The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. I.
• General Preface.
• Introduction to the Study of the Works of Jeremy Bentham;
• Section I.: Bentham’s Style and Method of Thinking.
• Section II.: The Greatest-happiness Principle and Its Application to Morals and Legislation.
• Section III.: The Pursuit of Truth.—fallacies.—principles of Evidence.
• Section IV.: System of Government.
• Section IV.: Law Reform.
• Section VI.: Principles of Punishment.
• Section VII.: Poor Laws, Education, and Other Institutions For National Amelioration.
• Section VIII.: International Law.
• Section IX.: Political Economy.
• Section X.: Logic and Metaphysics. †
• An Introduction to the Principles of Morals and Legislation.
• Preface.
• Chapter I.: Of the Principle of Utility.
• Chapter II.: Of Principles Adverse to That of Utility.
• Chapter III.: Of the Four * Sanctions Or Sources of Pain and Pleasure.
• Chapter IV.: Value of a Lot of Pleasure Or Pain, How to Be Measured.
• Chapter V.: Pleasures and Pains, Their Kinds.
• Chapter VI.: Of Circumstances Influencing Sensibility.
• Chapter VII.: Of Human Actions In General.
• Chapter VIII.: Of Intentionality.
• Chapter IX.: Of Consciousness.
• Chapter X.: Of Motives.
• Chapter XI.: Of Human Dispositions In General.
• Chapter XII.: Of the Consequences of a Mischievous Act.
• Chapter XIII. *: of Circumstances Influencing the Degree of Alarm.
• Chapter XIV.: Reasons For Considering Certain Actions As Crimes. *
• Chapter XV.: § 1. General View of Cases Unmeet For Punishment.
• Chapter XVI.: Of the Proportion Between Punishments and Offences.
• Chapter XVII.: Of the Properties to Be Given to a Lot of Punishment.
• Chapter XVIII. § 1.: Classes of Offences.
• Chapter XIX.: § 1. Limits Between Private Ethics and the Art of Legislation.
• I. Essay On the Promulgation of Laws
• Essay On the Influence of Time and Place In Matters of Legislation.
• Introduction. *
• Chapter I.: Principles to Be Followed In Trans Planting Laws.
• Chapter II.: Regard to Be Paid to Subsisting Institutions.
• Chapter III.: Rules Respecting the Method of Transplanting Laws.
• Chapter IV.: Laws Appear the Worse For Being Transplanted.
• Chapter V.: Influence of Time.
• A Table of the Springs of Action:
• A Fragment On Government;
• Preface to the First Edition, Published In 1776.
• Historical Preface, Intended For the Second Edition.
• Three Letters On the Fragment On Governmen
• Letter the First. of an Examination Into the Merits of a Critique On Blackstone’s Commentaries, Lately Published Under the Title of a Fragment On Government.
• Letter the Second. of an Examination Into the Merits of a Critique On Blackstone’s Commentaries, Lately Published Under the Title of a Fragment On Government.
• Letter the Third. By John Lind, Esq. Afterwards Barrister At Law, to D., Author of Two Letters * On a Fragment On Government.
• Introduction. *
• Chapter I.: Formation of Government.
• Chapter II.: Forms of Government.
• Chapter III.: The British Constitution.
• Chapter IV.: Right of the Supreme Power to Make Laws.
• Chapter V.: Duty of the Supreme Power to Make Laws.
• Principles of the Civil Code.
• Introduction.
• Part I.—: Objects of the Civil Law. *
• Chapter I.: Of Rights and Obligations.
• Chapter II.: Distinct Objects of the Civil Law.
• Chapter III.: Relation Between These Objects.
• Chapter IV.: Of Laws Relative to Subsistence.
• Chapter V.: Of Laws Relative to Abundance.
• Chapter VI.: Propositions of Pathology Upon Which the Advantage of Equality Is Founded.
• Chapter VII.: Of Security.
• Chapter VIII.: Of Property.
• Chapter IX.: Answer to an Objection.
• Chapter X.: Analysis of the Evils Resulting From Attacks Upon Property.
• Chapter XI.: Security and Equality—their Opposition.
• Chapter XII.: Security and Equality—means of Reconciliation.
• Chapter XIII.: Sacrifices of Security to Security.
• Chapter XIV.: Cases Subject to Dispute.
• Chapter XV.: Examples of Attacks Upon Security.
• Chapter XVI.: Of Forced Exchanges.
• Chapter XVII.: Power of the Laws Over Expectation.
• Part II.
• Chapter I.: Of Titles Which Confer a Right to Property. *
• Chapter II.: Another Mode of Acquisition—consent.
• Chapter III.: Another Means of Acquisition—succession.
• Chapter V.: Of Wills.
• Chapter V.: Of Rights Respecting Services—means of Acquiring Them.
• Chapter VI.: Community of Goods—its Inconveniences.
• Chapter VII.: Of Distribution of Loss.
• Part III.: Of the Rights and Obligations Attached to Different Private Conditions.
• Introduction.
• Chapter I.: Of Master and Servant.
• Chapter II.: Of Slavery.
• Chapter III.: Of Guardian and Ward.
• Chapter IV.: Of Parent and Child.
• Chapter V.: Of Marriage.
• Appendix.: of the Levelling System. *
• Principles of Penal Law.
• Part I.: Political Remedies For the Evil of Offences.
• Chapter I.: Subject of This Book.
• Chapter II.: Of Direct Methods of Preventing Offences.
• Chapter III.: Of Chronic Offences.
• Chapter IV.: Of Suppressive Remedies For Chronic Offences.
