transportation to America; and the persons thus dealt with are made subject to the pains of capital felony, not only as usual in case of their returning to any part of Great Britain or Ireland, but besides that, in case of their going into any part of the dominions of France or Spain, nations with whom Britain was then at war.

* Gallio having been exiled to the Isle of Lesbos, information was received at Rome that he was amusing himself there, apparently very much to his satisfaction; and that what had been imposed upon him as a punishment, had, in fact, proved to him a source of pleasure: upon this they determined to recal him to the society of his wife, and to his home, and directed him to confine himself to his house, in order that they might inflict upon him what he should think a punishment. —Essais de Montaigne, liv. i. c. 2.

So far the French writer: Tacitus says —

“Italiâ exactus: et quia incusabatur facile toleraturus exilium, delectâ Lesbo, insulâ nobili et amœnaretrahitur in urbem, custoditurque domibus magistratuum.”—Ann. lib. vi. c. 3.

I am speaking of the rules in the six jails in England that have rules. The public is not at the expense of finding lodging. The houses are the property of private individuals, who get somewhat more for them than could be got for houses in the same condition out of the rules. Besides this advanced rent, the prisoner pays fees for the indulgence, which go towards the jailor’s salary.

This inequability may be illustrated by the history of the young Venetian noble relegated to the Isle of Candia. Despairing of being allowed to revisit the walls of his native city, and of again embracing his friends and his aged father, he committed another crime, unpardonable by the laws of the State, because he knew that he should be reconveyed to Venice for trial, and to suffer death. — Moore’s View of Society and Manners in Italy, tom. i. lett. xiv.

* The little benefit that banishment, in so far as it operates as a punishment, can be of in the way of example, is reaped by foreign states; by that state, to wit, which the banished man chooses for his asylum.

* Causes Celèbres, tom. iv. p. 307.

Anquetil, tom. iii.

* To eat grapes, for instance, is what, at certain times at least, will probably be to most men rather an agreeable occupation: to pick them an indifferent one. But in two or three hours, for example, the eating them will become intolerable, while the picking them may still remain, perhaps, in itself nearly a matter of indifference.

The employment of malefactors for the cleaning of harbours was, for the first time, introduced into this country in the year 1776, by stat. 16 Geo. III. c. 43.

* See the Abbé Chappé’s travels in that country. The Abbé had particular reason to remember it. Wanting, for the purpose of some experiment, to have the earth dug, he was complimented with the use of a dozen of these poor prisoners. Having given them some money to purchase liquor, they employed it in making their guard drunk, and then took to flight. — Vol. I. page 149.

* Supra, p. 425.

* Claudian.

* Liv. ii. ch. 27. —Cowardice the mother of cruelty.

Et lupus et turpes instant morientibus ursi

Et quæcunque minor nobilitate fera est.

Ovid.

* See also Appendix, Letter to the French Nation, on Death Punishment.

* Des Delits et des Peines. — Sect. xvi.

Petron. Satyr.

* Zero.

* “Are you not aware that we are subject to one disease more than other men?” said a malefactor upon the rack to his companion, who shrieked from pain. When one observes the courage or brutal insensibility, when in the very act of being turned off, of the greater part of the malefactors that are executed at Newgate, it is impossible not to feel persuaded that they have been accustomed to consider this mode of ending their days as being to them a natural death — as an accident or misfortune, by which they ought no more to be deterred from their profession than soldiers or sailors are from theirs, by the apprehension of bullets or of shipwreck.

There is an evil resulting from the employment of death as a punishment, which may be properly noticed here —It destroys one source of testimonial proof. The archives of crime are in a measure lodged in the bosoms of criminals. At their death, all the recollections which they possess relative to their own crimes and those of others perish. Their death is an act of impunity for all those who might have been detected by their testimony, whilst innocence must continue oppressed, and the right can never be established, because a necessary witness is subtracted.

