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I. ESSAY ON THE PROMULGATION OF LAWS - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
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PROMULGATION OF THE LAWS.*
Let us suppose the general code completed, and that the seal of the sovereign has been set to it. What remains to be done?
That a law may be obeyed, it is necessary that it should be known: that it may be known, it is necessary that it be promulgated. But to promulgate a law, it is not only necessary that it should be published with the sound of trumpet in the streets; not only that it should be read to the people; not only even that it should be printed: all these means may be good, but they may be all employed without accomplishing the essential object. They may possess more of the appearance than the reality of promulgation. To promulgate a law, is to present it to the minds of those who are to be governed by it in such manner as that they may have it habitually in their memories, and may possess every facility for consulting it, if they have any doubts respecting what it prescribes.
There are many methods of attaining this end: none of them ought to be neglected; but it has been too common to neglect them all. The forgetfulness of legislators in this respect has exceeded every thing which could have been imagined. I speak more particularly of modern legislators. We shall find models deserving of imitation in antiquity; and it is astonishing that the example which should have had the greatest weight among Christian nations, should have had scarcely any influence in this respect. They have borrowed from Moses, laws which possessed only a relative and local utility; but they have not imitated him in that which bears the noblest character of wisdom, and which is suited to all times and all places.
It is said by some naturalists, that the ostrich is among the most stupid of birds, inasmuch as it leaves its eggs in the sand, unmindful that the passing foot may crush them. If this were true, Bacon, who has converted into sources of wisdom so many of the ancient fables, might have turned it into an apologue; and the legislator who, after having framed his laws, abandons their promulgation to chance, and thinks that his task is finished when the most important of his duties has only begun, would have been represented by the ostrich.
It is true, that before laws can be promulgated, they must exist. That which is called unwritten law, which consists of rules of jurisprudence, is a law which governs without existing. The learned may exercise their ingenuity in guessing at it; but the unlearned citizen can never know it. Were these rules to receive an authentic form, and to be promulgated, they would no longer be mere rules, but would become real laws. To render them such, has been one of the great objects of my plan; and the facility of promulgation has been one of the principal objects which I have had in view. It is with this view that I have divided the general code into particular codes, that they may be separated or collected together, according to the powers and wants of the individuals whom they respectively concern.
To promulgate the English laws as they exist at present; to pile the decisions of the judges upon the top of the statutes of parliament, would be chimerical: it would be to present the sea to those that thirst: it would do nothing for the mass of the people, who would not be able to comprehend them. A point, say the mathematicians, has no parts: so neither are there any parts in chaos.
If the laws be good, it is desirable that they should be known; if otherwise, the knowledge of them may be mischievous: for example, if you leave in your code bad coercive laws, persecuting laws, it is well that they remain undiscovered by informers. If your laws of procedure favour the impunity of crimes; if they afford means of eluding justice, of evading taxes, of cheating creditors, it is well that they remain unknown. But what other system of legislation besides this will gain by being unknown?
There are some laws which seem to have a natural notoriety: such are those which concern crimes against individuals; as theft, personal injuries, fraud, murder, &c. But this notoriety does not extend to the punishment, which, however, is the motive upon which the legislature relies for procuring obedience to the law. It does not extend even to those circumstances, often so delicate, which must be noticed before the line of demarcation can be traced among so many crimes differently punished, nor even to those actions which are either innocent or meritorious.
The dissemination of the laws ought to be regulated by the number of persons whom they concern. The universal code ought to be promulgated to all. The particular codes ought to be set before the classes to which they respectively refer. A road-book is useful, but it is of most use to those who are to be guided by its regulations, and who wish to travel.
The universal code of all secular books would be the most valuable, and almost the only one necessary for all; if not as a book of law, at least as a book of morals.
The sacred books command men to be honest: a good code would explain in what justice consists, and would exhibit in what manner it was possible to be unjust.
Probity, prudence, benevolence; these are the subjects of morality. The law ought, however, to include all that relates to probity; all that teaches men to live together without injuring each other.
There will then remain for morality, prudence and benevolence: but secure probity, and prudence will have fewer snares to escape, and will walk more securely: prevent men from injuring one another, and benevolence will have fewer sufferings to relieve.
Methods of Promulgating the Universal Code.
It ought to be made the chief book; one of the first objects of instruction in all schools: it formed the foundation of instruction among the Hebrews; and tradition relates, that the Jewish kings were required to make a copy of the whole law with their own hands.
In those cases in which a certain degree of education is required as a pre-requisite to the enjoyment of a certain employment, the aspirant might be required to produce an exact copy of the code, written with his own hand, or translated into a foreign language.
The most important parts of it might be committed to memory, and repeated as a catechism: that, for example, which contains the definition of offences, and the reasons for their being ranged into classes.
In this manner, before sixteen years of age, without hindrance to any other studies, the pupils in public schools would become more conversant with the laws of their country, than those lawyers at present are, whose hair has grown grey in the contentions of the bar. The change would arise out of the nature of the laws themselves.
The pupils might translate the national code into the dead languages; they might translate them into the living languages; they might turn them into verse, the mother tongue of the laws.
“Teach your children,” said an ancient philosopher, “what they ought to know when they are men, and not what they ought to forget.” This philosopher would not have condemned the new study I propose.
Why should not the reading of the laws form, as it did among the Jews, a part of divine service? Would not the association of ideas be beneficial? Would it not be well to represent the supreme Being as the protector of the laws of property and security? Would it not add dignity to the ceremony, if the laws respecting parents and children were read upon the performance of baptism? and the laws respecting husbands and wives at the time of marriage?
This public reading in places of worship would be, as respects the most ignorant classes, a means of instruction, as little costly as it would be interesting; and the code would be unnecessarily voluminous, if it would not be possible to read it through many times in the year.
The laws which only concern certain places; as markets, theatres, highways; ought to be fixed up in the places themselves, where it is desirable that they should be present to the minds of those who have to observe them. There are few men who would dare to violate a law, speaking as it were to all eyes, and addressing itself to all as to so many witnesses upon whom it would call to bear testimony against the evil doer.
