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 I.

SIMPLE AFFLICTIVE PUNISHMENTS.*

A punishment is simply afflictive when the object aimed at is to produce immediate temporary suffering, and is so called to distinguish it from other classes of corporeal punishments, in which the suffering produced is designed to be more permanent Simple afflictive punishments are distinguished from one another by three principal circumstances: the part affected, the nature of the instrument, and the manner of its application.

To enumerate all the varieties of punishment which might be produced by the combination of these different circumstances, would be an useless, as well as an endless task. To enumerate the several parts of a man’s body in which he is liable to be made to suffer, would be to give a complete body of anatomy. To enumerate the several instruments by the application of which he might be made to suffer, would be to give a complete body of natural history. To attempt to enumerate the different manners in which those instruments may be applied to such a purpose, would be to attempt to exhaust the inexhaustible variety of motions and situations.

Among the indefinite multitude of punishments of this kind that might be imagined and described, it will answer every purpose if we mention some of those which have been in use in this and other countries.

The most obvious method of inflicting this species of punishment, and which has been most commonly used, consists in exposing the body to blows or stripes. When these are inflicted with a flexible instrument, the operation is called whipping: when a less flexible instrument is employed, the effects are different; but the operation is seldom distinguished by another name.

In Italy, and particularly in Naples, there is a method, not uncommon, of punishing pickpockets, called the Strappado. It consists in raising the offender by his arms, by means of an engine like a crane, to a certain height, and then letting him fall, but suddenly stopping his descent before he reaches the ground. The momentum which his body has acquired in the descent is thus made to bear upon his arms, and the consequence generally is, that they are dislocated at the shoulder: to prevent the permanent evil consequences, a surgeon is then employed to reset them.

There were formerly in England two kinds of punishment of this class, discarded now even from the military code, in which they were longest retained: the one called Picketing, which consisted in suspending the offender in such manner that the weight of his body was supported principally by a spike, on which he was made to stand with one foot: the other, the Wooden Horse, as it was called, was a narrow ledge or board, on which the individual was made to sit astride; and the inconvenience of which was increased by suspending weights to his legs.

Another species of punishment formerly practised in this country, but now rarely used, consisted in subjecting the patient to frequent immersions in water, called ducking. The individual was fastened to a chair or stool, called the ducking-stool, and plunged repeatedly. In this case, the punishment was not of the acute, but of the uneasy kind. The physical uneasiness arises partly from the cold, partly from the temporary stoppage of respiration. It has something of the ridiculous mixed with it, and was most generally applied to scolding women, whose tongues disturbed their neighbours. It is a relic of the simplicity of the olden time. It is still occasionally resorted to, when the people take the administration of the laws into their own hands; and is not uncommonly the fate of the pickpocket who is detected at a fair or other place of promiscuous resort.

The powers of invention have been principally employed in devising instruments for the production of pain, by those tribunals which have sought to extort proofs of his criminality from the individual suspected. They have been prepared for all parts of the body, according as they have wished to stretch, to distort, or to dislocate them. Screws for compressing the thumbs; straight boots for compressing the shins, with wedges driven in by a mallet; the rack for either compressing or extending the limbs; all of which might be regulated so as to produce every possible degree of pain.

Suffocation was produced by drenching, and was practised by tying a wet linen cloth over the mouth and nostrils of the individual, and continually supplying it with water, in such manner, that every time the individual breathed, he was obliged to swallow a portion of water, till his stomach became visibly distended. In the infamous transactions of the Dutch at Amboyna, this species of torture was practised upon the English who fell into their power.

It would be useless to pursue this afflicting detail any further. How variously soever the causes may be diversified, the effect is still one and the same, viz. organical pain, whether of the acute or uneasy kind. This effect is common to all these modes of punishment. There are other points in which they may differ:—1. One of them may carry the intensity of the pain to a higher or lower pitch than it could be carried by another. 2. One may be purer from consequences which, for the purpose in question, it may or may not be intended to produce.

