There are some offences which all the world can commit: there are others, the commission of which depends upon a particular situation; that is to say, it is this particular situation which gives the individual the opportunity of offending.
What is the effect of this circumstance upon alarm? It tends generally to diminish it, by restricting its sphere.
A theft produces a general alarm: an act of peculation by a guardian against his ward produces hardly any.
Some alarm is inspired by an act of extortion on the part of an officer of police: a contribution levied by robbers upon the highway would inspire much more. Why is this? It is because it is well known, that the most determined extortioner in office has some bridle and some restraint. He requires opportunities and pretexts for abusing his power; whilst the highway robbers menace all the world at all times, and are not at all restrained by public opinion.
This circumstance operates in the same manner upon other classes of offences, such as seduction, adultery, &c. The first woman who is met cannot be seduced in the same manner as she may be robbed. Such an enterprise requires a continued acquaintance, a certain association of rank and fortune; in a word, the advantages of a particular position.
Of two murders, the one committed in order to succeed to an estate, the other in a course of robbery: the first exhibits the most atrocious character, but the second excites the most alarm. The man who believes himself secure from the evil designs of his heirs, experiences no sensible alarm from the first event; but what security can he have against robbers? Add to this, that the miscreant who would commit murder that he might succeed to an inheritance, will not transform himself into a murderer on the highway. He would risk much for an estate, which he would not risk for a few shillings.
This observation extends to all offences implying violation of trust, and abuse of confidence or power, public or private. Such offences cause so much the less alarm, inasmuch as the situation of the offender is the more particular; that there are a smaller number of persons in a similar situation; and hence, that the sphere of the offence is more restricted.
An important exception is found in those cases in which the individual is clothed with great powers; when he can extend the sphere of his actions over a great number of persons. Though his situation be particular, it increases the alarm, instead of restricting it. When the object of a judge is to pillage, to murder, to tyrannize; when the object of a military officer is to steal, to vex, to shed blood; the alarm which they excite is proportioned to the extent of their powers, and may surpass that of the most atrocious robberies.
In these elevated situations it is not necessary to be criminal: a simple fault, free from evil intention, may cause a lively alarm. Is an innocent person sentenced to death by an upright but ignorant judge? As soon as the fault is known, public confidence is wounded, the shock makes itself felt, and the alarm produced rises to a high degree.
Happily, this species of alarm may be at once arrested by displacing the incapable subject of it.
* The chapter here numbered xiii. is inserted from Dumont’s Traités de Legislation, Vol. II. chapters vii. ix. x. xi. xii. and xiii., in order to complete the exhibition of Bentham’s principles as published in his lifetime. — Ed.
The mind at once is led to compare the means of attack and defence; and accordingly, as the crime is considered more or less easy of commission, the alarm is more or less lively. This is one of the reasons which raise the mischief of an act of robbery so far above the mischief of a simple theft. Force can accomplish many things which would be beyond the reach of cunning. With respect to robbery, that which attacks the dwelling-house is more alarming than that which takes place upon the highway: that which is committed at night, than that which is executed in open day: that which is combined with incendiarism, than that which is limited to the ordinary methods.
On the other hand, the greater the apparent ease of opposing a crime, the less alarming it appears. The alarm will not be so lively when the offence cannot be completed without the consent of the party suffering. It is easy to apply this principle to fraudulent acquisition, seduction, duels, self-regarding offences, and particularly to suicide.
The rigour of the laws against domestic theft has been founded, without doubt, upon the difficulty of opposing this offence. But the aggravation which results from this circumstance is not equal to the effect of another circumstance which tends to diminish the alarm; namely, the peculiarity of the situation which furnishes the opportunity for the theft. The domestic thief, once discovered, is no longer dangerous. He requires my consent, in order to rob me: I must introduce him into my house, and give him my confidence. With so much facility for securing myself, he can only inspire me with a very feeble alarm.*
* The principal reason against the severity of punishment in this case is, that it renders masters disinclined to prosecute the offence, and consequently favours impunity.
The alarm is greater, when, by the nature or the circumstances of the crime, it is more difficult to discover or to recognise its author. If the delinquent remain unknown, the success of his crime is an encouragement to him and to others: no limits can be discovered to those crimes which remain unknown, whilst the party injured loses all hope of indemnification.
There are some crimes which admit of precautions particularly adapted for concealment: such as the disguising of the person; the choice of night for the period of action; the sending of anonymous threatening letters for the purpose of extorting undue concessions.
There are also separate crimes, to which recourse may be had, in order to render the discovery of other offences more difficult. An individual may be confined or conveyed away, or destroyed, in order that the criminal may free himself from the danger to be apprehended from his testimony.
