Pain and pleasure are produced in men’s minds by the action of certain causes. But the quantity of pleasure and pain runs not uniformly in proportion to the cause; in other words, to the quantity of force exerted by such cause. The truth of this observation rests not upon any metaphysical nicety in the import given to the terms cause, quantity, and force: it will be equally true in whatsoever manner such force be measured.
The disposition which any one has to feel such or such a quantity of pleasure or pain, upon the application of a cause of given force, is what we term the degree or quantum of his sensibility. This may be either general, referring to the sum of the causes that act upon him during a given period: or particular, referring to the action of any one particular cause, or sort of cause.
But in the same mind such and such causes of pain or pleasure will produce more pain or pleasure than such or such other causes of pain or pleasure: and this proportion will in different minds be different. The disposition which any one has to have the proportion in which he is affected by two such causes, different from that in which another man is affected by the same two causes, may be termed the quality or bias of his sensibility. One man, for instance, may be most affected by the pleasures of the taste; another by those of the ear. So also, if there be a difference in the nature or proportion of two pains or pleasures which they respectively experience from the same cause; a case not so frequent as the former. From the same injury, for instance, one man may feel the same quantity of grief and resentment together as another man: but one of them shall feel a greater share of grief than of resentment: the other, a greater share of resentment than of grief.
Any incident which serves as a cause, either of pleasure or of pain, may be termed an exciting cause: if of pleasure, a pleasurable cause: if of pain, a painful, afflictive, or dolorific cause.*
* The exciting cause, the pleasure or pain produced by it, and the intention produced by such pleasure or pain in the character of a motive, are objects so intimately connected, that, in what follows, I fear I have not, on every occasion, been able to keep them sufficiently distinct. I thought it necessary to give the reader this warning; after which, should there be found any such mistakes, it is to be hoped they will not be productive of much confusion.
Now the quantity of pleasure, or of pain, which a man is liable to experience upon the application of an exciting cause, since they will not depend altogether upon that cause, will depend in some measure upon some other circumstance or circumstances: these circumstances, whatsoever they be, may be termed circumstances influencing sensibility.†
† Thus, in physical bodies, the momentum of a ball put in motion by impulse, will be influenced by the circumstance of gravity: being in some directions increased, in others diminished by it. So in a ship, put in motion by the wind, the momentum and direction will be influenced not only by the attraction of gravity, but by the motion and resistance of the water, and several other circumstances.
These circumstances will apply differently to different exciting causes; insomuch that to a certain exciting cause, a certain circumstance shall not apply at all, which shall apply with great force to another exciting cause. But without entering for the present into these distinctions, it may be of use to sum up all the circumstances which can be found to influence the effect of any exciting cause. These, as on a former occasion, it may be as well first to sum up together in the concisest manner possible, and afterwards to allot a few words to the separate explanation of each article. They seem to be as follows: 1. Health. 2. Strength. 3. Hardiness. 4. Bodily imperfection. 5. Quantity and quality of knowledge. 6. Strength of intellectual powers. 7. Firmness of mind. 8. Steadiness of mind. 9. Bent of inclination. 10. Moral sensibility. 11. Moral biases. 12. Religious sensibility. 13. Religious biases. 14. Sympathetic sensibility. 15. Sympathetic biases. 16. Antipathetic sensibility. 17. Antipathetic biases. 18. Insanity. 19. Habitual occupations. 20. Pecuniary circumstances. 21. Connexions in the way of sympathy. 22. Connexions in the way of antipathy. 23. Radical frame of body. 24. Radical frame of mind. 25. Sex. 26. Age. 27. Rank. 28. Education. 29. Climate. 30. Lineage. 31. Government. 32. Religious profession.‡
‡ An analytical view of all these circumstances will be given at the conclusion of the chapter: to which place it was necessary to refer it, as it could not well have been understood, till some of them had been previously explained.
To search out the vast variety of exciting or moderating causes, by which the degree or bias of a man’s sensibility may be influenced, to define the boundaries of each, to extricate them from the entanglements in which they are involved, to lay the effect of each article distinctly before the reader’s eye, is, perhaps, if not absolutely the most difficult task, at least one of the most difficult tasks, within the compass of moral physiology. Disquisitions on this head can never be completely satisfactory without examples. To provide a sufficient collection of such examples, would be a work of great labour as well as nicety: history and biography would need to be ransacked: a vast course of reading would need to be travelled through on purpose. By such a process the present work would doubtless have been rendered more amusing; but in point of bulk so enormous, that this single chapter would have been swelled into a considerable volume. Feigned cases, although they may upon occasion serve to render the general matter tolerably intelligible, can never be sufficient to render it palatable. On this therefore, as on so many other occasions, I must confine myself to dry and general instruction: discarding illustration, although sensible that without it instruction cannot manifest half its efficacy. The subject, however, is so difficult, and so new, that I shall think I have not ill succeeded, if, without pretending to exhaust it, I shall have been able to mark out the principal points of view, and to put the matter in such a method as may facilitate the researches of happier inquirers.
The great difficulty lies in the nature of the words; which are not, like pain and pleasure, names of homogeneous real entities, but names of various fictitious entities, for which no common genus is to be found: and which therefore, without a vast and roundabout chain of investigation, can never be brought under any exhaustive plan of arrangement, but must be picked up here and there as they happen to occur.
1. Health is the absence of disease, and consequently of all those kinds of pain which are among the symptoms of disease. A man may be said to be in a state of health, when he is not conscious of any uneasy sensations, the primary seat of which can be perceived to be any where in his body.∥ In point of general sensibility, a man who is under the pressure of any bodily indisposition, or, as the phrase is, is in an ill state of health, is less sensible to the influence of any pleasurable cause, and more so to that of any afflictive one, than if he were well.
∥ It may be thought, that in a certain degree of health, this negative account of the matter hardly comes up to the case. In a certain degree of health, there is often such a kind of feeling diffused over the whole frame, such a comfortable feel, or flow of spirits, as it is called, as may with propriety come under the head of positive pleasure. But without experiencing any such pleasurable feeling, if a man experience no painful one, he may be well enough said to be in health.
2. The circumstance of strength, though in point of causality closely connected with that of health, is perfectly distinguishable from it. The same man will indeed generally be stronger in a good state of health than in a bad one. But one man, even in a bad state of health, may be stronger than another even in a good one. Weakness is a common concomitant of disease: but in consequence of his radical frame of body, a man may be weak all his life long, without experiencing any disease. Health, as we have observed, is principally a negative circumstance: strength a positive one. The degree of a man’s strength can be measured with tolerable accuracy.*
* The most accurate measure that can be given of a man’s strength, seems to be that which is taken from the weight or number of pounds and ounces he can lift with his hands in a given attitude. This indeed relates immediately only to his arms: but these are the organs of strength which are most employed; of which the strength corresponds with most exactness to the general state of the body with regard to strength; and in which the quantum of strength is easiest measured. Strength may accordingly be distinguished into general and particular.