These consequences may be—1. The continuance of the organical pain itself beyond the time of applying the instrument; 2. The production of any of those other ill consequences which constitute the other kinds of corporeal punishment; 3. The subjecting the party to ignominy.

In the choice of punishment, these circumstances, how little soever they are attended to in practice, are of the highest importance.

It would be altogether useless, not to say mischievous, to introduce into the penal code a great variety of modes of inflicting this species of punishment. Whipping—the mode which has been most commonly in use—would, if proper care were taken to give to it every degree of intensity, be sufficient if it were the only one. Analogy, however, in certain cases, recommends the employment of other modes. The multiplication of the instruments of punishment, when not thus justified, tends only to render the laws odious.

Among other works undertaken by order of the Empress Maria Theresa for the amelioration of the laws, a description was compiled of the various methods of inflicting torture and punishment in the Austrian dominions. It formed a large folio volume, in which not only all the instruments were described, and represented by engravings, but a detailed account was given of the manipulations of the executioners. This book was only exposed for sale for a few days, Prince Kaunitz, the prime minister, having caused it to be suppressed. He was apprehensive, and certainly not without reason, that the sight of such a work would only inspire a horror of the laws. This objection fell with its whole force upon the instruments for the infliction of torture, which has since been abolished in all the Austrian dominions. It is highly probable that the publication of this work contributed to produce this happy event. If so, few books have done more good to the world, if compared with the time they continued in it.

A valuable service would be rendered to society by the individual who, being properly qualified for the task, should examine the effects produced by these different modes of punishment, and should point out the greater or smaller evil consequences resulting from contusions produced by blows with a rope, or lacerations by whips, &c. In Turkey, punishment is inflicted by beating the soles of the feet: whether the consequences are more or less severe, I know not. It is perhaps from some notion of modesty that the Turks have confined the application of punishment to this part of the human body.

If the suffering produced by a punishment of this class is rendered but little more than momentary, it will neither be sufficiently exemplary to affect the spectators, nor sufficiently efficacious to intimidate the offenders. There will be little in the chastisement but the ignominy attached to it; and this would have but little effect upon that class of delinquents upon whom such punishments are generally inflicted; the quantity of suffering ought, therefore, if possible, to be regulated by the laws.

Of all these different modes of punishment, whipping is the most frequently in use; but in whipping, not even the qualities of the instrument* are ascertained by written law: while the quantity of force to be employed in its application is altogether entrusted to the caprice of the executioner. He may make the punishment as trifling or as severe as he pleases. He may derive from this power a source of revenue, so that the offender will be punished, not in proportion to his offence, but to his poverty. If he has been unfortunate, and not able to secure his plunder, or honest, and has voluntarily given it up, and thus has nothing left to make a sop for Cerberus, he suffers the rigour—perhaps more than the rigour—of the law. Good fortune, and perseverance in dishonesty, would have enabled him to buy indulgence.

The following contrivance would, in a measure, obviate this inconvenience:—A machine might be made, which should put in motion certain elastic rods of cane or whalebone, the number and size of which might be determined by the law: the body of the delinquent might be subjected to the strokes of these rods, and the force and rapidity with which they should be applied, might be prescribed by the judge: thus everything which is arbitrary might be removed. A public officer, of more responsible character than the common executioner, might preside over the infliction of the punishment; and when there were many delinquents to be punished, his time might be saved, and the terror of the scene heightened, without increasing the actual suffering, by increasing the number of the machines, and subjecting all the offenders to punishment at the same time.

§ 2.

Examination of Simple Afflictive Punishments.

The examination of a punishment consists in comparing it successively with each of the qualities which have been pointed out as desirable in a lot of punishment, that it may be observed in what degree some are possessed and the others wanted; and whether those which it possesses are more important than those which it wants; that is to say, whether it is well adapted for the attainment of the desired end.

It will be remembered, that the several qualities desirable in a lot of punishment are—variability, equability, commensurability, characteristicalness, exemplarity, frugality, subserviency to reformation, efficiency with respect to disablement, subserviency to compensation, popularity, and remissibility.

