Principles of Penal Law, by Jeremy Bentham

Part ii. —

Rationale of Punishment.

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The following account is given by M. Dumont of his labours with respect to the two volumes published by him at Paris in 1811, under the title of Théorie des Peines et des Récompenses. Of this work, three editions have been printed in France, and one in England.

“When I published in Paris, in 1802, Les Traités de Legislation Civile et Pénale, in three volumes, I announced other works of the same kind, which I had, in the same manner, extracted from the manuscripts of Mr. Bentham, but which were not then ready for the press.

“Success has encouraged my labours: three thousand copies were distributed more rapidly than I had dared to hope would be the case with the first work of a foreign author, but little known upon the continent. I have reason also to think that all recent as this work is, it has not been without its influence, since it has been frequently quoted in many official compositions relating to civil or criminal codes.

“But circumstances, which prevented these new volumes from entering upon the same course of circulation as the preceding, have sometimes cooled my zeal, and I should willingly have resigned the task I had imposed upon myself, if the author would have undertaken it himself. Unhappily, he is as little disposed so to do as ever; and if these works do not appear in the French dress which I have given them, it is most probable that they will remain shut up in his cabinet.

“They have lain there thirty years: the manuscripts from which I have extracted La Théorie des Peines, were written in 1775. Those which have supplied me with La Théorie des Récompenses, are a little later: they were not thrown aside as useless, but laid aside as rough-hewn materials, which might at a future day be polished, and form part of a general system of legislation — or as studies which the author had made for his own use.

* “These manuscripts, though much more voluminous than the work I have presented to the public, are very incomplete. They offered to me often different essays upon the same subject, of which it was necessary to take the substance and unite them into one. In some chapters I had nothing but marginal notes to direct me. For the fourth book of La Théorie des Peines, I was obliged to collect and prepare a variety of fragments. The discussion upon the punishment of death was unfinished. At one time, the author intended to treat of this subject anew, but this intention has not been carried into effect. He had prepared nothing upon transportation — nothing upon Penitentiaries. The idea of the Panopticon was as yet unformed. I have derived the foundations of these two important chapters from a work of Mr. Bentham’s, since published (Letters to Lord Pelham, &c. &c.) I have taken all that suited my general method of treating the subject, by separating it from all controversy.

“After these explanations, it will not be matter of surprise, if the facts and allusions do not always accord with the date of the original manuscripts. I have freely used the rights of an Editor: according to the nature of the text, and the occasion, I have translated, commented, abridged, or supplied, but it need hardly be repeated, after what was said in the preliminary discourse to the former publication, that this co-operation on my part has had reference to the details only, and ought not to diminish the confidence of the readers; it is not my work that I present to them: it is, as faithfully as the nature of things will permit, the work of Mr. Bentham.

“It has been said, that these additions, these changes, should bear some distinctive mark; but though this species of fidelity is desirable, it is impossible. It is only necessary to imagine what is the labour of finishing a first sketch — of completing unfinished and unreviewed manuscripts, sometimes consisting of fragments and simple notes, in order to comprehend, that it required a continued freedom, a species of imperceptible infusion, if I may so speak, which it is scarcely possible for the individual himself to remember. This is, however, of no importance. It may be believed that the author has not found his ideas disfigured or falsified, since he has continued to entrust me with his papers.

“I must, however, declare, that he has altogether refused to share my labour, and that he will not, in any manner, be responsible for it. As he has never been satisfied with a first attempt, and has never published anything which he has not written at least twice over, he has foreseen that the revision of so old an essay would lead him too far away from, and be incompatible with, his present engagements. In this manner he has justified his refusal; but he has authorised me to add, that any change which he might make would bear only upon the form; as respects the principles, his opinions have not changed: on the contrary, time and reflection have given them additional strength.

“That Mr. Bentham, who is too particular about his productions, should not deem these worthy of the public notice, will not astonish those who know all that he requires of himself, and the ideas which he has formed for himself of a complete work.

“A perfect book would be that which should render useless all which had been written in time past, or that could be written in future time, upon the same subject. With respect to the second condition, it is not possible to decide when it is accomplished, without pretending to measure the power of the human mind; with respect to the first, we can more easily decide by a comparison with the works which have gone before.

“This comparison has supported me against a just distrust of my own powers. After the author had refused me all assistance, and had expressed his doubts upon the merit of his own work, I was led to reperuse and reconsider the most celebrated works upon this subject, and even those which had been less distinguished; and then I could hesitate no longer.

“I was tempted, at one time, to collect every thing dispersed through L’Esprit des Lois upon the subject of Rewards and Punishments. This collection would have been contained in ten or a dozen pages. By thus collecting the whole together, it would have been possible to judge of the correctness of that expression of D’Alembert, so often repeated in France, that Montesquieu had said all, that he had abridged all, because he had seen all. Among a multitude of vague and undefined thoughts upon these subjects, of which some are erroneous, there are certainly some which are judicious and profound, as in every thing we possess of this illustrious writer. But he has not developed the Rationale of Rewards and Punishments — indeed, this was not his design, and nothing would be more unjust than to criticise him for not having done what he did not intend to perform.

“Beccaria has done more: he first examined the efficacy of punishments, by considering their effect upon the human heart; by calculating the force of the motives by which individuals are impelled to the commission of crimes; and of those opposite motives which the law ought to present. This species of analytical merit was, however, less the cause of his great success, than the courage with which he attacked established errors, and that eloquent humanity which spreads so lively an interest over his work; but after this, I scruple not to say, that he is destitute of method, that he is not directed by any general principle, that he only glances at the most important questions, that he carefully shuns all practical discussions in which it would have been evident that he was unacquainted with the science of Jurisprudence. He announces two distinct objects — crimes and punishments; he adds to these, occasionally, Procedure; and these three vast subjects with difficulty furnish out matter for one little volume.

“After Montesquieu and Beccaria, we may leave in peace a whole library of books, more or less valuable, but which are not distinguished by any great character of originality; not but that we should find in them correct and judicious views, interesting facts, valuable criticisms upon laws, many of which no longer exist, and to the disappearance of which these works have contributed. I intend not here to enter in detail either upon their criticism or eulogium. It is enough for me to observe, that none have laid down the Rationale of Rewards and Punishments, or could be employed as a general guide.

“In the volumes formerly published, the Rationale of Punishment was only sketched out — a general map only was given of the department of Criminal Law, of which this work exhibits the topography.

“To prevent frequent reference, and to render this work complete in itself, I have borrowed some chapters from the preceding work, making considerable additions to them, and giving them a different form.

“At the risk, however, of inspiring my readers with a prejudice unfavourable to my work, I must acknowledge that its object, how important soever it may be in relation to its consequences, is any thing but interesting in its nature. I have been sensible of this during the progress of my labour, and I have not completed it without having often to conquer myself. A philosophical interest alone must suffice; the descriptions of punishments, and the examination of punishments, which follow each other without cessation in a didactic order, do not allow of a variety of style, do not present any pictures upon which the imagination can repose with pleasure.

“ ‘Felices ditant hæc ornamenta libellos,

Non est conveniens luctibus ille color.’

“Happily, the subject of Rewards, by its novelty, and by the ideas of virtues, talents, and services, which it causes to pass in review, will conduct the readers by more agreeable routes. The Tartarus and Elysium o legislation, so to speak, are here disclosed; but in entering into this Tartarus, it is only to lighten its torments, and we are careful not to engrave upon its portal the terrible inscription of the poet,

“‘Lasciate speranza voi ch’ entrate.’”

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