Weakness is a negative term, and imports the absence of strength. It is, besides, a relative term, and accordingly imports the absence of such a quantity of strength as makes the share, possessed by the person in question, less than that of some person he is compared to. Weakness, when it is at such a degree as to make it painful for a man to perform the motions necessary to the going through the ordinary functions of life, such as to get up, to walk, to dress one’s self, and so forth, brings the circumstance of health into question, and puts a man into that sort of condition in which he is said to be in ill health.
3. Hardiness is a circumstance which, though closely connected with that of strength, is distinguishable from it. Hardiness is the absence of irritability. Irritability respects either pain, resulting from the action of mechanical causes; or disease, resulting from the action of causes purely physiological. Irritability, in the former sense, is the disposition to undergo a greater or less degree of pain upon the application of a mechanical cause; such as are most of those applications by which simple afflictive punishments are inflicted, as whipping, beating, and the like. In the latter sense, it is the disposition to contract disease with greater or less facility, upon the application of any instrument acting on the body by its physiological properties; as in the case of fevers, or of colds, or other inflammatory diseases, produced by the application of damp air: or to experience immediate uneasiness, as in the case of relaxation or chilliness produced by an over or under proportion of the matter of heat.
Hardiness, even in the sense in which it is opposed to the action of mechanical causes, is distinguishable from strength. The external indications of strength are the abundance and firmness of the muscular fibres: those of hardiness, in this sense, are the firmness of the muscular fibres, and the callosity of the skin. Strength is more peculiarly the gift of nature: hardiness, of education. Of two persons who have had, the one the education of a gentleman, the other that of a common sailor, the first may be the stronger, at the same time that the other is the hardier.
4. By bodily imperfection may be understood that condition which a person is in, who either stands distinguished by any remarkable deformity, or wants any of those parts or faculties, which the ordinary run of persons of the same sex and age are furnished with: who, for instance, has a hare-lip, is deaf, or has lost a hand. This circumstance, like that of ill health, tends in general to diminish more or less the effect of any pleasurable circumstance, and to increase that of any afflictive one. The effect of this circumstance, however, admits of great variety: inasmuch as there are a great variety of ways in which a man may suffer in his personal appearance, and in his bodily organs and faculties: all which difference will be taken notice of in their proper places.†
† See B. I. tit. [Irrep. Corp. Injuries.]
5. So much for circumstances belonging to the condition of the body: we come now to those which concern the condition of the mind: the use of mentioning these will be seen hereafter. In the first place may be reckoned the quantity and quality of the knowledge the person in question happens to possess: that is, of the ideas which he has actually in store, ready upon occasion to call to mind: meaning such ideas as are in some way or other of an interesting nature: that is, of a nature in some way or other to influence his happiness, or that of other men. When these ideas are many, and of importance, a man is said to be a man of knowledge; when few, or not of importance, ignorant.
6. By strength of intellectual powers may be understood the degree of facility which a man experiences in his endeavours to call to mind as well such ideas as have been already aggregated to his stock of knowledge, as any others, which, upon any occasion that may happen, he may conceive a desire to place there. It seems to be on some such occasion as this that the words parts and talents are commonly employed. To this head may be referred the several qualities of readiness of apprehension, accuracy and tenacity of memory, strength of attention, clearness of discernment, amplitude of comprehension, vividity and rapidity of imagination. Strength of intellectual powers, in general, seems to correspond pretty exactly to general strength of body: as any of these qualities in particular does to particular strength.
7. Firmness of mind on the one hand, and irritability on the other, regard the proportion between the degrees of efficacy with which a man is acted upon by an exciting cause, of which the value lies chiefly in magnitude, and one of which the value lies chiefly in propinquity.* A man may be said to be of a firm mind, when small pleasures or pains, which are present or near, do not affect him, in a greater proportion to their value, than greater pleasures or pains, which are uncertain or remote;† of an irritable mind, when the contrary is the case.
8. Steadiness regards the time during which a given exciting cause of a given value continues to affect a man in nearly the same manner and degree as at first, no assignable external event or change of circumstances intervening to make an alteration in its force.‡
‡ The facility with which children grow tired of their play-things, and throw them away, is an instance of unsteadiness: the perseverance with which a merchant applies himself to his traffic, or an author to his book, may be taken for an instance of the contrary. It is difficult to judge of the quantity of pleasure or pain in these cases, but from the effects which it produces in the character of a motive; and even then it is difficult to pronounce, whether the change of conduct happens by the extinction of the old pleasure or pain, or by the intervention of a new one.
9. By the bent of a man’s inclinations may be understood the propensity he has to expect pleasure or pain from certain objects, rather than from others. A man’s inclinations may be said to have such or such a bent, when, amongst the several sorts of objects which afford pleasure in some degree to all men, he is apt to expect more pleasure from one particular sort, than from another particular sort, or more from any given particular sort, than another man would expect from that sort; or when, amongst the several sorts of objects, which to one man afford pleasure, whilst to another they afford none, he is apt to expect, or not to expect, pleasure from an object of such or such a sort: so also with regard to pains. This circumstance, though intimately connected with that of the bias of a man’s sensibility, is not undistinguishable from it. The quantity of pleasure or pain, which on any given occasion a man may experience from an application of any sort, may be greatly influenced by the expectations he has been used to entertain of pleasure or pain from that quarter; but it will not be absolutely determined by them: for pleasure or pain may come upon him from a quarter from which he was not accustomed to expect it.
10. The circumstances of moral, religious, sympathetic and antipathetic sensibility, when closely considered, will appear to be included in some sort under that of bent of inclination. On account of their particular importance they may, however, be worth mentioning apart. A man’s moral sensibility may be said to be strong, when the pains and pleasures of the moral sanction* show greater in his eyes, in comparison with other pleasures and pains (and consequently exert a stronger influence), than in the eyes of the persons he is compared with; in other words, when he is acted on with more than ordinary efficacy by the sense of honour: it may be said to be weak, when the contrary is the case.
* See ch. v. [Pleasures and Pains.]
11. Moral sensibility seems to regard the average effect or influence of the pains and pleasures of the moral sanction, upon all sorts of occasions to which it is applicable, or happens to be applied. It regards the average force or quantity of the impulses the mind receives from that source during a given period. Moral bias regards the particular acts on which, upon so many particular occasions, the force of that sanction is looked upon as attaching. It regards the quality or direction of those impulses. It admits of as many varieties, therefore, as there are dictates which the moral sanction may be conceived to issue forth. A man may be said to have such or such a moral bias, or to have a moral bias in favour of such or such an action, when he looks upon it as being of the number of those of which the performance is dictated by the moral sanction.
12. What has been said with regard to moral sensibility, may be applied, mutatis mutandis, to religious.
13. What has been said with regard to moral biases, may also be applied, mutatis mutandis, to religious biases.
14. By sympathetic sensibility is to be understood the propensity that a man has to derive pleasure from the happiness, and pain from the unhappiness, of other sensitive beings. It is the stronger, the greater the ratio of the pleasure or pain he feels on their account is to that of the pleasure or pain which (according to what appears to him) they feel for themselves.
