Front Page Titles (by Subject) CHAPTER V.: PROBLEM II. To make such arrangements, that a given Desire may be satisfied without prejudice, or with the least possible prejudice. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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CHAPTER V.: PROBLEM II. To make such arrangements, that a given Desire may be satisfied without prejudice, or with the least possible prejudice. - 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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The desires of which we are about to speak, as well as others which we have not mentioned, may be satisfied in different manners, and on different conditions, through all the degrees of the scale of morality, from innocence to the highest crime. That these desires may be satisfied without prejudice—such is the first object to be accomplished; but if they cannot be regulated to this point, that their satisfaction may not produce so great an injury to the community as that which results from a violated law—such is the second object. If even this cannot be attained, to arrange every thing in such manner, that the individual, placed by his desires between two offences, may be led to choose the least hurtful—such is the third object. This last object appears humble enough; it is a species of composition with vice: a bargain is made with it, so to speak, and it is sought that the individual may be satisfied at the least possible expense.
Let us examine how it is possible to deal upon all these points with three classes of imperious desires—1. Revenge; 2. Poverty; 3. Love.
Section I. For the satisfaction of vindictive desires without prejudice, there are two means—1. To provide a legal redress for every species of injury; 2. To provide a competent redress for all injuries which affect honour; 3. For the satisfaction of these vindictive desires with the least possible prejudice, there is only one expedient: it is that of showing indulgence to duelling. Let us recapitulate these different heads.
To provide a Legal Redress for every species of injury.
The vices and the virtues of the human race depend much upon the circumstances of society. Hospitality, as has been observed, is most practised where it is most necessary. It is the same with revenge. In the state of nature, the fear of private vengeance is the only restraint of brute force—the only security against the violence of the passions: it corresponds to the fear of punishment in a state of political society. Each step in the administration of justice tends to diminish the force of the vindictive appetites, and to prevent acts of private animosity.
The interest principally in view, in legal redress, is that of the party injured. But the offender himself finds his profit in this arrangement. Leave a man to avenge himself, and his vengeance knows no limits. Grant to him what you, in cool blood, consider as a sufficient satisfaction, and prohibit his seeking for more: he will choose rather to accept what you give him, without running any hazard, than expose himself to the judgment of the law, by endeavouring to take a greater satisfaction by himself. Here, then, is an accessory benefit resulting from care to provide judicial redress. Reprisals are prevented: covered by the buckler of justice, the transgressor, after his offence, finds himself in a state of comparative security under the protection of the law.
It is sufficiently evident, that the more completely legal redress is provided, the more the motive will be diminished which might excite the party injured to procure it for himself. When every pain which a man is liable to suffer from the conduct of another, shall be followed immediately by what shall, in his eyes, be an equivalent pleasure, the irascible appetite will no longer exist. The supposition is evidently an exaggerated one; but, exaggerated as it is, it includes enough of truth to show, that each amelioration which is made in this branch of justice, tends to diminish the force of the vindictive passions.
Hume has observed, in speaking of the barbarous times of English history, that the great difficulty was to engage the injured party to receive satisfaction; and that the laws which related to satisfaction were as much intended to limit his resentment as to procure for him an enjoyment.
In addition to this, institute a legal punishment for an injury: you provide a place for generosity—you create a virtue. To pardon an injury, when the law offers a satisfaction, is to exercise a species of superiority over an adversary, by the obligation which results from it. No one can attribute the pardon to weakness: the motive is above suspicion.
To provide a competent Redress for injuries which attack the Point of Honour in particular.
This class of injuries demands so much the more particular attention, in as much as they have a more marked tendency to excite the vindictive passions. Enough has been already said upon this subject in Part I. Ch. xiv. to render a return to it unnecessary.
In this respect, the French jurisprudence has long been superior to all others.