If the nation which ought to obey the same laws is composed of different peoples, speaking different languages, it is proper that an authentic translation of the code should be made into each of these languages. It is also proper that it should be translated into the languages of the principal nations of Europe. The interests of these nations are so mingled, that they have all occasion to understand the laws of the others. Besides, it would prevent a stranger from falling into those faults which he might otherwise commit through ignorance of the law, and also guard him from the snares which otherwise might be laid for him by abusing his ignorance. Hence would arise security for commerce, and confidence in transactions among foreign nations. It is a proceeding called for by candour and honesty.
Have you any thing contrary to the ordinances of the king? is the foolish and insidious question asked at many custom-houses of the stranger, who, perhaps for the first time, enters the kingdom. How should he know those ordinances? He might reply, Does the king himself know them? My reply may constitute either a snare or an offence. Show me your ordinances in my own language, and then, if I deceive you, punish me.
In taking up a condition, every citizen should be obliged to provide himself with the code which relates to that condition. The code, according to its extent, should be printed as a book, or on a sheet. In those cases in which the whole code cannot be printed on a sheet, an abridgement or index to it ought so to be. This sheet should be required to be stuck up in a fixed place, and its exhibition in this manner should be made a matter of police, as it respects shops, places of amusement, theatres, &c. The rogues would doubtless be disposed to throw a veil over so unwelcome a witness against them; in the same manner as certain devotees are reported to have done, when they wished not to be seen by their saints.
Laws concerning Contracts.
There is one species of promulgation specially adapted to agreements among individuals and to wills. With regard to things of sufficient value, it might be required that they should be written upon stamped paper, which should bear upon its margin a notice of the laws concerning the transaction to which it referred. This plan is borrowed from English jurisprudence: but the instances in which it has been employed are very few, in comparison with those in which it has been neglected, and in which it would have been equally useful. I have gathered with carefulness this precious seed, that its cultivation may be extended.
PROMULGATION OF REASONS.
For writing laws, it is enough to know how to write: for establishing them, it is only necessary to possess power. The difficulty consists in establishing good laws. Now good laws are those for which good reasons are assignable: but it is one thing to have established good laws justifiable by good reasons; another thing to have discovered those reasons, and to have presented them to view in the most advantageous light. A third problem, yet more difficult of solution, is to find a common base for all the laws; one unique and clear principle: to shew their harmony with it; to dispose them in the best order; to give them the greatest simplicity and the greatest clearness of which they are susceptible: to find an isolated reason for a law, is to do nothing. A comparative balance for and against is desirable, since we cannot rely with confidence upon a reason, unless we can be assured that there is nothing stronger to oppose to it in a contrary direction.
To the present time, reasons have been regarded as works of supererogation.* We need not be astonished at this. Legislators have been hitherto directed upon the most important points by a species of instinct: they have felt an evil; they have confusedly sought for a remedy. Laws have been made nearly in the same manner as the first towns were built. To look for a plan among these heaps of ordinances, would be like searching for an order of architecture amidst the huts of a village. Will it be believed, that it has been laid down as a principle that a law ought only to bear a character of absolute authority? Lord Chancellor Bacon, the great restorer of learning, will not allow that reasons should be assigned, because it might lead to disputes concerning the law.† He might, perhaps, have felt that the best reasons he could have given would have been found imperfect: he had no desire to satisfy the people; no inclination to take the pains necessary for satisfying them. Besides this, in his time the wisdom of kings scarcely differed from the divine: stet pro ratione voluntas, was their motto.
It must be acknowledged, that at the period at which Bacon lived, the notions respecting the principles of law were too imperfect to serve as the foundation of a reasonable system. He was more qualified than any one to expose the fallacy of the best reasons which could have been assigned for the greater part of the then existing laws; and therefore he might fear to expose them to a trial which they could not sustain. But this is no ground for fear, that laws founded upon reasons based in utility will be liable to be thus overthrown: when such a code shall have been accomplished, should all the lawyers in the world attack it with keenest appetites, what would be the result? They would be like vipers biting at a file.
There would have been many more codes supported by reasons, if those who have made the laws had believed themselves to be as superior in information to their fellow-men, as they felt themselves to be in power. Those who had felt themselves furnished with strength to enter upon the career, would not have renounced this more flattering part of their employment. If there had been no occasion to satisfy the people, they would have been desirous of satisfying themselves: they would have felt that it was not right to assume infallibility at the same moment that they renounced the guidance of reason. Those who are able to convince men, will treat them like men; those who only command, avow their inability to convince.
It is difficult, if not impossible, that the composition and sanction of a code of laws should proceed from the same hand. The situation in which a sovereign is placed, the kind of life to which he is accustomed, the duties he has to fulfil, absolutely exclude him from the knowledge of the details which such a work demands. Engaged in the labyrinths of jurisprudence, a Cæsar, a Charlemagne, a Frederick, would appear no more than an ordinary man. It is therefore impossible that such a work should be the result of the personal knowledge of a sovereign. Suppose a perfect code framed, the sovereign who should recognise its merit, and give it his support, would rank above all other sovereigns. He would not, however, be considered the author of the reasons by which the code was attended: these would have proceeded from the hand which penned them. The compiler of the code and the sovereign would each have their parts to act before the public. “You tell me,” might the latter say, “that the laws you have framed are only good and wise, and it is well: subject them to the proof.” “Sire,” might the compiler reply, “the laws which I have proposed are not the product of caprice; there is not a syllable which I have put there, for which there did not appear to me a good and conclusive reason; not a single regulation which did not appear to me the best that could be adopted under the present circumstances of your people. Permit me, then, to add my reasons throughout the whole of your code: by no other means can you be so completely assured of their merit, or I who have adopted or invented them, or the people who will have to obey them.”
Besides, if the name of the sovereign has most influence upon the present generation, that of the compiler will have most with the generations to come. Power, whilst living, may ally itself with the reputation of wisdom; but this union is dissolved by death. The veneration for great talents is increased when the foibles of the individual are forgotten, and when the dread of rivalry no longer exists. The veneration which thus attaches to the man of genius who is dead, will serve to protect his labours against precipitate change.
We proceed to consider, in greater detail, the different advantages which would result from a constant and sustained application of this method. An innovation always requires to be justified: an innovation which extends to the entire system of the laws, requires the strongest reasons for its justification.
We may observe, then, in general, that if the laws were constantly accompanied with a commentary of reasons, they would better fulfil the design of the legislator in all respects: they would be more pleasantly studied, more easily known, more constantly retained, and more cordially approved. All these desirable effects are intimately connected among themselves, and the attainment of either is one step towards obtaining the others.