Whilst a criminal process is going forward, the accomplices of the accused flee and hide themselves. It is an interval of anxiety and tribulation: the sword of justice appears suspended over their heads. When his career is terminated, it is for them an act of jubilee and pardon: they have a new bond of security, and they can walk erect. The fidelity of the deceased is exalted among his companions as a virtue, and received among them for the instruction of their young disciples, with praises for his heroism.

In the confines of a prison, this heroism would be submitted to a more dangerous proof than the interrogatories of the tribunals. Left to himself, separated from his companions, a criminal ceases to possess this feeling of honour which unites him to them. It needs only a moment of repentance to snatch from him those discoveries which he only can make; and without his repentance, what is more natural than a feeling of vengeance against those who caused him to lose his liberty, and who, though equally culpable with himself, yet continue in the enjoyment of liberty! He need only listen to his interest, and purchase, by some useful information, some relaxation of the rigour of his punishment.

* “Observe that juryman in a blue coat,” said one of the Judges at the Old Bailey to Judge Nares; “do you see him?” “Yes.” “Well, there will be no conviction of death today.” And the observation was confirmed by the fact.

* As all our ideas are derived ultimately from the senses, almost all the names we have for intellectual ideas seem to be derived ultimately from the names of such objects as afford sensible ideas; that is, of objects that belong to one or other of the three classes of real entities; insomuch that, whether we perceive it or no, we can scarce express ourselves on any occasion but in metaphors. A most important discovery this in the metaphysical part of grammar, for which we seem to be indebted to M. d’Alembert. — See his Mélanges, tom. i. Disc. Prelim. &c.

The way in which the import of the word forfeiture is connected with sensible ideas seems to be as follows: the words to forfeit come either immediately, or through the medium of the old French, from the modern Latin word forisfacere. Foris means out of doors, or out of the house; facere, is to make or to cause to be. The conceit then is, that when any object is in a man’s possession, it is as it were within doors — within his house: any act, therefore, which, in consequence of some operation of the law, has the effect of causing the object to be no longer in his possession, has the effect of causing it, as it were, to be out of his doors, and no longer within his house.

Forfeiture is, in some cases, though rarely, applied to corporal punishments. Thus capital punishment is called forfeiture of life; mutilation, forfeiture of limbs or members. It is also, with the addition of the word liberty, applied to corporal punishments of the restrictive classes, as in the case of imprisonment and quasi imprisonment. The other modes of confinement require further additions to be made to them; as, to express foreign banishment, forfeiture of the liberty of residing in any part of the dominions of the state; to express domestic banishment, forfeiture of the liberty of being any longer in the place of his abode. The infinite variety of specific restraints may also be expressed by the phrase of forfeiture of liberty, with so many different additions: forfeiture of the liberty of exercising such or such an operation, forfeiture of the liberty of pleading, &c.

To services inexigible, but by the force of these auxiliary sanctions, correspond what are called imperfect rights. Whatever right a man may have to a service, which the party is not punishable by law for not rendering him, is what is called, by writers on the pretended law of nature, an imperfect right: and the obligation to render any such service, an imperfect obligation.

* Of services that are altogether inexigible, such as are strictly spontaneous, gratuitous, depend altogether upon good-will: upon the good-will of the party rendering them to the party to whom they are rendered. This good-will depends, in great measure, upon the reputation of the party to whom they are rendered.

A share beneficial or fiduciary in the use of such a quantity of money, of such an estate in land: a share in such an office of power or trust: an exemption from such a tax or other public burthen: the exclusive privilege of such or such an occupation.

* Forfeiture of protection may be considered also, in another point of view, as being the forfeiture of the services of such ministers of justice, whose office it is to afford a man protection in the enjoyment of the possession in question.

* I am conscious that the distinction here stated, between the direct and indirect way of rendering ill offices, is far enough from being explicit; but there would be no way of making it so without despatching a large and intricate title of the doctrine of offences.

* Though infamy is the more common, for feiture of reputation is the more convenient expression of the two. Infamy is a term which appears forced, when applied to any other than very high degrees of the punishment in question: the phrase, forfeiture of reputation, is accommodated to one degree as well as another; for the quantity of reputation may be conceived to be divided into as many lots or degrees as there can be reason for.