English jurisprudence is eminently defective upon this point. It knows nothing of honour—it has no means of estimating a corporal insult but by the size of the wound. It does not suppose that there can be any other evil in the loss of reputation, than the loss of the money which may be the consequence of it. It considers money as a remedy for all evils—a palliation for all affronts. He who does not possess it, possesses nothing: he who possesses it, can want for nothing. It knows only pecuniary reparation. But the present generation ought not to be reproached with the rudeness of the ages of barbarism. These laws were established when sentiments of honour had not been developed. Questions of honour are now decided by the tribunal of public opinion, and its decrees are pronounced with a power altogether peculiar.
However, it cannot be doubted but that the silence of the law has had a bad effect. An Englishman cannot enter France without observing how much more the feeling of honour, and the contempt of money, descends, so to speak, among the inferior classes in France, than in England. This difference is especially remarkable in the army. The sentiment of glory—the pride of disinterestedness—are everywhere discovered among the common soldiers; and they would consider a noble action as tarnished by estimating its value in money: an honorary sword is the first of recompenses.
To show indulgence to Duelling
If the individual offended will not be contented with the satisfaction offered by the laws, it is proper to be indulgent to duelling. Poisoning and assassination are hardly heard of, where duelling is established. The light evil which results from it, is like a premium of assurance, whereby a nation guarantees itself against the greater evil of other offences. Duelling is a preservative of politeness and peace: the fear of being obliged to give or receive a challenge, destroys quarrels in their germ. The Greeks and Romans, it will be said, were acquainted with glory, and knew nothing of duelling. So much the worse for them: their sentiment of glory was not opposed either to poisoning or assassination. Among the political dissensions of the Athenians, one half of the citizens plotted the destruction of the other. Compare what passes in England and Ireland with the dissensions of Greece and Rome. Clodius and Milo, according to our customs, would have fought a duel: according to Roman customs, they reciprocally sought to assassinate each other, and he who killed his adversary only forestalled him.
In the island of Malta, duelling had become a species of madness, and, so to speak, of civil war. One of the Grand Masters made such severe laws against it, and executed them so rigorously, that duelling ceased: but it was to give place to a crime which unites cowardice with cruelty. Assassination, before unknown among the knights, became so common, that they soon regretted the loss of duelling, and at last expressly tolerated it, in a certain place, and at certain hours. The result was such as had been expected. So soon as a course of honourable revenge was opened, the clandestine methods were rendered infamous.
Duels are less common in Italy than in France and England: poisoning and assassinations are much more so.
In France, the laws against duelling were severe; but methods were found for eluding them. Upon an agreement to fight, a pretended quarrel was got up as a kind of prelude.
In England, the law confounds duelling and murder: but the juries do not confound them; they pardon it, or, what amounts to the same thing, find it manslaughter (involuntary homicide.) The people are better guided by their good sense, than the jurists have been by their science. Would it not be better to place the remedy among the laws, rather than in their subversion?
Section II. Let us turn to indigence: we have here to consider the interests of the poor themselves and those of the community.
A man deprived of the means of subsistence, is urged, by the most irresistible motives, to commit every crime by which he may provide for his wants. Where this stimulus exists, it is useless to combat it by the fear of punishment, because there is scarcely one punishment which can be greater, and no one, which, by reason of its uncertainty and its distance, can appear so great, as the dying of hunger. The effects of indigence can therefore only be guarded against, by providing necessaries for those who have them not.
The indigent may be distinguished in this respect, into four classes: 1. The industrious poor; those who are willing to work that they may live. 2. Idle mendicants; those who prefer rather to depend upon the precarious charity of passengers for subsistence, than to labour for their subsistence. 3. Suspected persons; those who, having been arrested on account of a crime, and set at liberty because of the insufficiency of proof, have remained with a stain upon their reputation, which hinders their obtaining employment. 4. Criminals who have been confined for a time in prison, and have been set at liberty. These different classes ought not to be treated in the same manner, and in establishments for the poor, particular care ought to be taken to separate the suspected from the innocent classes. “One scabby sheep,” says the proverb, “infects the flock.”
Every thing which the poor can be made to earn by their labour, is not only a profit for the community, but also for themselves. Their time ought to be occupied as their lives ought to be sustained. It is humanity which prescribes the finding occupations for the deaf, the blind, the dumb, the lame, the impotent. The wages of idleness are never so sweet as the reward of toil.
