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 XVIII.

OF THE EMPLOYMENT OF THE RELIGIOUS SANCTION.

The cultivation of religion has two objects: to increase the force of this sanction; to give to this force a suitable direction. If this direction be bad, it is evident that the less force this sanction possesses, the less evil it will do. With regard to religion, the first thing, therefore, is to examine into this direction: the increase of its force is only a secondary object.

Its direction ought to be conformable to utility. As a sanction, it is composed of rewards and punishments. Its punishments should be attached to actions hurtful to society, and to these actions exclusively: its rewards ought to be promised to actions whose tendency is advantageous to society, and to no others. Such is the fundamental dogma.

The only method of judging of its direction is to consider it solely with relation to the welfare of political society. Every thing besides this is indifferent; and every thing in religious belief which is indifferent, is liable to become pernicious.

But every article of faith is necessarily hurtful, so soon as the legislator, in order to favour its adoption, employs coercive or penal motives. The persons whom he seeks to influence may be considered as forming three classes: those who already are of the same opinion with the legislator; those who reject this opinion; those who neither adopt nor reject it.

With regard to the conformists, the law is not necessary: with regard to the nonconformists, it is useless: by the supposition itself, it does not accomplish its object.

When a man has formed his opinion, is it in the power of punishment to make him change it? The question appears ridiculous. Punishments tend rather to an opposite result: they tend rather to confirm him in his opinion, than to make him give it up; partly because the employment of force is a tacit avowal that reasons are wanting—partly because recourse to violent measures produces aversion to the opinions which it is sought to maintain in this manner. All that can be obtained by punishments is, not to engage a man to believe, but to declare that he believes.

Those who, from conviction or honour, refuse to make this declaration, undergo the evil of the punishment—the persecution: for what is called persecution, is an evil which is not compensated for by any advantage—an evil in pure waste; and this evil inflicted by the hand of the magistrate is precisely the same in kind, but much stronger in degree, than if it had been inflicted by an ordinary malefactor.

Those who, less strong or less noble, escape by a false declaration, give way to the threats, to the danger which immediately presses upon them; but the momentary pain which is avoided, is converted, as to them, into pains of conscience, if they have any scruples, and into pains of contempt on the part of society, which charges with baseness these hypocritical recantations. In this state of things, what happens? One part of the citizens must accustom itself to despise the opinions of the other, in order to be at peace with themselves. They employ themselves in making subtle distinctions between innocent and criminal falsehood; in establishing privileged lies, because they serve as a protection against tyranny; in establishing customary perjuries, false subscriptions, and consider them as articles of peace. In the midst of these subtleties, regard for truth is neglected, the limits of right and wrong are confounded, a train of less pardonable false-hoods is introduced under favour of the first—the tribunal of public opinion is divided: the judges who compose it are not guided by the same laws; they no longer know clearly what degree of dissimulation they ought to condemn, nor what they ought to excuse; its voice is drowned in contradictions; and the moral sanction, having no longer an uniform regulator, is weakened and depraved. Thus the legislator, who requires declarations of faith, becomes the corrupter of his country. He sacrifices virtue to religion, instead of making religion an auxiliary to virtue.

The third class to be examined is that of those who, at the establishment of the penal law, had not yet formed any opinion either for or against. With respect to these, it is probable that the law will influence the formation of their opinion. Seeing danger on one side, and security on the other, it is natural that they should regard the arguments of the condemned opinion with a degree of fear and aversion, which they will not feel for the arguments of the favoured opinion. The arguments which they wish to find true, will make a more lively impression than those which they wish to find false: and by this means, a man may come to believe, or rather not to reject, not to misbelieve, a proposition which he would not have adopted if his inclination had been left free. In this last case, the evil is less than in the two former cases, but does not cease to be an evil. It may happen, but it does not always happen, that the judgment gives way entirely to the affections; but even when that happens, that is to say, when the persuasion is as strong as it can be, if fear form any part of the motives of this persuasion, the mind is never perfectly tranquil: what is believed to-day, it is feared may not be believed on the morrow. A clear moral truth is never doubtful, but the belief of a dogma is always more or less shifting. Hence arises irritation against those who attack it. Examination and discussion is dreaded, because we do not feel ourselves placed upon solid ground. It is not necessary to pull down anything in a building which is firmly put together. The understanding becomes weakened; the mind seeks only complete repose in a kind of blind credulity; it seeks out all the errors which possess affinity with its own; it fears clearly to explain itself upon what is possible and impossible, and wishes to confound all boundaries. It loves to entertain sophistry, and every thing which fetters the human mind, every thing which would persuade it that it cannot reason with entire certainty. It acquires an unhappy dexterity in rejecting evidence—in giving force to half proofs—in listening only to one side—in subtilizing against reason. In a word, under this system, it is proper to put a bandage over the eyes, that they may not be wounded by the brightness of day.