15. Sympathetic bias regards the description of the parties who are the objects of a man’s sympathy: and of the acts or other circumstances of or belonging to those persons, by which the sympathy is excited. These parties may be, 1. Certain individuals. 2. Any subordinate class of individuals. 3. The whole nation. 4. Human kind in general. 5. The whole sensitive creation. According as these objects of sympathy are more numerous, the affection, by which the man is biased, may be said to be the more enlarged.
16, 17. Antipathetic sensibility and anti-pathetic biases are just the reverse of sympathetic sensibility and sympathetic biases. By antipathetic sensibility is to be understood the propensity that a man has to derive pain from the happiness, and pleasure from the unhappiness, of other sensitive beings.
18. The circumstance of insanity of mind corresponds to that of bodily imperfection. It admits, however, of much less variety, inasmuch as the soul is (for aught we can perceive) one indivisible thing, not distinguishable, like the body, into parts. What lesser degrees of imperfection the mind may be susceptible of, seem to be comprisable under the already-mentioned heads of ignorance, weakness of mind, irritability, or unsteadiness; or under such others as are reducible to them. Those which are here in view are those extraordinary species and degrees of mental imperfection, which, wherever they take place, are as conspicuous and as unquestionable as lameness or blindness in the body: operating partly, it should seem, by inducing an extraordinary degree of the imperfections above mentioned, partly by giving an extraordinary and preposterous bent to the inclinations.
19. Under the head of a man’s habitual occupations, are to be understood, on this occasion, as well those which he pursues for the sake of profit, as those which he pursues for the sake of present pleasure. The consideration of the profit itself belongs to the head of a man’s pecuniary circumstances. It is evident, that if by any means a punishment, or any other exciting cause, has the effect of putting it out of his power to continue in the pursuit of any such occupation, it must on that account be so much the more distressing. A man’s habitual occupations, though intimately connected in point of causality with the bent of his inclinations, are not to be looked upon as precisely the same circumstance. An amusement, or channel of profit, may be the object of a man’s inclinations, which has never been the subject of his habitual occupations: for it may be, that though he wished to betake himself to it, he never did, it not being in his power: a circumstance which may make a good deal of difference in the effect of any incident by which he happens to be debarred from it.
20. Under the head of pecuniary circumstances, I mean to bring to view the proportion which a man’s means bear to his wants: the sum total of his means of every kind, to the sum total of his wants of every kind. A man’s means depend upon three circumstances: 1. His property. 2. The profit of his labour. 3. His connexions in the way of support. His wants seem to depend upon four circumstances: 1. His habits of expense. 2. His connexions in the way of burthen. 3. Any present casual demand he may have. 4. The strength of his expectation. By a man’s property is to be understood, whatever he has in store independent of his labour. By the profit of his labour is to be understood the growing profit. As to labour, it may be either of the body principally, or of the mind principally, or of both indifferently: nor does it matter in what manner, nor on what subject, it be applied, so it produce a profit. By a man’s connexions in the way of support, are to be understood the pecuniary assistances, of whatever kind, which he is in a way of receiving from any persons who, on whatever account, and in whatever proportion, he has reason to expect should contribute gratis to his maintenance: such as his parents, patrons, and relations. It seems manifest, that a man can have no other means than these. What he uses, he must have either of his own, or from other people: if from other people, either gratis or for a price. As to habits of expense, it is well known, that a man’s desires are governed in a great degree by his habits. Many are the cases in which desire (and consequently the pain of privation connected with it* ) would not even subsist at all, but for previous enjoyment. By a man’s connexions in the way of burthen, are to be understood whatever expense he has reason to look upon himself as bound to be at in the support of those who by law, or the customs of the world, are warranted in looking up to him for assistance; such as children, poor relations, superannuated servants, and any other dependents whatsoever. As to present casual demand, it is manifest, that there are occasions on which a given sum will be worth infinitely more to a man than the same sum would, at another time: where, for example, in a case of extremity, a man stands in need of extraordinary medical assistance: or wants money to carry on a law-suit, on which his all depends: or has got a livelihood waiting for him in a distant country, and wants money for the charges of conveyance. In such cases, any piece of good or ill fortune, in the pecuniary way, might have a very different effect from what it would have at any other time. With regard to strength of expectation; when one man expects to gain or to keep a thing which another does not, it is plain the circumstance of not having it will affect the former very differently from the latter; who, indeed, commonly will not be affected by it at all.
* See ch. v. [Pleasures and Pains.]
21. Under the head of a man’s connexions in the way of sympathy, I would bring to view the number and description of the persons in whose welfare he takes such a concern, as that the idea of their happiness should be productive of pleasure, and that of their unhappiness of pain to him: for instance, a man’s wife, his children, his parents, his near relations, and intimate friends. This class of persons, it is obvious, will for the most part include the two classes by which his pecuniary circumstances are affected: those, to wit, from whose means he may expect support, and those whose wants operate on him as a burthen. But it is obvious, that besides these, it may very well include others, with whom he has no such pecuniary connexion: and even with regard to these, it is evident that the pecuniary dependence, and the union of affections, are circumstances perfectly distinguishable. Accordingly, the connexions here in question, independently of any influence they may have on a man’s pecuniary circumstances, have an influence on the effect of any exciting causes whatsoever. The tendency of them is to increase a man’s general sensibility; to increase, on the one hand, the pleasure produced by all pleasurable causes; on the other, the pain produced by all afflictive ones. When any pleasurable incident happens to a man, he naturally, in the first moment, thinks of the pleasure it will afford immediately to himself: presently afterwards, however (except in a few cases, which it is not worth while here to insist on), he begins to think of the pleasure which his friends will feel upon their coming to know of it: and this secondary pleasure is commonly no mean addition to the primary one. First comes the self-regarding pleasure: then comes the idea of the pleasure of sympathy, which you suppose that pleasure of your’s will give birth to in the bosom of your friend: and this idea excites again in your’s a new pleasure of sympathy, grounded upon his. The first pleasure issuing from your own bosom, as it were from a radiant point, illuminates the bosom of your friend: reverberated from thence, it is reflected with augmented warmth to the point from whence it first proceeded: and so it is with pains.*
Nor does this effect depend wholly upon affection. Among near relations, although there should be no kindness, the pleasures and pains of the moral sanction are quickly propagated by a peculiar kind of sympathy: no article, either of honour or disgrace, can well fall upon a man, without extending to a certain distance within the circle of his family. What reflects honour upon the father, reflects honour upon the son: what reflects disgrace, disgrace. The cause of this singular and seemingly unreasonable circumstance (that is, its analogy to the rest of the phenomena of the human mind), belongs not to the present purpose. It is sufficient if the effect be beyond dispute.
* This is one reason why legislators in general like better to have married people to deal with than single; and people that have children than such as are childless. It is manifest that the stronger and more numerous a man’s connexions in the way of sympathy are, the stronger is the hold which the law has upon him. A wife and children are so many pledges a man gives to the world for his good behaviour.