That any species of punishment does not possess the whole of these qualities, is not a sufficient reason for its rejection: they are not all of equal importance, and indeed no one species of punishment will perhaps ever be found in which they are all united.

Simple afflictive punishments are capable of great variability: they may be moderated or increased at will. Their effects, however, are far from equable: the same punishment will not produce the same effects when applied to both sexes—when applied to a stout young man, and an infirm old man. These punishments are almost always attended with a portion of ignominy, and this does not always increase with the organic pain, but principally depends upon the condition of the offender. For this reason, there is scarcely a punishment of this description which would be esteemed slight, if inflicted upon a gentleman.

It was inattention to this circumstance that was one cause of the dissatisfaction occasioned by the Stat. 10 Geo. III., called the Dog Act, passed to restrain the stealing of dogs: among the punishments appointed was that of whipping. There is one thing in the nature of this species of property which renders the stealing of it less incompatible with the character of a gentleman than any other kind of theft. It is apt, therefore, to meet with indulgence from the moral sanction, for the same reason that enticing away a servant is not considered as a crime, on account of the rational qualities of the subject of property in these cases. An individual also may be innocent, notwithstanding appearances are against him. A dog is susceptible of volition, and even of strong social affections, and may have followed a new master without having been enticed.

The same inattention has been observed to be remarkably prevalent throughout the whole system of penal jurisprudence in Russia. In the reign which preceded that of the mild and intelligent Catherine II. neither rank nor sex bestowed an exemption from the punishment of whipping. The institutions of Poland were also chargeable with the same roughness; and it was no uncommon thing for the maid of honour of a Polish princess to be disciplined in public by the Maître d’ Hôtel.

Nothing more completely proves the degradation of the Chinese than the whips which are constantly used by the police. The mandarins of the first class, the princes of the blood, are subjected to the bamboo, as well as the peasant.

The principal merit of simple afflictive punishments, is their exemplarity. All that is suffered by the delinquent during their infliction may be exhibited to the public, and the class of spectators which would be attracted by such exhibitions, consists, for the most part, of those upon whom the impression they are calculated to produce would be most salutary.

Such are the most striking points to be observed with respect to these punishments. There is little particular to be remarked under the other heads. They are of little efficiency as to intimidation or reformation, with the exception of one particular species—penitential diet; which, well managed, may possess great moral efficacy. But as this is naturally connected with the subject of imprisonment, the consideration of it is deferred for the present.

[* ]I am sensible how imperfectly the word afflictive is calculated to express the particular kind of punishment I have here employed it to express, in contradistinction to all others; but I could find no other word in the language that would do it better. It may be some reason for employing it thus, that in French it is employed in a sense nearly, if not altogether, as confined:a and the pains it is the nature of the punishments in question to produce, Cicero expresses by a word of the same root:—“Adflictatio,” says that orator in his Tusculan Disputations, when he is defining and distinguishing the several sorts of pain, “est ægritudo cum vexatione corporis.”b

[* ]The Chinese, owing perhaps to the extensive use they make of this mode of punishment, have attempted, by fixing the length and breadth at the extremities, and weight of the bamboo, to render uniform the amount of the suffering produced by this mode of punishment: but one material circumstance that they have omitted to regulate, and certainly the most difficult to regulate, is the degree of force with which the stroke is to be applied; an omission that leaves the uncertainty nearly in the same state as in this country.—See the Penal Code of China, translated by Sir G. T. Staunton, p. 24.

[* ]I am sensible how imperfectly the word afflictive is calculated to express the particular kind of punishment I have here employed it to express, in contradistinction to all others; but I could find no other word in the language that would do it better. It may be some reason for employing it thus, that in French it is employed in a sense nearly, if not altogether, as confined:a and the pains it is the nature of the punishments in question to produce, Cicero expresses by a word of the same root:—“Adflictatio,” says that orator in his Tusculan Disputations, when he is defining and distinguishing the several sorts of pain, “est ægritudo cum vexatione corporis.”b

[a ]Causes Celèbres, chap. iv. p. 229.—Ed. Amsterd. 1764.

[b ]Lib. iv. c. 8.