In those cases where, from the nature of the crime, the criminal is necessarily known, the alarm is considerably diminished. Hence personal injuries, resulting from a momentary transport of passion excited by the presence of an adversary, inspire less alarm than a theft which affects concealment; although the evil of the first class may be greater, or may chance to be so, in the first case.
The character of an offender is judged of from the nature of his offence, and especially from the extent of its mischief: from the evil of the first class; which is the part most apparent in it. But his character may be also judged of from circumstances; from the particulars of his conduct whilst committing the crime itself. Thus, the character of a man will appear more or less dangerous, according as the tutelary motives appear to have more or less influence over him, when compared with the force of the seductive motives.
Character ought on two accounts to be regarded, in the choice of, and the quantity of a punishment: first, because it either increases or diminishes the alarm; secondly, because it furnishes an indication of the sensibility of the subject. It is not necessary to employ such strong measures to repress a weak, but naturally good character, as are required for an opposite temperament.
Let us examine the grounds of aggravation which may be drawn from this source.
1. The less the party injured was in a condition to defend himself, the more strongly the sentiment of natural compassion ought to act. The laws of honour come to the support of this instinct of pity, and make it an imperious duty to succour the weak, and to spare him who is no longer able to resist. First indication of a dangerous character — Weakness oppressed.
2. If weakness alone ought to awaken compassion, the appearance of a suffering individual ought to act in this direction with a double force. The simple refusal of relief to the distressed, raises a presumption little favourable to the character of an individual: but what must his character be, who seizes the moment of calamity for the purpose of increasing the anxiety of an afflicted mind; the moment of disgrace, in order to render it more bitter by a new affront; the moment of indigence, for the purpose of entirely stripping its victims? Second indication of a dangerous character — Distress aggravated.
3. It is an essential branch of moral policy, that those who have been accustomed to reflection, and who may be presumed to possess wisdom and experience, should be treated with respect by those who have not acquired the same habits, or possessed the same advantages of education. This species of superiority is generally received by the more elevated ranks from those below them; by old persons from younger persons of the same rank; and by certain professions set apart for the public instruction. There exists among the mass of the people certain sentiments of deference and respect, in relation to these distinctions; and this respect, greatly useful in repressing without effort the seductive passions, is one of the best foundations for manners and laws. Third indication of a dangerous character — Respect towards superiors disregarded.*
4. When the motives which have led to the commission of an offence have been comparatively light and frivolous, the sentiments of honour and benevolence must have had but little force. If the man who is urged by an imperious desire of vengeance to transgress the laws of humanity is esteemed dangerous, what should be thought of him who gives way to acts of ferocity, from a simple motive of curiosity, of imitation, or of amusement? Fourth indication of a dangerous character — Gratuitous cruelty.
5. Time is particularly favourable to the development of the tutelary motives. During the first assault of passion, as under a thunder-stroke, the sentiments of virtue may yield for a moment: but if the heart is not perverted, reflection will soon restore them to their first force, and establish their triumph. If a sufficiently long time elapse between the conception of a crime and its accomplishment, it is an unequivocal proof of matured and consolidated wickedness. Fifth indication of a dangerous character — Premeditation.
6. The number of accomplices is another mark of depravity: concert supposes reflection. The union of many persons against a single innocent person also displays a cruel cowardice. Sixth indication of a dangerous character — Conspiracy.
To these causes of aggravation may be added two other causes, not so easily classed: falsehood, and violation of confidence.
Falsehood stamps a character with a deep and degrading stain, which even the most brilliant qualities cannot efface. Public opinion is right in this respect. Truth is one of the first wants of man; it is one of the elements of our existence; necessary as the light of the day to us. At every moment of our lives, we are obliged to build our judgments, and to direct our conduct, upon the knowledge of facts, of which there are only a few that can pass under our own observation. Hence there follows the most absolute necessity for our trusting to the reports of others. If falsehood is mingled with these reports, our judgments become erroneous, our progress faulty, our hopes deceived: we live in a state of unquiet distrust, and know not where to seek for security. In a word, falsehood includes the principle of every evil, since it would bring in its train the dissolution of human society.
The importance of truth is so great, that the least violation of its laws, even in trifling matters, always draws after it a certain danger: the slightest wandering is an attack upon the respect due to it: the first transgression facilitates the second, by familiarizing the odious idea of a lie. If the evil of falsehood is so great in things which are unimportant in themselves, what will it be in those greater occasions when it serves as an instrument of crime?