22. Of a man’s connexions in the way of antipathy, there needs not any thing very particular to be observed. Happily there is no primæval and constant source of antipathy in human nature, as there is of sympathy. There are no permanent sets of persons who are naturally and of course the objects of antipathy to a man, as there are who are the objects of the contrary affection. Sources, however, but too many, of antipathy, are apt to spring up upon various occasions during the course of a man’s life: and whenever they do, this circumstance may have a very considerable influence on the effects of various exciting causes. As on the one hand a punishment, for instance, which tends to separate a man from those with whom he is connected in the way of sympathy, so on the other hand, one which tends to force him into the company of those with whom he is connected in the way of antipathy, will, on that account, be so much the more distressing. It is to be observed, that sympathy itself multiplies the sources of antipathy. Sympathy for your friend gives birth to antipathy on your part against all those who are objects of antipathy, as well as to sympathy for those who are objects of sympathy to him. In the same manner does antipathy multiply the sources of sympathy; though commonly perhaps with rather a less degree of efficacy. Antipathy against your enemy is apt to give birth to sympathy on your part towards those who are objects of antipathy, as well as to antipathy against those who are objects of sympathy, to him.
23. Thus much for the circumstances by which the effect of any exciting cause may be influenced, when applied upon any given occasion, at any given period. But besides these supervening incidents, there are other circumstances relative to a man, that may have their influence, and which are co-eval to his birth. In the first place, it seems to be universally agreed, that in the original frame or texture of every man’s body, there is a something which, independently of all subsequently intervening circumstances, renders him liable to be affected by causes producing bodily pleasure or pain, in a manner different from that in which another man would be affected by the same causes. To the catalogue of circumstances influencing a man’s sensibility, we may therefore add his original or radical frame, texture, constitution, or temperament of body.
24. In the next place, it seems to be pretty well agreed, that there is something also in the original frame or texture of every man’s mind, which, independently of all exterior and subsequently intervening circumstances, and even of his radical frame of body, makes him liable to be differently affected by the same exciting causes, from what another man would be. To the catalogue of circumstances influencing a man’s sensibility, we may therefore further add his original or radical frame, texture, constitution, or temperament of mind.*
* The characteristic circumstances whereby one man’s frame of body or mind, considered at any given period, stands distinguished from that of another, have been comprised by metaphysicians and physiologists under the name idiosyncrasy, from διος, peculiar, and συνϰϱασις, composition.
It seems pretty certain, all this while, that a man’s sensibility to causes producing pleasure or pain, even of mind, may depend in a considerable degree upon his original and acquired frame of body. But we have no reason to think that it can depend altogether upon that frame: since, on the one hand, we see persons whose frame of body is as much alike as can be conceived, differing very considerably in respect of their mental frame: and, on the other hand, persons whose frame of mind is as much alike as can be conceived, differing very conspicuously in regard to their bodily frame.†
† Those who maintain, that the mind and the body are one substance, may here object, that upon that supposition the distinction between frame of mind and frame of body is but nominal, and that accordingly there is no such thing as a frame of mind distinct from the frame of body. But granting, for argument-sake, the antecedent, we may dispute the consequence. For if the mind be but a part of the body, it is at any rate of a nature very different from the other parts of the body.
A man’s frame of body cannot in any part of it undergo any considerable alteration without its being immediately indicated by phænomena discernible by the senses. A man’s frame of mind may undergo very considerable alterations, his frame of body remaining the same to all appearance; that is, for any thing that is indicated to the contrary by phenomena cognizable to the senses: meaning those of other men.
It seems indisputable also, that the different sets of external occurrences that may befal a man in the course of his life, will make great differences in the subsequent texture of his mind at any given period: yet still those differences are not solely to be attributed to such occurrences. Equally far from the truth seems that opinion to be (if any such be maintained) which attributes all to nature, and that which attributes all to education. The two circumstances will therefore still remain distinct, as well from one another, as from all others.
Distinct however as they are, it is manifest, that at no period in the active part of a man’s life can they either of them make their appearance by themselves. All they do is to constitute the latent ground-work which the other supervening circumstances have to work upon: and whatever influence those original principles may have, is so changed and modified, and covered over, as it were, by those other circumstances, as never to be separately discernible. The effects of the one influence are indistinguishably blended with those of the other.
The emotions of the body are received, and with reason, as probable indications of the temperature of the mind. But they are far enough from conclusive. A man may exhibit, for instance, the exterior appearances of grief, without really grieving at all, or at least in any thing near the proportion in which he appears to grieve. Oliver Cromwell, whose conduct indicated a heart more than ordinarily callous, was as remarkably profuse in tears.‡ Many men can command the external appearances of sensibility with very little real feeling.∥ The female sex commonly with greater facility than the male: hence the proverbial expression of a woman’s tears. To have this kind of command over one’s self, was the characteristic excellence of the orator of ancient times, and is still that of the player in our own.
‡ Hume’s Hist.
∥ The quantity of the sort of pain, which is called grief, is indeed hardly to be measured by any external indications. It is neither to be measured, for instance, by the quantity of the tears, nor by the number of moments spent in crying. Indications rather less equivocal may, perhaps, be afforded by the pulse. A man has not the motions of his heart at command as he has those of the muscles of his face. But the particular significancy of these indications is still very uncertain. All they can express is, that the man is affected; they cannot express in what manner, nor from what cause. To an affection resulting in reality from such or such a cause, he may give an artificial colouring, and attribute it to such or such another cause. To an affection directed in reality to such or such a person as its object, he may give an artificial bias, and represent it as if directed to such or such another object. Tears of rage he may attribute to contrition. The concern he feels at the thoughts of a punishment that awaits him, he may impute to a sympathetic concern for the mischief produced by his offence.
A very tolerable judgment, however, may commonly be formed by a discerning mind, upon laying all the external indications exhibited by a man together, and at the same time comparing them with his actions.
A remarkable instance of the power of the will, over the external indications of sensibility, is to be found in Tacitus’s story of the Roman soldier, who raised a mutiny in the camp, pretending to have lost a brother by the lawless cruelty of the General. The truth was, he never had had a brother.
The remaining circumstances may, with reference to those already mentioned, be termed secondary influencing circumstances. These have an influence, it is true, on the quantum or bias of a man’s sensibility, but it is only by means of the other primary ones. The manner in which these two sets of circumstances are concerned, is such that the primary ones do the business, while the secondary ones lie most open to observation. The secondary ones, therefore, are those which are most heard of; on which account it will be necessary to take notice of them: at the same time that it is only by means of the primary ones that their influence can be explained; whereas the influence of the primary ones will be apparent enough, without any mention of the secondary ones.
