Front Page Titles (by Subject) CHAPTER II.: OF COMPLEX AFFLICTIVE PUNISHMENTS. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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CHAPTER II.: OF COMPLEX AFFLICTIVE PUNISHMENTS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
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OF COMPLEX AFFLICTIVE PUNISHMENTS.
Under the name of complex afflictive punishments, may be included those corporeal punishments, of which the principal effect consists in the distant and durable consequences of the act of punishment. They cannot be included under one title. They include three species, very different the one from the other in their nature and their importance.
The permanent consequences of an afflictive punishment may consist in the alteration, the destruction, or suspension of the properties of a part of the body.
The properties of a part of the body consist of its visible qualities, as of colour and figure, and its uses.
Of these three distinct kinds of punishments, the first affects the exterior of the person, its visible qualities: the second affects the use of the organic faculties, without destroying the organ itself; the third destroys the organ itself.*
Of Deformation, or Punishments which alter the Exterior of the Person.
It was an ingenious idea in the first legislator who invented these external and permanently visible punishments,—punishments which are inflicted without destroying any organ—without mutilation—often without physical pain; in all cases, without any other pain than what is absolutely necessary,—which affect only the appearance of the criminal, and render that appearance less agreeable—which would not be punishments if they were not indications of his crimes.
The visible qualities of an object are its colour and figure; there are therefore two methods of altering them: 1. Discolouration; 2. Disfiguration.
1. Discolouration may be temporary or permanent. When temporary, it may be produced by vegetable or mineral dyes. I am not acquainted with an instance of its use as a punishment. It has always appeared to me, that it might be very usefully employed as a precaution to hinder the escape of certain offenders, whilst they are undergoing other punishments.
Permanent discolouration might be produced by tatooing; the only method at present in use is branding.†
Tatooing is performed by perforating the skin with a bundle of sharp-pointed instruments, and subsequently filling the punctures with coloured powder. Of all methods of discolouration, this is the most striking and the least painful. It was practised by the ancient Picts, and other savage nations, for the purpose of ornament.
Judicial branding is effected by the application of a hot iron, the end of which has the form which it is desired should be left imprinted on the skin. This punishment is appointed for many offences in England, and among other European nations. How far this mark is permanent and distinct, I know not; but every one must have observed that accidental burnings often leave only a slight cicatrix—a scarcely sensible alteration in the colour and texture of the skin.
If it is desired to produce deformity, a part of the body should be chosen which is exposed to view, as the hand or the face; but if the object of the punishment is only to mark a conviction of a first offence, and to render the individual recognisable in case of a relapse, it will be better that the mark should be impressed upon some part of the body less ordinarily in view, whereby he will be spared the torment of its infamy, without taking away his desire to avoid falling again into the hands of justice.
2. Disfigurement may in the same manner be either permanent or transient. It may be performed either on the person, or only on its dress.
When confined to the dress, it is not properly called disfigurement; but, by a natural association of ideas, it has the same effect. To this head may be referred the melancholy robes and frightful dresses made use of by the Inquisition, to give to those who suffer in public a hideous or terrible appearance. Some were clothed in cloaks painted to represent flames; others were covered with figures of demons, and different emblems of future torments.
Shaving the head has been a punishment formerly used. It was part of the penance imposed upon adulterous women by the ancient French laws.
The Chinese attach great importance to the length of their nails; cutting them might therefore be used as a penal disfigurement. Shaving the beard might be thus employed among the Russian peasants, or a part of the Jews.
The permanent means of disfigurement are more limited. The only ones which have been in use, and which may yet be employed in certain countries, were applied to certain parts of the head, which may be altered without destroying the functions which depend on those parts. The common law of England directs the nostrils to be slit, or the ears cut off, as the punishment for certain offences. The first of these punishments has fallen into disuse; the second has been rarely employed in the last century. In the works of Pope, and his contemporary writers, may be seen how far their malignity was pleased by allusions to this species of punishment, which had been applied to the author of a libel in their times.
The cutting off and slitting of the nose, the eyelids, and the ears, were once in common use in Russia, without distinction of sex or rank. They were the common accompaniments of the knout and exile: but it ought to be observed that the punishment of death was very rare.
