Front Page Titles (by Subject) CHAPTER XI.: CAPITAL PUNISHMENT. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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CHAPTER XI.: CAPITAL PUNISHMENT. - 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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Capital punishment may be distinguished into—1st, simple; 2d, afflictive.
I call it simple, when, if any bodily pain be produced, no greater degree of it is produced than what is necessary to produce death.
I call it afflictive, when any degree of pain is produced more than what is necessary for that purpose.
It will not be necessary, upon the present occasion, to attempt to give an exhaustive view of all the possible modes by which death might be produced without occasioning any, or the least possible quantity of collateral suffering. The task would be almost an endless one: and when accomplished, the only use to which it could be applied would be that of affording an opportunity of selecting out of the catalogue the mode that seemed to possess the desired property in the greatest perfection, which may readily be done without any such process.
The mode in use in England is far from being the best that could be devised. In strangulation by suspension, the weight of the body alone is seldom sufficient to produce an immediate and entire obstruction of respiration. The patient, when left to himself, struggles for some time: hence it is not uncommon for the executioner, in order to shorten his sufferings, to add his own weight to that of the criminal. Strangling by the bowstring may to some, perhaps, appear a severer mode of execution; partly from the prejudice against every usage of despotic governments, partly by the greater activity exerted by the executioners in this case than in the other. The fact, however, is, that it is much less painful than the other, for it is certainly much more expeditious. By this means the force is applied directly in the direction which it must take to effect the obstruction required: in the other case, the force is applied only obliquely; because the force of two men pulling in that manner is greater than the weight of one man.
It is not long, however, even in hanging, before a stop is put to sense; as is well enough known from the accounts of many persons who have survived the operation. This probably is the case a good while before the convulsive strugglings are at an end; so that in appearance the patient suffers more than he does in reality.
With respect to beheading, there are reasons for supposing that the stop put to sensation is not immediate: a portion of sensibility may still be kept up in the spinal marrow a considerable time after it is separated from the brain. It is so, at least, according to all appearance, for different lengths of time in different animals and insects, which continue to move after their heads are separated from their bodies.
Afflictive Capital Punishment.
To exhaust this part of the subject, it would be necessary to make a catalogue of every various punishment of this description, of which, in practice, there has been any example, adding to them such others as the imagination could be made to supply; but, the ungrateful task performed, of what use would it be? We shall the more willingly refrain from any such labour, as in the more modern European codes these punishments have been altogether discarded; and in those in which they have not been formally abolished, they have long fallen into desuetude. Let us rejoice in these improvements: there are few opportunities in which the philosopher can offer to the governors of the world more just or more honourable congratulations. The importance of the subject, however, will not admit of its being passed over in perfect silence. The system of jurisprudence in question has been too long established; it has had too many apologists, and has had for its supporters too many great names, to allow of its being altogether omitted in a work expressly treating on the subject of punishment. It may besides be of use to show that reason concurs with humanity in the condemning punishments of this description, not merely as being useless, but as producing effects contrary to the intention of the legislator.
If the particular nature of the several species of punishments of this description be examined, as well those that have for a long time past been abolished, such as crucifixion and exposure to wild beasts, as those that have been in use in various parts of modern Europe, such as burning, empaling, tearing to pieces, and breaking on the wheel, it will be found in all of them that the most afflictive part consists in their duration: but this circumstance is not of a nature to produce the beneficial effect that may have been expected from it.
When any particular species of punishment is denounced, that part of it which takes the strongest hold of the imagination is its intensity: its duration makes a much more feeble impression. A slight apparent addition of organical suffering made to the ordinary mode of inflicting the punishment of death, produces a strong effect upon the mind: the idea of the duration of its pains is almost wholly absorbed by the terrors of the principal part of the punishment.
In the legal description of a punishment, its duration is seldom (distinctly) brought to view; it is not mentioned, because in itself it is naturally uncertain: it depends partly upon the physical strength of the patient, and partly upon various other accidental circumstances. To this remarkable and important feature of this species of punishment there is no means by which the attention can be drawn and fixed upon it: upon those who reflect, it produces no impression; upon those who do not reflect, it is altogether lost.
It is true, that the duration of any particular punishment might be fixed by law; the number of hours or minutes might be determined, which should be employed in performing the several prescribed manipulations. This obviously would be a mode of fixing the attention upon this particular feature of the punishment: but even this mode, perfect as it may appear to be, would be found very inadequate to produce the desired effect. By the help of pictures, the intensity of any particular species of punishment may be more or less faithfully represented; but to represent its duration is impossible. The flames, the rack, and all the engines of torture, together with the convulsive throes of the half-expiring and wretched sufferer, may be depicted, but time cannot. A punishment that is to be made to last for two hours will not appear different from a punishment that is to last only a quarter of an hour. The deficiencies of art may, to a certain degree, be compensated for by the imagination: but even then the reality will be left far behind.
It is true, that upon bystanders the duration of the punishment is calculated to make a strong impression; but even upon them, after a certain time, the prolongation loses its effect, and gives place to a feeling directly opposite to that which it is desirable to produce—sentiments of pity and sympathy for the sufferer will succeed, the heart of the spectator will revolt at the scene he witnesses, and the cry of suffering humanity will be heard. The physical suffering will not be confined to the offender: the spectators will partake of it: the most melancholy accidents, swoonings, and dangerous convulsions, will be the accompaniments of these tragic exhibitions. These sanguinary executions, and the terrific accounts that are spread concerning them, are the real causes of that deep-rooted antipathy that is felt against the laws and those by whom they are administered—an antipathy which tends to multiply offences, by favouring the impunity of the guilty.