25. Among such of the primitive modifications of the corporeal frame as may appear to influence the quantum and bias of sensibility, the most obvious and conspicuous are those which constitute the sex. In point of quantity, the sensibility of the female sex appears in general to be greater than that of the male. The health of the female is more delicate than that of the male: in point of strength and hardiness of body, in point of quantity and quality of knowledge, in point of strength of intellectual powers, and firmness of mind, she is commonly inferior: moral, religious, sympathetic, and antipathetic sensibility are commonly stronger in her than in the male. The quality of her knowledge, and the bent of her inclinations, are commonly in many respects different. Her moral biases are also, in certain respects, remarkably different: chastity, modesty, and delicacy, for instance, are prized more than courage in a woman: courage, more than any of those qualities, in a man. The religious biases in the two sexes are not apt to be remarkably different: except that the female is rather more inclined than the male to superstition: that is, to observances not dictated by the principle of utility; a difference that may be pretty well accounted for by some of the before-mentioned circumstances. Her sympathetic biases are in many respects different for her own offspring all their lives long, and for children in general while young, her affection is commonly stronger than that of the male. Her affections are apt to be less enlarged: seldom expanding themselves so much as to take in the welfare of her country in general, much less that of mankind, or the whole sensitive creation: seldom embracing any extensive class or division, even of her own countrymen, unless it be in virtue of her sympathy for some particular individuals that belong to it. In general, her antipathetic, as well as sympathetic biases, are apt to be less conformable to the principle of utility than those of the male; owing chiefly to some deficiency in point of knowledge, discernment, and comprehension. Her habitual occupations of the amusing kind are apt to be in many respects different from those of the male. With regard to her connexions in the way of sympathy, there can be no difference. In point of pecuniary circumstances, according to the customs of perhaps all countries, she is in general less independent.
26. Age is of course divided into divers periods, of which the number and limits are by no means uniformly ascertained. One might distinguish it, for the present purpose, into, 1. Infancy. 2. Adolescence. 3. Youth. 4. Maturity. 5. Decline. 6. Decrepitude. It were lost time to stop on the present occasion to examine it at each period, and to observe the indications it gives, with respect to the several primary circumstances just reviewed. Infancy and decrepitude are commonly inferior to the other periods, in point of health, strength, hardiness, and so forth. In infancy on the part of the female, the imperfections of that sex are enhanced: on the part of the male, imperfections take place mostly similar in quality, but greater in quantity, to those attending the states of adolescence, youth, and maturity in the female. In the stage of decrepitude both sexes relapse into many of the imperfections of infancy. The generality of these observations may easily be corrected upon a particular review.
27. Station, or rank in life, is a circumstance, that, among a civilized people, will commonly undergo a multiplicity of variations. Cæteris paribus, the quantum of sensibility appears to be greater in the higher ranks of men than in the lower. The primary circumstances in respect of which this secondary circumstance is apt to induce or indicate a difference, seem principally to be as follows: 1. Quantity and quality of knowledge. 2. Strength of mind. 3. Bent of inclination. 4. Moral sensibility. 5. Moral biases. 6. Religious sensibility. 7. Religious biases. 8. Sympathetic sensibility. 9. Sympathetic biases. 10. Antipathetic sensibility. 11. Antipathetic biases. 12. Habitual occupations. 13. Nature and productiveness of a man’s means of livelihood. 14. Connexions importing profit. 15. Habit of expense. 16. Connexions importing burthen. A man of a certain rank will frequently have a number of dependents besides those whose dependency is the result of natural relationship. As to health, strength, and hardiness, if rank has any influence on these circumstances, it is but in a remote way, chiefly by the influence it may have on his habitual occupations.
28. The influence of education is still more extensive. Education stands upon a footing somewhat different from that of the circumstances of age, sex, and rank. These words, though the influence of the circumstances they respectively denote exerts itself principally, if not entirely, through the medium of certain of the primary circumstances before mentioned, present, however, each of them a circumstance which has a separate existence of itself. This is not the case with the word education: which means nothing any farther than as it serves to call up to view some one or more of those primary circumstances. Education may be distinguished into physical and mental; the education of the body and that of the mind: mental, again, into intellectual and moral; the culture of the understanding, and the culture of the affections. The education a man receives, is given to him partly by others, partly by himself. By education, then, nothing more can be expressed than the condition a man is in in respect of those primary circumstances, as resulting partly from the management and contrivance of others, principally of those who, in the early periods of his life, have had dominion over him, partly from his own. To the physical part of his education, belong the circumstances of health, strength, and hardiness: sometimes, by accident, that of bodily imperfection; as where by intemperance or negligence an irreparable mischief happens to his person. To the intellectual parts, those of quantity and quality of knowledge, and in some measure perhaps those of firmness of mind and steadiness. To the moral part, the bent of his inclinations, the quantity and quality of his moral, religious, sympathetic, and antipathetic sensibility: to all three branches indiscriminately, but under the superior control of external occurrences, his habitual recreations, his property, his means of livelihood, his connexions in the way of profit and of burthen, and his habits of expense. With respect, indeed, to all these points, the influence of education is modified, in a manner more or less apparent, by that of exterior occurrences; and in a manner scarcely at all apparent, and altogether out of the reach of calculation, by the original texture and constitution as well of his body as of his mind.
29. Among the external circumstances by which the influence of education is modified, the principal are those which come under the head of climate.* This circumstance places itself in front, and demands a separate denomination, not merely on account of the magnitude of its influence, but also on account of its being conspicuous to every body, and of its applying indiscriminately to great numbers at a time. This circumstance depends for its essence upon the situation of that part of the earth which is in question, with respect to the course taken by the whole planet in its revolution round the sun: but for its influence it depends upon the condition of the bodies which compose the earth’s surface at that part, principally upon the quantities of sensible heat at different periods, and upon the density, and purity, and dryness or moisture of the circumambient air. Of the so often mentioned primary circumstances, there are few of which the production is not influenced by this secondary one; partly by its manifest effects upon the body; partly by its less perceptible effects upon the mind. In hot climates, men’s health is apt to be more precarious than in cold: their strength and hardiness less: their vigour, firmness, and steadiness of mind less: and thence indirectly their quantity of knowledge: the bent of their inclinations different: most remarkably so in respect of their superior propensity to sexual enjoyments, and in respect of the earliness of the period at which that propensity begins to manifest itself: their sensibilities of all kinds more intense: their habitual occupations savouring more of sloth than of activity: their radical frame of body less strong, probably, and less hardy: their radical frame of mind less vigorous, less firm, less steady.
* Upon reflection, I seem to have overlooked, in the chapter on circumstances influencing sensibility, the circumstance of the face, or rather texture of the country: that being a circumstance which the purpose for which I was then considering the subject did not necessarily bring to view: had I strictly pursued the exhaustive plan, this oversight would probably not have happened. The article which comes nearest is that of climate; but the word climate will scarcely with propriety serve to bring to view that of the texture of the country. The word climate denotes primarily the situation or inclination of the part of the earth in question, with reference to the part marked out by that planet in its orbit round the sun: and thence derivatively the degree of heat which, during a given period, is excited in that part. It may thence again serve to bring to view the state of the air in respect to density, purity, and dryness or moisture. But the evenness or unevenness of the surface of the earth, with its elevation or depression, the proportion between earth and water in any given spot, and the quality of each; these are particulars which can not properly be referable, any of them, to the head of climate.
