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Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) [1843]

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Jeremy Bentham, The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1. http://oll.libertyfund.org/titles/2009

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About this Title:

An 11 volume collection of the works of Jeremy Bentham edited by the philosophic radical and political reformer John Bowring. Vol. 1 contains The Principles of Morals and Legislation, A Fragment on Government, Principles of the Civil Code, Principles of Penal Law, and other writings.

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Table of Contents:

Edition: current; Page: [a]
the WORKS of JEREMY BENTHAM,
Edition: current; Page: [i]
the WORKS of JEREMY BENTHAM,
published under the superintendence of his executor, JOHN BOWRING.
Volume One
NEW YORK
RUSSELL & RUSSELL · INC
1962
Edition: current; Page: [ii]

THE WORKS OF JEREMY BENTHAM

Reproduced from the Bowring Edition of 1838-1843

Library of Congress Catalog Number 62—13987

printed in the united states of america

Edition: current; Page: [iii]

CONTENTS OF VOLUME FIRST.

  • INTRODUCTION TO THE STUDY OF THE WORKS OF JEREMY BENTHAM.
  • AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION, . . . . . . . . . . . . . . Page 1
  • ESSAY ON THE PROMULGATION OF LAWS, AND THE REASONS THEREOF; WITH SPECIMEN OF A PENAL CODE, . . . . . . 155
  • ESSAY ON THE INFLUENCE OF TIME AND PLACE IN MATTERS OF LEGISLATION, . . . . . . . . . . . . 169
  • A TABLE OF THE SPRINGS OF ACTION: Showing the several Species of Pleasures and Pains of which Man’s Nature is susceptible: together with the several species of Interests, Desires, and Motives respectively corresponding to them: and the several sets of Appellatives, Neutral, Eulogistic, and Dyslogistic, by which each species of Motive is wont to be designated: to which are added, Explanatory Notes and Observations, indicative of the applications of which the matter of this Table is susceptible, in the character of a Basis or Foundation, of and for the Art and Science of Morals, otherwise termed Ethics, whether Private or Public alias Politics—(including Legislation)—Theoretical or Practical alias Deontology—Exegetical alias Expository (which coincides mostly with Theoretical,) or Censorial, which coincides mostly with Deontology: also of and for Psychology, in so far as concerns Ethics, and History (including Biography) in so far as considered in an Ethical point of view, . . . . . . . . . . . . 195
  • A FRAGMENT ON GOVERNMENT; OR A COMMENT ON THE COMMENTARIES: Being an Examination of what is delivered on the subject of Government in general, in the Introduction to Sir William Blackstone’s Commentaries. With a Preface, in which is given a Critique on the Work at large, . . . . . 221
  • PRINCIPLES OF THE CIVIL CODE, . . . . . . . . . 297
  • PRINCIPLES OF PENAL LAW:—Including, I. Political Remedies for the Evil of Offences. II. Rationale of Punishment, with Appendix on Death Punishments. III. Indirect Methods of Preventing Crimes, . . . . . . . 365
Edition: current; Page: [iv]

ERRATA—VOL. I.

Page Col. Line
289 2 44 for repeating put repealing.
341 1 58 for Burlamqui put Burlamaqui.
428 1 39 for patron put pattern.
458 1 1 for dignitate put dignitati.
489 for § 8 put § 9.
Edition: current; Page: [v]

GENERAL PREFACE.

The Publisher of the first complete Edition of Bentham’s Works thinks a brief prefatory explanation indispensable, in order that the reader may know what he has to look for. The literary executor of “the master,” Dr. Bowring, being abroad, and others well qualified declining to undertake the task, it has devolved on the writer of the following pages, who sets to work on a some what hasty summons.

The science of legislation, and of morals as bearing on legislation, was invented by Bentham: he laid the foundations, and hitherto no one has carried the superstructure higher than he did. In order to appreciate what Bentham has accomplished—to indicate to the reader what he may expect to find in Bentham’s writings,—it will be necessary to glance at—first, the state in which he found legislative science and public opinion; second, the development of his opinions, the objects and character of the works he produced, third, the effect his writings have already produced, and the farther effect they are in the act of producing.

I. Of the state in which Bentham found legislative science and public opinion.

These two topics are inseparable. Abstract principles, and that floating mass of incoherent opinions caught up and relinquished at random, which has hitherto formed the moral creed and rule of the masses, re-act upon each other. On the one hand, conclusions of the philosopher are adopted by many who are incapable or unwilling to appreciate their reasons: on the other, the opinions of men direct their actions, their actions constitute the events of society, and these events suggest the reflections out of which the philosopher elaborates his principles.

The events of European history had, about the time of Bentham’s birth, established several true and important opinions as the political creed of all reflecting men: although the common principle, upon which the whole of them ultimately rested, not having been discovered, their necessary connexion was not felt—their exact import and extent was not clearly seen—and their important consequences were almost entirely overlooked.

The early religious reformers had devisted into the error of endeavouring to substitute one class of dogmatic opinions, sanctioned by law, for another. The stubbornness of contending sectarians had rendered in many cases a rude rule-of-thumb toleration unavoidable, but wherever a sufficient majority were of one way of thinking, formal creeds, sanctioned by legislative authority, were the order of the day. Again, the encroachments of Charles I. had led men to inquire into the basis on which the kingly power rested. The Long Parliament, finding the claims advanced by the King incompatible with security of person and property for the subject, overturned the throne: and the people, finding an irresponsible body of legislators equally dangerous, overturned the Long Parliament. The first experiment having failed, kings were restored, and were not long of driving the people to seek some new bulwark against their attacks. To soothe the superstitious veneration entertained for traditional establishments, the fiction of an original compact between the subject and sovereign was devised, and under its shelter, James II. was driven from the throne, and William III. seated in his place. But for one circumstance, the Bill of Rights would have transformed the “compact” from a fiction into a reality. That circumstance was, that the Revolution of 1688 transferred the excess of power from the king, not to the people, but to the aristocracy. The king dwindled to a puppet, moved by the largest faction of that privileged caste. A wider scope was given to aristocratical ambition; the British nobility split into two hereditary parties, which assumed the name of Whigs and Tories; and the structure of the representative body was admirably Edition: current; Page: [v] calculated for enabling whichever of them obtained the ascendency, to work its will with a House of Commons, which, seemingly the representative of the people, was in reality the hired servant of the aristocracy. The American revolution put an end to this delusion. The sturdy fathers of the Transatlantic Republic insisted upon the reality of what the mother country had been contented to enjoy in name only—the practical application of the doctrine that “taxation without representation is tyranny.” Thus successively did these important truths come to be recognised:—That no religious opinions, honestly entertained, can be criminal; that power is vested in the chief magistrate by the people, and for their benefit alone, and may be resumed if abused; that the only safeguard for the persons and property of the citizens consists in their retaining the power of enacting laws and imposing taxes in the hands of representatives freely chosen by themselves. These principles, empirically discovered, were vaguely enough understood. To them came in time to be added some dim perception of the truths, that where men were left most free to form their own religious opinions, the intellect assumed a hardier and more energetic character—and that where industry was least trammeled, the comfort of individuals, and the general wealth of the nation, most abounded. As yet, however, no man had arisen of sufficient clearness and grasp of intellect to detect the one-pervading principle, of which all these theorems were only diversified manifestations.

Where the teachers were only half-learned, much wisdom could not be anticipated from the taught. The opinions of all men are composed partly of what they have come to know by their own exertions, partly of what they have received upon trust from the tradition of others. With the bulk of mankind, the latter ingredient preponderates to a great extent. Indolence makes them rest contented with what they are told. Indolence does more; it is annoyed by contradictory information startling it from its repose, and regards the occasion of the disturbance with ill-will. Thus interest is brought into play, and many an active spirit is forced to remain torpid as his neighbours, for fear of rendering them unfriendly, and incurring, at the very least, a suspension of their good offices. This is the secret of men’s attachment to “things as they are:” herein consists the strength of “existing establishments.” The mass of society in Great Britain, during the latter half of last century, could learn nothing precise or practical in politics from men whose views were, as a whole, vague and incoherent. Men’s natural vis inertiæ made them acquiesce in what was taught them, notwithstanding the ill-concealed incongruity of its parts. And the whole fabric of British institutions was of a nature to render them friendly to the substitution of words for things. Nothing seemed the result of pre-disposition—every thing seemed, as it were, to have grown up. The constitution was a congeries of make-shifts. If a man remarked that the House of Commons did not represent the people, he was soothed with the phrase “virtual representation.” If he complained of the voluminous, contradictory, and inaccessible nature of the law, he was silenced by grave panegyrics on the wisdom of the successive occupants of the Bench, who, by virtue of legal “fictions,” had, as circumstances emerged, built up an artificial system of law, far superior to what any legislature could have devised. Civil life was one great and continuous practical lesson in the art of saying one thing and meaning another. The allied Church and the Universities completed the doctrine of insincerity. The most awful mysteries of religion were prostituted to a ceremony, compliance with which entitled to office: at the national seats of learning, young men were made to commence what was understood to be their search after truth, by professing to believe, and promising always to believe, what they were incapable of understanding.

Such paltering with public opinion could not fail to re-act dangerously on public morals. Men unfurnished with sound principles of action were tossed backwards and forwards between empty formulas of words. In books they might find professions of elevated sentiment; in active life, they found corruption everywhere. Walpole and Doddington systematized corruption: Gerrard Hamilton taught the art of veiling ugly practices with fair words. Lawyers trained in the school of fiction—divines, perverted from the beginning, by being taught to profess belief before they began to inquire, and thoroughly corrupted by rich pluralities, the reward of sycophancy and political intrigue, lent their aid to cement the fabric. There wanted not Edition: current; Page: [vii] counteracting instruments of good—the lofty sentiments of the poets,—the holy beauty of that book on which the church professed to stand,—the sense of evils flowing from a bad system,—the contagious example of America. But these accidental influences were, to the compact frame-work of the constitution, as a horde of guerillas to the organization of one of Napoleon’s armies. The better spirits felt, rather than saw, the evils of society. They attempted to enforce their own views by the sophistical forms of reasoning devised by their antagonists, and were necessarily defeated. When the friends of parliamentary reform sought to make good their point by arguing that their system of representation was the real established one, and the other only a usurpation, the reason revolted against such perversion of fact. The struggle between good principles and evil practices seemed only to have made bad worse: virtue began to assume the aspect of a profitless disturber of the peace. But, as the German proverb says, “When the tale of bricks is doubled, Moses is near.” It was indeed high time that our Moses should make his appearance.

II. Of the development of Bentham’s opinions, the objects and character of the works he produced.

We are inclined to think that it was a fortunate thing for Bentham, that, connected as he was with the aristocracy, his connexions did not belong to the section of it which has affected to patronize liberal principles. If they had, he might, notwithstanding his purely intellectual cast of character, have, like so many others, commenced with being encouraged to make a display of fine sentiments, have proceeded to be gradually absorbed into the vortex of low personal struggles for office, under the delusion that he was enacting the part of a patriot, and ended by being as hollow and heartless a prating Whig as any of his compeers. Luckily for him, he was of a right Tory stock, and nurtured in the loyal and orthodox University of Oxford. His earlier studies rather inclined him to persevere in the family faith. “The writings of the honest but prejudiced Earl of Clarendon,” he says in a note to his ‘Fragment on Government,’ “to whose integrity nothing was wanting, and to whose wisdom little but the fortune of living a little later, and the contagion of a monkish atmosphere: these and other concurrent causes had listed my infant affections on the side of despotism. The genius of the place I dwelt in, the authority of the State, the voice of the Church in her solemn offices: all these taught me to call Charles a martyr.” But his disposition did not fit him for an intriguing partisan, and it is the nature of Toryism to favour, in all like him, devotion to any pursuits likely to keep them from criticising public affairs. Speaking of a considerably later period of his life, he says—“Party, I belonged to none: I knew not what sort of a thing party was.” But however little calculated by his dispositions to be emmeshed in party contests, there was that in his nature which would not allow him to remain uninfluenced by the political questions which were then beginning to convulse the abysses of society as with a moral earthquake.

The predominant characteristics of Bentham’s mind were:—sincerity, or love of truth; benevolence, or an ever active desire to contribute to the happiness of others; investigation, or a reckless craving which could only be satisfied by thoroughly examining whatever attracted his attention in all its bearings. If we add, that what phrenologists would call the faculties of order or classification, and of constructiveness, were in him peculiarly active, we have the key at once to the origin of his opinions, and their progressive development. Circumstances seem to have determined the field he selected for the exertion of those faculties, but it was the almost unparalleled power and energy of his mind that enabled him to cultivate that field to so much purpose.

The circumstance that seems to have given the first impulse to the inquiries which engrossed his future life, was the dispute between Great Britain and her colonies, which, during his law-studentship, was the universal topic of conversation. His inquiring turn of mind made him anxious to form such an opinion of the merits of the controversy as would be satisfactory to himself. His original leanings, we have seen, were towards monarchy: the shallow arguments of the then advocates of liberal opinions for a while confirmed him in his error. “Conversing with lawyers,” he says, in the passage from which we have already quoted, “I found them full of the virtues of their Original Contract, as a recipe of sovereign efficacy Edition: current; Page: [viii] for reconciling the accidental necessity of resistance with the general duty of submission. This drug of theirs they administered to me to calm my scruples; but my unpractised stomach revolted against their opiate. I bid them open to me that page of history in which the solemnization of this important contract was recorded. They shrunk from this challenge; nor could they, when thus pressed, do otherwise than our Author (Blackstone) has done,—confess the whole to be a fiction. This, methought, looked ill. It seemed to be the acknowledgment of a bad cause, the bringing a fiction to support it.” He elsewhere says, in reference to the same subject—“As to the American controversy, the badness of the only arguments employed against bad government, whether on the one side of the water or the other, had left me sticking to it.” But the equal want of sound argument on the servile side of the question prevented him from long adhering to it. In his uncertainty he met with Hume’s Essays, and found in them what he sought—an unassailable central principle, from which he might sally on his quests after truth, and to which he might retire to recruit his powers by repose whenever he was baffled. This was the principle of utility, or, as he subsequently expressed it with more precision, the doctrine that the only test of the goodness of moral precepts or legislative enactments, is their tendency to promote the greatest possible happiness of the greatest possible number. Armed with this discovery, he applied it on all occasions, thereby at once directing himself to the truth, and establishing, by a multiplicity of experiments, the trustworthiness of his test.

Bentham was guided to the recognition of this all-pervading principle at an early period of his career, by his strictly logical turn of mind, which saw through the empty veil of words substituted for things, and by his instinctive truthfulness of disposition. The profession, to which choice or the will of his guardians devoted him, the law, furnished ample materials for stimulating these propensities, and further developing his opinions. He has told us, that while attending in the Court of King’s Bench during the years of his studentship, the chief objects of his admiration, and in part of his emulation, were Lord Mansfield and Mr. Dunning. Even in his advanced years, he recurred to his feelings towards the former in glowing language:—“From the first morning on which I took my seat on one of the hired boards that slid from under the officers’ seats in the area of the King’s Bench, at the head of the gods of my idolatry had sitten the Lord Chief-Justice. Days and weeks together have I made my morning pilgrimage to the chief seat of the living idol, with a devotion no less ardent and longing, and somewhat less irrational, than if it had been a dead one.” Of Dunning he says—“If in my style, appropriate aptitude in any shape or degree is discernible, it is probably in no small degree to Dunning that it is due. Precision, correctness, clearness, guardedness in expression—closeness in argumentation—seemed to me his characteristic features: in these, combined with force, he seemed to me altogether without a rival.**** At the Bar, of all men I had ever heard, he had been the one whom I had heard with the greatest pleasure and attention,—the one, whose style in speaking, it seemed to me, that on all occasions it would be matter of the highest satisfaction to me to be able to imitate.” Mansfield was the first who lent to the decisions of English courts the liberal views of the man of the world, and the graceful systematic coherence of the man of literary tastes. Dunning was nervous and perspicuous. They contributed by their example to cultivate that love of systematic arrangement, and clear unequivocal expression, to which Bentham was by his nature predisposed. At the same time, more minute acquaintance with the law convinced him, that, as he has forcibly expresssd himself in the Introduction to the Rationale of Judicial Evidence—“The incomprehensibility of the law, a circumstance which, if the law were wise and rational, would be the greatest of all abuses, is the very remedy, which, in its present state, preserves society from utter dissolution; and that if rogues did but know all the pains that the law has taken for their benefit, honest men would have nothing left they could call their own.” His sincerity was offended to find fiction the great staple of law. His benevolence was hurt by seeing the necessary tendency of the cumbrous and unintelligible system, by delay and accumulation of expense to destroy where it was meant to defend. His faculty of invention was stimulated to devise substitutes for the mischievous system of law and judicial organization which he found existing. To this Edition: current; Page: [ix] task he devoted his future life. This was thenceforth his business in the world, and all his investigations radiate from this as from a centre—are subordinate and auxiliary to this end. If we keep this fact steadily in view, many shallow objections to passages in his works are dissipated at once: the cavillers have mistaken practical applications of principle for abstract enunciations of principle.

We are now in condition, starting from this point, to trace the progressive development of Bentham’s opinions, as manifested in his writings. There is, however, one preliminary to be first disposed of: this seems to be the most appropriate place for dissipating the absurd notion that he was a mere theorist. There never was a mind less disposed to wander in vague speculation: there never was a more thoroughly and essentially practical mind. Two instances may be given in confirmation of our assertion, that he was what is conventionally termed “a man of business,” in addition to the fact of his admirable management of his own domestic affairs. About the date of his first publication, having paid a visit to Paris, he there contracted an intimacy with a painter, who was in search of an engraver for a portrait of Lord Mansfield. Bentham was employed to draw the articles of agreement between the two artists, and this document having accidentally come into the hands of Lord Mansfield, elicited from him expressions of unqualified approbation, which (the transaction being quite in the ordinary track of business) could only be occasioned by the style of execution. Again: the late Lord Lansdowne, a shrewd man of the world, gave a pretty unequivocal proof of the esteem in which he held Bentham’s worldly wisdom, when he recommended him to the dowager Lady Ashburton, for a second husband, on the plea that he would make an excellent guardian for her son, a minor. But indeed, the subjects of Bentham’s writings, and his mode of handling them, suffice to show the practical turn of his mind. In order to stimulate him to exertion, it was necessary that something to be done be at least the ultimate object: and in working to this end, not the slightest item that might throw an obstacle in the way of the practical application of his principles was ever overlooked; while every new mechanical invention that seemed to promise additional facility, was seized upon the moment it appeared.

Bentham’s first publication was his “Fragment upon Government,”—an examination of what is delivered on the subject of government in general, in the Introduction to Sir William Blackstone’s Commentaries. It was published in 1776 (ten years after the author’s entry at Lincoln’s-inn,) and is interesting, as containing the germ of his whole system. He broadly avows his universal test—his fundamental principle of utility. He shows no mercy to the well-rounded periods of Blackstone, exposing with the most ruthless logic their ostentatious wrapping up of no meaning in sounding language. The first object of the treatise is to show, that correspondent to discovery and improvement in the natural world is reformation in the moral. With an energy unsurpassed in the works of his maturest genius, he vindicates adherence to stern simple truth on all occasions, laying down the principle as applicable to the defender of abuses, that “every false and sophistical reason that he contributes to circulate, he is himself chargeable with.” He makes wild work with the figures of speech employed to plaster up the chinks and crannies of “Matchless Constitution.” He tosses about and disperses “checks and balances,” “blending of aristocracy, democracy, and monarchy, into a whole, combining all their advantages, and free from their defects,” and the like. He paints the social structure of Britain as it existed, and in a great measure still exists, not in the dainty phrases of legal fiction. The work is critical: it shows the hollowness of what had been hitherto taught. It leads men to look about for a better teacher, and heralds his coming. It clears away the rubbish, that the true builder may commence operations. The whole tone of the work corroborates what we remarked above, regarding law reform being the starting-post of all Bentham’s expeditions of discovery. It is legal reform alone that he seems to contemplate: if not wedded to monarchy, his divorce from it is more to be inferred than seen. Further investigations were necessary to impress upon his mind the full importance of democratical institutions. His democratic principles were not an evanescent sentiment caught from the perusal of classical authors; they were the mature conviction of his mind. After ranging through all possible forms of government, he reposed on the democratic representative at last as the only one that suited Edition: current; Page: [x] his purpose. It is not, however, in the Fragment upon Government that we must look for this: there he contents himself with exposing the nonsense written by others about the four recognised types of government, and showing its practical inutility.

Bentham’s mind, we have repeatedly observed, was essentially constructive: it could not rest satisfied with negative results. Between 1776 and 1782, his views had become so matured, that he had chalked out for himself a series of publications, which, when complete, would exhaust all that he felt necessary for the accomplishment of his purposes. As the enumeration of these furnishes a chart or outline, within some department or other of which all the labours of his future life may find a place, we give it a place here.

“Part the 1st.—Principles of Legislation in matters of civil, more distinctively termed private distributive, or for shortness sake, distributive law.

“Part the 2d.—Principles of legislation in matters of penal law.

“Part the 3d.—Principles of legislation in matters of procedure: uniting in one view the criminal and civil branches, between which no line can be drawn but a very indistinct one, and that continually liable to variation.

“Part the 4th.—Principles of legislation in matters of reward.

“Part the 5th.—Principles of legislation in matters of public distributive, more concisely, as well as familiarly, termed constitutional law.

“Part the 6th.—Principles of legislation in matters of political tactics: or the art of maintaining order in the proceedings of public assemblies, so as to direct them to the end of their institution; viz. by a system of rules, which are to the constitutional branch, in some respects, what the law of procedure is to the civil and the penal.

“Part the 7th.—Principles of legislation in matters betwixt nation and nation, or, to use a new, though not inexpressive appellation, in matters of international law.

“Part the 8th.—Principles of legislation in matters of finance.

“Part the 9th.—Principles of legislation in matters of political economy.

“Part the 10th.—Plan of a body of law, complete in all its branches, considered in respect of its form; in other words, in respect of its method and terminology; including a view of the origination and connexion of the ideas expressed by the short list of terms, the exposition of which contains all that can be said with propriety to belong to the head of general jurisprudence. [Such,” he adds in a note, “as obligation, right, power, possession, title, exemption, immunity, franchise, privilege, nullity, validity, and the like.”]

A little reflection will suffice to show that these heads may be made to embrace every topic with which the legislator can have anything to do. In filling up a map of the territory, the outline of which is here sketched, he spent the whole of the rest of his life. As he himself foresaw, the order in which the “parts” are arranged, although the “best fitted for apprehension,” was not that in which such of them as were published during his life ultimately made their appearance,—the succession of his works having been influenced in a great measure by “collateral and temporary considerations.” In the mass of writers, the faculty of language overmasters every other: they are never quite aware of the coherence or incoherence of their dim notions, until they see them staring them in the face from the paper. They work up a book rapidly: and can always show in tangible manuscripts the fruits of their hours of literary labour. With Bentham it was otherwise: language was with him a very subordinate concern—the mere vehicle for conveying his ideas. With the class of writers we have adverted to, arrangement and distribution is a mere matter of external form: it exists only in the visible signs of books, chapters, and volumes. With Bentham, on the other hand, arrangement was essentially a part of his subject: with him the outward symbols of arrangement flowed necessarily from his mode of thought. The whole field of his exertions lay distinctly before him: when he seemed to expend himself upon the minutest details of one corner of it, this was not because he overlooked the rest, or attributed an undue prominence to the subject of the moment, but because a man can only do one thing at a time. He laboured incessantly—seeking to give the last finish to every part of his work: conscious that when the whole was finished, each part would stand in its due relation to the rest, and thus create harmony of proportions. When he found the stone of a right size and texture, he did not waste time Edition: current; Page: [xi] in having it cut, if the building was not far enough advanced to admit of its being laid. He knew where it was, and that he could fit it for use when he required it. The great architect, with his plans of the building as distinct in his mind’s eye as if it were finished, collected his materials, and arranged them so that each should be at hand when wanted. The details were executed by his assistants, under his superintendence, he lending at times a finishing touch. To the uninstructed, the works published during his life may seem fragmentary—his collections may seem a chaos; but he who, taking the above enumeration of projected works for a guide, reads himself into Bentham’s way of thinking, will soon come to see, that in the works published during his life, and his MS. remains now about to appear for the first time, the task of his life has been sufficiently accomplished.

It is impossible, in the limits we have prescribed to ourselves, to recapitulate every work: we must be contented to indicate them by classes. The books which Bentham prepared for the press himself, or allowed to be prepared from his MSS. by others, are of three kinds. All of them were published under the impression that something in the temper of the public mind at the moment, or in the tendency of public events, was favourable to the design of attracting attention to that particular part of his system. This is their common feature: the varieties are:—first, Complete treatises on one or other of the heads indicated in his outline; second, Preliminary investigations of a metaphysical character, intended to elucidate and defend the doctrines of his practical or constructive works; third, Polemical tracts on subjects attracting public attention, extracted by friends from his MSS., or hastily dictated by himself.

To the first class belong the volume of his “Constitutional Code” published in 1830; his Principles of Civil and Penal Law; his “Panopticon;” a little tract entitled “Plan for a General Register;” “Political Tactics;” and some others. In these works, the incessant aim of the Author is to suggest such institutions and modes of procedure as shall conduce to utility, i. e. to insuring “the greatest possible happiness of the greatest number.” His main instrument for obtaining this end, is the establishment of responsibility, on the part of those to whom the power of acting for society is intrusted, to the whole of that society. This instrument is framed of:—The attribution of the elective power to every individual (Universal Suffrage;) the renewal of the tenure of delegated power, at brief and regularly recurring intervals (Annual Parliaments;) and the removal of every external controul of the voter’s individual opinion (secret voting, or vote by Ballot.) His subordinate means are various. The most important are his precautions for insuring the utmost possible publicity to legislative enactments, and the utmost possible precision and explicitness in their expression. Next in order comes his plan for securing cheap government, in insisting upon which, he draws a most important distinction between what is cheap and what is merely low-priced. For further particulars, his works themselves must be consulted: in them will be found the most extraordinary manifestations of intellectual clear-sightedness, and fertility of invention, combined with an unsurpassed power of lucid exposition.

The most important works of the second class are the “Introduction to the Principles of Morals and Legislation;” the “Rationale of Judicial Evidence;” and the “Rationales of Reward and Punishment.” The manner in which the first-mentioned of these was first suggested to its Author’s mind, as stated in the preface, explains the nature of the whole. It had at first, he tells us, “no other destination than that of serving as an introduction to a plan of a penal code, in terminis, designed to follow in the same volume. The body of the work had received completion according to the then present extent of the Author’s views, when, in the investigation of some flaws he had discovered, he found himself unexpectedly entangled in an unsuspected corner of the metaphysical maze.” He was therefore obliged to dig into the subsoil of metaphysics, in order to lay his foundation secure; but upon this task, not the most congenial to a mind less speculative than constructive, he never spent more time than was absolutely unavoidable. He never ventured into the dim chaos of metaphysics, out of sight of the illuminated world of practice; and the moment his object was accomplished, he winged his glad way back. His constant subordination of speculative inquiry to the practical end he had in view in undertaking it, gave occasion at times to his presenting Edition: current; Page: [xii] general truths in a shape which has led sciolists, who found it easier to cavil at forms than to investigate the reason why they were adopted, to misapprehend or misinterpret his doctrines. To avoid misapprehension of Bentham’s metaphysical tenets, it is necessary to keep in view, that they are never advanced except for the purpose of establishing or throwing light upon the doctrines of practical legislation. Viewed in this manner, no safer guides can be found to moral speculation than his “Introduction,” and the “Rationales of Reward and Punishment;” as we will seek in vain elsewhere for a substitute to his “Rationale of Judicial Evidence,” as a treatise on the art of expiscating truth.

The third class embraces an almost countless and miscellaneous collection of treatises. The earliest of these is his “Defence of Usury.” In the preface to his “Fragment,” he had hinted at the utility of a natural classification of offences, in the character of a test for distinguishing spurious from genuine ones. He had experienced insuperable difficulty in the attempt to find a place in such a system for the imaginary offence of usury. About the time that he was thus perplexed, the usury laws became a subject of discussion, and, by publishing his treatise on them, he at once did good service in a controversy immediately at issue, and enabled himself at a later period to point to that tract as a specimen of the fruits of systematic research into the principles of legislation. At a period long subsequent, he allowed to be published in the same way a work of more varied interest,—the selection from his MSS. entitled “The Book of Fallacies.” This manual of political logic is at once an enduring proof of the valuable results of his sincere and systematic habit of thought, and a practical exercise to all who study it in honest and healthy thinking. In the same spirit of seeking occasion to demonstrate the value of his abstract researches, by applications of them to the practical questions of the day, he addressed in 1799 to the National Assembly, a “Draught of a Code for the organization of the Judicial Establishment in France;” and in 1831, his “Letter to his Fellow-citizens of France on Senates and Second Legislative Assemblies.” To the same intention we owe his “Petitions for Justice and Codification;” his “Radical Reform Bill,” his “Plan of Parliamentary Reform, in the form of a Catechism, with Reasons for each article;” his Defences of Economy against Burke and Rose; his “Boa-Constrictor, or Helluo Curiarum;” his “Chrestomathia—explanatory of a proposed school for the extension of the new system of instruction (Lancaster’s) to the higher branches of education;” his “Observations on Mr. Secretary Peel’s Speech;” his “Indications respecting Lord Eldon;” and many others. To this class also belong his various tabular works,—“Springs of Action,” “Delay and Complication Tables,” &c. These are valuable, as bringing under the eye at one glance the results of his inquiries, and impressing them upon the memory. None but the man who had so completely exhausted his subject, could have furnished materials for these: but who would à priori expect that such a mind would stoop to the drudgery of compiling them? In this, as much as in any act of Bentham’s life, we recognise the intensity of his benevolence. He thought no labour unworthy of him, which could produce practical benefit. His soul, which, as Wordsworth has beautifully said of another great reformer, “was like a star, and dwelt apart,” like him too, “the lowliest duties on itself did lay.” These formal works are eminently useful; but the others enumerated under the present head are also interesting and amusing. In these minor works, the reader unacquainted with Bentham cannot fail to recognise a buoyancy and vigour of intellect, a closeness of ratiocination, a play of humorous imagination, such as must lead him to wish to know more about the author. The student of Bentham’s systematic works will find his principles placed in new and startling lights, their practical utility corroborated by illustration; and will find what was at first a mere languid assent of the intellect, shaken into a healthy and pervading spring of action.

Here seems the appropriate place for offering a few remarks on Bentham’s style, regarding which the most absurd misrepresentations have been propagated. The staple of his composition is the purest and most nervous English. The occasional peculiarities which have been represented as pervading it are referable to two different sources. First, in his systematic writings he has found it necessary to use technical terms, or terms of art. In the language of ordinary conversation, or of writings the principal object of which is to amuse, there is unavoidably a considerable degree of vagueness. One man conceives, and consequently Edition: current; Page: [xiii] employs a word or phrase in a more restricted, another in a more extensive sense. The word or phrase passing into common use, is employed sometimes in the one and sometimes in the other. This is one of the most fertile sources of fallacious or false reasoning: an assertion is made, using the word or phrase in the restricted sense; an inference is drawn, using it in the more extensive. All writers on scientific subjects find it necessary in consequence (for a man may unconsciously play off this sleight of hand upon himself,) to use the words of conversational language with a precise and predetermined meaning, or in extreme cases to substitute others for them. The superior accuracy of Bentham’s mind may have made him do this more frequently than lesser reasoners: but he never introduces a term of art without careful and repeated explanations. The most unlearned reader will find a dictionary of all these unusual terms (and after all, they form a small part of his vocabulary) in Bentham’s own writings; and when he has mastered them, he will find that the exercise has been an invaluable practical lesson in accurate habits of thinking. The other source of some occasional peculiarities in Bentham’s style relates more to the phraseology, as the preceding referred more to the words. Many—and these not the least valuable—of his occasional publications, are, properly speaking, nothing more than notes or heads of discourse hastily jotted down or dictated. In these he was accustomed to give himself a greater latitude in abrupt and startling transitions, or in the introduction of unwonted terms of expression—in heightening the grotesque representations in which he sometimes delighted to indulge, by corresponding language.

There is a raciness about the rough smack of these off-hand sketches, which some prefer to the most elaborate finish. Who, with any taste, could wish to see Bentham’s letter to his fellow-citizens of France on senates, &c. assume a smoother or more conventional form than that which it at present bears? We repeat, however, that both classes of peculiarities are of comparatively rare occurrence in Bentham’s writings. His works are not flimsy novels, but substantial hard-headed pieces of reasoning—some of them of the lengthiest. In order to understand them, men must pay attention to what they read: and this is all. There is nothing in them that places them beyond the apprehension of average understanding and average industry. After all, the information acquired by reading is not the most beneficial result of the employment: it is the strengthening of the intellectual powers by the exercise.

III. Of the effect which Bentham’s writings have already produced, and the farther effect they are in the act of producing.

In tracing the history of the reception which Bentham’s works have met with, we may pass over with a brief allusion, the cavils of what a German would call the belle-lettristen. Of this class, the Edinburgh Reviewers may be considered as the most favourable specimen. These cavils proceeded from men who had begun to write before they began to think—who brought to their task vivacity, sentiment, wit, taste (of a certain quality)—everything, in short, but clear and comprehensive views, and competent knowledge. They would not take the trouble to understand Bentham, and consequently could not appreciate him. Their articles were amusing at the time; but, like all old jokes, have already become insipid. Their praise could not have hastened the day of Bentham’s acceptation; their blame has not been able to retard it. They are already of the things that have been and are forgotten: to estimate their character, or scrutinize their motives, would be mere waste of time.

It is interesting to trace the coldness with which original views (and Bentham’s in their totality were eminently such) are at first received, and the channels by which they insensibly find their way into general acceptation.

The power and superiority of the new writer was acknowledged at once upon the appearance of his then anonymous “Fragment on Government.” Lord Mansfield perused it with eagerness, warmly praising all those passages in which the verbose superficiality of Blackstone was crushed and dissipated. The Fragment became a topic of discussion at Dr. Johnson’s club, and the Dictator himself attributed it to Dunning, then at the height of his reputation. Other attributions of paternity, equally flattering to the young author, were made by others. The Edinburgh Review condescended long after to praise the eloquence and logic of the “Defence of Usury.” But with praise of the Author’s talents there was an end. The subject-many Edition: current; Page: [xiv] knew not what to think of the new doctrines; and the ruling few knew too well what to think of them. The Fragment and the Defence of Usury were short, and in some measure rhetorical: they were read. But the larger systematic treatises were “caviare to the multitude.” The Solicitor-General Wedderburne shook his head at the mention of the principle of utility, and said it was “a dangerous one.” It was indeed, for him and his tribe.

Amid this general coldness, Bentham persevered: he knew what he had undertaken to perform, and the work itself was to him a source of happiness. Nor was he at any time entirely devoid of some who acknowledged the justice of his views. John Lind adopted a short paper, in which Bentham had stated his views of the colonial question, as the nucleus of his “Remarks on the Acts of the Thirteenth Parliament;” and wrote in defence of the “Fragment” when it was assailed in the Morning Chronicle. Through Lind, who was agent for King Stanislaus of Poland, in London, Bentham’s connexion with the Polish patriots seems to have commenced. To this we are indebted for his correspondence with Prince Adam Czartoriski in 1815, relative to the code expected at the hands of the Emperor Alexander; as also for the orders given by Alexander himself to consult Bentham, relative to a Russian code then in the course of preparation.

Not long after the conversion of John Lind, Bentham obtained in Romilly a convert of higher qualities, both intellectual and moral. Romilly regarded Bentham “with the almost filial reverence of a pupil for his tutor:” he followed out his principles to a practical application, in his labours for the reform of the criminal law, and in his collection of the forms of proceeding in the House of Commons.

Dumont was introduced to Bentham by Romilly. Even in the first fever heat of the revolution, Dumont endeavoured to familiarize the French legislators with the principles of Bentham, with which at that time he was acquainted chiefly through the medium of Romilly’s mind. Several times he interested Mirabeau in some of them, but that was too restless a period for preaching order. It seems to have been Dumont who induced Bentham to offer his plan of a penal code to the National Assembly. But in 1802, Dumont adopted a more efficient method of disseminating the principles of his teacher. He published in that year a French redaction of the Principles of Legislation, which he followed up from time to time, by the publication of such compilations from the MSS. of Bentham, as amounted in time to a pretty complete body of our author’s systematic writings,—the only one that, previous to the present publication, has been issued from the press. It is almost exclusively through this work that Europe has obtained a knowledge of the principles of Bentham. Even the English public have hitherto possessed some of his most important treatises in the form of translations from the French of Dumont. In 1818, this model of redacteurs engaged the legislative committee of his parent state of Geneva in a correspondence with Bentham on the subject of a penal code. So early as 1805, he superintended the publication of a translation of such works of Bentham as he had at that time published into Russian.

By means of the publications of Dumont, and also of the personal exertions of many others of Bentham’s disciples, his principles were made known to the most illustrious jurists and legislators of Europe and America. A few facts will suffice to show how deeply his principles have struck root. In the Code Napoleon, we can trace somewhat of his arrangement, in the division into general and special codes. In the Constitutions of Spain and Portugal, and of most of the Spanish States of South America, we find still more unequivocal traces of them. Applications for advice and assistance were made to him in the formation of constitutional and judicial codes, from the leading patriots of Spain, Portugal, Greece, and, as we have seen, from the authorities of Poland and Russia. The Liberals of Italy have repeatedly expressed their admiration of his works.

“A prophet hath no honour in his own land.” So it seemed for a time likely to prove with Bentham. But better days were at hand. Sir Francis Burdett, in 1818, when at the zenith of his patriotism, applied to Bentham for assistance in framing a series of resolutions, embracing the principles of radical reform, to be submitted to the House of Commons. This was the first time that the principles of Bentham were avowedly and in any detail promulgated in that House. Little was gained in the way of votes: but the principles themselves were from that time inquired after by Edition: current; Page: [xv] many in whose eyes the circumstance of their having been mentioned in parliament was necessary to render them worthy of notice. On several other occasions, both in parliament and out of it, Sir Francis was honoured by being made the speaking-trumpet through which Bentham’s voice found its way to the public. Previous to the commencement of Sir Francis’s acquaintance with Bentham, Lord (then Mr.) Brougham had been a frequent visiter. That energetic, indefatigable, and mercurial genius—incapable of working without éclat, and too often satisfied to rest contented with éclat—was incapable by nature of adopting Bentham’s views as a whole. But he was useful by frequently taking up an isolated point which suited his temporary purpose, and impressing it on the public, with his intense and glowing energy of language, and variety of felicitous illustration. Many germs of Benthamism had in like manner been quickly carried off by less prominent characters, and deposited unnoticed in the public mind, there to strike root. He co-operated with the enemies of slavery in every land, with the humanizers of the penal code, with the advocates of universal education. In his intellectual armoury were stored up implements fitted for the purposes of them all, and every man was welcome to take and use. Any person who reflects will be astonished, not only at the immense number of Bentham’s opinions which have insensibly obtained hold of the public mind, although, wanting the great principle which binds them together, they continue fragmentary and unproductive—but also at the certainty with which we can in so many cases trace them, though by a circuitous route, to him as their author. This mass of latent Benthamism, floating in the social atmosphere, has been increased and rendered positive by the exertions of the Westminster Review, a work set on foot by the immediate exertions of the philosopher himself, and little else than a medium for extending and popularizing his tenets. It is wonderful how, by means of these combined influences, so many people now-a-days write and talk Benthamism without seeming to be aware of it.

More efficient agents in the realization of his principles, are a number of young men, just growing up into active employment, who have been trained in his school. The ostensible honours of legislation and government are worn by others, but the real working men in many public offices, and in almost all commissions of any consequence, have been trained in the school of Bentham. Not only is the public mind rapidly ripening to a conviction of the advantage of throwing off the old hull of our effete institutions: we possess a body of men trained to public business, who sympathise entirely with the growing public opinion. Poets are said to be prophets. Shelley at least was one, when, referring to the popular disturbances of his own day, and the gradual loosening of the hold of old forms of government upon society, he employed the bold figure of speech:—“The cloud of mind is discharging its collected lightnings, and the equilibrium of institutions and opinions is restoring, or about to be restored.” And how much of this has been demonstrably accomplished by the single-handed exertions of one individual, who, little more than half a century ago, published a book, the style of which was praised by a few, and the reasoning disregarded by all but one lawyer, who declared that it contained a dangerous principle!

Need more be said, to recommend the writings of Bentham to a candid and attentive perusal?

The reader will entertain a natural curiosity to know something of the personal habits and domestic life of this great and good man. The materials for his biography—both abundant and interesting—are in the hands of a faithful biographer, Dr. Bowring, whose affectionate veneration for, and intimate acquaintance with Bentham, as well as his eminent accomplishments and extensive literary correspondence, furnish a guarantee that the work will be well executed, and in a right spirit. The Doctor’s Life of Bentham will either be printed uniformly with the present edition, or an abridgment of it, executed by himself, will be prefixed to the first volume. No long time can now elapse before the public shall be put in a condition to form an accurate personal judgment of Bentham.

W. W.
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INTRODUCTION TO THE STUDY OF THE WORKS OF JEREMY BENTHAM;

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ADVERTISEMENT.

The writer of the following pages, believing that he possesses a more intimate knowledge than belongs to the majority of general readers, of the nature of Bentham’s Works, and of the subjects discussed in them, is desirous of presenting the reader with such a cursory view of their more prominent features as may afford a general idea of their scope and character. In the performance of such a task, he will not be expected to support those opinions which coincide with his own, or to controvert those with which he may differ. In wishing his remarks, however, to be considered as of a purely expository nature, he cannot but expect that the very manner of his exposition will, in many cases, betray the partisan. He professes no claim to an impartiality which, in matters coming so closely in contact with the most important interests of the human race, would be justly ranked as an attempt to conceal thoughtlessness and indifference under the mask of candour. The subjects which will have to be mentioned are those on which almost every man has formed an opinion, and on which few can speak without exhibiting a bias. Many opinions will have to be described which, though but coldly received on their first appearance, gained gradual ground in the minds of thinking men, and are now received with so near an approach to unanimity, that it would be affectation to allude to them otherwise than as doctrines which have received the verdict of society in their favour. Even those who may dispute Bentham’s first principles and general theory cannot deny to him the supremacy of the practically operating minds of his age; and in speaking of projects which have passed through the stringent ordeal of being practically adopted by those who were at first opposed to them,* the same Edition: current; Page: [4] sceptical tone of exposition cannot be expected to be employed, which would be applicable to new and untried suggestions. The writer has no intention of attempting to reduce the various subjects treated of by Bentham into a scientific logical arrangement. Part of the space will be occupied with an explanation of the manner in which he treated his subjects—part with a general view of the conclusions which he arrived at. There will be no specific separation of these two departments; and the writer will have succeeded in his object, if it be admitted that he has afforded his readers a few useful, though loose hints, of the nature of the subjects which chiefly occupied Bentham’s attention, and of the manner in which he treated them.

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SECTION I.: BENTHAM’S STYLE AND METHOD OF THINKING.

The general reader is so accustomed to find subjects connected with politics and legislation, treated as the mere topics of passing criticism, that he is not prepared to see them dealt with as matter of elaborate reasoning and accurate analysis. Whoever reads the Works of Bentham should, however, take the task on hand with the condition, not of bestowing on them a mere casual perusal, but of studying them: and it is only in some of his lighter works, or in occasional passages of his more important ones, that those who adopt the former alternative, will find either instruction or amusement. He addressed himself to those who were prepared to bestow on the sciences of Government and Legislation the same rigid intellectual labour, without which no man ever expects to become a proficient in Mathematics or Natural Philosophy. It was his ambition to lay the foundation and to build the superstructure of a new system, by which the departments of thought, which had too long been the playthings of party spirit, passion, and prejudice, should be subjected to the rules of rigid philosophical inquiry; and those who do not come to the perusal of his Works, with minds prepared to follow him through a rigid and systematic train of reasoning, cannot be said to receive him in the capacity in which he presents himself to their notice. Mistaking the method in which the author professes to teach his doctrines, cursory readers have complained of his reiteration of truisms; and they would find the same character in the axioms of Euclid, if they perused them with the same spirit. They have complained that passages are obscure, intricate, and aimless; and they would find the same defect in the Demonstrations of Geometry, if they were hurriedly to read isolated portions of them. The Author’s aim was not to plead the cause of opinions unadmitted, or to render received doctrines more pleasing by ornament and illustration, but to demonstrate. It is only as a demonstrator that he can fairly be appreciated. And those who would judge of the legitimacy of his conclusions, Edition: current; Page: [6] must follow his chain of reasoning link by link. In performing such a task, impatient intellects will perhaps find a precision and minuteness of reasoning, which they would have been content to dispense with, and will see conclusions which they may think might have been leaped to, arrived at by systematic demonstration. But in submitting to this precision of intellectual exertion, they only subject themselves to the mental discipline, without which none of the more abstruse sciences can be mastered. Bentham found the whole field of morals and legislation crowded with fallacies which lurked behind slovenly expressions or incomplete arguments. He worked in perpetual fear of any fallacy finding a hiding-place in his own system; and he examined every word and every idea with scrupulous accuracy. It mattered not how unimportant might be the ground of deception: like a scrupulous merchant’s book-keeper, who hunts out an error about a farthing, he would not allow the most trifling defect in argument to escape correction, because the principle of overlooking any defect is a dangerous one.

It must be admitted that this characteristic,—the keeping in view demonstration in preference to elucidation, is chiefly to be found in his later works. In those which he published early in life, there is more ornament and less of the character of severe logic. His mind was at all times rich in the produce of logical inquiry; but, in his earlier years, it was his practice to give the results of his reasonings, with the arguments generally and popularly stated, illustrated, and adorned by similes and examples; while in his more advanced years, he omitted no portion of the process by which he arrived at his conclusions, and indulged but slightly in rhetorical ornament. Of the habits of thinking, and of composition, which accompanied these distinct methods, some elucidation will be attempted farther on; but in the meantime it may be serviceable to give a few remarks on the peculiarities of the two very distinct styles which Bentham wrote at different periods of his life.

The characteristics of Bentham’s early style were, power, simplicity, and clearness. There was no writer of his age whose style had less of mannerism; and the absence of all peculiarity in that of his earliest work—the Fragment on Government, led those who naturally sought for the author of a work so bold and original among the names known to fame, to attribute it to various great men whose respective styles were strikingly dissimilar. It was not the least pleasing feature in these early works, that while the matter was wonderfully original, there was nothing in the manner of communicating it to startle the most fastidious taste. The Author’s great skill, acquired by untiring study, is exhibited in the facility with which he adapts the common language of our literature to philosophical purposes, for which it had never at any previous time been used. There is never any vagueness in the expression of the most abstruse propositions; and yet they are framed out of a nomenclature which had not been intended for the elucidation of distinctions so subtle. Indeed, it would not be possible to find in the English language a style better adapted, in every respect, to describe in clear terms that which is, of all things with which language has to deal, the least easily made clear—The operations of the mind. The reader who is acquainted with his Introduction to the Principles of Morals and Legislation, his Panopticon, his Defence of Usury, and his other works written in the 18th century, will require no confirmation of this opinion. As an illustration may be acceptable to some readers, the following is taken at random—it is from the Defence of Usury:—

The business of a money-lender, though only among Christians and in Christian times a proscribed profession, has nowhere, nor at any time, been a popular one. Those who have the resolution to sacrifice the present to the future, are natural objects of envy to those who have sacrificed the future to the present. The children who have eaten their cake, are the natural enemies of the children who have theirs. While the money is hoped for, and for a short time after it has been received, he who lends it is a friend and benefactor: by the time the money is spent, and the evil hour of reckoning is come, the benefactor is Edition: current; Page: [7] found to have changed his nature, and to have put on the tyrant and the oppressor. It is an oppression for a man to reclaim his own money; it is none to keep it from him. Among the inconsiderate, that is, among the great mass of mankind, selfish affections conspire with the social in treasuring up all favour for the man of dissipation, and in refusing justice to the man of thrift who has supplied him. In some shape or other, that favour attends the chosen object of it through every stage of his career. But in no stage of his career can the man of thrift come in for any share of it. It is the general interest of those with whom a man lives, that his expense should be at least as great as his circumstances will bear; because there are few expenses which a man can launch into, but what the benefit of them is shared, in some proportion or other, by those with whom he lives. In that circle originates a standing law, forbidding every man, on pain of infamy, to confine his expenses within what is adjudged to be the measure of his means, saving always the power of exceeding that limit as much as he thinks proper; and the means assigned him by that law may be ever so much beyond his real means, but are sure never to fall short of them. So close is the combination thus formed between the idea of merit and the idea of expenditure, that a disposition to spend finds favour in the eyes even of those who know that a man’s circumstances do not entitle him to the means: and an upstart, whose chief recommendation is this disposition, shall find himself to have purchased a permanent fund of respect, to the prejudice of the very persons at whose expense he has been gratifying his appetites and his pride. The lustre which the display of borrowed wealth has diffused over his character, awes men during the season of his prosperity into a submission to his insolence, and when the hand of adversity has overtaken him at last, the recollection of the height from which he has fallen, throws the veil of compassion over his injustice.

The condition of the man of thrift is the reverse. His lasting opulence procures him a share, at least, of the same envy that attends the prodigal’s transient display: but the use he makes of it procures him no part of the favour which attends the prodigal. In the satisfactions he derives from that use—the pleasure of possession, and the idea of enjoying at some distant period, which may never arrive—nobody comes in for any share. In the midst of his opulence he is regarded as a kind of insolvent, who refuses to honour the bills which their rapacity would draw upon him, and who is by so much the more criminal than other insolvents, as not having the plea of inability for an excuse.

Could there be any doubt of the disfavour which attends the cause of the money-lender in his competition with the borrower, and of the disposition of the public judgment to sacrifice the interest of the former to that of the latter, the stage would afford a compendious, but a pretty conclusive proof of it. It is the business of the dramatist to study, and to conform to, the humours and passions of those on the pleasing of whom he depends for his success; it is the course which reflection must suggest to every man, and which a man would naturally fall into, though he were not to think about it. He may, and very frequently does, make magnificent pretences of giving the law to them: but woe be to him that attempts to give them any other law than what they are disposed already to receive! If he would attempt to lead them one inch, it must be with great caution, and not without suffering himself to be led by them at least a dozen. Now I question whether, among all the instances in which a borrower and a lender of money have been brought together upon the stage, from the days of Thespis to the present, there ever was one, in which the former was not recommended to favour in some shape or other—either to admiration, or to love, or to pity, or to all three;—and the other, the man of thrift, consigned to infamy.*

His later works,—those written from the year 1810 downwards, exhibit a marked change in style; whether an improvement or a deterioration, the present writer, while endeavouring to explain the nature of the alteration, will not venture to decide. The symptoms of the change will be found in his works and correspondence of the early part of the 19th century, and the Letters to Lord Grenville, on the proposed Reform in the Court of Session in Scotland, printed in 1808, may be taken as a specimen of his style in its transition state. The prominent feature in the change arose out of a dissatisfaction with the ordinary terms of language, and their accepted arrangement, as a means of conveying, with that certainty and precision which the author aimed at, his new opinions, with their subtle subdivisions and distinctions. One of the means which he had recourse to, was the formation of a new technical nomenclature for his own purposes; this was a design which he had in view from the commencement of his career, but it was in after life that he gave his most extensive Edition: current; Page: [8] exemplifications of it. Its nature, and the uses to which he employed it, will be noticed farther on. But, independently of neology, the style, as developed in the construction of the sentences, was novel, and avowedly so. In his minute divisions, he had perpetual occasion to compare, balance, or contrast one proposition with another; and, looking upon language as the only means through which this could be accomplished, he judged that uniformity, in the structure of sentences, would make that very structure subservient to his purposes. His arrangement was such, that the predicate, the copula, and the subject—that distributive, limitative, or exceptional terms, if there were any,—were all to be found in precisely the same parts of every sentence; and by this uniformity he was enabled, to a certain extent, to manipulate his sentences, as if they were Algebraic signs; a service to which he never could have applied the freedom and variety of locution, sanctioned by the ordinary rules of rhetoric. As an illustration of what is here attempted to be described, the following extracts, from a few notanda, explanatory of the leading principles of his opinions, may be adduced. If there be a certain degree of monotony, and even of repetition, in the sentences, it will be admitted, that they are admirably constructed for comparison with each other, and for enabling the eye to assist the mind in perceiving the principle of their connexion.

1.

1. Constantly actual end of action on the part of every individual at the moment of action, his greatest happiness, according to his view of it at that moment.

2.

2. Constantly proper end of action on the part of every individual at the moment of action, his real greatest happiness from that moment to the end of life. See Deontology private.

3.

3. Constantly proper end of action on the part of every individual considered as trustee for the community, of which he is considered as a member, the greatest happiness of that same community, in so far as depends upon the interest which forms the bond of union between its members.

4.

4. Constantly proper end of action on the part of an individual, having a share in the power of legislation in and for an independent community, termed a political state, the greatest happiness of the greatest number of its members.*

One of his favourite, and most serviceable arrangements, was the employment of a verbal substantive with an auxiliary, instead of a verb. “I use a substantive,” he says, “where others use a verb. A verb slips through your fingers like an eel,—it is evanescent: it cannot be made the subject of predication—for example, I say to give motion instead of to move. The word motion can thus be the subject of consideration and predication: so, the subject-matters are not crowded into the same sentence,—when so crowded they are lost,—they escape the attention as if they were not there.”

Much outcry has been made about the intricacy and obscurity of Bentham’s sentences. Those who bring the charge often forget that he demands severe thought as due to his subject, and that no form of phraseology would make a golden path to that which, in its very nature, requires a continuous process of abstraction. That Bentham’s sentences are complex, is, however, in many instances, true; but that they are obscure or dubious, is so much the reverse of the fact, that their complexity arises, in a great measure, from the anxiety with which he has guarded them against the possibility of their meaning being mistaken. So anxious is he that the mind should not, even for a passing moment, adopt a different understanding from that which he wishes to impress on it, that he introduces into the body of his sentence all the limitations, restrictions, and exceptions which he thinks may apply to the proposition broadly stated. He limits his meaning, in the most precise manner, by a circumvallation of well-weighed words. It is difficult for the mind sometimes to trace all the intricate windings of the sentence; still more difficult to have it, Edition: current; Page: [9] in all its proportions, clearly viewed at once; but, when this has been accomplished, it is at once clear that all the apparent perplexity arises from the skill with which the author has made provision that no man shall have a doubt of what he means to say. Take the following specimen from the Rationale of Evidence: the point under consideration is the extent to which a transcript may serve in evidence, in place of the original deed. Almost every sentence is complex; but when the reader has been at the trouble of abstracting his mind to the extent necessary for embracing its full meaning, he will allow that there can be no dubiety whatever as to what that meaning is—that it is clear and indubitable. The author is most careful, that, when he speaks of a possessor, it is understood that he does not mean also a proprietor; that the circumstance of his detention of the document being intentional, or unintentional, does not influence the question: that the extent of danger to which the original may be exposed by inspection, is limited, &c. &c.

