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 VIII.

OF ANALOGY BETWEEN CRIMES AND PUNISHMENTS.

Analogy is that relation, connexion, or tie, between two objects, whereby the one being present to the mind, the idea of the other is naturally excited.

Likeness is one source of analogy, contrast another.* That a punishment may be analogous to an offence, it is necessary that the crime should be attended with some striking characteristic circumstances, capable of being transferred upon the punishment.

These characteristic circumstances will be different in different crimes. In some cases they may arise from the instrument whereby the mischief has been done; in others, from the object to which the mischief is done; in others, from the means employed to prevent detection.

The examples which follow are only intended clearly to explain this idea of analogy. I shall point out the analogy between certain crimes and certain punishments, without absolutely recommending the employment of those punishments in all cases. It is not a sufficient reason for the adoption of a punishment, that it is analogous: other considerations ought to be always regarded.

§ 1.

First Source of Analogy.

The same Instrument used in the Crime as in the Punishment.—Incendiarism, inundation, poisoning: in these crimes, the instrument employed is the first circumstance which strikes the mind. In their punishment, the same instrument may be employed.

With respect to incendiarism, we may observe, that this crime should be considered as limited to those cases in which some individual has perished by fire: if no life has been lost, nor any personal injury been suffered, the offence ought to be treated as an ordinary waste; whether an article of property has been destroyed by fire, or any other agent, does not make any difference. The amount of the damage ought to be the measure of the crime. Does a man set fire to a solitary and uninhabited house? this would be an act of destruction, and ought not to be ranked under the definition of incendiarism.†

If the punishment of fire had been reserved for incendiaries, the law would have had in its favour both reason and analogy; but in the legislation of barbarous times, it has been generally employed throughout Europe, for the crimes of magic and heresy: the first, an offence purely imaginary; the second, a simple difference of religious opinion, perfectly innocent, often useful, and with respect to which, the only effect of punishment is to produce insincerity.

Fire may be employed as an instrument of punishment, without occasioning death. This punishment is variable in its nature through all the degrees of severity of which there can be any need. It would be necessary carefully to determine in the text of the law, the part of the body which ought to be exposed to the action of the fire; the intensity of the fire; the time during which it is to be applied, and the paraphernalia to be employed to increase the terror of the punishment. In order to render the description more striking, a print might be annexed, in which the operation should be represented.

Inundation is an offence less common than incendiarism: in some countries it is altogether unexampled; it can only be perpetrated in countries that are intersected by water confined by artificial banks. It is susceptible of every degree of aggravation, from the highest to the lowest. If the offence consist merely in inundation, in effect it amounts only to a simple destruction of property. It is by the destruction of life that this crime is raised to that degree of atrocity which requires severe punishment.

A most evident analogy points out the means of punishment; that is, the drowning of the criminal, with such accompanying circumstances as will add to the terror of the punishment. In a penal code which should not admit the punishment of death, the offender might be drowned and then restored to life. This might be made a part of the punishment.

It may be asked, ought poison to be employed as a means of punishment for a poisoner?

In some respects there is no punishment more suitable. Poisoning is distinguished from other murders, by the secrecy with which it may be perpetrated, and the cool determination which it supposes. Of these two circumstances, the first increases the force of temptation and the evil of the crime; the second proves that the criminal, attentive to his own interest, is capable of serious reflection upon the nature of the punishment. The idea of perishing by the same kind of death which he prepares, is the more frightful for him: in every step of his preparations, his imagination will represent to him his own lot. In this point of view, the analogy would produce its full effect.

There are, however, many difficulties. Poisons are uncertain in their operation: it would be necessary, therefore, to fix a time after which the punishment should be abridged by strangulation. If the effect of the poison should be to produce sleep, the punishment may not be sufficiently exemplary: if it produce convulsions and distortions, it may prove hateful.

If the poison administered by the criminal has not proved fatal, he may be made to take an antidote before the penal poison has produced death. The dose and the time may be fixed by the Judges, according to the report of skilful physicians.

The horror attached to this crime would most probably render this punishment popular. And if there is one country in which this crime is more common than others, it is there that this punishment, which possesses so striking an analogy with the crime, would be most suitable.

§ 2.

Second Source of Analogy.

For a Corporal Injury, a similar Corporal Injury.—“An eye for an eye, a tooth for a tooth.” In crimes producing irreparable bodily injuries, the part of the body injured will afford the characteristic circumstance. The analogy will consist in making the offender suffer an evil similar to that which he has maliciously and wilfully inflicted.

It will, however, be necessary to provide for two cases: that in which the offender does not possess the member of which he has deprived the party he has attacked, and that in which the loss of the member would be more or less prejudicial to him than to the party injured.

If the injury has been of an ignominious nature, without permanent mischief, similar ignominy may be employed in the punishment, when the rank of the party and other circumstances permit.

§ 3.

Third Source of Analogy

Punishment of the Offending Member.—In crimes of deceit, the tongue and the hand are the usual instruments. An exact analogy in the punishment may be drawn from this circumstance.

In punishing the crime of forgery, the hand of the offender may be transfixed by an iron instrument fashioned like a pen; and in this condition he may be exhibited to the public, previously to undergoing the punishment of imprisonment.