It is evident that the circumstances comprehended under the head of texture of the earth, may have an influence on those which, in a secondary manner, are included under the head of climate. The density of the air, its dryness and moistness, and the temperature of the atmosphere and the earth together, in respect of heat and cold, depend for the most part on the elevation or depression of the earth’s surface, the proportion between earth and water, and quality of both these elements. But the texture of the earth does not, except in as far as it influences the climate, exert any direct influence on the state and condition of the men themselves who are its inhabitants. It exerts, indeed, partly through the medium of climate, and partly by its own immediate efficacy, an influence over the vegetables and animals, which are of a nature to be either of use or detriment to man; and thence again, by another channel, over the state and condition of man himself. It was the remoteness of this latter influence which is exerted by the texture of the earth upon man, that was the reason of its being overlooked on the occasion before mentioned.
30. Another article in the catalogue of secondary circumstances, is that of race or lineage: the national race or lineage a man issues from. This circumstance, independently of that of climate, will commonly make some difference in point of radical frame of mind and body. A man of negro race, born in France or England, is a very different being, in many respects, from a man of French or English race. A man of Spanish race, born in Mexico or Peru, is at the hour of his birth a different sort of being, in many respects, from a man of the original Mexican or Peruvian race. This circumstance, as far as it is distinct from climate, rank, and education, and from the two just mentioned, operates chiefly through the medium of moral, religious, sympathetic, and antipathetic biases.
31. The last circumstance but one, is that of government: the government a man lives under at the time in question; or rather that under which he has been accustomed most to live. This circumstance operates principally through the medium of education: the magistrate operating in the character of a tutor upon all the members of the state, by the direction he gives to their hopes and to their fears. Indeed, under a solicitous and attentive government, the ordinary preceptor, nay even the parent himself, is but a deputy, as it were, to the magistrate: whose controlling influence, different in this respect from that of the ordinary preceptor, dwells with a man to his life’s end. The effects of the peculiar power of the magistrate are seen more particularly in the influence it exerts over the quantum and bias of men’s moral, religious, sympathetic, and antipapathetic sensibilities. Under a well-constituted, or even under a well-administered though ill-constituted government, men’s moral sensibility is commonly stronger, and their moral biases more conformable to the dictates of utility: their religious sensibility frequently weaker, but their religious biases less unconformable to the dictates of utility: their sympathetic affections more enlarged, directed to the magistrate more than to small parties or to individuals, and more to the whole community than to either: their antipathetic sensibilities less violent, as being more obsequious to the influence of well-directed moral biases, and less apt to be excited by that of ill-directed religious ones: their antipathetic biases more conformable to well-directed moral ones, more apt (in proportion) to be grounded on enlarged and sympathetic than on narrow and self-regarding affections, and accordingly, upon the whole, more conformable to the dictates of utility.
32. The last circumstance is that of religious profession: the religious profession a man is of: the religious fraternity of which he is a member. This circumstance operates principally through the medium of religious sensibility and religious biases. It operates, however, as an indication more or less conclusive, with respect to several other circumstances. With respect to some, scarcely but through the medium of the two just mentioned: this is the case with regard to the quantum and bias of a man’s moral, sympathetic, and antipathetic sensibility: perhaps in some cases with regard to quantity and quality of knowledge, strength of intellectual powers, and bent of inclination. With respect to others, it may operate immediately of itself: this seems to be the case with regard to a man’s habitual occupations, pecuniary circumstances, and connexions in the way of sympathy and antipathy. A man who pays very little inward regard to the dictates of the religion which he finds it necessary to profess, may find it difficult to avoid joining in the ceremonies of it, and bearing a part in the pecuniary burthens it imposes.* By the force of habit and example he may even be led to entertain a partiality for persons of the same profession, and a proportionable antipathy against those of a rival one. In particular, the antipathy against persons of different persuasions is one of the last points of religion which men part with. Lastly, it is obvious, that the religious profession a man is of cannot but have a considerable influence on his education. But, considering the import of the term education, to say this is perhaps no more than saying in other words what has been said already.
* The ways in which a religion may lessen a man’s means, or augment his wants, are various. Sometimes it will prevent him from making a profit of his money: sometimes from setting his hand to labour. Sometimes it will oblige him to buy dearer food instead of cheaper: sometimes to purchase useless labour: sometimes to pay men for not labouring: sometimes to purchase trinkets, on which imagination alone has set a value: sometimes to purchase exemptions from punishment, or titles to felicity in the world to come.
These circumstances, all or many of them, will need to be attended to as often as upon any occasion any account is taken of any quantity of pain or pleasure, as resulting from any cause. Has any person sustained an injury? they will need to be considered in estimating the mischief of the offence. Is satisfaction to be made to him? they will need to be attended to in adjusting the quantum of that satisfaction. Is the injurer to be punished? they will need to be attended to in estimating the force of the impression that will be made on him by any given punishment.
It is to be observed, that though they seem all of them, on some account or other, to merit a place in the catalogue, they are not all of equal use in practice. Different articles among them are applicable to different exciting causes. Of those that may influence the effect of the same exciting cause, some apply indiscriminately to whole classes of persons together; being applicable to all, without any remarkable difference in degree: these may be directly and pretty fully provided for by the legislator. This is the case, for instance, with the primary circumstances of bodily imperfection, and insanity: with the secondary circumstance of sex: perhaps with that of age: at any rate, with those of rank, of climate, of lineage, and of religious profession. Others, however they may apply to whole classes of persons, yet in their application to different individuals are susceptible of perhaps an indefinite variety of degrees. These cannot be fully provided for by the legislator; but, as the existence of them, in every sort of case, is capable of being ascertained, and the degree in which they take place is capable of being measured, provision may be made for them by the judge, or other executive magistrate, to whom the several individuals that happen to be concerned may be made known. This is the case, 1. With the circumstance of health. 2. In some sort with that of strength. 3. Scarcely with that of hardiness: still less with those of quantity and quality of knowledge, strength of intellectual powers, firmness or steadiness of mind; except in as far as a man’s condition, in respect of those circumstances, may be indicated by the secondary circumstances of sex, age, or rank: hardly with that of bent of inclination, except in as far as that latent circumstance is indicated by the more manifest one of habitual occupations: hardly with that of a man’s moral sensibility or biases, except in as far as they may be indicated by his sex, age, rank, and education: not at all with his religious sensibility and religious biases, except in as far as they may be indicated by the religious profession he belongs to: not at all with the quantity or quality of his sympathetic or antipathetic sensibilities, except in as far as they may be presumed from his sex, age, rank, education, lineage, or religious profession. It is the case, however, with his habitual occupations, with his pecuniary circumstances, and with his connexions in the way of sympathy. Of others, again, either the existence cannot be ascertained, or the degree cannot be measured. These, therefore, cannot be taken into account, either by the legislator or the executive magistrate. Accordingly, they would have no claim to be taken notice of, were it not for those secondary circumstances by which they are indicated, and whose influence could not well be understood without them. What these are, has been already mentioned.