Hence, every penal method employed for increasing the force of the religious sanction, acts indirectly against that essential part of good manners, which consists in respect for truth, and respect for public opinion. All the enlightened friends of religion now think the same. There are, however, but few nations which have acted upon this principle. Violent persecutions have ceased, but there still exist secret persecutions, civil punishments, political incapacities, threatening laws, a precatious toleration—a humiliating situation for classes of men who owe their tranquillity only to a tacit indulgence, a continual pardon.

In order to obtain clear ideas as to the advantage which the legislator may derive from increasing the force of the religious sanction, it is necessary to distinguish three cases: 1. Those in which it is entirely subordinated to him; 2. Those in which others partake of this influence with him; 3. Those in which it depends upon a stranger. In this latter case, the sovereignty is really divided between two magistrates—the spiritual (as it is commonly called) and the temporal. The temporal magistrate will be in constant danger of seeing his authority contested or destroyed by that of his rival, and what he should do for increasing the force of the religious sanction, might prove a diminution of his own power: whilst as to the effects which might result from such a state of strife, they may be found on the tables of history. The temporal magistrate commands his subjects to perform one action; the spiritual magistrate prohibits it: whichever they obey, they are punished by the one or the other; proscribed or damned, they are placed between the fear of the civil sword, and the fear of eternal fire.

In Protestant countries, the clergy are essentially subordinate to the political power: their dogmas do not depend upon the prince; but those who interpret them, depend upon him. But the right of interpreting these dogmas is little less than the same thing as the right of making them. Hence, in Protestant countries, religion is more easily modelled upon the plan of the political authority. Married priests are more completely citizens; they do not form a phalanx among themselves, which can become formidable; they have neither the power of the confessional, nor that of absolution.

But in considering facts alone, whether in Protestant or Catholic countries, it must be acknowledged that religion has played too great a part in the miseries of nations. It appears to have been more often the enemy, rather than the instrument of civil government. The moral sanction has never more force than when it accords with utility; but, unfortunately, the religious sanction seems to have had most force in those cases in which it was most opposed to utility. The inefficacy of religion, when applied to the promotion of political good, is the constant subject of the declamations of those who have the greatest interest in exaggerating its good effects. Too little powerful for the production of good, it has often been too powerful in the production of evil. It was the moral sanction which animated Codrus, Regulus, Russell, and Sidney: it was the religious sanction which worked in Philip II. the scourge of the Low Countries; in bloody Mary of England; and in Charles IX., the executioner of France.

The ordinary solution of this difficulty is to attribute all the good to religion, and all the evil to superstition. But this distinction, in this sense, is purely verbal. The thing itself is not changed, because the name is changed, and it is called religion in the one case, and superstition in the other. The motive which acts upon the mind, in both the cases, is precisely the same: it is always the fear of evil and the hope of good from an Almighty Being, respecting whom different ideas have been formed. Hence, in speaking of the conduct of the same man on the same occasion, some will attribute it to religion, and others to superstition.

Another observation, as trivial as the first, and as weak as trivial, is, that it is unjust to argue against the use of any thing from its abuse, and that the best instruments are those which do the most evil when they are misused. The futility of this argument is easily pointed out. The good effects of a thing are called its use; the bad effects are called its abuse. To say that you ought not to argue against the use from the abuse, is to say that in making a just appreciation of the tendency of a cause, you ought only to regard the good it occasions, and not to consider the evil. Instruments of good, ill employed, may often become instruments of evil: this is true, but the principal character in the perfection of an instrument is, not to be liable to be ill employed. The most efficacious ingredients in medicine are convertible into poisons, I allow; but those which are dangerous are not so good upon the whole as those which render the same service, if such there be, without being liable to the same inconveniences: mercury and opium are very useful; bread and water are still more so.

I speak without circumlocution, and with entire freedom. I have elsewhere explained myself upon the utility of religion; but I must not omit to observe here, that it tends more and more to disengage itself from futile and pernicious dogmas, and to coincide with sound morality and sound policy. Irreligion, on the contrary, (I refuse to pronounce the word atheism) has manifested itself in our days under the most hideous forms of absurdity, immorality, and persecution. This experience is sufficient to show to all good minds in what direction they should exert their efforts. But if government act too openly in favour of this direction, it will fail in its object. It is freedom of inquiry which has corrected the errors of the ages of ignorance, and restored religion to its right direction: freedom of inquiry will continue still to purify it, and to reconcile it with public utility.

