The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. I.
• General Preface.
• Introduction to the Study of the Works of Jeremy Bentham;
• Section I.: Bentham’s Style and Method of Thinking.
• Section II.: The Greatest-happiness Principle and Its Application to Morals and Legislation.
• Section III.: The Pursuit of Truth.—fallacies.—principles of Evidence.
• Section IV.: System of Government.
• Section IV.: Law Reform.
• Section VI.: Principles of Punishment.
• Section VII.: Poor Laws, Education, and Other Institutions For National Amelioration.
• Section VIII.: International Law.
• Section IX.: Political Economy.
• Section X.: Logic and Metaphysics. †
• An Introduction to the Principles of Morals and Legislation.
• Preface.
• Chapter I.: Of the Principle of Utility.
• Chapter II.: Of Principles Adverse to That of Utility.
• Chapter III.: Of the Four * Sanctions Or Sources of Pain and Pleasure.
• Chapter IV.: Value of a Lot of Pleasure Or Pain, How to Be Measured.
• Chapter V.: Pleasures and Pains, Their Kinds.
• Chapter VI.: Of Circumstances Influencing Sensibility.
• Chapter VII.: Of Human Actions In General.
• Chapter VIII.: Of Intentionality.
• Chapter IX.: Of Consciousness.
• Chapter X.: Of Motives.
• Chapter XI.: Of Human Dispositions In General.
• Chapter XII.: Of the Consequences of a Mischievous Act.
• Chapter XIII. *: of Circumstances Influencing the Degree of Alarm.
• Chapter XIV.: Reasons For Considering Certain Actions As Crimes. *
• Chapter XV.: § 1. General View of Cases Unmeet For Punishment.
• Chapter XVI.: Of the Proportion Between Punishments and Offences.
• Chapter XVII.: Of the Properties to Be Given to a Lot of Punishment.
• Chapter XVIII. § 1.: Classes of Offences.
• Chapter XIX.: § 1. Limits Between Private Ethics and the Art of Legislation.
• I. Essay On the Promulgation of Laws
• Essay On the Influence of Time and Place In Matters of Legislation.
• Introduction. *
• Chapter I.: Principles to Be Followed In Trans Planting Laws.
• Chapter II.: Regard to Be Paid to Subsisting Institutions.
• Chapter III.: Rules Respecting the Method of Transplanting Laws.
• Chapter IV.: Laws Appear the Worse For Being Transplanted.
• Chapter V.: Influence of Time.
• A Table of the Springs of Action:
• A Fragment On Government;
• Preface to the First Edition, Published In 1776.
• Historical Preface, Intended For the Second Edition.
• Three Letters On the Fragment On Governmen
• Letter the First. of an Examination Into the Merits of a Critique On Blackstone’s Commentaries, Lately Published Under the Title of a Fragment On Government.
• Letter the Second. of an Examination Into the Merits of a Critique On Blackstone’s Commentaries, Lately Published Under the Title of a Fragment On Government.
• Letter the Third. By John Lind, Esq. Afterwards Barrister At Law, to D., Author of Two Letters * On a Fragment On Government.
• Introduction. *
• Chapter I.: Formation of Government.
• Chapter II.: Forms of Government.
• Chapter III.: The British Constitution.
• Chapter IV.: Right of the Supreme Power to Make Laws.
• Chapter V.: Duty of the Supreme Power to Make Laws.
• Principles of the Civil Code.
• Introduction.
• Part I.—: Objects of the Civil Law. *
• Chapter I.: Of Rights and Obligations.
• Chapter II.: Distinct Objects of the Civil Law.
• Chapter III.: Relation Between These Objects.