The turn and structure of language having put a man’s reputation, like his estate, upon the footing of his possessions, men have considered and spoken of the subject as if it were a quantity alike determinate, and as if a man might be made to forfeit the whole of his reputation at a single stroke, as he may the whole of his estate. But that this, though possible in the latter instance, is impossible in the former, will presently be seen, by tracing up these fictitious objects of possession to the real objects from whence they are respectively derived. A man’s estate is derived out of things; out of certain determinate allotments of things, moveable or immoveable; or if any part of it be derived immediately out of persons, it is derived out of the services of a few persons, and those persons (and very frequently those services due from each person) determinate and certain. But a man’s reputation is derived immediately out of persons; out of the services of persons; out of any services of any persons whatsoever; out of the services of as many persons, be they who they may, as choose to render him any. This is a stock which the political magistrate can never, perhaps, by any one operation, nor indeed by any number of operations of any kind, be certain of exhausting; much less by any such vague and feeble operations as those are by which an offender is commonly understood to have been made to incur the forfeiture of reputation, that is, the punishment of infamy.

If there be, it is that punishment which, if the vulgar tradition is to be depended upon, was inflicted by Richard III. on Jane Shore — the direct prohibiting of all persons from rendering to the offender any kind of service. But this is but, in other words, the punishment of starving. The same punishment has sometimes been denounced in other countries, where, being strictly executed, it has been, as it could not but be, attended with that effect.a

a Case of the Albigenses. — See Rapin (Monfort). — See Watson’s Phil. 2d.

* This anxiety may be grounded or excited, not solely by a supposed utility of the law, but in some degree by a supposed propensity in the people to disobey it.

Of terms of condemnation applied directly to the offence, the improbè factum of the Lex Valeria may serve for an example: “Valeria Lex, quum eum qui provocâsset virgis cædi securique necari voluisset, siquis adversus ea fecisset, n’hil ultra quam improbè factum adjecit.”—Livy, l. 10, ch. 9.

The laws of Greece and Rome afford several examples, where for different offences the offender is pronounced infamous.a

a So by 9 Anne c. 14, § 5, a loss at play, if prosecuted on that statute, is to be declared infamous. —Vide etiam stat. Ed. 6.

Of this we have an example in certain laws of Zaleucus, the Locrian legislator, pretended to have been preserved (says my authority) by Diodorus Siculus: “Let not a free woman go forth from the city in the night, unless when she goes to prostitute herself to her gallant. Let her not wear rich ornaments, or garments interwoven with gold, unless she be a courtezan.”— Princ. of Pen. Law, c. 26.

This was as much as to say, that if he knew of a woman’s going abroad in a lone place at the unseasonable hour he is speaking of, the legislator should take it for granted that such was the errand she went out upon. If she dressed in a manner in which it was particularly the business of courtezans to dress, he should take for granted her being of that stamp.

* In certain offences against the police — for instance, in selling bread by shortweight — it is not an uncommon thing, where the degree of delinquency appears to be considerable, for the magistrate to threaten the offender, that upon the next conviction he shall be advertised in the newspapers. Such a punishment seems to be looked upon as more severe than the fine imposed by statute.

When the punishment is capital, or the sentence discretionary, it is common with us in England to preface it with such a speech.

Aware of this circumstance, the Roman lawyers have taken a distinction between the infamia facti and the infamia juris— the natural infamy resulting from the offence, and the artificial infamy produced through the means of the punishment by the law. See Heinecc. Elementa Jur. Civil. Pand. 1. 3, tit. 2, § 399, whose explanation, however, is not very precise.

Such as the obligation to ask pardon — an instance of active punishment: the forbearing to carry on an employment which the offender has exercised fraudulently — an instance of restrictive punishment: the forbearing to come into the presence of the party injured — an instance of ambulatory confinement.