If the study of the law is dry, it arises much less from the nature of the subject, than from the manner in which it has been treated. That which renders books of jurisprudence so dry and wearisome, is the confusion, the want of connection, the appearance of caprice, the difficulty of discovering any reason, and the barbarous nomenclature of the mass of incoherent and contradictory laws. Compilers have made their works an exercise of patience, and have addressed them only to the memory. The laws presented under this austere form appear only to require obedience, and never lay aside their severity. Let the laws be accompanied by justificatory reasons: this will shed a portion of interest over the laws themselves, and make the study of them agreeable. In reading the laws, we shall then learn to think, and shall discover the solution of many enigmas which had previously been inexplicable to us: by this means we shall enlarge and strengthen our minds; we shall be admitted into the counsels, as it were, of the philosophers and sages who have framed the laws, and shall find, in their works, a manual of philosophy and morals. The truths developed in the laws are interesting: and when they shall thus have been clearly arranged, and their connection exhibited, this study will become interesting to the young, instead of repulsive even to those who are compelled to engage in it. When it shall be shown to be connected with reason and philosophy, and shall have been rendered easy of acquisition, it will even become a disgrace not to be acquainted with it.
This exposition of reasons will render the laws more easily understood. A rule, the reason of which is unknown, takes no hold upon the understanding: those things are best comprehended, of which we know the why and the wherefore. The terms of law may be clear and familiar: add to them the reason of the law, and the light is increased; no doubt rests upon the real intention of the legislator; the mind of the reader holds immediate communion with the mind of the author.
The more clearly the laws are understood, the more easily will they be retained. The reasons annexed will serve as a kind of technical memory: they will serve as a species of cement, by which to unite all those regulations which would otherwise appear as fragments and dispersed ruins.
The reasons themselves would serve as a kind of guide in those cases in which the law was unknown: it would be possible to judge beforehand what its regulations would be; and by knowing the principles of the legislator, to place oneself by imagination in his situation; to divine or conjecture his will in the same manner as we conjecture what would be the determination of a reasonable being with whom we had long lived, and with whose maxims we were well acquainted.
But the greatest advantage is that which results from conciliating the approbation of all minds, by satisfying the public judgment, and obtaining obedience to the laws; not from a passive principle of blind fear alone, but with the concurrence of the will also.
When the people are dreaded, reasons are sometimes offered to them. But this extraordinary method rarely succeeds, because it is extraordinary: the people suspect there is some intention to deceive; they are put upon their guard, and yield rather to their mistrust than to their judgment.
Without reasons, all laws may be condemned or defended with equal blindness. If we listen to innovators, the most salutary law will be designated as tyrannical: if we listen to a crowd of lawyers, the most absurd law, if its origin be unknown, will pass for wisdom itself.
Exhibit the reasons of the laws, and you disarm all cheats and fanatics; because thus you will give to all discussions respecting the laws a clear and determinate object. There is the law: there is the reason assigned for that law. Is it a good reason? is it bad? The question is reduced to this simple issue. But those who have studied the progress of political quarrels, know that the object of the heads of parties especially is to avoid this fatal shoal, this examination of utility: personalities, antiquity, law of nature, laws of nations, and a thousand other terms of this kind, have been invented as a means of preventing recourse to this short method of shortening and resolving controversies.
If the laws were founded upon reason, they would infuse themselves, so to speak, into the minds of the people: they would form part of the logic of the people; they would extend their influence over their moral nature: the code of public opinion would be formed by analogy upon the code of the laws, and by the agreement between the man and the citizen: obedience to the laws would come to be hardly distinguishable from the feeling of liberty.
The commentary of reasons would be of great utility in the application of the laws: it would be a compass for the judges and all government functionaries. The reason assigned would unceasingly direct back to the intention of the legislator, all those who wandered from it. A false interpretation would not square with this reason: unintentional errors would become almost impossible: prevarications could not be hidden: the whole course of the law would be enlightened, and the citizens would judge the judges.
In a point of view still more enlarged, the adoption of this plan is recommended by its influence upon the perfection of the law. The necessity of furnishing a sufficient reason for every law, would be a preservative against a blind routine on the one hand, and a restraint to every thing arbitrary on the other. If you are required to state your reason for each proposition, it will be necessary to think, instead of to copy; to possess clear ideas, and to admit nothing without proof. There will no longer be any opportunity for preserving in the laws fantastic distinctions, useless regulations, unnecessary restraints: inconsistencies will become too prominent: the disproportion between good and evil will become too offensive. The most defective parts will continually tend towards amelioration upon the plan of the most perfect. Those parts which have attained the highest possible degree of perfection will never lose it: a good reason for their existence will always prove a safeguard, which will defend them against precipitate and capricious changes: a phalanx so strong will daunt the most audacious innovator. The strength of the reason will become the strength of the law: it will act as an anchor to prevent the vessel from being driven about by the force of the winds, or being insensibly drawn aside by the currents.
It may be said that the laws, and especially the most essential laws, are founded on such palpable truths, that it is unnecessary to prove them. The end of reasoning is conviction; but if complete conviction already exist, for what purpose employ reasoning to produce it?
There are truths which it is necessary to prove; not for their own sakes, because they are acknowledged, but that an opening may be made for the reception of other truths which depend upon them. It is necessary to demonstrate certain palpable truths, in order that others, which may depend upon them, may be adopted. It is in this manner we provide for the reception of first principles, which, once received, prepare the way for the admission of all other truths. All the world acknowledges that assassination is an evil action: its punishment ought to be severe: every body is agreed again. If it is necessary to analyze the mischievous effects of assassination, it will be necessary as a step towards bringing men to acknowledge the fitness of the law which distinguishes between different species of assassination, that it may only punish them according to their respective degrees of malignity; that those actions which bear the exterior characters of assassination, but do not produce its bitter fruits, may either not be punished, or only punished in a less degree: for example, suicide, duelling, infanticide, murder after violent provocation, &c.