Falsehood is sometimes an essential circumstance in a crime; sometimes simply an accessory. It is necessarily comprised in perjury, in fraudulent acquisition, and all its modifications. In other offences, it is only collateral and accidental. It is only by relation to these last, that it can furnish a separate cause of aggravation.
Violation of confidence refers to a particular position; to a power confided, which imposes on the delinquent an obligation which he has violated. It may sometimes be considered as the principal offence, sometimes only as an accessory offence. It is not necessary here to consider the details.
We may here make one general observation with respect to all these sources of aggravation. Although they all furnish unfavourable indications as to the character of the offender, this is not a reason for proportionably augmenting his punishment. It is sufficient if a certain modification be given to it, which shall have some analogy with this accessory offence, and which shall serve to waken in the minds of the citizens a salutary antipathy against this aggravating circumstance. This will become more clear, when we treat of the methods of rendering punishments characteristic.†
We proceed, however, to the extenuations which may be drawn from this same source, and which have the effect of more or less diminishing the demand for punishment. I call those circumstances which tend to diminish alarm, Extenuations, because they furnish a favourable indication with regard to the character of the individual. They may be reduced to nine:—
One point common to these circumstances, except the two last, is, that the offence has not had its source in the will of the offender. The first cause is the act of another; a foreign will, or some physical accident. Apart from this event, he would have remained as innocent to the end of his life, as he had been till then; and even should he not be punished, his future conduct would be as good as if he had not committed the offence in question.
Each of these circumstances requires details and explanations. I confine myself here to observing, that it will be necessary to leave great latitude to the judge for appreciating these different sources of extenuation, their validity and extent.
With respect to a provocation received, for example, this provocation should have been recently given, in order to merit indulgence: it ought to have been received in the course of the same quarrel. But what constitutes the same quarrel? what ought to be considered a recent injury? It is necessary to trace these lines of demarcation. “Let not the sun go down upon your wrath,” is the precept of the Scriptures. Sleep ought to calm the transport of the passions, the fever of the senses, and prepare the mind for the influence of the tutelary motives. This natural period might serve, in the case of homicide, to separate that which is premeditated, from that which is not.
In the case of intoxication, it is necessary to examine whether the intention to commit the offence did not exist beforehand: whether the intoxication has not been feigned: whether it had not for its object to embolden the individual in the commission of the crime. A relapse ought perhaps to destroy the excuse which might be drawn from this source. He who knows, by experience, that wine renders him dangerous, does not deserve any indulgence for those excesses into which it may lead him.
The English law does not admit intoxication as a ground of excuse. This would be, it is said, to excuse one crime by another. This morality appears hard and unthinking: it is derived from the principle of asceticism.
Whilst, as to infancy, this does not refer to that age at which the offender does not know that he is responsible for what he does, and where punishments would be inefficacious. To what good purpose punish judicially, for the crime of incendiarism, an infant of four years old?
Within what limits ought this source of extenuation to be confined? It seems that a reasonable limit is the period when a man is considered to have arrived at such maturity as no longer to require a guardian; and he becomes his own master. Before this period, it is not expected that he has sufficient reason for the management of his own affairs.
It is not said that, with respect to every crime committed before mature age, the ordinary punishment ought necessarily to be diminished. This diminution ought to depend upon the whole circumstances. But what is intended to be said is, that this period being passed, punishment ought no longer to be diminished on this account.
On account of minority in age, infamous punishments are principally remitted. He who has no hope of reviving honour, is with difficulty again incited to virtue.
When I speak of majority, I do not mean the Roman majority, fixed at twenty-five years; because there is injustice and folly in restraining the liberty of the man for so long a time, and keeping him in the bonds of infancy after the full development of his faculties. The period which I have in view is the English period of twenty-one years. Before this age, Pompey had conquered provinces; and Pliny the younger had sustained with honour the interests of his fellow-citizens at the bar. Great Britain was governed by a minister, who managed the complicated system of her finances with eclât, before the age at which, in the other parts of Europe, he would have been allowed to sell an acre of land.
The alarm is absolutely null in the case in which the only persons exposed to the danger, if there are any, are unsusceptible of fear.
This circumstance explains the insensibility of many nations with respect to infanticide; that is to say, homicide committed upon a new-born child, with the consent of its father and mother. I say their consent; for without this, the alarm would be nearly the same as if it respected an adult. The less infants are susceptible of fear for themselves, the more the tenderness of parents is apt to be alarmed for them.