When the original of a deed or other written document is so situated that the production of it cannot be effected without a more than ordinary degree of vexation, expense, and delay—lodged in some place between this and the antipodes, in the hands of some possessor, who, proprietor or not, does or does not choose to part with it or to bring it;—where such is the situation, or supposed situation, of a supposed or alleged original, at the time that an alleged transcript, or sufficient extract or abstract, is ready to be produced;—a question may arise as between the two documents, the alleged original and alleged transcript, (both certainly not being necessary, one perhaps sufficient,) which, if either of them, shall be admitted. Were both present, the admission of the transcript (unless it were for momentary provisional consultation, for the purpose or in the course of argument) would evidently be attended with some (howsoever little) danger, and with no use. A transcript, how little soever inferior in point of trustworthiness to the original, can never, so long as man is fallible, be considered as exactly upon a par with it. But the original is so circumstanced, that, rather than load the cause with the vexation, expense, and delay, attached to the production of it, it would be better to exclude it: nay, even although, to the prejudice of the side by which it should have been produced, misdecision were sure to follow. It ought therefore to stand excluded: and thereby the whole of the evidence from that source, were there no other remedy.

But the transcript,—although, in preference to or indiscriminately with the original, it ought not to be produced,—yet, rather than the evidence from that source should be altogether lost, and misdecision take place in consequence, might (if ordinarily well authenticated)—might, with much less danger than what is frequently incurred in practice, be (under the conditions above proposed) received instead of it. Nevertheless, mischief from misdecision ought at the same time (so far as is consistent with the regard due to the avoidance of preponderant collateral inconvenience in the shape of vexation, expense, and delay) to be obviated as effectually as possible. Accordingly, previously to execution, obligation (or at least liberty) ought to be in the hands of the judge, for taking from the party thus to be instated, sufficient security for the eventual reinstatement of the other party; in case that, within a time to be limited, the propriety of the opposite decision should have been made appear,—the authenticity of the transcript, or its correctness or completeness with relation to the point in question, having been disproved.*

The following passages on the subject of unpromulgated laws, are given as an illustration of the difference between Bentham’s early and his later manner. The difference in the style will probably not be more remarkable than the similarity of the opinions:—

Written in the Year 1790.

Of the condition of him whose curse, I had almost said whose crime, it is to live under such laws, what is to be said? It is neither more nor less than slavery. Such it is in the very strictest language, and according to the exactest definition. Law, the only power that gives security to others, is the very thing that takes it away from him. His destiny is to live his life long with a halter about his neck: and his safety depends upon his never meeting with that man whom wantonness or malice can have induced to null at it. Between the tyranny of sleeping laws, and the tyranny of lawless monarchy, there is this difference: the latter is the tyranny of one, the other is the tyranny of millions. In the one case, the slave has but one master; in the other, he has as many masters as there are individuals in the party by whom the tyranny has been set up.

Tyranny and anarchy are never far asunder. Dearly indeed must the laws pay for the mischief of which they are thus made the instruments. The weakness they are thus struck with does not confine itself to the peccant spot; it spreads over their whole frame. The tainted parts throw suspicion upon those that are yet sound. Who can say which of them the disease has gained, which of them it has spared? You open the statute-book, and look into a clause: does it belong to the sound part, or to the rotten? How can you say? by what token are you to know? A man is not safe in trusting to his own eyes. You may have the whole statute-book by heart, and all the while not know what ground you stand upon under the law. It pretends to fix your destiny: and after all, if you want to know your destiny, you must learn it, not from the law, but from the temper of the times. The temper of the times, did I say? You must know the temper of every individual in the nation; you must know, not only what it is at the present instant, but what it will be at every future one: all this you must know, before you can lay your hand upon your bosom, and say to yourself, I am safe. What, all this while, is the character and condition of the law? Sometimes a bugbear, at other times a snare: her threats inspire no efficient terror; her promises, no confidence. The canker-worm of uncertainty, naturally the peculiar growth and plague of the unwritten law, insinuates itself thus into the body, and preys upon the vitals of the written.

All this mischief shows as nothing in the eyes of the tyrant by whom this policy is upheld and pursued, and whose blind and malignant passions it has for its cause. His appetites receive that gratification which the times allow of: and in comparison with that, what are laws, or those for whose sake laws were made? His enemies, that is, those whom it is his delight to treat as such, those whose enemy he has thought fit to make himself, are his footstool: their insecurity is his comfort; their sufferings are his enjoyments; their abasement is his triumph.

Whence comes this pernicious and unfeeling policy? It is tyranny’s last shift, among a people who begin to open their eyes in the calm which has succeeded the storms of civil war. It is her last stronghold, retained by a sort of capitulation made with good government and good sense. Common humanity would not endure such laws, were they to give signs of life: negligence, and the fear of change, suffer them to exist so long as they promise not to exist to any purpose. Sensible images govern the bulk of men. What the eye does not see, the heart does not rue. Fellow-citizens dragged in crowds, for conscience’ sake, to prison, or to the gallows, though seen but for the moment, might move compassion. Silent anxiety and inward humiliation do not meet the eye, and draw little attention, though they fill up the measure of a whole life.*

Written about the Year 1825.

Whatsoever good effects the portion of law in question may, in virtue of its matter, be intended or calculated to produce, the production of those effects will depend, in the instance of each individual on whom the law calls for his obedience, on the hold which it has happened to it to take upon his mind: viz. in the first place, upon the circumstance of the fact of his being apprized of the existence of the law; of the general matter of fact—viz., that on Edition: current; Page: [10] the subject in question there exists such a thing as a portion of law: in the next place, upon the degree of correctness and completeness with which, as often as any occasion comes for acting in obedience to, or in any other way in pursuance or consequence of, such portion of law, the matter of it is present to his mind.

To the production of any bad effects, no such notoriety is, in the instance of any portion of law, in any degree necessary.

For a man to be put to death in due course of law, for non-compliance with this or that portion of law, it is not by any means, in any case necessary, that either the matter of it, or the fact of its existence, should ever have reached his mind. On the contrary, whosoever they be to whom it is matter of satisfaction that men should be put to death in due course of law (and these, more especially among English judges and other English lawyers, are many,) the greater the extent to which they can keep from each man’s mind the knowledge of such portions of law to which, on pain of being put to death for disobedience, they are called upon to pay obedience, the greater the extent to which they can administer this satisfaction to their minds; and if the portions of legal matter to which this result is attached, had for their object the administering of this satisfaction to those from whose pens they issued, they could scarcely have been rendered in a more effectual degree subservient and conducive to that end, than they have been rendered by the form into which the matter of that, and all other parts of the English law have been cast.

True it is, that before any man can be put to death, or otherwise vexed for non-obedience to any portion of law, what is necessary is, that some person—nay, that divers and sundry persons, should be apprized, not only of its existence, but its contents; forasmuch as a man of ordinary prudence, such as are all those who are in the habit of taking each of them a part in an operation of this sort, will not engage in any such operation except in the persuasion, well or ill-grounded, of his being warranted in so doing, if not by the tenor of any real law, at any rate by the feigned tenor or purport of some imaginary law or rule of law, which for his justification and protection will be attended with this same effect.

But when the bearing a part in the putting of men thus to death, is of the number of those acts by the performance of which men are called upon to manifest their obedience, the production of an effect of this sort is not among those results which generally, openly, and avowedly, at least by the legislator, are held up to view in the character of the objects or ends in view ultimately aimed at: ultimately and absolutely good a result of this sort is not generally (for even here there are some exceptions) declared to be; relative, and that alone, is the term employed in giving expression to the point of view in which any such Edition: current; Page: [11] appellative as good is spoken of as applicable to such a subject:—that A should be put to death is good, is maintained, Why? That B and C may, without being put to death, abstain from the commission of acts of the sort of that, for the performance of which A is thus ordered to be dealt with.

But, independently of all reference to his style, there are certain peculiarities in the method of Bentham’s literary labour, which must be kept in view in relation to the appearance which his later works present. He who writes a book for the purpose of influencing the public mind, by, in the first place, securing the public attention, will in general be careful to use the accepted methods of making it attractive. If the matter he has to expound should be original, and perhaps repulsive, he will take care that the form in which it is presented shall have as little as possible of the latter qualification. There are arts, in drawing the public attention to books, acquired and handed down by long experience; and these, so far as he can, he will adopt. Above all, he will see that a great deal of what is passing through his mind in the course of composition, is matter which it will do more harm than good to his work to insert in it; and he will select, prune, and arrange, till the whole has a passable appearance. Above all, he will present a work which is ex facie finished, and containing all that, at the beginning, the author has announced that he is to give.

It will be at once understood that Bentham did not adopt these appliances, and the cause will be perceived, when it is stated, that in later life he prepared none of his works for the press. It was his opinion, that he would be occupied more profitably for mankind in keeping his mind constantly employed in that occupation to which it was supereminently fitted, and in which it seemed to find its chief enjoyment—ratiocination. He thought that while he lived in the possession of this faculty, he should give as much of the results of it to the world, as he could accomplish by a life of constant labour, temperance, and regularity; and he left it to others to shape and adapt to use the fabric of thought which thus came out continuously from the manufactory of his brain. Laying his subject before him for the day, he thought on, and set down his thoughts in page after page of MS. To the sheets so filled, he gave titles, marginal rubrics, and other facilities for reference, and then he set them aside in his repositories, never touching or seeing them again. It was his method to divide and subdivide his subject at the outset; and after having carried this subdivision to the utmost extent which he thought necessary, he would begin his examination of one of the branches of the lowest subdivision. Having exhausted the two branches of this ultimate division, he would then go back to one of the higher branches of division, which would lead him to a subdivision in another quarter; and thus, like the anatomist who first explains to his pupils the general component parts of the human frame, and begins his dissection at one of the extremities with the design of taking them seriatim and working towards the heart, he took care that, so far as he went, his analysis should be completely exhaustive. It happened, however, very frequently, that his psychological dissection went no farther than the extremities of the subject he had laid out for anatomizing. This is remarkable in the Department of Logic and Metaphysics. Under the general head of Logic, a complete analysis of all the powers and operations of Edition: current; Page: [12] the human mind had been intended; but the subject obtaining but a portion of his time in conjunction with the other vast projects which he contemplated, he was enabled only to leave behind him some fragments, of which a selection has been given under the titles Logic, Ontology, Language, and Grammar, in vol. viii. of the Works. They are specimens of the most finished workmanship, but still they are merely fragments. Perhaps the only extensive subject which the author completely investigated, according to the rigid method latterly adopted by him, was Evidence; and his work on this subject fills two of the closely-printed volumes in the collected edition. It is a larger work than Blackstone’s Commentary on the Laws of England. But there is another work—and, perhaps, the most boldly conceived of all his projects, which Bentham lived to complete—his Constitutional Code. The plan on which he is described as proceeding in his analysis is not here applicable, for the work is synthetic, not analytic. It is neither an examination of the principles on which laws are made, nor of those on which they ought to be made, but a substantive code of laws. It may be safely pronounced, that in no language does any other such monument of the legislatorial labour of one mind exist. Independently altogether of any question as to the principles of government developed, or the sagacity of the general plan; the completeness of the fabric—the accuracy of the proportion of all parts to each other—the total absence of any sort of incongruity in the relations to one another of such a quantity of things, great and small, which have to be fitted to each other to form a homogeneous whole,—astonish the mind of the reader with the evidence that they convey of the comprehensiveness and clearness of the Author’s intellect.

The above remarks, bearing chiefly on the precision with which Bentham pursued his inquiries, would give an imperfect notion of his later writings without an allusion to one signal characteristic—the bursts of fiery eloquence with which he sometimes soars from the rigid logic of his usual system. It is when his subject brings him in contact with illustrations of suffering and oppression that the man thus breaks from the philosopher. Among some pamphlets which he wrote towards the termination of the reign of George III., when he believed the remaining liberties of the country to be in imminent danger, there are many such passages as the following:—

Yes!—you pillage them: you oppress them: you leave them nothing that you can help leaving them: you grant them nothing, not even the semblance of sympathy: you scorn them: you insult them: for the transgression of scores, or dozens, or units, you punish them by millions; you trample on them, you defame them, you libel them: having, by all you can do or say, wound up to its highest pitch of tension the springs of provocation and irritation, you make out of that imputed, and where in any degree real, always exaggerated irritation, a ground, and the only ground you can make, for the assumption, that, supposing them treated with kindness—all their grievances redressed—relief substituted to oppression, they would find, in the very relief so experienced, an incitement—an incitement to insurrection, to outrage, to anarchy, to the destruction of the supposed new and never-yet-experienced blessing, together with every other which they ever possessed or fancied.

Levelling!—destruction of all property! Whence is it they are to learn it?—what is there they can get by it?—who is there that ever taught it them?—whose interest is it—whose ever can it be—to teach it them? How many of them are there, who would, each of them, be so eager to lose his all? The all of a peasant—to the proprietor how much less is it, than the all of a prince—the all of him whose means of livelihood are in his labour, than the all of him whose means of livelihood are in his land? Who again is it, that, in your notion at least, they are at this moment so abundantly looking to for instruction? Is it not Cobbett? With all his eccentricities, his variations, and his inconsistencies, did he ever attempt to teach them any such lesson as that of equal division of property—in other words, annihilation of it? In the whole mass of the now existing and suffering multitude, think ye that one in a score, or in a hundred, not to say a thousand, could be found, so stupid, so foolish, as either of himself or from others, to fancy that, if without other means of living, he had his equal share in the whole of the land to-day, he would not, twenty to one, be starved upon it before the month were out? Oh! if the men, in whom—truly or erroneously—they behold their friends, were not better instructors as well as better friends to Edition: current; Page: [13] them than you are, or than it is in your nature to be, long ere this would the imputation you are thus so eager to cast on them, have been as substantially grounded as it now is frivolous.*

Bentham was singularly happy in the employment of lively, humorous illustrations. He took care that in their use fancy should never be allowed to take the precedence of reason; the logical proposition was formed before the ornament was added, and the purpose of the latter was merely to make it more distinct to the eye. He made war against a system which is too common—that of using a simile not as a means of making clear and palpable the meaning of an argument, but as a substitute for the argument itself. His own similes never divert the mind from the original reasoning—they only serve to make it more vivid. Thus, the sense of hardship experienced by rapacious judicial officers, on being deprived of an illicit source of gain to which they never should have been allowed access, is compared to the sense of hardship experienced by the shark who, having bit off one of Sir Brooke Watson’s legs, was compelled to leave the other in its place. “Under English law,” he says, “not to speak of other systems, the sort of commodity called justice, is not only sold, but, being like gunpowder and spirits made of different degrees of strength, is sold at different prices, suited to the pockets of so many different classes of customers.” Talking of the English system of pleading, and its anticipated adoption in Scotland, he says—“I have no more apprehension of seeing the Scotch nation submit to defile itself with any such abomination, than I have of seeing the port of Leith opened for the importation of a pack of mad dogs, or for a cargo of cotton impregnated, secundum artem, with the plague.” Again—

If a man comes and pleads his clergy, whatever goods he had, the king has got them. This being the case, having had your clergy, you are innocent, or, what comes to the same thing, you are forgiven. All this is very true; but as to your money, the king, you hear, has got it; and when the king has got hold of a man’s money, with title or without title, such is his royal nature, he cannot bear to part with it; for the king can do no man wrong, and the law is the quintessence of reason. To make all this clear, let it be observed there is a kind of electrical virtue in royal fingers, which attracts to it light substances, such as the moveables and reputed moveables of other men; there is, moreover, a certain glutinous or viscous quality, which detains them when they have got there.

Such are the grounds upon which the forfeiture of personal estate, in cases of clergyable felony, still continues to subsist.§

In relation to official men talking of appointments they have used every effort to obtain, as if they were innocent of all design in the matter, he says—“These are of the number of those gracious designs, which, till the very moment of their taking effect, are never known of. While the eyes of the right honourable person are, as usual, fixed on heaven, the grant is slipped into his pocket; and when, putting in his hand by accident, he feels it there, his astonishment is not inferior to his gratitude.”

The neology of Bentham—his construction of new words to serve his purposes—has been the subject of much attack and ridicule. This is not the place for discussing the question whether he has done any service to the language by this system of innovation, or whether the words he has coined ought or ought not to have received a more general admission into the current language of the age, than they have received; but it may be of service to the reader to explain the principles on which he proceeded in his fabrication of words, and the extent to which he has served the ends he had in view. It must be remembered that Bentham took up the position of a scientific inventor and discoverer in a new field of human knowledge—a field which, he maintained, had been left to the dominion of empirical discussion, and which thus displayed, both in the substance of all the reasoning that it produced, and in the nomenclature employed Edition: current; Page: [14] by the reasoners, the obscurity and confusion of mere popular and unscientific handling. He entered on the field of Morals and Legislation, as Linnæus did on the Animal and Vegetable kingdoms, and as Lavoisier did on the science of Chemistry—to analyze, and to introduce order and method; and, like these great men, he found that the popular nomenclature which had accompanied the vague notions of his predecessors, was insufficient in precision, and the other scientific requisites, to represent his own accurate and distinct classification. But he had difficulties to contend with which were not encountered by the pioneers of natural science. In their case, none trod the same path of investigation but such as were, like themselves, philosophers, who were prepared to view every improvement with scientific appreciation, and to take advantage of, instead of censuring, whatever tended to facilitate farther investigation, by the classification and arrangement of the knowledge already acquired. The difficulty which Bentham had to contend with was, that his subjects of inquiry were not monopolised by philosophical investigators, but related to matters of which all classes of the people—the learned and the unlearned—the scientifically precise, and the vaguely declamatory—are almost always thinking. The classification of plants is left to the undisputed control of the botanist: but every man is a classifier of offences, and duties, and legal obligations; nay, it generally happens, that, however little labour or thought he may have bestowed on the subject, every man deems his own classification the very best that can be made. Moreover, in the case of the operations of nature, the sinister interests which, being at war with the whole of Bentham’s system, are inimical to every branch of it, do not operate; and whoever has sufficient skill to accomplish the end, and will undertake the labour of making a serviceable nomenclature, in any new department of Nature’s works, is left the undisputed despot of his own system.

Whatever view may be taken of the abstract merits of Bentham’s nomenclature, to the accomplishment of his own ends it was indispensable; and the student will not have dipped very deeply into his works before he discovers how impossible it would have been to accomplish that precision of analysis, and that uniformity in all the proposed legislational reforms, of which the instances are so many and conspicuous, without the construction of a nomenclature specially adapted to the Author’s own use. A few examples will illustrate this statement. To maximise is a word of frequent occurrence. To maximise official aptitude, for instance, means—to raise that quality to the highest attainable pitch,—and the author would have required to use all these words, whenever he wished to express such an idea, if he had not coined a word for his own use. To “raise” would not have done, for it expresses no terminus ad quem. “Increase,” “improve,” and “enlarge,” are subject to the same objection—they express increment, but not to the greatest practicable point. To “make perfect” would not express the meaning, which bears in gremio the understanding, that perfection is not attainable.—He found the rule of action, in matters where one nation was concerned with another, called the “Law of nations,” a term which intimated, not the purpose or use of the law, but its mere possession, as if it were the only sort of law which nations possessed. He called it International Law.—He found no word in the language suited to express a universal body of Law; for the word Code, which is generally employed, has nothing in it to express universality, and is, indeed, applied to particular departments of the Law—e. g. the Civil Code, the Criminal Code, &c. He therefore coined the word Pannomion from the Greek.—The adjective “civil,” as applied to law, he found possessed of various meanings, sometimes applying to all those portions of the law which are not ecclesiastical, sometimes to all those which are not penal, and sometimes to all those which are not military; and he found it necessary to discard it, and frame the distinctive term Non-penal.—The word “criminal” he found to be equivocally Edition: current; Page: [15] used. A criminal lawyer might mean a lawyer versed in the penal department of the law, or a lawyer guilty of crimes; a word so tainted with dubiety was useless for the Author’s purposes, and had to be discharged.—The substantive “right” he found employed, and mischievously employed, with an ambiguous meaning. Originally it signified that which the law sanctions,—my rights are those privileges of action and possession, which are fixed in my favour by the existing law. If I dispose of goods by bargain and sale, I have a right to the stipulated price, and no other man has any rival right. If I am a member of the corporation of London, I have a right to vote for a Lord Mayor of London, but not for a Chief Justice of the Common Pleas, or a Mayor of Manchester. So, if I be registered on a qualification, in terms of the Reform act, I have a right to vote for a member of Parliament, but I have no such right if I be unqualified. But, by a confusion between this substantive, and the adjective right, which is the opposite of wrong, people applied the term their rights, not only to those privileges of which they were in possession, but to those which they thought they ought to possess—to those which it was right they should have. Hence came declamation about “imprescriptable rights,” “sacred and inalienable rights,” &c.; and the effect of the confusion was, that when people demanded new privileges, they spoke of them as their rights—as privileges to which they were entitled by law, but which were denied them. The confusion ended not in mere words; for men, acting as if their legal rights were denied to them, became filled with the violence, invective, and turbulence, with which an open refusal to enforce the fixed law is apt to fill every man’s breast.* It was a singular illustration of the equivoque of the word, that Blackstone should have divided his Commentaries into Rights and Wrongs, as if the substantives right and wrong were, like the adjectives of the same words, the precise opposites of each other. The word “rights” was employed in Bentham’s earlier works in its precise meaning as a counterpart to fixed obligations, when he examined the objects of the civil law; but in his later works, when he had established his own distinct nomenclature, it was discarded, and the whole body of the law was scientifically divided, as we find it in the introductory Book of the Constitutional Code.—The verb codify, and the substantive codification, have encountered much ridicule; but the subject to which they refer is as legitimate a source of laughter as the terms thus applied to it; for, except by means of such words, it would have been impossible for the Author, without much dubious circumlocution, to have urged the utility of codes of law, and to have pointed out the best means of constructing them. A code is a collective body of laws complete so far as it goes, and sanctioned, as covering the whole of its particular field, by the legislative authority. To perceive the difficulty of investigating the subject with Bentham’s scientific scrutiny, without a verb corresponding to the action of creating or making a code, let the reader imagine how incomplete would be any inquiry into the operation of making laws in detail, without a verb corresponding to that operation—viz., the verb to legislate, with its substantive Legislation.

There were two distinct classes of cases, in which Bentham found subjects of discussion to which no one had ever given names, and which, therefore, had he not himself come forward as godfather to them, would have remained undenominated. In the one he scattered his nomenclature here and there, whenever, in the course of his researches, he found operations and phenomena, which, though already known to be at work, had received no denominations. In the other he applied new names to the new machinery which, in his own constructional projects of legislation, he proposed to erect. The following may be adduced Edition: current; Page: [16] as instances of the former division of his nomenclature—In all operations connected with courts of law, the quality of being accessible or inaccessible to the purpose of fulfilling the decrees of the court, is sometimes a most important quality both in men and things. The Author perceived, that though the importance of the quality was admitted by every one whose attention was attracted to it, no one had given it a name; and as he had often to speak of it himself, he found it necessary to designate it, and he called it Forthcomingness. He found no term characterizing the use in one litigation of evidence which had been elicited for service in another, so as to distinguish it from evidence collected solely for the litigation in which it is applied—and he called the former Adscititious evidence. In evidence as furnished by writings, he found that the nomenclature of the law did not distinguish those writs which were prepared with the express end of serving as evidence, from those which, not being prepared with any such view, came, incidentally, and from the course of events, to be articles of real evidence—The one he called Preappointed written evidence, the other Casually written.

The other species of Nomenclature applies to the new offices and new functions, required for bringing the Author’s system of government into full operation. Such are the Functionaries: Judiciary Registrar, Government Advocate, Eleemosynary Advocate, and Local Headman; and the functions—Judiciary-power controlling, Communication-aiding, and Beneficent-mediation.* Here it was absolutely necessary that the Author should choose his own names; and the only question can be, whether he is successful in his choice.

To a complete scientific Nomenclature the Author found two qualities—the one necessary, the other expedient. The former is distinctiveness, and is exemplified in the use of words, which are restricted to the meaning assigned to them, and have no other meaning attached to them which can occasion a dubiety in their use. The other qualification is, that they should have, as distinct as possible, an etymological reference to the thing they are intended to express. There are two advantages in a good etymological nomenclature—it not only assists the memory and aids the judgment by the connexion between the word and the thing signified, but it forms a medium through which the various branches of a science or art may be seen in their connexion with each other. A very remarkable illustration of the power to create such a nomenclature is afforded by the Author’s Encyclopedical Table, and the accompanying treatise. It begins with Wellbeing, or Eudæmonics, and by subdivision, embraces most of the subjects of human knowledge in collected groups, giving to each a new and apt name. Thus, Natural History and Natural Philosophy are respectively represented by Physiurgic Somatology, and Anthropurgic Somatology: the one signifying the science of bodies, in so far as operated upon in the course of nature without the intervention of man—the other the science of bodies, so far as man, by his knowledge of the convertible powers of nature, is able to operate upon them. Of the unaptness of the previous nomenclature the Author says:—

Of the two words,—the first an adjective, the other a substantive,—of which the compound appellation Natural History is formed,—it found, at the time of its formation, the substantive History already appropriated to the designation of a branch of learning, having for its subject those states of persons and things of all sorts, and those events of all sorts, that have been known or supposed to have had place in times past present time either being altogether excluded, or its history being but as it were a point, in comparison with the time of history which it closes. Adding the word natural, say Natural History, the result is, that, for the import, designated by this appellative, antecedently to the establishment of that usage from which it has received an import so widely different, we have this, viz., the natural account of those states of persons and things, and so forth, and of those events, and so forth, which had place in times past.

Now, with what propriety, to any one of the above-mentioned so aptly denominated Edition: current; Page: [17] divisions, of the branch of art and science itself thus unaptly denominated,—with what propriety, to Mineralogy, to Botany, to Zoology,—can the term Natural History, consideration had of its original and proper import as thus developed, be applied?

* * * * *

The branch of art and science, for the designation of which the compound appellation Natural Philosophy is in use, is that which has, for its subject, matter in general, considered in respect of such modifications as it has been made, or may be expected to be made, to undergo, by human art, under the guidance of human science: with the addition, perhaps, of such properties, as, by means of changes made in it by the application of that same mental instrument, have been discovered to have been already belonging to it.

Taken by itself, Philosophy is the love of wisdom. Adding the word natural, say Natural Philosophy, and, for the import designated by this appellation, antecedently to the arbitrary usage, established in this case as in that other,—we have this, viz. the natural love of wisdom.*

But the Author, while showing an illustration of what may be accomplished towards a pure and apt nomenclature, admits, that in the majority of cases, the task of driving out the old empirical system of names would be, in many cases, impossible, and that the advantage would, in others, fail to compensate for the labour of the operation. It was, therefore, only where the absence of any nomenclature, or the palpable defects of that in existence, made it necessary for him to resort to his own mint, that he coined his words on the above principles. Thus, finding no word which indicated a professional assistant in the conduct of a law-suit, and which was confined to that meaning, he constructed the term Litigational Proxy, for employment in the Principles of Procedure. Instead of using such terms as “Action on the case,” “Assumpsit,” “Qui tam,” “Detinue,” &c., which, though use has made their meanings determinate, are not adapted to express the Author’s scientific division of Law-suits, he adopted such divisions as “Non-Penal and Penal,” “Simple and Complex,” “Original and Excretitious,” “Plurilateral and Unilateral,” “Summary and Chronical,” &c.

SECTION II.: THE GREATEST-HAPPINESS PRINCIPLE AND ITS APPLICATION TO MORALS AND LEGISLATION.

It appeared to Bentham, at an early period of his life, that the Philosophy of human action was incomplete, until some general principle should be discovered, to which the actions of mankind ought all to tend. The way had been so far cleared by the Inductive system of Philosophy. Bacon laid down the grand and general law, that experiment is the means of obtaining a knowledge of what is true; but a question was left to be answered—to what end men, after having achieved the knowledge of what is true, should use that knowledge? It was clear that though experiment might teach us how to achieve that end when it had once been pointed out, it could not be the means of discovering it; for the very supposal of an end predicates something, not sought after, but predetermined. It was after much thought that he decided that the end in view ought to be the creation of the greatest possible amount of happiness to the human race. The word “utility,” was the first shape in which the end presented itself; but this term left the question “what constitutes utility” an open one. The answer to—what constitutes utility? and the more abstract principle afterwards adopted, were one and the same. That is useful which, taking all times and all persons into consideration, leaves a balance of happiness; Edition: current; Page: [18] and,—the creation of the largest possible balance of happiness—became the Author’s description of the right end of human actions. The manner in which he stated his axiom was at first in the words, “The greatest happiness of the greatest number,” or “The greatest possible happiness of the greatest possible number;” but as there were here two conflicting elements of extent—the intensity of the happiness and the number of persons among whom it is dispersed* the respective limits of which could not be fixed, the simple expression The greatest happiness was determined on.

The Author was quite aware that this principle was liable to the imperfection of all axioms. It was simply like others of its kind, the closest approach to the abstract that could be made by reasoning. Logic could tender it no support; it must itself be the base on which reasoning should rest; and unless in so far as he could obtain admission for it, it must remain unproductive of good. He Edition: current; Page: [19] says, in the Introduction to the Constitutional Code.

When I say, the greatest happiness of the whole community ought to be the end or object of pursuit, in every branch of the law—of the political rule of action, and of the constitutional branch in particular, what is it that I express?—this and no more, namely, that it is my wish, my desire, to see it taken for such, by those who, in the community in question, are actually in possession of the powers of government; taken for such, on the occasion of every arrangement made by them in the exercise of such their powers, so that their endeavours shall be, to render such their cause of action contributory to the obtainment of that same end. Such then is the state of that faculty in me which is termed the will; such is the state of those particular acts or modifications of that faculty, which are termed wishes or desires, and which have their immediate efficient causes in corresponding feelings, in corresponding pleasures and pains, such as, on the occasion in question, the imagination brings to view.

In making this assertion, I make a statement relative to a matter of fact, namely that which, at the time in question, is passing in the interior of my own mind;—how far this statement is correct, is a matter on which it belongs to the reader, if it be worth his while, to form his judgment.*

But it was not to the announcement of his first principle that Bentham trusted for its adoption, but to the influence it would have on the minds of his readers when they studied the forms in which he brought it out in detail. And this brings us to examine the extent to which the author lays claim to the merit of originality. It was not the principle itself, that constituted his discovery, but his rigid adherence to it in all his expositions—his never losing sight of it, in what he did himself or called upon others to do. He did not say that the world had hitherto been ignorant of such a principle; he found the theory of utility to a certain extent promulgated by Hume, and references to the “greatest happiness” in the works of Beccaria and of Priestley; while something like the Utilitarian Principle is announced at the commencement of the Nicomachean Ethics. He found indeed that it was at the root of all systems of religion and morality; that all codes of law were more or less founded upon it; and that it was, in all places and at all times, Edition: current; Page: [20] an unseen and unacknowledged guide to human action. But he was the first to bring forth this guide, to prove to the world that it should be followed implicitly, and to show that hitherto, from not keeping their guide in view, men had often wandered from the right path. “The good of the community,” “the interests of the public,” “the welfare of mankind,” all expressions to be found in the mouths of those who talk of the proper ends of action, were so many acknowledgments of the Greatest-happiness Principle, and vague attempts to embody it. There is here an apt parallel with the philosophy of Bacon. Long before his day experiments were made, and thinkers, even in their emptiest theories, in some shape or other looked to experience. Fact was then, as now, the source of knowledge; but for want of an acquaintance with what their source of knowledge really was, men wandered about among vague theories, and Bacon was the first to discover, that wherever experience and the induction from it are lost sight of, there is no check to the errors of thought. In like manner does Bentham show, that, when the greatest happiness of mankind is lost sight of, in the pursuit of more immediate ends, there is no check to the aberration of human action.

There is, perhaps, no better illustration of the operation of the utilitarian principle in minds which are ignorant of, or do not acknowledge its existence, than in the appreciation which Bentham’s works have met with by the majority of his readers. His general principle has received few adherents, in comparison with the number who have adopted his detailed applications of it. There is no project of change, or plan of legislative reform, in which he has not kept the greatest-happiness principle in his eye as the end to which it has been adapted; yet there are many who accede to his practical measures, while they repudiate his general principle. Thus, that jurymen should not make oath, each to vote according to his conscience, and then be coerced till they are unanimous; that there ought to be a general register of real property, in which all sales, burdens, and pledges may be entered; that the price paid for the use of money ought no more to be fixed by law than the consideration given for any other contract—are all opinions admitted by a large portion of practical men, who, when their attention is directed to the end to which all these proposals are but means, intimate a distaste of vague theory, and turn their backs upon it. There can be no doubt, then, that had Bentham contented himself with an exposition of his leading principle, instead of giving the world, on so wide a scale, the details of its operation, he would have had far fewer followers than he has: and that, indeed, it has generally been through the influence of his practical adaptation of it, that he has brought his pupils to the adoption of his central principle.

It is a circumstance worthy of remark, that the philosophy of Bentham met with an opponent even in the extent to which its leading principle was practically admitted. The quantity of utilitarianism that was in mankind, had rooted certain opinions so firmly in their breasts, that they took a suspicion of that sceptical philosophy which took them up and examined them, though the examination ended in approval. People lost patience with the system, when they heard its author ask whether theft and falsehood were hurtful to mankind, before he condemned such acts. When it was said that murder, if beneficial to society, would be a virtue instead of a vice, it was indignantly maintained, that under no presumable circumstances could it be anything but what it is—the most atrocious of crimes. That fact was, indeed, one of the most broad and clear cases in which the utilitarianism of the world had made up its mind from the beginning. Almost, in all ages and in all nations, men had leaped at the conclusion without a perceptible interval of ratiocination. It was a startling thing to see so long decided a question called up for trial, and to hear the evidence against it investigated and weighed, before judgment was pronounced, as if there were really room for any dubiety. The feeling was somewhat akin to the popular Edition: current; Page: [21] cry which, in the case of a public and notorious criminal, tries to bear down the calm deliberation of the judicial tribunal, and is scarcely content when the proceedings end in punishment, because the very weighing of evidence, in such a case, seems to be a trifling with truth which frightens people into the belief that it is possible justice may be got the better of. Viewing them with reference to the question of their popularity, the prudence of some of these illustrations of the utilitarian principle might be questioned. Putting the case that murder would be justifiable if it were for the benefit of the community, was like putting the case, that if that which was bad were good, then it would not be bad. The conclusion was so clearly leaped to, both by the public and the philosopher, that the mere supposititious questioning of it by the latter, looked like a play on words. Yet, all who have followed tissues of abstract reasoning, know how very necessary it is to have clear views of the simpler propositions of a series, as a preparation for the proof of the more complex. That the opposite sides and angles of a parallelogram are equal to each other, seems too simple a statement to require any proof: but, if it were not demonstrated, a link would be lost in the chain of reasoning which shows that the square of the hypothenuse of a right-angled triangle is equal to the squares of the other two sides. Though men admitted the evil effect of murder, they had not followed the utilitarian principle so closely as to see much mischief in condemning a man to death according to law, when a smaller punishment is sufficient: and while theft encountered condemnation almost universal, the number of those who carried out the principle to the condemnation of the wilful accumulation of debts, which the debtor knows he has no chance of paying, was small. In both cases, however, the proof of the simpler proposition was an introductory step to the proof of the more complex.

Having established the pursuit of the greatest happiness as the leading object which all men should hold in view, the next step was, to find what principles there were in human action to be made conducive to this end. In examining the real state of the actions and impulses of mankind, and going back from particulars to the most general principle of action, the philosopher came to the conclusion, that every human being, in every action which he performs, follows his own pleasure. He had to deal with a multitude of prejudices, in his use of this term, but he would perhaps have hardly propitiated his opponents if he had chosen a new one. The very universality of its individual action was against it as a general term; for every man felt so strongly that what was pleasure to his neighbour was not pleasure to himself, that he revolted against the application of the same word to qualify motives which appeared so distinct. Among a large class of persons, the expression, “the pursuit of pleasure,” had inherited the bad reputation which has popularly attended the doctrines of Epicurus. It was connected in some way with sensuality and mere corporeal enjoyment, and stood in opposition to those objects and pursuits which the better part of mankind hold in esteem. In the popular discussions on this subject, there is generally a want of observance of the distinction between pleasure as attained, or, in one word, happiness, and pleasure as an object sought after. The latter is an unknown quantity—the former presents us with the arithmetical results of the experienced pains deducted from the experienced pleasures. Many a man makes himself unhappy; but no man pursues unhappiness, though one may be very unsuccessful in his pursuit of happiness. One man is seen industrious, prosperous, surrounded by a well-educated moral family; his contemporary and class-fellow has been bringing himself gradually to the grave by profligacy—has impoverished himself, and has lost the respect of his fellowmen by the desperate alternatives to which misery has driven him. It is not easy to believe that both these men are in their actions directed by the same motive—the pursuit of pleasure. One man is seen cautiously laying up for himself a depository of future enjoyment, Edition: current; Page: [22] at the price of present privation; another, yielding to all immediate influences, scatters at once the whole of the material of enjoyment which nature has put at his disposal; while a third is systematically depriving himself of the ordinary appurtenances of human gratification, that he may dedicate them to heaven, or to the relief of those portions of his race who have been less gifted than himself. It requires that one should have a very abstract and unconventional notion of the term happiness, to believe that it is the moving force in each one of these cases.

Perhaps it may serve the purpose of farther explaining the sense in which Bentham used the terms happiness and pleasure, to compare them with those words which more nearly approach to them. In the first place, it is necessary to keep in view an essential difference in the acceptation of the two words. Happiness is applied to the state in which the mind is placed when enjoying a continuity of pleasure: pleasure is applied to each of the individual sensations which, when aggregated, produce happiness. It is generally, therefore, more convenient to use the word, pleasure, when the immediate results of actions are talked of, and the word, happiness, when ultimate and permanent effects are the subject. In popular language, the distinction is sometimes drawn to the extent of contrast, and a man is said to pursue pleasure to the destruction of his happiness. When speaking, therefore, as we are now doing, of the immediate impulse of acts, it is convenient to use the word, pleasure: when we come to the discussion of acts in their general results, the term, happiness, will be more applicable.

The term nearest to being synonymous with pleasure, is volition: what it pleases a man to do, is simply what he wills to do. By considering it for a moment in the light of mere volition, we separate it from the notion of actual enjoyment—that popular acceptation which is most likely to lead us astray. What a man wills to do, or what he pleases to do, may be far from giving him enjoyment; yet, shall we say that in doing it, he is not following his own pleasure? A man drinks himself into a state of intoxication: here, whatever may be the ultimate balance of happiness, people can at least imagine present enjoyment, and will admit that the individual is pursuing what he calls his pleasure. A native of Japan, when he is offended, stabs himself to prove the intensity of his feelings. It is difficult to see enjoyment in this case, or what is popularly called pleasure; yet the man obeyed his impulses—he has followed the dictate of his will—he has done that which it pleased him to do, or that which, as the balance appeared to him at the moment, was, in the question between stabbing and not stabbing, the alternative which gave him the more pleasure.

Those hasty acts, the result of sudden impulse, which one afterwards repents of having done because they militate against ultimate happiness, are the operations which people can with least facility ally to the pursuit of pleasure. They cannot imagine a balance struck in the mind in favour of pleasure, in cases which, by their results, and the feeling which the actor afterwards expresses regarding them, have evidently been so much the result of want of consideration. But, unless it be denied altogether that will has any influence in such cases, it cannot be denied, that what the man wills to do is that which gives him, at the moment, greater pleasure than abstaining from it. A man, in a fit of fury, stabs his best friend. The deed followed the impulse as quick as lightning; but was not the will brought into play? if it was not, ask legislators why they make laws for punishing those who give way to their passions—ask them if the fear of punishment has not often been the actual sanction which restrained the assassin’s blow, even when the deed he would have committed is one which he would afterwards have repented of? The rapidity of the operation of the will—of the action of choice—is exemplified in every day life. It transcends, in its quickness, the power of self-discernment; and thus, working undetected, its existence is forgotten. A rapid penman, Edition: current; Page: [23] quickly writing a letter to his friend, has his volition exercised on the choice of subjects, on the manner in which he is to treat them, on the words he is to use, and on the letters which he is consecutively to set down as the method of spelling these words. On the choice of subjects, and the manner of treating them, the operation of the will may, perhaps, be distinctly perceptible. It is not so distinctly traceable in the choice of words; and in the collocation of letters, succeeding each other at the rate of several hundreds in a minute, it will be quite imperceptible. The acts which are called rash—those which are the effects of sudden volition, are notorious for their malign influence on happiness. The imperfection generally attributable to hasty operations is perceptible in them. By too rapidly making up his mind on the question what is for his pleasure, the hasty man makes a wrong decision, and does that which, in the end, brings him a heavy balance of misery. Sudden acts may be fortunate, but they are not to be calculated upon as the most conducive to happiness, and the suppression of the habit of doing them will be found to be one of the ends of morality. A gambler may make himself rich by a lucky turn of the dice; but the best chance of permanent opulence is in favour of the man who practises a rigid system of industry, honesty, and self-restraint.

The terms, choice and preference, are useful in explaining the meaning of the word pleasure, as used by Bentham, though they are not so completely equivalent as will, being only employable where more than one thing is presented to the will, each with its own inducements. Between two courses, which a man has before him, he adopts, from pique or disgust, that which is foolish, wicked, detrimental to his own happiness, and he repents of it afterwards; still, at the moment, it was not less the object of his choice, his preference, his will, his pleasure.

It is in the cases where the instruments of palpable enjoyment are given up by one human being for the sake of the happiness of others, that its common popular acceptation renders the use of the word pleasure in its philosophical sense least commodious. He who sacrifices self for the good of others will be said to yield to the dictates of duty, of generosity, of humanity, of benevolence, of patriotism, as the case may be; but generosity revolts against attributing to him the selfish motive of the pursuit of pleasure. There is no harm—indeed there is much good—in the terms of eulogy which are applied to the motives of such actions. Bentham was not less conscious of their excellence than other moralists; but in looking at their direct and immediate motive, he found it the same one ruling principle—the pursuit of pleasure—the doing that which it pleases a man to do—the doing that which volition suggests. The misunderstanding of his opinions arose from the defect already stated—the inability of men to see sources of pleasure to others, in things which were not sources of pleasure to themselves. The sources of pleasure, both corporeal and mental, are almost innumerable; and he made them the subject of a most laborious and minute classification, under the title of “A Table of the Springs of Action.”*

It is probable that this list may not be quite complete; and from the nature of such a task, if the accomplishment of a completely exhaustive list were demanded as a condition of the admission of the Utilitarian doctrines, the condition would probably not be fulfilled. It is the less difficult process, and is certainly not an unfair one, to ask the objector to point out any other motive but his own pleasure as actuating any man when he does that which he chooses to do. When Howard found himself possessed of an unappropriated sum of money, the first use for it that suggested itself was a pleasure trip on the continent; but on second thoughts he devoted it to the accomplishment of his benevolent schemes. In popular language, he was said in this instance to have made a sacrifice of his pleasure, or of his enjoyment; and in the case of an ordinary man, had Howard possessed over him the power of appropriating Edition: current; Page: [24] to the improvement of prison discipline, the money which the owner of it had intended to spend on travelling, and had he so exercised his power, that owner would probably feel that Howard had deprived him of a pleasure. But the source of enjoyment and the will to choose it were fitted to each other, and placed in one mind; and who shall say that the choice headopted was not that which gave Howard pleasure? Of a kindred spirit were the whole of the events of Bentham’s life: they were a rejection of the more gross and tangible objects of human enjoyment: a recourse to elements of pleasure and satisfaction, for which vulgar and truly selfish minds have no appreciation. Seclusion, temperance, and hard labour were preferred, as the outward and visible signs of enjoyment, to popularity, indulgence, or luxurious ease; and the inward source of satisfaction was the consciousness of doing permanent good to the human race. Of his capacity for appreciating a character like his own, let his opinion of Howard stand as an illustration. “My venerable friend,” he says, “was much better employed than in arranging words and sentences. Instead of doing what so many could do if they would, what he did for the service of mankind was what scarce any man could have done, and no man would do but himself. In the scale of moral desert, the labours of the legislator and the writer are as far below his, as Earth is below Heaven. His was the truly Christian choice: the lot in which is to be found the least of that which selfish nature covets, and the most of what it shrinks from. His kingdom was of a better world! He died a martyr after living an apostle.”*

It will not increase our appreciation of such men to endeavour to prove that self-gratification was not their rule of action, and that their minds were not better suited to derive pleasure from such acts, than those of the more ignoble section of mankind whose elements of enjoyment lie on the surface of the earth they tread. As hopeful a task would it be to prove that the father has no satisfaction in denying himself the luxuries of life that he may increase his son’s fortune, or that a wife cannot in reality suffer pain from seeing her husband pursuing a career of vice, if she be assured of a sufficiency of food and clothing to herself so long as she lives. The self-sacrifices made in domestic life are the cause of wonder to those who, not having like ties, have not the same sources of enjoyment: but it is useless to question, that between the doing and the not doing these acts of self-devotion, the balance of pleasure is felt to be on the side of doing them. There is almost an experimentum crucis in some cases where mischief is done by yielding to the pleasures of self-sacrifice. Children spoilt by an over-indulgence, purchased by privation on the part of their parents, are a frequent illustration. To avoid the pain of sympathy, a charitable person parts with money to give it to a mendicant, suspecting probably that he is an impostor and will make a bad use of it, or knowing that indiscriminate almsgiving has a deleterious and degenerating influence on society. Thus, too, will a jury allow a dangerous malefactor to escape and continue his ravages among the community, of which they form a part, because they have not firmness enough to do their duty at the expense of what is called their humanity.

Having found the psychological fact, that each man in all his actions pursues his own pleasure, and laid down the rule that the right end of action is the increase of the sum-total of the pleasure or happiness of mankind, the next question came to be—how the pursuit could be brought to bear upon the end? and he decided that, as a general rule, the happiness of the community would have the greatest chance of enlargement, by each individual member doing the utmost to increase his own. The conclusion, that the pursuit of pleasure should thus be deliberately set down as the proper end of life—the great duty of man—seemed startling to those whose notions of felicity were drawn from its most palpable, but least potent department, sensual gratification. But here again, as in the other departments of his Edition: current; Page: [25] system, he appealed to the conduct of all men—to the views of all moralists—as illustrations that he was founding no new system of morality, but merely clearing up that which had, with more or less of deviation, been acted upon and taught in all ages. The first great point to be kept in view is, to distinguish between the pursuit of immediate pleasure, and the doing that which, probably at an expenditure of present pain, will have the effect of securing a balance of pleasure when the whole transactions of a life are wound up. People call the former the pursuit of pleasure—the latter they call the practice of morality. The gambler, the spendthrift, the drunkard, adopt the former course. Heedless of consequences, they snatch at present enjoyment; but before the end of their days the balance of pleasure has turned fearfully against them. The upright, industrious, abstemious man, has braced himself to resist these allurements. He has struck the balance accurately at the beginning, and at each passing moment of temptation he keeps it steadily in view. When the opportunities of fleeting enjoyment start up before him, he says, “No; I will pay dearly for it hereafter:” it will conduce to his pleasure afterwards that he has avoided it; and, reflexly, to avoid it is pleasure to him at the moment. When his days are ended, the book of life shows a balance of pleasure—an increase to the stock of the happiness of society, to which he has been an ornament and a benefactor by the acts which have conferred felicity on himself. Moralists and divines may disguise it as they will, but the balance of happiness is always the reward which they hold out for good actions. Be temperate—you will secure health and respect. Make your expenditure meet your income—you will avoid shame and embarrassment. Be liberal—you will have the good-will of mankind, their praise, and their kind offices. When the teacher looks beyond the world and opens up motives on which it is not necessary here to dwell, (for Bentham did not discuss religion in itself, but merely spoke of it as one of the influencing engines of society,) the appeal is still the same, and happiness in a future state is held out as the reward of virtue here.

If people did not follow their own pleasure, it might be a puzzling question—what morality ought to teach them? but since so it is, that every action they do is done in the pursuit of their own pleasure, the moralist’s task is simplified. He teaches them how to avoid mistakes and miscalculations. He shows them how they are to obtain in its greatest quantity that which they are in search of.

It will scarcely be denied that every man acts with a view to his own interest—not a correct view—because that would obtain for him the greatest possible portion of felicity; and if every man, acting correctly for his own interest, obtained the maximum of obtainable happiness, mankind would reach the millennium of accessible bliss; and the end of morality—the general happiness—be accomplished. To prove that the immoral action is a miscalculation of self-interest—to show how erroneous an estimate the vicious man makes of pains and pleasures, is the purpose of the intelligent moralist. Unless he can do this he does nothing:—for, as has been stated above, for a man not to pursue what he deems likely to produce to him the greatest sum of enjoyment, is in the very nature of things impossible.*

In having discovered that it is a search after the greatest attainable amount of happiness, the rule of morality is far from being developed. The difficult problem, What line of conduct will be most conducive to happiness? has to be worked out. The Author, however, believed that he had done much to facilitate this operation by laying before people the ultimate, in place of the secondary objects of morality. He admitted that all the world—both the moral and the immoral part of it—were searching for the same desideratum, but he maintained that they would be more likely to find it, if they did not forget the object of their search by having their attention distracted by the various matters they encountered on their way. He found, that in the search two distinct classes of mistakes were made. Some acted hastily, following the dictates of present enjoyment without weighing the consequences; these were the immoral men. Others, after a laborious investigation, Edition: current; Page: [26] divulged schemes, which being acted on, left a balance of pain greater than the pleasure; these were the propounders of false moral doctrines. The object of morality and moral discussions is to show the former the folly of their ways, and to assist the latter in their attempts to discover the right path.

It would be a very palpable mistake to presume that it was the Author’s meaning that immoral practices always bring their punishment with them in this world. The problem he works out is one of chances; not of direct cause and effect. He maintains only the possibility of discovering a moral rule, the pursuit of which will give the individual the best chance of leading a happy life. The principle has been thus propounded by an eloquent disciple—

It may not be accordant with experience that in every individual case the man who lives in the breach of moral rules shall, in exteriors at least, be less happy than some other;—any more than it is accordant with experience that every man of eighty will die before every man of twenty-five. On the contrary it may be allowed to be certain, that in some instances the contrary will happen. But what is urged is, that in the same way as it is proveable by experience that a man would be a simpleton, who with all the chances before him, should choose an annuity on the life of an average man of eighty in preference to one of twenty-five,—so it is proveable that a man commits an error and a folly, who, with all the chances to encounter, chooses the quantity of happiness which shall be consequent on a course of immorality, in preference to the quantity he might have obtained by another course. The way in which each of these propositions must be established, is by individual attention to the evidence, that though now and then a man of eighty sees the funeral of a man of twenty-five, or a man of immoral conduct is (in outward appearance at least) more fortunate and happy than some one of opposite character, this does not destroy the general inference that nine times out of ten the event is of a contrary description, and that the man is a blockhead who makes his election the wrong way. If indeed anybody says he sees reason to believe, that men of eighty are on the whole better lives than those of twenty-five, or that immoral men do upon the whole lead happier lives than moral ones, he is at perfect liberty to support his own opinion. All that is insisted on is, that there are reasons sufficient to induce the greatest part of mankind to come to a contrary conclusion.*

It is one of the evils of the imperfection of language as an accurate vehicle of thought, that the full meaning of what is involved in Bentham’s views regarding the pursuit of happiness cannot be comprehended by any species of simple exposition: the student will know them best by examining them, inductively as it were, in the various works in which they are practically applied. Among the elements of the greatest-happiness principle, or of the utilitarian principle, he will find characteristics very different from that pursuit of sensual pleasure which popular prejudice attributes to the one, or that hard limitation to what are called the immediately useful and rejection of the ornamental objects of life, attributed to the other. There was no one more fully endowed with the feeling, that everything which lifts the soul of man above the clod he treads, and purifies its elements of enjoyment, tends to the fulfilment of that end which he had set before himself as the right one. The progress of a system of intellectual instruction, the most refined and elevated in its nature which the position of the individual could admit of, was one of his favourite schemes—one towards the practical adoption of which he laboured with a zeal worthy of better success. The gradual removal of the pupil’s mind from contact with those objects and practices in which man shows the greatest amount of his animal, and the least of his intellectual nature, was the peculiar moral benefit he anticipated for his system. He was a zealous admirer of what may be called intellectual discipline. He conceived that the minds of youth, in almost all grades, and under all systems of education, were allowed too much relaxation from the bracing influence of severe thought. If it had been in his power, he would have made every man a thinker; he would have taught all men to meditate on the ends of their actions; to check their propensity towards immediate enjoyment, to govern their passions, and to look into the future. It is a common error Edition: current; Page: [27] to proclaim Bentham an opponent of the Fine Arts. The charge was artfully founded on his protest against taxing the poor for national institutions accessible only to the rich:* he was friendly to the devotion of such national funds as were not required for purposes more urgent, to the support of institutions for improving the taste of the people. He was in his own person an accomplished musician, and passionately attached to the pursuit. Towards poetry and painting the bent of his mind did not lead him; but, while he felt that his own intellectual exertions were to be in a different sphere, he denied not the respect due to these arts in the persons of their more eminent professors; and he saw in them great sources of intellectual enjoyment to those whose tastes and habits led them in the direction of such pursuits.

Those petty sacrifices of selfish inclination, for the pleasure of others, which constitute the rules of good-breeding, politeness, and courtesy, formed part of his system of morality. These are not important acts, taken individually; but collectively they are the materials of which much of the happiness of social man is created. He was not deaf to the greater calls for admiration made by that species of disinterestedness, which makes large sacrifices of what is called personal enjoyment, for the good of others. He looked on the disinterested benefactors of their species—men rarely occurring, and highly gifted, as those whose greatest happiness was centred in the consciousness of doing good to mankind; and he conceived it right and just that the acknowledgment of their services should be amply given. But these were not the men for whom he could cast his scheme of morality. Greatly as they raise themselves, in the unapproached grandeur of their minds, above the people of the every-day world, it is for these latter that codes of morality must be constructed; it is to the size of such minds that they must be fitted. It is useless to ask whether it would be better that men should find their chief enjoyment in something higher than the usual objects of ambition; suffice it that experience shows these to be the ruling motives, and therefore the instruments with which the moralist must act. He who addresses himself only to Howards and Washingtons, leaves several millions of well-intentioned men, with narrower minds and lower objects of ambition, unguided. The economy of the world would be different from its present constitution were it otherwise. “The virtue of beneficence, though its objects embrace all mankind, can be exercised to a very limited extent, and, as applied to any single individual, yet narrower is its sphere of action. And this is well; Edition: current; Page: [28] for, if every man were disposed to sacrifice his own enjoyments to the enjoyments of others, it is obvious the whole sum of enjoyment would be diminished, nay, destroyed. The result would not be the general happiness, but the general misery.”* Again—“Take any two persons, A and B, and suppose them the only persons in existence: call them, for example, Adam and Eve. Adam has no regard for himself: the whole of his regard has for its object Eve. Eve, in like manner, has no regard for herself: the whole of her regard has for its object Adam. Follow this supposition up: introduce the occurrences which, sooner or later, are sure to happen, and you will see that, at the end of an assignable length of time, greater or less, according to accident, but in no case so much as a twelvemonth, both will unavoidably have perished.”

It is not inconsistent with an appreciation of disinterestedness, to hold that mankind would not be advanced but deteriorated, if all the shopkeepers deserted their counters to revolve schemes for the public good. The produce of the selfish industry of commonplace moral men and good citizens, is the fund with which philanthropy deals on an extensive scale. Aggrandizing, money-getting Britain, gave twenty millions for the emancipation of slaves: how could such an act be accomplished by a nation of Aristideses and Epictetuses?

