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 XVIII.

OF SUBSIDIARY SATISFACTION AT THE EXPENSE OF THE PUBLIC TREASURE.

The best source from which satisfaction can be taken, is the property of the delinquent, because it fulfils, as we have seen, with a superior degree of suitableness, the functions of a punishment.

But if the delinquent have no fortune, ought the injured individual to remain without satisfaction? No: for the reasons which we have already set down, satisfaction is almost as necessary as punishment. It ought to be made at the expense of the public treasure, because it is an object of public benefit; the security of all is concerned. The obligation upon the public treasure to provide satisfaction, is founded upon a reason which has the clearness of an axiom. A pecuniary burthen, divided among the whole number of individuals, is nothing for each one in comparison with what it would be for each one or a small number.

Is insurance useful in commercial enterprises? it would be no less so in the great social enterprise, where the associates find themselves united by a train of chances, without knowing each other, without choice, without the power of avoiding it, or guarding themselves by their prudence against the multitude of snares which they may mutually prepare. Calamities which arise from crimes, are not less real evils than those which arise from natural causes. If the sleep of the master be sweeter in a house insured against fire, it would be still more so if he were insured against theft. Abstraction made of its abuses, too great extent could hardly be given to a method so perfectible and so ingenious, which renders real losses so light, and which gives so much security against eventual evils.

However, all insurances are exposed to great abuses from fraud or negligence: fraud on the part of those who, in order to obtain unlawful indemnities, feign or exaggerate their losses; negligence, whether on the part of the assurers, who do not take all necessary precautions, or on the part of the assured, who use less vigilance in guarding against losses which are not to be borne by them.

In a system of satisfactions at the expense of the public treasure, there is reason to fear—

1. A secret connivance between the party pretending to be hurt, and the pretended author of the offence, in order to obtain an undue indemnity.

2. Too great security on the part of individuals, who, having no longer to fear the same consequences of crimes, would not make the same efforts to prevent them.

This second danger is little to be dreaded. No one would neglect his actual possessions, a good certain and present, with the hope of recovering, in case of loss, only an equivalent for the thing lost, and even at the most an equivalent. To this let it be added, that this recovery would not be obtained without care and expense; that there must be a transient privation; that he must bear the burthen of prosecution, and act the always disagreeable part of an accuser; and that, after all, under the best system of procedure, success is still doubtful.

There would remain, therefore, sufficient motives for each individual to watch his property, and not to encourage offences by his negligence.

On the side of fraud, the danger is much greater. It cannot be prevented but by detailed precautions, which will be explained elsewhere. As examples, it will be sufficient to point out two opposite cases; one in which the utility of the remedy exceeds the danger of the abuse, the other in which the danger of the abuse exceeds the utility of the remedy.

When the damage is occasioned by an offence, the punishment of which is weighty, and its author is judicially convicted of the crime, it seems that fraud is very difficult. All that the impostor, who pretends to have been hurt, can do to procure an accomplice, is to give him a part of the profits of the fraud: but unless the clearest principles of proportion between crimes and punishments have been neglected, the punishment which the accomplice will have to undergo, would be more than an equivalent to the total profit of the fraud.

Observe, the offender ought to be convicted before the satisfaction is awarded: without this precaution, the public treasure would be pillaged. Nothing would be more common than the tale of imaginary thefts; of pretended robberies committed in a clandestine manner, or during the darkness of the night, or by unknown persons who have escaped. But when it is necessary to have apprehended the guilty, complicity is not easy. The part which it would be necessary to act, is not one of those which is easily performed, in as much as, besides the certainty of punishment for the individual charged with the pretended offence, there would also be a particular punishment in case the imposture should be detected—a punishment to be shared by the two accomplices; and if it be considered how difficult it is to invent a plausible story of an offence altogether imaginary, it may be believed that such frauds would be very rare, if they ever happened.

The danger most to be apprehended is the exaggeration of a loss resulting from a real offence. But it is necessary that the offence should be susceptible of this species of falsehood, and this is a case sufficiently rare.

It appears, therefore, that it may be laid down as a maxim, that in all cases in which the punishment of an offence is weighty, it need not be feared that an imaginary offender will be willing to charge himself with an offence for a doubtful profit.

But, for the opposite reason, when the mischief results from an offence of which the punishment is slight or none, the danger of abuse would be at its height if the public treasure were responsible for it. The insolvability of a debtor is an example. Where is the beggar who would not be trusted, if the public were security for him? what treasury would be able to pay every creditor whose debtors did not actually pay them? and how many false debts would it not be possible easily to suppose?

This indemnification would not only be abusive: it is unnecessary; since, in the transactions of commerce, the risk of loss enters into the price of merchandise, or the interest of money: if the merchant were sure never to lose, he would sell at a lower price; hence, to seek from the public an indemnification for a loss which had been compensated for beforehand, would be to seek to be paid twice over.*

There are other cases in which satisfaction ought to be made at the public expense.

1. Cases of physical calamity, such as inundations, fires, &c. Aids granted by the state in such cases, are not only founded upon the principle, that the weight of the evil, divided among all, becomes more light; they rest also upon this other, that the state, as protector of the national wealth, is interested in preventing the deterioration of the national domain, and ought to re-establish the means of re-production in those parts which have suffered. Such were what have been called the liberalities of Frederick the Great to those provinces which had been desolated by certain calamities: they were acts of prudence and preservation.

2. Losses and misfortunes, the consequences of hostilities. Those who have been exposed to the invasions of the enemy have a right so much the more particular to a public indemnification, as they may be considered as having sustained the attack which threatened all parties, as being, by their situation, the point the most exposed for the common defence.

3. Evils resulting from unblameable errors of the ministers of justice. An error in justice is already, by itself, a subject of grief; but that this error, once known, should not be repaired by proportional indemnification, is an overturning of the social order. Ought not the public to follow the rules of equity which are imposed on individuals? is it not shameful that it should employ its power in severely exacting what is due to itself, and should refuse to restore what it owes? But this obligation is so evident, that it becomes obscure by endeavouring to prove it.

4. Responsibility of a community for an offence of violence, committed in a public place in its territory. It is not properly the public treasure which ought to be employed in this case; it is the funds of the district or province, which ought to be taxed for the reparation of a negligence of police.

In case of competition, the interests of an individual ought to have place before those of the revenue: what is due to the injured party, on account of satisfaction, ought to be paid in preference to what is due to the public treasure on account of fine. Ordinary jurisprudence does not decide thus, but it is thus that reason decides. The loss suffered by an individual is an evil felt; the profit to the revenue is a good not felt by any person. What is paid by the offender as a fine, is a punishment, and nothing more; what he pays as a satisfaction is also a punishment, and a punishment even more than ordinarily strong, besides this, it is a satisfaction for the party injured; that is to say, a good. When I pay to the revenue, a creature of reason with whom I have no quarrel, I feel only the same regret for the loss as I should do had I dropt the sum into a well: when I pay it to my adversary, when I am thus obliged to confer a benefit on him whom I wished to injure, there is connected with the payment a degree of humiliation, which gives to the punishment thus inflicted the most desirable character.

PART II.—

RATIONALE OF PUNISHMENT.

[* ]A voluntary subscription, a bank of insurance destined to reimburse losing creditors, might be advantageous, without its being proper for the administrators of the public funds to institute such an establishment. The public funds being the product of constraint, ought to be managed with the greatest economy.