* Among the ancient Persians, in some cases, when the criminal was of high rank, instead of whipping the man himself, it was the custom to whip his clothes. To this head may also be referred the custom which prevails in France and other nations upon the continent of executing criminals in effigy. The feigned punishment inflicted on the effigy is commonly, I suppose, the same that would have been really infficted upon the man’s person for the same offence; nor is it usual, I believe, to employ this punishment where the delinquent is forthcoming.

In Portugal, several of the persons who were concerned in the attempt upon the late king’s life were punished in this manner.

To this head may be referred a part of the punishment in use in England for high treason, according to the common law; the taking out and burning of the entrails, the cutting off the head, and the dividing the body into four quarters, which are disposed of at the King’s pleasure. 2 Hawkins, 443.

By an English statute, in cases of murder, the judge is enjoined to order the body (after the criminal has been put to death by hanging) to be publicly dissected, and is empowered to order it to be hung in chains, as the phrase is; which is practised by suspending it from a gibbet in an iron frame.

* For instance, to high treason, or the adherence to the unsuccessful side in a competition for the Crown: to homicide committed in revenge, on a sudden quarrel, or in the course of a duel, by consent: to rape, and other irregularities of the venereal appetite. This, however, seems to proceed not so much from design as from inattention in the authors of our common law; and is one of the many absurd and mischievous consequences that follow from the lumping together offences of the most heterogeneous natures under the name of felonies.

* See Traités de Legislation, tom. iii. c. 17. Emploi du Mobile de l’Honneur.

* Contrat Social, liv. iv. c. 7.

* P. 290, 1st edit.

I say the public purse — I do not say the public simply. Far from the pen of the legislator be that stale sophistry of declaiming meralizers, which consists in giving to one species of misbehaviour the name and reproach of another species of a higher class, confounding in men’s minds the characters of vice and virtue. Pure from all taint of falsehood should the legislator keep his pen; nor think to promote the cause of utility and truth by means which only tyranny and imposture can stand in need of. In what I have said above, there is nothing but what is rigorously and simply true. But it were not true to say that a theft upon the public were as mischievous as a theft upon an individual: from this there results no alarm, and the more the loss is divided, the lighter it falls upon each.

* In 1758, Dr. Shebbeare, was pillorieda for writing a libel against the then King, under a Whig administration. He stood in triumph: the people entertained him with applause. At another time, J. Williams, bookseller, was pilloried for publishing a libel against his Majesty George the Third, under an administration charged with Toryism: the people made a collection for him. At another time, W. Beckford, Lord Mayor of London, replied extempore, in an unprecedented and affrontive manner, to a speech from the throne: the citizens put up his statue in Guildhall. Shame did not then, I think, follow the finger of the law.

a 2 Bur. 792.

* Let me be permitted here to illustrate what has been said of the power possessed by ancient legislators, by a modern example, borrowed from what to some persons will appear a frivolous subject, and certainly from a frivolous person. The legislator in question was a master of ceremonies. For a long series of years, by the authority of opinion, Nash, commonly called Beau Nash, regulated at Bath the conduct of the company assembled at that place during the season: sovereign arbiter and director of all points pertaining to the custom and etiquette of the place, of the order in which balls, concerts, &c. were to succeed each other. How did he go to work? “Let such a thing be done,” said the legislator of the Bath Assemblies. “Let not such a thing be done.” “Let such an Assembly take place on such a day: that it begin at such an hour, that it finish at such an hour,” &c. &c. Setting aside the extreme disparity of the object the resemblance is striking between these ordinances of fashion, and such laws of antiquity as have been handed down to us. There were no punishments, properly so called. The company assembling met there, confiding in his prudence and experience in the concerns he had to regulate, put into his hands a certain quantity of the power of the moral sanction, and the public voice was ready to be raised against the infractors of his rules; and laws the weakest in appearance, were most strictly obeyed.

* See Introd. to Morals and Legislation, ch. 3.