Bentham’s appeal to the practice of mankind was unsuccessful in this respect, that, in the separate course of action of the virtuous and the vicious man, there were so many apparent contrasts, that it was very difficult to find any common element in their motives. But even when it was explained that the former made a sacrifice of the present to the future, it did not appear that he encountered and overcame difficulties which the vicious man failed to defeat, in anything like the proportion in which the two differed from each other in the quality of goodness. “The one man,” it would be said, “is wicked, and the other is virtuous; but if wickedness be a yielding to the temptations of immediate appetite, and virtue be the resistance of them, the virtuous man’s life must be a continual up-hill struggle. Now we see none of this: he goes on easily and naturally; he makes no great effort to be virtuous—not even so great an effort as that which his vicious neighbour makes, and makes in vain—to reclaim himself: it must just be the natural tendency of the one to be a good man, and of the other to be a bad man.” It is undoubtedly the case, that there are physiological and psychological differences, which will make the avoidance of a given act a matter of greater effort on the part of one man than on that of another; but it does not the less follow, that there is a measure of self-restraint at the command of both, and that the individual will be better and happier if it be exercised. The circumstance which misleads the world, is the ease with which self-restraint is accomplished after it becomes a habit. The drunkard must tear himself from his stimulant, with a violent effort; but the man who has overcome the first temptation to indulgence meets the recurrence with quiet ease.

In proportion as a man has acquired a command over his desires, resistance to their impulse becomes less and less difficult, till, at length, in some constitutions, all difficulty vanishes. In early life, for example, a man may have acquired a taste for wine, or for a particular species of food. Finding it disagree with his constitution, little by little, the uneasinesses attendant on the gratification of his appetite become so frequent, so constantly present to his recollection, that the anticipation of the future certain pain gain strength enough to overpower the impression of the present pleasure. The idea of the greater distant suffering has extinguished that of the lesser contemporaneous enjoyment. And it is thus that, by the power of association, things, which had been originally objects of desire, become objects of aversion; and, on the other hand, things which had been originally objects of aversion, such as medicines, for instance, become objects of desire. In the case above referred to, the pleasure not being in possession, could not, of course, be sacrificed—it was non-existent; nor was there self-denial in the case, for as the desire which had originally been calling for its gratification was no longer in existence, there remained no demand to which denial could be opposed. When things Edition: current; Page: [29] are in this situation, the virtue, so far from being annihilated, has arrived at the pinnacle of its highest excellence, and shines forth in its brightest lustre. Defective, indeed, would that definition of virtue be, which excluded from its pale the very perfection of virtue.*

But the main difficulty which has been raised against the Greatest-happiness principle, is in the allegation, that each man, in pursuing his own greatest happiness, will sacrifice that of others; and that to call upon a man to pursue his own greatest happiness in this world is simply inviting him to pillage his neighbours of their proper fund of felicity. The answer to this is the same plea on which the captain of a ship, which has run short of provisions, would recommend all the crew, both weak and strong, to submit to an arrangement for short allowance. To A and B alone it would be their greatest happiness, perhaps, to have the run of the ship’s store, but there are C, and D, and E, and F, with the same inclinations counteracting them; and though A and B might resist all the calls of humanity and sympathy, and might be even able, at the moment, to carry their point of preference by force, they would run the risk of a final accounting with the law. All, therefore, see that it will be their greatest happiness to make an average division; and good ship-economy will show how this is to be accomplished on such a system as to make an equal distribution, keeping in view the number of the crew and the time they are likely to be at sea. Just so is it in the world at large. Each man feels that the best security for himself getting a share of happiness, is to give way to a certain extent to his neighbour. Such is the habit more or less in every portion of the globe; and it is in the countries where practice has settled the proportion, of how much should be kept and how much given away, with the greatest accuracy, that the end of morality has been best accomplished. The strongest counter-illustration which an opponent could find, is, perhaps, that of a despotism; but even here the principle is followed, though, according to our Author’s opinion, very barbarously and unsatisfactorily. If the despot presides over a docile people who will not rebel, it is a sign that they prefer the ease of submission to the exertion of independence, and they are following their happiness in their own way. Among such a people, the temptation to play the pranks to which despotism is liable, is greatest, and, to say the truth, does least harm. But if an autocrat were calculating what course would produce him, on the whole, the greatest happiness, it is believed that he would not find it to be in roasting his subjects before slow fires, or skinning them alive, or hunting them with blood-hounds; and that the despot who has taken the best estimate of a happy reign, is he who has resolved to make his sway wise and beneficent; to do justice and to love mercy. But it is seldom that the embers of the spirit of resistance have been so completely extinguished that no gust will waken them into a blaze; and more or less, the fear of resistance holds the despot in awe, providing in his person an illustration, though certainly but a rudely developed one, of the counteraction which is supplied by the universality of the pursuit of self-enjoyment.

There can be no better illustration of the wide embracing influence of what has been denounced as “the selfish system,” than its extension not only to all classes of mankind, of whatever colour or persuasion, but to every living thing to which the Deity has given, along with animal life, the capacity of physical pain and pleasure. Bentham was a strenuous supporter of the legislative protection of the brute creation from cruelty. Perhaps in his own case he needed no train of philosophical deduction to teach him the duty and pleasure of treating them with humanity; but he thought their claims not the less worthy of attention when he could place them on the ground of self-interest. He believed that it was the interest of mankind at large to suppress all indulgence in cruelty, because the habit of being callous Edition: current; Page: [30] to animal suffering propagates itself in crimes of violence and brutality—a phenomenon which will have to be farther noticed in its relation to the subject of Punishment. In another form he inculcated the cause of humanity on grounds of self-interest, by displaying the high intellectual nature of the enjoyment derived from its exercise.

Bentham made a rigid analysis of the various forms in which the fear of consequences check a man in the pursuit of what may be his own individual pleasure; and having ranged and grouped them, he divided them into four classes and called them sanctions—the chains, as it were, which bind a man from following his own wild will. These are, 1st, The Physical Sanction, viz., the bodily phenomena, which, in the course of human conduct, arise from certain classes of acts, and punish the individual by the painful sensation created, or reward him by the pleasurable. Disease produced by dissipation—health nourished by temperance and exercise, are the most common and the broadest developments of this sanction. 2d, The Political Sanction, which is in other words the law of the land, created for the punishment of offences and the protection of the virtuous. 3d, The Moral Sanction, which is the operation of the moral habits of the state of society he is in, so far as it affects the individual—the difference between this and the legal sanction will be afterwards particularly explained, because the two together occupy the greater part of Bentham’s labours. The fourth is the Religious Sanction, acting through the Anticipative operation of future rewards and punishments.* The proper direction of these sanctions constitutes the field of labour of a man who would do good to his species. The medical man—not he who merely cures diseases individually as they are presented to him—but he who investigates them in the direction of cause and effect, and gives the world the benefit of his discoveries, is a labourer in the cause of the proper end of the Physical Sanction. He discovers the sources of disease, leaving probably to others the task of observing how much happiness a man sacrifices by encountering it, and how much happiness he will save by avoiding it. The moral philosopher is the man who deals with the moral sanction. As to the legal sanction, there are few men, from the emperor down to the non-elector wearing a party badge, who has not some influence in its operation; and a right influence is developed in the making of good laws, a wrong in the making of bad. The influence of the religious sanction is also, more or less, in all men’s hands, but chiefly in that of the clergy. It is, under some circumstances, the most potent, either for good or evil. Of its operation in the former shape, no illustration will be needed in a Christian land. For the latter, we can look at all the crimes which have been produced by religious influences,—the great tragedy from which Christianity dates, the Massacre of St Bartholomew, the Inquisition, the murder of Archbishop Sharp, the persecution of the Irish Catholics. Of the operation of the sanctions, the following is an illustration from the Deontology—it is a sort of narrative adaptation of Hogarth’s Industry and Idleness. It will be observed that it admits of a fifth sanction—the social—which the author seemed to consider might either be viewed separately, or as a branch of the moral.

Timothy Thoughtless and Walter Wise are fellow apprentices. Thoughtless gave in to the vice of drunkenness; Wise abstained from it. Mark the consequence.

1. Physical sanction. For every debauch, Thoughtless was rewarded by sickness in the head; to recruit himself he lay in bed the next morning, and his whole frame became enervated by relaxation; and when he returned to his work, his work ceased to be a source of satisfaction to him.

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Walter Wise refused to accompany him to the drinking table. His health had not been originally strong, but it was invigorated by temperance. Increasing strength of body gave increasing zest to every satisfaction he enjoyed: his rest at night was tranquil, his risings in the morning cheerful, his labour pleasurable.

2. Social sanction. Timothy had a sister, deeply interested in his happiness. She reproved him at first, then neglected, then abandoned him. She had been to him a source of great pleasure—it was all swept away.

Walter had a brother, who had shown indifference to him. That brother had watched over his conduct, and began to show an interest in his wellbeing—the interest increased from day to day. At last he became a constant visiter, and a more than common friend, and did a thousand services for his brother, which no other man in the world would have done.

3. Popular sanction. Timothy was member of a club, which had money and reputation. He went thither one day in a state of inebriety; he abused the secretary, and was expelled by an unanimous vote.

The regular habits of Walter had excited the attention of his master. He said one day to his banker—The young man is fitted for a higher station. The banker bore it in mind, and on the first opportunity, took him into his service. He rose from one distinction to another, and was frequently consulted on business of the highest importance by men of wealth and influence.

4. Legal sanction. Timothy rushed out from the club whence he had been so ignominiously expelled. He insulted a man in the streets, and walked pennyless into the open country. Reckless of everything, he robbed the first traveller he met; he was apprehended, prosecuted, and sentenced to transportation.

Walter had been an object of approbation to his fellow-citizens. He was called, by their good opinion to the magistracy. He reached its highest honours, and even sat in judgment on his fellow apprentice, whom time and misery had so changed, that he was not recognised by him.

5. Religious sanction. In prison, and in the ship which conveyed Timothy to Botany Bay, his mind was alarmed and afflicted with the apprehension of future punishment—an angry and avenging Deity was constantly present to his thoughts, and every day of his existence was embittered by the dread of the Divine Being.

To Walter the contemplation of futurity was peaceful and pleasureable. He dwelt with constant delight on the benign attributes of the Deity, and the conviction was ever present to him that it must be well, that all ultimately must be well, to the virtuous. Great, indeed, was the balance of pleasure which he drew from his existence, and great was the sum of happiness to which he gave birth.*

There are two main objects in view, in those of Bentham’s works which are intended to influence human action—the direction of the Moral, and the direction of the Legal Sanction. The one is to instruct the individual as to what he ought to do—the other is to instruct the legislator what he ought to enforce and restrict. Where the former has been the end in view, the science has been denominated Morals or Ethics—by Bentham it was called Deontology, from the Greek το Δέον, That which should be, or which is right. Where the latter end is held in view, the science is called Politics or Political Philosophy, and embraces within it the art and science of Legislation. To this department of his general system for the regulation of human actions, by far the greater part of Bentham’s works have been devoted. Although the Greatest-happiness principle be the end in view of all the author’s writings, whether they instruct men how to direct their own individual actions, or teach them how to make rules for the action of others, yet there is a broad demarcation between these two subjects, beginning at the very root of both of them. That which it may be each man’s duty to do, it may not be right for each legislator to enforce upon his subjects, because the very act of enforcement may have in it elements of mischief to the community, preponderant over the good accomplished by the enforcement. In other words, it may tend to the greatest happiness of society, that a man should voluntarily follow a certain rule of action; but it may be injurious to the happiness of the community in general, to compel him to follow such a rule if his inclination be against it. For instance, in the Defence of Usury, the lending and borrowing of money at high interest, for the purpose of improvidently ministering to extravagance, is condemned; but, on the other hand, it is found that the laws for suppressing usurious transactions are so mischievous Edition: current; Page: [32] in their effect, that they too are condemned for precisely the same reason—their malign influence on human happiness. Thus it is, that the rule of action for the individual, and that for the legislator, are kept distinct from each other; and it is shown by Bentham, that much of the mischievous legislation which he attacks has its origin in this distinction being overlooked. Legislators forget that they have to strike two balances, and not one only, before they act. The first arises out of the question, whether a given course of action is beneficial to the human race; and when this is answered in the affirmative, there comes the second, and frequently overlooked question, whether the enforcement of it, by any laws within the power of the governing authority to put in practice, will likewise show a balance of benefit. Moreover, as legislators often forget to strike the second balance, they also often come to a general conclusion without taking the two seriatim, and, either omit altogether, or fail in taking a due estimate of the first. But it is clear that the law which is made without the first balance being struck, as well as the second, must be unapt. Unless it be first settled that the thing proposed to be done would be good if done voluntarily, there is no room for propounding the question, whether it can be advantageously enforced. It thus occurs, that the field of Deontology embraces within it the field of legislation, and that the two are not co-extensive, the latter being smaller than the former. From this want of co-extensiveness there arise mistakes in arguing from the latter to the former. The Law is a choice of evils, because coercion is itself an evil. This element of evil is not inherent in a man’s voluntary acts, and, therefore, in them, no allowance can be made for it. If, therefore, a man square his voluntary morals by the law, he may act on a totally erroneous estimate of what they should be. This he is liable to do, even in the case of the law being deduced from a moral system abstractly accurate; and the circumstance, that legislators are liable to make mistakes and erroneous deductions, increases the chances against his being right.*

In pointing legislation towards the distribution of the greatest possible amount of happiness among mankind, the chief difficulty was found to consist in the adjustment of the proper proportions in which certain objects of the law, to some extent conflicting, should be respectively aimed at. These objects Bentham classified as,

Security,

Subsistence,

Abundance,

Equality.

These have all to make, to a certain extent, sacrifices to each other, and the source of difficulty is in the adjustment of these sacrifices. There can be little happiness in a state where there is no security for property; but, on the other hand, if the right of property were so absolute, that one portion of the population should be permitted to starve to death ere the property of those who happen to be richer can be touched, it is clear that there will be much misery in such a country, and that a feeling of unhappiness, most vividly experienced by those who are subjected to actual want, will spread upwards, in the form of apprehension, among those who have more or less chance of being involved by the revolutions of the wheel of fortune in such a calamity. Hence comes the necessity for a provision for the poor, that the unfortunate may be preserved from death by starvation. But the principle of security to property and industry, on the other hand, demands that this provision be so regulated, that it shall never become an inducement to able-bodied men to live upon the property of others instead of resorting to honest industry. As the Author happily says, “The treasure of the comparatively rich is an insurance office to the comparatively indigent;” but care must be taken that the Insurer be not bound Edition: current; Page: [33] to pay till the calamity he insures against has occurred. The law supplies this insurance office to the public by favouring abundance—allowing means for the accumulation of capital, and protecting it when it is accumulated. The various advantages accruing from the existence of capital are for consideration under the head of Political Economy.

The principle of equality has a rivalship, to a certain extent, with that of abundance. The more extensively property is distributed, the more happiness does it produce; for the amount of felicity which each person enjoys is not increased with the relative proportion of his riches. A may have nine times the riches of B without having twice as many sources of enjoyment. It would thus conduce to general happiness if there were many small fortunes and few large; but here security and abundance come in for their claims. Unless men be assured in the enjoyment of their wealth, they will not exert themselves to increase it; and that abundance, so beneficial to the community, will fail to be created. But, on the other hand, the law produces distinct mischief by favouring or compelling the accumulation of property in the person of individuals. The former it does in the hereditary system—the latter in the law of Entail. The law, besides its direct effect, has its bearing on the habits and opinions of society, and the malign influence of the hereditary principle has spread itself beyond the sphere of its mere legal enforcement. Legislation, instead of favouring the accumulation of a family property in favour of one member, should have directed an equal distribution within certain bounds; and thus, both in law and in national habits, equality would have been the rule, and the hereditary principle the exception.*

The Greatest-happiness principle may perhaps receive elucidation from some account of the most important of the subsidiary principles which its Author deduced from it,—viz., The Non-disappointment or Disappointment-preventing principle, developed in measures tending to obviate disappointment, and the pain with which it is always accompanied.

Among the cases in which he found that legislation, in its hasty and empirical course, had neglected to strike the balance between good and evil with sufficient minuteness, was that in which small clusters of individuals came to be affected by general legislative measures. He kept in view, that individual interests are the units by the aggregation of which the collective term, “the public interest,” is created, and that there is no living being whose certain or probable welfare, in relation to any proposed measure, should not be thrown into the scale when its disadvantages are weighed against its advantages. The principle, that private interests should yield to the public good, he thus so far modified, that from the amount of any public good done, he deducted whatever private interest might be injured. In estimating the evils done to individuals, he examined minutely the pain caused by disappointment, and found it to be, on arithmetical principles, greater in the average case than the pleasure of acquisition, and than the pain (if it can be so called) of non-acquisition. The income of A is taken from him and given to B—A loses his all, but B gets merely an addition to what he had before. The whole pleasure in the possession of a source of livelihood is removed from the one; the other only receives the secondary pleasure of an increase. Let A’s income be dispersed among the public—he loses all, and is eminently unhappy; while that which constituted the source of his former content is distributed in portions so minute, that the amount of happiness produced by it may be scarcely perceptible. On the other hand, so long as A is left in the enjoyment of his income, according to the prospects held out to himself and to society at large, from the first,—as no man expected to obtain any of it, no one is disappointed by its not being distributed, and he himself is content. The non-disappointment principle is the great foundation of the Edition: current; Page: [34] sacredness of property. More injury than good is done, by allowing either individuals, or the public at large, to interfere with that which a man has, under the sanction of the laws, been allowed to call his own. The pain of disappointment to the proprietor is the primary evil of attacks on property. The secondary evil is the alarm to society at large,—the dread which each individual has, that he too may be the victim of spoliation.

Like the other great principles expounded by our Author, the non-disappointment principle pervades society in all its acts; but it was his task, by a minute analysis of its principle and operation, to discover cases in which its application had been neglected and misunderstood. He applied it to the principle of compensation for offices abolished, or for any other injury caused to individuals by the march of improvement. He was in favour of allowances to those whose official emoluments were affected by law reforms,* and to the owners of slaves on emancipation; and he even hints at such a concession to the owners of proprietary seats in parliament, in the case of their disfranchisement by parliamentary reform. In the estimate of the incidence of good and evil on society at large, he saw that there was a clear gain in a government following out the principle, that when a man steadily and honestly follows his calling, and makes his livelihood by it, he should feel the assurance, that no act of the government of his country shall remove it from him. But he found a secondary advantage in the principle of compensation: it has a tendency to remove the opposition perpetually operating against improvement, in the sinister interests of those who benefit by abuses. Pay off the incumbents, is thus a liberal policy, by which those who are most conversant with the operation of any institution, are relieved of a temptation to overlook or defend its defects.§ The system is capable of abuse. Offices might be created for the compensation which will accrue on their speedy abolition. But this is an evil as much to be guarded against on true utilitarian principles, as the other; and it has to be remembered, that a people who take upon themselves the burden of compensation, are the more likely to criticise the propriety of the institution created. The countries most liable to government abuses of every description—despotic and disorganized states—are, at the same time, those where the interest of individuals is most ruthlessly overwhelmed in national changes.

Bentham extended this principle to Finance, holding that, apart from other elements of good or evil, it made indirect preferable to direct taxation. It is better that a deduction should accrue to a sum of money before it reaches the possession of him for whom it is destined, than that, after being in his hands, a portion of it should be withdrawn. The operation of the principle in this department he found to be limited. There were but few cases, such as that of the legacy duties, in which the deduction could be truly said to be practicable before the money was in possession—in the case of an annual salary, the mere knowledge of the amount is nearly equivalent to possession, and a deduction before payment differs little from a charge after payment. A tax on consumption is another method in which the principle may be brought to bear. The tax is paid, in the first place, by the dealer, to whom it is, in reality, not a tax, but a portion of capital expended in the form of duty which otherwise he would have to expend on commodities. The purchaser pays dearer for the commodity; but it is maintained that, in doing so, he does not experience the same feeling of hardship which would arise if the sum charged as duty were separately taken from him after his purchase has been made. In the general case, a direct tax is a thing obligatory; a tax on consumption, unless it be on the absolute necessaries of life, calculates on its voluntary adoption by the purchaser. This species of tax has, it is true, its defects, in as far as it may impede or disturb commerce and Edition: current; Page: [35] manufactures; but these are objections belonging to Political Economy.

A plan was proposed by Bentham for raising a revenue by the application of this principle to the law of succession, and in arranging his plan he inquired into to the principles of succession, and the extent to which the existing systems in Britain are founded on reason. Whatever theorists may promulgate on the anomaly of a man dictating for his property after death, or on the principle that at when the man is done with the use of his goods they should go to the state, the practice of mankind in all places and times has supported a law of succession; and an examination, on the principles of the utilitarian philosophy, vindicates the practice as a right one. He who has brought children into the world is the person against whom there is the strongest claim to support them, and the law justifies this claim by giving them his property on his death. If children have been brought up in the gratification of certain tastes and luxuries; in short, in a particular rank of life and with a certain expenditure—it is better, so long as no one is injured by it, that they should continue in the same course. The most simple and the least injurious method of giving them the means of doing so, is by continuing in their possession the wealth by which the luxury and rank are purchased, on the death of its previous holder.* Let the daughter of a labourer be left without any pecuniary provision—it is nothing but what she expected, she suffers no hardship or disappointment, and goes forth to her labour with a glad heart. Let the daughter of a wealthy owner or merchant be left in the same position—a fearful calamity has fallen upon her—a calamity undeserved, and heavier than the punishment of many a formidable crime. So much for the case of the individuals; but the benefit of succession operates also on the public at large. The providing for a family, or, even if a man have no family, the faculty of destining his money to what purposes he pleases, is one of the greatest inducements which he can have to make and to save property—the one an increase of the general capital of the community, the other a preservation of the increased capital from dispersal. Were it not for the wife and children he will leave behind him, there are many men taxing their heads and hands to great efforts who would be idle and worthless; there are many founders of great manufacturing and commercial projects who, but for such a motive, would never have thus distributed the means of industrial wealth around them.

But it comes to be a question whether the law has not carried the operation of succession beyond the bounds within which it is useful. Between the children who have shared in their parents’ fortune, and the distant relation who never heard of the wealth thrown at his feet, till some scrutinising lawyer made the discovery of his relationship, there is the greatest possible difference: there are strong reasons for the law of succession operating in the one case—none for it in the other. On this principle Bentham founded his plan that succession should open only to near relations, and not to distant. If the law were once so established and known, there could be no disappointment among distant relations, (excepting those to whom the law was ex post facto;) but even independently of a knowledge of the law, there are multitudes of cases where the distance of the relationship precludes expectation. It is true that a man may adopt a distant relation—the same who, in the present course of succession, would be his heir—as a member of his family, partaking in his luxuries, and acquiring habits, a sudden check on which would be a hardship. This is true; but in the same manner may a man adopt a stranger; and in either case there is proposed to be open to him the right of bequest. The line which Bentham proposed to draw, is that of the forbidden degrees. He suggested that, where the nearest relation to the deceased is beyond those degrees, there should be no succession, except through bequest. He found in this plan two secondary advantages; it would cut off a great source of expensive Edition: current; Page: [36] litigation, (of which the country, in providing judicial establishments, bears part of the expense,) in the enforcement of distant claims to relationship through obscure and conflicting evidence; and it would afford an inducement to men having property to leave behind them, to marry. The plan is developed in the tract called Escheat vice Taxation.*

SECTION III.: THE PURSUIT OF TRUTH.—FALLACIES.—PRINCIPLES OF EVIDENCE.

Believing that falsehood was one of the main instruments of evil to mankind—that a regard for perfect truth was one of the greatest safeguards against the various means by which sinister interest could operate to the evil of society, Bentham made war against mendacity in every form in which it could raise its head. He found that the ingenuity of sinister interest had here covered society with a net-work of evil, through the meshes of which it required the most vigorous efforts of the understanding to clear a way. He found a popular notion, that it was in certain words used, and not in the act of deceiving, that the offence of falsehood consisted. The shepherd in the fable, who promised to the stag not to give information of his hiding-place, did not tell the hunters where it was, but pointed with his finger to the spot. It was the interest of persons who had done such deeds to remove the odium from the act of betrayal to that employment of false words called a lie; but in Bentham’s view, men might stumble among the ingenious intricacies of words, and he found no criterion of criminality but in the thing done through their means. Words, the simple purport of which would convey a falsehood, may be uttered in a manner and with a purpose to put the party right, and keep him from deception. On the other hand, words signifying the truth are often made a mere effectual cover to the falsehood they are intended to convey. A newspaper, the other day, wishing to show that certain operations abroad had been carried on in consequence of instructions from home, stated that such instructions had been sent out, but did not state that they had not arrived. Almost every species of commercial deception is carried on in words that are in themselves true. When emigrants are enticed to embark with their little property for a colony where they are ruined, the inducement is, in general, some perfectly correct description of luxuriant vegetation and salubrious climate, which is all deceptious, because it is not stated that there is no means of making the natural profusion available—that there is no commerce with the place—no system of inland conveyance, and no harbour. An auctioneer lately advertised an estate for sale in Canada, “containing a quantity of fine old timber,” in the hope that some one who did not know that timber in Canada is worth less than nothing, might act on the advertisement. A common method of deceiving without words is, for a man to act with a political party, in its arrangements preparatory to some great conflict, for the purpose of being counted too good a friend to be questioned, and then desert it, on the plea that he never promised to support it. All these acts have in them whatever there is of evil in a lie. It has become the practice to refer to them as the “speaking the truth, but not the whole truth,” an unsatisfactory expression, which seems to intimate that they have in them at least a portion of the virtue of truth. Let them be looked at simply in the result intended to be accomplished, and so judged, and then they will be seen clearly to be in every respect equivalent to lies.

As the effects of falsehood are of the most varied character, ranging from the highest crimes to the most paltry and unpunishable social frauds, there cannot Edition: current; Page: [37] be any measure of punishment for it, (of punishment whether as administered by the Law, or by the opinion of society,) but in taking the measure of the offence which it is made the instrument of perpetrating.* A lie producing death is the offence of murder; a lie giving an undeserved character of excellence to an article of commerce for the purpose of making it saleable, is but a petty fraud. Can it be said that these offences are equal in magnitude? Yet if the offence be in the lie, and not in the effect produced by it, the criminality of the two cases is precisely co-extensive, for the verbal falsehood is as distinct in the one as it is in the other. On this point Bentham found the laws for the punishment of judicial perjury defective. The criminality was thrown on the ceremony, with which the falsehood is decked, and not on the effect produced by it. To tell a falsehood in a court of justice cannot be, under any circumstances, other than a crime of high magnitude; but between the case of a man swearing away the life of another, and that of a man swearing five pounds away from its right owner, there is surely a greater difference than between the saying the lie with, and saying it without certain formalities. Bentham made an accurate analysis of judicial falsehoods, for the purpose of measuring the extent of their criminality by that of their respective evil effects, and he introduced the new distinction between temerarious and mendacious falsehood. Among those who looked merely at the words spoken as the offence, when it turned out that the speaker did not anticipate the meaning that would be attached to them, or would not have uttered them if he had known them to be false, he was considered innocent. But Bentham, on the principles on which he who fires a pistol into a church, or drives furiously through a crowded street, is held responsible for the mischief he may occasion, did not see any reason why the individual who maims or slaughters the person or reputation of another by rash words, should not be equally responsible.

On an examination of the various processes through which the truth, in regard to the merits of human actions, is obscured, the common practice of giving a good or bad character to motives, according to the feelings of the person who is speaking of them, presented itself as one of the most common devices of falsehood. Results are open and susceptible of examination—motives are hidden in the bosom of the actor; hence those who love darkness rather than light will more readily exercise their ingenuity in giving a character where its truth or falsehood cannot be detected, than in examining that which is spread before the world.

“It is the act, and not the motive, with which we have to do; and when the act is before us, and the motive concealed from us, it is the idlest of idling to be inquiring into that which has no influence, and forgetting that which has all the real influence upon our condition. What acts, however outrageously and extensively mischievous, but may be excused and justified, if the motives of the actor, instead of the consequences of the act, become the test of right and wrong? Perhaps there never was a group of more conscientious and well-intending men than the early inquisitors; they verily believed they were doing God service; they were under the influence of motives most religious and pious, while they were pouring out blood in rivers, and sacrificing, amidst horrid tortures, the wisest and best of their race. Motive, indeed! as if all motives were not the same,—to obtain for the actor some recompense for his act, in the shape of pain averted, or pleasure secured. The motive, as far as that goes, of the vilest, is the same as the motive of the noblest,—to increase his stock of happiness. The man who murders, the man who robs another, believes that the murder and the robbery will be advantageous to him,—will leave to him more happiness than if he had not committed the crime. In the field of motive, however, he may make out a case as recommendatory of his conduct, as if he were the most accomplished of moralists. To say that his motives were ill-directed to his object, is to reason wisely with him; to say that his motives had not the object of obtaining for himself some advantage, is to deny the operation of cause on effect. There is,—and the existence of the disposition is a striking evidence of the tendency of men towards despotic assertion,—there is by far too great a willingness to turn away from the consequences of conduct in order to inquire into its sources. The inquiry is a fruitless one, and were it not Edition: current; Page: [38] fruitless it would be useless. For were motives other than they are,—were they fit and proper evidence of the vice or virtue of any given action,—it would not be the less true, that opinion could ultimately have no other test for judgment than the consequences of that action. A man’s motives affect nobody until they give birth to action; and it is with the action and not with the motive, that individuals or societies have any concern. Hence, in discourse, let all indications of motives be avoided. This will remove one spring of error and false judgment from the mind of the speaker, and from the minds of the hearers one source of misunderstanding.*

In a minute analysis of the subject of motives, in another part of his works, he showed that the system of appreciating motives as good or bad, even if their goodness or badness could be discovered, proceeded on a false idea of what motives really are. It is to intention with relation to acts, that merit and demerit are applicable; for motives in themselves are neither good nor bad. There is no motive that may not lead to the best or to the worst of actions. A desire to preserve his family from starving is called a praiseworthy motive, so long as it prompts a man to work honestly for his bread; but who shall say that it is a praiseworthy motive, when it directs him to the highway with a pistol? The mischievousness of his act we can clearly calculate—the mischievousness of his intention we may estimate, even if he has been unsuccessful in his attempt to put it in practice; but we shall in vain search for a just attribute to his motive.

The petty insincerities evolved in the course of casual disputes, for the purpose generally of obtaining a temporary intellectual victory, were occasionally the subject of Bentham’s reprehension. He did not consider that this habit could be compared in point of evil with many of the other sources of untruth to be found in the practice of society: but it had its sphere of mischief, and was, consequently, worthy of exposure. He says:—

Avoid all arguments that you know to be sophistical. Think not, by shutting your own eyes against the weakness of your statements, that you have thereby shut the eyes of your hearer. Your sophistry will but irritate, for sophistry is not only uncandid, but dishonest. It is an attempt to cheat, not the purse of another, but his senses and his judgment. His aversion to you will be awakened by your effort to shine at his expense; and his contempt will be roused for the folly that supposed it was able so to shine. In all argument be candid, for the sake of your comrade and for your own sake. The triumph of an argument which is known and felt to be unfair and unfounded, is a wretched exhibition of perversity. If successful, it can serve no interests but those of fraud: if unsuccessful, it brings with it the consequences of blundering and detected dishonesty. Constituted as society is, with its errors and prejudices, its narrow interests and interested passions, the pursuit of truth makes demands enough upon courageous virtue; for he who goes one step beyond the line which the world’s poor conventions have drawn around moral and political questions, must expect to meet with the thundering anathemas and obloquies of all who wish to stand well with the arbiters of opinion. Let no searcher after truth be led into the labyrinths of sophistry. He will have enough to do in order to make good his ground one step beyond that trodden by those who dogmatize about decorum, and propriety, and right and wrong.

In many established institutions Bentham found principles tending to the commission of falsehood, and to the designed obliteration of the distinction between the truth and a lie. Of these the most prominent were Oaths, in their two classes, Promissory and Assertory. A Promissory oath, such as an oath of allegiance, is an obligation taken not to know the truth; or, if it should be known, not to act upon it. It is generally imposed under the influence of bribery and intimidation—at the time when a man has the inducement of some benefit, such as the appointment to office—to harden his conscience against the iniquity. It binds the individual down to a certain line of conduct, however clearly his conscience, aided by experience and reflection, should afterwards be opened to the evil of the course. To some it is a drag, preventing them from doing what is right; for they feel that they have already registered a vow in heaven to do what is wrong. To others it is a ready excuse for the wrong they are inclined to: they have sworn to do it, and it is useless to tell them it is not Edition: current; Page: [39] right. George III. laid the responsibility of the American war, and of his resistance to the Catholic claims, on his Coronation oath: he had sworn to preserve his dominions entire: he had sworn to preserve the Church. He was the interpreter of the meaning of these oaths, and the two questions were removed from the operation of the inquiry—what is right and what wrong? The claims of mercy and justice might cry aloud,—hundreds of thousands of his own subjects might suffer the frightful death that is caused by the hardships of unsuccessful war, in the vain attempt to inflict the same calamity on hundreds of thousands of unoffending foreigners—it mattered not: the cause was prejudged, a vow had been registered in heaven, and it must be fulfilled.*

But the most pernicious of all promissory oaths are subscriptions to declarations of faith—to religious tests. They are a direct bribe to perjury—perjury which is daily committed. Whether, having serious differences of opinion on the subject, the candidate for office deliberately sets his hand to that which he disbelieves, or, purposely closing his eyes to the genuine meaning of the words, he, at the same time, shuts his ears to the voice of conscience, by carelessly signing as a “matter of course,” the effect is equally pernicious in poisoning the stream of public morality—poisoning it at its very fountain, the institutions where learning, and morality, and religion are promulgated—poisoning it through the very hands of those who are under the most sacred of real obligations to keep it pure and uncontaminated. Bentham could never refer, without the most lively indignation, to that most flagitious of shapes in which this vice is practised, when the adherence to a certain array of complex doctrines is extracted from youth, purposely and avowedly before they are capable of comprehending them; the thing which is done when they are required, before they know the doctrines of the Church of England, to declare what side they will take after they do know them. With the same unconsciousness with which other youths have acted, and will act, he signed his adherence to the Thirty-nine Articles on entering himself at Oxford; and the act was one to which he could not refer down to the last days of his life without a feeling of bitter remorse.

The evil effects of assertory or judicial oaths he did not find so flagrant. He held that some formality was necessary as a sanction for truth—necessary to this extent, that the witness might, by its use, be put upon his guard that he shall be made judicially responsible if he tell a falsehood. But the effect of making this ceremony a sacred invocation he maintained to be, that the criminality of falsehood was removed to the wrong place. Instead of being centered in the mischief occasioned by the lie, it was attached to the profanation of the ceremony. Thus, judicial falsehood, instead of being like theft or forgery, a crime between man and man, was converted into an offence against God. Hence it resulted, that the real ingredient in the offence was lost sight of, and that men believed that if they could stand right on the subject of the profanation, the injury committed was no wrong. Multitudinous are the devices that were fallen upon to evade the oath; for wherever a man could persuade himself that he was not pledged to the Deity, (and in many a case the conclusion has been easily come to) he was free; for neither law nor morality said it was a crime to accomplish any object by a testimonial fraud, if it were not accompanied by a false oath. The danger of the fallacy is in this, that, as the sanction for truth is hidden with his other religious opinions in the breast of the witness, no one can tell whether it is in operation or not. It is a simple doctrine, the practical application of which can be easily calculated on, that if a witness, by the nature of his evidence, Edition: current; Page: [40] leads twelve men to convict another of murder unjustly, he is himself guilty of murder: but you must have found your way to the bottom of his soul, and must know his whole system of religion, before you are assured that he holds any given ceremony a sacred obligation made between the Deity and himself.*

The oath applied to jurymen in England, was one which Bentham held as sui generis in its absurdity and self-contradiction. Twelve men are compelled solemnly to swear that they will come to a decision according to their conscience, and they are then starved till they declare themselves all of one mind.

Since the earlier works of Bentham against oaths were published, Legislation has made rapid strides in the abolition both of the promissory and assertory class.

Bentham considered the support and perpetuation of Foundations, or Institutions for the inculcation of particular doctrines, to be most dangerous to the cause of truth;§ and he likened them to funds for paying judges to decide, not according to justice, but in favour of a specified class of clients. So long as the system shall continue, of keeping foundations “sacred,” as it is called, from the interference of the legislature acting upon them for the common good, they become so many centres of absolutism in the midst of free institutions—of absolutism, where there is not even that chance of improvement which may be afforded in the probability of occasional good men appearing in a succession of despots; for the despots who have thus transmitted their will to future ages, are gone, and neither hope nor fear—neither reason, nor the treasures of experience, can operate upon them to make them revoke their laws. Thus, every man who is possessed of wealth, by judiciously founding with it some institution properly calculated to the end in view, may place a perpetual barrier in the way of free inquiry, and tie down a portion of posterity to the amount of knowledge and the class of opinions possessed by the men of his own generation. In public national matters, legislation in some measure adapts the increased facilities to the enlarged wants of the age; systems of management make some approach to the improved habits of the time; official salaries are brought to something like a proportion, according to the state of the labour-market, with the work performed for them. But centuries pass, with their train of changes and improvements, and leave the foundation unaltered and unalterable. The legislature dare not pry into its operations, or ask what its officials are paid, or what they do; while the daily routine of the establishment, and the very costume of its inmates, proclaim it at war with improvement—a cluster of human beings, at whose gate the march of civilisation and enlightenment is arrested. The whole principle of the sacredness of foundations proceeds on a false analogy with the stability of property. Because it is good for all members of society, that a man should keep, and use for all lawful purposes while he lives, and should give to whom he pleases at his death, that which he has made, or which he is otherwise allowed to call his own,—it does not follow that it is good for the Edition: current; Page: [41] community that he should be allowed to employ it in building a barrier to stop the stream of civilisation and improvement, and to keep a certain class of his fellowmen just as enlightened on a certain set of doctrines as he is himself, and no more so. The sinister interests which support the permanence and inviolability of such institutions, are founded in the wealth they give to individuals and the power of domination they confer on classes of thinkers. When they are overwhelmed by any great revolution of opinion—such as the Reformation—those portions of them which escape individual rapacity are seized upon by the strongest sect, appropriated by them to the promulgation of doctrines the reverse of those for which the property was originally destined, and are then surrounded by the same impregnable walls of sacredness and immutability, as if they were still held in terms of the original founder’s destination, and had never been wrenched from the hands of those for whom he intended them.

The “Fictions of Law,” of which the English practice is so full, were repeatedly and earnestly attacked by Bentham, both collectively and in detail. The example shown to the world, of falsehoods deliberately, and on a fixed system, told in the very workshops of justice, and by those who are employed to support truth and honesty, he looked upon as holding out a pernicious example to the public. Without any sarcastic or reprehensory qualification, a fiction of law may be defined in general as the saying something exists which does not exist, and acting as if it existed; or vice versâ. Thus, by the system of pleading anterior to the late Uniformity Act, the defendant over whom the Court of King’s Bench extended its jurisdiction, was said in the writ to have been in the custody of the Marshal of the King’s Bench Prison for an offence, though no such circumstance had taken place. The court had originally no jurisdiction over any one who was not so in custody; the lie was told that the court might have an excuse for interfering; the court would not allow the lie to be contradicted, and it assumed jurisdiction accordingly. The origin of this class of fictions was of the most sordid character—the judges and other officers of court being paid by fees, a trade competition for jurisdictions took place; each court trying to offer better terms to litigants, than the others, and adopting the fictions as a means of accomplishing this object. Of another class are the Fictions as to Common Bail, Fines and Recoveries, Docking Entails, &c. Where the object to be accomplished by the fiction is a right one, it should have been accomplished directly, and without falsehood or ambiguity, by the Legislature; where the end is a wrong one, it should not have been accomplished at all. But whether used to a good or a bad purpose, it is an assumption of arbitrary power. “A fiction of law may be defined a wilful falsehood, having for its object the stealing legislative power, by and for hands which durst not, or could not, openly claim it; and, but for the delusion thus produced, could not exercise it.”*

It is true that new fictions are not now invented—at least on any considerable scale; and that those formerly created have become a fixed part of the law, and are uniform in their operation. It is still the case, however, that from the nominal repetition of the fraud under which they were originally perpetrated, they are a cumbrous and costly method of transacting judicial business. But they have a much worse influence than this. By the obscurity and complexity with which they surround operations which might be simple and open, they afford concealment to fraud and professional chicanery; they exclude the unprofessional man from the means of knowing what the lawyer is doing among the windings of the professional labyrinth, and they show him that the law countenances palpable falsehoods. “When an action, for example, is brought against a man, how do you think they contrive to give him notice to defend himself? Sometimes he is told that he is in jail; sometimes that he is lurking up and down the country, in company with a Edition: current; Page: [42] vagabond of the name of Doe; though all the while he is sitting quietly by his own fireside: and this my Lord Chief Justice sets his hand to. At other times, they write to a man who lives in Cumberland or Cornwall, and tell him that if he does not appear in Westminster Hall on a certain day he forfeits an hundred pounds. When he comes, so far from having anything to say to him, they won’t hear him: for all they want him for, is to grease their fingers.”*

A class of chronic falsehoods had found their way into the minds of political thinkers, which Bentham, in imitation of the logicians, termed Fallacies. Of these he undertook a laborious and minute investigation and exposure; and there were none of his extensive labours to which he looked with more satisfaction than this rooting out, from the field of political thought, of the tares which the enemies of truth had sown in it. He found that they consisted, to a great extent, in an ingenious perversion of the language of praise or blame, to make it comprehend that which did not properly come within the quality expressed: and the permanent evil to truth he found to consist in the circumstance, that by habitual use and reiteration, men came to associate the good or bad quality with the thing so spoken of, without examining it. Thus the term “old,” which, as applied to men, implies the probability of superior experience and sedateness, he found used in characterizing early times, or those states of society which had not the benefit of so long a lesson of experience as later times have had.

It is singular that the persons who are most loud in magnifying the pretended advantage in point of wisdom of ancient over modern times, are the very same who are the most loud in proclaiming the superiority in the same respect of old men above young ones. What has governed them in both cases seems to have been the prejudice of names: it is certain that, if there be some reasons why the old should have advantage over the young, there are at least the same reasons for times that are called modern having it over times that are called ancient. There are more: for decrepitude as applied to persons is real: as applied to times it is imaginary. Men, as they acquire experience, lose the faculties that might enable them to turn it to account: it is not so with times: the stock of wisdom acquired by ages is a stock transmitted through a vast number of generations, from men in the perfection of their faculties to others also in the perfection of their faculties: the stock of knowledge transmitted from one period of a man’s life to another period of the same man’s life, is a stock from which, after a certain period, large defalcations are every minute making by the scythe of Time.

That the end justifies the means, is another of these fallacies. He held that both the end and the means should be weighed in the balance of good and evil. When, taken together, they afford a balance of good, then are both transactions justified; but, if more mischief be done by the means than the good produced by the end, no abstract amount of goodness can justify that end being followed.§ As a familiar example: if a man is drowning, the rescuing him is a good end in itself; but, if the method of rescuing him should involve the sacrifice of two other lives, the balance of the whole act is evil, and the end does not justify the means. “Argue not from the abuse of a thing against its use,” is another fallacy. The liability to be abused is a quality which must detract from the value of anything that can be made use of. Between two institutions, equal in value in other respects, that which has preservatives against the means of turning it to abuse, is better than that which has none. Indeed, it is in the preservatives against abuse, that whatever is valuable in political institutions has its value. The sacrifices to this principle are enormous in a constitutional country. When the business could be transacted in the Government office at a hundredth part of the expense, and in, perhaps, a fiftieth part of the time, who would have it managed in Parliament, were it not for the protection afforded by the representative system against abuse? If we Edition: current; Page: [43] were bound to put the abuses out of view, despotism would be found to be the best form of government.

Fallacies lurk in abundance under imputations and laudatory personalities. They are to be found, also, in certain fixed party expressions: such as “Order,” “Establishment,” “Matchless Constitution,” “Balance of Power,” “Glorious Revolution.” Fallacies of no small influence on society, pervade the employment of words designative of principles, as a means of indicating individuals; as where the opponents of a dominant party are called the enemies of government; and those who find fault with the doings of lawyers, are said to be in opposition to the law; terms used when there is a wish to class those they are levelled at as enemies to the preservation of property, or to the enforcement of justice. With a like object are those who attack churchmen and priestcraft called the enemies of the church, and, by inference, the enemies of religion.*

The Book of Fallacies is chiefly directed against the devices made use of on the side of corruption or arbitrary power. In a separate tract, called Anarchical Fallacies, there is an exposition of the false logic with which demagogues, and other enemies of well-ordered society, vindicate their misdeeds. His Text-Book, on this occasion, was “the declaration of the rights of man and the citizen, decreed by the Constituent Assembly in France;” and it was while the philosopher, in his retirement, was expounding the sanguinary and anti-social reasoning of this production, that the wildest flames of the Revolution burst forth, and confirmed his prophecies ere the ink had dried on the page. In the storm of that eventful period, the small still voice of one weighing the meanings of words used, and drawing the practical inference of vague generalities, was not heeded. It is true that this was but a criticism on the meaning of words; and the time was not one for theorising but for acting. Words, however, are the expression of opinions, and opinions are the source of acts. The same opinions may again gain ground more or less, and be expressed in like words, and amenable to the same criticism; and if to the mere lover of narrative, or the partisan politician raking out from the embers of the Revolution materials for modern controversy, the philosopher’s logical comment will have little interest, it will weigh much with those who have the peace and wellbeing of society really at heart. “In a play or a novel, an improper word is but a word: and the impropriety, whether noticed or not, is attended with no consequences. In a body of laws—especially of laws given as constitutional and fundamental ones—an improper word would be a national calamity: and civil war may be the consequence of it. Out of one foolish word may start a thousand daggers.” One of the expressions attacked in connexion with anarchical fallacies has already been noticed, in reference to Bentham’s abandonment of technical terms which had been vitiated by their bad use—(see p. 14.)

Bentham considered that the Legislature, in dealing with the subject of Evidence, had in its power the means of creating and applying to practical use a store of facts, covering the whole field of human action, and forming an experimental foundation, by which every description of operation, from the proceedings of the Legislature and the judicial tribunals, to the acts of the private citizen, might be beneficially regulated. As the great means of separating what is true from what is false he thought the code of judicial evidence should proceed on the most searching examination of principles, and should be most cautiously and scientifically organized. To an examination of the principles on which that code should be based, and of the aberrations of the existing law, he devoted Edition: current; Page: [44] two of the volumes now before the public;* and there is, perhaps, scarcely any other of his expositions which has been so generally adopted by all who have examined it, or which the Legislature has so decidedly (though certainly very cautiously) shown itself disposed to admit into the law of the land. The subject is divided into two great heads. The first is that which is ordinarily called Evidence—the succession of facts, from the consideration of which a belief is come to on one side or other of a statement; as in the case of a civil or criminal trial, when, from the testimony of witnesses, the conduct of persons, or the position of things, a decision is come to by those who are appointed to judge. This is called Unpreappointed evidence, because the dispute arises out of the very fact that arrangements have not been, or could not have been, made sufficient to obviate it; and the circumstances out of which the truth is finally reached were not prearranged for the purpose of exhibiting it. The other species of Evidence is called Preappointed, and consists, in general, of what are commonly called Records: authenticated statements of facts, such as are conveyed in recorded contracts, registers of births marriages and deaths, &c., reduced into a state of evidence to be applied to subsequent use, whether at the instance of the legal tribunals, or of the legislators or others, who may wish to make the facts so proved the foundation of their public or private acts.

Bringing his ruling principle to bear on the first of these great classes, he found that no species of evidence should be hidden from those who had to judge in a disputed question, unless it could be made to appear that more mischief would be done by the admission than by the exclusion. The law, instead of weighing the matter by this simple rule, has given effect to barbarous usages and prejudices, and to feelings of antipathy and vengeance. The ceremony of an oath was invented as an ordeal, at the same time with trial by battel and the ordeal of the hot plough-shares; and it so far held sway when Bentham wrote his Rationale of Evidence, that there was no exemption in criminal cases: and if a witness, from conscientious motives, or obstinacy, or evil design, refused to swear, a curtain was drawn before the light which his evidence might throw on the charge, and the accused was let loose on society, or unjustly punished, according to the side on which the deficiency might act. When large bodies of men arose with conscientious objections to oaths, the principle underwent a practical reductio ad absurdum, and society ran the risk of being dissolved; for there were thousands upon thousands of men with broad-brimmed hats, whose presence, when crimes were committed, exempted the perpetrators from punishment,—and so the Legislature had to give way successively in the case of the Quakers, the Moravians, and the Separatists. On a kindred ground, a witness was rejected on account of his religious creed; and justice was injured that he might be punished by the reproach thrown upon him. A man being asked in the witness box if he believes in a God, and a future state of rewards and punishments, and answering “no,” is immediately rejected; his candour in admitting so very unpopular a fact, being a foundation for the inference that he cannot be depended on for speaking the truth. If he tell a falsehood, beginning his evidence by a deliberate statement of a belief in that which he does not believe, he is held an unexceptionable witness.

Another of the principles of exclusion attacked in the Rationale of Evidence is that which is founded on interest. It is admitted that preponderant interest in favour of falsehood may sway the testimony of a witness; but the question comes to be, who shall predicate of the extent to which it will sway him or whether it will sway him at all? Shall those be the judges in this matter who have the living and speaking man before them, with a statement of the circumstance liable to sway him, the power of cross-questioning him, and the means of punishing him for falsehood Edition: current; Page: [45] or prevarication? or shall the matter be prejudged by those who have never seen him, but who know human nature so much better than the judge and jury who are to see him, that they can predict precisely whether he is going to tell the truth or a lie? English practice has decided in favour of the latter alternative, and has declared that the evidence of a witness who has an interest in the question at issue must be rejected.

But the limitation of the exclusion is itself a proof of its absurdity. Interest may grow out of the whole range of human passions and feelings. Revenge, Hatred, Love, Affection, Party Spirit, may all bear strongly on the human mind, and prepare it for any description of iniquity. In vain, however, could the law attempt to measure these sources of interest, or fix a general criterion for ascertaining their existence. One species of interest only could it measure—the pecuniary; and therefore it narrowed the operation of exclusion to that ground. It thus happens that, according to the principles of English law, Damon and Pythias would not be presumed to have any such community of feeling as would endanger the strictest impartiality if one were called on to testify against the other; while, on the other hand, if Aristides could gain a farthing by swearing away an innocent man’s life, he would so undoubtedly perjare himself for the sake of the farthing, that he need not be listened to.

In favour of truth there are a multitude of tutelary motives, acting independently of the operation of the law in punishing mendacity. Indolence alone is a motive in favour of truth: to support a lie through a circumstantial history, under a battery of cross-questions, is a difficult task which a man will not enter on for nothing. Religion, morality, the respect of the world, are all in favour of truth; and why should it be presumed that the slightest—the very slightest—pecuniary interest will at once break down all these barriers? In reality there are many cases in which the inferiority of the pecuniary to some other interest is exhibited in the nature of a witness’s conduct, without legally disqualifying him. It is so where he pursues the ends of justice from a feeling of resentment, and incurs expense to gratify it. If he had that interest in the conviction which is expressed by the money he has spent to procure it, he would be disqualified; but the existence of an interest so incontrovertibly proved to be stronger does not affect him.

Another improper ground for excluding a witness is his being a criminal—a ground much narrowed by the later practice of all parts of the empire. It is where the crime imputed is that of perjury, that it founds the greatest doubt of the probable veracity of the witness; and on this ground Bentham meets it. A man has assuredly told one falsehood—does it necessarily follow that he will tell another? If the truth could be had without appealing to him, it might be well not to run the risk; but the case supposes the impracticability of getting at the truth without hearing him,—for that which makes a man a witness is the necessity of having his statement to make up a full view of the facts. Is, then, the certain deception arising from defective evidence, to be incurred in preference to the risk of deception from his telling a falsehood—a risk indefinitely reduced by the chance that his falsehood, if uttered, will be disbelieved, and that his character will make his evidence be scrutinizingly examined? The law in this case stultifies itself by a counter-exclusion limiting the means by which the perjury can be proved. This must be by production of the record of conviction, and no otherwise: and if this record is kept out of the way, though there may be a thousand persons (the judge included) ready to testify that the witness was convicted of perjury, his testimony is unexceptionable.

But the most mischievous of all the exclusions is that by which a man is privileged to decline giving testimony which may injure him. It is not that the injury may not in some cases be a justifiable protection: a merchant should not have the secrets of his trade dragged to light by any interested person who can ingeniously plant a petty litigation Edition: current; Page: [46] in his vicinity. But to justify the privilege, the evil to be suffered by disclosure should be clearly predominant over the advantage of the evidence. It is in those cases where the right to this privilege is held most indisputable, that it is most pernicious in its effect—viz., where the harm which the witness may bring on himself, is punishment for an offence. The law says, that no man is bound to criminate himself; and thus, by unjust leniency founded upon a false analogy, the evidence of two crimes is purposely concealed; that of a crime which a witness may have himself committed, and that of another crime which he may have witnessed in the course of his own iniquities. If the laws which condemn a man be just laws, let them be enforced—if they be unjust, let them be amended. The various impediments which still stand in the way of the conviction of a criminal are the relics of a barbarous age, when might made right,—when one class of men made cruel laws, and others tried to protect themselves from their operation by frauds and fictions. When society was in such a state, that an innocent man was as likely to be hanged as a guilty, there was some reason on the side of those who thought that every legal quibble which saved a victim from the fangs of the law was a virtuous act: but in an age when ninetenths of society are in favour of the pure administration of justice, those who encourage such impediments to their operation cast an imputation on the institutions of their country.*

It would seem, to those unaccustomed to its operation, to be an absurdity too perverse to have entered into the brain of man, to award a punishment for an offence, and then, on the plea of humanity, to take measures to prevent the criminal from betraying his guilt. It is quite true that there may be means of coming at the truth which ought to be avoided from their mischievous effects on society; but these mischievous effects can only occur in the unjust punishment of the innocent,—the just punishment of the guilty cannot be an evil. Torture is a means of coming at the truth; but the objection to it is, that the innocent as well as the guilty may suffer from the operation of the test. In the case of a man criminating himself, it is the guilty, and none other, that can be affected; and society at large gains an undoubted advantage by the proof of a crime and the consequent punishment of the delinquent. The leading principle laid down by Bentham regarding the investigation of crimes, is of the clearest and most effective character; it is simply this: adopt every measure for the exposure of the guilty, which will not involve the innocent. This principle does not admit of confidential communications by criminals to their law advisers being kept inviolate, any more than their revelations to their accomplices. Confidential communications, the object of which is to defeat the law, have no better claim to secrecy than those which have in view the commission of a crime. A change of system in this respect would probably make criminals less confidential with their agents; but it is difficult to see what harm society could suffer by an alteration which would only compromise the safety of the guilty.

The above remarks bear only on a small portion of the Rationale of Evidence. An analysis of the whole work, within the compass of the present notice, would be little more than a table of contents, and could give the reader no satisfaction. On a subject which occupies a considerable proportion of the work—that of Records, some remarks will be made further on. (See p. 72.)

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SECTION IV.: SYSTEM OF GOVERNMENT.