In the utterance of calumny, and the dissemination of false reports, the tongue is the instrument employed. The offender might in the same manner be publicly exposed with his tongue pierced.

These punishments may be made more formidable in appearance than in reality, by dividing the instruments in two parts, so that the part which should pierce the offending member need not be thicker than a pin, whilst the other part of the instrument may be much thicker, and appear to penetrate with all its thickness.

Punishments of this kind may appear ridiculous; but the ridicule which attaches to them enhances their merit. This ridicule will be directed against the cheat, whom it will render more despicable, whilst it will increase the respect due to upright dealing.

§ 4.

Fourth Source of Analogy.

Imposition of Disguise Assumed.—Some offences are characterized by the assumption of a disguise to facilitate their commission: a mask, or crape over the face, has commonly been used. This circumstance constitutes an aggravation of the offence: it increases the alarm produced, and diminishes the probability of detection; and hence arises the propriety of additional punishment. Analogy would recommend the imprinting on the offender a representation of the disguise assumed. This impression might be made either evanescent or indelible, according as the imprisonment by which it may be accompanied, is to be either temporary or otherwise. If evanescent, it might be produced by the use of a black wash: if indelible, by tatooing. The utility of this punishment would be most particularly felt in cases of premeditated murder, rape, irreparable personal injury, and theft, when accompanied with violence and alarm.

§ 5.

Other Sources of Analogy.

There are other characteristic circumstances, which do not, like the foregoing, fall into classes; which may, however, according to the nature of the different offences, be employed as a foundation for analogy.

In the fabrication of base coin, the art of the delinquent may furnish an analogous source of punishment. He has made an impression upon the metal he has employed;—a like impression may be made on some conspicuous part of his face. This mark may be either evanescent or indelible, according as the imprisonment by which it is to be accompanied is either temporary or perpetual.

At Amsterdam, vagabonds and idle persons are committed to the House of Correction, called the Rasp House. It is said, that among other species of forced labour in which such characters are employed, there is one reserved for those who are incorrigible by other means: which consists in keeping a leaky vessel, in which the idle prisoner is placed, dry, by means of a pump at which he must work, if he would keep himself from being drowned. Whether this punishment is in use or not, it is an example of an analogous punishment carried to the highest degree of rigour. If such a method of punishment is adopted, it ought to be accompanied with precise regulations for adjusting the punishment to the strength of the individual undergoing it.

The place in which a crime has been committed may furnish a species of analogy. Catherine II. condemned a man who had committed some knavish trick at the Exchange, to sweep it out every day that it was used, during six months.

Note by Dumont.

I am not aware of any objection having been urged against the utility of analogy in punishments: whilst it is spoken of only in general terms, everybody acknowledges its propriety; when we proceed to apply the principle, the imagination being the chief judge of the propriety of its application, the diversity of opinion is infinite. Hence some persons have been struck with extreme repugnance in contemplating the analogous punishments proposed by Mr. Bentham,a whilst others have considered them only as fit subjects for ridicule and caricature.

Success depends upon the choice of the means employed. Those sources of analogy ought therefore to be avoided which are not of a sufficiently grave character to be used as punishments; but it may be observed, that with relation to certain offences, those, for instance, which are accompanied by insolence and insult, that an analogous punishment which excites ridicule, is well calculated to humble the pride of the offender, and gratify the offended party.

Every thing ought also to be avoided which has an appearance of great study and refinement. Punishment ought only to be inflicted of necessity, and with feelings of regret and repugnance. The multitude of instruments possessed by a surgeon, may be contemplated with satisfaction, as intended to promote the cure and lessen the weight of our sufferings. The same satisfaction will not, however, be felt in contemplating a variety of punishments, and they will most likely be considered as degrading to the character of the legislator.

With these precautions, analogy is calculated to produce only good effects. It puts us in the track of discovering the most economical and efficacious punishments. I cannot resist the pleasure of citing an example furnished me by a captain in the English navy: he had not studied the principles of Mr. Bentham, but he knew how to read the human heart.

The leave of absence generally granted to sailors, was for twenty-four hours: if they exceeded this time, the ordinary punishment was the cat-o’-nine-tails. The dread of this punishment was a frequent cause of desertions. Many captains, in order to prevent both these offences, refused all leave of absence to their sailors, so that they were kept on shipboard for years together. The individual to whom I refer, discovered a method of reconciling the granting of leave with the security of the service. He made a simple change in the punishment:—Every man who exceeded his prescribed time of leave, lost his right to a future leave, in proportion to his fault. If he remained on shore more than twenty-four hours, he lost one turn; if more than forty-eight hours, he lost two turns; and so of the rest. The experiment was perfectly successful. The fault became less frequent, and desertions were unknown.

[* ]Thus from the idea of a giant, the mind passes on to every thing that is great. The Liliputians called Gulliver the Man-mountain. Or, from the idea of a giant the mind may pass to that of a dwarf.

[† ]The employment of this means of destruction ought, however, to be considered an aggravation, if there has been any danger of the fire communicating to contiguous objects.

[a ]Traites de Legislation.