If a man have been apprehended and accused of a crime of indigence, even when he is acquitted, he ought to be required to render an account of his means of subsistence at least for the last six months. If he be honest, this inquiry can do him no harm; if he be not, it is proper to act accordingly.
Females, especially those a little above ordinary labour, have a peculiar disadvantage in finding occupation. Men having more activity, more liberty, and perhaps more dexterity, even take possession of those labours which belong more properly to the other sex, and which are almost indecent in the hands of men. Men are found selling toys for children, keeping shops for fashions, &c.; making shoes, stays, and dresses for women. Men are found filling the function of midwives. I have often doubted whether the injustice of the custom might not be redressed by the law, and whether women ought not to be put in possession of these means of subsistence, to the exclusion of men. It would be an indirect method of obviating prostitution, by providing females with suitable employments.
The practice of employing men as midwives, which has excited such lively reclamations, is not yet* generally adopted, except among the higher classes, where anxiety is greatest, and in those cases when the danger appears extreme. It would therefore be dangerous to establish a legal exclusion of men, at least until female pupils had been educated, capable of replacing them.
With respect to the treatment of the poor, no universal measure can be proposed: it must be determined by local and national circumstances. In Scotland, with the exception of some great towns, the government does not interfere with the care of the poor. In England, the tax raised for their support in 1831, exceeded £8,000,000. Their condition is, however, better in Scotland than in England: the object is better accomplished by the manners of the people, than by the laws. Notwithstanding the inconveniences of the English system, it cannot be given up all at once, otherwise the one half of the poor would perish, before the necessary habits of benevolence and frugality have taken root. In Scotland, the influence of the clergy is highly salutary: having only a moderate salary and no tithes, the clergymen are known and respected by their parishioners. In England, the clergy being rich and having tithes, the clergyman is often quarrelling with his flock, and knows little of them.
In Scotland, in Ireland, in France, the poor are moderate in their wants. At Naples, the climate saves the expense of fuel, of lodging, and almost of clothing. In the East Indies, clothing is hardly necessary, except for decency. In Scotland, domestic economy is good in all respects, except neatness. In Holland, it is also as good as it can be in every respect. In England, on the one hand, wants are greater than anywhere else, and economy is perhaps upon a worse footing than in any country in the world.
The most certain method of providing for the poor is, not to wait for indigence, but to prevent it. The greatest service which can be rendered to the working classes, is the institution of savings banks, in which, by the attractions of security and profit, the poor may be disposed to place their little savings.
Section III. We come now to that class of desires for which no neutral name is found,—no name which does not present some accessory idea of praise or of blame, but especially of blame; the reason of which is easily discovered. Asceticism has sought to brand and criminalize the desires to which nature has confided the perpetuity of the species. Poetry has protested against these usurpations, and has embellished the images of voluptousness and love. Its object is praiseworthy, when good manners and decency are respected. We may observe, however, that these inclinations have sufficient natural strength, and do not require the excitements of exaggerated and seductive representations.
Since this desire is satisfied in marriage, not only without prejudice to society, but in an advantageous manner, the first object of the legislator, in this respect, should be to facilitate marriage; that is to say, to place no obstacle which is not absolutely necessary in its way.
With the same view, he ought to authorize divorces under suitable restrictions. In place of a marriage broken in point of fact, and subsisting only in appearance, divorce naturally leads to a real marriage. Separations permitted in a country where marriages are indissoluble, have the inconvenience either of condemning the individuals to the privation of celibacy, or leading them to form illicit connexions.
But if we would speak upon this delicate subject honestly, and with a freedom more honest than an hypocritical reserve, we shall acknowledge at once, that there is an age at which man attains the developement of his powers, before his mind is ripe for the conduct of business and the government of a family. This is especially true with regard to the superior classes of society. Among the poor, necessary labour diverts the desires from love, and retards their developement. A frugal nourishment and simple kind of life maintains for a longer period a calm among the feelings and the imagination. Besides, the poor are unable to purchase the favours of the other sex, except by the sacrifice of liberty.