To find out the best means by which mankind could be governed, was the chief object of all Bentham’s exertions; and there is scarcely a work which he has written in which he has not some allusion to this subject. His expositions in reference to politics are divided into two distinct classes. In the one he lays down those principles and rules of action which ought to guide a people, supposed to have thrown off all trammels of prejudice and established custom, and to be in search of the very best form of government which a practical philosopher would dictate to persons ready implicitly to adopt his arrangements. In the other class of cases, in which he had immediate practical ends in view, his endeavour was to mould the existing machinery of established institutions and opinions to the production of the best practical results. The reader, therefore, must not take it for granted that the principles and institutions which are developed in the former class of works, are such as their Author would recommend a practical statesman, connected with an established government, to put into immediate operation, however much he might wish to establish in the statesman’s mind a leaning to such opinions as an ultimate end of gradual change. There are projects of practical reform in the minor works of Bentham, adapted to all grades of government, from democratic republicanism in the United States,* to Mahommedan despotism in Tripoli. It will not be expected that any development should be here attempted of the different projects of reform which he thus applied to such distinct circumstances; but some explanation of the more conspicuous features of his opinions on government will be attempted.

He held that the ruling power should be in the hands of the people, because the happiness of the people being the object of government, the means of obtaining that object would thus be in the power of those who have the chief interest in realizing it. The happiness of every individual in the community would be best secured by giving every individual the species of government he would like best. But as confliction of interests renders this impossible, the nearest approach to such universal freedom of choice is, to put the power into the hands of the majority, whose use of it will not only be that which is most conducive to their own liking, but will likewise be such as cannot be very detrimental to a minority, which, in the case of such perfect freedom, must have too many interests in common with the majority to be in any case much injured by those proceedings which may appear to the latter the most fitting. But all the people of a state large enough to enjoy a separate government profitably, cannot collectively transact the business of government; and therefore it is necessary that some artificial arrangement should be adopted, by which the closest practicable approach may be made towards acting in accordance with their opinions: hence comes the Representative system.

Bentham was of opinion that no male adult should be excluded from voting for a representative, except those who are unable to read. His criterion of a right to the franchise was therefore equivalent to that which Mr Adam has aptly called The Knowledge qualification. Bentham termed it “virtually universal suffrage,” because it excluded no one who chose to take the trouble of learning to read; and it might fairly be estimated that those who refused to make this exertion were as unfit to exercise the right to advantage, as they were careless of its possession. There were other persons Edition: current; Page: [48] besides “non-readers” who might be excluded, were it not for the complexity that would be so created—e.g. people of unsound intellect, and criminals. Their influence, however, would be almost imperceptible—they would not exist in any one place in sufficient numbers to be made serviceable tools of; and their votes, presuming them to be given without thought, or with a bad intention, would be likely to tell on either side of a contest with tolerably equal effect. Arrangements for excluding them would be complex and uncertain; whereas the criterion of ability to read is easily adjusted on a simple practicable arrangement, which is described in the Draft of a Reform Bill.* He was of opinion that the questions whether females should be admitted to the franchise, and how the political privileges they ought to hold should be bounded, could not be satisfactorily discussed while prejudices on the subject are so strong as they were when he wrote.

Another of the essentials of representative government, is Secrecy in Suffrage—the system of the Ballot. The reasons will be briefly explained further on in connexion with the principle of responsibility. In the Draft of a Reform Bill, arrangements are made for conducting an election on the Ballot system, well worthy of the attention of practical reformers. The operation is to proceed on a raised platform in presence of the public and of certain officials, who all see that the elector votes for some one, without knowing for whom. In a glass-covered counter, cards are deposited bearing each the name of a candidate, a separate compartment being provided for the cards of each candidate. These cards have each a joint or hinge in the middle, admitting of their being folded double, with the name inside. At the moment of voting, no one sees these cards but the voter, who takes one of them up folded, and holding it between his finger and thumb in the presence of the public, hands it to an official, who, without seeing the name within, files it in the presence of the public. It is a necessary preliminary of such a system, that all questions as to the right of voting are prejudged, and that no scrutiny can supervene.

Annual Parliaments, and equality of Election Districts, are farther arrangements of the representative system, the reasons for which are also noticed in connexion with responsibility. To obviate the inconvenience apt to be created by the annual separation of the legislature, a plan is devised for the appointment of a “Continuation committee,” to keep on through a succeeding session the thread of the legislation commenced in a preceding;§ an arrangement which, in conjunction with others for keeping Edition: current; Page: [49] projects of law once brought before the legislature from dropping out of notice, would prevent the public time from being unprofitably wasted, by being devoted, as that of the British Parliament frequently is, to the furtherance of measures which are afterwards lost sight of.

The arrangements for the strict attendance of the members of the legislature, and for economically adjusting the time at their disposal to their duties, form the subject of many stringent provisions in the Constitutional Code.* It is provided that the executive ministers of the state shall be present ex officio, in order that they may be questioned, may afford instruction and explanation, and may even originate measures and join in the debate—but they are not to have the privilege of voting. That the superior experience and knowledge which the judges must possess, of the state of the law, and of the amendments from from time to time necessary to improve it, may be applied to practical use, an official communication with the legislature is kept constantly open to them; and to prevent their suggestions from being neglected, provision is made for these being incorporated in the body of the law, if the legislature, after the proper formal intimations, do not interpose a veto.

In the British Parliament much of the time that should be devoted to the general legislation of the country is wasted on local and private projects. Of these there are some that should be appropriated to the Courts of Law—others should be managed by Local Legislatures.§ The arrangements of such local legislatures, in subordination to the supreme body, are provided for in the Constitutional Code.

A hereditary legislative body is an institution utterly at variance with the first principles of that republican system, which Bentham considered to be the best form of Government in the abstract—the best form that could be adopted, if circumstances should give an unlimited variety of choice. But he was decidedly of opinion, that any second chamber, whether elective or hereditary, can operate to no good. It occasions delay. It makes rivalry and conflicts between house and house, which tend to the public detriment. It prevents decisions from coming clearly out, as between majority and minority, very often making a small minority of the collective members of the Legislature triumphant over a majority. The practical result of such a system, in the end, generally is, that the one house becomes the originating and working, and truly legislating body, while the other, finding itself incapable for good, has nothing to boast of but its capacity for mischief; the extent of which is the more palpably shown the more useful are the measures it resists. The services presumed to be performed by a second legislative body, in the shape of inquiry, and the deliberate and accurate inspection of measures before they are sanctioned, are all capable of being adapted to the legislation of a single chamber, through the instrumentality of committees.

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In considering the proper arrangements for the conduct of business by a supreme legislature, it was found, that very little improvement could be made on the practice of Parliament; which, in Bentham’s opinion, made the nearest approach to abstract perfection, which has been exhibited by any human institution. To those who are accustomed to expect in his works nothing but censure of existing institutions, the chapter, “on the mode of proceeding in a Political Assembly in the formation of its decisions,” in the Essay on Political Tactics,* will be a remarkable exception. The chief elements of this excellence were found in the perfection of the machinery for preventing anything from going forth as a vote of the body, which had not been verbatim subjected to the inspection of its members; the arrangements, which rendered it impossible that a subject of debate could drop without being disposed of in some shape or other; the accurate line of distinction between debating and voting; and that scientifically arranged system for considering propositions in conjunction with their amendments, which admits of a vote being separately taken, upon every modification of a proposition which may happen to be before the house. He was of opinion, that the preservation of the liberties of the country was, in a great measure, owing to a firm adherence to the forms of Parliamentary tactics; and he attributed the contrast which they afforded, with the tedious, complex, and perverse forms of judicial practice in England, to the circumstance, that while the legislature had the distinct and rapid despatch of business honestly at heart, the proceedings in the Courts of Law were tortured and twisted to suit the sinister ends of the various parties—the suitors, the lawyers, the witnesses, and even the judges themselves. The work on Political Tactics was written with the design of doing a service to the National Assembly of France; but, in that mobarena, its rational views, and the practical application of them, were alike unheeded.

This loose sketch of the leading principles of the system of government, developed by Bentham in his Constitutional Code and other works, would be incomplete without the statement, that, according to his plan, the head of the government is the Prime Minister, chosen by the Legislature. Of the methods by which checks are kept upon the power of this official; of his relation to the heads of departments, and the machinery by which their duties and powers are limited and connected with each other, it would be impossible to give anything like a satisfactory view in this sketch; and reference must be made to the substance of the Code.

An important feature in all the political writings of Bentham, consists in elucidations of the means by which men intrusted with power may be prevented from abusing it to the public prejudice. Considering all the transactions of the Political authorities, including the administration of the law, as subject to two checks—the direction of superordinate political authorities, and the control of public opinion—he searched for the best means of enforcing these securities, and found it in the principle of individual responsibility. To this end, he desired that every judicial or administrative act should be so done, that it might be seen by whom it was done, and under what circumstances. With this view he preferred individual management to board management. Where there are several persons concerned in giving effect to an operation, responsibility rests with no individual, and cannot be accurately partitioned among all. The relief from responsibility releasing each individual from the anxiety to do right, renders the appropriate industry and skill unnecessary. If one head and one pair of hands can transact the business, it will not be better done if half-a-dozen heads and a dozen pair of hands of the same skill and Edition: current; Page: [51] ability join in it. If one person cannot do the whole, or if a man be found eminently skilful in respect to one part of the transaction, and unskilful as to others, let the operation be divided accordingly; keeping this in view, that whatever a man is expected to do, or does, it be known and seen whether he does it, and how. On the same principle, there are objections to the administration of justice by more than one judge at a time; and in this case there is the additional argument, that a difference of opinion known to exist among judges of equal rank, power, and means of information, unsettles the law, and encourages litigation.*

But the principle of individual action does not extend to the legislature. The object in this case is, not the transaction of the official business of the country, but the direction and the control of its transaction, for the benefit of the people by whom the legislature is constituted. It might be practicable to take the votes of the whole people for one ruler to be elected by the majority; but besides many other risks and inconveniences attending on it, such a system would leave totally unrepresented some class of political thinkers, which might be nearly as large as that by which the ruler was elected. The greater the number of representatives, the greater will be the number of persons represented, and the nearer will be the approach made to that point of abstract perfection, which would result in everybody being represented. At the amount, however, beyond which legislative business cannot be easily or advantageously transacted, the number of legislators must be limited; and thus the problem of representation cannot be worked out without a certain number remaining unrepresented. But though there is a necessitated community of action in a legislature, individuality of responsibility may be preserved—preserved in the proper quarter—between representatives and represented. It is held that the representative should, so long as he is in that position, be actually, so far as is practicable, the person which his designation announces him to be—the representative of the opinions of those who have chosen him. It is not possible that, on every question which may come before the legislature, his own opinion will be precisely that of the majority who voted for him. It is not, as a point of morality, recommended to him to adopt measures which his conscience repels, because his constituents approve of them. But it is his duty, if such a difference of opinion arise between him and his constituents, that, had it been anticipated before the election, he would not have been elected by them, to resign his seat. On the representative committing such an act of self-sacrifice, however, no dependence is placed; and a system of arrangements is expounded in the Constitutional Code, and the Election Code or Reform Bill, calculated to have the effect of removing, with the least practicable inconvenience and delay, any representative whose opinion is at variance with that of the majority of his constituents. The most important and comprehensive of these arrangements is the annual election of representatives; by which, not only is the period during which a representative can be acting at variance with his constituents reduced to a comparatively short one, but a periodical intercommunication has place between electors and elected, conducive to the interchange of information regarding each other’s sentiments.

The principle of personal responsibility, carried through all other departments of the state, ceases with the constitutive or the elective constituency—the source of all political power. The interest of the individuals constituting the greatest number of the people is, that the government should be conducted favourably to the interests of that greatest number. Thus the general interest is each man’s personal interest. When any one is transacting that in which his personal interest alone is at stake, he need be responsible to no other person; Edition: current; Page: [52] and the interference of another will be more likely to lead him astray than to put him right. The elector, if uninfluenced, gaining nothing by his choice but his share in the results of good government to all, votes accordingly for the man who, as a legislator, will act to that end. But if his vote for a person who will not act, as a legislator, for the general good, be made more valuable to him than his chance of a share in the results of good government, he will, in the general case, vote in compliance with that stronger interest. Hence the operation of bribery and intimidation at elections. Secrecy of suffrage, or as it is commonly termed the ballot, is the remedy held out for this disease. As the candidate cannot know whether or not the service has been performed, it is held that he will not give the wages. It is held that, since there is no means of detecting the nonfulfilment of his bargain, the bribed elector is in the same position, as to interests, with the unbribed—i. e., his interest is identical with that of the public at large, and in favour of good government; and that the candidate, knowing this to be the case, will not throw away his money.*

But it is essential to the efficacy of this arrangement, as well as to the securing the majority in the legislature to the actual majority of the voters, that the electoral districts should be equal. Where one voter, by reason of his being in a small constituency, has as great a voice in the choice of a representative as ten have in a large constituency, then there is the temptation to bring against each elector in that small body ten times the amount of corruptive influence that will be brought against each constituent in the larger, or to single the former out for a concentrated attack. Thus, even were secrecy of suffrage conceded, without equalization of election districts, so great might be the corruptive power brought to bear against the small constituencies, that all practical barriers in favour of secrecy might be broken through.

SECTION IV.: LAW REFORM.

The promulgation of the Laws is a prominent subject in a great proportion of Bentham’s works. He held that a rule of action which the person whom it was to affect could not make himself acquainted with the purport of, was worse than no rule—a despotic arrangement for enabling one man to be cruel to another—a project for catching people in traps, for the advantage, or it might be the amusement, of those who set them. Speaking of the common law of England, he says, “Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then you beat him for it.” The defects which the English system exhibits in this respect, have had their origin in the neglect of the utilitarian principle—the neglect, in the preparation and execution of the law, of the very object for which those who make it would admit that it should be made—the good of the community. The ultimate object, for instance, of the criminal law, is to do good to mankind by the prevention of crimes. The immediate object is the punishment of individuals committing crime. In the discharge of this latter object, the former and ultimate one has been frequently forgotten. A man commits a breach of the law—he is punished, and all concerned consider they have done their duty, and trouble themselves no further. The criminal says, that if he had been aware of the existence of such a law he would not have broken it; but he is answered by the old adage, Edition: current; Page: [53] ignoratio juris neminem excusat. Presuming him to speak the truth, is it not an immediate inference, that it would have been better had the offence never been committed at all, than that, having been committed, the perpetrator is punished?

It is a feature, too, of unknown laws, that they have to fight society by detail. When it is known to the public at large that the commission of a given act will be met by a specific punishment, they, in general, take the alarm collectively and abstain from it. They know, perhaps, that if they all break the law in a mass, they could not all be punished; but, like Fielding’s mob confronting a man with a cocked pistol, no one of them is assured that he may not be the victim. But a hidden law is a poignard—none know of the presence of the deadly weapon but those who are stabbed by it, and their immediate neighbours. Such a law will often exhaust the power of its administrators before it produces any palpable effect. There are abundance of victims, but there is little proportional amendment.

There are two means by which the laws may be brought within the reach of those whom they bind. The one is by making them in themselves simple, concise, and uniform: the other by adopting adventitious means of promulgating them. In both respects there are many defects in the law of England. The common law, which is the result of the traditionary lore of ages, is in the position of the books of the Roman law before they were digested under the superintendence of Tribonian,—a mass which defies the industry of any ordinary lifetime to master its contents. Its bearing upon any given point, instead of being contained in an enunciated command by the legislature, is to be solved by the interpretation of multitudes of unauthorized comments, or conflicting decisions. It possesses the additional evil, that, even when its tenor seems to be comprehended, no man can tell whether what he has so come to the understanding of be in reality the law; for it has received no authoritative sanction from any legislative power, and is only the opinion of certain unauthorized commentators.

The other department of the law—the statute law—is indeed the command of the authorized legislature: but it is a command perplexed by unintelligible language, confused, gigantic in its proportions, and deficient in internal facilities for reference and discovery. When a law is to be altered, there is an act passed, “to amend an act,” &c.; when there is another alteration, there is an act passed, “to amend an act—to amend an act,” &c., &c.* There is a popular method of referring to acts of Parliament as being such a chapter of such a session (e.g. the act 57 Geo. III. c. 101); but when reference is made in the amending statute to that which is amended, there is no such abbreviated mode adopted,—the act is described by its title, so that it can only be found by a search among all the acts of the session. In popular language too, the acts are divided into sections, which are numbered consecutively: but this facilitation is unknown in law, and consequently the section of an act, when an alteration of it is made by any subsequent act, is only referred to by vague description. In one session of Parliament there are frequently upwards of a hundred acts passed, and many of these will be found to contain upwards of a hundred sections; yet when, in a future session, there is an alteration made on one of these sections, it is only singled out from the mass in the vague manner above described. It will generally happen, that some members of the official establishment chiefly connected with the operation of any series of statutes will have mastered their contents; while the public in general are profoundly ignorant of Edition: current; Page: [54] the whole subject, or know it only in so far as they may have suffered by making mistakes. Yet there are collections of statutes so extensive, that it may be questioned if even those official persons whose peculiar duty it should be to enforce them are well acquainted with their contents. There are at this moment (1842) upwards of 130 statutes, more or less in force, in relation to the Stamp Laws.

The main remedy proposed by Bentham for the evils arising out of the confusion and bulkiness of the laws, is in codification,—in a general revision of the existing laws, the rejection of the antiquated and useless portions, (for there are many acts, still part of the law, which are not enforced, solely because our civilized age affords no machinery for executing them, or because public opinion would set too strongly against any man who would have the barbarity to put them in force,) and the reduction of those parts which should be preserved, to a clear order, and to precise and intelligible language. The objections to this project are not in the form of argument, but in the simply negative shape of the neglect to perform that of which the utility is so clearly proved. The good to be accomplished would be great; but the labour too would be great: and no Atlas has been found among ministers of state to put his shoulders to the task. Nor does there seem, indeed, to be any individual on whom the responsibility of the non-performance of this mighty task can be specially thrown—it is simply a great and difficult project, for the public benefit, unperformed. It is true, that Bentham did himself offer to undertake this task: that he left behind him fragments of its execution in almost every branch of the law, and that he completed the constitutional branch in a shape rendering it fit for use, whenever those who have the power shall have the inclination to adopt it. But it was, perhaps, still less to be expected, that any code of his own fabrication should have been accepted of, than that the justice of his earnest pleadings, in favour of a simplification of the law, should have been admitted, in some attempt to prepare a code under other auspices. A code, drawn up by Bentham, must have not only received the advantages of his clear arrangement and accurate legislative style, but must, in substance, have conformed with all his opinions of what the law ought to be. It would not have been the laws of England consolidated or embodied in a code, but a new code of laws, prepared on the utilitarian system. It was one thing to admit his reasoning in favour of a code, but another and a totally different thing to admit that the code ought to embody in it the principles of the utilitarian philosophy. The Constitutional Code is, for instance, a system of government arrangements adapted to a republic. Of the many who might be favourable to codification, few might be republicans, and still fewer would be ready to attempt to achieve a republic in this country. The Code Napoleon was the adoption of Bentham’s opinion in favour of codification; but the great patron of that measure, while acknowledging the advantage of having the laws simplified, would have been among the last men in the world to permit Bentham to prepare the substance of the laws which were to be so reduced to order.

It is true, that Bentham would not have been deterred by restrictions and limitations from devoting his time to the service of the public as a legal draftsman. If he had been directed, by those in power, to simplify any branch of the law, reserving our feudal institutions, and reserving, likewise, any other peculiarities in the laws, which the government had come to the resolution to leave unchanged,—while regretting the barbarism which adhered to machinery, in his eyes antiquated and cumbersome, he would have been ready to devote his time and talents to the task of fitting them for such good uses as they were capable of accomplishing. He exemplified this disposition in his Project of a General Register of Real Property, communicated to the Real Property Commissioners. In his correspondence Edition: current; Page: [55] with foreign countries, indeed, he showed how ready he was to turn the least promising institutions to use; and, in the case of the Tripoli papers, we find him suggesting a series of arrangements, by which the protection of personal liberty may be made consistent with an Eastern despotism, and a limited toleration with the principles of Mahommedanism.*

But the principle of codification has not been without some practical concessions to its utility by our legislature. The statute penal law of England has been brought into a state far more nearly resembling a code than it was when the author wrote the greater part of his attacks on it. Improvement and codification have here gone hand in hand; and the system, perhaps, only waits for the removal of some of its relics of barbarism, to be finally condensed into a code, as concise and intelligible as the plan on which our Acts of Parliament are drawn will admit of. A further concession to the principle is to be found in the consolidation of the Customs and Excise laws, and the laws regarding shipping, which are intimately associated with them. The plan taken, with regard to the far more complicated department—the Custom House Laws, was this. In 1825, search was made in the Statute-book for all existing acts relating to the customs, and they were repealed in the mass. It would appear that the duty of deciding what statutes did, and what did not bear on the subject of the customs, was too onerous to be undertaken even by those who had all the appliances and ends of the government in their favour; for when the Customs laws were again reviewed in 1833, it was found necessary to pass a general repealing clause as to, “All acts and parts of acts relating to the Customs,” without any farther attempt to enumerate them, (3 & 4 Will. IV. c. 50.) The ground being thus cleared, a Custom House Code was created, in ten statutes, each embracing some distinct department of the Customs and Navigation Law. The cumbrous form of our statutes, and their incapacity to provide any system of division and arrangement, prevented this code from approaching to the state of order and intelligibility which its author, Mr. Hume, seems to have been anxious to achieve for it; but he endeavoured to compensate as far as possible, by marginal headings and an indicative rubric, for the necessarily unarranged substance of his acts; and these Customs acts are the only statutes which are divided into compartments bearing a resemblance to the division of a literary work into chapters. In the interval down to the year 1833, many additions had been made to the Customs laws; and, to prevent confusion, all these additional laws, along with the consolidated Statutes of 1827, were repealed, and new consolidated Edition: current; Page: [56] statutes were constructed from their fragments; thus rendering it unnecessary for the searcher among the customs laws, to go farther back than the year 1833.*

While urging the utility of a general code, and the importance of a complete or partial reconstruction of the law, Bentham did not lose sight of the immediate practical advantages of an improvement in the system of drawing the statutes so as to make them more intelligible to the public, and consequently more serviceable as rules of action. In an examination of the vices of the existing method of drawing acts of parliament, he found that there was a departure from the common colloquial and literary language of the country, which, instead of diverging from it in the direction of precision and conciseness, led to vagueness and verbosity. The departure from the ordinary forms of expression was thus an evil, not compensated by any advantage in the shape of a more scientific style. He found that there was unsteadiness in respect of expression, occasioned by a want of fixed words having definite ideas connected with them. The draftsman, not having in his mind any distinct nomenclature, overloads his work by employing a number of words to mean the same thing, lest, if he should restrict himself to one, he might choose one which did not fully embrace the meaning intended. In this manner, that which could have been well accomplished by the use of one word with a determinate meaning, is imperfectly accomplished by the use of several words without any fixed signification. Thus, there frequently occur such pleonasms as “all the powers, authorities, methods, rules, directions, penalties, clauses, matters, and things,” “use, exercise, apply and put in execution,” &c., all referring to the same thing, but by their number rendering what they refer to more vague instead of more clear. It is an additional defect referable to this source, that when the same thing is thus mentioned more than once, the collection of words by which it is referred to does not happen to be precisely the same on each occasion, and thus dubiety is created in the mind of the reader.

It was found that clauses of acts, instead of consisting of separate enactive propositions each with its own verb, constituted each of them, a series of sentences heaped together, the same verb serving for a variety of propositions. The bad effects of this system are two—it makes the sentence too long for full and clear apprehension by ordinary intellects; and it renders it liable, from its complexity, to dubiety and ambiguity of interpretation.

In an English act of Parliament, in each section the connexion given to the matter is commonly such, that when once the mind has entered upon it, no repose is to be had till it has reached the end of it: no, nor then neither, unless such be the strength of its grasp as to give assurance of its retaining, in a full and distinct point of view, the whole mass of the matter which, parcel after parcel, it had in the course of its progress through the section been taking up.

So much worse than absolute redundancy is longwindedness, that if in any instance, under the oppression produced by longwindedness, it were deemed necessary to seek relief,—relief would in many, and indeed in most instances, scarcely be to be found on any condition other than that of adding to the number of words. . . . .

Another imperfection of the first order, to which this imperfection of the second order will, whether constantly or not, be naturally and frequently conducive, is bulkiness. As the entanglement runs on, the obscurity thickens—as the obscurity thickens, it attracts more and more the attention of the penman:—fearing lest the mass should grow too involved, and through much entanglement too obscure for use, he sets himself to disentangle it—to point out this or that distinction in the provision meant to be made respecting the subjects thus involved. But as by words it was that the matter was entangled, so it is only by words that the disentanglement can be effected, or so much as aimed at: and thus it is, that while increase is given to obscurity, so is it to bulkiness.

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So much with regard to those internal qualities in the construction of the laws, which might serve to make them accessible as a rule of action. An external means of accomplishing the same end, is, in the Promulgation of the laws when they are enacted, among those whose obedience they demand. Bentham looked Edition: current; Page: [58] upon this service as one of the most unexceptionable in which the public money could be employed. He considered that every practicable means should be adopted for bringing before the eyes of the citizen the laws he is called on to obey, and that, in their distribution, profusion is the safer error. He thought that so much of instruction in the laws as could be conveyed to the mind in youth should be taught in schools, and that the books in which the laws are printed, if not given gratuitously, should be purchaseable at a merely nominal price. He proposed that the portions of the law which affected particular classes of persons should, separately from the general body of the law, be distributed among those whom they particularly affected. Thus, each soldier on enlistment should receive a copy of The Soldier’s Code,* and each mariner on joining his profession should receive a copy of The Seaman’s Code. An individual conducting a trade subject to the operation of the Revenue laws, should, on the same principle, have a copy of The Revenue Code.

He proposed that each separate description of contract should have a species of paper set apart to be used in embodying its terms; and it was one of the services to be accomplished by this arrangement, that the paper should contain on its margin, an abridgment of the law relating to the contract. In markets and other places of public resort, the peculiar regulations of which might be of sufficient brevity for being so promulgated, the old Roman system should be adopted, of having them legibly set forth on tables adapted to public inspection. In Courts of justice, the forms of Procedure, and the respective duties of the Judges, the Officers of Court, the Lawyers, Parties, Jurors, and Witnesses, should be exhibited in the same manner.

To enable the public the better to Edition: current; Page: [59] comprehend the full tenor and object of the laws when promulgated, he proposed that they should be accompanied by a Rationale or series of reasons. The necessity of adopting such a course would, he maintained, make the laws themselves more rational; for legislators, being bound to give reasons to the public, must have reasons to give, and would not be likely to frame laws on the dictate of caprice or tyranny. An acknowledgment of the principle is to be found in the Preambles of Acts of Parliament; but as in this case there is only one general reason given for the tone, as it were, of the whole statute, and not a reason for each individual enactment, the check is, necessarily, very imperfect. Having the reasons along with the laws, the public, it is believed, would not only have more confidence in the justice of the enactments, but, seeing their use, would have a guide to honest and sincere obedience, which the simple terms of the command conveyed in the law itself might fail to provide them with. There have been many breaches of law that would never have occurred, if those who had committed them had been reasoned into the opinion that the laws were just.*

The principles on which the judicial establishment of a country should be founded, occupied Bentham’s mind from an early period of his life to the end of his days. In 1790, he published the draught of a Code for the organization of the Judicial establishment in France; and the arrangements there suggested only differ in their being less fully developed, from those which he embodied in the Constitutional Code, at different times subsequently to the year 1820. In both, there is a system of Local courts, for the purpose of bringing justice as near as it can practicably be brought to every man’s door; the general principle of admeasurement being such as will allow every inhabitant of a district to go to and return from the Judgment seat in one day. In both works, and in almost all his numerous works on Law Reform, he desired that justice should be administered in each court by a single judge, for the reasons of which a sketch has been given in the preceding Section in connexion with responsibility (see p. 50-51.) He thought that the habits of a practising lawyer, keeping the mind in a constant state of active partisanship, did not form a suitable school for judges, whose duty it is to hold the scales of justice with a steady hand. On the other hand, he considered, that permitting any class of men, not trained to the study of law and the weighing of evidence, (e. g. justices of peace and municipal magistrates,) to administer justice, was nothing better than a permission to one section of the community to sport with the property and liberties of all others. His own plan contemplated the education of a class of lawyers for the bench. He suggested the appointment of deputes to the regular judges; and, through the instrumentality of this arrangement, he would provide for those who have been induced to fix upon the bench as their profession, getting an introduction, and the opportunity of practice and experience, as assistants in the lowest grade, rising thence according to their abilities and exertions.§ He held that the judgment-seat should be accessible at all hours of the day and night—that justice should sleep only when injustice slept. To provide this accessibility at the smallest cost, is the object of many minute provisions in the Constitutional Code. The delays occasioned in England by the system of circuits and vacations, are the object of repeated and severe denunciation.

A common feature of both his earlier and later works on judicial reform is, the appointment of Public Prosecutors, and of Advocates for the Poor.** The latter proposition is connected with the Edition: current; Page: [60] view, that justice, instead of being sold to the highest bidder, should be presented gratis, whenever this can be done without preponderant mischief. The evil that might occur from offering the assistance of the law to every one who might desire it, without cost or personal exertion, would undoubtedly be the entailment on the community of ceaseless lawsuits, carried on by all its litigious members. On the other hand, there is the consideration, that it is not he who gains it only who profits by a lawsuit, but that the public have an advantage, in the establishment of a precedent, and the exhibition of justice vindicated. The expense of employing lawyers in the vindication of a just claim, is of itself sufficiently oppressive: the addition of taxes on law proceedings, and fees to the court and its officers, is simply the taking advantage of an opportunity for pillaging the oppressed. The opinions of Bentham have been so far conceded to, that taxes on law proceedings have been abolished, and that fees have been, in almost all the courts of the empire, much reduced. Still the nation does not provide sufficiently for justice being done to the helpless. When a man, because he cannot afford to pay for it, is denied the service of the law to procure justice, it is proclaimed that the nation is still only on its way from that state of things “where he should take who has the power, and he should keep who can.”*

He considered the system of having different courts for the adjudication of different classes of causes, to be most perniciously productive of complexity and expense. The division of the English system—a division happily unknown in Scotland and in the rest of Europe—into common law and equity, afforded him a flagrant exemplification of the evil. The law by which each man’s rights and duties are defined should he homogeneous,—each portion connected with the others, and the whole capable of being brought within the grasp of one mind. If one judge cannot administer the whole law, what chance has any private citizen of knowing enough of it to keep him from transgression? It does not follow that the division of the law into two systems makes any approach to a division of labour. The effect generally is—and it is strikingly developed in England—to make each portion more complicated and extensive than the whole would be under a uniform system. The very preservation of the boundaries between two such systems creates a science by itself. He thought, however, that while the jurisdiction of the courts of ordinary law ought to be partitioned according to geographical principles solely, that there was still room, in the case of persons separated from the position of the ordinary citizen, for tribunals having in view the administration of their rights and obligations among each other. On this principle he contemplated courts-martial, and ecclesiastical courts, as tribunals of exception.

With regard to trial by jury, on which Bentham has written much,—partly in relation to the best method of reforming it, and partly for the purpose of rationally limiting its operation,—he was of opinion that, in the case of criminal charges, it was a necessary protection; but that the existing system demanded many reforms, and among others the discontinuance of unanimity, and the abolition of the Grand jury. In civil actions, he thought the operation of the system should be much restricted. He objected to the unbending rule which forces the case before a jury, when both parties might prefer the decision of a judge. He considered that the part which a jury has to act—that of a committee of the citizens at large to watch the operations of the bench—need not be so palpably exhibited, and that it might be presumed that the judges have honesty and public spirit enough to do right, without the constant presence of so imperative a check. In a country where there is publicity for justice, and a high tone of public opinion, he believed Edition: current; Page: [61] that supervisance, especially if added to the influence of the appeal system, would make judges cautious, and would secure a nearer approach to clear substantial justice, than can be found in the oscillations of the jury system. He proposed then, that in ordinary civil cases, the jury should be had recourse to only in the way of appeal,*—a plan by which, while no one who wished to have his case judged “by his country,” as it is termed, could complain that the boon was refused him, the number of jury trials, and, consequently, the expense of the system, would be much diminished. In the Constitutional Code, the juries, under the republican system there promulgated, are merely to be assessors to the judge, under the title of Quasi-jurors.

The method of so conducting the proceedings of the courts of Law, that they might administer justice accompanied with the smallest possible amount of delay, vexation, and expense to the litigant, is a subject referred to in almost all the works of Bentham, which bear on law reform. One work, “the Principles of Judicial Procedure,” is devoted to the organization of such a system. The various facilities for coming rapidly at the knowledge of the question at issue, keeping up a communication between all the parties concerned in the discussion, securing obedience to the decision pronounced, &c., cannot be here enumerated;§ and it will be impossible to go into detail beyond a slight glance at that principle of personal responsibility, which peculiarly characterizes the whole system. As the public interest requires personal responsibility on the part of all public officers, so does it on the part of those who, by an appeal to the law, exercise the privilege which every one should be possessed of, of demanding the performance of judicial services—in other words, of litigants. To this end it is a leading principle of judicial procedure, that litigants should be confronted with their judges and with each other, that they should be questioned as to the statements on which they found, and that they should be made responsible for falsehood, whether it be uttered with the deliberate design of deceiving, or be rashly stated without that amount of consideration which a man gives to his words when the consequences of a mistake fall upon himself. The litigant is to be entitled to employ a professional assistant; but grades of professional lawyers transacting different departments in lawsuits—as represented by barrister and attorney in English practice—are objected to. In an ordinary lawsuit, the country attorney receives his client’s communication, and transfers it to the town attorney, who communicates it to the barrister. From the variety of the channels through which the history is thus communicated to the judicatory, impediments are created to the discovery of the party who may be the author of any falsehood that may have been uttered; and there is a general frittering away of responsibility for the proper conduct of the cause. Let the party himself be accessible when wanted, and let him have but one adviser between him and the judge: falsehoods will then be easily traced to their source, and being so traceable, will not be so readily committed.

The privilege possessed by counsel, of stating facts which they do not believe to be true—whether in civil or in criminal cases—is denounced as tending to the perversion of justice, and to the confusion, in those quarters where bad example is most dangerous, of the distinction between right and wrong—between truth and falsehood. The false morality of the profession, on this point, Edition: current; Page: [62] is repeatedly and severely attacked by Bentham; and his animadversions have in view the alternative of either producing a legislative remedy, or, by the force of reasoning on the public and the profession of the law, of raising the standard of morality in relation to this practice. To see the full extent of the hardships that may be occasioned by fraudulently false, or lax statements in relation to lawsuits, it must be remembered, that the very fact of requiring to be a party to a litigation is itself a hardship, which, if it cannot be saved to the party who is in the right, should at least be so arranged that its pressure may be as light upon him as it can be made. The person who, by a certain document called a writ, can compel another man to lodge a document in answer, or to appear before a court, possesses a power of persecuting his fellow citizens, which no one should possess uncontrolled. If there were no punishment, by the infliction of costs or otherwise, on the malá fide suitor, his power of annoyance would be nearly absolute; and it is precisely to the extent to which there is a check on his privilege of telling falsehoods, that the public are protected from the machinations of the judicial persecutor. Where there are great inequalities in point of wealth, the extent of hardship which may be thus committed is enlarged; and thus the rigorous enforcement of veracity, in legal pleadings, is the poor man’s protection against the tyranny of the rich.*

SECTION VI.: PRINCIPLES OF PUNISHMENT.

The end of punishment is the prevention of crime; and all punishments inflicted under any other impulse, are wasted, or run the risk of being so. There is no other criterion of punishment which can be a fixed one. There may be mistakes and disputes as to what description of punishment is in reality best calculated to prevent crime; but with this principle in view, reasoners have a common field of argument; and the course of experience, enriched by the collection of statistical facts, will check aberrations, and bring the disputants more closely to each other in their mutual approach to accuracy. Those principles of punishment, if they can be called principles, which are involved in popular dicta, are as vague and indefinable as the human mind is various in its passions and prejudices. The simple word “ought,” sometimes involves the whole of the principle expounded. Murder ought to be punished with death. Forgery ought to be punished with death, &c. The supporters of a ministry will say, “sedition ought to be punished with transportation,” because they wish to humble and persecute their opponents. The opposition will say it ought not to be so punished—wishing to protect their friends from evil. When a riot takes place at an election, the party injured says the conduct of the mob was “dastardly brutal and ruffianly, and a parcel of them should be hanged:” those on the other side “are far from vindicating the conduct of the rioters; but it was a mere petty ebullition of party spirit, and a few days imprisonment will be a severe enough retribution.”

But it is not only in offences of a political character that the divergencies of the popular principle of punishment are exhibited. Each man, with his mind concentrated on his own interest and pleasure, holds all offences that militate against them as the most atrocious with which society can be visited; and when he has the power, he acts the Nero and Domitian, and exterminates those who give him trouble. Thus is it that the landholders of England, being resolved, at all hazards, to preserve to themselves the sports of the field, and having the power, through their preponderant Edition: current; Page: [63] representation in parliament, of making what laws on the subject they think fit, have enacted a code of game laws, which renders the preservation of the lives and morals of the people secondary to securing the monopoly in the destruction of hares and pheasants; and makes provision that the country should become depopulated by the transportation of criminals, rather than that the squire’s preserves should be thinned.

When an attempt is made to involve the popular feeling on the subject of punishment, in a proposition or principle, it does not in general become more reasonable. It is said that the punishment “should be equivalent to the offence;” or “should be of the same character as the offence;” or “should be like the offence.” There are no two things which less admit of real parallelism (however much they may of imaginative) than punishments and offences. Of two persons, precisely in the same rank of life, and of the same bodily frame, the one gets the other held down by accomplices, and inflicts on him certain blows with a stick. In this case it would not be difficult to assign a punishment precisely the parallel of the offence. But take another case. A thief puts his hand in a banker’s pocket as he is returning home from business, and extracts therefrom a bundle of bank notes. Where are the elements of similarity in the position of the two parties, out of which a punishment similar to the offence can be created? Nor, if the problem of finding a parallel could be solved, does it appear very distinctly how the public could be benefited by the elaboration of such a specimen of curious uniformity.

But another principle of punishment, and by far the most common, (for it has existence in many a bosom which is unconscious of its presence,) is retaliation—in other words, revenge, or obedience to the impulse of wrath. The case of an election mob cited above, may serve as an illustration. The principle of retaliation is frequently vindicated, as if it could be reduced to a fixed rule: but how can it be so, since, as has been already shown, there can be no parallelism between punishments and offences? For the very small number of cases which occur, exactly in terms of the instance of assault above cited, it would be easy to fix the rule of retaliation, by making the punishment identical with the offence. But who is to make a rule of retaliation for the banker robbed of his notes? The legislator has the whole field of inflictions out of which he may choose one which shall be a retaliation, and it is needless to say that his view of retaliation will be whatever his passions dictate. If the legislature should consist entirely of bankers, when he who has been robbed joins his peers with an empty pocket and inflamed passions, which sympathy and common interest propagate through the assembly, the retaliation, it is easy to believe, will be fierce and crushing. If the legislature should consist entirely of spendthrifts and pennyless younger sons, the sympathetic excitement would not be so intense, and the punishment would be more reasonable. If the legislature should consist of blacklegs and pickpockets, the worthy banker would be laughed at, and sent about his business. This last result, intended to exemplify the fallacy of any appeal to parties interested in an injustice, is not without a modified exemplification in this country. Bentham repeatedly refers to the exemption of real property from simple contract debts—the power of landed proprietors to undertake pecuniary engagements and protect their property from being seized in fulfilment of them. It was not until after his death, that this anomaly was partly rectified.*

It has to be noticed, that the retaliatory and other barbarous principles of punishment have produced counter-fallacies among those who have been groping about for the sound principles of punishment, and have been unable to find them. Thus, those who have an indistinct view of the defects of the punishment of death, say, “You are not entitled to deprive any man of the life which God has given him;” or, perhaps, “you are not permitted to take life, but Edition: current; Page: [64] for the crime of murder.” There is a text in Scripture which, referring to the effect of violence in rousing the retaliatory propensities of mankind, says, “Whoso sheddeth man’s blood, by man shall his blood be shed”—meaning, that while men are beings of passion as they are, one violent death will naturally follow another. It is under the shadow of what is apparently a misinterpretation of this text that the exception to the rule as to the title to punish with death is generally ensconced. It is to capital punishment that the question of title is usually restricted, but sometimes it is extended to others—thus, “you are not entitled to make a slave for life, of a man born free,” &c.—the term, for life, being generally inserted, because, if the punishment of slavery or the restriction of liberty were abolished, it would be difficult to find a means of inflicting any punishment on any one who has not palpable property capable of being seized. In the utilitarian system, the question of title is very simply disposed of, by striking the balance of good and evil to society at large. If there are cases in which the infliction of the punishment of death leaves a balance of good—that is to say, if more evil would be done to society through the inducement to crime that would exist were the punishment more lenient, than the evil occasioned by the infliction of the punishment—then let death be the allotted penalty. It will be for every man who has anything to say in the legislation of his country, to examine the question according to his abilities, to strike the balance, and to act accordingly. The conclusion come to by a member of the legislature will bear strongly on the result: that of an elector will have less effect, and that of a non-elector whose influence on the legislature is merely that of reasoning, will have still less: but it behoves them all, as members of society, to take the same method of coming to a right judgment.

It has been already remarked, that the Utilitarian Philosophy, like the Baconian, has not tended so much to point out any perfectly new direction to the human intellect, as to keep it steady in a course of which it had previously but a slight and vague knowledge, and from which it was every now and then straying. There is perhaps no department of the subject in which this is better developed, than the philosophy of punishment. On appealing to a moderately educated man in any civilized country, he would probably be found to admit, in some vague or general terms, that the object of punishment is the repression of crime. Yet so far have men, in the pursuit of their secondary ends, lost sight of this, the main one, that in England it became a general feeling, that it mattered not how many murders were committed, provided some one were hanged for each. Of the legitimate results of a scientific inquiry into the subject on the utilitarian principle, such as that carried on by Bentham and his disciples, the improvements which, for several years past, the legislature has been making in the administration of criminal justice, are so many illustrations.

In calculating the proper weight of punishment, the first element that comes into consideration is the offence. When it is scientifically examined, an offence is found to consist of more elements of evil than those which directly meet the senses. Bentham found a simple method of classifying the evils of a mischievous act, by dividing them into the primary and the secondary.* A man is murdered on the high-way: the death of the individual is the primary evil. The secondary evils arise out of the danger there exists of other people being murdered either by the same man, or by others following his example, and the alarm so occasioned in the neighbourhood. But it depends on a number of minute circumstances, what will be the extent of this danger and alarm, and, as a consequence, what will be the best legislative measures for protecting the people against them,—and hence arises Bentham’s scientific analysis of crimes and their results, and his rules for adapting the punishment to the exigencies of each occasion.

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To this end, in looking at the consequences of a mischievous act, among other circumstances, the following are kept in view: 1st, The state of the actor’s mind as to voluntariness or involuntariness. Thus, deliberate murder shows a disposition at war with mankind, from which any one may suffer who is in the position of supplying the assassin with a sufficient motive; while death, occasioned by carelessness, shows a want of respect for life, which the public must protect itself from; and uncontrollable accident is a source of mischief which punishment cannot protect from, and as to which its infliction would be thrown away. 2d, The motive of the offender. Thus, the motive of acquisition being in continual action, is found to be the most dangerous. When a man slays for vengeance, he only strikes his enemy; if he be allowed to go unpunished he will be prepared to slay some one else, but not till there has been a cause of enmity. The example of his impunity will encourage others to slay also, but only their enemies. But when a man murders for the sake of robbery, he acts on a motive which all men feel more or less towards all others; and those whom impunity encourages to follow his example, see victims in all of their fellow-beings who have anything to be deprived of. Other circumstances to be held in view are, the situation of the perpetrator in regard to the means of repeating the act, his means of concealing such acts, his means of escape, the obstacles he has overcome, the extent of temptation which was necessary to induce him to combat with them, &c. The position of the party injured must also be taken into view. Females, children, and invalids, require protection from acts against which able-bodied men need none. The poor require protection from injuries to which the rich are not liable,—such as oppressive litigation. The rich, on the other hand, have their peculiar demands, chiefly arising from the superior amount of their property, on the protection of the law. There are, besides, many other circumstances in which the richer and higher classes of society are subjected to evils which do not fall on the lower. Their tastes and habits are more fastidious, and should be protected from wanton outrage. They possess a greater proportion of objects in which there is a “value in affection,”—such as heir-looms, old pleasure-grounds, &c.; and the law ought to look on these as having a value beyond their mere intrinsic worth.*

When the extent of the evil to society occasioned by each offence, has been as accurately estimated as human knowledge and reason admit of its being, the counteracting power, in the shape of punishment, has then to be graduated accordingly. And here it has to be kept in view, that the infliction of punishment is itself an evil—an evil not only to him on whom it is inflicted, but to the community by which the trouble and expense of inflicting it have been incurred. Every item, therefore, of punishment, beyond what is necessary to the production of preponderant good, is punishment wasted—is a wanton act of mischief—is a crime. If it can be proved that a crime can be suppressed by the infliction of a year’s imprisonment, and that the extension of imprisonment to two years will not make the suppression of it more complete, or tend more to the benefit of the public,—then is the imposition of an imprisonment for two years, instead of for one year, a wanton act of injury. It is seldom that the superfluous punishment is designedly added to the necessary: the whole is generally awarded in rashness and ignorance, and thus resolves itself into the minor offence of a want of due care for the welfare of the public. Who shall justify the infliction of a year’s imprisonment, wantonly inflicted upon a man, though he be a criminal? If a justification be offered, let the following case, for the sake of distinctness, be taken. A man is tried for an offence, and the adequate punishment awarded against him is a year’s imprisonment. When he leaves the prison, he is again seized, and subjected to another year’s imprisonment; not because he has committed any fresh offence—not because his previous punishment was inadequate—but Edition: current; Page: [66] because he has been a criminal; and such a person may be punished, just as the prejudices and passions of those who administer the law may dictate.

The penal code being an institution intended for the benefit of the public at large, and the public consisting of individuals, there are two classes of persons prominently interested in its administration, whose claims have been overlooked in empirical systems of criminal law—the criminals themselves, and the individual against whom the crimes are committed. The principle of vengeance is at the root of the omission in both cases—the laws retaliate on the criminal, and the act of retaliation is considered a sufficient compensation to the injured. The utilitarian system views the matter differently—conceives that the person who has been robbed is not a savage, who is to be satiated with the blood of his adversary—and enjoins the criminal to labour to the end of making compensation, so far as it may be practicable, to the injured party. With regard to the criminal himself, the punishment, on the principles above laid down, must not be more than what is necessary to serve the legitimate purposes of punishment. If, while he is undergoing it, the convict can be reformed, there is not only a positive good done to himself, but a benefit is conferred on society, by restoring to its bosom a useful and moral man, at the expiry of the period of imprisonment. If, along with the accomplishment of this object, and of compensation to the injured party, the criminal can be compelled or induced to work, so as wholly or partly to defray the cost of his imprisonment, there is a still farther gain to society, by the reduction of a heavy burden—a burden which has a tendency to weigh against the zeal of the public in the enforcement of the laws.

Looking beyond the individual himself, to the effects of his punishment on society at large, reason will be found for deciding that it should be exemplary. As this is the element from which it derives its quality of awing the public into obedience to the laws, there might at first sight seem reason for concluding that the punishment cannot be too severe for such a purpose; but a little consideration will show, that it is its adaptation to this end that makes it chiefly of importance that the punishment, if brought up to the point which will be sufficient to deter by example, should not exceed it. Where punishments are not meted to offences, the criminal classes of the population see that the law hits at random; and, with the characteristic improvidence of their order, they gamble on its chances. Moreover, where punishments are unpopularly severe, the people will not give their assistance to the enforcement of the laws. The annals of English jurisprudence present even the official guardians of the law, the judges, joining with prosecutors, juries, and witnesses, in saving the criminal. The punishment of death for forgery has strikingly illustrated this truth. At the present moment the duellist is confounded with the assassin who steps behind his enemy and secretly stabs him. The public feel that the duellist injures society and should be punished; but they revolt at such a barbarous confusion of names and punishment; and the manslayer escapes by the connivance of the witnesses, the jury, the prosecutor, and the judge himself.

To deter others by the force of example, the punishment must, as nearly as human means can make it, follow the crime with the same regularity with which natural effects follow their causes. The certainty of imprisonment with hard labour will do far more in the way of prevention than the chance of suffering death. A proper allotment of punishment is one of the main ingredients in this certainty—others have been devised by Bentham, in his projects for the reform of criminal procedure.

It is necessary to the efficiency of the penal law, in the way of example, that the offence and the transactions concerning the trial and punishment, should not be encumbered with a barbarous technical nomenclature, which may shroud the real nature of the connexion between the crime and its punishment from the public eye. It is further necessary that the innocent Edition: current; Page: [67] should not be involved with the guilty—a result produced by the forfeitures, and corruption of blood, of the English law. The punishment should be awarded in virtue of a fixed law, and should neither actually be, nor appear to be, influenced either in increase or diminution by the will of an individual. Thus, laws awarding extravagant punishments, with a power of pardon or diminution, are unserviceable in the way of example. The punishment fixed by the law is either too high or not too high. If it be too high, it should be reduced: if it be not, the exercise of the pardon power, popularly called the prerogative of mercy, is an injury to society. Thus, wherever the pardon power is rightly exercised there is tyranny in the law—where it is wrongly exercised it is itself tyranny.

It is of the highest moment, for the sake of example, that the punishment should proceed, as far as may be practicable, before the eyes of the public. This object, as well as that of the reformation of the convict, is defeated by the plan of transportation to distant colonies. The criminal is removed from the sight and knowledge of those companions in iniquity to whom it is essential that his punishment, coupled with its cause, should be present as a perpetual warning; and instead of a lively consciousness of the sufferings and privation he is undergoing, experience too truly shows that they often envy his imagined lot, and raise day-dreams of independence and a wandering life in distant and fruitful lands, which serve a very different purpose from that of a solemn warning to depart from their evil ways. Another main object to be kept in view in punishment, is the avoidance of contamination. This is an evil which needs no further explanation. At the time when Bentham wrote, the jails were academies for instructing the youth, whom a petty indiscretion or a small offence had driven to them, in the higher and more complex walks of crime. Many reforms have been made in this department of prison discipline: but the repeated complaints of the press show how much remains still to be done.

It was to accomplish these objects, in relation to punishment, that Bentham devised the principles of prison discipline, expounded in his work on the Panopticon. The plan of the building, which was to admit of an inspection of all parts from a central point, was suggested by the architectural ingenuity of his brother, Sir Samuel Bentham. In this institution the prisoners were, without being subjected to the enervating and uncivilizing influence of solitary confinement, to be kept from communication with each other. They were to be kept at hard labour. As unproductive compulsory labour for the mere sake of punishment is in itself uneconomical, has no influence in improving the criminal, and tends to sour and harden his mind by the daily recurrence of inflictions, which have no other end but his personal vexation, the convicts were to be taught useful trades, as an encouragement to work; and, that they might have some opportunity of knowing how pleasing are the fruits of honest industry, they were to receive a portion of the results of their meritorious and successful exertion. They were to receive the ministrations of religion, and, to a certain extent, to be educated. Provision was made to supply them with a sufficiency of wholesome food, to ventilate all their apartments, and to keep them clean. Various methods were propounded for keeping their intellects from being stagnant, or viciously employed, when their hands were idle. And, finally, to prevent their being thrown upon the world with a tainted character, which might, by depriving them of the means of gaining their livelihood honestly, drive them back upon their old courses, arrangements were proposed for providing them with employment after their period of imprisonment had expired.*

But the founder of the Utilitarian Edition: current; Page: [68] system, looking upon punishment of every description as the application of medicine to a moral disease, goes back into the operations of the mind, that he may discover the causes in which the disease has its origin, and prescribe a regimen conducive to the preservation of the moral health of the public. In a system of punishment, he sees the political sanction only put in motion; but he finds that the Religious, and the Moral or Popular sanction, have each their respective spheres of action, in which they may be employed to restrain the mind from vicious inclinations. It is not by its restrictive action, in regard to this or that individual offence, that either of these sanctions will operate in its largest shape; but, by superinducing on the mind habits of thought so much opposed to crime, that when an opportunity of committing it occurs, the principle of restraint being an established feature in the mind, there is no actual struggle to resist the seeming temptation. In ordinary acquisitive crimes, the operation of the sanctions is strongly marked. To the greater portion of the well-educated and well-trained part of the population of Britain, an opportunity of committing a lucrative theft can scarcely be said to hold out any temptation; and the question, whether detection and punishment would be likely to follow—i.e. whether the political sanction would be called into operation, is not considered, for the religious and moral sanction have long ago fixed the course of action. Of the beneficial effects of the religious sanction, it is needless to adduce illustrations in a country where its influence is so strongly felt. As its good influences, however, are powerful, so are its evil, when it is directed to bad purposes. Its evil effects are—religious wars, persecutions, and assassinations; polemical disputation carried to the extent of rousing the bad passions; priestcraft; superstition; spiritual pride; and that chronic hypocrisy, so vividly exhibited in the character of Tartuffe, which, without directly assuming religion as a cloak to crime, arrogates a special familiarity with the Deity, which sanctifies all the worldly desires, and bad passions of “the elect.” As an illustration of the extent to which the operation of the sanctions may be ramified, the serviceable employment of the moral sanction in the prevention of violent crimes, may be found in the practice of inculcating humanity to animals in children. Minds callous to one description of animal suffering will not sympathize with another; and the murderer is nursed in the torturer of kittens. The knowledge of this truth is evinced in Hogarth’s stages of cruelty, and in the popular belief that butchers are incapacitated to serve as jurymen. As already stated, Bentham was desirous that the legal sanction should be brought to the aid of the popular in this department, and that cruelty to animals should be restrained by strict penal laws.*

His works abound with the promulgation of secondary operative measures for keeping the population pure from criminal propensities, the majority of which, to a greater or less degree, have been, and still are, the subject of public discussion. Among the most prominent of them is National education. The system for the management of the poor, having for its end the drying up the sources of poverty, would, by the same operation, dry up the main sources of crime—(see the next section.) The arrangements for training pauper children—foundlings and the outcasts of society—would have the effect of subjecting a class, whose world of public opinion is the professional emulation of felons, to the restraints and superintendence of the better portion of society; and of giving to those, whose fate seemed to place them at war with honesty and the laws, an industrial interest in the well-being of their country, and in the administration of its justice. Calamity and disease are looked upon, independently of their own distinctive evils, as generators of crime; and it is in this view that their prevention appeals to the interests and self-preservation of those who are, or may think themselves, excluded Edition: current; Page: [69] from their influence. The officers nominated in the Constitutional Code, for preserving the public against accidents and calamities, for guarding the public health, and for removing objects which, from their being noxious to the senses, are both dangerous to the health and demoralising in their immediate operation on the habits,—are thus so many active agents clearing the moral atmosphere from the malaria which produces mental disease.*

SECTION VII.: POOR LAWS, EDUCATION, AND OTHER INSTITUTIONS FOR NATIONAL AMELIORATION.

At the time when Bentham devoted his attention to the poor law, (1797-8,) the then existing system had proceeded for some years in that course of degeneracy from the strict principles of the statute of Elizabeth, which commenced with Gilbert’s Act in 1782, and was consummated by East’s Act in 1815. Long before he could get others to join in the opinion, he saw that any system founded on the principle of merely relieving suffering, and not containing within itself restrictions calculated to stem the growth of pauperism, would gradually undermine the industrial stamina of the country, by creating more pauperism than it relieved. Subsistence being, as already stated, (see p. 31,) one of the main objects of the law, according to his division, he thought it the duty of the legislature to provide a system which should obviate, as far as human foresight could, the chance of any human being suffering from starvation. In accomplishing this, however, it was necessary to keep in view the counter-error of giving a boon to indolence, by allowing the idle pauper to consume the wealth of the industrious and enterprising producer.