• Chapter IV.: Of Laws Relative to Subsistence.
• Chapter V.: Of Laws Relative to Abundance.
• Chapter VI.: Propositions of Pathology Upon Which the Advantage of Equality Is Founded.
• Chapter VII.: Of Security.
• Chapter VIII.: Of Property.
• Chapter IX.: Answer to an Objection.
• Chapter X.: Analysis of the Evils Resulting From Attacks Upon Property.
• Chapter XI.: Security and Equality—their Opposition.
• Chapter XII.: Security and Equality—means of Reconciliation.
• Chapter XIII.: Sacrifices of Security to Security.
• Chapter XIV.: Cases Subject to Dispute.
• Chapter XV.: Examples of Attacks Upon Security.
• Chapter XVI.: Of Forced Exchanges.
• Chapter XVII.: Power of the Laws Over Expectation.
• Part II.
• Chapter I.: Of Titles Which Confer a Right to Property. *
• Chapter II.: Another Mode of Acquisition—consent.
• Chapter III.: Another Means of Acquisition—succession.
• Chapter V.: Of Wills.
• Chapter V.: Of Rights Respecting Services—means of Acquiring Them.
• Chapter VI.: Community of Goods—its Inconveniences.
• Chapter VII.: Of Distribution of Loss.
• Part III.: Of the Rights and Obligations Attached to Different Private Conditions.
• Introduction.
• Chapter I.: Of Master and Servant.
• Chapter II.: Of Slavery.
• Chapter III.: Of Guardian and Ward.
• Chapter IV.: Of Parent and Child.
• Chapter V.: Of Marriage.
• Appendix.: of the Levelling System. *
• Principles of Penal Law.
• Part I.: Political Remedies For the Evil of Offences.
• Chapter I.: Subject of This Book.
• Chapter II.: Of Direct Methods of Preventing Offences.
• Chapter III.: Of Chronic Offences.
• Chapter IV.: Of Suppressive Remedies For Chronic Offences.
• Chapter V.: Of Martial Law
• Chapter VI.: Of the Nature of Satisfaction.
• Chapter VII.: Reasons Upon Which the Obligation to Make Satisfaction Is Founded.
• Chapter VIII.: Of the Different Kinds of Satisfaction.
• Chapter IX.: Of the Quantity of Satisfaction to Be Granted.
• Chapter X.: Of the Certainty of Satisfaction.
• Chapter XI.: Of Pecuniary Satisfaction.
• Chapter XII.: Of Restitution In Kind.
• Chapter XIII.: Of Attestative Satisfaction.
• Chapter XIV.: Of Honorary Satisfaction.
• Chapter XV.: Remedies For Offences Against Honour.
• Chapter XVI.: Of Vindictive Satisfaction.
• Chapter XVII.: Of Substitutive Satisfaction, Or At the Expense of a Third Party.
• Chapter XVIII.: Of Subsidiary Satisfaction At the Expense of the Public Treasure.
• Part II.—: Rationale of Punishment.
• Advertisement.
• Book I.: General Principles.
• Chapter I.: Definitions and Distinctions.
• Chapter II.: Classification.
• Chapter III.: Of the Ends of Punishment.
• Chapter IV.: Cases Unmeet For Punishment.
• Chapter V.: Expense of Punishment.
• Chapter VI.: Measure of Punishment.
• Chapter VII.: Of the Properties to Be Given to a Lot of Punishment.
• Chapter VIII.: Of Analogy Between Crimes and Punishments.
• Chapter IX.: Of Retaliation.
• Chapter X.: Of Popularity.
• Book II.: Of Corporal Punishments.
• Chapter I.: Simple Afflictive Punishments. *
• Chapter II.: Of Complex Afflictive Punishments.
• Chapter III.: Of Restrictive Punishments—territorial Confinement.
• Chapter IV.: Imprisonment.
• Chapter V.: Imprisonment—fees.
• Chapter VI.: Imprisonment Examined.
• Chapter VII.: General Scheme of Imprisonment.