* By the laws of the State of Connecticut (North America)—“If a man and woman who have been divorced shall again cohabit together as man and wife, they shall be punished as adulterers;” and “the punishment for adultery is discretionary whipping, branding in the forehead with the letter A, and wearing a halter about the neck on the outside of the garments, so as to be visible. On being found without the halter, on information and proof made before an assistant or justice of the peace, he may order them to be whipped not exceeding thirty stripes.”—Swift’s Laws of Connecticut, vol. ii. p. 328.

* This was done in the case of Damiens and Ravaillac.

In the case of certain persons convicted of an attempt against the life of the King.

* Such a condition would be too rigorous for criminals: it is for innocent men that it is reserved.

* Book V. ch. v.

Introduction to Morals and Legislation.

* See — Of Substitutive Satisfaction, p. 383.

* As the subject is involved in a good deal of obscurity, it may be necessary, in order that the expediency of this mode of punishment may be understood, to state the nature of it a little more explicitly.

By a rule of positive law, founded on the most obvious dictate of utility, so obvious as to have been received with little variation over the whole world, a man is permitted to succeed, in case of death, to the property undisposed of by his next relation.

This general rule is, with a variety of caprice, with which the conceptions and expectations of the people can never keep pace, differently narrowed and modified by the different laws of various states. With us, it is not in every instance that a man is permitted to succeed to his relation. And the misery produced by the unintelligible exceptions to the general provision of the law is, in all cases, in proportion to the strength of the expectation that is thus disappointed.

Forfeiture is more penal in its consequences than escheat. By both forfeiture and escheat, an individual and his descendants are made to lose their chance of coming to the estate of him to whom they stood as next immediate descendants. But corruption of blood goes further. By corruption of blood, the party in question, and his descendants, are made to lose the chance they had of succeeding either to a remote ancestor, or to any collateral relation.

Offences by which the blood is said to be corrupted are styled, how different soever in their nature, by one common appellation, felonies. — Between my brother and me, the common ancestor is my father. If, then, my father commit a felony, the consequence is, I am prevented from succeeding, not only to whatever real property was my father’s, but to whatever was my brother’s also, or that of any one descended from him; and this because, in making out my title to the property in question, in virtue of my relationship to my brother, I must reckon through my father, although my father (such is the provision made by the law) could not himself have taken it. — Between my paternal uncle and me, the common ancestor is my grandfather. If, then, my father commit a felony, I lose the chance of succeeding, not only to whatever real property was his, but also to whatever was either my grandfather’s or my uncle’s. So also, if my grandfather commit a felony, I lose the chance of succeeding, not indeed to the property that was my father’s, but, however, to whatever was either my grandfather’s or my uncle’s, or any descendant of my uncle’s.

* It will not, it is hoped, be understood that any stress is meant to be laid upon the particular number here employed: the reader may put in numbers for himself: they are merely given as a specimen of the manner in which such an inquiry ought to be conducted.

* Those who have read Lord Clarendon’s History, will remember what grievous complaints that historian, in speaking of the Duke of Albemarle, makes of the duke’s presbyterian wife.

* 10 Geo. II. c. 34.

* 11 Geo. III. c. 55.

The punishment, if any, that was thus inflicted on the innocent burghers, consisted in the pain of apprehension that among the new electors would be found some, and perhaps a majority of the whole, who would make an improper use of the power of which they were made partakers.

One thing let me be permitted to mention, which I think would have been an improvement, and would have done all that could be wanting to reconcile the measure to the strict principles of ordinary justice. A part of the electors stood in a meritorious light; they had either the ment to withstand, or the good fortune to escape, the temptation to which their co-electors yielded. Yet by the statute in question, the condition of this meritorious part, so far from being bettered, was rendered worse than it was before. There was a method by which this might, I think, have been prevented, without the least prejudice to the reforming part of the measure, and at the same time a signal encouragement have been held out to conscientious electors. The expedient was a simple one. It was but the adding to the number of votes which each of the sound voters should have under the new constitution, in such manner that the weight of each man’s suffrage should bear the same proportion to that of the rest under the new constitution as it had done under the old one. The benefit thus reserved would in such case have told for more than it was in reality. The men, by being only not punished, would have seemed to be rewarded: they certainly would have been rewarded in point of honour. If a religious attention were constantly to be paid to private subsisting interests, which being temporary may always be provided for at a small expense, reformation would be delivered from much of that opposition which it is at present apt to meet with. One may say to reformers, serve the whole, but forget not that each member is a part of it.