The method by which he proposed to adjust the proper medium, was the same in its leading principles with that which was lately sanctioned by the legislature, as the result of the searching investigation of the Commission of Inquiry,—the rigid application of the Labour test to the able-bodied, and the supervisance of all, by their location in buildings under the inspection of the officials and the public. He was able to foresee the evils of the strictly parochial system,—the comparative costliness, and propensity to jobbing in small local establishments,—the restrictions on the freedom, and consequently on the productiveness of labour by the settlement laws,—the abuses of all sorts that in remote districts might be preying on the vitals of society unobserved,—and the cruel hardships to which those whose position entitled them to relief might be subjected, from their not being on the right spot when misfortune overtakes them; and he contemplated the bold design of a uniform national system under central authority.

He did not propose that the central authority should be in the hands of official persons appointed by the Government. In all national institutions which involve receipt and expenditure of money, varying according to the success of the management, he advocated the contract system in preference to the stipendiary, as more economical and efficacious. His system of prison discipline, under the Panopticon plan, (see above, p. 67,) was to have been conducted under contract management, he himself being the contractor. In the present case, his contractors were to be a joint-stock company, Edition: current; Page: [70] whose directors were to be the central board of management. Their funds were to consist in such poor-rates as it should be found necessary to levy, and the produce of the industry of the able-bodied paupers, with other contingencies. Their profits were to be so far limited, that while they might have sufficient encouragement for economical and energetic management, they should not be put in possession of the power of levying a poor-rate to provide extravagant profits to themselves. The Plan of Pauper Management—it is to be regretted that hitherto only a skeleton of it has seen the light—contains a multitude of minute arrangements for obviating mismanagement, preserving order, regularity, and good habits, educating the paupers, and generally elevating their moral standard,—which cannot be here enumerated.

In 1797, a Bill for making alterations on the poor law was brought in by Pitt. It is difficult to estimate the disastrous consequences which must have followed this measure had it been passed. A critical examination of it was written by Bentham, and sent in MS. to Pitt;* and the fortunate consequence of this lucid demonstration was, the abandonment of the measure. The general aim of this measure was simply an enlargement—and that a sudden one—of the pernicious principles which had been gaining ground for some years—that there was only one thing to be kept in view in a poor law, the satisfaction of all demands made upon the wealth of the community by its poverty, without asking questions; and that whatever deficiency appeared in the operation of the existing system, was to be simply remedied by conveying more of the money of those who had it to those who had it not. One of the provisions of the act was, an allowance, in the case of a large family, to each child unable to support itself; and it was very distinctly shown in the criticism, that the parentage of a large family would thus become a far surer road to wealth than ordinary honest industry. Another of the proposals in this singular measure was, to provide cows to respectable paupers, likely to convert the benefit into a means of eking out a livelihood. On this proposal it is remarked: “The cow dies or is stolen, or (what is much more likely) is supposed to be stolen, being clandestinely sold to an obliging purchaser at a distance. What is to be done? ‘Want of relief’ warranted the first cow; the same cause will necessitate a second—limit who can the succeeding series of cows: The disappearance of the first cow (it may be said) will excite suspicion; the disappearance of a second cow will strengthen suspicion; true, but upon a mere suspicion without proof will a family be left to starve? The utmost security then amounts to this, that to a certain number of successive pensions thus bought out will succeed a pension which will not be bought out.”

Bentham contemplated a system of poor laws as a means of removing out of the way the damaged part of the population, and of improving the improveable; and not as a mere provision for existing destitution. In his eyes, therefore, it was a great moral engine which might be applied to various useful purposes. The most important of these was the suppression of vagrancy and mendicancy. His officials, holding out relief with the one hand, were to be entitled to treat all mendicants who refused to accept of it, not as persons who supplicated charity to relieve their wants, but as professors of the criminal trade of begging, and so amenable to punishment. It was part of his plan, that, until some responsible person should be prepared to answer for his following an honest calling, no beggar should be removed from the workhouse. The suppression of mendicancy would, it was believed, have a great influence in reducing the number of graver crimes. A disposal of all the vagrants of a country within workhouses, unless they find security to work elsewhere, would, undoubtedly, if it came into actual and satisfactory practical operation, have that effect which the Author anticipated from it,—of Edition: current; Page: [71] of destroying the nests in which criminals are reared.

The great subject of National Education, for which Brougham has obtained a place in the public mind worthy of its emmence, may appear to some to be treated with indignity, when discussed as subsidiary to a poor law. Bentham, however, was of opinion that the education of the indigent is far more important, in the eye of the public, than that of the rich: more important, because it serves as an instrument of social organization, which the opulent will supply to themselves, on the voluntary principle; while the means of procuring a supply for the poorer classes, becomes a matter of public policy. In this view, as a system which must be provided for by an eleemosynary fund, he considered that National education was connected with the poor law.

The system proposed in the Plan of Pauper Management, unites both training and education. The Author had the sagacity to see, what has been in later times too often exemplified, that the seeds of the higher branches of knowledge cast into minds unprepared for their reception, may produce bad or worthless fruit. His great object was to redeem pauper children from a position in which, as outcasts from society, they were likely to remain during their lives either a burden on the charity of the community or enemies to its property; and to elevate them into the position of productive members. In a community where there are no unproductive members there can be no permanent paupers; and the very best form, in point of economy, which a provision to the poor can assume, is that in which it converts any class of persons from consuming to productive members of society. With this view, the principal end in the education of pauper children, after they have been taught the principles and practice of morality and religion, is to fit them for some trade by which they can make their bread, to train them in those regular habits which a respectable man finds necessary to his happiness, and to accustom them to value those comforts and appliances with which industry and regularity only will supply them. A portion of intellectual instruction should, of course, accompany this training; for, of all inducements which the man who labours with his hands can have to keep him from degrading habits, intellectual resources are the most potent. It is only, however, as accompanying the means of making a livelihood, and in connexion with well-regulated habits, that intellectual instruction can be calculated upon as serviceable to beings in the position of pauper children.*

The remarks which Bentham left behind him, on a proper system of education for the richer classes, are to be found in certain fragmentary essays, brought together under the title of Chrestomathia. The work consists partly in an exposition of the benefits of intellectual instruction, partly in the description of a project for establishing a national school for the middle classes, and partly in an analytical examination of some of the departments of instruction suited to such an institution. He adopted, in a great measure, the system of division of labour suggested by Lancaster and Bell. There are several principles of tuition laid down, the main feature of which is, the establishing a rigid mental discipline in the minds of youth—preventing their thoughts from straying, and taking measures for ascertaining, with respect to the several steps of the progress, that nothing is left in a crude and undigested state, but that whatever is learnt is well learnt. It is generally as a discipline to the mind, that the devotion of so much of the time of youth to the acquisition of classical syntax, prosody, and etymology, is vindicated. There is no doubt that the operation of mastering languages, so philosophical in their structure, and so little capable of being made Edition: current; Page: [72] use of without a scientific acquaintance with them, as the Greek and Latin tongues, is in itself a powerful mental tonic. But if the same discipline can be accomplished by instruction in subjects more likely to be afterwards made practically available by the pupil, there would be undoubted economy in the change. Neither his own personal inclinations, nor his judgment, would have prompted Bentham to deny their due weight to classical studies. “He was a scholar, and a ripe and good one,” in the ordinary sense of the term. He was partial to the Greek language, which he maintained to be, in its structure, the best suited for a scientific nomenclature. His partiality towards it has betrayed itself in many of the titles of his works—witness the Chrestomathia itself, (χϱηςτομάθεια the study of useful things,) Nomography, Deontology, Pannomial Fragments, &c. To his case, therefore, the common remark, that none attack the so generally conceded supremacy of ancient learning, but those who have not had the good fortune to receive a classical education, does not apply.

To those who take much interest in the teaching of the higher branches of knowledge, the Chrestomathia, though only a collection of fragments, must convey many useful hints, from the clear manner in which every branch of instruction is separated from all others, and each is presented in its turn as a topic to be separately exhausted.

The subject of the education of the higher classes of society, has, from a natural analogy, been here treated in juxtaposition with the means of training and instructing the children of the poor. The main object of the present section, however, is to glance at the subsidiary legislative measures for internal organization and improvement contemplated by Bentham; and to these it is now necessary to return.

The concluding chapters of the Constitutional Code, contain a multitude of minor arrangements for purposes of public utility, of which the general Registration system is, perhaps, the most conspicuous. Legislation has made a great stride in relation to this subject since Bentham wrote. He had to suggest the system of a uniform Register of births, marriages, and deaths, so arranged, that the making entry in the register should not depend on the choice of individuals, but should be imperatively enforced. He viewed such a general register as a grand store-house of facts, applicable not only as evidence for legal purposes in relation to the persons appearing on the register, but as providing a fund of vital statistics, upon which political economists might reason, and the legislature act. To make the vital statistics serviceable, in relation to the influence of trades, habits of life, places of residence, &c., on health, he suggested that the professions of the parties should be entered, and, in the entry of each death, the disease or other occasion of it. Those who are acquainted with the general Registration act for England, (6 & 7 Will. IV. c. 86,) will recognise it as founded on the principles laid down by Bentham, as they appear in the Constitutional Code.* The part of the code in which they appear, was not published until after that act had passed, but they had been for ten years promulgated in the Rationale of Evidence. At the time when the Bill for England was under discussion, a similar measure was brought in for Scotland; but it was opposed by the clergy, was dropped, and has not been revived.

The Registration system in the Constitutional Code embraces other elements, which have not been yet experimented on—a Record of arrivals at the age of majority, and of lapses from, and restorations to sanity. The proposal of a General Register, applicable to Real property, and to contracts and other transactions, did not originate with Bentham. The system has been illustrated in Scotland and in France, and partially even in England; and efforts have been made by practical statesmen, of whom Oliver Cromwell was, perhaps, the first, and Lord Campbell has been the last, to put the system in practice Edition: current; Page: [73] on a wider basis. The importance of such a system, and the best arrangements for its operation, are fully examined in more than one of Bentham’s works.*

In the Constitutional Code, provision is made for a public officer, whose duty it is to perform those remedial functions for the public, of which the want is so often felt in a thickly-peopled country, and which magistrates and police authorities cannot easily fulfil. Among the multifarious duties assigned to him, is the settlement of momentary disputes with coachmen, innkeepers, porters, &c. The traveller is much at the mercy of these classes, who, in respect to judicial control, readily distinguish, for their victims, those who will not have time or opportunity to follow up an inquiry. The principle of interference in such cases is no infringement on freedom of trade and labour. The object of all just regulation on the subject, is, not to compel the hirer to employ for, or the hired to work for an arbitrary price, but to settle, by regulation, terms which parties are presumed to accept of when they make no specific stipulation. The Local headman has many other, perhaps more important spheres of action. He is to give information to parties wishing to be acquainted with the wages of labour and the means of living, &c. in his district, to give friendly advice in disputes, explaining the probable results of an appeal to the Law, &c.

The Health-minister has important functions assigned to him in the Constitutional Code. In conjunction with the Indigence-relief minister, he has control over the medical officers of all eleemosynary institutions. He exercises the appropriate functions in hospitals for the sick, lunatic asylums, and prisons. The object in view, in the appointment of such an officer, is to have, in the shape of instruction, direction, and control, the application to the operations of inferior officers, of that skill which can be purchased by high pay and official distinction. This officer is to have other powers for protecting the public health. He has to see that there is a proper supply of water for the public use; to take cognizance of all means by which the public health may be injured, by overcrowded buildings, undrained lands, places of interment, and noxious manufactures; he is to exercise, indeed, in general, the functions of a central officer for the enforcement of sanatory regulations.

In the tracts on the Poor Law there are various minor suggestions for increasing the comforts, and raising the tone of character, of the working classes. The extent to which those who are better informed, and have larger influence in society, may aid them in counteracting their besetting sin, improvidence, is strongly urged. In the Pauper Management, a plan is suggested for the establishment of Frugality Banks,§ the main features of which have been adopted in the legislative establishment of Savings Banks. At the time when he wrote, Friendly Societies had received but slight aid from the legislature, Edition: current; Page: [74] and were subject to all the risks, inconveniences, and miscalculations, which the operations of small bodies of uninstructed men would naturally entail on them. Their vital calculations, founded on imperfect data, were generally erroneous; and it frequently occurred, that a society which, at first, appeared to be prosperous, became exhausted before it met the claims of those who, having longest contributed to its funds, had the best equitable claim to its benefits. The meetings could be held nowhere but in public-houses; and thus the practice of frugality was attempted to be commenced in the midst of those inducements to excess which are its greatest enemies.* These evils received no correction till they were prominently exposed by the select committee appointed in 1825.

The facilitation of the transfer of small sums of money from place to place, is urged, in the Pauper Management, as an important adjunct to frugality and commercial integrity. The plan has been practically adopted in the system of Post-office money-orders.

Though he could not be said to have made any approach to the valuable discovery of Mr Hill, Bentham so far anticipated the modern opinion of the functions of a Post-office, that be viewed it, when established on proper principles, as an institution fraught with internal improvement—with the progress of knowledge, the nourishment of the social virtues, and the facilitation of trade. He thought it ought to meet with encouragement from the legislature, and that it ought not to be a source of revenue.

On the enlightening and civilizing influence of the press, he wrote at more length.§ He considered the editor of a newspaper as the admitted president of a department of the public-opinion tribunal, viz.—that portion of the public who support, or are directed by, the opinions of the newspaper. He was a friend of the perfect freedom of the press—that is to say, of the principle, that those who write in it should be permitted to do precisely what they please, subject to punishment for every offence against person, reputation, or property, which they may commit through a newspaper, just as if they had committed the same offence through any other means. The English law of Libel he considered despotic and capricious. Its principle is, that every man who finds anything in print which offends him, and who has money enough to raise an action, may inflict a heavy punishment on the writer. He sarcastically characterized the formality of a trial as a mockery, when founded on such doctrines; as, the very fact of a man being at the expense of prosecuting is of itself the best evidence of his feelings being hurt. All taxes on knowledge, he considered injuries to the welfare of a state, as an impediment thrown—generally designedly—in the way of national improvement.

SECTION VIII.: INTERNATIONAL LAW.

All that Bentham wrote on this subject, is comprised within a comparatively small compass;** but it would be unpardonable to omit all mention of a science which he was the means of revolutionizing, and which, previously to his taking it in hand, had not even received a proper distinctive name. No work, bearing separately on this subject, written by Bentham, was published during his lifetime, and his “Principles of International Law” made their first appearance in the collected edition. From observations here and there scattered Edition: current; Page: [75] through his works, his opinions on the subject might be gathered; but it was almost solely in the great article by Mr. Mill on the “Law of Nations” in the Encyclopædia Britannica, that the public could find a distinct account of the utilitarian theory of International law.

It was necessary to establish a distinction between International laws, and laws calculated for internal government, which had not been distinctly drawn in the previous works on the subject. The internal laws of a country have always a superordinate authority to enforce them when any dispute regarding them takes place among the inhabitants; but when nations fall into disputes there is no such superordinate impartial authority to bind them to conformity with any fixed rules—whether the community of civilized nations may hereafter be able to establish such a tribunal is a separate question. It hence arises that, in the internal laws of a state, there is always an approach more or less near to a uniformity of decision in disputed cases, and that the decisions may be referred to as precedents for future action. In disputes between nations, however, the decisions, if they may be called so, are more properly the victories of the stronger party, and are precedents to be followed by those who are able to imitate them, and to be submitted to by those who must submit. Hence, a reference to precedent, as the foundation of International law, must be fallacious, and no principles founded on it can be just.

What had been done, being quite useless as a guide in this department, it was maintained that the way to serve mankind in any view that could be taken of the subject was, by showing what ought to be done. The question intervenes—what is the use of showing what ought to be done, when it is admitted that there is no authority capable of doing it, and that we must leave it in the hands which we charge with having already abused it—those of the stronger party in each dispute? The answer is, that though there be no distinct official authority capable of enforcing right principles of International law, there is a power bearing with more or less influence on the conduct of all nations, as of all individuals, however transcendently potent they may be—this is the power of public opinion; and it is to the end of directing this power rightly, that rules of International law should be framed.

The power in question has, it is true, various degrees of influence. The strong are better able to put it at defiance than the weak. Countries which, being the most populous, are likely also to be the strongest, carry a certain support of public opinion with all their acts, whatever they may be. But still it is the only power that can be moved to good purposes in this case; and, however high some may appear to be above it, there are, in reality, none who are not more or less subject to its influence. The conquerors who have nearly annihilated their enemies, are far from being exempt from the judgment of the public-opinion tribunal, regarding the extent to which, while victorious, they have exercised the virtues of generosity and humanity.

Bentham was opposed to war, as he was to every practice that brought with it destruction and misery; but he held that there were circumstances which might justify it as a choice of evils. He thought there were occasions on which a display of energy was essential to peace and security; and that those theorists who eschewed war as “unlawful,” were frequently only saved from a series of oppressions which would form a dangerous precedent against all peaceably-inclined communities, by the exertions of the bolder spirits with whom they were mingled.* The wars commonly called “glorious”—the wholesale murder of human beings, on no better impulse than the lust of power and the gratification of vanity, he denounced with all the indignation of his ardent nature. His views of the right principles on which Edition: current; Page: [76] the sword should be drawn, involved a self-sacrifice, founded on a conscientious and serious calculation of results. His just national wars were a deliberate and well-weighed resignation of present luxuries and advantages, to obtain some end good for the community, and good for mankind; to obtain relief from the demoralising and degrading influence of servitude; or to help a weak nation struggling with a powerful.

Thus, judging that there were circumstances which would justify declarations of war, he appealed to the tribunal of public opinion regarding the method of conducting hostilities towards the desired end, with the smallest infringement of the Greatest-happiness principle. On this principle, no evil act should be done to an enemy, unless it will produce a proportional amount of benefit to the side effecting it. The vicissitudes of war afford many opportunities for a choice of operations, in which a benevolent mind will be able to accomplish as much for his own country as a malevolent, without the same sacrifice of life and property. It will be a ruling principle to strike at the government instead of the people. The disablement of the former is sure to produce the end aimed at, and may occasion a comparatively small amount of misery. When a government is weakened through attacks on the people, the operation is performed in the most cruel manner in which it can be accomplished. There can seldom be much good done by destroying the food and clothing of the people, or by appropriating such necessaries, unless they are wanted for the invading army: and the effect to be produced on a contest by such heartless acts, can seldom enter into comparison with the efficacy of a seizure of warlike stores. The one must always be productive of cruelty; the other may, in the end, serve the purposes of humanity, by terminating the contest. Here, as in private ethics, self-regarding prudence goes hand in hand with effective benevolence. There are none against whom the flame of human passion burns more fiercely and enduringly than those who, forgetting the humanity of the man, and the heroism of the soldier, have marked their progress through a hostile territory, by smoking hamlets, devastated fields, and homeless orphans.

As there are mischiefs to be abstained from in war, there are services for nations to perform to each other in time of peace. They should afford all facilities for commercial intercourse between their own and other nations, and between those foreign states which may have occasion to use their territory as a highway. The civilized part of the world is coming, day by day, nearer to just principles of international intercourse. France affording a highway for our communication with our great oriental empire, and conveying through its government telegraph the earliest news of our operations in the east, is a symptom of progress which it would have afforded Bentham the liveliest gratification to witness. Nations should afford each other every reasonable assistance in the enforcement of the law of private rights belonging to each. A community of nations bound to give assistance to each other’s political laws, would be a most dangerous alliance; it would be too apt to become a combination of monarchs for the support of despotism. In agreeing, however, to make parties who seek refuge within its territory amenable to the private laws of the country they have fled from, whether they have attempted to escape from a civil obligation, or from the punishment of a crime, each nation confers a benefit on every other, and, by the reciprocity, a benefit on itself. When nations are better accustomed to the performance of these services to each other, and when free trade has brought them within the circumference of common interests, they will daily find more inducements to preserve the blessings of peace, and fewer causes of irritation urging them to war.

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SECTION IX.: POLITICAL ECONOMY.

Like all the later writers on the subject of Political Economy, Bentham acknowledged Adam Smith as his master; and he professed only to analyze some of those departments which the founder of the science had not examined, or in relation to which he had adopted views inconsistent with the great principles of his own system.

The chief service which Bentham has done to this science, has been in the application of his exhaustive system to the carrying out, to their full extent, the doctrines of Free Trade. As in every other subject, he applied to this the criterion of the Greatest-happiness principle, and its bearing on legislation. Political Economy, if it were to be looked upon as an art, he conceived to be the art of supplying mankind at large with the greatest possible quantity of the produce of industry, and of distributing it in the manner most conducive to the wellbeing of humanity. When he asked what legislation ought to do towards the accomplishment of these ends, the answer was—Let it leave each man to do what seems best to himself. The wealth of individuals is the wealth of the community; and each man is the best architect of his own fortunes. The preservation of security is all that Political Economy looks to from the legislature—security for wealth created—security for the exercise of ingenuity and industry in creating more—security for enforcing the performance of contracts.*

This, its essential and simple duty, the legislature was found to be neglecting, while it was occupied in making abortive attempts to perform the unperformable task of increasing productiveness or decreasing consumption. It denied to the creditor, what it might so easily have given him—facilities for immediate access to the funds of the dishonest or obstinate debtor. The debtor might be deprived of his liberty on the oath of any ruffian, and his creditor might make him a slave for life; but there was no middle course where justice could meet humanity—where the unfortunate might be spared the punishment due only to a felon, and the fraudulent might be deprived of the means of defying the law. This state of matters has been much improved in the course of modern Legislation. It cannot be denied that these improvements are in a great measure owing to the writings of Bentham, and they are respectively additions to that security which, in his opinion, was all that Political Economy demanded of the Law.

Though it cannot, however, frame laws for directly increasing or preserving the wealth of the community, legislation may do much to enable the individual members to do these things rightly for themselves. Its chief means of accomplishing this is Education. On the effect of intelligence in increasing individual, and thence national production, it is quite unnecessary to enlarge. It gives the engineer the means of inventing, and properly applying machinery. It gives the merchant the means of knowing the most profitable markets. It gives the labourer the means of knowing where his labour is most valued, and enables him, when he finds the trade he is occupied in, falling, or becoming overstocked, to turn his hand to another. In short, in all circumstances, skill, the fruit of education, gives the producer the means of increasing the value of his produce to his own benefit, and to that of the community. (See above, p. 71.)

Rewards, for exhibitions of skill or genius in arts and manufactures, are aids to the operation of education: they serve to create emulation, and to open Edition: current; Page: [78] and improve the faculties. On the most judicious means of adapting these rewards to their ends, he wrote a considerable quantity of remarks and elucidations. He thought the most ingeniously devised source of reward, was that of giving a monopoly, in the use of an invention, to the inventor, for some limited time—the Patent system. The great value of this arrangement he found to be in its power of adjusting the amount of the reward to the extent to which society found itself benefited. He did not adopt the view, that the produce of intellectual labour, or of skill, should be declared by the law to be like the physical subjects of appropriation, something which must be for ever the property of him who brought it into existence, or of those deriving right from him. If such a principle had been opened up at the time when he wrote, he would probably have found, on a comparison of the end proposed to be accomplished, with the means of performing it, that human legislation could not accomplish so difficult a task as that of keeping all subjects of invention, and all productions of intellect, the perpetual property of some person or other, as it does in the case of physical objects—even had such a result been desirable. Accordingly, the foundation on which the Patent and Copyright laws are placed, is that of Privilege, granted as a reward for services. The impediments thrown in the way of the acquisition of the reward, by the costly and cumbrous machinery of the Patent laws, is much deplored. Bentham’s suggestions as to a simpler system of Patent laws, have been taken advantage of in a series of statutes, which have been remodelled and consolidated by the 5 & 6 Vic. c. 100. This act adopts a practical facility for its operation, which was likewise suggested by Bentham—viz. a register of the inventions or patterns as to which the privilege is held, with a series of marks for separating and individualizing them.*

Bentham found one important element, in relation to which Adam Smith had lost hold of the pure principles of free trade. The father of political economy had not succeeded in so completely clearing the nature of money of its adventitious and popular acceptations, as to be able to treat it like an ordinary commodity, subject to the common rules of trade. Hence he supported the Usury laws, which are essentially a restriction of free trade in money. As an exposition of this fallacy, Bentham wrote his “Defence of Usury.” It has often been remarked that this title is not a descriptive one—the work is no more a defence of usury than it is a defence of high prices. It merely proves the folly and mischievousness of any attempt to fix the price that should be paid for the use of money. It will be unnecessary to make any analysis of arguments which have now been seconded by the almost entire abolition of the Usury laws.

Bentham’s other works on Political Economy are chiefly occupied in the exposure of the fallacy of those artificial efforts which legislation makes to increase the country’s wealth. One of the most prominent and extravagant of these he found to be colonies. The expense which they occasion, not only in the way of continuous support, but as the cause of wars, is enormous. They give nothing to the mother country; for they will never consent to be taxed. A trade with them is not more advantageous than a trade with any other people;—they will not give more than the market price for our goods, or sell their own to us at less. They can make no addition to our trade; for it is limited by our capital—by that amount of the proceeds of industry which we have saved up from consumption. If we can double our capital, we may double our trade; but we can never increase it by wasting our capital in compelling people to buy from us. We may give our colonies the monopoly of a certain trade with the mother country—this is just going to a narrow, Edition: current; Page: [79] and consequently disadvantageous market, instead of a wide, and consequently good one. We may compel them to consume our manufactures—we must first contrive to give them the money to buy them with; and thus we hire purchasers, to keep up a trade which cannot support itself.

Colonization is, however, not without its advantages, though few of these fall to the share of the mother country. It may be the means of removing the damaged part of a population, through a system of emigration. It is only, however, in peculiar circumstances that it will not be a very extravagant means of accomplishing this end. If there is another country which will absorb our damaged* population, the support of colonies for the purpose, is just paying for what may be got for nothing. Colonization may be the means of spreading the blessings of civilisation among savage tribes: here there is a palpable advantage to those tribes themselves, and to the world at large; but it is obtained at a sacrifice on the part of the mother country. It will sometimes occur, that the possession of fortified places abroad is serviceable for the protection of the free commerce of a nation; but this is a benefit of rare occurrence, and is very often supposed to be obtained when it is not.

The science of Political Economy has made so much progress, especially in the department of free trade, since the date of Bentham’s writings on the subject, that it will hardly be of service to analyze his arguments against Monopolies, Prohibitions, Restrictions, and Bounties. Perhaps no other writer on Political Economy has given so clear an account of the incidence of bounties on exportation. He describes them as tribute paid to the foreign consumer. If we can produce the article cheaper than other nations can, the foreigner buys from us of course. If we reduce it below its proper remunerating price, he is not the less ready to buy from us—but the only way in which we can so reduce it, is by paying part of the price for him.

In the case of bounties upon exportation, the error is not so palpable as in that of bounties upon production, but the evil is greater. In both cases, the money is equally lost: the difference is in the persons who receive it. What you pay for production, is received by your countrymen—what you pay for exportation, you bestow upon strangers. It is an ingenious scheme for inducing a foreign nation Edition: current; Page: [80] to receive tribute from you without being aware of it; a little like that of the Irishman who passed his light guinea, by cleverly slipping it between two halfpence. . . .

The Irishman who passed his light guinea was very cunning; but there have been French and English more cunning than he, who have taken care not to be imposed upon by his trick. When a cunning individual perceives you have gained some point with him, his imagination mechanically begins to endeavour to get the advantage of you, without examining whether he would not do better were he to leave you alone. Do you appear to believe that the matter in question is advantageous to you? He is convinced by this circumstance that it is proportionally disadvantageous to him, and that the safest line of conduct for him to adopt, is to be guided by your judgment. Well acquainted with this disposition of the human mind, an Englishman laid a wager, and placed himself upon the Pontneuf, the most public thoroughfare in Paris, offering to the passengers a crown of six francs for a piece of twelve sous. During half a day he only sold two or three.

Since individuals in general are such dupes to their self-mistrust, is it strange that governments, having to manage interests which they so little understand, and of which they are so jealous, should have fallen into the same errors? A government, believing itself clever, has given a bounty upon the exportation of an article, in order to force the sale of it among a foreign nation: what does this other nation in consequence? Alarmed at the sight of this danger, it takes all possible methods for its prevention. When it has ventured to prohibit the article, everything is done. It has refused the six-franc pieces for twelve sous. When it has not dared to prohibit it, it has balanced this bounty by a counter-bounty upon some article that it exports. Not daring to refuse the crown of six francs for twelve sous, it has cleverly slipped some little diamond between the two pieces of money—and thus the cheat is cheated.—Vol. iii. p. 62-63.

The reader who takes an interest in financial projects will find much to engage his attention in the plan for converting stock into Annuity notes.* The project is an improvement on the Exchequer Bill system. It invites Government to come into the field in opposition to the private banks, with the advantage in its favour of allowing interest on its paper securities. The notes are to be of various amounts. They are to carry interest daily from the day of issue, and are each to have a table by which its value in interest added to capital may be ascertained on any given day. The Author was of opinion that these notes would be used as cash, as of their value on each day according to the table.

SECTION X.: LOGIC AND METAPHYSICS.

Bentham did not draw a line of distinction between these sciences; and he seems to have considered the terms almost convertible. It follows that he did not treat the subject of Logic, as it has generally been done, particularly by late writers, as a formal science, teaching the laws of thought, as distinct from those sciences which treat of the matter of thought. How far he would have continued his mixture of the two subjects, after he had made some approach to completeness in his examination of the various departments of mental philosophy, it is difficult to say. He seems to have projected, as already stated, (see p. 10,) a full and searching inquiry into all the qualities and operations of the human mind, including an investigation not only of the laws of thought, but of the materials on which they work. To this end, he more than once set himself down to examine and classify the powers of the mind. He exhibited an intention of pursuing the examination of mental operations with a comprehensive, and, at the same time, most minute anatomy. To this purpose, he divided and subdivided the materials of thought; and being brought by his subdivisions into an analysis of the matter of language and grammar, left, in his fragments on these two subjects, Edition: current; Page: [81] specimens of the minuteness with which he intended to go over the whole field.

His notion of Logic was, that it was the means of getting at the truth, in relation to all departments of human knowledge;* and that it thus was, to use his own expression, the schoolmistress of all the other arts and sciences. It would seem, then, to be included in his view of the subject, that any system of Logic, which left the student ignorant of the means of ascertaining the truth in regard to any one element of human knowledge, was an imperfect system. If Logic be considered as divided into the Analytic and Dialectic branches, the latter half of the subject was entirely rejected by Bentham; for, viewing dialectics in its original signification of the art of debating, he considered it as an instrument of deception rather than of truth—as a system of rules for enabling the more adroit disputant to defeat the less able. If, however, Logic be divided into the Analytic branch and the Synthetic, he has left behind him traces of his labours in both departments: in the former examining the phenomena which the mind exhibits in the process of acquiring truth; in the latter, constructing instruments to facilitate its discovery.

Perhaps the most remarkable and original feature of the analytic portion of the fragments, is the division of all nouns substantive into names of Real, and names of Fictitious entities; a distinction which he follows out with his usual clearness and consistency, and of which he never, in any of his works, loses sight. If this classification in some measure resemble Aristotle’s division into Primary and Secondary substances, it will be found, on examination, to have a much more comprehensive influence, and, from the manner in which its author employs it, to have a much more important application to the arrangement of the elements of thought. Nouns expressing real entities are names of things of which we predicate the actual existence—such as a ball, a wheel, an impression on the mind, &c. Nouns expressive of fictitious entities, are, all those nouns which do not express such actual existences. The distinction seems to be a pretty obvious one; but the uses which its Author makes of it are novel and important. In our phraseology as to fictitious entities, we borrow the forms of words which have been invented for explaining the phenomena of real entities; and we cannot speak of the former without the actual use, or think of them without the mental use, of these forms of words. Thus motion is a fictious entity. We talk of motion being in a thing, or of a thing being in motion; and in using the preposition in, we borrow a word which was invented to be used upon physical matter. Relation is a fictitious entity—one thing is said to have a relation to another, and in this word have we are obliged to borrow a word constructed for the purpose of intimating corporal possession. The method in which I have my pen, and the method in which logic may have a relation to metaphysics, are two very different ideas; but we cannot express the latter without borrowing the use of those words which were constructed to represent the former. Hence, fictitious entities cannot appear in language, our instrument of thought, except through the use of borrowed words. They have no phraseology of their own, and can have none. Whether they have separate existence or not is a question we have not data for determining: to our minds they are so unreal, that we cannot think of them without clothing them for the time-being Edition: current; Page: [82] in the words which are invented for thinking of real entities.* How far a pursuit of this subject would throw light on the old dispute of the Realists and Materialists—how far misapprehension as to the actual subject of discussion may have arisen from this necessity of borrowing the phraseology of real entities for the purpose of discussing fictitious entities, is an inquiry on which the present writer cannot venture.

The next feature prominently demanding attention in the logical tracts, is the instrument which their Author used for analyzing and laying out his subjects—his exhaustive method of division, on the Dichotomous or Bifurcate plan. He took the hint of this system from the old editions of the Isagoge of Porphyry, in which there is a diagram exhibiting an exemplification of it, commonly attributed to the inventive genius of Porphyry himself, but probably the work of an editor. The dichotomous mode of division is frequently alluded to in the writings of the Aristotelian logicians, and it received considerable attention from Ramus; but it was, like many other instruments of discovery, a mere plaything for the intellect, until it fell into the hands of a man who was able to adapt it to practical service. The Porphyrian tree represents as the centre or trunk a genus generalissimum, from which successive branches issuing carry off some separable quality, until it has gone through as many processes of division as can be applied to it, and leaves in the two last condividends the two most concrete entities which can be comprehended within the general term.

The service which Bentham derived from the study of this diagram, was in its leading him to the conclusion that the only species of division which in its very terms bears to be exhaustive, is a division into two. It may happen that any other division—such as that of the works of nature into the animal, vegetable, and mineral kingdoms, may turn out to be exhaustive: but the object is to find a formula the use of which of itself secures exhaustiveness.

It is only by a division into two parts that logical definition per genus et differentiam can be accomplished. The species is marked off by its possessing the quality of the genus, and some differential quality which separates it from the other species of that genus. It is only by the expression of a difference as between two, that thought and language enable us to say whether the elements of the thing divided are exhausted in the condividends. We can only compare two things together—we cannot compare three or more at one time. In common language we do speak of comparing together more things than two; but the operation by which we accomplish this end is compound, consisting of deductions drawn from a series of comparisons, each relating to only two things at a time. Comparison is the estimate of differences; and language, by giving us the word “between,” as that by which we take the estimate, shows that we can only operate on two things at a time. Thus, if we have a division of an aggregate into three, we cannot give such a nomenclature to these three elements as will show that they exhaust the aggregate. If we say law is divided into penal and non-penal, we feel certain, in the very form of the statement, that we include every sort of law under one or other of these designations; but if we say that law is divided into real, personal, and penal, we cannot be, in the same manner, sure that we include every kind of law. If we wish to proceed farther in the division, and, after dividing the law into penal and non-penal, say the non-penal is divided into that which affects persons and that which does not affect persons, we are sure still to be exhaustive; and this system we can continue with the same certainty ad infinitum.

The system is undoubtedly a laborious and a tedious one, when the subject is large, and the examination minute. The exemplifications which the Author has given in his tables are the produce of great labour, and cover but a limited extent of subject. It was more as a test of the accuracy of the analysis made by the mind when proceeding with its ordinary Edition: current; Page: [83] abbreviated operations, than as an instrument to be actually used on all occasions, that the Author adopted the bifurcate system. As a means of using it with the more clearness and certainty, he recommended the adaptation to it of the Contradictory formula—viz., the use of a positive affirmation of a quality in one of the condividends, and the employment of the correspondent negative in the other. The value of this test, as applicable to any description of argumentative statement, is, in its bringing out intended contrasts with clearness and certainty. It is not necessary that the Differential formula should be actually employed. In its constant use there would be an end to all freedom and variety in style. But it is highly useful, to take the statement to pieces, and try whether its various propositions contain within them the essence of the bifurcate system and the formula; in other words, to see that when differences are explained, or contrasts made, they be clearly applied to only two things at a time, and that the phraseology, instead of implying vague elements of difference, explains distinctly what the one thing has, and what the other has not.*

the end.
Edition: current; Page: [84] Edition: current; Page: [a]

AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION.

bencher of lincoln’s inn; and late of queen’s college, oxford, m. a. with the LAST CORRECTIONS BY THE AUTHOR, and additions from DUMONT’S TRAITÉS DE LEGISLATION, &c.

Edition: current; Page: [b]

THE FIRST EDITION OF THIS WORK WAS PRINTED IN THE YEAR 1780.

THE WORK WAS FIRST PUBLISHED IN 1789.

Edition: current; Page: [i]

PREFACE.

The following sheets were, as the title-page expresses, printed so long ago as the year 1780. The design, in pursuance of which they were written, was not so extensive as that announced by the present title. They had at that time no other destination than that of serving as an introduction to a plan of a penal code, in terminis, designed to follow them, in the same volume.

The body of the work had received its completion according to the then present extent of the author’s views, when, in the investigation of some flaws he had discovered, he found himself unexpectedly entangled in an unsuspected corner of the metaphysical maze. A suspension, at first not apprehended to be more than a temporary one, necessarily ensued: suspension brought on coolness, and coolness, aided by other concurrent causes, ripened into disgust.

Imperfections pervading the whole mass had already been pointed out by the sincerity of severe and discerning friends; and conscience had certified the justness of their censure. The inordinate length of some of the chapters, the apparent inutility of others, and the dry and metaphysical turn of the whole, suggested an apprehension, that, if published in its present form, the work would contend under great disadvantages for any chance, it might on other accounts possess, of being read, and consequently of being of use.

But, though in this manner the idea of completing the present work slid insensibly aside, that was not by any means the case with the considerations which had led him to engage in it. Every opening, which promised to afford the lights he stood in need of, was still pursued: as occasion arose, the several departments connected with that in which he had at first engaged, were successively explored; insomuch that, in one branch or other of the pursuit, his researches have nearly embraced the whole field of legislation.

Several causes have conspired at present to bring to light, under this new title, a work which under its original one had been imperceptibly, but as it had seemed irrevocably, doomed to oblivion. In the course of eight years, materials for various works, corresponding to the different branches of the subject of legislation, had been produced, and some nearly reduced to shape: and, in every one of those works, the principles exhibited in the present publication had been found so necessary, that, either to transcribe them piecemeal, or to exhibit them somewhere, where they could be referred to in the lump, was found unavoidable. The former course would have occasioned repetitions too bulky to be employed without necessity in the execution of a plan unavoidably so voluminous: the latter was therefore indisputably the preferable one.

To publish the materials in the form in which they were already printed, or to work them up into a new one, was therefore the only alternative: the latter had all along been his wish; and, had time and the requisite degree of alacrity been at command, it would as certainly have been realized. Cogent considerations, however, concur with the irksomeness of the task, in placing the accomplishment of it at present at an unfathomable distance.

Another consideration is, that the suppression of the present work, had it been ever so decidedly wished, is no longer altogether in his power. In the course of so long an interval, various incidents have introduced copies into various hands, from some of which they have been transferred, by deaths and other accidents, into others that are unknown to him. Detached, but considerable extracts, have even been published, without any dishonourable views (for the name of the author was very honestly subjoined to them), but without his privity, and in publications undertaken without his knowledge.

It may perhaps be necessary to add, to complete his excuse for offering to the public a work pervaded by blemishes, which have not escaped even the author’s partial eye, that the censure, so justly bestowed upon the form, did not extend itself to the matter.

In sending it thus abroad into the world with all its imperfections upon its head, he Edition: current; Page: [ii] thinks it may be of assistance to the few readers he can expect, to receive a short intimation of the chief particulars, in respect of which it fails of corresponding with his maturer views. It will thence be observed how in some respects it fails of quadrating with the design announced by its original title, as in others it does with that announced by the one it bears at present.

An introduction to a work which takes for its subject the totality of any science, ought to contain all such matters, and such matters only, as belong in common to every particular branch of that science, or at least to more branches of it than one. Compared with its present title, the present work fails in both ways of being conformable to that rule.

As an introduction to the principles of morals, in addition to the analysis it contains of the extensive ideas signified by the terms pleasure, pain, motive, and disposition, it ought to have given a similar analysis of the not less extensive, though much less determinate, ideas annexed to the terms emotion, passion, appetite, virtue, vice, and some others, including the names of the particular virtues and vices. But as the true, and, if he conceives right, the only true groundwork for the development of the latter set of terms, has been laid by the explanation of the former, the completion of such a dictionary, so to style it, would, in comparison of the commencement, be little more than a mechanical operation.

Again, as an introduction to the principles of legislation in general, it ought rather to have included matters belonging exclusively to the civil branch, than matters more particularly applicable to the penal: the latter being but a means of compassing the ends proposed by the former. In preference, therefore, or at least in priority, to the several chapters which will be found relative to punishment, it ought to have exhibited a set of propositions which have since presented themselves to him as affording a standard for the operations performed by government, in the creation and distribution of proprietary and other civil rights. He means certain axioms of what may be termed mental pathology, expressive of the connexion betwixt the feelings of the parties concerned, and the several classes of incidents, which either call for, or are produced by, operations of the nature above mentioned.*

The consideration of the division of offences, and every thing else that belongs to offences, ought, besides, to have preceded the consideration of punishment: for the idea of punishment presupposes the idea of offence: punishment, as such, not being inflicted but in consideration of offence.

Lastly, the analytical discussions relative to the classification of offences would, according to his present views, be transferred to a separate treatise, in which the system of legislation is considered solely in respect of its form: in other words, in respect of its method and terminology.

In these respects, the performance fails of coming up to the author’s own ideas of what should have been exhibited in a work, bearing the title he has now given it, viz. that of an Introduction to the Principles of Morals and Legislation. He knows however of no other that would be less unsuitable: nor, in particular, would so adequate an intimation of its actual contents have been given, by a title corresponding to the more limited design, with which it was written; viz. that of serving as an introduction to a penal code.

Yet more. Dry and tedious as a great part of the discussions it contains must unavoidably be found by the bulk of readers, he knows not how to regret the having written them, nor even the having made them public. Under every head, the practical uses, to which the discussions contained under that head appeared applicable, are indicated: nor is there, he believes, a single proposition that he has not found occasion to build upon in the penning of some article or other of those provisions of detail, of which a body of law, authoritative or unauthoritative, must be composed. He will venture to specify particularly, in this view, the several chapters shortly characterized by the words Sensibility, Actions, Intentionality, Consciousness, Motives, Dispositions, Consequences. Even in the enormous chapter on the division of offences, which, notwithstanding the forced compression the plan has undergone in several of its parts, in manner there mentioned, occupies no fewer than one hundred and four closely printed quarto pages, the ten concluding ones are employed in a statement of the practical advantages that may be reaped from the plan of classification which it exhibits. Those in whose sight the Defence of Usury has been fortunate enough to find favour, may reckon, as one instance of those advantages, the discovery of the principles Edition: current; Page: [iii] developed in that little treatise. In the preface to an anonymous tract published so long ago as in 1776,* he had hinted at the utility of a natural classification of offences, in the character of a test for distinguishing genuine from spurious ones. The case of usury is one among a number of instances of the truth of that observation. A note at the end of Sect. xxxv. Chap. xvi. of the present publication, may serve to show how the opinions developed in that tract owed their origin to the difficulty experienced in the attempt to find a place in his system for that imaginary offence. To some readers, as a means of helping them to support the fatigue of wading through an analysis of such enormous length, he would almost recommend the beginning with those ten concluding pages.

One good at least may result from the present publication; viz. that the more he has trespassed on the patience of the reader on this occasion, the less need he will have so to do on future ones: so that this may do to those, the office which is done by books of pure mathematics to books of mixed mathematics and natural philosophy. The narrower the circle of readers is, within which the present work may be condemned to confine itself, the less limited may be the number of those to whom the fruits of his succeeding labours may be found accessible. He may therefore, in this respect, find himself in the condition of those philosophers of antiquity, who are represented as having held two bodies of doctrine, a popular and an occult one: but with this difference, that in his instance the occult and the popular will, he hopes, be found as consistent as in those they were contradictory; and that, in his production, whatever there is of occultness has been the pure result of sad necessity, and in no respect of choice.

Having, in the course of this advertisement, had such frequent occasion to allude to different arrangements, as having been suggested by more extensive and maturer views, it may perhaps contribute to the satisfaction of the reader, to receive a short intimation of their nature: the rather, as without such explanation, references made here and there to unpublished works might be productive of perplexity and mistake. The following, then, are the titles of the works by the publication of which his present designs would be completed. They are exhibited in the order which seemed to him best fitted for apprehension, and in which they would stand disposed, were the whole assemblage ready to come out at once: but the order in which they will eventually appear, may probably enough be influenced in some degree by collateral and temporary considerations.

Part the 1st.—Principles of legislation in matters of civil, more distinctively termed private distributive, or for shortness, distributive, law.

Part the 2d.—Principles of legislation in matters of penal law.

Part the 3d.—Principles of legislation in matters of procedure: uniting in one view the criminal and civil branches, between which no line can be drawn, but a very indistinct one, and that continually liable to variation.

Part the 4th.—Principles of legislation in matters of reward.

Part the 5th.—Principles of legislation in matters of public distributive, more concisely as well as familiarly termed constitutional, law.

Part the 6th.—Principles of legislation in matters of political tactics: or of the art of maintaining order in the proceedings of political assemblies, so as to direct them to the end of their institution; viz. by a system of rules, which are to the constitutional branch, in some respects, what the law of procedure is to the civil and the penal.

Part the 7th.—Principles of legislation in matters betwixt nation and nation, or, to use a new though not inexpressive appellation, in matters of international law.

Part the 8th.—Principles of legislation in matters of finance.

Part the 9th.—Principles of legislation in matters of political economy.

Part the 10th.—Plan of a body of law, complete in all its branches, considered in respect of its form; in other words, in respect of its method and terminology; including a view of the origination and connexion of the ideas expressed by the short list of terms, the exposition of which contains all that can be said with propriety to belong to the head of universal jurisprudence.

The use of the principles laid down under the above several heads is to prepare the way for the body of law itself exhibited in terminis: and which, to be complete with reference to any political state, must consequently be calculated for the meridian, and adapted to the circumstances, of some one such state in particular.

Had he an unlimited power of drawing upon time, and every other condition necessary, it would be his wish to postpone the publication of each part to the completion of the whole. In particular, the use of the ten parts, which exhibit what appear to him the dictates of utility in every line, being no other than to furnish reasons for the several corresponding provisions contained in the body of law itself, the exact truth of the former can never be precisely ascertained, till Edition: current; Page: [iv] the provisions, to which they are destined to apply, are themselves ascertained, and that in terminis. But as the infirmity of human nature renders all plans precarious in the execution, in proportion as they are extensive in the design, and as he has already made considerable advances in several branches of the theory, without having made correspondent advances in the practical applications, he deems it more than probable, that the eventual order of publication will not correspond exactly with that which, had it been equally practicable, would have appeared most eligible. Of this irregularity the unavoidable result will be, a multitude of imperfections, which, if the execution of the body of law in terminis had kept pace with the development of the principles, so that each part had been adjusted and corrected by the other, might have been avoided. His conduct, however, will be the less swayed by this inconvenience, from his suspecting it to be of the number of those in which the personal vanity of the author is much more concerned, than the instruction of the public: since whatever amendments may be suggested in the detail of the principles, by the literal fixation of the provisions to which they are relative, may easily be made in a corrected edition of the former, succeeding upon the publication of the latter.

In the course of the ensuing pages, references will be found, as already intimated, some to the plan of a penal code, to which this work was meant as an introduction; some to other branches of the above-mentioned general plan, under titles somewhat different from those by which they have been mentioned here. The giving this warning is all which it is in the author’s power to do, to save the reader from the perplexity of looking out for what has not as yet any existence. The recollection of the change of plan will in like manner account for several similar incongruities not worth particularizing.

Allusion was made, at the outset of this advertisement, to some unspecified difficulties as the causes of the original suspension, and unfinished complexion, of the present work. Ashamed of his defeat, and unable to dissemble it, he knows not how to refuse himself the benefit of such an apology as a slight sketch of the nature of those difficulties may afford.

The discovery of them was produced by the attempt to solve the questions that will be found at the conclusion of the volume: Wherein consisted the identity and completeness of a law? What the distinction, and where the separation, between a penal and a civil law? What the distinction, and where the separation, between the penal and other branches of the law?

To give a complete and correct answer to these questions, it is but too evident that the relations and dependencies of every part of the legislative system, with respect to every other, must have been comprehended and ascertained. But it is only upon a view of these parts themselves, that such an operation could have been performed. To the accuracy of such a survey one necessary condition would therefore be, the complete existence of the fabric to be surveyed. Of the performance of this condition no example is as yet to be met with any where. Common law, as it styles itself in England, judiciary law, as it might more aptly be styled every where, that fictitious composition which has no known person for its author, no known assemblage of words for its substance, forms every where the main body of the legal fabric: like that fancied ether, which, in default of sensible matter, fills up the measure of the universe. Shreds and scraps of real law, stuck on upon that imaginary ground, compose the furniture of every national code. What follows? That he who, for the purpose just mentioned, or for any other, wants an example of a complete body of law to refer to, must begin with making one.

There is, or rather there ought to be, a logic of the will, as well as of the understanding: the operations of the former faculty are neither less susceptible, nor less worthy, than those of the latter, of being delineated by rules. Of these two branches of that recondite art, Aristotle saw only the latter: succeeding logicians, treading in the steps of their great founder, have concurred in seeing with no other eyes. Yet so far as a difference can be assigned between branches so intimately connected, whatever difference there is, in point of importance, is in favour of the logic of the will; since it is only by their capacity of directing the operations of this faculty, that the operations of the understanding are of any consequence.

Of this logic of the will, the science of law, considered in respect of its form, is the most considerable branch,—the most important application. It is, to the art of legislation, what the science of anatomy is to the art of medicine: with this difference, that the subject of it is what the artist has to work with, instead of being what he has to operate upon. Nor is the body politic less in danger from a want of acquaintance with the one science, than the body natural from ignorance in the other. One example, amongst a thousand that might be adduced in proof of this assertion, may be seen in the note which terminates this volume.

Such, then, were the difficulties: such the preliminaries:—an unexampled work to achieve, and then a new science to create: a new branch to add to one of the most abstruse of sciences.

Edition: current; Page: [v]

Yet more: a body of proposed law, how complete soever, would be comparatively useless and uninstructive, unless explained and justified, and that in every tittle, by a continued accompaniment, a perpetual commentary of reasons:* which reasons, that the comparative value of such as point in opposite directions may be estimated, and the conjunct force of such as point in the same direction may be felt, must be marshalled, and put under subordination to such extensive and leading ones as are termed principles. There must be therefore, not one system only, but two parallel and connected systems, running on together; the one of legislative provisions, the other of political reasons; each affording to the other correction and support.

Are enterprises like these achievable? He knows not. This only he knows, that they have been undertaken, proceeded in, and that some progress has been made in all of them. He will venture to add, if at all achievable, never at least by one, to whom the fatigue of attending to discussions, as arid as those which occupy the ensuing pages, would either appear useless, or feel intolerable. He will repeat it boldly (for it has been said before him), truths that form the basis of political and moral science are not to be discovered but by investigations as severe as mathematical ones, and beyond all comparison more intricate and extensive. The familiarity of the terms is a presumption, but it is a most fallacious one, of the facility of the matter. Truths in general have been called stubborn things: the truths just mentioned are so in their own way. They are not to be forced into detached and general propositions, unincumbered with explanations and exceptions. They will not compress themselves into epigrams. They recoil from the tongue and the pen of the declaimer. They flourish not in the same soil with sentiment. They grow among thorns; and are not to be plucked, like daisies, by infants as they run. Labour, the inevitable lot of humanity, is in no tract more inevitable than here. In vain would an Alexander bespeak a peculiar road for royal vanity, or a Ptolemy a smoother one for royal indolence. There is no King’s Road, no Stadtholder’s Gate, to legislative, any more than to mathematic science.

CONTENTS.