Of Disablement, or Punishments consisting in disabling an Organ.
To disable an organ is either to suspend or destroy its use, without destroying the organ itself.
It is not necessary here to enumerate all the organs, nor all the methods by which they may be rendered useless. We have already seen, that it would not be useful to have recourse to a great variety of afflictive punishments, and that there would be many inconveniences in so doing. If we were to follow the law of retaliation, the catalogue of possible punishments would be the same as that of the possible offences of this kind.
1. The Visual Organ,—the use of which may be suspended by chemical applications, or by mechanical means, as with a mask or bandage. The visual faculty may also be destroyed by chemical or mechanical means.
No jurisprudence in Europe has made use of this punishment. It has heretofore been employed at Constantinople, under the Greek emperors, less as a punishment, it is true, than as a politic method of rendering a prince incapable of reigning. The operation consisted in passing a red hot plate of metal before the eyes.
2. The Organ of Hearing.—This faculty may be destroyed by destroying the tympanum. A temporary deafness may be produced by filling the passage of the ears with wax. As a legal punishment, I know of no instance of its use.
3. The Organ of Speech.—Gagging has more often been employed as a means of precaution against certain delinquents, rather than as a method of punishment. General Lally was sent to his punishment with a gag in his mouth; and this odious precaution perhaps only served to turn public opinion against his judges, when his character was re-established. It has sometimes been employed in military prisons. It has the merit of analogy, when the offence consists in the abuse of the faculty of speech.
Gagging is sometimes performed by fixing a wedge between the jaws, which are rendered immoveable; sometimes by forcing a ball into the mouth, &c.
4. The Hands and Feet.—I shall not speak of the various methods by which these members may be rendered for ever useless. If it were necessary to be done, it would not be difficult to accomplish.
Handcuffs are rings of metal, into which the wrists are thrust, and which are connected together with a bar or chain. This apparatus completely hinders a certain number of movements, and might be employed so as to prevent them all.
Fetters are rings of metal, into which the legs are fixed, united in the same manner by a chain or bar, according to the species of restraint which it is desired to produce. Handcuffs and fetters are often employed conjointly. Universal use is made of these two methods, sometimes as a punishment, properly so called, but more frequently to prevent the escape of a prisoner.
The pillory is a plank fixed horizontally upon a pivot, on which it turns, and in which plank there are openings, into which the head and the hands of the individual are put, that he may be exposed to the multitude. I say to the gaze of the multitude—such is the intention of the law; but it not unfrequently happens, that persons so exposed are exposed to the outrages of the populace, to which they are thus delivered up without defence, and then the punishment changes its nature:—its severity depends upon the caprice of a crowd of butchers. The victim—for such he then becomes—covered with filth, his countenance bruised and bloody, his teeth broken, his eyes puffed up and closed, no longer can be recognised. The police, at least in England, used to see this disorder, nor seek to restrain it, and perhaps would have been unable to restrain it. A simple iron trellis, in the form of a cage, placed around the pillory would, however, suffice for stopping at least all those missiles which might inflict any dangerous blows upon the body.
The carcan, a kind of portable pillory, is a species of punishment which has been used in many countries, and very frequently in China. It consists of a wooden collar, placed horizontally on the shoulders, which the delinquent is obliged to carry without relaxation for a longer or shorter time.
I understand by mutilation, the extirpation of an external part of the human body, endowed with a distinct power of movement, or a specific function, of which the loss is not necessarily followed by the loss of life, as the eyes, the tongue, the hands, &c.
The extirpation of the nose and of the ears is not properly called mutilation, because it is not upon the external part of these organs that the exercise of their functions depends; they protect and assist that exercise, but they do not exercise these functions. There is, therefore, a difference between that mutilation which causes a total loss of the organ, and that which only destroys its envelope. The latter is only a disfigurement, which may be partly repaired by art.