Strictly speaking, it is true that the electors have no reason to complain, except as above, upon the occasion of an extension of the elective franchise. The dilemma is clear: if you do not mean to discharge it conscientiously, you ought not to be trusted with it; if you do, it is of no benefit to you, and you can have no ground to complain of its being taken from you for the benefit of the State.

* See Sir J. Hawkins’ History of Music.

* It would be worse, in some respects, than forfeiture of reputation.

2 Wils. 18.

* Not many years ago, two young men, the one about 14, the other about 16 years of age, were condemned, for a petty theft, to be transported. Upon hearing this unlooked for sentence, the youngest began to cry. “Coward,” said his companion, with an air of triumph, “who ever cried because he had to set out upon the grand tour?” This fact was mentioned to me by a gentleman who was witness to this scene, and was much struck with it.

* Collins, vol. ii. p. 218.

Collins, vol. ii. p. 197.

* Collins, vol. ii. p. 122.

Ibid. p. 129.

Collins, vol. ii. p. 293.

There is a passage in Collins (II. p. 51,) highly characteristic of the light in which the securing the means of attendance, and thence attendance itself on divine worship, on the part of the convicts, was regarded by the constituted authorities. A church-clock having been brought to the settlement in “The Reliance,” and no building fit for its reception having been since erected, preparations were now making for constructing a tower fit for the purpose, to which might be added a church, whenever at a future day the increase of labourers might enable the governor to direct such an edifice to be built.

§ Collins, vol. ii. p. 139.

* Collins, vol. ii. p. 4.

* The mortality attendant upon these first voyages to New South Wales appears greatly to have originated in negligence. Cargoes of convicts have in many latter instances been carried out without a single death occurring.

* Collins, vol. ii. p. 222.

That New South Wales has, since these papers were written, become a flourishing colony, is owing not so much to convict transportation, but to the admission of free settlers. The evils above pointed out continue to exist, but their influence is lessened by the infusion of honest and industrious settlers.

The following quotation confirms the reasoning of Mr. Bentham, and shows that the greater portion of the evils he points out continue unabated. —Ed.

“If convicts are still to be transported hither, the only chance of their reformation consists in scattering them widely over the country, and giving them pastoral habits. Convict transportation is at best a bad system of colonization; and Governor Macquarrie, by his preference of the convict to the free, made it worse for the plantation, and totally inoperative as the penalty of felony, or the penitentiary of vice.

“The evils and expense of the transportation system would certainly be lessened by placing the convicts more in the service of farming and grazing settlers, out of the reach of the temptations and evil communications of large towns, the establishment of which was too much the policy of the late Governor. The salutary life of a shepherd or a stockman, would gradually soften the heart of the most hardened convict; but instead of this, Governor Macquarrie’s system was to keep them congregated in barracks, and employed, at a ration of a pound and a half of meat and the same quantity of flour per diem, upon showy public buildings. Of wretches possessed of no better means of reformation than these, it could not be expected that industrious colonists should ever be made. When their period of transportation expired, or was remitted by favour, they would therefore take their grant of land and allowances for settling, and sell them the next hour for spirits.”—Journal of an Excursion across the Blue Mountains of New South Wales, edited by Baron Field, p. 457. Lond. 1825.

* Blackst. Com. 95.

We say, he fell, as well as he swerved, from the line of duty: he fell from his allegiance. The original sin of man is called the fall of man. Lord Clarendon says somewhere, he fell from his duty and all his former friends. Let him who standeth, says the Gospel, take heed lest he fall. In ecclesiastical jurisprudence, a heretic relapsed, is one who, having once been convicted of heresy, falls into the same offence a second time.