I pretend not to justify these nations. They are so much the more barbarous, inasmuch as they have given to the father the right of disposing of the new born babe, without the consent of the mother, who, after all the dangers of maternity, finds herself deprived of its reward, and reduced, by this unworthy slavery, to the same condition with those inferior creatures whose fecundity is a burthen to us. Infanticide, such as I have defined it to be, cannot be punished as a principal offence, since it produces no evil of the first or second class; but it ought to be punished as a step towards other crimes, furnishing an indication against the characters of its authors. The sentiments of respect for humanity cannot be too strongly fortified; nor can too great a repugnance be inspired against every thing which leads to habits of cruelty. Infanticide ought therefore to be punished, by attaching to it some disgrace. The fear of shame is commonly its cause: it requires, therefore, a greater stigma to repress it. But, at the same time, the occasions for punishment should be rendered rare, by requiring clear proof of its commission.
The laws against this offence, upon pretence of humanity, have been most manifest violations of it. Compare the crime and the punishment. What is the crime? The death of an infant, which has ceased to exist before it has known existence; an event which cannot excite the slightest uneasiness in the imagination of the most fearful, and which can leave no regrets but with those who, from a feeling of shame and of pity, have refused to prolong its days, commenced under such unhappy auspices. And what is the punishment? A barbarous punishment, an ignominious death, inflicted upon an unhappy mother, whose crime itself proves her excessive sensibility: on a woman led astray by despair, who has injured herself alone, by refusing to yield to the sweetest instinct of nature. She is devoted to infamy, because she too deeply dreaded shame; and the existence of her friends, who survive her, is poisoned by opprobrium and ignominy! But if the legislator himself has been the first cause of the evil; if he can be considered as the true murderer of these innocent creatures, how much more odious would this rigour appear! It is, however, he alone, who by acting harshly against her frailty has excited this direful combat in the heart of a mother, between tenderness and shame.
Although alarm in general corresponds with danger, there are some cases in which this proportion is not exact: the danger may be greater than the alarm.
This happens in those mixed offences which include a private evil, and a danger which is proper to them in their character of public offences.
It might happen in a state, that a prince should be robbed by unfaithful officers, and the public oppressed by the vexations of his subordinates. The accomplices in these disorders might compose a threatening phalanx, allowing nothing to approach the throne but mercenary eulogiums; insomuch that truth should become the greatest of all crimes. Timidity, under the mask of prudence, would soon form the national character. If, during this universal abasement of courage, a virtuous citizen should venture to denounce the offenders, and should become the victim of his zeal, his loss would excite but little alarm: his magnanimity would only be considered as an act of folly; and each one, promising to himself that he would not act like him, would behold, without emotion, a misfortune which he would see that he had the means of avoiding. But the alarm, in thus subsiding, would make way for a more considerable mischief: this mischief consists in the danger of impunity for all public offences, in the cessation of all voluntary services to justice, in the profound indifference of individuals to every thing which does not personally affect them.
It is said, that in certain of the Italian states, those who have given evidence against thieves and robbers have been exposed to the vengeance of their accomplices, and obliged to seek in flight that security which the laws could not give them; it being more dangerous for individuals to lend their services to justice, than to arm themselves against it: a witness running more danger than an assassin. The alarm which results from this state of things is weak; because no one need expose himself to this mischief, but the danger is increased in the same proportion.
* It was from not having known the utility, not to say the necessity, of this subordination, that the French fell, during the revolution, into that excess of folly which delivered them up to unheard of evils, and which has carried desolation to the four quarters of the world: it was because they had no superiors in France, that there was no security. The principle of equality includes within itself that of anarchy: it is the total of the small masses of particular influence which sustains the grand barrier of the laws against the torrent of the passions.
† An interesting question in morals and legislation arises here —
If an individual perform actions which the public opinion condemns, and which, according to the principles of utility, it ought not to condemn, can an unfavourable indication be drawn from hence with respect to the character of that individual?
I reply, that a good man, though he submit in general to the tribunal of public opinion, may reserve to himself the right of private judgment in particular cases, when the judgment of this tribunal appears to him opposed to his reason and his happiness, or when it exacts from him a painful sacrifice, without any real utility to any person. Take a Jew to Lisbon, for example: he dissimulates, he violates the laws, he braves an opinion which has in its favour all the force of the popular sanction: is he, therefore, the most wicked of men? Do you believe him capable of every crime? Will he be a slanderer, a thief, a perjurer, if he could hope not to be discovered? No: a Jew in Portugal is not more addicted to these crimes than others. A monk allows himself in secret to violate some of the absurd and painful observances of his convent: does it follow, that he would be a deceitful and dangerous man, ready to violate his word upon a point in which probity was concerned? Such a conclusion would be very ill founded. Good sense, enlightened by interest, is sufficient to detect a general error, and does not on that account lead to the contempt of essential laws.
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