• Chapter V.: Of Martial Law
• Chapter VI.: Of the Nature of Satisfaction.
• Chapter VII.: Reasons Upon Which the Obligation to Make Satisfaction Is Founded.
• Chapter VIII.: Of the Different Kinds of Satisfaction.
• Chapter IX.: Of the Quantity of Satisfaction to Be Granted.
• Chapter X.: Of the Certainty of Satisfaction.
• Chapter XI.: Of Pecuniary Satisfaction.
• Chapter XII.: Of Restitution In Kind.
• Chapter XIII.: Of Attestative Satisfaction.
• Chapter XIV.: Of Honorary Satisfaction.
• Chapter XV.: Remedies For Offences Against Honour.
• Chapter XVI.: Of Vindictive Satisfaction.
• Chapter XVII.: Of Substitutive Satisfaction, Or At the Expense of a Third Party.
• Chapter XVIII.: Of Subsidiary Satisfaction At the Expense of the Public Treasure.
• Part II.—: Rationale of Punishment.
• Advertisement.
• Book I.: General Principles.
• Chapter I.: Definitions and Distinctions.
• Chapter II.: Classification.
• Chapter III.: Of the Ends of Punishment.
• Chapter IV.: Cases Unmeet For Punishment.
• Chapter V.: Expense of Punishment.
• Chapter VI.: Measure of Punishment.
• Chapter VII.: Of the Properties to Be Given to a Lot of Punishment.
• Chapter VIII.: Of Analogy Between Crimes and Punishments.
• Chapter IX.: Of Retaliation.
• Chapter X.: Of Popularity.
• Book II.: Of Corporal Punishments.
• Chapter I.: Simple Afflictive Punishments. *
• Chapter II.: Of Complex Afflictive Punishments.
• Chapter III.: Of Restrictive Punishments—territorial Confinement.
• Chapter IV.: Imprisonment.
• Chapter V.: Imprisonment—fees.
• Chapter VI.: Imprisonment Examined.
• Chapter VII.: General Scheme of Imprisonment.
• Chapter VIII.: Of Other Species of Territorial Confinement—quasi Imprisonment—relegation—banishment.
• Chapter IX.: Of Simply Restrictive Punishments.
• Chapter X.: Of Active Or Laborious Punishment.
• Chapter XI.: Capital Punishment.
• Chapter XII.: Capital Punishment Examined. *
• Book III.: Of Privative Punishments, Or Forfeitures.
• Chapter I.: Punishment Analyzed.
• Chapter II.: Of the Punishments Belonging to the Moral Sanction.
• Chapter III.: Forfeiture of Reputation.
• Chapter IV.: Of Pecuniary Forfeitures.
• Chapter V.: Forfeiture of Condition.
• Chapter VI.: Forfeiture of the Protection of the Law.
• Book IV.: Of the Proper Seat of Punishment: Or Say, of Mis-seated Punishment.
• Book V.: Of Complex Punishments.
• Chapter I.: Inconveniences of Complex Punishments.
• Chapter II.: Of Transportation.
• Chapter III.: Panopticon Penitentiary.
• Chapter IV.: Felony.
• Chapter V.: Of PrÆmunire.
• Chapter VI.: Outlawry.
• Chapter VII.: Excommunication.
• Book VI.: Miscellaneous Topics.
• Chapter I.: Choice of Punishments—latitude to Be Allowed to the Judges.
• Chapter II.: Of Subsidiary Punishments.
• Chapter III.: Of Surety For Good Conduct.
• Chapter IV.: Defeazance of Punishment.
• Appendix—: On Death-punishment. ∥ Jeremy Bentham to His Fellow-citizens of France.
• Part III.: Of Indirect Means of Preventing Crimes.
• Introduction.
• Chapter I.: Methods of Taking Away the Physical Power of Injuring.
• Chapter II.: Another Indirect Method—hinder the Acquisition of Knowledge Which May Be Rendered Injurious. †
• Chapter III.: Of Indirect Means of Preventing the Will to Commit Offences.
• Chapter IV.: Problem I. to Divert the Course of Dangerous Desires, and Direct the Inclination Towards Those Amusements Which Are Most Conformed to the Public Interest.
• Chapter V.: Problem II. to Make Such Arrangements, That a Given Desire May Be Satisfied Without Prejudice, Or With the Least Possible Prejudice.
• Chapter VI.: Problem III. to Avoid Furnishing Encouragement to Crimes.
• Chapter VII.: Problem IV. to Augment the Responsibility of Individuals, In Proportion As They Are More Exposed to Temptation to Do Wrong.
• Chapter VIII.: Problem V. to Diminish Sensibility With Regard to Temptation.
• Chapter IX.: Problem VI. to Strengthen the Impression of Punishments Upon the Imagination.
• Chapter X.: Problem VII. to Facilitate the Discovery of Offences Committed.
• Chapter XI.: Problem VIII. to Prevent Offences, By Giving to Many Persons an Interest In Preventing Them.
• Chapter XII.: Problem IX. to Facilitate the Recognition and the Finding of Individuals.
• Chapter XIII.: Problem X. to Increase the Difficulty of Escape For Delinquents.
• Chapter XIV.: Problem XI. to Diminish Uncertainty With Regard to Procedure and Punishment.
• Chapter XV.: Problem XII. to Prohibit Accessory Offences, In Order to Prevent Their Principals.
• Chapter XVI.: Of the Cultivation of Benevolence.
• Chapter XVII.: Employment of the Motive of Honour, Or of the Popular Sanction.
• Chapter XVIII.: Of the Employment of the Religious Sanction.
• Chapter XIX.: Uses to Be Drawn From the Power of Instruction.
• Chapter XX.: Use to Be Made of the Power of Education.
• Chapter XXI.: General Precautions Against the Abuse of Authority.
• Chapter XXII.: Measures to Be Taken Against the Ill Effects of an Offence Already Committed—conclusion of the Subject.

