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CHAPTER XXII.: MEASURES TO BE TAKEN AGAINST THE ILL EFFECTS OF AN OFFENCE ALREADY COMMITTED—CONCLUSION OF THE SUBJECT. - 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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MEASURES TO BE TAKEN AGAINST THE ILL EFFECTS OF AN OFFENCE ALREADY COMMITTED—CONCLUSION OF THE SUBJECT.
The general result of the principles which have been laid down in relation to penal legislation, present a happy prospect and well-founded hopes of reducing the number of crimes, and mitigating punishments. This subject at first only presents to the mind sombre images of suffering and terror; but in considering this class of evils, these doleful sentiments soon give place to gentle and consoling sentiments, when it is discovered that the heart of man has not within it any original and incurable perversity; that the multiplicity of offences arises only from errors in legislation, easy to be reformed; and that even the evil which results from them is capable of being repaired in many ways.
The great problem in penal legislation is—
1. To reduce as much as possible all the evil of offences to that which a pecuniary compensation will cure; 2. To throw the expense of this cure upon the authors of the evil, and, in their default, upon the public. What may be done in this respect goes far beyond what is imagined at the first glance.
The term cure is employed, the individual or community injured being considered under the character of an invalid, who has suffered from a crime. The comparison is just, and indicates the most suitable procedure, without mingling with them popular passions, and the antipathies which the ideas of crime are too apt to awaken among legislators.
There are three principal sources of crime: incontinence—enmity—rapacity.
The crimes to which incontinence gives birth, are scarcely of a nature to be cured by a pecuniary compensation: this remedy may be applied, in certain cases, to seduction, and even to conjugal infidelity; but it never cures that portion of the evil which consists in the attack upon the honour and peace of families.
It may be observed, that in opposition to other offences, whose evil effects are more surely arrested the more completely they are published, the offences of incontinence only become hurtful when made public. Thus a good citizen, who would esteem it a duty to publish an act of fraud, would take care to conceal a secret fault arising from love. To leave a fraud undetected, is to become an accomplice in its success. To publish, in open day, an unknown weakness, is to do an injury without compensation: since it lace-rates the sensibility of those who are held up to shame, and repairs nothing. I reckon among the establishments which do honour to the humanity of our age, the secret asylums for accouchements, and hospitals for foundlings, which have so often prevented the evil effects of despair, by covering with the shades of mystery the consequences of a transient wandering. The rigour which rises up against this indulgence is founded upon a false principle.
The crimes to which enmity gives birth are often such, that a compensation in money cannot be applied to them. Even this compensation, when it can be applied, is rarely complete: it cannot undo what is done; it cannot restore a limb which is lost; it cannot restore a son to his father, a father to his family: but it may act upon the condition of the party injured: it may furnish him with a lot of good, in consideration of a lot of evil; and in balancing the account of his prosperity, place an item upon the favourable side, to balance an item upon the disadvantageous side.
The most essential observation with respect to these offences is, that they are daily diminishing, from the progress of civilization. It is wonderful to observe, among the greater number of European states, how few crimes are produced by the angry passions so natural to man, and so violent in the infancy of society. How noble an object of emulation for those tardy governments, which have not yet attained this degree of police, and among whom the sword of justice has not yet vanquished the stilettoes of revenge!
But the inexhaustible source of crimes is rapacity. Here is an enemy always active, always ready to seize all advantages—against whom it is necessary to wage continual war. This war demands tactics, whose particular principles have been much misunderstood.
Be indulgent to this passion, so long as it confines itself to attacking you by peaceful means; attach yourself to taking away all the unjust profit that it makes; become severe with regard to it, in proportion as it carries on its enterprises openly—when it has recourse to threats and violence. Still, however, reserve means of additional severity, when it gives way to atrocities, such as murder and incendiarism. It is in the proper management of these gradations, that the art of penal legislation consists.
It must never be forgotten, that all penal police consists in a choice of evils. The wise administrator of punishments will always have the balance in his hands; and in his zeal for the exclusion of small offences, will not imprudently give birth to greater ones. Death is almost always a remedy which is not necessary, or which is inefficacious: it is not necessary with respect to those whom an inferior punishment may deter from crime—whom simple imprisonment can restrain from it: it is not efficacious with respect to those who precipitate themselves upon it, so to speak, as an asylum against despair. The policy of the legislator who punishes every thing with death, resembles the pusillanimity of the child who crushes the insect which he dares not look upon. But if the circumstances of society—if the frequency of a great crime, require the employment of this terrible punishment, dare, without aggravating the torments of death itself, to give to it a more formidable aspect than that of nature; surround it with mournful accessaries—the emblems of crime, and the pomp of tragic ceremonies.