It has already been observed, that different articles in this list of circumstances apply to different exciting causes: the circumstance of bodily strength, for instance, has scarcely any influence of itself (whatever it may have in a roundabout way, and by accident) on the effect of an incident which should increase or diminish the quantum of a man’s property. It remains to be considered, what the exciting causes are with which the legislator has to do. These may, by some accident or other, be any whatsoever: but those with which he has principally to do, are those of the painful or afflictive kind. With pleasurable ones he has little to do, except now and then by accident: the reasons of which may be easily enough perceived, at the same time that it would take up too much room to unfold them here. The exciting causes with which he has principally to do, are, on the one hand, the mischievous acts, which it is his business to prevent; on the other hand, the punishments, by the terror of which it is his endeavour to prevent them. Now of these two sets of exciting causes, the latter only is of his production: being produced partly by his own special appointment, partly in conformity to his general appointment, by the special appointment of the judge. For the legislator, therefore, as well as for the judge, it is necessary (if they would know what it is they are doing when they are appointing punishment) to have an eye to all these circumstances. For the legislator, lest, meaning to apply a certain quantity of punishment to all persons who shall put themselves in a given predicament, he should unawares apply to some of those persons much more or much less than he himself intended: for the judge, lest, in applying to a particular person a particular measure of punishment, he should apply much more or much less than was intended, perhaps by himself, and at any rate by the legislator. They ought each of them, therefore, to have before him, on the one hand, a list of the several circumstances by which sensibility may be influenced; on the other hand, a list of the several species and degrees of punishment which they purpose to make use of: and then, by making a comparison between the two, to form a detailed estimate of the influence of each of the circumstances in question, upon the effect of each species and degree of punishment.
There are two plans or orders of distribution, either of which might be pursued in the drawing up this estimate. The one is to make the name of the circumstance take the lead, and under it to represent the different influences it exerts over the effects of the several modes of punishment: the other is to make the name of the punishment take the lead, and under it to represent the different influences which are exerted over the effects of it by the several circumstances above mentioned. Now of these two sorts of objects, the punishment is that to which the intention of the legislator is directed in the first instance. This is of his own creation, and will be whatsoever he thinks fit to make it: the influencing circumstance exists independently of him, and is what it is whether he will or no. What he has occasion to do is to establish a certain species and degree of punishment: and it is only with reference to that punishment that he has occasion to make any inquiry concerning any of the circumstances here in question. The latter of the two plans therefore is that which appears by far the most useful and commodious. But neither upon the one or the other plan can any such estimate be delivered here.*
* This is far from being a visionary proposal, not reducible to practice. I speak from experience, having actually drawn up such an estimate, though upon the least commodious of the two plans, and before the several circumstances in question had been reduced to the precise number and order in which they are here enumerated. This is a part of the matter destined for another work. See ch. xv. [Cases unmeet] par. 2. Note. There are some of these circumstances that bestow particular denominations on the persons they relate to: thus, from the circumstance of bodily imperfections, persons are denominated deaf, dumb, blind, and so forth: from the circumstance of insanity, idiots, and maniacs: from the circumstance of age, infants: for all which classes of persons particular provision is made in the Code. See B. I. tit. [Exemptions.] Persons thus distinguished will form so many articles in the catalogus personarum privilegiatarum. See Appendix, tit. [Composition.]
Of the several circumstances contained in this catalogue, it may be of use to give some sort of analytic view; in order that it may be the more easily discovered if any which ought to have been inserted are omitted; and that, with regard to those which are inserted, it may be seen how they differ and agree.
In the first place, they may be distinguished into primary and secondary: those may be termed primary, which operate immediately of themselves: those secondary, which operate not but by the medium of the former. To this latter head belong the circumstances of sex, age, station in life, education, climate, lineage, government, and religious profession: the rest are primary. These again are either connate or adventitious: those which are connate, are radical frame of body and radical frame of mind. Those which are adventitious, are either personal, or exterior. The personal, again, concern either a man’s dispositions, or his actions. Those which concern his dispositions, concern either his body or his mind. Those which concern his body are health, strength, hardiness, and bodily imperfection. Those which concern his mind, again, concern either his understanding or his affections. To the former head belong the circumstances of quantity and quality of knowledge, strength of understanding, and insanity. To the latter belong the circumstances of firmness of mind, steadiness, bent of inclination, moral sensibility, moral biases, religious sensibility, religious biases, sympathetic sensibility, sympathetic biases, antipathetic sensibility, and antipathetic biases. Those which regard his actions, are his habitual occupations. Those which are exterior to him, regard either the things or the persons which he is concerned with: under the former head come his pecuniary circumstances;* under the latter, his connexions in the way of sympathy and antipathy.
As it is not possible to calculate the movement of a vessel, without knowing the circumstances which influence its speed; such as the force of the winds, the resistance of the water, the shape of the vessel, the weight of its burden, &c.; in the same manner, one cannot work with certainty in matters of legislation, without considering all the circumstances which influence sensibility.
I shall limit myself here, to what concerns the penal code: it requires in all its parts a scrupulous attention to this diversity.
1. In estimating the evil of an offence. In effect, the same nominal offence is not the same real offence, when the sensibility of the individual injured is not the same. A certain action, for example, would be a serious insult to a woman, whilst it is indifferent to a man. A certain corporal injury, if done to a sick person, would endanger his life, but would be of no consequence to a person in good health. An imputation which would ruin the fortune or the honour of a certain individual, would do no injury to another individual.
2. In giving a suitable satisfaction to an injured person. The same nominal satisfaction is not the same real satisfaction, when the sensibility materially differs. A pecuniary satisfaction for an affront may be agreeable or offensive, according to the rank, the fortune, or the prejudices of a person. Am I insulted? A pardon publicly asked would be a sufficient satisfaction on the part of my superior or my equal, but not on that of my inferior.
3. In estimating the force and impression of punishment upon delinquents. The same nominal punishment is not the same real punishment, when the sensibility is essentially different. Banishment would be a very unequable punishment in the case of a young and an old man; of a bachelor and the father of a family; for a workman who has not the means of subsistence out of his own country, and a rich man who need only change the scene of his pleasures. Imprisonment would be an unequable punishment for a man and a woman; for a sick person and a person in health; for a rich man, whose family would not suffer by his absence; and for a man who lives by his labour, and who would leave his family in poverty.
4. In transplanting a law from one country to another. The same law verbally would not be the same law really, when the sensibility of the two people is essentially different. A certain law in Europe produces the happiness of families; transported into Asia, it would become the scourge of society: women in Europe are accustomed to enjoy their liberty, and even to govern the house: women in Asia are prepared, by their education, for the seclusion of the seraglio, and even for slavery. Marriage in Europe and the East is not a contract of the same kind; if it were sought to subject it to the same rules, it would evidently cause unhappiness to all the parties interested.