  • CHAPTER I. Of the Principle of Utility.
    • Mankind governed by pain and pleasure, . Page 1
    • Principle of utility, what, . . . . . . ib.
      • A principle, what, . . . . . . . ib.
    • Utility, what, . . . . . . . . . . ib.
    • Interest of the community, what, . . . . 2
    • An action conformable to the principle of utility, what, . . . . . . . . . ib.
    • A measure of government conformable to the principle of utility, what, . . . . . . ib.
    • Laws or dictates of utility, what, . . . ib.
    • A partisan of the principle of utility, who, ib.
    • Ought, ought not, right and wrong, &c. how to be understood, . . . . . . . . ib.
    • To prove the rectitude of this principle is at once unnecessary and impossible, . . . ib.
    • It has seldom, however, as yet, been consistently pursued, . . . . . . . . . ib.
    • It can never be consistently combated, . . ib.
    • Course to be taken for surmounting prejudices that may have been entertained against it, . . . . . . . . . . 3
  • CHAPTER II. Of Principles adverse to that of Utility.
    • All other principles than that of utility must be wrong, . . . . . . . . . . . 4
    • Ways in which a principle may be wrong . ib.
      • Asceticism, origin of the word, . . ib.
      • Principles of the Monks, . . . . ib.
    • Principle of Asceticism, what, . . . . ib.
    • A partisan of the principle of asceticism, who, ib.
    • This principle has had in some a philosophical, in others a religious origin, . . . ib.
    • It has been carried farther by the religious party than by the philosophical, . . . . 5
    • The philosophical branch of it has had most influence among persons of education, the religious among the vulgar, . . . . ib.
    • The principle of asceticism has never been steadily applied by either party to the business of government, . . . . . . . . ib.
    • The principle of asceticism, in its origin, was but that of utility misapplied, . . . . 6
    • It can never be consistently pursued, . . ib. Edition: current; Page: [vi]
    • The principle of sympathy and antipathy, what, . . . . . . . . . . . . 6
    • This is rather the negation of all principle, than any thing positive, . . . . . . 8
    • Sentiments of a partisan of the principle of antipathy, . . . . . . . . . . . ib.
    • The systems that have been formed concerning the standard of right and wrong, are all reducible to this principle, . . . . ib.
      • Various phrases, that have served as the characteristic marks of so many pretended systems, . . . . . . . ib.
      • 1. Moral Sense, . . . . . . . . ib.
      • 2. Common Sense, . . . . . . . ib.
      • 3. Understanding, . . . . . . . ib.
      • 4. Rule of Right, . . . . . . . ib.
      • 5. Fitness of Things, . . . . . . ib.
      • 6. Law of Nature, . . . . . . . 9
      • 7. Law of Reason, Right Reason, Natural Justice, Natural Equity, Good Order, . . . . . . . . ib.
      • 8. Truth, . . . . . . . . . . ib.
      • 9. Doctrine of Election, . . . . . ib.
      • 10. Repugnancy to Nature, . . . . ib.
        • Mischief they produce, . . . . ib.
        • Whether utility is actually the sole ground of all the approbation we ever bestow, is a different consideration, . . . . . . . ib.
    • This principle will frequently coincide with that of utility, . . . . . . . . . . ib.
    • This principle is most apt to err on the side of severity, . . . . . . . . . . . 10
    • But errs, in some instances, on the side of lenity, . . . . . . . . . . . . ib.
    • The theological principle, what—not a sepaparate principle, . . . . . . . . . ib.
      • The principle of theology, how reducible to one or another of the other three principles, . . . . . . . . . . 11
    • Antipathy, let the actions it dictates be ever so right, is never of itself a right ground of action, . . . . . . . . . . . . ib.
    • Objections to the Principle of Utility answered, . . . . . . . . . . . . ib.
  • CHAPTER III. Of the four Sanctions or Sources of Pain and Pleasure.
    • Connexion of this chapter with the preceding, 14
    • Four sanctions or sources of pleasure and pain, ib.
      • 1. The physical sanction, . . . . . ib.
      • 2. The political, . . . . . . . . ib.
      • 3. The moral, or popular, . . . . ib.
      • 4. The religious, . . . . . . . . ib.
    • The pleasures and pains which belong to the religious sanction, may regard either the present life, or a future, . . . . . . ib.
    • Those which regard the present life, from whichsoever source they flow, differ only in the circumstances of their production, . ib.
    • Example, . . . . . . . . . . . . 15
    • Those which regard a future life are not specifically known, . . . . . . . . . ib.
    • The physical sanction included in each of the other three, . . . . . . . . . . ib.
    • Use of this chapter, . . . . . . . . ib.
  • CHAPTER IV. Value of a Lot of Pleasure or Pain, how to be measured.
    • Use of this chapter, . . . . . . . . . 15
    • Circumstances to be taken into the account in estimating the value of a pleasure or pain considered with reference to a single person, and by itself, . . . . . . . . 16
    • — considered as connected with other pleasures or pains, . . . . . . . . . ib.
    • — considered with reference to a number of persons, . . . . . . . . . . . . ib.
    • Process for estimating the tendency of any act or event, . . . . . . . . . . . ib.
    • Use of the foregoing process, . . . . . ib.
    • The same process applicable to good and evil, profit and mischief, and all other modifications of pleasure and pain, . . . . . ib.
    • Conformity of men’s practice to this theory, 17
  • CHAPTER V. Pleasures and Pains, their Kinds.
    • Pleasures and Pains are either 1. Simple; or 2. Complex, . . . . . . . . . . . 17
    • The simple pleasures enumerated, . . . ib.
    • The simple pains enumerated, . . . . . ib.
      • Analytical view, why none given, . ib.
      • 1. Pleasures of sense enumerated, . . . ib.
      • 2. Pleasures of wealth, which are either of acquisition, or of possession, . . . 18
      • 3. Pleasures of skill, . . . . . . . ib.
      • 4. Pleasures of amity, . . . . . . ib.
      • 5. Pleasures of a good name, . . . . . ib.
      • 6. Pleasures of power, . . . . . . ib.
      • 7. Pleasures of piety, . . . . . . . ib.
      • 8. Pleasures of benevolence or good-will, ib.
      • 9. Pleasures of malevolence or ill-will, . . ib.
      • 10. Pleasures of the memory, . . . . ib.
      • 11. Pleasures of the imagination, . . . ib.
      • 12. Pleasures of expectation, . . . . . 19
      • 13. Pleasures depending on association, . ib.
      • 14. Pleasures of relief, . . . . . . . ib.
    • 1. Pains of privation, . . . . . . . ib.
    • These include,
      • 1. Pains of desire, . . . ib.
      • 2. Pains of disappointment, ib.
      • 3. Pains of regret, . . . ib.
    • 2. Pains of the senses, . . . . . . . ib.
      • No positive pains correspond to the pleasure of the sexual sense, . . ib.
    • 3. Pains of awkwardness, . . . . . . ib.
      • No positive pains correspond to the pleasure of novelty, . . . . ib.
      • —nor to those of wealth, . . . 20
      • Is this a distinct positive pain, or only a pain of privation? . . . ib.
    • 4. Pains of enmity, . . . . . . . . ib.
    • 5. Pains of an ill name, . . . . . . ib.
      • The positive pains of an ill name, and the pains of privation, opposed to the pleasures of a good name, run into one another, . . . . ib.
    • 6. Pains of piety. . . . . . . . . . ib.
      • No positive pains correspond to the pleasures of power, . . . . ib.
      • The positive pains of piety, and the pains of privation, opposed to the pleasures of piety, run into one another, . . . . . . . . . ib.
    • 7. Pains of benevolence, . . . . . . ib.
    • 8. Pains of malevolence, . . . . . . ib.
    • 9. Pains of the memory, . . . . . . ib.
    • 10. Pains of the imagination, . . . . . ib.
    • 11. Pains of expectation, . . . . . . ib.
    • 12. Pains of association, . . . . . . . ib.
    • Pleasures and pains are either self-regarding or extra-regarding, . . . . . . . ib. Edition: current; Page: [vii]
      • Pleasures and pains of amity and enmity distinguished from those of benevolence and malevolence, . . . . . 21
    • In what way the law is concerned with the above pains and pleasures, . . . . . ib.
      • Complex pleasures and pains omitted, why, . . . . . . . . . . . ib.
      • Specimen.—Pleasures of a country prospect, . . . . . . . . . . . ib.
  • CHAPTER VI. Of Circumstances influencing Sensibility.
    • Pain and pleasure not uniformly proportioned to their causes, . . . . . . . . . . 21
    • Degree or quantum of sensibility, what, . ib.
    • Bias or quality of sensibility, what, . . . ib.
    • Exciting causes pleasurable and dolorific, . 22
    • Circumstances influencing sensibility, what, ib.
    • Circumstances influencing sensibility enumerated, . . . . . . . . . . . ib.
      • Extent and intricacy of this subject, . ib.
      • 1. Health, . . . . . . . . . . ib.
      • 2. Strength, . . . . . . . . . . 23
        • Measure of strength, the weight a man can lift, . . . . . . . ib.
        • Weakness, what, . . . . . . . ib.
      • 3. Hardiness, . . . . . . . . . ib.
    • Difference between strength and hardiness, ib.
      • 4. Bodily imperfection, . . . . . . ib.
      • 5. Quantity and quality of knowledge, . ib.
      • 6. Strength of intellectual powers, . . . ib.
      • 7. Firmness of mind, . . . . . . 24
      • 8. Steadiness, . . . . . . . . . . ib.
      • 9. Bent of inclinations, . . . . . . ib.
      • 10. Moral sensibility, . . . . . . . ib.
      • 11. Moral biases, . . . . . . . . . ib.
      • 12. Religious sensibility, . . . . . . ib.
      • 13. Religious biases, . . . . . . . . ib.
      • 14. Sympathetic sensibility, . . . . . ib.
      • 15. Sympathetic biases, . . . . . . . 25
      • 16. 17. Antipathetic sensibility and biases, ib.
      • 18. Insanity, . . . . . . . . . ib.
      • 19. Habitual occupations, . . . . . . ib.
      • 20. Pecuniary circumstances, . . . . ib.
      • 21. Connexions in the way of sympathy, . 26
      • 22. Connexions in the way of antipathy, ib.
      • 23. Radical frame of body, . . . . . 27
      • 24. Radical frame of mind, . . . . . ib.
        • Idiosyncrasy, what, . . . . . . ib.
    • This distinct from the circumstance of frame of body, . . . . . . . . . . . ib.
      • Whether the soul be material or immaterial makes no difference, . . ib.
    • —and from all others, . . . . . . . ib.
    • Yet the result of them is not separately discernible, . . . . . . . . . . . ib.
    • Frame of body indicates, but not certainly, that of mind, . . . . . . . . . ib.
    • Secondary influencing circumstances, . . . 28
      • 25. Sex, . . . . . . . . . . . ib.
      • 26. Age, . . . . . . . . . . . . ib.
      • 27. Rank, . . . . . . . . . . . 29
      • 28. Education, . . . . . . . . . . ib.
      • 29. Climate, . . . . . . . . . . ib.
      • 30. Lineage, . . . . . . . . . . . 30
      • 31. Government, . . . . . . . . . ib.
      • 32. Religious profession, . . . . . . ib.
    • Use of the preceding observations, . . . . 31
    • How far the circumstances in question can be taken into account, . . . . . . . ib.
    • To what exciting causes there is most occasion to apply them, . . . . . . . . ib.
    • Analytical view of the circumstances influencing sensibility, . . . . . . . . 32
      • Analytical view of the constituent articles in a man’s pecuniary circumstances, . . . . . . . . . . 33
    • Uses of the preceding observations, . . . ib.
  • CHAPTER VII. Of Human Actions in general.
    • The demand for punishment depends in part upon the tendency of the act, . . . . 35
    • Tendency of an act determined by its consequences, . . . . . . . . . . . . ib.
    • Material consequences only are to be regarded, . . . . . . . . . . . . ib.
    • These depend in part upon the intention, . ib.
    • The intention depends as well upon the understanding as the will, . . . . . . ib.
    • In an action are to be considered, 1. The act, 2. The circumstances. 3. The intentionality. 4. The consciousness. 5. The motives. 6. The disposition, . . . . . 36
    • Acts positive and negative, . . . . . . ib.
      • Acts of omission are still acts, . . ib.
    • Negative acts may be so relatively or absolutely, . . . . . . . . . . . . ib.
    • Negative acts may be expressed positively; and vice versâ, . . . . . . . . . ib.
    • Acts external and internal, . . . . . . ib.
    • Acts of discourse, what, . . . . . . . ib.
    • External acts may be transitive or intransitive, . . . . . . . . . . . . ib.
      • Distinction between transitive acts and intransitive, recognised by grammarians, ib.
    • A transitive act, its commencement, termination, and intermediate progress, . . . 37
    • An intransitive act, its commencement, and termination, . . . . . . . . . . ib.
    • Acts transient and continued, . . . . . ib.
    • Difference between a continued act and a repetition of acts, . . . . . . . . . ib.
    • Difference between a repetition of acts and a habit, . . . . . . . . . . . . ib.
    • Acts are indivisible, or divisible; and divisible as well with regard to matter as to motion, . . . . . . . . . . . . ib.
    • Caution respecting the ambiguity of language, . . . . . . . . . . . . ib.
    • Circumstances are to be considered, . . . 38
    • Circumstances, what, . . . . . . . ib.
      • Circumstances, archetypation of the word, . . . . . . . . . . ib.
    • Circumstances material and immaterial, . ib.
    • A circumstance may be related to an event in point of causality, in four ways, viz. 1. Production. 2. Derivation. 3. Collateral connexion. 4. Conjunct influence, . ib.
    • Example. Assassination of Buckingham, ib.
    • It is not every event that has circumstances related to it in all those ways, . . . . 39
    • Use of this chapter, . . . . . . . . . ib.
  • CHAPTER VIII. Of Intentionality.
    • Recapitulation, . . . . . . . . . . 40
    • The intention may regard, 1. The act: or, 2. The consequences, . . . . . . . ib.
      • Ambiguity of the words voluntary and involuntary, . . . . . . . . ib.
    • It may regard the act without any of the consequences, . . . . . . . . . . ib.
    • —or the consequences without regarding the act in all its stages, . . . . . . . ib.
    • —but not without regarding the first stage, ib. Edition: current; Page: [viii]
      • An act unintentional in its first stage, may be so without respect to, 1. Quantity of matter moved: 2. Direction: 3. Velocity, . . . . . 41
    • A consequence, when intentional, may be directly so, or obliquely, . . . . . . . ib.
    • When directly, ultimately so, or mediately, ib.
    • When directly intentional, it may be exclusively so, or inexclusively, . . . . . ib.
    • When inexclusively, it may be conjunctively, disjunctively, or indiscriminately so, . . ib.
    • When disjunctively, it may be with or without preference, . . . . . . . . . ib.
      • Difference between an incident’s being unintentional and disjunctively intentional, when the election is in favour of the other, . . . . . . ib.
    • Example, . . . . . . . . . . . . 42
    • Intentionality of the act with respect to its different stages, how far material, . . ib.
    • Goodness and badness of intention dismissed, ib.
  • CHAPTER IX. Of Consciousness.
    • Connexion of this chapter with the foregoing, 43
    • Acts advised and unadvised: consciousness, what, . . . . . . . . . . . . ib.
    • Unadvisedness may regard either existence or materiality, . . . . . . . . . . ib.
    • The circumstance may have been present, past, or future, . . . . . . . . . ib.
    • An unadvised act may be heedless, or not heedless, . . . . . . . . . . . . ib.
    • A misadvised act, what—a missupposal, . ib.
    • The supposed circumstance might have been material in the way either of prevention or of compensation, . . . . . . . . ib.
    • It may have been supposed present, past, or future, . . . . . . . . . . . . ib.
    • Example, continued from the last chapter, ib.
    • In what case consciousness extends the intentionality from the act to the consequences, 44
    • Example continued, . . . . . . . . ib.
    • A misadvised act may be rash or not rash, ib.
    • The intention may be good or bad in itself, independently of the motive as well as the eventual consequences, . . . . . . ib.
    • It is better, when the intention is meant to be spoken of as being good or bad, not to say, the motive, . . . . . . . . . . . ib.
    • Example, . . . . . . . . . . . . 45
    • Intention, in what cases it may be innocent, ib.
    • Intentionality and consciousness, how spoken of in the Roman law, . . . . . . . ib.
    • Use of this and the preceding chapter, . . ib.
  • CHAPTER X. Of Motives.
    • § 1. Different senses of the word Motive.
      • Motives, why considered, . . . . . . 46
      • Purely speculative motives have nothing to do here, . . . . . . . . . . . ib.
      • Motives to the will, . . . . . . . . . ib.
      • Figurative and unfigurative senses of the word, . . . . . . . . . . . . ib.
      • Motives interior and exterior, . . . . . 47
      • Motive in prospect—motive in case, . . ib.
      • Motives immediate and remote, . . . . . ib.
      • Motives to the understanding, how they may influence the will, . . . . . . . . ib.
    • § 2. No Motives either constantly good or constantly bad.
      • Nothing can act of itself as a motive, but the idea of pleasure or pain, . . . . . . 48
      • No sort of motive is in itself a bad one, . . ib.
      • Inaccuracy of expressions in which good or bad are applied to motives, . . . . . ib.
      • Any sort of motive may give birth to any sort of act, . . . . . . . . . . . . ib.
      • Difficulties which stand in the way of an analysis of this sort, . . . . . . . ib.
    • § 3. Catalogue of Motives corresponding to that of Pleasures and Pains.
      • Physical desire corresponding to pleasures of sense in general, . . . . . . . . 49
      • The motive corresponding to the pleasures of the palate, . . . . . . . . . . . ib.
      • Sexual desire corresponding to the pleasures of the sexual sense, . . . . . . . ib.
      • Curiosity, &c. corresponding to the pleasures of curiosity, . . . . . . . . . . ib.
      • None pleasures of sense, . . . . . . ib.
      • Pecuniary interest to the pleasures of wealth, ib.
      • None to the pleasures of skill, . . . . . ib.
      • To the pleasures of amity, the desire of ingratiating one’s self, . . . . . . . . ib.
      • To the pleasures of a good name, the love of reputation, . . . . . . . . . . 51
      • To the pleasures of power, the love of power, ib.
      • The motive belonging to the religious sanction, . . . . . . . . . . . . . ib.
      • Good-will, &c. to the pleasures of sympathy, 52
      • Ill-will, &c. to the pleasures of antipathy, . 53
      • Self-preservation, to the several kinds of pains, 54
      • To the pains of exertion, the love of ease, . 55
      • Motives can only be bad with reference to the most frequent complexion of their effects, ib.
      • How it is that motives, such as lust, avarice, &c. are constantly bad, . . . . . . ib.
      • Under the above restrictions, motives may be distinguished into good, bad, and indifferent or neutral, . . . . . . . . . . . ib.
      • Inconveniences of this distribution, . . . ib.
      • It is only in individual instances that motives can be good or bad, . . . . . . . . 56
      • Motives distinguished into social, dissocial, and self-regarding, . . . . . . . ib.
      • —social, into purely-social, and semi-social, ib.
    • § 4. Order of pre-eminence among Motives.
      • The dictates of good-will are the surest of coinciding with those of utility, . . . ib.
        • Laws and dictates conceived as issuing from motives, . . . . . . . ib.
      • Yet do not in all cases, . . . . . . . . ib.
      • Next to them come those of the love of reputation, . . . . . . . . . . . . 57
      • Next those of the desire of amity, . . . . ib.
      • Difficulty of placing those of religion, . . ib.
      • Tendency they have to improve, . . . . ib.
      • Afterwards come the self-regarding motives: and, lastly, that of displeasure, . . . . 58
    • § 5. Conflict among Motives.
      • Motives impelling and restraining, what, . ib.
      • What are the motives most frequently at variance, . . . . . . . . . . . . ib.
      • Example to illustrate a struggle among contending motives, . . . . . . . . . ib.
      • Practical use of the above disquisitions relative to motives, . . . . . . . . . 60
    Edition: current; Page: [ix]
  • CHAPTER XI. Of human Dispositions in general.
    • Disposition, what, . . . . . . . . 60
    • How far it belongs to the present subject, . ib.
    • A mischievous disposition; a meritorious disposition; what, . . . . . . . . . 61
    • What a man’s disposition is, can only be matter of presumption, . . . . . . ib.
    • It depends upon what the act appears to be to him, . . . . . . . . . . . . ib.
    • Which position is grounded on two facts:
      • 1. The correspondence between intentions and consequences, . . . . . . ib.
      • 2. Between the intentions of the same person at different times, . . . . . ib.
        • A disposition, from which proceeds a habit of doing mischief, cannot be a good one, . . . . . . ib.
    • The disposition is to be inferred, 1. From the apparent tendency of the act: 2. From the nature of the motive, . . . . . ib.
    • Case 1. Tendency, good—motive, self-regarding, . . . . . . . . . . . ib.
    • Case 2. Tendency, bad—motive, self-regarding, . . . . . . . . . . . . . ib.
    • Case 3. Tendency, good—motive, good-will, 62
    • Case 4. Tendency, bad—motive, good-will, ib.
      • This case not an impossible one, . . . ib.
      • Example I. . . . . . . . . . . ib.
      • Example II. . . . . . . . . . . ib.
      • Example III. . . . . . . . . . ib.
    • Case 5. Tendency, good—motive, love of reputation, . . . . . . . . . . . ib.
      • The bulk of mankind apt to depreciate this motive, . . . . . . ib.
    • Case 6. Tendency, bad—motive, honour, . 63
      • Example I. . . . . . . . . . . ib.
      • Example II. . . . . . . . . . . ib.
    • Case 7. Tendency, good—motive, piety, . ib.
    • Case 8. Tendency, bad—motive, religion, ib.
      • The disposition may be bad in this case, ib.
    • Case 9. Tendency, good—motive, malevolence, . . . . . . . . . . . 64
      • Example, . . . . . . . . . . . ib.
    • Case 10. Tendency, bad—motive, malevolence, . . . . . . . . . . . ib.
      • Example, . . . . . . . . . . . ib.
    • Problem—to measure the depravity in a man’s disposition, . . . . . . . . 65
    • A man’s disposition is constituted by the sum of his intentions, . . . . . . . . . ib.
    • —which owe their birth to motives, . . . ib.
    • A seducing or corrupting motive, what—a tutelary or preservatory motive, . . . ib.
    • Tutelary motives are either standing or occasional, . . . . . . . . . . . . ib.
    • Standing tutelary motives are—
      • 1. Good-will, . . . . . . . . ib.
      • 2. The love of reputation, . . . . ib.
      • 3. The desire of amity, . . . . 66
      • 4. The motive of religion, . . . . ib.
    • Occasional tutelary motives may be any whatsoever, . . . . . . . . . . . . ib.
    • Motives that are particularly apt to act in this character are, 1. Love of ease. 2. Self-preservation, . . . . . . . . . . ib.
    • Dangers to which self-preservation is most apt in this case to have respect are, 1. Dangers purely physical. 2. Dangers depending on detection, . . . . . . . . ib.
    • Danger depending on detection may result from, 1. Opposition on the spot. 2. Subsequent punishment, . . . . . . . 67
    • The force of the two standing tutelary motives of love of reputation, and desire of amity, depends upon detection, . . . 67
    • Strength of a temptation, what is meant by it, ib.
    • Indications afforded by this and other circumstances respecting the depravity of an offender’s disposition, . . . . . . . ib.
    • Rules for measuring the depravity of disposition indicated by an offence, . . . . . 68
    • Use of this chapter, . . . . . . . . ib.
  • CHAPTER XII. Of the Consequences of a Mischievous Act.
    • § 1. Shapes in which the Mischief of an Act may show itself.
      • Recapitulation, . . . . . . . . . 69
      • Mischief of an act, the aggregate of its mischievous consequences, . . . . . . ib.
      • The mischief of an act, primary or secondary, . . . . . . . . . . . . ib.
      • Primary—original or derivative, . . . . ib.
      • The secondary—1. Alarm: or, 2. Danger, ib.
      • Example, . . . . . . . . . . . ib.
      • The danger whence it arises—a past offence affords no direct motive to a future, . . 70
      • But it suggests feasibility, and weakens the force of restraining motives, . . . . ib.
        • viz. 1. Those issuing from the political sanction, . . . . . . . ib.
        • 2. Those issuing from the moral, ib.
      • It is said to operate by the influence of example, . . . . . . . . . . . . ib.
      • The alarm and the danger, though connected, are distinguishable, . . . . . . . 71
      • Both may have respect to the same person, or to others, . . . . . . . . . . ib.
      • The primary consequences of an act may be mischievous, and the secondary, beneficial, ib.
      • Analysis of the different shapes in which the mischief of an act may show itself, . . ib.
      • —applied to the preceding cases, . . . . 72
      • —to examples of other cases where the mischief is less conspicuous, . . . . . . ib.
      • Example I. An act of self-intoxication, . ib.
      • Example II. Non-payment of a tax, . . . ib.
      • No alarm, when no assignable person is the object, . . . . . . . . . . . 73
    • § 2. How Intentionality, &c. may influence the Mischief of an Act.
      • Secondary mischief influenced by the state of the agent’s mind, . . . . . . . . . ib.
      • Case 1. Involuntariness, . . . . . . 74
      • Case 2. Unintentionality, with heedlessness, ib.
      • Case 3. Missupposal of a complete justification, without rashness, . . . . . . ib.
      • Case 4. Missupposal of a partial justification, without rashness, . . . . . . ib.
      • Case 5. Missupposal, with rashness, . . . ib.
      • Case 6. Consequences completely intentional, and free from missupposal, . . . . . ib.
      • The nature of a motive takes not away the mischief of the secondary consequences, ib.
      • Nor the beneficialness, . . . . . . . ib.
      • But it may aggravate the mischievousness, where they are mischievous, . . . . . 75
      • But not the most in the case of the worst motives, . . . . . . . . . . . ib.
      • It does the more, the more considerable the tendency of the motive to produce such acts, ib.
      • —which is as its strength and constancy, . ib.
      • General efficacy of a species of motive, how measured, . . . . . . . . . . ib. Edition: current; Page: [x]
      • A mischievous act is more so, when issuing from a self-regarding than when from a dissocial motive, . . . . . . . . 75
      • —so even when issuing from the motive of religion, . . . . . . . . . . ib.
      • How the secondary mischief is influenced by disposition, . . . . . . . . . . 76
      • Connexion of this with the succeeding chapter, . . . . . . . . . . . . . ib.
  • CHAPTER XIII. Circumstances influencing the Degree of Alarm.
    • 1. The situation of the offender, . . . . ib.
    • 2. The ease or difficulty of preventing the crime, . . . . . . . . . . . ib.
    • 3. The greater or less facility with which the offender can be concealed, . . . . 77
    • 4. The character of the offender, . . . . ib.
    • Case in which there is no alarm, . . . . 80
    • Of the cases in which the danger is greater than the alarm, . . . . . . . . . ib.
  • CHAPTER XIV. Reasons for considering certain Actions as Crimes, . . . . . . . . . . 81
  • CHAPTER XV. Cases unmeet for Punishment.
    • § 1. General view of Cases unmeet for Punishment.
      • The end of the law is, to augment happiness, 83
      • But punishment is an evil, . . . . . . ib.
        • What concerns the end, and several other topics, relative to punishment, dismissed to another work, . . . ib.
        • Concise view of the ends of punishment, . . . . . . . . . . ib.
      • Therefore ought not to be admitted, . . . ib.
        • 1. Where groundless, . . . . . . . ib.
        • 2. Inefficacious, . . . . . . . . ib.
        • 3. Unprofitable, . . . . . . . . ib.
        • 4. Or needless, . . . . . . . . . 84
    • § 2. Cases in which Punishment is groundless.
      • 1. Where there has never been any mischief, as in the case of consent, . . . . . ib.
      • 2. Where the mischief was outweighed; as in precaution against calamity, and the exercise of powers, . . . . . . . . ib.
      • 3.—or will, for a certainty, be cured by compensation, . . . . . . . . . . ib.
        • Hence the favours shown to the offences of responsible offenders: such as simple mercantile frauds, . . ib.
    • § 3. Cases in which Punishment must be inefficacious.
      • 1. Where the penal provision comes too late: as in, 1. An ex-post-facto law. 2. An ultra-legal sentence, . . . . . . ib.
      • 2. Or it is not made known: as in a law not sufficiently promulgated, . . . . ib.
      • 3. Where the will cannot be deterred from any act, as in
        • [a] Infancy, . . . . ib.
        • [b] Insanity, . . . . ib.
        • [c] Intoxication, . . ib.
        • In infancy and intoxication, the case can hardly be proved to come under the rule, . . . . . . . . . ib.
        • The reason for not punishing in these three cases is commonly put upon a wrong footing, . . . . . . . ib.
      • 4. Or not from the individual act in question, as in 85
        • [a] Unintentionality, . . . . ib.
        • [b] Unconsciousness, . . . . ib.
        • [c] Missupposal, . . . . . ib.
      • 5. Or is acted on by an opposite superior force: as by
        • [a] Physical danger, . ib.
        • [b] Threatened mischief, ib.
        • Why the influence of the moral and religious sanctions is not mentioned in the same view, . . . . . . ib.
      • 6.—or the bodily organs cannot follow its determination: as under physical compulsion or restraint, . . . . . . ib.
    • § 4. Cases where Punishment is unprofitable.
      • 1. Where, in the sort of case in question, the punishment would produce more evil than the offence would, . . . . . ib.
      • Evil producible by a punishment—its four branches—viz.
        • [a] Restraint, . . . . ib.
        • [b] Apprehension, . . ib.
        • [c] Sufferance, . . . . ib.
        • [d] Derivative evils, . . ib.
      • The evil of the offence, being different according to the nature of the offence, cannot be represented here, . . . . . . . . 86
      • 2. Or, in the individual case in question: by reason of
        • [a] The multitude of delinquents, . . . . . ib.
        • [b] The value of a delinquent’s service, . . ib.
        • [c] The displeasure of the people, . . . . . ib.
        • [d] The displeasure of foreign powers, . . . . . ib.
    • § 5. Cases where Punishment is needless.
      • 1. Where the mischief is to be prevented at a cheaper rate: as by instruction, . . ib.
  • CHAPTER XVI. Of the Proportion between Punishments and Offences.
    • Recapitulation, . . . . . . . . . . 86
    • Four objects of punishment, . . . . . . ib.
      • 1st Object—to prevent all offences, . ib.
      • 2d Object—to prevent the worst, . . ib.
      • 3d Object—to keep down the mischief, ib.
      • 4th Object—to act at the least expense, ib.
    • Rules of proportion between punishments and offences, . . . . . . . . . . 87
      • The same rules applicable to motives in general, . . . . . . . . ib.
    • Rule 1. Outweigh the profit of the offence, ib.
      • Profit may be of any other kind, as well as pecuniary, . . . . . . ib.
      • Impropriety of the notion that the punishment ought not to increase with the temptation, . . . . . . . ib.
    • The propriety of taking the strength of the temptation for a ground of abatement, no objection to this rule, . . . . . . . ib.
    • Rule 2. Venture more against a great offence than a small one, . . . . . . . . 88
      • Example—Incendiarism and coining, ib.
    • Rule 3. Cause the least of two offences to be preferred, . . . . . . . . . . . ib.
    • Rule 4. Punish for each particle of the mischief, . . . . . . . . . . . . ib.
      • Example—In blows given, and money stolen, . . . . . . . . . ib.
    • Rule 5. Punish in no degree without special reason, . . . . . . . . . . . . ib. Edition: current; Page: [xi]
    • Rule 6. Attend to circumstances influencing sensibility, . . . . . . . . . . 88
    • Comparative view of the above rules, . . . ib.
    • Into the account of the value of a punishment, must be taken its deficiency in point of certainty and proximity, . . . . . ib.
    • Also, into the account of the mischief, and profit of the offence, the mischief and profit of other offences of the same habit, . . 89
    • Rule 7. Want of certainty must be made up in magnitude, . . . . . . . . . ib.
    • Rule 8. So also want of proximity, . . . ib.
    • Rule 9. For acts indicative of a habit, punish as for the habit, . . . . . . . . . ib.
    • The remaining rules are of less importance, ib.
    • Rule 10. For the sake of quality, increase in quantity, . . . . . . . . . . . ib.
    • Rule 11. Particularly for a moral lesson, . ib.
      • A punishment applied by way of moral lesson, what, . . . . . . . ib.
      • Example—In simple corporal injuries, ib.
      • Example—In military laws, . . . ib.
    • Rule 12. Attend to circumstances which may render punishment unprofitable, . . . ib.
    • Rule 13. For simplicity’s sake, small disproportions may be neglected, . . . . . ib.
      • Proportionality carried very far in the present work—why, . . . . . ib.
    • Auxiliary force of the physical, moral, and religious sanctions, not here allowed for—why, . . . . . . . . . . . . . 90
    • Recapitulation, . . . . . . . . . ib.
    • The nicety here observed vindicated from the charge of inutility, . . . . . . . ib.
  • CHAPTER XVII. Of the Properties to be given to a Lot of Punishment.
    • Properties are to be governed by proportion, 91
    • Property 1. Variability, . . . . . . ib.
    • Property 2. Equability, . . . . . . . ib.
    • Punishments which are apt to be deficient in this respect, . . . . . . . . . . ib.
    • Property 3. Commensurability to other punishments, . . . . . . . . . . 92
    • How two lots of punishment may be rendered perfectly commensurable, . . . . . ib.
    • Property 4. Characteristicalness, . . . . ib.
    • The mode of punishment the most eminently characteristic, is that of retaliation, . . ib.
    • Property 5. Exemplarity, . . . . . . ib.
    • The most effectual way of rendering a punishment exemplary is by means of analogy, . . . . . . . . . . . . 93
    • Property 6. Frugality, . . . . . . . ib.
    • Frugality belongs in perfection to pecuniary punishment, . . . . . . . . . . ib.
    • Exemplarity and frugality, in what they differ and agree, . . . . . . . . . ib.
    • Other properties of inferior importance, . ib.
    • Property 7. Subserviency to reformation, . ib.
    • —applied to offences originating in ill-will, ib.
    • —to offences originating in indolence joined to pecuniary interest, . . . . . . . 94
    • Property 8. Efficacy with respect to disablement, . . . . . . . . . . . . ib.
    • —is most conspicuous in capital punishment, ib.
    • Other punishments in which it is to be found, ib.
    • Property 9. Subserviency to compensation, ib.
    • Property 10. Popularity, . . . . . . ib.
      • Characteristicalness renders a punishment, 1. memorable: 2. exemplary: 3. popular, . . . . . . . . ib.
    • Mischiefs resulting from the unpopularity of a punishment—discontent among the people, and weakness in the law, . . . . . 95
    • This property supposes a prejudice which the legislature ought to cure, . . . . . ib.
    • Property 11. Remissibility, . . . . . . ib.
    • To obtain all these properties, punishments must be mixed, . . . . . . . . . 96
    • The foregoing properties recapitulated, . . ib.
    • Connection of this with the ensuing chapter, ib.
  • CHAPTER XVIII. Division of Offences.
    • § 1. Classes of Offences.
    • Method pursued in the following division, . . . . . . . . . . . ib.
      • Distinction between what are offences and what ought to be, . . . . . . . . ib.
      • No act ought to be an offence but what is detrimental to the community, . . . 97
      • To be so, it must be detrimental to some one or more of its members, . . . . . . ib.
      • These may be assignable or not, . . . . ib.
        • Persons assignable, how, . . . . ib.
      • If assignable, the offender himself, or others, ib.
      • Class 1. Private offences, . . . . . . ib.
      • Class 2. Semi-public offences, . . . . . ib.
        • Limits between private, semi-public, and public offences, are, strictly speaking, undistinguishable, . . ib.
      • Class 3. Self-regarding offences, . . . . 98
      • Class 4. Public offences, . . . . . . ib.
      • Class 5. Multiform offences,—viz. 1. Offences by falsehood. 2. Offences against trust, . . . . . . . . . . . . . ib.
        • The imperfections of language an obstacle to arrangement, . . . . ib.
        • Irregularity of this class, . . . . ib.
        • —which could not be avoided on any other plan, . . . . . . . . ib.
    • § 2. Divisions and Subdivisions.
      • Divisions of Class 1. 1. Offences against person. 2. Property. 3. Reputation. 4. Condition. 5. Person and reputation. 6. Person and property, . . . . . . . . 99
        • In what manner pleasure and pain depend upon the relation a man bears to exterior objects, . . . . . ib.
      • Divisions of Class 2. 1. Offences through calamity, . . . . . . . . . . . 100
      • Subdivisions of offences through calamity, dismissed, . . . . . . . . . . ib.
      • 2. Offences of mere delinquency, how they correspond with the divisions of private offences, . . . . . . . . ib.
      • Divisions of Class 3. coincide with those of Class 1. . . . . . . . . . . . ib.
      • Divisions of Class 4. . . . . . . . . 101
        • Exhaustive method departed from, ib.
      • Connection of the nine first divisions one with another, . . . . . . . . . ib.
      • Connection of offences against religion with the foregoing ones, . . . . . . . 103
      • Connection of offences against the national interest in general with the rest, . . . 104
      • Subdivisions of Class 5. enumerated, . . . ib.
      • 1. Divisions of offences by falsehood, . . ib.
      • Offences by falsehood, in what they agree with one another, . . . . . . . . ib.
      • —in what they differ, . . . . . . . . ib.
      • Subdivisions of offences by falsehood are determined Edition: current; Page: [xii] by the divisions of the preceding classes, . . . . . . . . . . . . 105
      • Offences of this class, in some instances, change their names; in others, not, . . ib.
      • A trust, what, . . . . . . . . . . ib.
        • Power and right, why no complete definition is here given of them, . ib.
      • Offences against trust, condition, and property, why ranked under separate divisions, . . . . . . . . . . . . 107
      • Offences against trust—their connection with each other, . . . . . . . . 110
      • Prodigality in trustees dismissed to Class 3. 113
      • The subdivisions of offences against trust are also determined by the divisions of the preceding classes, . . . . . . . ib.
      • Connection between offences by falsehood and offences against trust, . . . . . ib.
    • § 3. Genera of Class 1.
      • Analysis into genera pursued no further than Class 1. . . . . . . . . . . . ib.
      • Offences against an individual may be simple in their effects, or complex, . . . . . 114
      • Offences against person—their genera, . ib.
      • Offences against reputation, . . . . . 115
      • Offences against property, . . . . . 116
        • Payment, what, . . . . . . . ib.
      • Offences against person and reputation, . 118
      • Offences against person and property, . . 119
      • Offences against condition.—Conditions domestic or civil, . . . . . . . . . ib.
      • Domestic conditions grounded on natural relationships, . . . . . . . . . . ib.
        • Relations—two result from every two objects, . . . . . . . 120
      • Domestic relations which are purely of legal institution, . . . . . . . . . . 121
      • Offences touching the condition of a master, 122
      • Various modes of servitude, . . . . . 123
      • Offences touching the condition of a servant, . . . . . . . . . . . . ib.
      • Guardianship, what—Necessity of the institution, . . . . . . . . . . . 124
      • Duration to be given to it, . . . . . . 125
      • Powers that may, and duties that ought to be, annexed to it, . . . . . . . . ib.
      • Offences touching the condition of a guardian, . . . . . . . . . . . . . 126
      • Offences touching the condition of a ward, ib.
      • Offences touching the condition of a parent, 127
      • Offences touching the filial condition, . . 128
      • Condition of a husband.—Powers, duties, and rights, that may be annexed to it, . 129
      • Offences touching the condition of a husband, . . . . . . . . . . . . 130
      • Offences touching the condition of a wife, 131
      • Civil conditions, . . . . . . . . . 133
    • § 4. Advantages of the present Method.
      • General idea of the method here pursued, . 137
      • Its advantages, . . . . . . . . . 138
        • —1. It is convenient for the apprehension and the memory, . . . . . . ib.
        • —2. It gives room for general propositions, 139
        • —3. It points out the reason of the law, ib.
        • —4. It is alike applicable to the laws of all nations, . . . . . . . . ib.
    • § 5. Characters of the Classes.
      • Characters of the classes, how deducible from the above method, . . . . . . ib.
      • Characters of class 1. . . . . . . . ib.
      • Characters of class 2. . . . . . . . . 140
      • Characters of class 3. . . . . . . . ib.
      • Characters of class 4. . . . . . . . . 141
      • Characters of class 5. . . . . . . . ib.
  • CHAPTER XIX. Of the Limits of the Penal Branch of Jurisprudence.
    • § 1. Limits between Private Ethics and the Art of Legislation.
      • Use of this chapter, . . . . . . . . 142
      • Ethics in general, what, . . . . . . . ib.
      • Private ethics, . . . . . . . . . ib.
      • The art of government: that is, of legislation and administration, . . . . . . ib.
        • Interests of the inferior animals improperly neglected in legislation, . . . . . . . . . . ib.
      • Art of education, . . . . . . . . . 143
      • Ethics exhibit the rules of, 1. Prudence. 2. Probity. 3. Beneficence, . . . . . ib.
      • Probity and beneficence, how they connect with prudence, . . . . . . . . . ib.
      • Every act which is a proper object of ethics is not of legislation, . . . . . . . 144
      • The limits between the provinces of private ethics and legislation, marked out by the cases unmeet for punishment, . . . . ib.
      • 1. Neither ought to apply where punishment is groundless, . . . . . . . . . ib.
      • 2. How far private ethics can apply in the cases where punishment would be inefficacious, . . . . . . . . . . . . ib.
      • How far, where it would be unprofitable, . 145
      • Which it may be 1. Although confined to the guilty, . . . . . . . . ib.
        • 2. By enveloping the innocent, . . 146
      • Legislation, how far necessary for the enforcement of the dictates of prudence, . . ib.
      • —Apt to go too far in this respect, . . . 147
      • —Particularly in matters of religion, . . ib.
      • —How far necessary for the enforcement of the dictates of probity, . . . . . . ib.
      • —of the dictates of beneficence, . . . . ib.
      • Difference between private ethics and the art of legislation recapitulated, . . . . 148
    • § 2. Jurisprudence, its Branches.
      • Jurisprudence, expository—censorial, . . ib.
      • Expository jurisprudence, authoritative—unauthoritative, . . . . . . . . . ib.
      • Sources of the distinctions yet remaining, . ib.
      • Jurisprudence, local—universal, . . . . 149
      • Internal and international, . . . . ib.
      • Internal jurisprudence, national and provincial, local or particular, . . . . . 150
      • Jurisprudence, ancient—living, . . . . ib.
      • Jurisprudence, statutory—customary, . ib.
      • Jurisprudence, civil—penal—criminal, . ib.
      • Question concerning the distinction between the civil branch and the penal, stated, . ib.
        • 1. Occasion and purpose of the concluding note, . . . . . . . . . . . 151
        • 2. By a law here is not meant a statute, . ib.
        • 3. Every law is either a command, or a revocation of one, . . . . . . . . ib.
        • 4. A declaratory law is not, properly speaking, a law, . . . . . . . . . ib.
        • 5. Every coercive law creates an offence, . ib.
        • 6. A law creating an offence, and one appointing punishment, are distinct laws, ib. Edition: current; Page: [xiii]
        • 7. A discoercive law can have no punitory one appertaining to it but through the intervention of a coercive one, . . . 151
        • 8. But a punitory law involves the simply imperative one it belongs to, . . . ib.
        • 9. The simply imperative one might therefore be spared, but for its expository matter, . . . . . . . . . . ib.
        • 10. Nature of such expository matter, . . 152
        • 11. The vastness of its comparative bulk is not peculiar to legislative commands, ib.
        • 12. The same mass of expository matter may serve in common for many laws, . . ib.
        • 13. The imperative character essential to law, is apt to be concealed in and by expository matter, . . . . . . . ib.
        • 14. The concealment is favoured by the multitude of indirect forms in which imperative matter is capable of being couched, . . . . . . . . . . ib.
        • 15. Number and nature of the laws in a code, how determined, . . . . . ib.
        • 16. General idea of the limits between a civil and a penal code, . . . . . . ib.
        • 17. Contents of a civil code, . . . . . 153
        • 18. Contents of a penal code, . . . . . 153
        • 19. In the Code Frederic, the imperative character is almost lost in the expository matter, . . . . . . . . ib.
        • 20. So in the Roman law, . . . . . . ib.
        • 21. In the barbarian codes, it stands conspicuous, . . . . . . . . . ib.
        • 22. Constitutional code, its connection with the two others, . . . . . . . . ib.
        • 23. Thus the matter of one law may be divided among all three codes, . . . ib.
        • 24. Expository matter, a great quantity of it exists everywhere, in no other form than that of common or judiciary law, ib.
        • 25. Hence the deplorable state of the science of legislation, considered in respect of its form, . . . . . . . . . . ib.
        • 26. Occasions affording an exemplification of the difficulty as well as importance of this branch of science;—attempts to limit the powers of supreme representative legislatures, . . . . . 154
        • 27. Example: American Declarations of Rights, . . . . . . . . . . ib.
Edition: current; Page: [xiv] Edition: current; Page: [1]

CHAPTER I.: OF THE PRINCIPLE OF UTILITY.

Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. They govern us in all we do, in all we say, in all we think: every effort we can make to throw off our subjection, will serve but to demonstrate and confirm it. In words a man may pretend to abjure their empire: but in reality he will remain subject to it all the while. The principle of utility* recognises this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and of law. Systems which attempt to question it, deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light.

But enough of metaphor and declamation: it is not by such means that moral science is to be improved.

II.

The principle of utility is the foundation of the present work: it will be proper therefore at the outset to give an explicit and determinate account of what is meant by it. By the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question: or, what is the same thing in other words, to promote or to oppose that happiness. I say of every action whatsoever; and therefore not only of every action of a private individual, but of every measure of government.

III.

By utility is meant that property in any object, whereby it tends to produce benefit, Edition: current; Page: [2] advantage, pleasure, good, or happiness (all this in the present case comes to the same thing), or (what comes again to the same thing) to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered: if that party be the community in general, then the happiness of the community: if a particular individual, then the happiness of that individual.

IV.

The interest of the community is one of the most general expressions that can occur in the phraseology of morals: no wonder that the meaning of it is often lost. When it has a meaning, it is this. The community is a fictitious body, composed of the individual persons who are considered as constituting as it were its members. The interest of the community then is, what?—the sum of the interests of the several members who compose it.

V.

It is in vain to talk of the interest of the community, without understanding what is the interest of the individual.* A thing is said to promote the interest, or to be for the interest, of an individual, when it tends to add to the sum total of his pleasures: or, what comes to the same thing, to diminish the sum total of his pains.

VI.

An action then may be said to be conformable to the principle of utility, or, for shortness sake, to utility (meaning with respect to the community at large), when the tendency it has to augment the happiness of the community is greater than any it has to diminish it.

VII.

A measure of government (which is but a particular kind of action, performed by a particular person or persons) may be said to be conformable to or dictated by the principle of utility, when in like manner the tendency which it has to augment the happiness of the community is greater than any which it has to diminish it.

VIII.

When an action, or in particular a measure of government, is supposed by a man to be conformable to the principle of utility, it may be convenient, for the purposes of discourse, to imagine a kind of law or dictate, called a law or dictate of utility: and to speak of the action in question, as being conformable to such law or dictate.

IX.

A man may be said to be a partizan of the principle of utility, when the approbation or disapprobation he annexes to any action, or to any measure, is determined, by and proportioned to the tendency which he conceives it to have to augment or to diminish the happiness of the community: or in other words, to its conformity or unconformity to the laws or dictates of utility.

X.

Of an action that is conformable to the principle of utility, one may always say either that it is one that ought to be done, or at least that it is not one that ought not to be done. One may say also, that it is right it should be done; at least that it is not wrong it should be done: that it is a right action; at least that it is not a wrong action. When thus interpreted, the words ought, and right and wrong, and others of that stamp, have a meaning: when otherwise, they have none.

XI.

Has the rectitude of this principle been ever formally contested? It should seem that it had, by those who have not known what they have been meaning. Is it susceptible of any direct proof? It should seem not: for that which is used to prove every thing else, cannot itself be proved: a chain of proofs must have their commencement somewhere. To give such proof is as impossible as it is needless.

XII.

Not that there is or ever has been that human creature breathing, however stupid or perverse, who has not on many, perhaps on most occasions of his life, deferred to it. By the natural constitution of the human frame, on most occasions of their lives men in general embrace this principle, without thinking of it: if not for the ordering of their own actions, yet for the trying of their own actions, as well as of those of other men. There have been, at the same time, not many, perhaps, even of the most intelligent, who have been disposed to embrace it purely and without reserve. There are even few who have not taken some occasion or other to quarrel with it, either on account of their not understanding always how to apply it, or on account of some prejudice or other which they were afraid to examine into, or could not bear to part with. For such is the stuff that man is made of: in principle and in practice, in a right track and in a wrong one, the rarest of all human qualities is consistency.

XIII.

When a man attempts to combat the principle of utility, it is with reasons drawn, without his being aware of it, from that very principle itself. His arguments, if they prove Edition: current; Page: [3] any thing, prove not that the principle is wrong, but that, according to the applications he supposes to be made of it, it is misapplied. Is it possible for a man to move the earth? Yes; but he must first find out another earth to stand upon.

XIV.

To disprove the propriety of it by arguments is impossible; but, from the causes that have been mentioned, or from some confused or partial view of it, a man may happen to be disposed not to relish it. Where this is the case, if he thinks the settling of his opinions on such a subject worth the trouble, let him take the following steps, and at length, perhaps, he may come to reconcile himself to it.

1. Let him settle with himself, whether he would wish to discard his principle altogether; if so, let him consider what it is that all his reasonings (in matters of politics especially) can amount to?

2. If he would, let him settle with himself, whether he would judge and act without any principle, or whether there is any other he would judge and act by?

3. If there be, let him examine and satisfy himself whether the principle he thinks he has found is really any separate intelligible principle; or whether it be not a mere principle in words, a kind of phrase, which at bottom expresses neither more nor less than the mere averment of his own unfounded sentiments; that is, what in another person he might be apt to call caprice?

4. If he is inclined to think that his own approbation or disapprobation, annexed to the idea of an act, without any regard to its consequences, is a sufficient foundation for him to judge and act upon, let him ask himself whether his sentiment is to be a standard of right and wrong, with respect to every other man, or whether every man’s sentiment has the same privilege of being a standard to itself?

5. In the first case, let him ask himself whether his principle is not despotical, and hostile to all the rest of human race?

6. In the second case, whether it is not anarchial, and whether at this rate there are not as many different standards of right and wrong as there are men? and whether even to the same man, the same thing, which is right to-day, may not (without the least change in its nature) be wrong to-morrow? and whether the same thing is not right and wrong in the same place at the same time? and in either case, whether all argument is not at an end? and whether, when two men have said, “I like this,” and “I don’t like it,” they can (upon such a principle) have any thing more to say?

7. If he should have said to himself, No: for that the sentiment which he proposes as a standard must be grounded on reflection, let him say on what particulars the reflection is to turn? If on particulars having relation to the utility of the act, then let him say whether this is not deserting his own principle, and borrowing assistance from that Edition: current; Page: [4] very one in opposition to which he sets it up: or if not on those particulars, on what other particulars?

8. If he should be for compounding the matter, and adopting his own principle in part, and the principle of utility in part, let him say how far he will adopt it?

9. When he has settled with himself where he will stop, then let him ask himself how he justifies to himself the adopting it so far? and why he will not adopt it any farther?

10. Admitting any other principle than the principle of utility to be a right principle, a principle that it is right for a man to pursue; admitting (what is not true) that the word right can have a meaning without reference to utility, let him say whether there is any such thing as a motive that a man can have to pursue the dictates of it: if there is, let him say what that motive is, and how it is to be distinguished from those which enforce the dictates of utility: if not, then lastly let him say what it is this other principle can be good for?

CHAPTER II.: OF PRINCIPLES ADVERSE TO THAT OF UTILITY.

I.

If the principle of utility be a right principle to be governed by, and that in all cases, it follows from what has been just observed, that whatever principle differs from it in any case must necessarily be a wrong one. To prove any other principle, therefore, to be a wrong one, there needs no more than just to show it to be what it is, a principle of which the dictates are in some point or other different from those of the principle of utility: to state it is to confute it.

II.

A principle may be different from that of utility in two ways: 1. By being constantly opposed to it: this is the case with a principle which may be termed the principle of asceticism.* 2. By being sometimes opposed to it, and sometimes not, as it may happen: this is the case with another, which may be termed the principle of sympathy and antipathy.

III.

By the principle of asceticism I mean that principle, which, like the principle of utility, approves or disapproves of any action, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question; but in an inversive manner: approving of actions in as far as they tend to diminish his happiness; disapproving of them in as far as they tend to augment it.

IV.

It is evident that any one who reprobates any the least particle of pleasure, as such, from whatever source derived, is pro tanto a partizan of the principle of asceticism. It is only upon that principle, and not from the principle of utility, that the most abominable pleasure which the vilest of malefactors ever reaped from his crime would be to be reprobated, if it stood alone. The case is, that it never does stand alone; but is necessarily followed by such a quantity of pain (or, what comes to the same thing, such a chance for a certain quantity of pain) that the pleasure in comparison of it, is as nothing: and this is the true and sole, but perfectly sufficient, reason for making it a ground for punishment.

V.

There are two classes of men of very different complexions, by whom the principle of asceticism appears to have been embraced; the one a set of moralists, the other a set of religionists. Different accordingly have been the motives which appear to have recommended it to the notice of these different parties. Hope, that is, the prospect of pleasure, seems to have animated the former: hope, the aliment of philosophic pride: the hope of honour and reputation at the hands of men. Fear, that is, the prospect of pain, the latter: fear, the offspring of superstitious fancy: the fear of future punishment at the hands of a splenetic and revengeful Deity. I say in this case fear: for of the invisible future, fear is more powerful than hope. Edition: current; Page: [5] These circumstances characterize the two different parties among the partizans of the principle of asceticism: the parties and their motives different, the principle the same.

VI.

The religious party, however, appear to have carried it farther than the philosophical: they have acted more consistently and less wisely. The philosophical party have scarcely gone farther than to reprobate pleasure: the religious party have frequently gone so far as to make it a matter of merit and of duty to court pain. The philosophical party have hardly gone farther than the making pain a matter of indifference. It is no evil, they have said: they have not said, it is a good. They have not so much as reprobated all pleasure in the lump. They have discarded only what they have called the gross; that is, such as are organical, or of which the origin is easily traced up to such as are organical: they have even cherished and magnified the refined. Yet this, however, not under the name of pleasure: to cleanse itself from the sordes of its impure original, it was necessary it should change its name: the honourable, the glorious, the reputable, the becoming, the honestum, the decorum, it was to be called: in short, any thing but pleasure.

VII.

From these two sources have flowed the doctrines from which the sentiments of the bulk of mankind have all along received a tincture of this principle; some from the philosophical, some from the religious, some from both. Men of education more frequently from the philosophical, as more suited to the elevation of their sentiments: the vulgar more frequently from the superstitious, as more suited to the narrowness of their intellect, undilated by knowledge: and to the abjectness of their condition, continually open to the attacks of fear. The tinctures, however, derived from the two sources, would naturally intermingle, insomuch that a man would not always know by which of them he was most influenced: and they would often serve to corroborate and enliven one another. It was this conformity that made a kind of alliance between parties of a complexion otherwise so dissimilar: and disposed them to unite upon various occasions against the common enemy, the partizan of the principle of utility, whom they joined in branding with the odious name of Epicurean.

VIII.

The principle of asceticism, however, with whatever warmth it may have been embraced by its partizans as a rule of private conduct, seems not to have been carried to any considerable length, when applied to the business of government. In a few instances it has been carried a little way by the philosophical party: witness the Spartan regimen. Though then, perhaps, it may be considered as having been a measure of security: and an application, though a precipitate and perverse application, of the principle of utility. Scarcely in any instances, to any considerable length, by the religious: for the various monastic orders, and the societies of the Quakers, Dumplers, Moravians, and other religionists, have been free societies, whose regimen no man has been astricted to without the intervention of his own consent. Whatever merit a man may have thought there would be in making himself miserable, no such notion seems ever to have occurred to any of them, that it may be a merit, much less a duty, to make others miserable: although it should seem, that if a certain quantity of misery were a thing so desirable, it would not matter much whether it were brought by each man upon himself, or by one man upon another. It is true, that from the same source from whence, among the religionists, the attachment to the principle of asceticism took its rise, flowed other doctrines and practices, from which misery in abundance was produced in one man by the instrumentality of another: witness the holy wars, and the persecutions for religion. But the passion for producing misery in these cases proceeded upon some special ground: the exercise of it was confined to persons of particular descriptions: they were tormented, not as men, but as heretics and infidels. To have inflicted the same miseries on their fellow-believers and fellow-sectaries, would have been as blameable in the eyes even of these religionists, as in those of a partizan of the principle of utility. For a man to give himself a certain number of stripes was indeed meritorious: but to give the same number of stripes to another man, not consenting, would have been a sin. We read of saints, who for the good of their souls, and the mortification of their bodies, have voluntarily yielded themselves a prey to vermin: but though many persons of this class have wielded the reins of empire, we read of none who have set themselves to work, and made laws on purpose, with a view of stocking the body politic with the breed of highwaymen, housebreakers, or incendiaries. If at any time they have suffered the nation to be preyed upon by swarms of idle pensioners, or useless placemen, it has rather been from negligence and imbecility, than from any settled plan for oppressing and plundering of the people.* If at any time they have sapped the sources of national wealth, by cramping commerce, and driving the inhabitants into emigration, it has been with other views, and in pursuit of other ends. If they have declaimed against Edition: current; Page: [6] the pursuit of pleasure, and the use of wealth, they have commonly stopped at declamation: they have not, like Lycurgus, made express ordinances for the purpose of banishing the precious metals. If they have established idleness by a law, it has been not because idleness, the mother of vice and misery, is itself a virtue, but because idleness (say they) is the road to holiness. If under the notion of fasting, they have joined in the plan of confining their subjects to a diet, thought by some to be of the most nourishing and prolific nature, it has been not for the sake of making them tributaries to the nations by whom that diet was to be supplied, but for the sake of manifesting their own power, and exercising the obedience of the people. If they have established, or suffered to be established, punishments for the breach of celibacy, they have done no more than comply with the petitions of those deluded rigorists, who, dupes to the ambitious and deep-laid policy of their rulers, first laid themselves under that idle obligation by a vow.

IX.

The principle of asceticism seems originally to have been the reverie of certain hasty speculators, who having perceived, or fancied, that certain pleasures, when reaped in certain circumstances, have, at the long run, been attended with pains more than equivalent to them, took occasion to quarrel with every thing that offered itself under the name of pleasure. Having then got thus far, and having forgot the point which they set out from, they pushed on, and went so much further as to think it meritorious to fall in love with pain. Even this, we see, is at bottom but the principle of utility misapplied.