In the same manner it is necessary to expose the evil of theft; not that men may be led to agree that theft is an evil, but that they may be led to acknowledge a multitude of other truths which, without this demonstration, would still be neglected. It is necessary that a variety of actions may be collected together under this head of crime, which have been hitherto neglected, and for detaching others which have no sufficient relation with crimes of this class: in a word, it is necessary for the purpose of collecting all the true and genuine species, and rejecting all the spurious, in order to establish the grounds for appointing different degrees of punishment.
Why should the laws of one state be unknown in every other? They have been thrown together at hazard, without connection, and without arrangement. There is no common measure among them. Without doubt, there are cases in which diversity of situation may demand diversity of legislation; but these cases can only exist in a few instances, and those much fewer than is usually imagined. In this respect, it will be proper to distinguish between an absolute and a temporary necessity: an absolute necessity is founded upon circumstances that cannot change; a temporary necessity is founded upon accidental circumstances, which may change.
If there be one method better calculated than another to bring nations more nearly together, this which I propose, of a system of laws founded upon reasons clearly announced, is one. The free communication of knowledge will propagate this system in all directions the instant it is created: such a system of legislation will prepare for itself a universal dominion.
Since philosophers have begun to compare the laws of different nations; when they have been able to divine any reason, to observe any relation of resemblance or of contrast, it has been a species of discovery. If legislators had been guided by the principle of utility, these researches would have been without an object: the laws derived from the same principle, tending towards the same object, would no longer present systems more ingenious than solid, in which we have to seek to find any reason at all; and in which, when any one fancies he finds a reason for a law, he thinks the law is justified.
Montesquieu has often misled his readers: he employs all his mind, that is to say, a mind of the first order, in discovering, amid the chaos of laws, the reasons which may have influenced the legislators. He has been desirous of lending them a wisdom of intention in institutions the most contradictory and the most extravagant. But when we agree with him that he has discovered their true motives, at what conclusion do we arrive? They acted upon a reason; but was this a good reason? If it were good in some respects, was it the best reason? If they had made a law directly opposed to it, would they not have done better? Such is the examination which always remains to be made: such is the examination to which he scarcely ever descends.
The science of legislation, though it has made but little progress, is much more simple than one would be led to believe, after reading Montesquieu. The principle of utility directs all reasons to a single centre: the reasons which apply to the detail of arrangements are only subordinate views of utility.
In the civil law, reasons should be drawn from four sources; that is to say, from the four objects, according to which the legislator ought to regulate his conduct in the distribution of private laws: subsistence, abundance, equality, security.
In penal laws, the reasons should be drawn from the nature of the evil of offences, and from that of the remedies of which they are susceptible. These remedies are of four kinds: preventive remedies, suppressive remedies, satisfactive remedies, penal remedies.
In the law of procedure, the reasons should equally derive their source from the different ends which ought to be kept in view: correctness of judgment, quickness, and economy.
In financial law, the reasons should be drawn from two principal objects: saving in expense, in order to avoid the evil of constraint; choice of the tax, in order to avoid its accessory inconveniencies.
There are some parts of the law in which the custom of assigning reasons has been followed to a certain point; in matters of police, of finance, and political economy. Their objects are modern: it has been necessary to create every thing, nothing relating to them being found in the ancient laws. What has been done, has been not only an invention, but a positive opposition to ancient usages and prejudices. Hence it has been necessary to combat them; it has been necessary that authority should justify itself. Such was the origin of those preambles to their laws, which procured so much credit to M. Turgot and M. Neckar.
But there are much more important branches of legislation, in which it has not been customary to assign any reasons: the civil code, the penal code, the code of procedure. If it has not been done, it is not that they have not dared to do it, but because they knew not how. Lawyers have among themselves a peculiar language, technical reasons, conventional fictions, a logic current at the bar: but they have an indistinct perception that the public will not receive it with the same complacency as themselves; that they will not be satisfied with the same jargon.
If the chancellors of kings had been such men as Turgot and Neckar, they, like them, would have felt more pride in giving their reasons than in making their edicts. In making laws, it is only necessary to occupy a certain position: in order to make a reasonable law, and to give reasons for it, it is requisite that the party be worthy of that position.
But an isolated reason is a mere trifle: the reasons for the laws, if they are good, are so connected, that unless they have been prepared for the whole body, they cannot with certainty be given for any part. Hence, in order to present in the most advantageous manner the reason for a single law, it is necessary that the plan of a system of reasons for all the laws should have been formed. It is necessary previously to have laid the foundation of a reasonable system of morality, to have analyzed the principle of utility, and to have separated it from the two false principles of sympathy and antipathy.
To give a reason for a law, is to show that it is conformable to the principle of utility.
In accordance with this principle, the repugnance which a certain action inspires is not a sufficient ground for its prohibition. Such a prohibition would only be founded upon the principle of antipathy.
The satisfaction which another action affords to us, is not a sufficient ground for a law authorising its performance. Such a law would be only founded upon the principle of sympathy.
The principal business of the laws, the only business which is evidently and incontestibly necessary, is the preventing of individuals from pursuing their own happiness, by the destruction of a greater portion of the happiness of others. To impose restraints upon the individual for his own welfare, is the business of education; the duty of the old towards the young; of the keeper towards the madman: it is rarely the duty of the legislator towards the people.
It is not a merely speculative idea which is thus recommended: a system of penal laws has been thus sketched out, and accompanied with a commentary of reasons, by which even the least important regulations are justified. I am so convinced of the necessity of this exposition of reasons, that I would not dispense with one of them at any price. To confide in what is called a feeling of justice, a feeling of truth, is a source of error. I have seen, upon a thousand occasions, that the greatest mistakes are concealed in all those feelings which are not brought to the touchstone of examination. If this feeling, this first guide, the avant courier of the mind, be correct, it will always be possible to translate it into the language of reason. Pains and pleasures, as I have repeatedly shown, are the only clear sources of ideas in morals. These ideas may be rendered familiar to all the world. The catechism of reasons is worthless, if it cannot be made the catechism of the people.
I add here, as an example of this theory, the first chapter of the Penal Code. I have not, however, given the whole of it, nor inserted all the forms and references which it ought to have, if it formed a part of the code itself. This species of precision would be superfluous here. This example may also serve as a recapitulation of this essay, by showing how its principles may be put in execution, and in what manner its theories may be carried into practice.
Table of Contents(1) , as shown by Titles of Chapters and Sections.