Independently of the youth who are not yet marriageable in a moral respect, how many men are there who are unable to undertake the charge of a wife and family! on the one hand, domestic servants, soldiers, sailors, living in a state of dependence, and often having no fixed residence; on the other hand, men of a more elevated rank, who expect a fortune or an establishment. Here is a very numerous class deprived of marriage, and reduced to a forced celibacy.
The first method which presents itself for mitigating this evil, would be the rendering legitimate contracts for a limited time. This method has great inconveniences; still concubinage really exists in all societies in which there is considerable disproportion in fortunes. In prohibiting these arrangements, they are not prevented; they are only rendered criminal and degraded. Those who dare to acknowledge them, proclaim their contempt for manners and laws; those who conceal them are exposed to suffer from the moral sanction, in proportion to their sensibility.
In the ordinary course of thinking, the idea of virtue is associated with this contract when its duration is indefinite, and the idea of vice when it is limited for a time. Legislators have followed this opinion: prohibition against making the contract for a year—permission to make it for life;—the same action, criminal in the first place, will be innocent in the other. What can be said for this difference? The duration of the engagement?—can it change black into white?
But if marriage for a limited time is innocent in itself, it does not follow that it is so honourable for the woman who contracts it: she can never obtain the same respect as a wife for life. The first idea which presents itself with respect to her is, “If this woman were of equal value with others, she would have obtained the same condition as others: this precarious arrangement is a sign of inferiority, either in her condition or in her merit.”
What, then, would be the advantage resulting from this kind of contract? The law which now forbids it would not be continually broken and despised. It would also protect the female, who lend herself to this arrangement, from a humiliation which, after having degraded her in her own eyes, almost always leads her to the lowest degree of debauchery. It would, in fine, prove the birth of the children, and secure to them paternal care. In Germany, marriages known under the name of left-handed marriages, were generally established. The object was to conciliate domestic happiness with family pride. The woman thus acquired some of the privileges of a wife, but neither she nor her children took the name nor the rank of her husband. In the code of Frederick they were prohibited; the king still reserving to himself the right to grant particular dispensations.
Whilst an idea so contrary to received opinions is proposed, it may be observed that it is not proposed as a good, but as an amelioration of an evil which exists. Where manners are sufficiently simple, where fortunes are sufficiently equal not to require this expedient, it would be absurd to introduce it. It is not proposed as a rule, but as a remedy.
Under a similar apology, a more weighty disorder may be spoken of. It is an evil which particularly exists in great towns, which also arises from the inequality of fortunes, and the concurrence of all the causes which increase celibacy. This evil is prostitution.
There are some countries where the laws tolerate it; there are others, as in England, where it is strictly forbidden: but though forbidden, it is as commonly and as publicly carried on as can be imagined, because the government dares not to punish it, and the public would not approve of this employment of authority. Prostitution, prohibited as it is, is not less extended than it there were no law; but it is much more mischievous.
The infamy of prostitution is not solely the work of the laws. There is always a degree of shame attached to this condition, even when the political sanction remains neuter. The condition of courtezans is a condition of dependence and servitude: their resources are always precarious; they are always on the borders of indigence and hunger. Their name connects them with those evils which afflict the imagination. They are justly considered as the causes of those disorders of which they are, at the same time, the victims. There is no need to mention the sentiments with which they are regarded by modest females: the most virtuous pity them; all agree in despising them. No one seeks to defend or to uphold them. It is therefore natural that they should be crushed by the weight of opinion. They have themselves never been able to form a society which could counterbalance this public contempt: when they shall wish to form it, they will be unable. If the interest of a common defence should unite them, rivalry and want would separate them. The person, as well as the name, of a prostitute, is an object of hatred and disdain to all her fellows. It is, perhaps, the only condition openly despised by the persons who publicly profess it. Self-love, by the most striking inconsistency, seeks to blind itself to its own misfortune: it appears to forget what is is, or to make an exception for itself, by severely treating its companions.