X.

The principle of utility is capable of being consistently pursued; and it is but tautology to say, that the more consistently it is pursued, the better it must ever be for human-kind. The principle of asceticism never was, nor ever can be, consistently pursued by any living creature. Let but one tenth part of the inhabitants of this earth pursue it consistently, and in a day’s time they will have turned it into a hell.

XI.

Among principles adverse* to that of utility, that which at this day seems to have most influence in matters of government, is what may be called the principle of sympathy Edition: current; Page: [7] and antipathy. By the principle of sympathy and antipathy, I mean that principle which approves or disapproves of certain actions, not on account of their tending to augment the happiness, nor yet on account of their tending to diminish the happiness of Edition: current; Page: [8] the party whose interest is in question, but merely because a man finds himself disposed to approve or disapprove of them: holding up that approbation or disapprobation as a sufficient reason for itself, and disclaiming the necessity of looking out for any extrinsic ground. Thus far in the general department of morals: and in the particular department of politics, measuring out the quantum (as well as determining the ground) of punishment, by the degree of the disapprobation.

XII.

It is manifest, that this is rather a principle in name than in reality: it is not a positive principle of itself, so much as a term employed to signify the negation of all principle. What one expects to find in a principle is something that points out some external consideration, as a means of warranting and guiding the internal sentiments of approbation and disapprobation: this expectation is but ill fulfilled by a proposition, which does neither more nor less than hold up each of those sentiments as a ground and standard for itself.

XIII.

In looking over the catalogue of human actions (says a partizan of this principle) in order to determine which of them are to be marked with the seal of disapprobation, you need but to take counsel of your own feelings: whatever you find in yourself a propensity to condemn, is wrong for that very reason. For the same reason it is also meet for punishment: in what proportion it is adverse to utility, or whether it be adverse to utility at all, is a matter that makes no difference. In that same proportion also is it meet for punishment: if you hate much, punish much: if you hate little, punish little: punish as you hate. If you hate not at all, punish not at all: the fine feelings of the soul are not to be overborne and tyrannized by the harsh and rugged dictates of political utility.

XIV.

The various systems that have been formed concerning the standard of right and wrong, may all be reduced to the principle of sympathy and antipathy. One account may serve for all of them. They consist all of them in so many contrivances for avoiding the obligation of appealing to any external standard, and for prevailing upon the reader to accept of the author’s sentiment or opinion as a reason, and that a sufficient one, for itself. The phrases different, but the principle the same.*

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XV.

It is manifest, that the dictates of this principle will frequently coincide with those of utility, though perhaps without intending any such thing. Probably more frequently than not: and hence it is that the business Edition: current; Page: [10] of penal justice is carried on upon that tolerable sort of footing upon which we see it carried on in common at this day. For what more natural or more general ground of hatred to a practice can there be, than the mischievousness of such practice? What all men are exposed to suffer by, all men will be disposed to hate. It is far yet, however, from being a constant ground: for when a man suffers, it is not always that he knows what it is he suffers by. A man may suffer grievously, for instance, by a new tax, without being able to trace up the cause of his sufferings to the injustice of some neighbour, who has eluded the payment of an old one.

XVI.

The principle of sympathy and antipathy is most apt to err on the side of severity. It is for applying punishment in many cases which deserve none: in many cases which deserve some, it is for applying more than they deserve. There is no incident imaginable, be it ever so trivial, and so remote from mischief, from which this principle may not extract a ground of punishment. Any difference in taste: any difference in opinion: upon one subject as well as upon another. No disagreement so trifling which perseverance and altercation will not render serious. Each becomes in the other’s eyes an enemy, and, if laws permit, a criminal.* This is one of the circumstances by which the human race is distinguished (not much indeed to its advantage) from the brute creation.

XVII.

It is not, however, by any means unexampled for this principle to err on the side of lenity. A near and perceptible mischief moves antipathy. A remote and imperceptible mischief, though not less real, has no effect. Instances in proof of this will occur in numbers in the course of the work. It would be breaking in upon the order of it to give them here.

XVIII.

It may be wondered, perhaps, that in all this while no mention has been made of the theological principle; meaning that principle which professes to recur for the standard of right and wrong to the will of God. But the case is, this is not in fact a distinct principle. It is never any thing more or less than one or other of the three before-mentioned principles presenting itself under another Edition: current; Page: [11] shape. The will of God here meant cannot be his revealed will, as contained in the sacred writings: for that is a system which nobody ever thinks of recurring to at this time of day, for the details of political administration: and even before it can be applied to the details of private conduct, it is universally allowed, by the most eminent divines of all persuasions, to stand in need of pretty ample interpretations: else to what use are the works of those divines? And for the guidance of these interpretations, it is also allowed, that some other standard must be assumed. The will then which is meant on this occasion, is that which may be called the presumptive will: that is to say, that which is presumed to be his will on account of the conformity of its dictates to those of some other principle. What then may be this other principle? it must be one or other of the three mentioned above: for there cannot, as we have seen, be any more. It is plain, therefore, that, setting revelation out of the question, no light can ever be thrown upon the standard of right and wrong, by any thing that can be said upon the question, what is God’s will. We may be perfectly sure, indeed, that whatever is right is conformable to the will of God: but so far is that from answering the purpose of showing us what is right, that it is necessary to know first whether a thing is right, in order to know from thence whether it be conformable to the will of God.*

XIX.

There are two things which are very apt to be confounded, but which it imports us carefully to distinguish:—the motive or cause, which, by operating on the mind of an individual, is productive of any act: and the ground or reason which warrants a legislator, or other by-stander, in regarding that act with an eye of approbation. When the act happens, in the particular instance in question, to be productive of effects which we approve of, much more if we happen to observe that the same motive may frequently be productive, in other instances, of the like effects, we are apt to transfer our approbation to the motive itself, and to assume, as the just ground for the approbation we bestow on the act, the circumstance of its originating from that motive. It is in this way that the sentiment of antipathy has often been considered as a just ground of action. Antipathy, for instance, in such or such a case, is the cause of an action which is attended with good effects: but this does not make it a right ground of action in that case, any more than in any other. Still farther. Not only the effects are good, but the agent sees beforehand that they will be so. This may make the action indeed a perfectly right action: but it does not make antipathy a right ground of action. For the same sentiment of antipathy, if implicitly deferred to, may be, and very frequently is, productive of the very worst effects. Antipathy, therefore, can never be a right ground of action. No more, therefore, can resentment, which, as will be seen more particularly hereafter, is but a modification of antipathy. The only right ground of action, that can possibly subsist, is, after all, the consideration of utility, which, if it is a right principle of action, and of approbation, in any one case, is so in every other. Other principles in abundance, that is, other motives, may be the reasons why such and such an act has been done: that is, the reasons or causes of its being done: but it is this alone that can be the reason why it might or ought to have been done. Antipathy or resentment requires always to be regulated, to prevent its doing mischief: to be regulated by what? always by the principle of utility. The principle of utility neither requires nor admits of any other regulator than itself.

OBJECTIONS TO THE PRINCIPLE OF UTILITY ANSWERED.

Trifling scruples and “trifling verbal difficulties may be raised in opposition to the principle of utility, but no real and distinct objection can be opposed to it. Indeed, how can it be combated, if not by reasons drawn from the principle itself? To say that it is Edition: current; Page: [12] dangerous, is to say that to consult utility is contrary to utility.

The difficulty in this question arises from the perversity of language. Virtue has been represented as opposed to utility. Virtue, it has been said, consists in the sacrifice of our interests to our duties. In order to express these ideas clearly; it is necessary to observe, that there are interests of different orders, and that different interests are in certain circumstances incompatible. Virtue is the sacrifice of a smaller to a greater interest—of a momentary to a permanent interest—of a doubtful to a certain interest. Every idea of virtue, which is not derived from this notion, is as obscure as the motive to it is precarious.

Those who, for the sake of peace, seeking to distinguish politics and morals, assign utility as the principle of the first, and justice of the second, only exhibit the confusion of their ideas. The whole difference between politics and morals is this: the one directs the operations of governments, the other directs the proceedings of individuals; their common object is happiness. That which is politically good cannot be morally bad; unless the rules of arithmetic, which are true for great numbers, are false as respects those which are small.

Evil may be done, whilst it is believed that the principle of utility is followed. A feeble and limited mind may deceive itself, by considering only a part of the good and evil. A man under the influence of passion may deceive himself, by setting an extreme value upon one advantage which hides from him the inconveniences attending upon it. What constitutes a wicked man, is the habit of seeking pleasures hurtful to others; and even this supposes the absence of many kinds of pleasures. But we ought not to charge upon this principle the faults which are opposed to it, and which it alone can serve to remove. If a man calculate badly, it is not arithmetic which is in fault, it is himself. If the reproaches which are heaped upon Machiavel are well founded, his errors do not arise from his having made use of the principle of utility; but from his having made false applications of it. The author of Anti-Machiavel has well understood this. He has refuted “The Prince,” by shewing that its maxims are mischievous, and that bad faith is bad policy.

Those who, after reading the Offices of Cicero and the platonic moralists, have a confused notion of utility as opposed to honesty, often quote the saying of Aristides with regard to the project which Themistocles had unfolded to him alone: “The project of Themistocles is very advantageous,” said Aristides to the assembled people, “but it is very unjust.” They think they see here a decided opposition between utility and justice; but they deceive themselves: there is only a comparison of good and evil. Injustice is a term which presents to the mind the collection of all the evils resulting from a situation in which men can no longer trust one another. Aristides should have said, “The project of Themistocles would be useful for a moment, and hurtful for ages: what it would bestow is nothing in comparison with what it would take away.”*

This principle of utility, it is said, is only the renewal of epicurism, and it is known what ravages this doctrine made in manners: it was always the doctrine of the most corrupt men.

Epicurus, it is true, is the only one among the ancients who has the merit of having known the true source of morality; but to suppose that his doctrine leads to the consequences imputed to it, is to suppose that happiness can be the enemy of happiness itself. “Sic prasentibus utaris voluptatibus ut futuris non noceas.” Seneca is here in accordance with Epicurus: and what more can be desired in morals than the cutting off of every pleasure hurtful to one’s self or to others. But is not this the principle of utility?

“But it may be said, every one will be constituting himself judge of this utility: every obligation will cease when he no longer thinks he perceives in it his own interest.

Every one will constitute himself judge of his own utility; this is and this ought to be, otherwise man would not be a reasonable being. He who is not a judge of what is suitable for himself, is less than an infant, is a fool. The obligation which binds men to their engagements, is nothing but a feeling of an interest of a superior class, which outweighs an inferior interest. Men are not always held by the particular utility of a certain engagement; but in the case in which the engagement becomes burthensome to one of the parties, they are still held by the general utility of engagements—by the confidence that each enlightened man wishes to have placed in his word, that he may be considered as trustworthy, and enjoy the advantages attached to probity and esteem. It is not the engagement which constitutes the obligation by itself; for there are some void engagements; there are some unlawful. Why? Because they are considered as hurtful. It is the utility of the contract which gives it force.

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The most exalted acts of virtue may be easily reduced to a calculation of good and evil. This is neither to degrade nor to weaken them, but to represent them as the effects of reason, and to explain them in a simple and intelligible manner.

Let us observe the circle in which we are compelled to move when the principle of utility is not recognized. I ought to keep my promise. Why? Because my conscience prescribes it. How do you know that your conscience prescribes it? Because I have an internal feeling of it. Why ought you to obey your conscience? Because God is the author of my nature; and to obey my conscience, is to obey God. Why ought you to obey God? Because it is my first duty. How do you know this? Because my conscience tells me so—&c. Such is the eternal round from which there is no exit: such is the source of obstinate and invincible errors; for if there is no where any judge but feeling, there is no method of distinguishing between the injunctions of an enlightened and a blind conscience. All persecutors have had the same title, and all fanatics possess the same right.

If you would reject the principle of utility, because it may be ill applied, what would you substitute in its stead? What rule have you found which cannot be abused?—what infallible guide do you possess?

Would you substitute some despotic principle, which directs men to act in a certain manner, without knowing why, from pure obsequiousness?

Would you substitute some anarchical and capricious principle, founded solely upon internal and peculiar feelings?

In these cases, what are the motives by which you would determine men to follow you? Would they be independent of their interest? If they do not agree with you, how will you reason with them?—how will you attempt to conciliate them? Where would you cite all the sects, all the opinions, all the contradictions, which overspread the earth, if not to the tribunal of their common interest.

The most obstinate adversaries of the principle of utility are those who fix themselves upon what they call the religious principle. They profess to take the will of God for the sole rule of good and evil. It is the only rule, they say, which possesses all the requisite characters, being infallible, universal, supreme, &c.

I reply, that the religious principle is not a distinct principle; that it is one or other of those of which we have already spoken, presented under another aspect. What is called the will of God, can only be presumed to be his will, except where God has explained himself to us by immediate and peculiar revelations. But how shall a man presume upon the will of God? According to his own will? Now his own will is always directed by one of the three before-mentioned principles. How do you know that God has willed a certain thing? “Because it would be prejudicial to the happiness of men,” replies the partisan of utility. “Because it includes a gross and sensual pleasure that God disapproves,” replies the ascetic. “Because it wounds my conscience, because it is contrary to my natural feelings, and ought to be detested without examination,” is the language of antipathy.

But revelation, it may be said, is the direct expression of the will of God. In it there is nothing arbitrary. It is a guide which ought to govern all human reasoning.

I shall not indirectly reply, that revelation is not universal; that among Christian nations there are many individuals who do not admit it, and that some common principle of reasoning is required for all men.

But I say that revelation is not a system of politics or of morals; that its precepts require to be explained, modified, limited the one by the other; that taken in a literal sense, they would overturn the world, annihilate self-defence, industry, commerce, reciprocal attachments. Ecclesiastical history is one incontestible proof of the frightful evils which result from religious maxims ill understood.

How great the differences between Protestant and Catholic theologians! between the moderns and the ancients! The evangelical morality of Paley is not the evangelical morality of St. Nicholas; that of the Jansenists is not the same as that of the Jesuits. The interpreters of the sacred writings divide them selves into three classes: one class is guided by criticism; the principle of utility; another follows ascetism; the other follows the confused impressions of sympathy and antipathy. The first, far from excluding pleasures, offer them as a proof of the goodness of God. The ascetics are the mortal enemies of pleasures: if they allow them, it is never for their own sake, but as a means to a certain necessary end. The last approve or condemn them according to their fancy, without being determined by the consideration of their consequences. Revelation is not therefore a separate principle: this title can only be given to what does not require proof, and which may be employed to prove every thing else.

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CHAPTER III.: OF THE FOUR* SANCTIONS OR SOURCES OF PAIN AND PLEASURE.

I.

It has been shown that the happiness of the individuals, of whom a community is composed, that is, their pleasures and their security, is the end and the sole end which the legislator ought to have in view: the sole standard, in conformity to which each individual ought, as far as depends upon the legislator, to be made to fashion his behaviour. But whether it be this or any thing else that is to be done, there is nothing by which a man can ultimately be made to do it, but either pain or pleasure. Having taken a general view of these two grand objects (viz. pleasure, and what comes to the same thing, immunity from pain) in the character of final causes; it will be necessary to take a view of pleasure and pain itself, in the character of efficient causes or means.

II.

There are four distinguishable sources from which pleasure and pain are in use to flow: considered separately, they may be termed the physical, the political, the moral, and the religious: and inasmuch as the pleasures and pains belonging to each of them are capable of giving a binding force to any law or rule of conduct, they may all of them be termed sanctions.

III.

If it be in the present life, and from the ordinary course of nature, not purposely modified by the interposition of the will of any human being, nor by any extraordinary interposition of any superior invisible being, that the pleasure or the pain takes place or is expected, it may be said to issue from, or to belong to, the physical sanction.

IV.

If at the hands of a particular person or set of persons in the community, who under names correspondent to that of judge, are chosen for the particular purpose of dispensing it, according to the will of the sovereign or supreme ruling power in the state, it may be said to issue from the political sanction.

V.

If at the hands of such chance persons in the community, as the party in question may happen in the course of his life to have concerns with, according to each man’s spontaneous disposition, and not according to any settled or concerted rule, it may be said to issue from the moral or popular sanction.

VI.

If from the immediate hand of a superior invisible being, either in the present life, or in a future, it may be said to issue from the religious sanction.

VII.

Pleasures or pains which may be expected to issue from the physical, political, or moral sanctions, must all of them be expected to be experienced, if ever, in the present life: those which may be expected to issue from the religious sanction, may be expected to be experienced either in the present life or in a future.

VIII.

Those which can be experienced in the present life, can of course be no others than Edition: current; Page: [15] such as human nature in the course of the present life is susceptible of: and from each of these sources may flow all the pleasures or pains of which, in the course of the present life, human nature is susceptible. With regard to these, then (with which alone we have in this place any concern), those of them which belong to any one of those sanctions, differ not ultimately in kind from those which belong to any one of the other three: the only difference there is among them lies in the circumstances that accompany their production. A suffering which befals a man in the natural and spontaneous course of things, shall be styled, for instance, a calamity; in which case, if it be supposed to befal him through any imprudence of his, it may be styled a punishment issuing from the physical sanction. Now this same suffering, if inflicted by the law, will be what is commonly called a punishment; if incurred for want of any friendly assistance, which the misconduct, or supposed misconduct, of the sufferer has occasioned to be withholden, a punishment issuing from the moral sanction; if through the immediate interposition of a particular providence, a punishment issuing from the religious sanction.

IX.

A man’s goods, or his person, are consumed by fire. If this happened to him by what is called an accident, it was a calamity: if by reason of his own imprudence (for instance, from his neglecting to put his candle out), it may be styled a punishment of the physical sanction: if it happened to him by the sentence of the political magistrate, a punishment belonging to the political sanction—that is, what is commonly called a punishment: if for want of any assistance which his neighbour withheld from him out of some dislike to his moral character, a punishment of the moral sanction: if by an immediate act of God’s displeasure, manifested on account of some sin committed by him, or through any distraction of mind, occasioned by the dread of such displeasure, a punishment of the religious sanction.*

X.

As to such of the pleasures and pains belonging to the religious sanction, as regard a future life, of what kind these may be, we cannot know. These lie not open to our observation. During the present life they are matter only of expectation: and, whether that expectation be derived from natural or revealed religion, the particular kind of pleasure or pain, if it be different from all those which lie open to our observation, is what we can have no idea of. The best ideas we can obtain of such pains and pleasures are altogether unliquidated in point of quality. In what other respects our ideas of them may be liquidated, will be considered in another place.

XI.

Of these four sanctions, the physical is altogether, we may observe, the ground-work of the political and the moral: so is it also of the religious, in as far as the latter bears relation to the present life. It is included in each of those other three. This may operate in any case (that is, any of the pains or pleasures belonging to it may operate) independently of them: none of them can operate but by means of this. In a word, the powers of nature may operate of themselves; but neither the magistrate, nor men at large, can operate, nor is God in the case in question supposed to operate, but through the powers of nature.

XII.

For these four objects, which in their nature have so much in common, it seemed of use to find a common name. It seemed of use, in the first place, for the convenience of giving a name to certain pleasures and pains, for which a name equally characteristic could hardly otherwise have been found: in the second place, for the sake of holding up the efficacy of certain moral forces, the influence of which is apt not to be sufficiently attended to. Does the political sanction exert an influence over the conduct of mankind? The moral, the religious sanctions, do so too. In every inch of his career are the operations of the political magistrate liable to be aided or impeded by these two foreign powers: who, one or other of them, or both, are sure to be either his rivals or his allies. Does it happen to him to leave them out in his calculations? he will be sure almost to find himself mistaken in the result. Of all this we shall find abundant proofs in the sequel of this work. It behoves him, therefore, to have them continually before his eyes; and that under such a name as exhibits the relation they bear to his own purposes and designs.

CHAPTER IV.: VALUE OF A LOT OF PLEASURE OR PAIN, HOW TO BE MEASURED.

I.

Pleasures then, and the avoidance of pains are the ends which the legislator has in view: it behoves him therefore to understand their value. Pleasures and pains are the instruments he has to work with: it behoves him Edition: current; Page: [16] therefore to understand their force, which is again, in another point of view, their value.

II.

To a person considered by himself, the value of a pleasure or pain considered by itself, will be greater or less, according to the four following circumstances:*

  • 1. Its intensity.
  • 2. Its duration.
  • 3. Its certainty or uncertainty.
  • 4. Its propinquity or remoteness.

III.

These are the circumstances which are to be considered in estimating a pleasure or a pain considered each of them by itself. But when the value of any pleasure or pain is considered for the purpose of estimating the tendency of any act by which it is produced, there are two other circumstances to be taken into the account; these are,

5. Its fecundity, or the chance it has of being followed by sensations of the same kind: that is, pleasures, if it be a pleasure: pains, if it be a pain.

6. Its purity, or the chance it has of not being followed by sensations of the opposite kind: that is, pains, if it be a pleasure: pleasures, if it be a pain.

These two last, however, are in strictness scarcely to be deemed properties of the pleasure or the pain itself; they are not, therefore, in strictness to be taken into the account of the value of that pleasure or that pain. They are in strictness to be deemed properties only of the act, or other event, by which such pleasure or pain has been produced; and accordingly are only to be taken into the account of the tendency of such act or such event.

IV.

To a number of persons, with reference to each of whom the value of a pleasure or a pain is considered, it will be greater or less, according to seven circumstances: to wit, the six preceding ones; viz.

  • 1. Its intensity.
  • 2. Its duration.
  • 3. Its certainty or uncertainty.
  • 4. Its propinquity or remoteness.
  • 5. Its fecundity.
  • 6. Its purity.

And one other; to wit:

7. Its extent; that is, the number of persons to whom it extends; or (in other words) who are affected by it.

V.

To take an exact account, then, of the general tendency of any act, by which the interests of a community are affected, proceed as follows. Begin with any one person of those whose interests seem most immediately to be affected by it: and take an account.

1. Of the value of each distinguishable pleasure which appears to be produced by it in the first instance.

2. Of the value of each pain which appears to be produced by it in the first instance.

3. Of the value of each pleasure which appears to be produced by it after the first. This constitutes the fecundity of the first pleasure and the impurity of the first pain.

4. Of the value of each pain which appears to be produced by it after the first. This constitutes the fecundity of the first pain, and the impurity of the first pleasure.

5. Sum up all the values of all the pleasures on the one side, and those of all the pains on the other. The balance, if it be on the side of pleasure, will give the good tendency of the act upon the whole, with respect to the interests of that individual person; if on the side of pain, the bad tendency of it upon the whole.

6. Take an account of the number of persons whose interests appear to be concerned; and repeat the above process with respect to each. Sum up the numbers expressive of the degrees of good tendency, which the act has, with respect to each individual, in regard to whom the tendency of it is good upon the whole: do this again with respect to each individual, in regard to whom the tendency of it is good upon the whole: do this again with respect to each individual, in regard to whom the tendency of it is bad upon the whole. Take the balance; which, if on the side of pleasure, will give the general good tendency of the act, with respect to the total number or community of individuals concerned; if on the side of pain, the general evil tendency, with respect to the same community.

VI.

It is not to be expected that this process should be strictly pursued previously to every moral judgment, or to every legislative or judicial operation. It may, however, be always kept in view: and as near as the process actually pursued on these occasions approaches to it, so near will such process approach to the character of an exact one.

VII.

The same process is alike applicable to Edition: current; Page: [17] pleasure and pain, in whatever shape they appear; and by whatever denomination they are distinguished: to pleasure, whether it be called good (which is properly the cause or instrument of pleasure), or profit (which is distant pleasure, or the cause or instrument of distant pleasure), or convenience, or advantage, benefit, emolument, happiness, and so forth: to pain, whether it be called evil (which corresponds to good), or mischief, or inconvenience, or disadvantage, or loss, or unhappiness, and so forth.

VIII.

Nor is this a novel and unwarranted, any more than it is a useless theory. In all this there is nothing but what the practice of mankind, wheresoever they have a clear view of their own interest, is perfectly conformable to. An article of property, an estate in land, for instance, is valuable: on what account? On account of the pleasures of all kinds which it enables a man to produce, and, what comes to the same thing, the pains of all kinds which it enables him to avert. But the value of such an article of property is universally understood to rise or fall according to the length or shortness of the time which a man has in it the certainty or uncertainty of its coming into possession: and the nearness or remoteness of the time at which, if at all, it is to come into possession. As to the intensity of the pleasures which a man may derive from it, this is never thought of, because it depends upon the use which each particular person may come to make of it; which cannot be estimated till the particular pleasures he may come to derive from it, or the particular pains he may come to exclude by means of it, are brought to view. For the same reason, neither does he think of the fecundity or purity of those pleasures.

Thus much for pleasure and pain, happiness and unhappiness, in general. We come now to consider the several particular kinds of pain and pleasure.

CHAPTER V.: PLEASURES AND PAINS, THEIR KINDS.

I.

Having represented what belongs to all sorts of pleasures and pains alike, we come now to exhibit, each by itself, the several sorts of pains and pleasures. Pains and pleasures may be called by one general word, interesting perceptions. Interesting perceptions are either simple or complex. The simple ones are those which cannot any one of them be resolved into more: complex are those which are resolvable into divers simple ones. A complex interesting perception may accordingly be composed either, 1. Of pleasures alone: 2. Of pains alone: or, 3. Of a pleasure or pleasures, and a pain or pains together. What determines a lot of pleasure, for example, to be regarded as one complex pleasure, rather than as divers simple ones, is the nature of the exciting cause. Whatever pleasures are excited all at once by the action of the same cause, are apt to be looked upon as constituting all together but one pleasure.

II.

The several simple pleasures of which human nature is susceptible, seem to be as follows: 1. The pleasures of sense. 2. The pleasures of wealth. 3. The pleasures of skill. 4. The pleasures of amity. 5. The pleasures of a good name. 6. The pleasures of power. 7. The pleasures of piety. 8. The pleasures of benevolence. 9. The pleasures of malevolence. 10. The pleasures of memory. 11. The pleasures of imagination. 12. The pleasures of expectation. 13. The pleasures dependent on association. 14. The pleasures of relief.

III.

The several simple pains seem to be as follows: 1. The pains of privation. 2. The pains of the senses. 3. The pains of awkwardness. 4. The pains of enmity. 5. The pains of an ill name. 6. The pains of piety. 7. The pains of benevolence. 8. The pains of malevolence. 9. The pains of the memory. 10. The pains of the imagination. 11. The pains of expectation. 12. The pains dependent on association.*

IV.

1. The pleasures of sense seem to be as follows: 1. The pleasures of the taste or palate; including whatever pleasures are experienced in satisfying the appetites of hunger and thirst. 2. The pleasure of intoxication. 3. The pleasures of the organ of smelling. 4. The pleasures of the touch. 5. The simple pleasures of the ear; independent of association. 6. The simple pleasures of the eye; independent of association. 7. The pleasure of the sexual sense. 8. The pleasure of health: or, the internal pleasurable feeling or flow of spirits (as it is Edition: current; Page: [18] called) which accompanies a state of full health and vigour; especially at times of moderate bodily exertion. 9. The pleasures of novelty: or, the pleasures derived from the gratification of the appetite of curiosity, by the application of new objects to any of the senses.*

V.

2. By the pleasures of wealth may be meant those pleasures which a man is apt to derive from the consciousness of possessing any article or articles which stand in the list of instruments of enjoyment or security, and more particularly at the time of his first acquiring them; at which time the pleasure may be styled a pleasure of gain or a pleasure of acquisition: at other times a pleasure of possession.

3. The pleasures of skill, as exercised upon particular objects, are those which accompany the application of such particular instruments of enjoyment to their uses, as cannot be so applied without a greater or less share of difficulty or exertion.

VI.

4. The pleasures of amity, or self-recommendation, are the pleasures that may accompany the persuasion of a man’s being in the acquisition or the possession of the good-will of such or such assignable person or persons in particular: or, as the phrase is, of being upon good terms with him or them and as a fruit of it, of his being in a way to have the benefit of their spontaneous and gratuitous services.

VII.

5. The pleasures of a good name are the pleasures that accompany the persuasion of a man’s being in the acquisition or the possession of the good-will of the world about him; that is, of such members of society as he is likely to have concerns with; and as a means of it, either their love or their esteem, or both: and as a fruit of it, of his being in the way to have the benefit of their spontaneous and gratuitous services. These may likewise be called the pleasures of good repute, the pleasures of honour, or the pleasures of the moral sanction.

VIII.

6. The pleasures of power are the pleasures that accompany the persuasion of a man’s being in a condition to dispose people, by means of their hopes and fears, to give him the benefit of their services: that is, by the hope of some service, or by the fear of some disservice, that he may be in the way to render them.

IX.

7. The pleasures of piety are the pleasures that accompany the belief of a man’s being in the acquisition or in possession of the good-will or favour of the Supreme Being: and as a fruit of it, of his being in a way of enjoying pleasures to be received by God’s special appointment, either in this life, or in a life to come. These may also be called the pleasures of religion, the pleasures of a religious disposition, or the pleasures of the religious sanction.

X.

8. The pleasures of benevolence are the pleasures resulting from the view of any pleasures supposed to be possessed by the beings who may be the objects of benevolence; to wit, the sensitive beings we are acquainted with; under which are commonly included, 1. The Supreme Being. 2. Human beings. 3. Other animals. These may also be called the pleasures of good-will, the pleasures of sympathy, or the pleasures of the benevolent or social affections.

XI.

9. The pleasures of malevolence are the pleasures resulting from the view of any pain supposed to be suffered by the beings who may become the objects of malevolence; to wit, 1. Human beings. 2. Other animals. These may also be styled the pleasures of ill-will, the pleasures of the irascible appetite, the pleasures of antipahy, or the pleasures of the malevolent or dissocial affections.

XII.

10. The pleasures of the memory are the pleasures which, after having enjoyed such and such pleasures, or even in some cases after having suffered such and such pains, a man will now and then experience, at recollecting them exactly in the order and in the circumstances in which they were actually enjoyed or suffered. These derivative pleasures may of course be distinguished into as many species as there are of original perceptions, from whence they may be copied. They may also be styled pleasures of simple recollection.

XIII.

11. The pleasures of the imagination are the pleasures which may be derived from the contemplation of any such pleasures as may happen to be suggested by the memory, but in a different order, and accompanied by different groups of circumstances. These may accordingly be referred to any one of the three cardinal points of time, present, past, or future. It is evident they may admit of as many distinctions as those of the former class.

Edition: current; Page: [19]

XIV.

12. The pleasures of expectation are the pleasures that result from the contemplation of any sort of pleasure, referred to time future, and accompanied with the sentiment of belief. These also may admit of the same distinctions.*

XV.

13. The pleasures of association are the pleasures which certain objects or incidents may happen to afford, not of themselves, but merely in virtue of some association they have contracted in the mind with certain objects or incidents which are in themselves pleasurable. Such is the case, for instance, with the pleasure of skill, when afforded by such a set of incidents as compose a game of chess. This derives its pleasurable quality from its association partly with the pleasures of skill, as exercised in the production of incidents pleasurable of themselves: partly from its association with the pleasures of power. Such is the case also with the pleasure of good luck, when afforded by such incidents as compose the game of hazard, or any other game of chance, when played at for nothing. This derives its pleasurable quality from its association with one of the pleasures of wealth; to wit, with the pleasure of acquiring it.

XVI.

14. Farther on we shall see pains grounded upon pleasures; in like manner may we now see pleasures grounded upon pains. To the catalogue of pleasures may accordingly be added the pleasures of relief: or, the pleasures which a man experiences when, after he has been enduring a pain of any kind for a certain time, it comes to cease, or to abate. These may of course be distinguished into as many species as there are of pains: and may give rise to so many pleasures of memory, of imagination, and of expectation.

XVII.

1. Pains of privation are the pains that may result from the thought of not possessing in the time present any of the several kinds of pleasures. Pains of privation may accordingly be resolved into as many kinds as there are of pleasures to which they may correspond, and from the absence whereof they may be derived.

XVIII.

There are three sorts of pains which are only so many modifications of the several pains of privation. When the enjoyment of any particular pleasure happens to be particularly desired, but without any expectation approaching to assurance, the pain of privation which thereupon results takes a particular name, and is called the pain of desire, or of unsatisfied desire.

XIX.

Where the enjoyment happens to have been looked for with a degree of expectation approaching to assurance, and that expectation is made suddenly to cease, it is called a pain of disappointment.

XX.

A pain of privation takes the name of a pain of regret in two cases. 1. Where it is grounded on the memory of a pleasure, which having been once enjoyed, appears not likely to be enjoyed again: 2. Where it is grounded on the idea of a pleasure, which was never actually enjoyed, nor perhaps so much as expected, but which might have been enjoyed (it is supposed) had such or such a contingency happened, which, in fact, did not happen.

XXI.

2. The several pains of the senses seem to be as follows: 1. The pains of hunger and thirst: or, the disagreeable sensations produced by the want of suitable substances which need at times to be applied to the alimentary canal. 2. The pains of the taste: or, the disagreeable sensations produced by the application of various substances to the palate, and other superior parts of the same canal. 3. The pains of the organ of smell: or, the disagreeable sensations produced by the effluvia of various substances when applied to that organ. 4. The pains of the touch: or, the disagreeable sensations produced by the application of various substances to the skin. 5. The simple pains of the hearing: or, the disagreeable sensations excited in the organ of that sense by various kinds of sounds; independently (as before) of association. 6. The simple pains of the sight: or, the disagreeable sensations, if any such there be, that may be excited in the organ of that sense by visible images, independent of the principle of association. 7. The pains resulting from excessive heat or cold, unless these be referable to the touch. 8. The pains of disease: or, the acute and uneasy sensations resulting from the several diseases and indispositions to which human nature is liable. 9. The pain of exertion, whether bodily or mental: or, the uneasy sensation which is apt to accompany any intense effort, whether of mind or body.

XXII.

3. The pains of awkwardness are the pains Edition: current; Page: [20] which sometimes result from the unsuccessful endeavour to apply any particular instruments of enjoyment or security to their uses, or from the difficulty a man experiences in applying them.*

XXIII.

4. The pains of enmity are the pains that may accompany the persuasion of a man’s being obnoxious to the ill-will of such or such an assignable person or persons in particular: or, as the phrase is, of being upon ill terms with him or them: and, in consequence, of being obnoxious to certain pains of some sort or other, of which he may be the cause.

XXIV.

5. The pains of an ill-name are the pains that accompany the persuasion of a man’s being obnoxious, or in a way to be obnoxious to the ill-will of the world about him. These may likewise be called the pains of ill-repute, the pains of dishonour, or the pains of the moral sanction.

XXV.

6. The pains of piety are the pains that accompany the belief of a man’s being obnoxious to the displeasure of the Supreme Being: and, in consequence, to certain pains to be inflicted by his especial appointment, either in this life or in a life to come. These may also be called the pains of religion; the pains of a religious disposition; or the pains of the religious sanction. When the belief is looked upon as well-grounded, these pains are commonly called religious terrors; when looked upon as ill-grounded, superstitious terrors.

XXVI.

7. The pains of benevolence are the pains resulting from the view of any pains supposed to be endured by other beings. These may also be called the pains of good-will, of sympathy, or the pains of the benevolent or social affections.

XXVII.

8. The pains of malevolence are the pains resulting from the view of any pleasures supposed to be enjoyed by any beings who happen to be the objects of a man’s displeasure. These may also be styled the pains of ill-will, of antipathy, or the pains of the malevolent or dissocial affections.

XXVIII.

9. The pains of the memory may be grounded on every one of the above kinds, as well of pains of privation as of positive pains. These correspond exactly to the pleasures of the memory.

XXIX.

10. The pains of the imagination may also be grounded on any one of the above kinds, as well of pains of privation as of positive pains: in other respects they correspond exactly to the pleasures of the imagination.

XXX.

11. The pains of expectation may be grounded on each one of the above kinds, as well of pains of privation as of positive pains. These may be also termed pains of apprehension.§

XXXI.

12. The pains of association correspond exactly to the pleasures of association.

XXXII.

Of the above list, there are certain pleasures and pains which suppose the existence of some pleasure or pain of some other person, to which the pleasure or pain of the person in question has regard: such pleasures and pains may be termed extra-regarding. Edition: current; Page: [21] Others do not suppose any such thing: these may be termed self-regarding.* The only pleasures and pains of the extra-regarding class are those of benevolence, and those of malevolence: all the rest are self-regarding.

XXXIII.

Of all these several sorts of pleasures and pains, there is scarce any one which is not liable, on more accounts than one, to come under the consideration of the law. Is an offence committed? It is the tendency which it has to destroy, in such or such persons, some of these pleasures, or to produce some of these pains, that constitutes the mischief of it, and the ground for punishing it. It is the prospect of some of these pleasures, or of security from some of these pains, that constitutes the motive or temptation: it is the attainment of them that constitutes the profit of the offence. Is the offender to be punished? It can be only by the production of one or more of these pains, that the punishment can be inflicted.

CHAPTER VI.: OF CIRCUMSTANCES INFLUENCING SENSIBILITY.

I.

Pain and pleasure are produced in men’s minds by the action of certain causes. But the quantity of pleasure and pain runs not uniformly in proportion to the cause; in other words, to the quantity of force exerted by such cause. The truth of this observation rests not upon any metaphysical nicety in the import given to the terms cause, quantity, and force: it will be equally true in whatsoever manner such force be measured.

II.

The disposition which any one has to feel such or such a quantity of pleasure or pain, upon the application of a cause of given force, is what we term the degree or quantum of his sensibility. This may be either general, referring to the sum of the causes that act upon him during a given period: or particular, referring to the action of any one particular cause, or sort of cause.

III.

But in the same mind such and such causes of pain or pleasure will produce more pain or pleasure than such or such other causes of pain or pleasure: and this proportion will in different minds be different. The disposition which any one has to have the proportion in which he is affected by two such causes, different from that in which another man is affected by the same two causes, may be termed the quality or bias of his sensibility. One man, for instance, may be most affected by the pleasures of the taste; another by those of the ear. So also, if there be a difference in the nature or proportion of two pains or pleasures which they respectively experience from the same cause; a case not so frequent as the former. From the same injury, for instance, one man may feel the same quantity of grief and resentment together as another man: but one of them shall feel a greater share of grief than of resentment: the other, a greater share of resentment than of grief.

Edition: current; Page: [22]

IV.

Any incident which serves as a cause, either of pleasure or of pain, may be termed an exciting cause: if of pleasure, a pleasurable cause: if of pain, a painful, afflictive, or dolorific cause.*

V.

Now the quantity of pleasure, or of pain, which a man is liable to experience upon the application of an exciting cause, since they will not depend altogether upon that cause, will depend in some measure upon some other circumstance or circumstances: these circumstances, whatsoever they be, may be termed circumstances influencing sensibility.

VI.

These circumstances will apply differently to different exciting causes; insomuch that to a certain exciting cause, a certain circumstance shall not apply at all, which shall apply with great force to another exciting cause. But without entering for the present into these distinctions, it may be of use to sum up all the circumstances which can be found to influence the effect of any exciting cause. These, as on a former occasion, it may be as well first to sum up together in the concisest manner possible, and afterwards to allot a few words to the separate explanation of each article. They seem to be as follows: 1. Health. 2. Strength. 3. Hardiness. 4. Bodily imperfection. 5. Quantity and quality of knowledge. 6. Strength of intellectual powers. 7. Firmness of mind. 8. Steadiness of mind. 9. Bent of inclination. 10. Moral sensibility. 11. Moral biases. 12. Religious sensibility. 13. Religious biases. 14. Sympathetic sensibility. 15. Sympathetic biases. 16. Antipathetic sensibility. 17. Antipathetic biases. 18. Insanity. 19. Habitual occupations. 20. Pecuniary circumstances. 21. Connexions in the way of sympathy. 22. Connexions in the way of antipathy. 23. Radical frame of body. 24. Radical frame of mind. 25. Sex. 26. Age. 27. Rank. 28. Education. 29. Climate. 30. Lineage. 31. Government. 32. Religious profession.

VII.

1. Health is the absence of disease, and consequently of all those kinds of pain which are among the symptoms of disease. A man may be said to be in a state of health, when he is not conscious of any uneasy sensations, the primary seat of which can be perceived to be any where in his body. In point of general sensibility, a man who is under the pressure of any bodily indisposition, or, as the Edition: current; Page: [23] phrase is, is in an ill state of health, is less sensible to the influence of any pleasurable cause, and more so to that of any afflictive one, than if he were well.

VIII.

2. The circumstance of strength, though in point of causality closely connected with that of health, is perfectly distinguishable from it. The same man will indeed generally be stronger in a good state of health than in a bad one. But one man, even in a bad state of health, may be stronger than another even in a good one. Weakness is a common concomitant of disease: but in consequence of his radical frame of body, a man may be weak all his life long, without experiencing any disease. Health, as we have observed, is principally a negative circumstance: strength a positive one. The degree of a man’s strength can be measured with tolerable accuracy.*

IX.

3. Hardiness is a circumstance which, though closely connected with that of strength, is distinguishable from it. Hardiness is the absence of irritability. Irritability respects either pain, resulting from the action of mechanical causes; or disease, resulting from the action of causes purely physiological. Irritability, in the former sense, is the disposition to undergo a greater or less degree of pain upon the application of a mechanical cause; such as are most of those applications by which simple afflictive punishments are inflicted, as whipping, beating, and the like. In the latter sense, it is the disposition to contract disease with greater or less facility, upon the application of any instrument acting on the body by its physiological properties; as in the case of fevers, or of colds, or other inflammatory diseases, produced by the application of damp air: or to experience immediate uneasiness, as in the case of relaxation or chilliness produced by an over or under proportion of the matter of heat.

Hardiness, even in the sense in which it is opposed to the action of mechanical causes, is distinguishable from strength. The external indications of strength are the abundance and firmness of the muscular fibres: those of hardiness, in this sense, are the firmness of the muscular fibres, and the callosity of the skin. Strength is more peculiarly the gift of nature: hardiness, of education. Of two persons who have had, the one the education of a gentleman, the other that of a common sailor, the first may be the stronger, at the same time that the other is the hardier.

X.

4. By bodily imperfection may be understood that condition which a person is in, who either stands distinguished by any remarkable deformity, or wants any of those parts or faculties, which the ordinary run of persons of the same sex and age are furnished with: who, for instance, has a hare-lip, is deaf, or has lost a hand. This circumstance, like that of ill health, tends in general to diminish more or less the effect of any pleasurable circumstance, and to increase that of any afflictive one. The effect of this circumstance, however, admits of great variety: inasmuch as there are a great variety of ways in which a man may suffer in his personal appearance, and in his bodily organs and faculties: all which difference will be taken notice of in their proper places.

XI.

5. So much for circumstances belonging to the condition of the body: we come now to those which concern the condition of the mind: the use of mentioning these will be seen hereafter. In the first place may be reckoned the quantity and quality of the knowledge the person in question happens to possess: that is, of the ideas which he has actually in store, ready upon occasion to call to mind: meaning such ideas as are in some way or other of an interesting nature: that is, of a nature in some way or other to influence his happiness, or that of other men. When these ideas are many, and of importance, a man is said to be a man of knowledge; when few, or not of importance, ignorant.

XII.

6. By strength of intellectual powers may be understood the degree of facility which a man experiences in his endeavours to call to mind as well such ideas as have been already aggregated to his stock of knowledge, as any others, which, upon any occasion that may happen, he may conceive a desire to place there. It seems to be on some such occasion Edition: current; Page: [24] as this that the words parts and talents are commonly employed. To this head may be referred the several qualities of readiness of apprehension, accuracy and tenacity of memory, strength of attention, clearness of discernment, amplitude of comprehension, vividity and rapidity of imagination. Strength of intellectual powers, in general, seems to correspond pretty exactly to general strength of body: as any of these qualities in particular does to particular strength.

XIII.

7. Firmness of mind on the one hand, and irritability on the other, regard the proportion between the degrees of efficacy with which a man is acted upon by an exciting cause, of which the value lies chiefly in magnitude, and one of which the value lies chiefly in propinquity.* A man may be said to be of a firm mind, when small pleasures or pains, which are present or near, do not affect him, in a greater proportion to their value, than greater pleasures or pains, which are uncertain or remote; of an irritable mind, when the contrary is the case.

XIV.

8. Steadiness regards the time during which a given exciting cause of a given value continues to affect a man in nearly the same manner and degree as at first, no assignable external event or change of circumstances intervening to make an alteration in its force.

XV.

9. By the bent of a man’s inclinations may be understood the propensity he has to expect pleasure or pain from certain objects, rather than from others. A man’s inclinations may be said to have such or such a bent, when, amongst the several sorts of objects which afford pleasure in some degree to all men, he is apt to expect more pleasure from one particular sort, than from another particular sort, or more from any given particular sort, than another man would expect from that sort; or when, amongst the several sorts of objects, which to one man afford pleasure, whilst to another they afford none, he is apt to expect, or not to expect, pleasure from an object of such or such a sort: so also with regard to pains. This circumstance, though intimately connected with that of the bias of a man’s sensibility, is not undistinguishable from it. The quantity of pleasure or pain, which on any given occasion a man may experience from an application of any sort, may be greatly influenced by the expectations he has been used to entertain of pleasure or pain from that quarter; but it will not be absolutely determined by them: for pleasure or pain may come upon him from a quarter from which he was not accustomed to expect it.

XVI.

10. The circumstances of moral, religious, sympathetic and antipathetic sensibility, when closely considered, will appear to be included in some sort under that of bent of inclination. On account of their particular importance they may, however, be worth mentioning apart. A man’s moral sensibility may be said to be strong, when the pains and pleasures of the moral sanction* show greater in his eyes, in comparison with other pleasures and pains (and consequently exert a stronger influence), than in the eyes of the persons he is compared with; in other words, when he is acted on with more than ordinary efficacy by the sense of honour: it may be said to be weak, when the contrary is the case.

XVII.

11. Moral sensibility seems to regard the average effect or influence of the pains and pleasures of the moral sanction, upon all sorts of occasions to which it is applicable, or happens to be applied. It regards the average force or quantity of the impulses the mind receives from that source during a given period. Moral bias regards the particular acts on which, upon so many particular occasions, the force of that sanction is looked upon as attaching. It regards the quality or direction of those impulses. It admits of as many varieties, therefore, as there are dictates which the moral sanction may be conceived to issue forth. A man may be said to have such or such a moral bias, or to have a moral bias in favour of such or such an action, when he looks upon it as being of the number of those of which the performance is dictated by the moral sanction.

XVIII.

12. What has been said with regard to moral sensibility, may be applied, mutatis mutandis, to religious.

XIX.

13. What has been said with regard to moral biases, may also be applied, mutatis mutandis, to religious biases.

XX.

14. By sympathetic sensibility is to be Edition: current; Page: [25] understood the propensity that a man has to derive pleasure from the happiness, and pain from the unhappiness, of other sensitive beings. It is the stronger, the greater the ratio of the pleasure or pain he feels on their account is to that of the pleasure or pain which (according to what appears to him) they feel for themselves.

XXI.

15. Sympathetic bias regards the description of the parties who are the objects of a man’s sympathy: and of the acts or other circumstances of or belonging to those persons, by which the sympathy is excited. These parties may be, 1. Certain individuals. 2. Any subordinate class of individuals. 3. The whole nation. 4. Human kind in general. 5. The whole sensitive creation. According as these objects of sympathy are more numerous, the affection, by which the man is biased, may be said to be the more enlarged.

XXII.

16, 17. Antipathetic sensibility and anti-pathetic biases are just the reverse of sympathetic sensibility and sympathetic biases. By antipathetic sensibility is to be understood the propensity that a man has to derive pain from the happiness, and pleasure from the unhappiness, of other sensitive beings.

XXIII.

18. The circumstance of insanity of mind corresponds to that of bodily imperfection. It admits, however, of much less variety, inasmuch as the soul is (for aught we can perceive) one indivisible thing, not distinguishable, like the body, into parts. What lesser degrees of imperfection the mind may be susceptible of, seem to be comprisable under the already-mentioned heads of ignorance, weakness of mind, irritability, or unsteadiness; or under such others as are reducible to them. Those which are here in view are those extraordinary species and degrees of mental imperfection, which, wherever they take place, are as conspicuous and as unquestionable as lameness or blindness in the body: operating partly, it should seem, by inducing an extraordinary degree of the imperfections above mentioned, partly by giving an extraordinary and preposterous bent to the inclinations.

XXIV.

19. Under the head of a man’s habitual occupations, are to be understood, on this occasion, as well those which he pursues for the sake of profit, as those which he pursues for the sake of present pleasure. The consideration of the profit itself belongs to the head of a man’s pecuniary circumstances. It is evident, that if by any means a punishment, or any other exciting cause, has the effect of putting it out of his power to continue in the pursuit of any such occupation, it must on that account be so much the more distressing. A man’s habitual occupations, though intimately connected in point of causality with the bent of his inclinations, are not to be looked upon as precisely the same circumstance. An amusement, or channel of profit, may be the object of a man’s inclinations, which has never been the subject of his habitual occupations: for it may be, that though he wished to betake himself to it, he never did, it not being in his power: a circumstance which may make a good deal of difference in the effect of any incident by which he happens to be debarred from it.

XXV.

20. Under the head of pecuniary circumstances, I mean to bring to view the proportion which a man’s means bear to his wants: the sum total of his means of every kind, to the sum total of his wants of every kind. A man’s means depend upon three circumstances: 1. His property. 2. The profit of his labour. 3. His connexions in the way of support. His wants seem to depend upon four circumstances: 1. His habits of expense. 2. His connexions in the way of burthen. 3. Any present casual demand he may have. 4. The strength of his expectation. By a man’s property is to be understood, whatever he has in store independent of his labour. By the profit of his labour is to be understood the growing profit. As to labour, it may be either of the body principally, or of the mind principally, or of both indifferently: nor does it matter in what manner, nor on what subject, it be applied, so it produce a profit. By a man’s connexions in the way of support, are to be understood the pecuniary assistances, of whatever kind, which he is in a way of receiving from any persons who, on whatever account, and in whatever proportion, he has reason to expect should contribute gratis to his maintenance: such as his parents, patrons, and relations. It seems manifest, that a man can have no other means than these. What he uses, he must have either of his own, or from other people: if from other people, either gratis or for a price. As to habits of expense, it is well known, that a man’s desires are governed in a great degree by his habits. Many are the cases in which desire (and consequently the pain of privation connected with it*) would not even subsist at all, but for previous enjoyment. By a man’s connexions in the way of burthen, are to be understood whatever expense he has reason to look upon himself as bound to be at in the support of those who by law, or the customs of the world, are warranted in looking up to him for assistance; such as children, poor relations, superannuated servants, and any other dependents whatsoever. As to present casual demand, it is manifest, that there are Edition: current; Page: [26] occasions on which a given sum will be worth infinitely more to a man than the same sum would, at another time: where, for example, in a case of extremity, a man stands in need of extraordinary medical assistance: or wants money to carry on a law-suit, on which his all depends: or has got a livelihood waiting for him in a distant country, and wants money for the charges of conveyance. In such cases, any piece of good or ill fortune, in the pecuniary way, might have a very different effect from what it would have at any other time. With regard to strength of expectation; when one man expects to gain or to keep a thing which another does not, it is plain the circumstance of not having it will affect the former very differently from the latter; who, indeed, commonly will not be affected by it at all.

XXVI.

21. Under the head of a man’s connexions in the way of sympathy, I would bring to view the number and description of the persons in whose welfare he takes such a concern, as that the idea of their happiness should be productive of pleasure, and that of their unhappiness of pain to him: for instance, a man’s wife, his children, his parents, his near relations, and intimate friends. This class of persons, it is obvious, will for the most part include the two classes by which his pecuniary circumstances are affected: those, to wit, from whose means he may expect support, and those whose wants operate on him as a burthen. But it is obvious, that besides these, it may very well include others, with whom he has no such pecuniary connexion: and even with regard to these, it is evident that the pecuniary dependence, and the union of affections, are circumstances perfectly distinguishable. Accordingly, the connexions here in question, independently of any influence they may have on a man’s pecuniary circumstances, have an influence on the effect of any exciting causes whatsoever. The tendency of them is to increase a man’s general sensibility; to increase, on the one hand, the pleasure produced by all pleasurable causes; on the other, the pain produced by all afflictive ones. When any pleasurable incident happens to a man, he naturally, in the first moment, thinks of the pleasure it will afford immediately to himself: presently afterwards, however (except in a few cases, which it is not worth while here to insist on), he begins to think of the pleasure which his friends will feel upon their coming to know of it: and this secondary pleasure is commonly no mean addition to the primary one. First comes the self-regarding pleasure: then comes the idea of the pleasure of sympathy, which you suppose that pleasure of your’s will give birth to in the bosom of your friend: and this idea excites again in your’s a new pleasure of sympathy, grounded upon his. The first pleasure issuing from your own bosom, as it were from a radiant point, illuminates the bosom of your friend: reverberated from thence, it is reflected with augmented warmth to the point from whence it first proceeded: and so it is with pains.*

Nor does this effect depend wholly upon affection. Among near relations, although there should be no kindness, the pleasures and pains of the moral sanction are quickly propagated by a peculiar kind of sympathy: no article, either of honour or disgrace, can well fall upon a man, without extending to a certain distance within the circle of his family. What reflects honour upon the father, reflects honour upon the son: what reflects disgrace, disgrace. The cause of this singular and seemingly unreasonable circumstance (that is, its analogy to the rest of the phenomena of the human mind), belongs not to the present purpose. It is sufficient if the effect be beyond dispute.

XXVII.

22. Of a man’s connexions in the way of antipathy, there needs not any thing very particular to be observed. Happily there is no primæval and constant source of antipathy in human nature, as there is of sympathy. There are no permanent sets of persons who are naturally and of course the objects of antipathy to a man, as there are who are the objects of the contrary affection. Sources, however, but too many, of antipathy, are apt to spring up upon various occasions during the course of a man’s life: and whenever they do, this circumstance may have a very considerable influence on the effects of various exciting causes. As on the one hand a punishment, for instance, which tends to separate a man from those with whom he is connected in the way of sympathy, so on the other hand, one which tends to force him into the company of those with whom he is connected in the way of antipathy, will, on that account, be so much the more distressing. It is to be observed, that sympathy itself multiplies the sources of antipathy. Sympathy for your friend gives birth to antipathy on your part against all those who are objects of antipathy, as well as to sympathy for those who are objects of sympathy to him. In the same manner does antipathy multiply the sources of sympathy; though commonly perhaps with rather a less Edition: current; Page: [27] degree of efficacy. Antipathy against your enemy is apt to give birth to sympathy on your part towards those who are objects of antipathy, as well as to antipathy against those who are objects of sympathy, to him.

XXVIII.

23. Thus much for the circumstances by which the effect of any exciting cause may be influenced, when applied upon any given occasion, at any given period. But besides these supervening incidents, there are other circumstances relative to a man, that may have their influence, and which are co-eval to his birth. In the first place, it seems to be universally agreed, that in the original frame or texture of every man’s body, there is a something which, independently of all subsequently intervening circumstances, renders him liable to be affected by causes producing bodily pleasure or pain, in a manner different from that in which another man would be affected by the same causes. To the catalogue of circumstances influencing a man’s sensibility, we may therefore add his original or radical frame, texture, constitution, or temperament of body.

XXIX.

24. In the next place, it seems to be pretty well agreed, that there is something also in the original frame or texture of every man’s mind, which, independently of all exterior and subsequently intervening circumstances, and even of his radical frame of body, makes him liable to be differently affected by the same exciting causes, from what another man would be. To the catalogue of circumstances influencing a man’s sensibility, we may therefore further add his original or radical frame, texture, constitution, or temperament of mind.*

XXX.