SPECIMEN OF A PENAL CODE.*
Of Simple Personal Injuries.
Simple†Corporal Injury is either positive or negative. There is positive simple corporal injury, when, without lawful cause,a an individual has caused,b or contributedc to cause, to another, a corporal pain, either light or weighty,d which is not followed by any ulterior corporal evil.e There is simple corporal injury,f when, without lawful cause, an individual, seeing another in danger, abstains from helping him,g and the evil happens in consequence.
1. Fine. At the discretion of the tribunal.
2. Imprisonment. At the option and discretion of the tribunal.
3. Security for good Conduct. This also at option and discretion.
4. In very grave cases, Banishment from the presence of the party injured, for a time or for ever. This also at option and discretion.
5. Costs. At option and discretion.
N.B. Each of these articles requires references to the different sections of the general head of “Punishments;” there, the phrases at option and discretion should be explained.
At option, is a concise method of expressing that it will be lawful for the judge either to employ this punishment or not.
At discretion, signifies that the judge ought to employ a certain portion of this punishment, with this limitation, that he should employ so much or so little, as shall be conformable to the general rules prescribed to him under the general head of “Punishments.”‡
1. Superiority of Age. When the offended person is older than the offender.
2. Sex. When the party injured is a female, and the delinquent a male.
The extra-portion of the punishment ought to consist of a characteristic penance, at the choice of the tribunal, with greater or less publicity, at its discretion.
3. Weakness. When the party injured is the inferior, either as respects natural strength or difference of weapons, so that he had no chance of defending himself with success.
4. Numbers. When, on account of the number of aggressors, resistance was unequal or impossible.
5. Parental Relation. When the party injured stands in the relation of father or mother, grandfather or grandmother, to the delinquent.
The delinquent in such case should always, in addition to the ordinary punishment, undergo a penance, more or less public, upon the stool of repentance, with his hands tied above his head, and an inscription stating his offence.
6. Quasi-paternity. When the delinquent is a minor, and the party injured his guardian, his preceptor, or his master.* He who brings us up is a second parent. This circumstance will still have some force; but it will be less when the delinquent has attained his majority.
If there be no ground of extenuation, an extra portion of characteristic punishment should be awarded, as for a like injury done to a parent.
7. Premeditation. The longer an offence is premeditated, the greater is the aggravation. It is written, “Let not the sun go down upon your wrath.”
8. Nocturnal Irruption. This is the case when the premeditated offence is committed at night, after being concealed on the premises to wait a favourable opportunity, or when the offender has broken in, or has attempted to break into the dwelling of the party injured.
The extra portion of punishment should be characteristical at the option of the tribunal, and attended with more or less publicity at discretion.
9. Ambuscade. As when an offender makes a sudden attack upon his adversary when unprepared; as if, for example, he hide himself behind a wall, a hedge, or in a hollow way, or spreads his snare by night.
10. Violation of Asylum.
11. Violation of Sleep.
12. Clandestinity. As when the delinquent endeavours to hide himself, or to evade, by other means, the pursuit of justice.
13. Disguise. As when the delinquent, either by wearing a mask, or other clothes than his own, seeks to render himself unknown.
As an extra-punishment, he may be exposed to a penance, more or less public, in an iron mask, or in a dress similar to that in which he had disguised himself.†
14. Salary. When the delinquent has been hired to commit the crime.
A characteristic punishment would be a more or less public exhibition of the delinquent, with the wages of his iniquity suspended about his neck.
There are some cases in which this punishment ought not to be inflicted, unless the offence is a very grave one. The first is, when it has not been premeditated, and when the suborner can shew some provocation received: the second is, when the suborner, thus provoked, is the weaker, or of a superior rank to the party injured.
15. Project of Coercion. When the object of the offence is to compel the party injured to do or not to do a certain thing; the offence nevertheless not being a theft or an act of clandestine or violent destruction.
Extra punishment, characteristic punishment, the extortion press, the cap of repentance: these at option of the tribunal.
Fine, even to the whole of his property; confinement, banishment, forced labour, limited or perpetual: these at discretion.
When the delinquent has really received, or sincerely believes himself to have received, a provocation from the party injured, this may be a source of extenuation. That which constitutes the provocation is a wrong: this wrong may be of a legal or moral kind.
The sincere persuasion of even an imaginary wrong, furnishes some degree of extenuation. It is of no consequence whether the erroneous supposition in this case rest upon a point of fact or a point of law. It turns upon a point of fact, when you believe that you have received a certain damage from your adversary, and he has really not done it to you: it turns upon a point of law, when you believe that he has no right to do you a certain damage, and he really has the right to do it.
It is of no consequence to whom the wrong in question immediately refers: whether to the party himself provoked, or to any person particularly dear to him; or to the public in general, for the interests of the public ought to be dear to every one; or to the person himself who gave the provocation, for each individual should be dear to every man: consequently, if you think you see any one plunging into vice, and the vexation with which you resent his evil conduct lead you to strike him, it is a less crime than if you had struck him in the course of a quarrel arising out of your own interests.
The wrong done may be either moral or legal. A legal wrong is one which is punishable by the laws: a moral wrong may be any act, whether punishable by the laws or not, which being hurtful to the party injured, is liable to be punished by the censure of the world: for example, an act of violence, of perfidy, or of ingratitude.
The extenuation furnished by provocation, is greatest in proportion to the following circumstances: 1. The gravity of the wrong. 2. The recentness of its date. 3. The difficulty which the injured party might have in obtaining legal redress.
The gravity of the wrong, upon this occasion, ought not to be estimated simply according to the evil of such an offence to society in general, but with a view to its tendency particularly to excite resentment: consequently, a personal insult, or an act of defamation, constitutes a strongerprovocation than a theft.
The date of a provocation requires some particular remarks. At the same distance of time, a provocation may be more or less lively, according to its magnitude: that which weighs down the heart may be yet recent; whilst another, which is lighter in comparison, may be forgotten. However, as a boundary is requisite, a provocation ought not to be esteemed recent, if more than a month have elapsed between the time of its receipt, and the occurrence of the fact to which it is alleged to have given rise.