Be hard, however, to be convinced of the necessity of putting any one to death. By avoiding it as a punishment, you will also prevent its occurrence as a crime. When a man is placed between two crimes, it is important to give him a sensible interest not to commit the greater. It is proper, in a word, to convert the assassin into a pickpocket; that is to say, to give him a reason for preferring the crime which can be repaired, to that which cannot be repaired.
Everything which can be repaired is nothing. Everything which may be compensated by a pecuniary forfeiture, is almost as non-existent as if it had never existed; for if the injured individual always receive an equivalent compensation, the alarm caused by the crime ceases entirely, or is reduced to its lowest term.
The desirable object is, that the funds for compensation on account of crimes should be drawn from the mass of delinquents themselves—either from the goods they have acquired, or from labour imposed on them. If this were the case, security would be the inseparable companion of innocence, and sorrow and anguish would only be the portion of the disturbers of the social order. Such is the point of perfection which should be aimed at, though there may be no hope of attaining it but by degrees, and by continued efforts. The goal is pointed out: the happiness of reaching it will be the reward of an enlightened and persevering administration.
During the insufficiency of this source, it is proper to draw compensation, either from the public treasure or private insurances.
The imperfection of our laws is very evident, under this point of view. Has a crime been committed? those who have suffered by it, either in their person or their fortune, are abandoned to their evil condition. The society which they have contributed to maintain, and which ought to protect them, owes them, however, an indemnity, when its protection has not been effectual.
When an individual has prosecuted a criminal at his own expense, even in his own cause, he is no less a defender of the state than he who fights against foreign enemies: the losses he experiences in defending the state ought to be compensated at the public expense.
But when an innocent person has suffered from an error of the tribunals—when he has been arrested, detained, rendered suspected, condemned to all the anxieties of a trial and a long captivity, it is not only on his own account, but on account of justice itself, that he ought to receive an indemnity. Instituted for the redress of wrongs, is it desirable that the wrongs they perpetrate should be without redress?
Governments have not provided for either of these indemnities. In England some voluntary associations have been formed to supply them. If the institution of assurance* be good in a single case, it is good in all, under the precautions requisite for the prevention of negligence and fraud.
The inconvenience of frauds is common to all funds, public and private. They may diminish the utility of assurances, without destroying it. Shall no fruit-trees be cultivated, because the crop may be destroyed by a thousand accidents? Banks of piety have succeeded in many countries. An establishment of this kind, formed in London in the middle of the past century, failed at its commencement, from the unfaithfulness of its directors; and this robbery has left a prejudice, which has hindered all other attempts of this kind. According to the same logic, it might be proved that ships are bad war machines, because the Royal George, whose port-holes were left open, sunk whilst at anchor.
Assurances against crimes might have two objects:—1. To create a fund for the indemnification of parties injured, in case the delinquent were unknown or insolvent; 2. To defray, in the first instance, the expenses of judicial prosecution; and might even be extended, in favour of the poor, to causes purely civil.
But the method of settling these indemnities would be foreign to the present subject: it has been treated of elsewhere. I confine myself here to an enunciation of the general result of this work: It is, That by good laws almost all crimes may be reduced to acts which may be repaired by a simple pecuniary compensation; and that, when this is the case, the evil arising from crimes may be made almost entirely to cease.
This result, simply announced, does not at first strike the imagination: it is necessary to meditate upon it, in order to perceive all its importance and solidity. The brilliant society of the world cannot be interested by a formula almost arithmetical: it is to statesmen that it is presented as a subject for consideration; and it belongs to them to judge of it.
The science, whose foundations we have explored, can only please those elevated minds with whom the public good is a passion. This is not a subversive and shuffling policy, which prides itself upon clandestine projects—which builds its glory upon misfortunes—which beholds the prosperity of one nation in the abasement of another, and mistakes the convulsions of government for the conceptions of genius. It has reference to the greatest interests of humanity—to the art of forming the manners and characters of nations—to the means of insuring the highest degree of security to individuals—and of deriving results equally advantageous from different forms of government. Such is the object of this noble and generous political science, which seeks only to be known—which desires nothing exclusive—and which knows no more certain method of perpetuating its benefits, than sharing them among all the great family of nations.
[* ]Assurance is good, because the assurer is prepared to sustain the loss, and considers the premium he has received as the equivalent for the risk which he runs.