Front Page Titles (by Subject) CHAPTER VI.: PROBLEM III. To avoid furnishing Encouragement to Crimes. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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CHAPTER VI.: PROBLEM III. To avoid furnishing Encouragement to Crimes. - 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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To say that government ought not to reward crimes—that it ought not to weaken the moral sanction, or the religious sanction, in those cases in which they are useful, is a maxim which appears too simple to require proof. It is, however, often forgotten: striking examples of this forgetfulness will be given; but the more striking they are, the less will it be necessary to develope them: it will be more desirable to dwell upon those cases in which this maxim is violated in a less evident manner.
Unjust Detention of Property, &c.
If the law suffer a man who unjustly detains the property of another to make a profit by delaying the payment, it becomes an accomplice in the wrong. The cases in which the English law is defective in this respect are innumerable. In many cases, a debtor has only to refuse payment till he die, in order to free himself from the principal of his debt: in many others, he may by his delays free himself from the interest: in all, he may retain the capital, and obtain, so to speak, a forced loan at the ordinary rate of interest.
To put a stop to this source of iniquity, it would be sufficient to establish—1st, That in matters of civil responsibility with regard to lands, the death of one or other of the parties should make no alteration; 2d, That interest should be payable from the commencement of the obligation; 3d, That the obligation should commence, not at the ascertaining the amount of the damage, but at the time of the damage itself; 4th, That the interest arising from this obligation exceed the ordinary rate. These methods are extremely simple: how does it happen that they remain yet to be proposed? Those who thus inquire, know little of the effect of custom, indolence, indifference to the public welfare, and the bigotry of the law, without reckoning on the effect of personal interest and party spirit.
When a man insures his goods against any calamity, if the value for which he insure exceed the value of the effects insured, he has in a certain sense an interest in producing the event insured against—to set fire to his house, if he be insured against fire—to sink his vessel, if he be insured against sea risks. The law which authorizes these contracts may therefore be considered as furnishing a motive to the commission of these crimes. Does it follow that it ought to refuse them its sanction? By no means; but only that it ought to direct and suggest to the assurers the precautions most likely to prevent these abuses, without being so restrictive as to hinder their operations. The taking preliminary informations—requiring certificates of the real value of the goods insured—requiring, in cases of accident, the testimony of certain respectable persons, as to the character and probity of the party who has been insured—submitting the effects insured to examination, in every state of the cause, when the assurer has any doubts, &c. Such are a part of the measures to be taken.
If it be permitted to insure the vessels of enemies, a state may be exposed to two dangers:—1st, The commerce of an inimical nation, which is one of the sources of its power, is facilitated. 2d, The assurer, in order to guarantee himself against a loss, may give secret intelligence to the enemy as to the departure of the armaments and cruisers of his own nation. With respect to the first inconvenience, it is only an evil in case the enemy could not insure his vessels elsewhere, or that he could not employ his capital with the same profit in any other branch of trade. With respect to the second inconvenience, it is absolutely nothing, unless the assurer be able to give to the enemy information that he could not obtain in any other manner for money, and that the facility of giving this information was so great as to lead him to disregard the infamy and the risk of treason. Such is the state of things as to its inconveniences.
On the other hand, its advantages for the nation assuring is certain. In this species of traffic, it has been found that the balance of profit in a given time is on the side of the assurers; that is to say, in taking all the losses and gains together, he receives more in premiums than he pays in reimbursements. It is then a lucrative branch of commerce, and may be considered as a tax levied upon the enemy.
In making a bargain with architects and superintendents, it is common to give them a per-centage upon the amount of the expense. This mode of payment, which appears sufficiently natural, opens a door for peculation—for peculation of the most destructive kind, in which, in order that the peculator may make a small profit, it is necessary that his employer should suffer a large loss.
This danger is at its highest degree in public works, in which no individual has a particular interest in preventing profusion, and each may find his interest in conniving at it.
One of the means of remedying it is to fix a sum in accordance with an estimate made, and to say to the superintendent—Thus far you shall have so much per cent.; above this you shall have nothing. If you reduce the expense below the estimate, you shall have your profit as upon the whole sum.
Abuse of the Confidence of the Sovereign.
If a statesman who has the power of contributing to war or to peace, possess an employment of which the emoluments are larger in time of war than in time of peace, an interest is given to him to make use of his power in order to prolong or create a state of war. If his emoluments increase in proportion to the expense, an interest is given him to conduct such war with the greatest possible prodigality. The inverse reason would be much better.
Offences of every kind.
When a man lays a wager upon the affirmative side regarding a future event, he has an interest proportioned to the value of the wager in the happening of the event. If the event be among the number of those prohibited by the laws, he has an interest in committing an offence. He is even stimulated by a double force, one part of which possesses the nature of reward, the other possesses the nature of punishment: the reward, what he will receive if the event happen; the punishment, what he will have to pay in the contrary case. It is as if he were suborned by the promise of a sum of money on the one hand, and that he had made an engagement under an explicit punishment on the other.*
If, then, all wagers, without distinction, were recognised as valid without restriction, venality of every kind would receive the sanction of the laws, and liberty would be given to all the world to enrol accomplices for every kind of crime. On the other hand, if all wagers without restriction were annulled, the insurances so advantageous to commerce, so helpful against a multitude of calamities, would have no place; for these insurances are only a species of wager.
The desirable medium seems to be this:—In all cases when the wager may become the instrument of mischief without answering any useful object, prohibit it absolutely: in those cases in which, as an insurance, it may become a means of help, admit it; but leave a discretion to the judge to make the necessary exceptions, when he finds that it has been made a cloak for subornation.
Reflective Offences, or Offences against One’s self.
When a lucrative place has been conferred upon a man, the possession of which depends upon his submission to certain rules of conduct, if these rules are such as to be hurtful to himself, without producing any benefit to any other person, the creation of such an office has the effect of a law diametrically opposed to the principle of utility—of a law which tends to augment the sum of pains, and to diminish that of pleasures.
Such institutions are monasteries in catholic countries; such also are the remains of the monastic spirit in the English universities.
But it may be said, since no one engages in such a condition without his own consent, the evil is only imaginary. This answer would be good, if the obligation ceased so soon as the consent ceased: the misfortune is, that the consent is the work of a moment, and the obligation is perpetual. There is another case, indeed, in which a transitory consent is admitted, as the ground of durable condition: it is that of military enlistment. But the utility of the rule, or, to speak more correctly, its necessity, is its justification. The state could not exist without its army; and the army could not exist, if all who compose it were at liberty to leave it whenever they pleased.
[* ]In the Adventures of a Guinea, a wager is made between the wife of a clergyman, and the wife of a minister of state, that the clergyman would not be made a bishop. It may be guessed which of the two wins the bet.