A provocation should be dated, not from the time when it occurred, but from the time when it came to the knowledge of the party injured; and even every circumstance adding much to the malignity of the action, and only becoming known after the other parts had been known, should be deemed a renewal of the provocation: thus, if after having learned that a man had beaten your son;—a month afterwards you should learn that your son had lost an arm in consequence of the blows; or that a man with arms had fallen upon your son, who was disarmed, and that he had struck him after he asked for quarter: if you should attack this man in consequence, and beat him, the provocation in this case ought to be deemed recent.
Thus a train of distinct provocations, which are all recent with respect one to another, and of which the last is recent with relation to the fact in question, ought all to be esteemed recent in relation to this fact. This succession is what properly constitutes the unity of the quarrel.
If a man, in defending his person or his property from attack, does more injury to his adversary than was necessary for its defence, the surplus is an injury; but an injury susceptible of excuse, in consequence of the provocation. This is even the most favourable case, since it is not only recent, but immediate.
In judging whether an attack could be repulsed with less evil to the aggressor, it is necessary to place oneself in the place of the attacked, and to recollect, that in the agitation of his mind he could not coolly consider all his means of defence, and choose precisely that which should accomplish his purpose with the least possible evil to his adversary. There is a great difference in this respect between the quiet of the closet and the bustle of action.
Suppose that a man suddenly assail you with a stick, and that there is at your door a stick and a bar of iron: you seize the bar of iron and strike the man a dangerous blow, or kill him. This ought to be deemed justifiable self-defence, unless it could be proved that you had deliberately taken the bar of iron in preference to the stick, with the intention of killing him, or wounding him more than was necessary for your security.
COMMENTARY OF REASONS UPON THIS LAW.
First Question. Why are the slightest injuries of this kind rendered punishable?
Answer. Because there is always a reason for punishing it. There is no sensation, how indifferent soever it may appear, which may not become an intolerable torment from its duration or its repetition. Let any one be allowed to touch your person in any manner whatsoever without being called to account for it: he may abuse this liberty so much as to render your life a burthen to you: you become in effect his slave: you will live in a state of perpetual fear, and the feeling of your inferiority will never quit you.
On the other hand, if the offence is slight, the punishment may be so also; and how small soever the injury may be, the punishment may be diminished in proportion; because the judge may exercise his powers of discretion in this respect on the side of gentleness.
Second Question. Why are negative offences of this class rendered punishable, as well as positive offences?
Answer. Because in the one case, as well as the other, the punishment is well grounded, is efficacious, is necessary.
Third Question. Why is an ulterior punishment added to that which is included in the obligation to render compensation for the evil done?
Answer. Without this additional punishment, it will not, in every case, be certain that the amount of punishment exceeds the profit of the offence. How can it be ascertained that the compensation directed by the judge entirely accomplished its purpose? If it be not complete, the offended party, so to speak, loses; and the offender gains. Besides, there are differences in fortune, with regard to which a proportion is with difficulty established. It is much for one to receive a certain sum: it is very little for another to pay it. The rich would be led to persuade themselves, that for a certain price they might satisfy their resentment towards those of an inferior rank.
Fourth Question. Why is a fine found among the articles of punishment?
Answer. Because money levied by way of fine produces a double advantage: as punishment, by its effect on the delinquent; as a tax, which tends to diminish by its amount the taxes imposed upon the honest citizens.
Fifth Question. Why employ imprisonment?
Answer. To provide for the case in which the delinquent shall not have wherewith to pay a fine. Also to provide for the case of a delinquent secretly supported by a party: a punishment purely pecuniary would not at all affect him.
Sixth Question. Why require security?
Answer. In order to prevent or stifle all design which the offender may have of avenging himself upon his adversary for having brought him to justice, and delivered him up to punishment.
Seventh Question. Why employ banishment from the presence of the injured party?
Answer. Because there are some cases in which this punishment would be necessary, still farther to humble the offender; and there are other cases in which the offended party ought to be spared further suffering. Offences of this class are very various. There is no degree of torment so frightful, which may not belong to them. It may therefore happen that the sight of the offender may prove a source of suffering to the offended person for a long period, and even for ever. If one of the two must avoid the other, it is more fitting the inconveniences of the removal should fall upon the guilty, rather than upon his innocent antagonist whom he has already injured.
Eighth Question. Why is age a circumstance of aggravation?
Answer. In order that the text of the law itself may be a lesson of morality; insomuch that young persons, seeing that the law itself shows a particular regard to their superiors in age, may contract a disposition always to treat them with particular respect. It is by age that men acquire experience; and by experience, wisdom. The respect of the youngest for the eldest will therefore prove reciprocally profitable.
Ninth Question. Why is a particular protection extended to females?
Answer. A moral object is again in view: it is proper to inspire them with a most delicate sense of honour; and this object is attained by increasing the guilt of every injury done towards them. Besides, the law ought to inspire men with a disposition of peculiar regard for females, because they are not all beautiful, and beauty does not last for ever; whilst the men have a constant superiority over the women, on account of their superior strength. There may also, perhaps, be a superiority of mental strength, either derived from nature or acquired by exercise.
Tenth Question. Why should an injury of this class done to a parent be punished with greater severity?
Answer. For a moral end. An habitual disposition in children and minors to respect their parents, is useful even to themselves; that they may the more readily submit themselves to the guidance of those who know best what is most suitable for them, and who desire their welfare: it is useful to the parents, to whom it serves as a recompense for their expenses, their fears, and the cares of education: it is also useful to the state; because it encourages men to marry, and from families, which constitute the wealth and strength of a state.
Some of these reasons, independently of the consideration of age, apply to guardians, teachers, and masters.
Eleventh Question. Why is premeditation a source of aggravation?
Answer. The greater the pertinacity a man displays in his resentments, the more danger is to be apprehended from him: the longer his desire of vengeance continues, the more probable is it that it will be gratified. If a man who is irritated against you, throw about fire and flame; if his irritation continue for one day only, you will be secure if you are protected for a day: but if he persevere in his intentions of avenging himself during ten days, the danger to which you are exposed from him is ten times as great as in the former case. Those who hear of your quarrel with him understand this, and experience a secret uneasiness, when they recollect that they have so dangerous a character among them. They may not understand the precise reason of what they feel; but this is the cause of the difference in the public feeling towards persons who entertain projects of revenge for a longer or a shorter time.