Kept mistresses very nearly partake the same infamy with open prostitutes. The reason for it is simple: they are not yet in that class, but they seem always ready to fall into it. However, the longer the same person has lived with the same man, the more she is removed from the degraded condition—the more she approaches to the condition of a modest woman. The greater the duration of the connexion, the more difficult it appears to be broken; the greater the hope it presents of perpetuity.
What is the result of these observations? It is, that the remedy, so far as a remedy can exist, is in the evil itself. The more this condition is naturally the object of contempt, the less necessary is it to add any legal disgrace. It carries with it its natural punishment—punishment which is already too heavy, when every thing which should lead to commiseration in favour of this unfortunate class has been considered—the victims of social inequality, and always so near to despair. How few of these females have embraced this condition, from choice, and knowing the consequences! How few would continue in it, if they could quit it—if they could leave this circle of ignominy and misfortune—if they were not repulsed from every career which they may try to open for themselves! How many have fallen into it from the error of a moment—from the inexperience of youth—from the corruption of their parents—by the crime of the seducer—from inexorable severity—directed against a first fault—almost all from neglect and misery. If opinion be unjust and tyrannical, ought the legislator to exasperate this injustice? ought he to employ this instrument of tyranny?
Besides, what is the effect of these laws? It is to increase the corruption of which these unhappy women are accused;—it is to precipitate them into intemperance and excess in the use of intoxicating liquors, that they may find in them a momentary oblivion of their misery;—it is to render them insensible to the restraint of shame, by directing against their misfortune that opprobrium which ought to be reserved for real crimes;—it is, in fine, to prevent the precautions which might soften the inconveniences of this disorder, if it were tolerated. All these evils, which the laws lavish without care, are a foolish price which the laws pay for an imaginary good, which is not, and can never be obtained.
The Empress-queen of Hungary undertook to extirpate this evil, and laboured with a perseverance praiseworthy in its principles, and deserving of a better cause. What followed? Corruption extended itself in public and private life: the conjugal bed was violated; the seat of justice was corrupted; adultery gained all that was lost by prostitution: the magistrates made a trade of their connivance; fraud, prevarication, oppression, extortion, spread themselves in the country, and the evil which it was sought to destroy, being obliged to hide itself, only became more dangerous.
Among the Greeks, this profession was tolerated, sometimes even encouraged; but it was not allowed to parents to traffic in the honour of their daughters. Among the Romans, in what are called the best times of their republic, the laws were silent upon the subject. The saying of Cato, to the young man whom he met on leaving a place of ill name is a proof of it: Cato was not a man to encourage the violation of the laws.
In the metropolis of the christian world, this vocation is openly exercised.* This was without doubt one of the reasons for the excessive rigour of the protestants.
At Venice, the profession of a courtezan was publicly authorized under the republic.
In the capital of Holland, houses of this nature receive a licence from the magistrate.
Retif de la Bretonne published an ingenious work, entitled Pornographe, in which he proposed to government to found an institution, subject to regulations, for the reception and government of prostitutes.
The toleration of this evil is useful in some respects in great towns: its prohibition is useless; it has even particular inconveniences.
The hospitals established in London for repentant girls are good institutions: but those who regard prostitution with absolute rigour are not consistent with themselves, when they approve of these charitable foundations. If they reform some, they encourage others. The hospital at Chelsea, is it not an encouragement for soldiers? and that at Greenwich, for sailors?
It would be desirable to institute annuities, commencing at a certain age: these annuities should be adapted to this sad condition, in which the period of harvest is necessarily short, but in which there are sometimes considerable profits.
The spirit of economy springs up with little encouragement, and always goes on increasing a sum too small to offer any resource, as actual capital may yield a considerable annuity at a distant period.
Upon points of morality, where there are contested questions, it is well to consult the laws of different nations. This is to the mind a species of travelling. In the course of this exercise, whilst the usages of other nations pass in review before us, we become disengaged from local and national prejudices.
[* ]Written in 1782.
[* ]Written 1782. This is not true at this time, 1820. It remains to be seen if this severity be beneficial to good manners.—Dumont.