The only reason that can be given by any government, that persists in continuing to employ a mode of punishing so highly penal, is, that the habitual condition of the people is so wretched that they are incapable of being restrained by a more lenient kind of punishment.
Will it be said that crimes are more frequent in countries in which punishments such as those in question are unknown? The contrary is the fact. It is under such laws that the most ferocious robbers are found: and this is readily accounted for. The fate with which they are threatened hardens them to the feelings of others as well as their own: they are converted into the most bitter enemies, and every barbarity they inflict is considered as a sort of reprisal.
Upon this subject, as upon so many others, Montaigne was far beyond the age in which he lived. All beyond simple death (he says) appears to me to be cruelty. The legislator ought not to expect that the offender that is not to be deterred by the apprehension of death, and by being beheaded and hanged, will be more effectually deterred by the dread of being exposed to a slow fire, or the rack. And I do not know, indeed, but that he may be rendered desperate.*
By the French Constituent Assembly, afflictive punishments were abolished. In the Code Napoléon, beheading is the mode prescribed for inflicting the punishment of death. And it is only in the case of parricide, and of attempts made upon the life of the sovereign, that to the simple punishment of death the characteristic afflictive punishment of cutting off the hand of the offender is added.
In this country, the only crime for which afflictive punishment is in use, is that of high treason. The judgment in high treason consists of seven different operations of the afflictive kind: 1. Dragging at a horse’s tail along the streets from the prison to the place of execution; 2. Hanging by the neck, yet not so as entirely to destroy life; 3. Plucking out and burning of the entrails while the patient is yet alive; 4. Beheading; 5. Quartering; 6. Exposure of the head and quarters in such places as the king directs. This mode of punishment is not now in use. In favour of nobility, the judgment has been usually changed into beheading; in favour of the lower classes, into hanging.
I wish that upon this part of our subject we could end here; but unfortunately there remains to be mentioned an afflictive mode of punishment, most excruciating, and more hideous than any of which we have hitherto spoken, and which is still in use: it is not in Europe that it is employed, but in European colonies—in our own West India Islands.
The delinquent is suspended from a post by means of a hook inserted under his shoulder, or under his breast bone. In this manner the sufferer is prevented from doing anything to assist himself, and all persons are prohibited, under severe penalties, from relieving him. He remains in this situation, exposed to the scorching heat of the day, where the sun is almost vertical, and the atmosphere almost without a cloud, and to the chilling dews of the night; his lacerated flesh attracts a multitude of insects, which increase his torments, and under the fever produced by these complicated sufferings, joined to hunger and thirst, all raging in the most intense degree, he gradually expires.
When we reflect on this complication of sufferings, their intensity surpasses everything that the imagination can figure to itself, and consider that their duration continues not merely for many hours, but for many days, it will be found to be by far the most severe punishment ever yet devised by the ingenuity of man.
The persons to whom this punishment has been hitherto appropriated are negro slaves, and their crime, what is termed rebellion, because they are the weakest, but which, if they were the strongest, would be called an act of self-defence. The constitutions of these people are, to their misfortune, in certain respects so much harder than ours, that many of them are said to have lingered ten or twelve days under these frightful torments.
It is said that this punishment is nothing more than is necessary for restraining that people, and keeping them in their servile state; for that the general tenor of their lives is such a scene of misery, that simple death would be generally a relief, and a death less excruciating would scarce operate as a restraint.
This may perhaps be true. It is certain that a punishment, to have any effect upon man, must bear a certain ratio to the mean state of his way of living, in respect of sufferings and enjoyments. But one cannot well help observing where this leads. The number of slaves in these colonies is to that of freemen as about six to one; there may be about three hundred thousand blacks and fifty thousand whites. Here there are three hundred thousand persons kept in a way of life that upon the whole appears to them worse than death, and this for the sake of keeping fifty thousand persons in a way of life not remarkably more happy than that which, upon an average, the same number of persons would be in where there was no slavery; on the contrary, it is found that men in general are fond, when they have the opportunity, of changing that scene for this. On the other hand, it is not to be disputed that sugar and coffee, and other delicacies, which are the growth of those islands, add considerably to the enjoyments of the people here in Europe; but taking all these circumstances into consideration, if they are only to be obtained by keeping three hundred thousand men in a state in which they cannot be kept but by the terror of such executions: are there any considerations of luxury or enjoyment that can counterbalance such evils?
At the same time, what admits of very little doubt is, that the defenders of these punishments, in order to justify them, exaggerate the miseries of slavery, and the little value set by the slaves upon life. If they were really reduced to such a state of misery as to render necessary laws so atrocious, even such laws would be insufficient for their restraint; having nothing to lose, they would be regardless of all consequences; they would be engaged in perpetual insurrections and massacres. The state of desperation to which they would be reduced would daily produce the most frightful disorders. But if existence is not to them a matter of indifference, the only pretence that there is in favour of these laws falls to the ground. Let the colonists reflect upon this: if such a code be necessary, the colonies are a disgrace and an outrage on humanity: if not necessary, these laws are a disgrace to the colonists themselves.
[* ]Liv. ii. ch. 27.—Cowardice the mother of cruelty.