2. Besides, the longer a man is governed by hostile feelings upon a given occasion, the stronger proof he gives of perverse anti-social dispositions. The punishment must be more severe which is to operate upon a hardened character: that which would be sufficient to soften and correct a naturally benevolent mind, would have no effect upon an implacable and barbarous heart. Such characters must be restrained by greater terrors.
Twelfth Question. Why are the different circumstances of attack by night, lying in ambush, and violation of domicile, when accompanied by premeditation, considered as aggravations?
Answer. These different circumstances all tend to increase the danger and terror of the individual attacked; but especially when the domicile is violated; when a man sees himself forced in his last entrenchment, in his interior asylum, which holds all that is most dear to him, and in which he retires to sleep with confidence. If your adversary await you out of doors, you can take precautions against him: you are safe while you remain at home; but if doors and walls do not stop him, you have security nowhere. Such is the reflection which arises in every mind, and produces general alarm.
But if a quarrel begin at night, nocturnity is not a circumstance of aggravation. Even nocturnal irruption into the house would neither be so dangerous nor so alarming, when the individual, warned by threats, was able to take measures for escape or defence.
Thirteenth Question. Why is clandestinity made a source of aggravation?
Answer. Because it augments the mischief of the offence: it adds terror to suffering, and may render a man the most miserable of beings, by making him dread a succession of similar injuries, to which he could see no end, as he could possess no defence against an invisible enemy. In ordinary cases, where we know the author of an offence, we may have the protection of the laws: we may be sure, that if the evil is not repaired, at least that it shall not be augmented, it will not remain unpunished. But if the delinquent can hide himself behind a curtain, so as neither to be known nor suspected, he has all the profit of the crime: he laughs at the laws, and makes a jest of the terrors they ought to inspire. It is necessary, therefore, to take from him the desire to have recourse to inventions of this kind, by presenting to him the frightful prospect of an extraordinary degree of punishment, in case his subtleties should be detected. His artifices will appear less seductive, when accompanied with such fears.
Fourteenth Question. Why is disguise distinguished, as respects its punishment, from other means of clandestinity?
Answer. Disguise may increase terror to an extreme degree: a deformed mask, a long crape, a white veil which dresses up a phantom, may have the strongest effect upon the imagination; particularly upon weak and superstitious persons or invalids; upon women and children. This circumstance also furnishes a favourable opportunity for the use of a characteristic and striking punishment.
Fifteenth Question. Why is the circumstance of wages an aggravation?
Answer. First, Because it increases the alarm and danger: when a man beats another in his own quarrel, this violence inspires fears only in those who quarrel with him; but when a man, for the sake of money, engages in the quarrel of another, all who may chance to have a dispute with any one may dread the bravo by profession. Many persons who now believe themselves secure, because those with whom they have quarrelled are weak and timid, will live in a state of continual alarm, when they learn that there are men who sell their strength and courage to those who will buy them; and that their enemies may be able to do, by means of these strangers, what they could not do of themselves. The danger will appear the greater, in proportion as their enemies are rich, and are able to offer great rewards for such services; a circumstance which would tend to redouble the inevitable inconveniences of the unequal distribution of wealth, and which would add to the facility with which the rich might humble and oppress the poor.
Secondly: One such action indicates the vilest and most depraved character: the motive of pecuniary interest has clearly over-powered all the social motives, and it is only the dread of an extraordinary degree of punishment which can restrain so atrocious a fool.
Sixteenth Question. Why is provocation a source of extenuation?
Answer. This circumstance diminishes the mischief of the crime, as respects the evil of the second order. When a man, provoked to a certain degree, does mischief, he may be dangerous; but it is only when thus provoked. As long as we conduct ourselves towards him, as every body ought to behave to such persons, we have nothing to fear from him: we must have secretly formed the design of offending him, if we are alarmed at the vengeance which such provocation would call down.
Even an imaginary provocation, provided that the error has been real, is a source of extenuation, for the same reasons as a real provocation: the extent of the extenuation, however, is less in this case; but only from the difficulty of ascertaining the point of fact, namely, the sincerity of him who has believed himself to be provoked, without having been so.
Seventeenth Question. Why is excess in self-defence a source of extenuation?
Answer. This circumstance operates in the same manner as the preceding but with more force. The man who in his own defence does greater mischief than his own defence required, need only be dreaded by those who attack him.
[* ]Edited from the French of Dumont, and the original MSS. and printed works of Bentham.
[* ]There are, however, honourable exceptions.
[† ]Leges decet essc jubentes non disputantes.—Bac. de augm. scient.
[(1) ]—[Contents.]—Constructed is this Table, in part from actual observation of the contents of the several Chapters and Sections; partly from the anticipation of them. It cannot be considered as completed, till expression has been given to the whole of the Code in the very words of it, or, as the phrase is—in terminis.
[(2.) ]—[Axioms.]—Correspondent are these to the several acts of maleficence, to which, in consideration of such their quality, it is thought fit to assign the character of acts of delinquency and the denomination of offences, with correspondent treatment, for the purpose of remedy, as per Chap. XVI. These axioms are enunciative of the sufferance, or say pain respectively produced by those same offences; and of the preponderancy of this pain, over any pleasure, producible by those same acts to the agent.
[(3) ]—[Exemptions.]—So many distinguishable sorts of burthens as are imposed—whatsoever be the purpose—whether satisfaction or punishment—so many are the correspondent exemptions possible.
[(4) ]—[Part II.]—In this Part is contained the remainder of the Work. It is composed of what relates to the several offences, in so many chapters: in each chapter, so much being given of the general matter as is applicable to the offence which is the subject matter of that same chapter. Under the heads constituted by the denominations of the several genera of supposed maleficent acts, which, on account of their being so, are spoken of as acts of delinquency, and constituted offences,—the several arrangements, and enactments thereto belonging, are grounded, all of them, on considerations derived from the contemplation of the more general propositions, contained in the several chapters of Part I.; reference to which will all along be given; as also, per contra, in Part I., will reference be made to the several occasions, on which, in Part II., application is made of them respectively.
[(5) ]—[Offences severally.]—In the work will be seen a definition of each genus of offence, as designated by the name by which it is designated here; and, where the genus is divided into species, a definition of each species.
[(6.) ]—[Private.]—In the method here pursued, commencement is made with those offences the conception of which is more simple and clear; and from these it proceeds on with those of which the conception is more and more complex and obscure.