• Chapter VIII.: Of Other Species of Territorial Confinement—quasi Imprisonment—relegation—banishment.
• Chapter IX.: Of Simply Restrictive Punishments.
• Chapter X.: Of Active Or Laborious Punishment.
• Chapter XI.: Capital Punishment.
• Chapter XII.: Capital Punishment Examined. *
• Book III.: Of Privative Punishments, Or Forfeitures.
• Chapter I.: Punishment Analyzed.
• Chapter II.: Of the Punishments Belonging to the Moral Sanction.
• Chapter III.: Forfeiture of Reputation.
• Chapter IV.: Of Pecuniary Forfeitures.
• Chapter V.: Forfeiture of Condition.
• Chapter VI.: Forfeiture of the Protection of the Law.
• Book IV.: Of the Proper Seat of Punishment: Or Say, of Mis-seated Punishment.
• Book V.: Of Complex Punishments.
• Chapter I.: Inconveniences of Complex Punishments.
• Chapter II.: Of Transportation.
• Chapter III.: Panopticon Penitentiary.
• Chapter IV.: Felony.
• Chapter V.: Of PrÆmunire.
• Chapter VI.: Outlawry.
• Chapter VII.: Excommunication.
• Book VI.: Miscellaneous Topics.
• Chapter I.: Choice of Punishments—latitude to Be Allowed to the Judges.
• Chapter II.: Of Subsidiary Punishments.
• Chapter III.: Of Surety For Good Conduct.
• Chapter IV.: Defeazance of Punishment.
• Appendix—: On Death-punishment. ∥ Jeremy Bentham to His Fellow-citizens of France.
• Part III.: Of Indirect Means of Preventing Crimes.
• Introduction.
• Chapter I.: Methods of Taking Away the Physical Power of Injuring.
• Chapter II.: Another Indirect Method—hinder the Acquisition of Knowledge Which May Be Rendered Injurious. †
• Chapter III.: Of Indirect Means of Preventing the Will to Commit Offences.
• Chapter IV.: Problem I. to Divert the Course of Dangerous Desires, and Direct the Inclination Towards Those Amusements Which Are Most Conformed to the Public Interest.
• Chapter V.: Problem II. to Make Such Arrangements, That a Given Desire May Be Satisfied Without Prejudice, Or With the Least Possible Prejudice.
• Chapter VI.: Problem III. to Avoid Furnishing Encouragement to Crimes.
• Chapter VII.: Problem IV. to Augment the Responsibility of Individuals, In Proportion As They Are More Exposed to Temptation to Do Wrong.
• Chapter VIII.: Problem V. to Diminish Sensibility With Regard to Temptation.
• Chapter IX.: Problem VI. to Strengthen the Impression of Punishments Upon the Imagination.
• Chapter X.: Problem VII. to Facilitate the Discovery of Offences Committed.
• Chapter XI.: Problem VIII. to Prevent Offences, By Giving to Many Persons an Interest In Preventing Them.
• Chapter XII.: Problem IX. to Facilitate the Recognition and the Finding of Individuals.
• Chapter XIII.: Problem X. to Increase the Difficulty of Escape For Delinquents.
• Chapter XIV.: Problem XI. to Diminish Uncertainty With Regard to Procedure and Punishment.
• Chapter XV.: Problem XII. to Prohibit Accessory Offences, In Order to Prevent Their Principals.
• Chapter XVI.: Of the Cultivation of Benevolence.
• Chapter XVII.: Employment of the Motive of Honour, Or of the Popular Sanction.
• Chapter XVIII.: Of the Employment of the Religious Sanction.
• Chapter XIX.: Uses to Be Drawn From the Power of Instruction.
• Chapter XX.: Use to Be Made of the Power of Education.
• Chapter XXI.: General Precautions Against the Abuse of Authority.
• Chapter XXII.: Measures to Be Taken Against the Ill Effects of an Offence Already Committed—conclusion of the Subject.

