Front Page Titles (by Subject) CHAPTER XV.: PROBLEM XII. To prohibit Accessory Offences, in order to prevent their Principals. - 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 XV.: PROBLEM XII. To prohibit Accessory Offences, in order to prevent their Principals. - 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.
Those acts which have a connexion with a pernicious event as its cause, may be considered as accessory offences in relation to the principal offence.
The principal offence being well determined, there may be distinguished as many accessory offences as there are acts which may serve either to prepare or to manifest a projected crime. Now, the more these preparatory acts are distinguished, for the purpose of prohibiting them, the greater the chance of preventing the execution of the principal crime itself. If the criminal be not stopped at the first step of his career, he may be at the second, or the third. It is thus that a prudent legislator, like a skilful general, reconnoitres all the external posts of the enemy, with the intention of stopping his enterprises. He places, in all the defiles, in all the windings of his route, a chain of works, diversified according to circumstances, but connected among themselves, in such manner that the enemy finds in each, new dangers and new obstacles.
If we regard legislators in their practice, we shall not find one who has worked systematically upon this plan, and not one who has not followed it to a certain point.*
Offences against the game-laws have been divided into many accessory offences, according to the nature of the snare, according to the kind of nets or other instruments necessary for taking the game, &c. Smuggling also has been attacked, by prohibiting many preparatory acts. Frauds, with regard to different kinds of coin, have been combated in the same manner.
The following are other examples of what may be done under the head of police:—
Against Homicide and other Corporal Injuries.
Prohibition of purely offensive arms, which are easily hidden. In Holland, it is said that a kind of instrument, shaped like a needle, is made, which is thrown from a tube, which occasions a mortal wound. The manufacture, the sale, the possession of these instruments, might be prohibited as accessaries to murder.
Pocket-pistols, which highway robbers have made use of in England, ought they to be prohibited? The utility of such a prohibition is problematical. Of all methods of robbery, that which is carried on by means of fire-arms is the least dangerous to the person attacked. In such a case, the simple threat is commonly sufficient for the accomplishment of the object. The robber who should pull his trigger after the party had delivered his money, would be guilty not only of useless cruelty, he would disarm himself; instead of which, by reserving his fire, he preserves his means of defence. He who employs a club or a sword, has not the same motive for refraining to strike: the first blow becomes even a reason for a second, that he may put his victim out of a condition to pursue him.
Prohibition of the sale of poisons requires that a catalogue be made of poisonous substances; the sale of them cannot, however, be altogether forbidden;† it can only be regulated and subjected to precautions requiring that the seller should know the purchaser, that he should have witnesses of the sale, that he should register the sale in a separate book, &c. These regulations, to be complete, would require considerable details. Would the advantages compensate for the trouble? This will depend upon the manners and habits of the people. If poisoning be a frequent crime, it will be necessary to take indirect precautions against it. They would have been proper in ancient Rome.
Accessory offences may be distinguished into four classes:—The first class implies an intention formed to complete the principal offence. Offences of this class may be comprised under the general name of attempts or preparations.‡
The second class does not suppose that the intention to commit the crime is actually formed, but that the individual is placed in a situation in which he will form the design for the future. Gaming, prodigality, idleness when joined with indigence, are offences of this class. Cruelty towards animals is the road to cruelty towards men, &c.
The third implies no criminality, either actual, intentional, or probable, but only possible, from accident. These kinds of offences are created, when police regulations are made which have for their object the prevention of calamities—when, for example, the sale of certain poisons, of gunpowder, &c. is forbidden. The violation of these regulations, separate from all criminal intention, is an offence of this third class.
The fourth class is composed of presumed offences; that is to say, of acts that are considered as proofs of an offence (evidentiary offences;) acts hurtful or not hurtful in themselves, furnishing presumptions of an offence having been committed. By an English statute, a certain conduct on the part of a woman was directed to be punished as murder, because it was supposed that such conduct was a sure proof of infanticide. By another statute, it is made a capital crime for bands of men to go about armed in disguise, because this is considered a proof of a design to commit murder, in protecting smugglers from justice. By another statute, the possession of stolen goods, without being able to give a satisfactory account of the manner in which they were acquired, is made an offence, this circumstance being considered a proof of complicity. Again, by another statute, the obliteration of the marks upon shipwrecked effects is made an offence, this being considered a proof of an intention to steal them.
These offences, founded upon these presumptions, suppose two things:—1. Mistrust in the system of procedure; 2. Mistrust in the wisdom of the judge. In England, the legislature has thought that juries, being too much disposed to pardon, would not see in these circumstances a certain proof of a crime; and it has made the act itself, which furnishes the presumption, a separate offence—an offence independent of every other. In a country in which the tribunals should possess the entire confidence of the legislature, these acts would be placed under the head to which they belong, and would be considered as presumptions, the judge being allowed to draw from them his conclusions.
With respect to accessory offences, it is essential that the legislator should possess three rules by way of memento:—
1. For each principal offence which he creates, he ought to extend his prohibition to the preparatory acts; to simple attempts, generally under the sanction of a less punishment than is appointed for the principal offence. This is the general rule, and the exceptions ought to be founded upon particular reasons.
2. He ought, then, under the description of the principal offence, to place all the accessory, preliminary, and concomitant offences, which are susceptible of a specific and precise description.
3. In the description of accessory offences, he should take care not to impose too much restraint—not to trespass upon the liberty of individuals, so as to expose innocence to danger by his precipitate conclusions. The description of an offence of this kind is almost always dangerous, if it do not include a clause allowing the judge to estimate the degree of presumption which ought to be drawn from it. In this case, to create an accessory offence is almost the same thing as suggesting the fact in question to the judge, by way of instruction, under the character of an indicative circumstance, and not allowing him to draw any conclusion from it, if he see any special reason for regarding the indication as inconclusive.
If the punishment for an attempt, or preliminary offence, be equal to that of the crime, when completed, without making allowance for the possibility of repentance or prudential desisting, the offender, seeing himself exposed to the same punishment for the simple attempt, will see at the same time that he is at liberty to complete it without incurring any more danger.
[* ]In the Code Theresa, under each head of offences, there is a head of indicia. These indications are distinguished into two classes: indicia ad capturam; indicia ad torturam: those which suffice to justify an arrest; those which suffice to justify the torture—a practice which was not yet abolished.
[† ]Every active medicine, taken in a certain dose, is a poison.
[‡ ]A soldier, in a review, puts a ball into his musket; it is discovered before the order to fire is given: this may be regarded as a preparatory act: if he had fired at a person or an assemblage of persons, this would have been an attempt—if he had killed any one, he would have committed the crime known under the name of homicide.