CHAPTER XIV.

PROBLEM XI.

To diminish Uncertainty with regard to Procedure and Punishment.

It is not my intention here to enter upon the vast subject of procedure: this will be the object not of a chapter, but of a separate work. The present chapter will be confined to two or three general observations.

Has a crime been committed? it is the interest of society that the magistrate charged with its punishment should be informed of it, and informed in such manner as to authorize the infliction of the punishment incurred. Is it alleged that a crime has been committed? it is the interest of society that the truth or falsehood of this allegation should be made evident. Hence, the rules of evidence, and the forms of procedure, ought to be such as, on one side, to admit all true information, and, on the other, to exclude all false information; that is to say, all that offers more chances of deceiving than enlightening.

Nature has placed before our eyes a model of procedure. When we regard what passes in the domestic tribunal—when we examine the conduct of the father of a family among his children and servants, of whom he is the head—we there discover the original features of justice, which we can hardly recognise after they have been disfigured by men incapable of discerning, or interested in disguising the truth. A good judge is only the father of a family acting upon a larger scale. The methods which are good for the father of a family in his search after truth, are equally good for the judge. This is the first model of procedure; it has been departed from, but it ought never to have been discarded.

It is true, that a confidence may be accorded to the father of a family, which cannot be accorded to a judge, because the last has not the same motives of affection to guide him, and may perhaps be led astray by a personal interest. But this only proves that it is necessary to guard against the partiality or corruption of the judge, by precautions which are not requisite in the domestic tribunal. This does not prove that the forms of procedure, and rules of evidence, ought to be different.

English jurisprudence admits the following maxims:—

1. That no one shall be witness in his own cause.

2. That no one shall accuse himself.

3. That the testimony of a person interested in the cause is not admissible.

4. That hearsay evidence is not admissible.

5. That no one shall be tried twice for the same offence.

It is not my intention here to discuss these rules of evidence. In treating of procedure in general, it will be proper to examine if English jurisprudence, superior in so many respects to that of all other nations, owes that superiority to these maxims, or whether they are not the principal cause of that weakness in the powers of justice, from which arises the feebleness of the police in England, and the frequency of crimes.