This is not the place to examine all the services which religion may render, either as a source of consolation under the ills which man is heir to; or as a moral teaching, best adapted to the most numerous class of society; or as a means of exciting beneficence,* and of producing useful acts of self-devotion, which could not be obtained upon purely human motives.

The principal use of religion, in civil and penal legislation, is the giving a new degree of force to an oath—another foundation for confidence.

An oath includes two different bonds—the religious and the moral: the one obligatory upon all; the other only upon those who think in a certain manner. The same formulary which professes to expose a man, in case of perjury, to religious punishments, exposes him in the same case to legal punishments and the contempt of men. The religious bond is the most striking; but the greatest part of the force of an oath depends upon the moral bond: the influence of the first is partial; that of the second is universal. It would be, therefore, highly imprudent to employ the one, and neglect the other.

There are some cases in which an oath is of the greatest force: when it operates in concert with public opinion—when it has the support of the popular sanction. There are cases in which it has no force at all: when public opinion acts in opposition to it, or only does not second it. Such are custom-house oaths, and those which are required of the students in certain universities.

It is the interest of the legislator, no less than that of a military chief, to know the true state of the forces under his command. To shun the examination of a weak point, because the appearance of this weak part will not yield satisfaction, would be pusillanimity. But if the weakness of the religious bond in an oath has been thus laid open, it is the fault of the professors of religion: the abuse which they have made of it by lavishing it without measure, has robbed it of the efficacy which it possessed of itself, separated from the sanction of honour.

The force of an oath is necessarily weakened when it turns upon matters of belief, upon opinions: Why? because it is impossible to detect the perjury, and also because human reason, always fluctuating, always subject to variation, cannot pledge itself for the future. Can I be certain that my belief of to-day will remain the same ten years hence? All such oaths are a monopoly bestowed upon men with consciences of little scrupulosity, in opposition to those who possess consciences of more sensibility.

Oaths are degraded when they regard trifles, when they are employed upon occasions in which they will be violated by a kind of universal convention; and more especially when they are required in cases in which justice and humanity will make an excuse for, and almost a merit of, their violation.

The human mind, which always resists tyranny, confusedly perceives that God, on account of his perfections, cannot ratify frivolous or unjust laws. Indeed man, by imposing an oath, would exercise authority over God himself. Man ordains a punishment, and it is for the Supreme Judge to execute it: deny this position, and the religious force of an oath vanishes.

It is very astonishing that in England, among a nation otherwise prudent and religious, this great security has been almost destroyed by the trivial and indecent use which has been made of it.

To show to what an extent habit may deprave moral opinions in certain respects, I quote a passage extracted from Lord Kames, a judge of the Court of Session in Scotland, upon education:—*

“Custom-house oaths now-a-days go for nothing, not that the world grow more wicked, but because no person lays any stress upon them. The duty on French wine is the same in Scotland and in England. But as we cannot afford to pay this high duty, the permission underhand to pay Spanish duty for French wine, is found more beneficial to the revenue, than the rigour of the law. The oath, however, must be taken, that the wine we import is Spanish, to entitle us to the ease of the Spanish duty. Such oaths at first were highly criminal, because directly a fraud against the public: but now that the oath is only exacted for form sake, without any faith being intended to be given or received, it becomes very little different from saying in the way of civility, ‘I am, sir, your friend, or your obedient servant.’ And, in fact, we every day see merchants dealing in such oaths, whom no man scruples to rely upon in the most material affairs.”

Who would believe that this is the language of a moralist and a judge? The Quakers have raised their simple asseveration to the dignity of an oath;—a magistrate degrades an oath to the simple formula of a ceremony. The oath implies neither faith given, nor faith received. Why then require it? why take it? why this farce? Is religion, then, the last of objects? and if it be thus to be contemned, why should it be so dearly paid for? How great the absurdity of paying a religious establishment for preaching up the importance of an oath, and having judges and legislators who amuse themselves with destroying it!†

[* ]Care ought to be taken not to encourage that spirit of foundations and alms, which has too frequently arisen from the vulgar notions of Christianity. They increase the number of the poor, more than they relieve them. Such are the convents of the monks, and their daily distributions in Spain and Italy, which create a numerous class of beggars, and are equivalent to a law, whereby industry is taxed in favour of idleness.

[* ]Loose Hints on Education, p. 362.

[† ]By an Act of William IV., the Treasury are authorized to dispense with all oaths which they do not consider necessary in the collection of the revenue, and to substitute declarations as to the acts in their stead.