CHAPTER III.

OF GUARDIAN AND WARD.

The weakness of infancy requires continual protection. Every thing must be done for the infant, which can do nothing for itself. The perfect development of its physical powers requires many years: the development of its intellectual faculties is more slow. At a certain age, it has already strength and passions, but it has not yet sufficient experience to regulate them. Too sensible of the present, and too little sensible of the future, it requires an authority more immediate than that of the laws; it requires to be governed by rewards and punishments, which do not act at long intervals, but continually, and which may be adapted to all the details of its conduct, during the progress of its education.

The choice of a situation in life, or of a profession for a child, also requires that he should be subject to a particular authority. This choice, founded upon personal circumstances, upon expectations, upon talents, or the inclinations of the young pupils; upon their facility of applying to one thing in preference to another—in a word, upon the probability of success; this choice is too complicated to be made by the public magistrate; each case requires particular consideration, and its decision such an acquaintance with particular details as a public magistrate cannot possess.

This power of protection and government, with respect to individuals considered incapable of protecting and governing themselves, constitutes Guardianship: a kind of domestic magistracy, founded upon the manifest wants of those who are subject to it, and which ought to comprehend all the powers necessary for attaining its end, without going beyond it.

The powers necessary for the education of a ward, are those of choosing his station, and fixing his habitation, together with the means of reprimanding and correcting him, without which authority would be inefficacious. These means may be the more easily reduced upon the side of severity, in proportion as their application is more certain, more immediate, and more easily varied, and because domestic government possesses an inexhaustible fund of rewards; since during the period in which every thing is received, there is no concession which may not be made to take the shape of reward.

With regard to the subsistence of the ward, it can only be derived from three sources; either his own property, or from gifts, or from his labour.

If the ward possess property, it is administered in his name and for his advantage by his guardian; and all that he does in this respect, according to prescribed forms, is ratified by the law.

If the ward have no property, he is supported either at the expense of the guardian, as is most commonly the case where the guardianship is exercised by the father or mother of the child; or at the expense of some charitable establishment; or, it may be, by his own labour, as in the case where his services are engaged in an apprenticeship, in such manner that the period of his non-value is compensated for by the subsequent period.

Guardianship being an office purely burthensome, this service is made to fall upon those who have the greatest inclination and facility for discharging it. The father and mother are eminently in this situation. Natural affection generally more strongly disposes them to it than the law; still, however, the law which imposes it on them is not useless. It is because children have been abandoned by the immediate authors of their being, that this abandonment has been constituted a crime.

If the dying father have appointed a guardian to his children, it is presumed that no person has known better than he, who had the means and inclination to supply his place in this respect. Hence his choice should be confirmed, unless there be strong reasons to the contrary.

If the father have not provided a guardian, this obligation should fall upon a relation, attached by interest to the preservation of the family property, and by affection or honour to the welfare and education of the children. In default of a relation, some friend of the orphans should be chosen, who will voluntarily discharge this office: or some public officer should be appointed for this purpose.

It is proper to pay attention to the circumstances which may render guardianship unnecessary:—Advanced age, a numerous family, infirmities, or reasons of prudence and delicacy, for example, complication of interests, &c.

The particular precautions against the abuse of this power belong to the penal laws against offences:—an abuse of authority against the person of the ward, is referable to the class of personal injuries; illicit gains derived from his fortune, to that of fraudulent acquisitions, &c. The only thing to be considered is the peculiar circumstance of the offence, the violation of confidence. But though this renders the offence more odious, it is not always a reason for augmenting its punishment; on the contrary, we shall see elsewhere that it is often a reason for diminishing it: the position of the delinquent being more particular, the detection of the offence is more easy, reparation is more certain, and the alarm is less. In the case of seduction, the character of guardian is an aggravation of the offence.

As regards general precautions, guardianship has often been subject to division, by giving the administration of the property to the next of kin who is entitled to succeed to it, who, in character of heir, will have the greatest interest in increasing its value; and the care of the person to some other relation, more interested in the preservation of his existence.

Some legislators have taken other precautions, such as forbidding guardians to purchase the property of their wards, or of permitting to these to re-enter upon their property sold within a certain number of years after attaining their majority. Of these two methods, the first does not appear subject to great inconveniences; the second can only affect the interests of the ward, by diminishing the price of his lands, in as much as the value is diminished to the purchaser himself, in proportion as his possession is rendered precarious, and he is afraid to undertake improvements which might prove disadvantageous to him, by furnishing an additional motive for re-entry. Both these methods appear useless, if the sale of the property be only permitted to be made publicly, and under the inspection of the magistrate.

The most simple method is to allow any person to act in legal matters as the friend of the infant against his guardians, either in cases of malversation as to his property, or of negligence or violence. The law would thus put these feeble beings, who are unable to protect themselves, under the protection of every generous individual.

Pupillage being a state of dependence, is an evil which ought to cease as soon as it is possible, without occasioning a greater evil. But at what age ought this emancipation to take place? This question can only be decided by general presumptions. The English law, which has fixed the epoch at the age of twenty-one years, seems much more reasonable than the Roman law, which has been followed in almost every country in Europe, and which fixed it at twenty-five years. At twenty-five years old, the faculties of the man are developed; he is sensible of all his powers; he yields to advice what he refuses to authority, and will be not longer content to be restrained by the bonds of childhood: hence the prolongation of domestic authority often produces a state of animosity and irritation, equally hurtful to both the parties interested. But there are some individuals who never reach maturity, or who reach it much later than others. Provision may be made for these cases by interdiction, which is only a prolongation of guardianship during a prolonged childhood.