The same punishments for the same offences, is often said. This adage has an appearance of justice and impartiality, which seduces superficial minds. To give it a reasonable meaning, it would be necessary to determine beforehand what is meant by the same punishments and the same offences. An inflexible law — a law which should regard neither sex, nor age, nor fortune, nor rank, nor education, nor the moral nor religious prejudices of individuals — would be doubly vicious, as inefficacious, or as tyrannical. Too severe for some, too lenient for others; always sinning by excess or defect; under an appearance of equality, it would hide the most monstrous inequality.
When a man of large fortune, and a man of moderate fortune, are condemned to the same fine, is the punishment the same? do they suffer the same evil? The manifest inequality of such treatment, is it not rendered more hateful by the derisory equality? Is not the design of the law missed, since the one may lose the means of his existence, whilst the other escapes with triumph? When a strong young man and a feeble old man are both condemned to be loaded with fetters for the same number of years, a sophist skilful in darkening the most evident truths, might contend for the equality of the punishment; but the unsophisticated populace, faithful to nature and just feeling, would murmur internally at beholding such injustice; and their indignation changing its object, would pass from the criminal to the judge, and from the judge to the legislature.
I am aware that specious objections may be urged. It may be asked, “How is it possible to take an account of all the circumstances which influence sensibility? How can internal and hidden dispositions be appreciated; such as strength of mind, degree of knowledge, inclinations, sympathies? How can the different qualities of all beings be measured? A father of a family may consult these internal dispositions, these diversities of character, in the treatment of his children; but a public instructor, charged with a limited number of pupils, could not. The legislator, who has in view a whole people, is by much stronger reason obliged to confine himself to general laws, and must fear lest he should render them complicated by descending to particular cases. If he leave to the judge the right of varying the application of the laws according to this infinite diversity of circumstances and characters, there will be no limits to the arbitrariness of his judgments: under pretence of seizing the true spirit of the legislator, the judges will make the laws the instruments of their whims and fancies. Sed aliter leges aliter philosophi tollunt astutias: leges quatenus manu tenere possunt philosophi, quatenus ratione et intelligentia —(De. Off. 3. 17.)”
It is not necessary to answer, but to explain: all such observations exhibit a difficulty, rather than an objection. The principle is not denied: it is only its application which is deemed impossible.
1. It is allowed that the greater part of these differences of sensibility are inappreciable: that it is impossible to prove their existence in individual cases, or to measure their force or degree; but fortunately these interior and hidden dispositions, if it may be so said, have external and manifest indications. These are the circumstances which have been called secondary: sex, age, rank, race, climate, government, education, religious profession; circumstances evident and palpable, which represent the interior dispositions. Here then the legislator is relieved from a part of his difficulty. He does not stop at metaphysical and moral qualities: he lays hold only of ostensible circumstances. He directs, for example, the modification of a certain punishment; not on account of the greater sensibility of the individual, or on account of his steadiness, strength of mind, or knowledge, but on account of his sex or age.
It is true, that presumption drawn from these circumstances are liable to be defective. It may happen that a youth of fifteen years old is more enlightened than a man of thirty: it may happen that a certain woman has more courage and less modesty than a certain man; but these presumptions will have in general all the justice necessary to prevent the laws being tyrannical; and, above all, to conciliate to the legislator the suffrages of public opinion.
2. These secondary circumstances are not only easily seized: they are few in number; they form general classes. Grounds of justification, of extenuation or of aggravation, with regard to the different offences, may be drawn from them. Thus complexity disappears, and simplicity is easily restored throughout.
3. There is nothing arbitrary. It is not the judge, it is the law itself, which modifies a certain punishment, according to the sex, the age, the religious profession, &c. As to other circumstances, which must absolutely be left to the examination of the judge, as the greater or less derangement in the mind, the greater or less in point of strength, the greater or less in point of fortune; the legislator who can pronounce nothing as to individual cases, directs the tribunals by general rules, and leaves them a certain latitude, that they may proportion their judgment to the particular nature of the circumstance.
What is recommended here is not an Utopian idea. There never was a legislator so barbarous or so stupid as to neglect all the circumstances influencing sensibility. They have had a regard to them more or less confused, which has guided them in the establishment of civil and political rights: they have shown more or less regard to circumstances in the institution of punishments: hence arises the admitted differences with regard to women, children, freemen, slaves, soldiers, ecclesiastics, &c.
Draco appears alone to have rejected all these considerations, at least in penal matters. All offences appeared to him equal, because they were all violations of the law. He condemned all offenders to death, without distinction. He confounded, he overturned all the principles of human sensibility. His horrid work did not long endure; and it is doubtful if his laws were ever literally obeyed.
Without falling into this extreme, how many faults have not been committed of the same kind! There would be no end of citing examples. There have been sovereigns who have chosen to lose whole provinces, and to shed floods of human blood, rather than to respect a particular sensibility of a people, or tolerate a custom indifferent in itself, or respect an ancient prejudice, a certain dress, a certain form of prayers.
A prince of our own times, active, enlightened, animated by the desire of glory and the happiness of his subjects, undertook to reform every thing in his states; and caused them all to revolt against him.* At the approach of death, recollecting all the vexations of his life, he desired that there should be engraven upon his tomb, that he had been unhappy in all his enterprises. He ought also to have had engraved there, for the instruction of posterity, that he had always been ignorant of the art of managing the desires, the inclinations, and the sensibilities of men.
When legislators shall study the human heart; when they shall show their attention to the different degrees and different kinds of sensibility, by limitations and modifications; these condescensions on the part of power will charm like paternal endearments. Conduct of this kind is the foundation of the approbation, which is sometimes bestowed upon the laws, under the vague terms of humanity, equity, suitableness, moderation, and wisdom.
In this respect, there is a striking analogy between the art of the legislator and that of the physician. The catalogue of circumstances influencing sensibility is necessary in both their sciences. What distinguishes the physician from the empiric is the attention which the first pays to every thing which constitutes the particular state of the individual. But it is especially in diseases which affect the mind; in those which concern morality; when hurtful habits are to be surmounted, and new ones formed, that it is necessary to study every thing which affects the dispositions of the invalid; since a single error in this respect may change all the results, and increase the evil, instead of remedying it.
* As to a man’s pecuniary circumstances, the causes on which those circumstances depend, do not come all of them under the same class. The absolute quantum of a man’s property does indeed come under the same class with his pecuniary circumstances in general: so does the profit he makes from the occupation which furnishes him with the means of livelihood. But the occupation itself concerns his own person, and comes under the same head as his habitual amusements: as likewise his habits of expense: his connexions in the ways of profit and of burthen, under the same head as his connexions in the way of sympathy: and the circumstances of his present demand for money, and strength of expectation, come under the head of those circumstances relative to his person which regard his affections.
† The following paragraphs are inserted here from Dumont’s “Traites de Legislation,” in order to complete the exhibition of Bentham’s principles as published in his lifetime. — Ed.
* Joseph II.
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