[(7.) ]—[Wrongful.]—Exceptions excepted, in the case of every one of the several sorts of acts ranked in this Table under the denomination of Offences—to the name of the act this word wrongful (it will be observed) stands prefixed. The case is—that, on the present occasion, an addition to this effect to the denomination, and thereby a correspondent limitation applied to the idea, could not (it will be seen) be refused. The reason is—that, of all these several instances, no one is there in which, to the act in question, as designated by its name in the Table, it may not happen to be made lawful: made lawful—that is to say, on the consideration that, in the instance in question, whatever be the evil produced by the maleficent act, it is balanced or outweighed by some equivalent, or more than equivalent, good: made lawful—namely, by the establishment of some power or right—private, semi-public or public, as the case may be.
[(8) ]—[Simple.]—In the cases, in which, from the magnitude of the extent over which the suffering spreads, the offence receives the quality and denomination of semi-public,—it receives thereby a complexion quite different from the more ordinary and natural one: and, of the appropriate remedy, the nature becomes correspondingly different. In the case of an offence levelled at the person of an assignable individual, the motive is most commonly antipathy, or say ill-will: in the case in which the persons affected are so numerous that the offence takes a semi-public character, seldom has ill-will anything to do with it; the motive is a self-regarding one:—namely, the love of wealth, or say pecuniary desire. As to the means, by the conjunction of which with the motive, the temptation is produced,—where antipathy is the motive, persons of all classes stand alike exposed to it: in the case where pecuniary desire is the motive, it is by the matter of wealth in considerable quantities that the means—the instrument by which the evil effect is produced—is most commonly afforded. Of the thus widespreading annoyance, the most commonly exemplified efficient cause is—either some manufacturing course of operations carried on in a certain edifice or spot of ground, or some particular quality in the situation of the edifice or spot of ground itself.
[(9) ]—[Morbification, &c.]—These might be considered as constituting nothing more than so many aggravations of the one offence first mentioned,—namely, simple corporal vexation: in which case they would fall under the head of that offence, constituting so many aggravations of it, instead of constituting, as here, so many genera of offences, and as such, occupying so many places in the list of those same genera.
[(10) ]—[Inventorship.]—In the case of offences affecting property in general, the subject matters of the acts prohibited are individual things: in the case of offences affecting reputation of, and exclusive title to, inventorship, they are species of things.
[(11) ]—[Conditions in life.]—These are—1. Domestic—2. Profit-seeking—3. Power-conferring—4. Rank or Dignity-conferring.
[(12) ]—[Desertion.]—Correspondent wrong will commonly in this case have been done to child, ward, servant, wife,—by interception of the services they would otherwise have respectively received from their respective correlatives.
[(13) ]—[Person-stealing.]—Species are—1. Child (from father) stealing—2. Ward-stealing—3. Wife-stealing—4. Stealing for enslavement.—See Chap. I. Section 15.
[(14) ]—[Calamity.]—Where it is to persons in small numbers, and those assignable, or to their property, or to both, that the mischief thus applies, it is styled a casualty; where to persons in large numbers, assignable or unassignable, it is styled a calamity.—Calamities, or their efficient causes, are—1. Collapsion—2. Inundation—3. Draught—4. Storm—5. Shipwreck—6. Explosion—7. Earthquake—8. Combustion—9. Unwholesome air—10. Pestilence—11. Contagion—12, Famine—13. Destruction by insects or wild beasts.—See, in Chap. VII, Section 11, Rioting. See also Constitutional Code, Book II. Ch. xi. Ministers severally, Section 5, Preventive Service Minister, and Section 10, Health Minister.
[* ]Edited from the French of Dumont, and the original MSS. and printed works of Bentham.
[† ]See Introduction to Morals and Legislation, chap. xviii. [Division of Offences] Simple Corporal Injuries, in order to distinguish them from Irreparable Corporal Injuries, and from Mental Injuries, &c.
[a ]Without lawful cause. Refer to the general head, “Grounds of Justification.”
[b ]Caused. It is of no consequence, neither in what manner, nor by what means, the mischief has been done: whether the person have been beaten or wounded; whether air, water, light, or fire, have been employed; whether some hideous and disagreeable object have been presented to the sight, to the touch, or to the tase; whether, by force or otherwise, a mischievous drug have been administered; whether a dog, or some other animal, have been employed to gratify the offender’s malice, or an innocent person; whether it have been done by the sufferer himself, as by inducing him to walk into a snare or into a ditch; whether the necessary means of relief have been removed from his reach, the bread from the hungry man, the medicine from the sick: these means, and all others which have mischief for their object, are included in the definition of a simple personal injury.
[c ]Contributed. Refer to the general title of “Co-delinquents.”
[d ]Light or weighty. Every thing which takes place against the will of the party injured, even the slightest touch: hence the mischief of this offence may vary, from the slightest uneasiness to the most painful tortures.
[e ]Ulterior. If any ulterior mischief happen, the offence no longer belongs to this head; it becomes an irreparable corporal injury, or an imprisonment, &c.
[f ]Negative. Refer to the general head of “Negative offences.”
[g ]Abstains from helping him. Every man is bound to assist those who have need of assistance, if he can do it without exposing himself to sensible inconvenience. This obligation is stronger, in proportion as the danger is the greater for the one, and the trouble of preserving him the less for the other. Such would be the case of a man sleeping near the fire, and an individual seeing the clothes of the first catch fire, and doing nothing towards extinguishing them: the crime would be greater if he refrained from acting not simply from idleness, but from malice or some pecuniary interest.
[‡ ]It is impossible to give all these explanations at once: that every difficulty might be removed, it would be necessary to publish the whole Penal Code. The reader is requested to observe, that this example is intended principally to show the use of a commentary of reasons.
[* ]This would only refer to those persons who have the chief care of the minor, being entrusted by the parent or guardian. It should not be extended to persons who are only charged with certain details of his instruction, and who have only an occasional charge of him, as a writing or dancing-master, unless by a clause having this special object. See further, upon this subject, the laws respecting masters and servants, day-labourers, apprentices, and slaves.
[† ]Other aggravations will be found under the different titles, Theft, Destruction, Personal Insults, Lascivious Attacks, Offences against Justice, Offences against the Law of Nations, Offences against Government, Offences against Religion.