Front Page Titles (by Subject) CHAPTER I.: METHODS OF TAKING AWAY THE PHYSICAL POWER OF INJURING. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
Return to Title Page for The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
The Online Library of Liberty
A project of Liberty Fund, Inc.
CHAPTER I.: METHODS OF TAKING AWAY THE PHYSICAL POWER OF INJURING. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
METHODS OF TAKING AWAY THE PHYSICAL POWER OF INJURING.
When the will, the knowledge, and the power, necessary for an act concur, this act is necessarily produced. Inclination, knowledge, power; these, then, are the three points to which the influence of the laws may be applied, in order to determine the conduct of individuals. These three words contain in abstract the sum and the substance of every thing which can be done by direct or indirect legislation.
I begin with power, because the means of influence in this respect are more limited and more simple, and because, in those cases in which the power to injure is taken away, every thing is done—success is secure.
Power may be distinguished into two kinds: 1. Internal power, which depends upon the intrinsic faculties of the individual: 2. External power, which depends upon the persons and things which are without him, and without which he cannot act.*
As to internal power, which depends upon the faculties of the individual, it is scarcely possible to deprive a man of this advantage: the power of doing evil is inseparable from the power of doing good. When the hands are cut off, a man can hardly steal; but also he can hardly work.
Besides, these privative means are so severe, that they can only be employed with regard to criminals already convicted. Imprisonment is the only one which can be justified in certain cases, in order to prevent an apprehended offence.†
There are some cases in which the power of injuring may be taken away, by excluding what Tacitus calls irritamenta malorum—the subjects, the instruments of the offence. Here the policy of the legislator may be compared to that of a governess: the bars of iron for the windows, the guards around the fire, care in removing all sharp and dangerous instruments out of the reach of the children, are steps of the same kind; with the prohibition of the sale and fabrication of dies for coining, of poisonous drugs, of concealed arms, of dice, and other instruments of prohibited games; the prohibition of making and having snares or other means of catching game.
Mahomet, not trusting to reason, has sought to put it out of the power of men to misuse strong liquors. If we regard the climate of hot countries, in which wine produces fury rather than stupidity, it will perhaps be found that its total prohibition is more gentle than its permitted use, which would have produced numerous offences, and consequently numerous punishments.
Taxes upon spirituous liquors, in part, accomplish the same end. In proportion as the price is raised above the reach of the most numerous class, the means of yielding to intemperance are taken from them.
Sumptuary laws, so far as they prohibit the introduction of certain articles which are the objects of the legislator’s jealousy, may be referred to this head. It is this which has rendered the legislation of Sparta so famous: the precious metals were banished; strangers were excluded; voyages were not permitted.
At Geneva, the wearing of diamonds was prohibited, and the number of horses was limited.‡
Under this head may be mentioned many English statutes relative to the sale of spirituous liquors: their open exposure to sale is prohibited; it is necessary to obtain a licence which costs much, &c. The prohibition to open certain places of amusement on the Sunday belongs to this head.
To the same head must be referred measures for the destruction of libels, seditious writings, and obscene figures exhibited in the streets, and for preventing their printing and publication.
The old police of Paris prohibited servants from carrying not only swords, but also canes and sticks. This might have been a simple distinction of rank—it might have been as a means of security.
When one class of the people is oppressed by the sovereign, prudence would direct that they should be forbidden to bear arms. The greater injury becomes a justifying reason for the commission of the lesser.
The Philistines obliged the Jews to resort to them, whenever they wanted to sharpen their hatchets and saws. In China, the manufacture and sale of arms is confined to the Chinese Tartars.
By a statute of George the Third, any individual is forbidden to have more than fifty pounds weight of gunpowder in his house; and the dealers in gunpowder are forbidden to have more than two hundred pounds weight at one time. The reason assigned is the danger of explosions.
In the statutes relating to the public roads and turnpikes, the number of horses to be used in a carriage is limited to eight; except in case of the removal of certain articles, and in what relates to the public service connected with the artillery and ammunition. The reason assigned is the preservation of the roads.
If these measures, and others like them, have, besides, a political object, it is what I do not pretend to say; but it is certain, that such expedients may be employed for taking away the means of revolt, or diminishing the facilities for smuggling.
Among the expedients which may be derived from this source, I know of none more happy nor more simple than that which is employed in England for rendering the stealing of bank-notes difficult, when it is intended to send them by the post: they may be cut into two parts, and each part sent separately. The stealing of one half of the note would be useless, and the difficulty of stealing both parts, the one after the other, is so great, that the offence is almost impossible.
For the exercise of some professions, proofs of capacity are required. There are others which the laws render incompatible with each other. In England, many offices of justice are incompatible with the condition of an attorney: it is feared lest the right hand should secretly work for the benefit of the left.*
Contractors for the supply of provisions, &c. for the navy, are not allowed to sit in Parliament. The contractors may become delinquents, and subject to the judgment of the Parliament: it would not be proper that they should be members of it. But there are stronger reasons for this exclusion, to be drawn from the danger of increasing ministerial influence.
[* ]1. Power ab intra. 2. Power ab extra.
[† ]Muto linguam. De virginibus puerisque, sed non virginibus puerisve sermo est: et præterea alienus sermo non erubescit. Dixi adversus potestatem peccandi, quam ab intra nominavi, nullum dari remedium. En vero exceptionem circumcisio. Dicitur non apud Judæos solos fuisse in usu. Quænam igitur instituti ratio? Anne adversus venerem solitariam? Ita visum est, nescio cui: credo equidem Voltario. Ingeniosum sane fuisset excogitamentum: siquidem hoc modo, ut videtur, proclivitas saltem minuitur si non facultas tollitur. Adversus debilitatem remedium, sterilesque nuptias. Vitium magis perniciosum quam quæ multò sunt odiosiora: siquidem magis debilitat, et homo sibi semper præsens. Quidni huc pertineat Judeæ gentis spectata fæcunditas! sed nec vitium videtur nec remedium rude ævum aspere: faciliusque crediderim hodiernos attribuisse quam antiquos invenisse.
[‡ ]These customs are not cited as models, but only to show under what class of laws they should be ranged.
[* ]In Austria, a flayer is not allowed to sell meat, it being presumed that if the animal had been wholesome, it would not have come to his hands. Sonenfel’s Police of Vienna, 1777. A great number of police regulations may be referred to this head.