An is nothing but the common termination of the infinitive mood.

* 25 Edw. III. Stat. 3, c. 4.

It should be hindrance: the French original is empeschement.

Meaning the Bishop, or other ecclesiastical superior.

4 Hen. VII. c. 13.

* It is amusing enough to observe the continual struggle between the spiritual and the carnal judge, as described in Staundford, title Clergy. It seems to have been a continual game of leap-frog, in which sometimes spirit, sometimes flesh, was uppermost.a

A man, however, was not always so very kindly dealt with: he fared better or worse, according as he happened to be in favour with the church. If they happened not to like him, although he had not been tried when delivered to them, they would not admit him to his purgation, but kept him in hard durance without trial. The temporal courts were then obliged to drive them on to trial.b If he was a favourite, although convicted, no guest could be better entertained: they used to cram him at both ends. This a good Archbishop admits, who, being driven by the Parliament to make an ordinance to remedy this mischief, appoints, that in certain cases they shall be dieted in a manner he prescribes: speaking all the while in much worse terms of the lay judges than of the malefactors who met with this reception from their friends.

a Tale of a Tub.

b Staundford, Clergy, c. 48. Bracton.

18 Eliz. c. 7.

* 5 Ann. c. 6.

3 & 4 W. & M. c. 9.

28 Hen. VIII. c. 15.

* 4 Comm. c. 28. Foster, 288. Moor, 756.

Ib.

Sir Walter Raleigh was kept for many years with the halter about his neck: he had the command given him of an expedition; went to America, where he committed piracies on the Spaniards; came back again; and was hanged at last for the original offence.

* 4 Hen. VII. c. 13.

The statute directs that the convict shall be “marked:” the mode of marking is left altogether to the judge. The author of the Commentaries (4 Comm. p. 367, ed. 1809) “burnt with a hot iron.” It is plain by this that he had never read the statute: for the statute, which is a very short one, says not a syllable about burning, nor about a hot iron.

* 4 Hen. VII. c. 13.

By 4 Hen. VII. c. 13; repealed in effect, quoad hoc, by 28 Hen. VII. c. 1, and 32 Hen. VIII. c. 3: and revived in effect quoad hoc by 1 Ed. VI. c. 12. p. 10.

Hobart, 81.

This word, from being the name of nothing at all, first became the name of a writ, then the name of a punishment, and from thence, as was natural, the name of an offence; to wit, of as many offences as were punishable by that punishment.

* See a list of these offences in Blackstone’s Commentaries. So difficult is it for any one to ascertain what the law is upon any subject, that though this punishment was adopted in the Regency, Act 5th Geo. III. c. 27, which was passed many years before the 4th volume of the Commentaries was printed, this act was not enumerated in that list.

* An anecdote given us by Selden, in his Table Talk,a may serve very well to illustrate the influence this mode of punishment may have over a man who is out of the reach of every other. In the reign of James I. an English merchant had a demand upon the King of Spain, which he could not get the King to satisfy. The merchant had already brought his action, and Selden, who was his counsel, advised him to proceed to outlawry. Writ after writ was sent to the sheriff to take his Majesty, and have his body before the justices at Westminster. His Majesty was not to be found. Great outcry, as is usual, was made after him, upon this, in sundry ale-houses. His Majesty did not happen to be at any the ale-houses. He was accordingly proclaimed an outlaw; and a wolf’s head, in due form of law, was clapt upon his shoulders,b so that any body might lay hold of him, and put him into jail, that had a mind for it.c The case was, his Majesty happened at that time to have demands upon several merchants in England, for which demands, so long as he continued under judgment of outlawry, he could not have his remedy. Upon this consideration, his ambassador, Gondamar, submitted and paid the money; upon which, the wolf’s head was taken off, and the King’s head put in its place.

a Title Law.

b Caput Lupinum.— C. Litt. 128, b. Lamb. Leg. Tax, ch. 128. Fleta. L. 1, c. 27. Bract. L. 5, fol. 421. Britt. fol. 20. Mirror, c. 4, Defaults Punishable.

c Anciently, when a man had a wolf’s head upon his shoulders, he might be killed by anybody. But this was altered in Edw. III.’s time. See C. Litt.