Every body knows how frequently mutilations were formerly employed in the greater number of penal systems. There is no species of them which has not been practised in England, even in times sufficiently modern. The punishment of death might be commuted for that of mutilation under the common law. By a statute passed under Henry VIII. the offence of maliciously drawing blood in the palace, where the king resided, was punished by the loss of the right hand. By a statute of Elizabeth, the exportation of sheep was punished by the amputation of the left hand. Since that time, however, all these punishments have fallen into disuse, and mutilations may now be considered as banished from the penal code of Great Britain.
Examination of Complex Afflictive Punishments.
The effects of simple afflictive punishments are easily estimated, because their consequences are all similar in quality, and immediately produced. The effects of all other punishments are not ascertained without great difficulties, because their consequences are greatly diversified, are liable to great uncertainty, and are often remote. Simple afflictive punishments must always be borne by the parties on whom they are inflicted: all other punishments are deficient in point of certainty: the more remote their consequences, the more these consequences escape the notice of those who are deficient in foresight and reflection.
Around a simple afflictive punishment a circle may be drawn, which shall inclose the whole mischief of the punishment: around all other punishments the mischief extends in circles, the extent of which is not, and cannot be marked out. It is mischief in the abstract, mischief uncertain and universal, which cannot be pointed out with precision. When the effects of punishments are thus uncertain, there is much less ground for choice; for the effects of one punishment may be the same with those of another, the same consequences often resulting from very different punishments. The choice must therefore be directed by probability, and be governed by the presumption that certain punishments will more probably produce certain penal consequences than any other.
Independently of the bodily sufferings resulting from them, punishments which affect the exterior of the person often produce two disadvantageous effects: the one physical—the individual may become an object of disgust; the other moral—he may become an object of contempt: they may produce a loss of beauty or a loss of reputation.
One of these punishments, which has a greater moral than physical effect, is a mark producing only a change of colour, and the impression of a character upon the skin; but this mark is an attestation that the individual has been guilty of some act to which contempt is attached, and the effect of contempt is to diminish good-will, the principle that produces all the free and gratuitous services that men render to one another: but in our present state of continual dependence upon each other, that which diminishes the good-will of others towards us, includes within itself an indefinite multitude of privations.*
When such a mark is inflicted on account of a crime, it is essential that a character should be given to it, which shall clearly announce the intention with which it was imposed, and which cannot be confounded with cicatrices of wounds or accidental marks. A penal mark ought to have a determinate figure; and the most suitable, as well as the most common, is the initial letter of the name of the crime. Among the Romans, slanderers were marked on the forehead with the letter K. In England, for homicide, committed after provocation, offenders were marked in the hand with the letter M (for manslaughter), and thieves with the letter T. In France, the mark for galley-slaves was composed of the three letters GAL.
In Poland, it was the custom to add a symbolical expression: the initial letter of the crime was inclosed in the figure of a gallows. In India, among the Gentoos, a great number of burlesque symbolical figures are employed.
A more lenient method, which may be referred to the same head, is a practice too little used, of giving to offenders a particular dress, which serves as a livery of crime. At Hanau, in Germany, persons condemned to labour on the public works were distinguished by a black sleeve in a white coat. It is an expedient which has for its object the prevention of their escape; as a mark of infamy, it is an addition to the punishment.
On the score of frugality, deforming punishments are not liable to any objection; disablement and mutilation are. If the effect of either is to prevent a man getting his livelihood by his own labour, and he has no sufficient income of his own, he must either be left to perish, or be supplied with the means of subsistence: If he were left to perish, the punishment would not be mere disablement or mutilation, but death: if he be supported by the labour of others, that labour must either be bestowed gratis, as would be the case if he were supported on the charity of relations and friends; or paid for, at public cost: in either case, it is a charge upon the public. This consideration might of itself be considered a conclusive objection against the application of these modes of punishment for offences that are apt to be frequently committed, such as theft or smuggling; the objection applies, however, in its full force, to such of these modes of punishment only as have the effect of depriving the particular individual in question of the means of gaining his livelihood.
In respect of remissibility, they are also eminently defective—a consideration which affords an additional reason for making a very sparing use of them.
