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 IX.

OF RETALIATION.

If the law of retaliation were admissible in all cases, it would very much abridge the labours of the legislators. It would make short work of the business of laying out a plan of punishment—a word would supply the place of a volume.*

Before we say any thing as to the advantage of the rule, it will be proper to state with precision what is meant by it. The idea given of it in Blackstone’s Commentaries seems to be a correct one;—it is that rule which prescribes, in the way of punishment, the doing to a delinquent the same hurt he has done (one might perhaps add, or attempted to do) to another. If the injury were done to the person, the delinquent should be punished in his person: if to property, in his property: if to the reputation, in his reputation. This is the general scheme; but this, however, in itself, is not quite enough. To make the punishment come incontestibly under the law of retaliation, the identity between the subject of the offence and that of the punishment should be still more specific and determinate. If, for example, the injury were to a man’s house—for instance, by the destruction of his house, then the delinquent should have his house destroyed; if to his reputation, by causing him to lose a certain rank, then the delinquent should be made to lose the same rank; if to the eyes, then the criminal should be made to lose his eyes; if to his lip, then to lose his lip: and, in short, the more specific and particular the resemblance between the subject of the offence and of the punishment, the more strictly and incontestibly it would appear to come under the rule. It is when the person is the subject of the injury, that the resemblance is capable of being rendered the most minute; for it is in this case, that by means of the strict identity of the part affected, “the hurt” is capable of being rendered the most accurately the “same.” An eye for an eye, and a tooth for a tooth, are the familiar instances that are put of the law of retaliation. In this case, too, the identity may be pushed still further, by affecting the same part in the same manner; the sameness of the hurt depending on the identity of the one circumstance as well as of the other. Thus, if the injury consisted in the burning out of an eye, the punishment will be more strictly the same, if it be effected by burning rather than cutting out the eye of the delinquent.

The great merit of the law of retaliation is its simplicity. If it were capable of universal adoption, the whole penal code would be contained in one law:—“Let every offender suffer an evil similar to that which he has inflicted.”

No other imaginable plan can, for its extent, find so easy an entrance into the apprehension, or sit so easy on the memory. The rule is at once so short and so expressive, that he who has once heard it, is not likely to forget it, or ever to think of a crime, but he must think also of its punishment. The stronger the temptation to commit an offence, the more likely is its punishment to be an object of dread. Thus the defence is erected on the side of danger.

One advantage that cannot be denied to this mode of punishment, is its popularity; requiring little expense of thought, it will generally be found to possess the judgment of the multitude in its favour. Should they, in any instance, be disposed to quarrel with it, they will still be ready enough, probably, to own it to be consonant to justice: but that justice, they will say, is rigid justice, or, to vary the jargon, justice in the abstract. All this while, with these phrases on their lips, they would perhaps prefer a milder punishment, as being more consonant to mercy, and, upon the whole, more conducive to the general happiness—as if justice, and especially penal justice, were something distinct from, and adverse to, that happiness. When, however, it happens not to give disgust by its severity, nothing can be more popular than this mode of punishment. This may be seen in the case of murder, with respect to which the attachment to this mode of punishment is warm and general. Blood (as the phrase is) will have blood. Unless a murderer be punished with death, the multitude of speculators can seldom bring themselves to think that the rules of justice are pursued.

The law of retaliation is, however, liable to a variety of objections, one of which, so far as it applies, is conclusive against its adoption. In a great variety of cases, it is physically inapplicable. Without descending far into detail, a few instances may suffice as examples. In the first place, it can never be applied when the offence is merely of a public nature—the characteristic quality of such offences being, that no assignable individual is hurt by them. If a man has been guilty of high treason, or has engaged in criminal correspondence with an enemy, or has, from cowardice, abandoned the defence of a post entrusted to him; how would it be possible to make him suffer an evil similar to that of which he has been the cause?

It is equally inapplicable to offences of the semi-public class—to offences which affect a certain district, or particular class of the community. The mischief of these offences often consists in alarm and danger, which do not affect one individual alone, and therefore do not present any opportunity for the exercise of retaliation.

With respect to self-regarding offences, consisting of acts which offend against morality, the application of this law would be absurd. The individual has chosen to perform the act; to do the same thing to him, would not be to punish him.

In offences against reputation, consisting, for instance, in the propagation of false reports affecting the character, it would be useless as a punishment to direct a similar false report to be propagated affecting the character of the delinquent. The like evil would not result from the circulation of what was acknowledged to be false.

In offences against property, the punishment of retaliation would at all times be defective in point of exemplarity and efficacy, and, in many cases, altogether inapplicable; those who are most apt to injure others in this respect, being, by their poverty, unable to suffer in a similar manner.

For a similar reason, it cannot be constantly applied to offences affecting the civil condition of individuals, to say nothing of the reasons that might render it ineligible, if it were possible to be applied.

These exceptions reduce its possible field of action to a very small extent, the only classes of offences to which it will be found applicable, with any degree of constancy, are those that affect the person; and even here must be assumed, what scarcely ever exists, a perfect identity of circumstances. Even in this very limited class of cases, it would be found to err on the side of excessive severity. Its radical defect is, its inflexibility. The law ought so to apportion the punishment as to meet the several circumstances of aggravation or extenuation that may be found in the offence: retaliation is altogether incompatible with any such apportionment.

The class of people among whom this mode of punishment is most likely to be popular, are those of a vindictive character. Mahomet found it established among the Arabians; and has adopted it in the Koran, with a degree of approbation, that marks the extent of his talent for legislation.—“O you who have a heart, you will find in the law of retaliation, and in the fear that accompanies it, universal security.”—(Vol. I. ch. ii. On the Law.) Either from weakness or ignorance, he encouraged the prevailing vice, which he ought to have checked.

[* ]The law of retaliation was often adopted in the early attempts at legislation. Among the laws of Alfred we find the following article:—“Si quis alterius occulum effoderit, compenset proprio, dentem pro dente, manum pro manu, pedem pro pede, adustionem pro adustione, vulnus pro vulnere, vimen pro vimine.”—Wilk. Ll. Ang. Sax. p. 30. Art. 19.