I shall only observe, that all precautions which are not absolutely necessary for the protection of innocence, offer a dangerous protection to crime. I know no maxim in procedure more dangerous than that which places justice in opposition to itself—which establishes a kind of incompatibility among its duties. When it is said, for example, that it is better to allow one hundred guilty persons to escape, than to condemn one that is innocent,—this supposes a dilemma which does not exist. The security of the innocent may be complete, without favouring the impunity of crime: it can only be complete upon that condition; for every offender who escapes, menaces the public safety; and to allow of this escape is not to protect innocence, but to expose it to be the victim of a new crime. To absolve a criminal, is to commit by his hands the crimes of which he becomes the author.

The difficulty of prosecuting crimes is one cause of their impunity, and of weakness on the part of justice. When the law is clear—when the judge is appealed to immediately after the commission of the supposed crime, the function of accuser is almost confounded with that of witness. When the offence is committed under the eyes of the judge, only two persons are necessary, so to speak, in the drama—the judge and the offender. It is distance which detaches the function of witness from that of judge. But it may happen, that all the witnesses to a fact cannot be collected together; or that the discovery of the offence may not be made till long after its commission; or that the accused has to allege in his defence, facts which can only be verified in the place where they are said to have happened. All this may require delay. This delay may give rise to new incidents, which may require further delay. The procedure of justice becomes complicated; and in order to follow all this chain of operations, without confusion and without neglect, it becomes requisite to place over these judicial proceedings a person who shall have to conduct them. Hence arises another function, that of accuser. The accuser may be either one of the witnesses, or a person interested in the affair, or an officer expressly appointed for this object.

Judicial functions have often been so divided, that the judge who receives the evidence whilst it is recent, has no right to decide upon it, but must send the affair to another judge, who will only have leisure to attend to it when the proofs are half effaced. There are beforehand established, in most states, many useless formalities, and it has been necessary to create officers to follow up these formalities. The system of procedure is thus rendered so complicated, that it becomes an abstruse science: he who would prosecute an offence is obliged to put it into the hands of an attorney, and the attorney himself cannot proceed without having another man of law, of a superior class, to direct him by his counsels, and to speak for him.

To these disadvantages may be added two others:—

1. Legislators, without thinking that they have placed themselves in opposition to themselves, have often closed the approaches of the tribunals to those who have most need of them, by subjecting procedure to the most objectionable taxes.

2. There is a public dislike attached to all those who employ themselves as public accusers in the execution of the laws. This prejudice is foolish and pernicious, yet legislators have often had the weakness to encourage it, without having made the slightest effort to overcome it.

What is the effect of all this accumulation of delay and discouragement? it is, that the laws are not executed. When a man can at once address the judge, and tell him what he has seen, the expense of this proceeding is a trifle. In proportion as he is obliged to pass by a great number of intermediates, his expenses increase; when to this is added the loss of time, the disgust, the uncertainty of success, one is surprised that men are still found sufficiently resolute to engage in such a pursuit. There are but few, and there would be still fewer, if those who adventure in this lottery knew as well as the lawyers what it would cost, and the number of adverse chances.

These difficulties would vanish on the simple institution of a public accuser, clothed with the character of a magistrate, having the conduct of the prosecution, and chargeable with the expenses. The informers who would require to be paid, need have only a small salary; and a hundred gratuitous informers would present themselves, for one who required to be paid.* Each law put into execution would exhibit its good or bad effects: the good grain would be preserved, and the chaff thrown into the fire. Informers, animated by public spirit, rejecting all pecuniary recompense, would be listened to with the respect and confidence which is their due. Delinquents would no longer be able to withdraw themselves from the punishment they had incurred, by treating with those who have undertaken the prosecution, either by engaging them to desist, or by turning them to their own favour.

It is true, that in England, in every important case, the prosecutor is forbidden to make a compromise with the accused without the permission of the judge; but if this prohibition were universal, what effect would it have in those cases in which it is the interest of both parties to evade it?

[* ]I know by experience, says Sir John Fielding, that for one information brought before me from the desire of reward, I have received ten which had no other motive than the public good. P. 412.

The smallest expense of a prosecution in an ordinary court of justice, is £28 sterling, a sum nearly equal to the subsistence of a common family for a year. How can it be expected that a man, from public spirit, should expose himself to so considerable a sacrifice? independently of the embarrassment of all kinds connected with it. With such a system of procedure, it would be a miracle if the laws had the efficacy of which they are susceptible, if these obstacles were removed,