In respect also of variability, these punishments are scarcely in a less degree defective. The loss of the eyes, or of the hand, is not, to a man who can neither read or write, the same degree of punishment as it would be to a painter, or an author. Yet, however different in each instance may be the degree of suffering produced by the mass of evil to which the infliction of the punishment in question gives birth, all who are subject to it will find themselves more or less affected: of these inequalities, and therefore of the aggregate amount of the punishment in each particular instance, it is impossible to form any estimate; it depends on the sensibility of the delinquent, and other circumstances, which cannot be foreseen. By a slothful man, the loss of a hand might not be regarded as a very severe punishment: it has not been uncommon for men to mutilate or disable themselves to avoid serving in the army.
In point of variability, the several classes of punishment now before us, when considered all together, are not liable to much objection; there is a gradation from less to more, which runs through the whole of them. The loss of one finger is less painful than the loss of two, or of the whole hand; the loss of the hand is less than the loss of an arm. But when these punishments are considered singly, the gradation disappears. The particular mutilation directed by the law, can neither be increased or diminished, that it may be accommodated to the different circumstances of the crime or of the delinquent. This objection recurs again under the head of Equability. The same nominal punishment will not always be the same real punishment.
In respect of exemplarity, the punishments in question possess this property in a higher degree than simple afflictive punishments. This latter species of punishment not being naturally attended with any distant consequences (their infamy excepted), the whole quantity of pain it is calculated to produce is collected, as it were, into a point, and exposed at once to the eyes of the spectator; while of the other, on the contrary, the consequences are lasting, and are calculated perpetually to awaken in the minds of all, to whose eyes any person that has suffered this species of punishment may happen to present himself, the idea of the law itself, and of the sanction by which its observance is enforced. For this purpose it is necessary, however, as has been already observed, that the penal mark should be such as at first glance to be distinguished from any mark that may have been the result of accident—that misfortune may be protected from the imputation of guilt.
The next property to be desired in a mode of punishment, is subserviency to reformation. In this respect, the punishments under consideration, when temporary, have nothing in themselves that distinguishes them from any other mode of punishment: their subserviency to reformation is as their experienced magnitude. It is the infamy attendant on them that gives them those effects which are apt in this respect to distinguish them to their disadvantage.
Infamy, when at an intense pitch, is apt to have this particular bad effect: it tends pretty strongly to force a man to persist in that depraved course of life by which the infamy was produced. When a man falls into any of those offences that the moral sanction is known to treat with extreme rigour, men are apt to suppose that the moral sanction has no hold upon him. His character, they say, is gone. They withdraw from him their confidence and good-will. He finds himself in a situation in which he has nothing to hope for from men, and for the same reason nothing to fear: he experiences the worst already. If, then, he depend upon his labour for subsistence, and his business is of such sort as requires confidence to be reposed in him, by losing that necessary portion of confidence he loses the means of providing himself with subsistence; his only remaining resources are then mendicity or depredation.
From these observations it follows, that mutilations ought to be reserved as punishments for the most mischievous offences, and as an accompaniment of perpetual imprisonment. An exception to this rule may perhaps be found in the case of rape, for which analogy most strongly recommends a punishment of this kind.
[* ]The first may be included under the general name of Deformation; the second under the name of Dishabilitation: they render the organ impotent and useless. The third has already a proper name—Mutilation.
[† ]Scarification and corrosion might be employed for the same purpose. The first is attended with this inconvenience,—the form which the cicatrix will take cannot be determined beforehand; it may leave none, or an accidental incision may leave a similar one. Corrosion by chemical caustics may not be liable to the same inconvenience; but its effects have not been tried.
[* ]Stedman relates a fact which proves what has been above said of the indefinite consequences of these punishments. Speaking of a Frenchman, named Destrades, who had introduced the culture of indigo into Surinam, and who, during many years, had enjoyed general esteem in that colony, he states, that being at the house of one of his friends in Demerara, he became ill of an abscess, which formed in his shoulder. He would not suffer it to be examined: it became dangerously worse, but his resistance remained still the same: at last, not hoping for a cure, he put an end to his life with a pistol-ball, when the secret was revealed: it was found that his shoulder was marked with a letter V, or Voleur.—Narrative of an Expedition against the Revolted Negroes of Surinam, by Major Stedman, ch. 27.