* Gibs. 1050.

2 Bacon’s Ab. 674.

3 Blackst. Com. 101.

Gibs. 1050.

§ God. O. L. 37, 8.

Burn, Penance, 6.

* Lenderb, 266.

Swinb. 109. God. O. L. 37.

Godolph. Appendix, 18. Burn, tit. Penance.

* These observations might be much more extended, with reference to the details of ecclesiastical judicature, but the subject would not be of general interest. The foregoing observations may therefore suffice with respect to these laws, which are so generally condemned, and may serve to show the necessity for their formal abolition.

* Example.

Labourer, 1s. 0d. per day — £15:13:0 per year — {Debt discharged by seven years’ imprisonment,} £109:11:0
Ensign, 3s. 8d. per day — 66:18:4 per year — {Debt discharged by a year’s imprisonment,} 66:18:4

* Any one who is at all conversant with anecdotes of notorious criminals must have observed, that nothing is more common in this country than for a man to be guilty of twenty, thirty, or forty thefts or robberies, before punishment overtakes him.

Mr. Bentham does not appear to have carried on his examination of this subject in respect to the other ends of punishment. —Ed.

Under the name of the fact, I would here include such and so many circumstances as are necessary to make the act in question come under the denomination of some crime.

* Assets: Effects descending to them from the ancestor, and liable to alicnation.

In all these points, I depend upon the authority of Comyns’ Digest, I. 262, 263.

A person whom I know, having the immediate reversion of an estate, part in houses, part in land, rented the land of a person who had the life-interest in both. The life-owner letting the houses go to ruin, the reversionary, to indemnify himself, stopt the rent of the land. The lifeowner died without repairing the houses, as he was bound: the consequence was, that the reversioner (as he was advised, to his great surprise), though obliged to pay his rent, lost his remedy for the waste.

* 1 Comyns’ Dig. 261.

A man may be kept in gaol, and his fortune ruined by it; and if he die under the imprisonment, his family are without remedy. In some cases, the wrong-doer may not even be punishable by a criminal prosecution; or he may be maltreated in such a manner as to contract a lingering distemper, such as does not follow from the injurious treatment with sufficient speed and certainty to bring it within the crime of murder. If the prosecution can but be staved off till he die, his family are without remedy. Many years ago, a butcher was committed to Newgate, at a time when the gaol distemper was raging in that prison, upon a false and malicious charge of theft. He died there, leaving a large distressed family, who were altogether without remedy for this atrocious injury.

I rest still on the authority of Comyns, except in the case of injuries to reputation, in which I conclude from analogy, Comyns being silent.

In France, while this paper was writing, two mutually connected questions were on the carpet:— the general question — shall death punishment, in any, and what cases, be employed? — the special question — shall it be employed in the case of the Ex-Ministers? The lot of these men being now disposed of, the matter which applied exclusively to their case has been struck out.

§ [the day]— namely, December the 17th, 1830.

Not less than fifty years ago, had already issued from the press a work of mine, in which the properties desirable in a lot of punishment are held up to view:— meaning, by a lot of punishment, the quantum of it attached to the species of offence in question: and, with the requisite assortment of these properties, death punishment is not of itself endowed. But, as no objection to the use of this one instrument in particular is constituted by a deficiency which is capable of being filled up by the addition of others, the demand for the consideration of this mode of punishment, on this present occasion, has not been found superseded by anything that is contained in that former work — or in any by which it has been succeeded, in that same or any other language.

http://ebooks.adelaide.edu.au/b/bentham/jeremy/principles_of_penal_law/appendix1.html

Last updated Wednesday, March 12, 2014 at 13:31