It seems pretty certain, all this while, that a man’s sensibility to causes producing pleasure or pain, even of mind, may depend in a considerable degree upon his original and acquired frame of body. But we have no reason to think that it can depend altogether upon that frame: since, on the one hand, we see persons whose frame of body is as much alike as can be conceived, differing very considerably in respect of their mental frame: and, on the other hand, persons whose frame of mind is as much alike as can be conceived, differing very conspicuously in regard to their bodily frame.

XXXI.

It seems indisputable also, that the different sets of external occurrences that may befal a man in the course of his life, will make great differences in the subsequent texture of his mind at any given period: yet still those differences are not solely to be attributed to such occurrences. Equally far from the truth seems that opinion to be (if any such be maintained) which attributes all to nature, and that which attributes all to education. The two circumstances will therefore still remain distinct, as well from one another, as from all others.

XXXII.

Distinct however as they are, it is manifest, that at no period in the active part of a man’s life can they either of them make their appearance by themselves. All they do is to constitute the latent ground-work which the other supervening circumstances have to work upon: and whatever influence those original principles may have, is so changed and modified, and covered over, as it were, by those other circumstances, as never to be separately discernible. The effects of the one influence are indistinguishably blended with those of the other.

XXXIII.

The emotions of the body are received, and with reason, as probable indications of the temperature of the mind. But they are far enough from conclusive. A man may exhibit, for instance, the exterior appearances of grief, without really grieving at all, or at least in any thing near the proportion in which he appears to grieve. Oliver Cromwell, whose conduct indicated a heart more than ordinarily callous, was as remarkably profuse in tears. Many men can command the external appearances of sensibility with very little real feeling. The female sex Edition: current; Page: [28] commonly with greater facility than the male: hence the proverbial expression of a woman’s tears. To have this kind of command over one’s self, was the characteristic excellence of the orator of ancient times, and is still that of the player in our own.

XXXIV.

The remaining circumstances may, with reference to those already mentioned, be termed secondary influencing circumstances. These have an influence, it is true, on the quantum or bias of a man’s sensibility, but it is only by means of the other primary ones. The manner in which these two sets of circumstances are concerned, is such that the primary ones do the business, while the secondary ones lie most open to observation. The secondary ones, therefore, are those which are most heard of; on which account it will be necessary to take notice of them: at the same time that it is only by means of the primary ones that their influence can be explained; whereas the influence of the primary ones will be apparent enough, without any mention of the secondary ones.

XXXV.

25. Among such of the primitive modifications of the corporeal frame as may appear to influence the quantum and bias of sensibility, the most obvious and conspicuous are those which constitute the sex. In point of quantity, the sensibility of the female sex appears in general to be greater than that of the male. The health of the female is more delicate than that of the male: in point of strength and hardiness of body, in point of quantity and quality of knowledge, in point of strength of intellectual powers, and firmness of mind, she is commonly inferior: moral, religious, sympathetic, and antipathetic sensibility are commonly stronger in her than in the male. The quality of her knowledge, and the bent of her inclinations, are commonly in many respects different. Her moral biases are also, in certain respects, remarkably different: chastity, modesty, and delicacy, for instance, are prized more than courage in a woman: courage, more than any of those qualities, in a man. The religious biases in the two sexes are not apt to be remarkably different: except that the female is rather more inclined than the male to superstition: that is, to observances not dictated by the principle of utility; a difference that may be pretty well accounted for by some of the before-mentioned circumstances. Her sympathetic biases are in many respects different for her own offspring all their lives long, and for children in general while young, her affection is commonly stronger than that of the male. Her affections are apt to be less enlarged: seldom expanding themselves so much as to take in the welfare of her country in general, much less that of mankind, or the whole sensitive creation: seldom embracing any extensive class or division, even of her own countrymen, unless it be in virtue of her sympathy for some particular individuals that belong to it. In general, her antipathetic, as well as sympathetic biases, are apt to be less conformable to the principle of utility than those of the male; owing chiefly to some deficiency in point of knowledge, discernment, and comprehension. Her habitual occupations of the amusing kind are apt to be in many respects different from those of the male. With regard to her connexions in the way of sympathy, there can be no difference. In point of pecuniary circumstances, according to the customs of perhaps all countries, she is in general less independent.

XXXVI.

26. Age is of course divided into divers periods, of which the number and limits are by no means uniformly ascertained. One might distinguish it, for the present purpose, into, 1. Infancy. 2. Adolescence. 3. Youth. 4. Maturity. 5. Decline. 6. Decrepitude. It were lost time to stop on the present occasion to examine it at each period, and to observe the indications it gives, with respect to the several primary circumstances just reviewed. Infancy and decrepitude are commonly inferior to the other periods, in point of health, strength, hardiness, and so forth. In infancy on the part of the female, the imperfections of that sex are enhanced: on the part of the male, imperfections take place mostly similar in quality, but greater in quantity, to those attending the states of Edition: current; Page: [29] adolescence, youth, and maturity in the female. In the stage of decrepitude both sexes relapse into many of the imperfections of infancy. The generality of these observations may easily be corrected upon a particular review.

XXXVII.

27. Station, or rank in life, is a circumstance, that, among a civilized people, will commonly undergo a multiplicity of variations. Cæteris paribus, the quantum of sensibility appears to be greater in the higher ranks of men than in the lower. The primary circumstances in respect of which this secondary circumstance is apt to induce or indicate a difference, seem principally to be as follows: 1. Quantity and quality of knowledge. 2. Strength of mind. 3. Bent of inclination. 4. Moral sensibility. 5. Moral biases. 6. Religious sensibility. 7. Religious biases. 8. Sympathetic sensibility. 9. Sympathetic biases. 10. Antipathetic sensibility. 11. Antipathetic biases. 12. Habitual occupations. 13. Nature and productiveness of a man’s means of livelihood. 14. Connexions importing profit. 15. Habit of expense. 16. Connexions importing burthen. A man of a certain rank will frequently have a number of dependents besides those whose dependency is the result of natural relationship. As to health, strength, and hardiness, if rank has any influence on these circumstances, it is but in a remote way, chiefly by the influence it may have on his habitual occupations.

XXXVIII.

28. The influence of education is still more extensive. Education stands upon a footing somewhat different from that of the circumstances of age, sex, and rank. These words, though the influence of the circumstances they respectively denote exerts itself principally, if not entirely, through the medium of certain of the primary circumstances before mentioned, present, however, each of them a circumstance which has a separate existence of itself. This is not the case with the word education: which means nothing any farther than as it serves to call up to view some one or more of those primary circumstances. Education may be distinguished into physical and mental; the education of the body and that of the mind: mental, again, into intellectual and moral; the culture of the understanding, and the culture of the affections. The education a man receives, is given to him partly by others, partly by himself. By education, then, nothing more can be expressed than the condition a man is in in respect of those primary circumstances, as resulting partly from the management and contrivance of others, principally of those who, in the early periods of his life, have had dominion over him, partly from his own. To the physical part of his education, belong the circumstances of health, strength, and hardiness: sometimes, by accident, that of bodily imperfection; as where by intemperance or negligence an irreparable mischief happens to his person. To the intellectual parts, those of quantity and quality of knowledge, and in some measure perhaps those of firmness of mind and steadiness. To the moral part, the bent of his inclinations, the quantity and quality of his moral, religious, sympathetic, and antipathetic sensibility: to all three branches indiscriminately, but under the superior control of external occurrences, his habitual recreations, his property, his means of livelihood, his connexions in the way of profit and of burthen, and his habits of expense. With respect, indeed, to all these points, the influence of education is modified, in a manner more or less apparent, by that of exterior occurrences; and in a manner scarcely at all apparent, and altogether out of the reach of calculation, by the original texture and constitution as well of his body as of his mind.

XXXIX.

29. Among the external circumstances by which the influence of education is modified, the principal are those which come under the head of climate.* This circumstance places Edition: current; Page: [30] itself in front, and demands a separate denomination, not merely on account of the magnitude of its influence, but also on account of its being conspicuous to every body, and of its applying indiscriminately to great numbers at a time. This circumstance depends for its essence upon the situation of that part of the earth which is in question, with respect to the course taken by the whole planet in its revolution round the sun: but for its influence it depends upon the condition of the bodies which compose the earth’s surface at that part, principally upon the quantities of sensible heat at different periods, and upon the density, and purity, and dryness or moisture of the circumambient air. Of the so often mentioned primary circumstances, there are few of which the production is not influenced by this secondary one; partly by its manifest effects upon the body; partly by its less perceptible effects upon the mind. In hot climates, men’s health is apt to be more precarious than in cold: their strength and hardiness less: their vigour, firmness, and steadiness of mind less: and thence indirectly their quantity of knowledge: the bent of their inclinations different: most remarkably so in respect of their superior propensity to sexual enjoyments, and in respect of the earliness of the period at which that propensity begins to manifest itself: their sensibilities of all kinds more intense: their habitual occupations savouring more of sloth than of activity: their radical frame of body less strong, probably, and less hardy: their radical frame of mind less vigorous, less firm, less steady.

XL.

30. Another article in the catalogue of secondary circumstances, is that of race or lineage: the national race or lineage a man issues from. This circumstance, independently of that of climate, will commonly make some difference in point of radical frame of mind and body. A man of negro race, born in France or England, is a very different being, in many respects, from a man of French or English race. A man of Spanish race, born in Mexico or Peru, is at the hour of his birth a different sort of being, in many respects, from a man of the original Mexican or Peruvian race. This circumstance, as far as it is distinct from climate, rank, and education, and from the two just mentioned, operates chiefly through the medium of moral, religious, sympathetic, and antipathetic biases.

XLI.

31. The last circumstance but one, is that of government: the government a man lives under at the time in question; or rather that under which he has been accustomed most to live. This circumstance operates principally through the medium of education: the magistrate operating in the character of a tutor upon all the members of the state, by the direction he gives to their hopes and to their fears. Indeed, under a solicitous and attentive government, the ordinary preceptor, nay even the parent himself, is but a deputy, as it were, to the magistrate: whose controlling influence, different in this respect from that of the ordinary preceptor, dwells with a man to his life’s end. The effects of the peculiar power of the magistrate are seen more particularly in the influence it exerts over the quantum and bias of men’s moral, religious, sympathetic, and antipapathetic sensibilities. Under a well-constituted, or even under a well-administered though ill-constituted government, men’s moral sensibility is commonly stronger, and their moral biases more conformable to the dictates of utility: their religious sensibility frequently weaker, but their religious biases less unconformable to the dictates of utility: their sympathetic affections more enlarged, directed to the magistrate more than to small parties or to individuals, and more to the whole community than to either: their antipathetic sensibilities less violent, as being more obsequious to the influence of well-directed moral biases, and less apt to be excited by that of ill-directed religious ones: their antipathetic biases more conformable to well-directed moral ones, more apt (in proportion) to be grounded on enlarged and sympathetic than on narrow and self-regarding affections, and accordingly, upon the whole, more conformable to the dictates of utility.

XLII.

32. The last circumstance is that of religious profession: the religious profession a man is of: the religious fraternity of which he is a member. This circumstance operates principally through the medium of religious sensibility and religious biases. It operates, however, as an indication more or less conclusive, with respect to several other circumstances. With respect to some, scarcely but through the medium of the two just mentioned: this is the case with regard to the quantum and bias of a man’s moral, sympathetic, and antipathetic sensibility: perhaps Edition: current; Page: [31] in some cases with regard to quantity and quality of knowledge, strength of intellectual powers, and bent of inclination. With respect to others, it may operate immediately of itself: this seems to be the case with regard to a man’s habitual occupations, pecuniary circumstances, and connexions in the way of sympathy and antipathy. A man who pays very little inward regard to the dictates of the religion which he finds it necessary to profess, may find it difficult to avoid joining in the ceremonies of it, and bearing a part in the pecuniary burthens it imposes.* By the force of habit and example he may even be led to entertain a partiality for persons of the same profession, and a proportionable antipathy against those of a rival one. In particular, the antipathy against persons of different persuasions is one of the last points of religion which men part with. Lastly, it is obvious, that the religious profession a man is of cannot but have a considerable influence on his education. But, considering the import of the term education, to say this is perhaps no more than saying in other words what has been said already.

XLIII.

These circumstances, all or many of them, will need to be attended to as often as upon any occasion any account is taken of any quantity of pain or pleasure, as resulting from any cause. Has any person sustained an injury? they will need to be considered in estimating the mischief of the offence. Is satisfaction to be made to him? they will need to be attended to in adjusting the quantum of that satisfaction. Is the injurer to be punished? they will need to be attended to in estimating the force of the impression that will be made on him by any given punishment.

XLIV.

It is to be observed, that though they seem all of them, on some account or other, to merit a place in the catalogue, they are not all of equal use in practice. Different articles among them are applicable to different exciting causes. Of those that may influence the effect of the same exciting cause, some apply indiscriminately to whole classes of persons together; being applicable to all, without any remarkable difference in degree: these may be directly and pretty fully provided for by the legislator. This is the case, for instance, with the primary circumstances of bodily imperfection, and insanity: with the secondary circumstance of sex: perhaps with that of age: at any rate, with those of rank, of climate, of lineage, and of religious profession. Others, however they may apply to whole classes of persons, yet in their application to different individuals are susceptible of perhaps an indefinite variety of degrees. These cannot be fully provided for by the legislator; but, as the existence of them, in every sort of case, is capable of being ascertained, and the degree in which they take place is capable of being measured, provision may be made for them by the judge, or other executive magistrate, to whom the several individuals that happen to be concerned may be made known. This is the case, 1. With the circumstance of health. 2. In some sort with that of strength. 3. Scarcely with that of hardiness: still less with those of quantity and quality of knowledge, strength of intellectual powers, firmness or steadiness of mind; except in as far as a man’s condition, in respect of those circumstances, may be indicated by the secondary circumstances of sex, age, or rank: hardly with that of bent of inclination, except in as far as that latent circumstance is indicated by the more manifest one of habitual occupations: hardly with that of a man’s moral sensibility or biases, except in as far as they may be indicated by his sex, age, rank, and education: not at all with his religious sensibility and religious biases, except in as far as they may be indicated by the religious profession he belongs to: not at all with the quantity or quality of his sympathetic or antipathetic sensibilities, except in as far as they may be presumed from his sex, age, rank, education, lineage, or religious profession. It is the case, however, with his habitual occupations, with his pecuniary circumstances, and with his connexions in the way of sympathy. Of others, again, either the existence cannot be ascertained, or the degree cannot be measured. These, therefore, cannot be taken into account, either by the legislator or the executive magistrate. Accordingly, they would have no claim to be taken notice of, were it not for those secondary circumstances by which they are indicated, and whose influence could not well be understood without them. What these are, has been already mentioned.

XLV.

It has already been observed, that different articles in this list of circumstances apply to different exciting causes: the circumstance of bodily strength, for instance, has scarcely any influence of itself (whatever it may have in a roundabout way, and by accident) on the Edition: current; Page: [32] effect of an incident which should increase or diminish the quantum of a man’s property. It remains to be considered, what the exciting causes are with which the legislator has to do. These may, by some accident or other, be any whatsoever: but those with which he has principally to do, are those of the painful or afflictive kind. With pleasurable ones he has little to do, except now and then by accident: the reasons of which may be easily enough perceived, at the same time that it would take up too much room to unfold them here. The exciting causes with which he has principally to do, are, on the one hand, the mischievous acts, which it is his business to prevent; on the other hand, the punishments, by the terror of which it is his endeavour to prevent them. Now of these two sets of exciting causes, the latter only is of his production: being produced partly by his own special appointment, partly in conformity to his general appointment, by the special appointment of the judge. For the legislator, therefore, as well as for the judge, it is necessary (if they would know what it is they are doing when they are appointing punishment) to have an eye to all these circumstances. For the legislator, lest, meaning to apply a certain quantity of punishment to all persons who shall put themselves in a given predicament, he should unawares apply to some of those persons much more or much less than he himself intended: for the judge, lest, in applying to a particular person a particular measure of punishment, he should apply much more or much less than was intended, perhaps by himself, and at any rate by the legislator. They ought each of them, therefore, to have before him, on the one hand, a list of the several circumstances by which sensibility may be influenced; on the other hand, a list of the several species and degrees of punishment which they purpose to make use of: and then, by making a comparison between the two, to form a detailed estimate of the influence of each of the circumstances in question, upon the effect of each species and degree of punishment.

There are two plans or orders of distribution, either of which might be pursued in the drawing up this estimate. The one is to make the name of the circumstance take the lead, and under it to represent the different influences it exerts over the effects of the several modes of punishment: the other is to make the name of the punishment take the lead, and under it to represent the different influences which are exerted over the effects of it by the several circumstances above mentioned. Now of these two sorts of objects, the punishment is that to which the intention of the legislator is directed in the first instance. This is of his own creation, and will be whatsoever he thinks fit to make it: the influencing circumstance exists independently of him, and is what it is whether he will or no. What he has occasion to do is to establish a certain species and degree of punishment: and it is only with reference to that punishment that he has occasion to make any inquiry concerning any of the circumstances here in question. The latter of the two plans therefore is that which appears by far the most useful and commodious. But neither upon the one or the other plan can any such estimate be delivered here.*

XLVI.

Of the several circumstances contained in this catalogue, it may be of use to give some sort of analytic view; in order that it may be the more easily discovered if any which ought to have been inserted are omitted; and that, with regard to those which are inserted, it may be seen how they differ and agree.

In the first place, they may be distinguished into primary and secondary: those may be termed primary, which operate immediately of themselves: those secondary, which operate not but by the medium of the former. To this latter head belong the circumstances of sex, age, station in life, education, climate, lineage, government, and religious profession: the rest are primary. These again are either connate or adventitious: those which are connate, are radical frame of body and radical frame of mind. Those which are adventitious, are either personal, or exterior. The personal, again, concern either a man’s dispositions, or his actions. Those which concern his dispositions, concern either his body or his mind. Those which concern his body are health, strength, hardiness, and bodily imperfection. Those which concern his mind, again, concern either his understanding or his affections. To the former head belong the circumstances of quantity and quality of knowledge, strength of understanding, and insanity. To the latter belong the circumstances of firmness of mind, steadiness, bent Edition: current; Page: [33] of inclination, moral sensibility, moral biases, religious sensibility, religious biases, sympathetic sensibility, sympathetic biases, antipathetic sensibility, and antipathetic biases. Those which regard his actions, are his habitual occupations. Those which are exterior to him, regard either the things or the persons which he is concerned with: under the former head come his pecuniary circumstances;* under the latter, his connexions in the way of sympathy and antipathy.

USES OF THE PRECEDING OBSERVATIONS.

As it is not possible to calculate the movement of a vessel, without knowing the circumstances which influence its speed; such as the force of the winds, the resistance of the water, the shape of the vessel, the weight of its burden, &c.; in the same manner, one cannot work with certainty in matters of legislation, without considering all the circumstances which influence sensibility.

I shall limit myself here, to what concerns the penal code: it requires in all its parts a scrupulous attention to this diversity.

1. In estimating the evil of an offence. In effect, the same nominal offence is not the same real offence, when the sensibility of the individual injured is not the same. A certain action, for example, would be a serious insult to a woman, whilst it is indifferent to a man. A certain corporal injury, if done to a sick person, would endanger his life, but would be of no consequence to a person in good health. An imputation which would ruin the fortune or the honour of a certain individual, would do no injury to another individual.

2. In giving a suitable satisfaction to an injured person. The same nominal satisfaction is not the same real satisfaction, when the sensibility materially differs. A pecuniary satisfaction for an affront may be agreeable or offensive, according to the rank, the fortune, or the prejudices of a person. Am I insulted? A pardon publicly asked would be a sufficient satisfaction on the part of my superior or my equal, but not on that of my inferior.

3. In estimating the force and impression of punishment upon delinquents. The same nominal punishment is not the same real punishment, when the sensibility is essentially different. Banishment would be a very unequable punishment in the case of a young and an old man; of a bachelor and the father of a family; for a workman who has not the means of subsistence out of his own country, and a rich man who need only change the scene of his pleasures. Imprisonment would be an unequable punishment for a man and a woman; for a sick person and a person in health; for a rich man, whose family would not suffer by his absence; and for a man who lives by his labour, and who would leave his family in poverty.

4. In transplanting a law from one country to another. The same law verbally would not be the same law really, when the sensibility of the two people is essentially different. A certain law in Europe produces the happiness of families; transported into Asia, it would become the scourge of society: women in Europe are accustomed to enjoy their liberty, and even to govern the house: women in Asia are prepared, by their education, for the seclusion of the seraglio, and even for slavery. Marriage in Europe and the East is not a contract of the same kind; if it were sought to subject it to the same rules, it would evidently cause unhappiness to all the parties interested.

The same punishments for the same offences, is often said. This adage has an appearance of justice and impartiality, which seduces superficial minds. To give it a reasonable meaning, it would be necessary to determine beforehand what is meant by the same punishments and the same offences. An inflexible law—a law which should regard neither sex, nor age, nor fortune, nor rank, nor education, nor the moral nor religious prejudices of individuals—would be doubly vicious, as inefficacious, or as tyrannical. Too severe for some, too lenient for others; always sinning by excess or defect; under an appearance of equality, it would hide the most monstrous inequality.

When a man of large fortune, and a man of moderate fortune, are condemned to the same fine, is the punishment the same? do they suffer the same evil? The manifest inequality of such treatment, is it not rendered more hateful by the derisory equality? Is not the design of the law missed, since the one may lose the means of his existence, Edition: current; Page: [34] whilst the other escapes with triumph? When a strong young man and a feeble old man are both condemned to be loaded with fetters for the same number of years, a sophist skilful in darkening the most evident truths, might contend for the equality of the punishment; but the unsophisticated populace, faithful to nature and just feeling, would murmur internally at beholding such injustice; and their indignation changing its object, would pass from the criminal to the judge, and from the judge to the legislature.

I am aware that specious objections may be urged. It may be asked, “How is it possible to take an account of all the circumstances which influence sensibility? How can internal and hidden dispositions be appreciated; such as strength of mind, degree of knowledge, inclinations, sympathies? How can the different qualities of all beings be measured? A father of a family may consult these internal dispositions, these diversities of character, in the treatment of his children; but a public instructor, charged with a limited number of pupils, could not. The legislator, who has in view a whole people, is by much stronger reason obliged to confine himself to general laws, and must fear lest he should render them complicated by descending to particular cases. If he leave to the judge the right of varying the application of the laws according to this infinite diversity of circumstances and characters, there will be no limits to the arbitrariness of his judgments: under pretence of seizing the true spirit of the legislator, the judges will make the laws the instruments of their whims and fancies. Sed aliter leges aliter philosophi tollunt astutias: leges quatenus manu tenere possunt philosophi, quatenus ratione et intelligentia—(De. Off. 3. 17.)”

It is not necessary to answer, but to explain: all such observations exhibit a difficulty, rather than an objection. The principle is not denied: it is only its application which is deemed impossible.

1. It is allowed that the greater part of these differences of sensibility are inappreciable: that it is impossible to prove their existence in individual cases, or to measure their force or degree; but fortunately these interior and hidden dispositions, if it may be so said, have external and manifest indications. These are the circumstances which have been called secondary: sex, age, rank, race, climate, government, education, religious profession; circumstances evident and palpable, which represent the interior dispositions. Here then the legislator is relieved from a part of his difficulty. He does not stop at metaphysical and moral qualities: he lays hold only of ostensible circumstances. He directs, for example, the modification of a certain punishment; not on account of the greater sensibility of the individual, or on account of his steadiness, strength of mind, or knowledge, but on account of his sex or age.

It is true, that presumption drawn from these circumstances are liable to be defective. It may happen that a youth of fifteen years old is more enlightened than a man of thirty: it may happen that a certain woman has more courage and less modesty than a certain man; but these presumptions will have in general all the justice necessary to prevent the laws being tyrannical; and, above all, to conciliate to the legislator the suffrages of public opinion.

2. These secondary circumstances are not only easily seized: they are few in number; they form general classes. Grounds of justification, of extenuation or of aggravation, with regard to the different offences, may be drawn from them. Thus complexity disappears, and simplicity is easily restored throughout.

3. There is nothing arbitrary. It is not the judge, it is the law itself, which modifies a certain punishment, according to the sex, the age, the religious profession, &c. As to other circumstances, which must absolutely be left to the examination of the judge, as the greater or less derangement in the mind, the greater or less in point of strength, the greater or less in point of fortune; the legislator who can pronounce nothing as to individual cases, directs the tribunals by general rules, and leaves them a certain latitude, that they may proportion their judgment to the particular nature of the circumstance.

What is recommended here is not an Utopian idea. There never was a legislator so barbarous or so stupid as to neglect all the circumstances influencing sensibility. They have had a regard to them more or less confused, which has guided them in the establishment of civil and political rights: they have shown more or less regard to circumstances in the institution of punishments: hence arises the admitted differences with regard to women, children, freemen, slaves, soldiers, ecclesiastics, &c.

Draco appears alone to have rejected all these considerations, at least in penal matters. All offences appeared to him equal, because they were all violations of the law. He condemned all offenders to death, without distinction. He confounded, he overturned all the principles of human sensibility. His horrid work did not long endure; and it is doubtful if his laws were ever literally obeyed.

Without falling into this extreme, how many faults have not been committed of the same kind! There would be no end of citing examples. There have been sovereigns who have chosen to lose whole provinces, and to Edition: current; Page: [35] shed floods of human blood, rather than to respect a particular sensibility of a people, or tolerate a custom indifferent in itself, or respect an ancient prejudice, a certain dress, a certain form of prayers.

A prince of our own times, active, enlightened, animated by the desire of glory and the happiness of his subjects, undertook to reform every thing in his states; and caused them all to revolt against him.* At the approach of death, recollecting all the vexations of his life, he desired that there should be engraven upon his tomb, that he had been unhappy in all his enterprises. He ought also to have had engraved there, for the instruction of posterity, that he had always been ignorant of the art of managing the desires, the inclinations, and the sensibilities of men.

When legislators shall study the human heart; when they shall show their attention to the different degrees and different kinds of sensibility, by limitations and modifications; these condescensions on the part of power will charm like paternal endearments. Conduct of this kind is the foundation of the approbation, which is sometimes bestowed upon the laws, under the vague terms of humanity, equity, suitableness, moderation, and wisdom.

In this respect, there is a striking analogy between the art of the legislator and that of the physician. The catalogue of circumstances influencing sensibility is necessary in both their sciences. What distinguishes the physician from the empiric is the attention which the first pays to every thing which constitutes the particular state of the individual. But it is especially in diseases which affect the mind; in those which concern morality; when hurtful habits are to be surmounted, and new ones formed, that it is necessary to study every thing which affects the dispositions of the invalid; since a single error in this respect may change all the results, and increase the evil, instead of remedying it.

CHAPTER VII.: OF HUMAN ACTIONS IN GENERAL.

I.

The business of government is to promote the happiness of the society, by punishing and rewarding. That part of its business which consists in punishing, is more particularly the subject of penal law. In proportion as an act tends to disturb that happiness, in proportion as the tendency of it is pernicious, will be the demand it creates for punishment. What happiness consists of, we have already seen: enjoyment of pleasures, security from pains.

II.

The general tendency of an act is more or less pernicious, according to the sum total of its consequences, that is, according to the difference between the sum of such as are good, and the sum of such as are evil.

III.

It is to be observed, that here, as well as henceforward, wherever consequences are spoken of, such only are meant as are material. Of the consequences of any act, the multitude and variety must needs be infinite: but such of them only as are material are worth regarding. Now among the consequences of an act, be they what they may, such only, by one who views them in the capacity of a legislator, can be said to be material, as either consist of pain or pleasure, or have an influence in the production of pain or pleasure.

IV.

It is also to be observed, that into the account of the consequences of the act, are to be taken not such only as might have ensued, were intention out of the question, but such also as depend upon the connexion there may be between these first-mentioned consequences and the intention. The connexion there is between the intention and certain consequences is, as we shall see hereafter, a means of producing other consequences. In this lies the difference between rational agency and irrational.

V.

Now the intention, with regard to the consequences of an act, will depend upon two things: 1. The state of the will or intention, with respect to the act itself. And, 2. The state of the understanding, or perceptive faculties, with regard to the circumstances which it is, or may appear to be, accompanied with. Now with respect to these circumstances, the perceptive faculty is susceptible of three states: consciousness, unconsciousness, and false consciousness. Consciousness, when the party believes precisely those circumstances, and no others, to subsist, which really do subsist: unconsciousness, Edition: current; Page: [36] when he fails of perceiving certain circumstances to subsist, which, however, do subsist: false consciousness, when he believes or imagines certain circumstances to subsist, which in truth do not subsist.

VI.

In every transaction, therefore, which is examined with a view to punishment, there are four articles to be considered: 1. The act itself, which is done. 2. The circumstances in which it is done. 3. The intentionality that may have accompanied it. 4. The consciousness, unconsciousness, or false consciousness, that may have accompanied it.

What regards the act and the circumstances will be the subject of the present chapter: what regards intention and consciousness, that of the two succeeding.

VII.

There are also two other articles on which the general tendency of an act depends: and on that, as well as on other accounts, the demand which it creates for punishment. These are, 1. The particular motive or motives which gave birth to it. 2. The general disposition which it indicates. These articles will be the subject of two other chapters.

VIII.

Acts may be distinguished in several ways, for several purposes.

They may be distinguished, in the first place, into positive and negative. By positive are meant such as consist in motion or exertion: by negative, such as consist in keeping at rest; that is, in forbearing to move or exert one’s self in such and such circumstances. Thus, to strike is a positive act: not to strike on a certain occasion, a negative one. Positive acts are styled also acts of commission; negative, acts of omission or forbearance.*

IX.

Such acts, again, as are negative, may either be absolutely so, or relatively: absolutely, when they import the negation of all positive agency whatsoever; for instance, not to strike at all: relatively, when they import the negation of such or such a particular mode of agency; for instance, not to strike such a person or such a thing, or in such a direction.

X.

It is to be observed, that the nature of the act, whether positive or negative, is not to be determined immediately by the form of the discourse made use of to express it. An act which is positive in its nature may be characterized by a negative expression: thus, not to be at rest, is as much as to say to move. So also an act, which is negative in its nature, may be characterized by a positive expression: thus, to forbear or omit to bring food to a person in certain circumstances, is signified by the single and positive term to starve.

XI.

In the second place, acts may be distinguished into external and internal. By external, are meant corporal acts; acts of the body: by internal, mental acts; acts of the mind. Thus, to strike is an external or exterior act: to intend to strike, an internal or interior one.

XII.

Acts of discourse are a sort of mixture of the two: external acts, which are no ways material, nor attended with any consequences, any farther than as they serve to express the existence of internal ones. To speak to another to strike, to write to him to strike, to make signs to him to strike, are all so many acts of discourse.

XIII.

Third, Acts that are external may be distinguished into transitive and intransitive. Acts may be called transitive, when the motion is communicated from the person of the agent to some foreign body: that is, to such a foreign body on which the effects of it are considered as being material; as where a man runs against you, or throws water in your face. Acts may be called intransitive, when the motion is communicated to no other body, on which the effects of it are regarded as material, than some part of the same person in whom it originated; as where a man runs, or washes himself.

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XIV.

An act of the transitive kind may be said to be in its commencement, or in the first stage of its progress, while the motion is confined to the person of the agent, and has not yet been communicated to any foreign body, on which the effects of it can be material. It may be said to be in its termination, or to be in the last stage of its progress, as soon as the motion or impulse has been communicated to some such foreign body. It may be said to be in the middle or intermediate stage or stages of its progress, while the motion, having passed from the person of the agent, has not yet been communicated to any such foreign body. Thus, as soon as a man has lifted up his hand to strike, the act he performs in striking you is in its commencement: as soon as his hand has reached you, it is in its termination. If the act be the motion of a body which is separated from the person of the agent before it reaches the object, it may be said, during that interval, to be in its intermediate progress,* or in gradu mediativo: as in the case where a man throws a stone or fires a bullet at you.

XV.

An act of the intransitive kind may be said to be in its commencement, when the motion or impulse is as yet confined to the member or organ in which it originated; and has not yet been communicated to any member or organ that is distinguishable from the former. It may be said to be in its termination, as soon as it has been applied to any other part of the same person. Thus, where a man poisons himself: while he is lifting up the poison to his mouth, the act is in its commencement; as soon as it has reached his lips, it is in its termination.

XVI.

In the third place, acts may be distinguished into transient and continued. Thus, to strike is a transient act, to lean, a continued one. To buy, a transient act: to keep in one’s possession, a continued one.

XVII.

In strictness of speech there is a difference between a continued act and a repetition of acts. It is a repetition of acts, when there are intervals filled up by acts of different natures: a continued act, when there are no such intervals. Thus, to lean, is one continued act: to keep striking, a repetition of acts.

XVIII.

There is a difference, again, between a repetition of acts, and a habit or practice. The term repetition of acts may be employed, let the acts in question be separated by ever such short intervals, and let the sum total of them occupy ever so short a space of time. The term habit is not employed but when the acts in question are supposed to be separated by long-continued intervals, and the sum total of them to occupy a considerable space of time. It is not (for instance) the drinking ever so many times, nor ever so much at a time, in the course of the same sitting, that will constitute a habit of drunkenness: it is necessary that such sittings themselves be frequently repeated. Every habit is a repetition of acts; or, to speak more strictly, when a man has frequently repeated such and such acts after considerable intervals, he is said to have persevered in or contracted a habit: but every repetition of acts is not a habit.

XIX.

Fourth, acts may be distinguished into indivisible and divisible. Indivisible acts are merely imaginary, they may be easily conceived, but can never be known to be exemplified. Such as are divisible may be so, with regard either to matter or to motion. An act indivisible with regard to matter, is the motion or rest of one single atom of matter. An act indivisible, with regard to motion, is the motion of any body, from one single atom of space to the next to it.

Fifth, acts may be distinguished into simple and complex: simple, such as the act of striking, the act of leaning, or the act of drinking, above instanced: complex, consisting each of a multitude of simple acts, which, though numerous and heterogeneous, derive a sort of unity from the relation they bear to some common design or end; such as the act of giving a dinner, the act of maintaining a child, the act of exhibiting a triumph, the act of bearing arms, the act of holding a court, and so forth.

XX.

It has been every now and then made a Edition: current; Page: [38] question, what it is in such a case that constitutes one act: where one act has ended, and another act has begun: whether what has happened has been one act or many.* These questions, it is now evident, may frequently be answered, with equal propriety, in opposite ways: and if there be any occasions on which they can be answered only in one way, the answer will depend upon the nature of the occasion, and the purpose for which the question is proposed. A man is wounded in two fingers at one stroke—Is it one wound or several? A man is beaten at 12 o’clock, and again at 8 minutes after 12—Is it one beating or several? You beat one man, and instantly in the same breath you beat another—Is this one beating or several? In any of these cases it may be one, perhaps, as to some purposes, and several as to others. These examples are given, that men may be aware of the ambiguity of language: and neither harass themselves with unsolvable doubts, nor one another with interminable disputes.

XXI.

So much with regard to acts considered in themselves: we come now to speak of the circumstances with which they may have been accompanied. These must necessarily be taken into the account before any thing can be determined relative to the consequences. What the consequences of an act may be upon the whole can never otherwise be ascertained: it can never be known whether it is beneficial, or indifferent, or mischievous. In some circumstances, even to kill a man may be a beneficial act: in others, to set food before him may be a pernicious one.

XXII.

Now the circumstances of an act, are, what? Any objects whatsoever. Take any act whatsoever, there is nothing in the nature of things that excludes any imaginable object from being a circumstance to it. Any given object may be a circumstance to any other.

XXIII.

We have already had occasion to make mention for a moment of the consequences of an act: these were distinguished into material and immaterial. In like manner may the circumstances of it be distinguished. Now materiality is a relative term: applied to the consequences of an act, it bore relation to pain and pleasure: applied to the circumstances, it bears relation to the consequences. A circumstance may be said to be material, when it bears a visible relation in point of causality to the consequences: immaterial, when it bears no such visible relation.

XXIV.

The consequences of an act are events. A circumstance may be related to an event in point of causality in any one of four ways: 1. In the way of causation or production. 2. In the way of derivation. 3. In the way of collateral connexion. 4. In the way of conjunct influence. It may be said to be related to the event in the way of causation, when it is of the number of those that contribute to the production of such event: in the way of derivation, when it is of the number of the events to the production of which that in question has been contributory: in the way of collateral connexion, where the circumstance in question, and the event in question, without being either of them instrumental in the production of the other, are related, each of them, to some common object, which has been concerned in the production of them both: in the way of conjunct influence, when, whether related in any other way or not, they have both of them concurred in the production of some common consequence.

XXV.

An example may be of use. In the year 1628, Villiers, Duke of Buckingham, favourite and minister of Charles I, of England, received a wound and died. The man who gave it him was one Felton, who, exasperated at the mal-administration of which that minister was accused, went down from London to Portsmouth, where Buckingham happened then to be, made his way into his anti-chamber, and finding him busily engaged in conversation with a number of people round him, got close to him, drew a knife, and stabbed him. In the effort, the assassin’s hat fell off, which was found soon after, and, upon searching him, the bloody knife. In the crown of the hat were found scraps of paper, with sentences expressive of the purpose he was come upon. Here then, suppose the event in question is the wound received by Buckingham: Felton’s drawing out his knife, his making his way into the chamber, Edition: current; Page: [39] his going down to Portsmouth, his conceiving an indignation at the idea of Buckingham’s administration, that administration itself, Charles’s appointing such a minister, and so on, higher and higher without end, are so many circumstances, related to the event of Buckingham’s receiving the wound, in the way of causation or production: the bloodiness of the knife, a circumstance related to the same event in the way of derivation: the finding of the hat upon the ground, the finding the sentences in the hat, and the writing them, so many circumstances related to it in the way of collateral connexion: and the situation and conversations of the people about Buckingham, were circumstances related to the circumstances of Felton’s making his way into the room, going down to Portsmouth, and so forth, in the way of conjunct influence; inasmuch as they contributed in common to the event of Buckingham’s receiving the wound, by preventing him from putting himself upon his guard upon the first appearance of the intruder.*

XXVI.

These several relations do not all of them attach upon an event with equal certainty. In the first place, it is plain, indeed, that every event must have some circumstance or other, and in truth, an indefinite multitude of circumstances, related to it in the way of production: it must of course have a still greater multitude of circumstances related to it in the way of collateral connexion. But it does not appear necessary that every event should have circumstances related to it in the way of derivation: nor therefore that it should have any related to it in the way of conjunct influence. But of the circumstances of all kinds which actually do attach upon an event, it is only a very small number that can be discovered by the utmost exertion of the human faculties: it is a still smaller number that ever actually do attract our notice: when occasion happens, more or fewer of them will be discovered by a man in proportion to the strength, partly of his intellectual powers, partly of his inclination. It appears therefore that the multitude and description of such of the circumstances belonging to an act, as may appear to be material, will be determined by two considerations. 1. By the nature of things themselves. 2. By the strength or weakness of the faculties of those who happen to consider them.

XXVII.

Thus much it seemed necessary to premise in general, concerning acts and their circumstances, previously to the consideration of the particular sorts of acts with their particular circumstances, with which we shall have to do in the body of the work. An act of some sort or other is necessarily included in the notion of every offence. Together with this act, under the notion of the same offence, are included certain circumstances: which circumstances enter into the essence of the offence, contribute by their conjunct influence to the production of its consequences, and in conjunction with the act are brought into view by the name by which it stands distinguished. These we shall have occasion to distinguish hereafter by the name of criminative circumstances. Other circumstances again entering into combination with the act and the former set of circumstances, are productive of still farther consequences. These additional consequences if they are of the beneficial kind bestow, according to the value they bear in that capacity, upon the circumstances to which they Edition: current; Page: [40] owe their birth, the appellation of exculpative* or extenuative circumstances: if of the mischievous kind, they bestow on them the appellation of aggravative circumstances. Of all these different sets of circumstances, the criminative are connected with the consequences of the original offence, in the way of production; with the act, and with one another, in the way of conjunct influence: the consequences of the original offence with them, and with the act respectively, in the way of derivation: the consequences of the modified offence, with the criminative, exculpative, and extenuative circumstances respectively, in the way also of derivation: these different sets of circumstances, with the consequences of the modified act or offence, in the way of production: and with one another (in respect of the consequences of the modified act or offence) in the way of conjunct influence. Lastly, whatever circumstances can be seen to be connected with the consequences of the offence, whether directly in the way of derivation, or obliquely in the way of collateral affinity (to wit, in virtue of its being connected, in the way of derivation, with some of the circumstances with which they stand connected in the same manner) bear a material relation to the offence in the way of evidence, they may accordingly be styled evidentiary circumstances, and may become of use, by being held forth upon occasion as so many proofs, indications, or evidences of its having been committed.§

CHAPTER VIII.: OF INTENTIONALITY.

I.

So much with regard to the two first of the articles upon which the evil tendency of an action may depend: viz. the act itself, and the general assemblage of the circumstances with which it may have been accompanied. We come now to consider the ways in which the particular circumstance of intention may be concerned in it.

II.

First, then, the intention or will may regard either of two objects: 1. The act itself: or, 2. Its consequences. Of these objects, that which the intention regards may be styled intentional. If it regards the act, then the act may be said to be intentional. if the consequences, so also then may the consequences. If it regards both the act and the consequences, the whole action may be said to be intentional. Whichever of those articles is not the object of the intention, may of course be said to be unintentional.

III.

The act may very easily be intentional without the consequences; and often is so. Thus, you may intend to touch a man, without intending to hurt him: and yet, as the consequences turn out, you may chance to hurt him.

IV.

The consequences of an act may also be intentional, without the act’s being intentional throughout; that is, without its being intentional in every stage of it: but this is not so frequent a case as the former. You intend to hurt a man, suppose, by running against him, and pushing him down; and you run towards him accordingly: but a second man coming in on a sudden between you and the first man, before you can stop yourself, you run against the second man, and by him push down the first.

V.

But the consequences of an act cannot be intentional, without the act’s being itself intentional in at least the first stage. If the act be not intentional in the first stage, it is no act of your’s: there is accordingly no intention on your part to produce the consequences: that is to say, the individual consequences. All there can have been on your part is a distant intention to produce other consequences, of the same nature, by some act of your’s, at a future time: or else, without any intention, a bare wish to see such event take place. The second man, suppose, Edition: current; Page: [41] runs of his own accord against the first, and pushes him down. You had intentions of doing a thing of the same nature: viz. To run against him, and push him down yourself; but you had done nothing in pursuance of those intentions: the individual consequences therefore of the act, which the second man performed in pushing down the first, cannot be said to have been on your part intentional.*

VI.

Second. A consequence, when it is intentional, may either be directly so, or only obliquely. It may be said to be directly or lineally intentional, when the prospect of producing it constituted one of the links in the chain of causes by which the person was determined to do the act. It may be said to be obliquely or collaterally intentional, when, although the consequence was in contemplation, and appeared likely to ensue in case of the act’s being performed, yet the prospect of producing such consequence did not constitute a link in the aforesaid chain.

VII.

Third. An incident, which is directly intentional, may either be ultimately so, or only mediately. It may be said to be ultimately intentional, when it stands last of all exterior events in the aforesaid chain of motives; insomuch that the prospect of the production of such incident, could there be a certainty of its taking place, would be sufficient to determine the will, without the prospect of its producing any other. It may be said to be mediately intentional, and no more, when there is some other incident, the prospect of producing which forms a subsequent link in the same chain: insomuch that the prospect of producing the former would not have operated as a motive, but for the tendency which it seemed to have towards the production of the latter.

VIII.

Fourth. When an incident is directly intentional, it may either be exclusively so, or inexclusively. It may be said to be exclusively intentional, when no other but that very individual incident would have answered the purpose, insomuch that no other incident had any share in determining the will to the act in question. It may be said to have been inexclusively intentional, when there was some other incident, the prospect of which was acting upon the will at the same time.

IX.

Fifth. When an incident is inexclusively intentional, it may be either conjunctively so, disjunctively, or indiscriminately. It may be said to be conjunctively intentional with regard to such other incident, when the intention is to produce both: disjunctively, when the intention is to produce either the one or the other indifferently, but not both: indiscriminately, when the intention is indifferently to produce either the one or the other, or both, as it may happen.

X.

Sixth. When two incidents are disjunctively intentional, they may be so with or without preference. They may be said to be so with preference, when the intention is, that one of them in particular should happen rather than the other: without preference, when the intention is equally fulfilled, whichever of them happens.

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XI.

One example will make all this clear. William II. king of England, being out a staghunting, received from Sir Walter Tyrrel a wound, of which he died.* Let us take this case, and diversify it with a variety of suppositions, correspondent to the distinctions just laid down.

1. First, then, Tyrrel did not so much as entertain a thought of the king’s death; or, if he did, looked upon it as an event of which there was no danger. In either of these cases, the incident of his killing the king was altogether unintentional.

2. He saw a stag running that way, and he saw the king riding that way at the same time: what he aimed at was to kill the stag: he did not wish to kill the king: at the same time he saw, that if he shot, it was as likely he should kill the king as the stag: yet for all that, he shot, and killed the king accordingly. In this case, the incident of his killing the king was intentional, but obliquely so.

3. He killed the king on account of the hatred he bore him, and for no other reason than the pleasure of destroying him. In this case, the incident of the king’s death was not only directly but ultimately intentional.

4. He killed the king, intending fully so to do; not for any hatred he bore him, but for the sake of plundering him when dead. In this case, the incident of the king’s death was directly intentional, but not ultimately: it was mediately intentional.

5. He intended neither more nor less than to kill the king. He had no other aim nor wish. In this case, it was exclusively as well as directly intentional: exclusively, to wit, with regard to every other material incident.

6. Sir Walter shot the king in the right leg, as he was plucking a thorn out of it with his left hand. His intention was, by shooting the arrow into his leg through his hand, to cripple him in both those limbs at the same time. In this case, the incident of the king’s being shot in the leg was intentional: and that conjunctively with another which did not happen; viz. his being shot in the hand.

7. The intention of Tyrrel was to shoot the king either in the hand or in the leg, but not in both; and rather in the hand than in the leg. In this case, the intention of shooting in the hand was disjunctively concurrent, with regard to the other incident, and that with preference.

8. His intention was to shoot the king either in the leg or the hand, whichever might happen, but not in both. In this case, the intention was inexclusive, but disjunctively so: yet that, however, without preference.

9. His intention was to shoot the king either in the leg or the hand, or in both, as it might happen. In this case, the intention was indiscriminately concurrent, with respect to the two incidents.

XII.

It is to be observed, that an act may be unintentional in any stage or stages of it, though intentional in the preceding: and, on the other hand, it may be intentional in any stage or stages of it, and yet unintentional in the succeeding. But whether it be intentional or no in any preceding stage, is immaterial, with respect to the consequences, so it be unintentional in the last. The only point, with respect to which it is material, is the proof. The more stages the act is unintentional in, the more apparent it will commonly be, that it was unintentional with respect to the last. If a man, intending to strike you on the cheek, strikes you in the eye, and puts it out, it will probably be difficult for him to prove that it was not his intention to strike you in the eye. It will probably be easier, if his intention was really not to strike you, or even not to strike at all.

XIII.

It is frequent to hear men speak of a good intention, of a bad intention; of the goodness and badness of a man’s intention: a circumstance on which great stress is generally laid. It is indeed of no small importance, when properly understood: but the import of it is to the last degree ambiguous and obscure. Strictly speaking, nothing can be said to be good or bad, but either in itself; which is the case only with pain or pleasure: or on account of its effects; which is the case only with things that are the causes or preventives of pain and pleasure. But in a figurative and less proper way of speech, a thing may also be styled good or bad, in consideration of its cause. Now the effects of an intention to do such or such an act, are the same objects which we have been speaking of under the appellation of its consequences: and the causes of intention are called motives. A man’s intention, then, on any occasion may be styled good or bad, with reference either to the consequences of the act, or with reference to his motives. If it be deemed good or bad in any sense, it must be either because it is deemed to be productive of good or of bad consequences, or because it is deemed to originate from a good or from a bad motive. Edition: current; Page: [43] But the goodness or badness of the consequences depend upon the circumstances. Now the circumstances are no objects of the intention. A man intends the act; and by his intention produces the act: but as to the circumstances, he does not intend them: he does not, inasmuch as they are circumstances of it, produce them. If by accident there be a few which he has been instrumental in producing, it has been by former intentions, directed to former acts, productive of those circumstances as the consequences: at the time in question, he takes them as he finds them. Acts, with their consequences, are objects of the will as well as of the understanding: circumstances, as such, are objects of the understanding only. All he can do with these, as such, is to know or not to know them: in other words, to be conscious of them, or not conscious. To the title of Consciousness belongs what is to be said of the goodness or badness of a man’s intention, as resulting from the consequences of the act: and to the head of Motives, what is to be said of his intention, as resulting from the motive.

CHAPTER IX.: OF CONSCIOUSNESS.

I.

So far with regard to the ways in which the will or intention may be concerned in the production of any incident: we come now to consider the part which the understanding or perceptive faculty may have borne, with relation to such incident.

II.

A certain act has been done, and that intentionally: that act was attended with certain circumstances: upon these circumstances depended certain of its consequences; and amongst the rest, all those which were of a nature purely physical. Now then, take any one of these circumstances, it is plain, that a man, at the time of doing the act from whence such consequences ensued, may have been either conscious, with respect to this circumstance, or unconscious. In other words, he may either have been aware of the circumstance, or not aware: it may either have been present to his mind, or not present. In the first case, the act may be said to have been an advised act, with respect to that circumstance: in the other case, an unadvised one.

III.

There are two points, with regard to which an act may have been advised or unadvised: 1. The existence of the circumstance itself. 2. The materiality of it.*

IV.

It is manifest, that with reference to the time of the act, such circumstance may have been either present, past, or future.

V.

An act which is unadvised, is either heedless, or not heedless. It is termed heedless, when the case is thought to be such, that a person of ordinary prudence, if prompted by an ordinary share of benevolence, would have been likely to have bestowed such and so much attention and reflection upon the material circumstances, as would have effectually disposed him to prevent the mischievous incident from taking place: not heedless, when the case is not thought to be such as above mentioned.

VI.

Again. Whether a man did or did not suppose the existence or materiality of a given circumstance, it may be that he did suppose the existence and materiality of some circumstance, which either did not exist, or which, though existing, was not material. In such case the act may be said to be misadvised, with respect to such imagined circumstance: and it may be said, that there has been an erroneous supposition, or a mis-supposal in the case.

VII.

Now a circumstance, the existence of which is thus erroneously supposed, may be material either, 1. In the way of prevention: or, 2. In that of compensation. It may be said to be material in the way of prevention, when its effect or tendency, had it existed, would have been to prevent the obnoxious consequences: in the way of compensation, when that effect or tendency would have been to produce other consequences, the beneficialness of which would have out-weighed the mischievousness of the others.

VIII.

It is manifest, that, with reference to the time of the act, such imaginary circumstance may in either case have been supposed either to be present, past, or future.

IX.

To return to the example exhibited in the preceding chapter.

10. Tyrrel intended to shoot in the direction in which he shot: but he did not know that the king was riding so near that way. In this case, the act he performed in shooting, the act of shooting, was unadvised, with respect to the existence of the circumstance of the king’s being so near riding that way.

11. He knew that the king was riding that way: but at the distance at which the king was, he knew not of the probability there was that the arrow would reach him. In Edition: current; Page: [44] this case, the act was unadvised, with respect to the materiality of the circumstance.

12. Somebody had dipped the arrow in poison, without Tyrrel’s knowing of it. In this case, the act was unadvised, with respect to the existence of a past circumstance.

13. At the very instant that Tyrrel drew the bow, the king, being screened from his view by the foliage of some bushes, was riding furiously, in such manner as to meet the arrow in a direct line: which circumstance was also more than Tyrrel knew of. In this case, the act was unadvised, with respect to the existence of a present circumstance.

14. The king being at a distance from court, could get nobody to dress his wound till the next day; of which circumstance Tyrrel was not aware. In this case, the act was unadvised, with respect to what was then a future circumstance.

15. Tyrrel knew of the king’s being riding that way, of his being so near, and so forth; but being deceived by the foliage of the bushes, he thought he saw a bank between the spot from which he shot, and that to which the king was riding. In this case the act was misadvised, proceeding on the mis-supposal of a preventive circumstance.

16. Tyrrel knew that every thing was as above, nor was he deceived by the supposition of any preventive circumstance. But he believed the king to be an usurper: and supposed he was coming up to attack a person whom Tyrrel believed to be the rightful king, and who was riding by Tyrrel’s side. In this case, the act was also misadvised, but proceeded on the mis-supposal of a compensative circumstance.

X.

Let us observe the connexion there is between intentionality and consciousness. When the act itself is intentional, and with respect to the existence of all the circumstances advised, as also with respect to the materiality of those circumstances, in relation to a given consequence, and there is no mis-supposal with regard to any preventive circumstance, that consequence must also be intentional: in other words, advisedness, with respect to the circumstances, if clear from the mis-supposal of any preventive circumstance, extends the intentionality from the act to the consequences. Those consequences may be either directly intentional, or only obliquely so: but at any rate they cannot but be intentional.

XI.

To go on with the example. If Tyrrel intended to shoot in the direction in which the king was riding up, and knew that the king was coming to meet the arrow, and knew the probability there was of his being shot in that same part in which he was shot, or in another as dangerous, and with that same degree of force, and so forth, and was not misled by the erroneous supposition of a circumstance by which the shot would have been prevented from taking place, or any such other preventive circumstance, it is plain he could not but have intended the king’s death. Perhaps he did not positively wish it; but for all that, in a certain sense he intended it.

XII.

What heedlessness is in the case of an unadvised act, rashness is in the case of a misadvised one. A misadvised act, then, may be either rash or not rash. It may be termed rash, when the case is thought to be such, that a person of ordinary prudence, if prompted by an ordinary share of benevolence, would have employed such and so much attention and reflection to the imagined circumstance, as, by discovering to him the non-existence, improbability, or immateriality of it, would have effectually disposed him to prevent the mischievous incident from taking place.

XIII.

In ordinary discourse, when a man does an act of which the consequences prove mischievous, it is a common thing to speak of him as having acted with a good intention or with a bad intention; of his intention being a good one or a bad one. The epithets good and bad are all this while applied, we see, to the intention: but the application of them is most commonly governed by a supposition formed with regard to the nature of the motive. The act, though eventually it prove mischievous, is said to be done with a good intention, when it is supposed to issue from a motive which is looked upon as a good motive: with a bad intention, when it is supposed to be the result of a motive which is looked upon as a bad motive. But the nature of the consequences intended, and the nature of the motive which gave birth to the intention, are objects which, though intimately connected, are perfectly distinguishable. The intention might therefore with perfect propriety be styled a good one, whatever were the motive. It might be styled a good one, when not only the consequences of the act prove mischievous, but the motive which gave birth to it was what is called a bad one. To warrant the speaking of the intention as being a good one, it is sufficient if the consequences of the act, had they proved what to the agent they seemed likely to be, would have been of a beneficial nature. And in the same manner the intention may be bad, when not only the consequences of the act prove beneficial, but the motive which gave birth to it was a good one.

XIV.

Now, when a man has a mind to speak of your intention as being good or bad, with reference to the consequences, if he speaks of it at all he must use the word intention, for there is no other. But if a man means to Edition: current; Page: [45] speak of the motive from which your intention originated, as being a good or a bad one, he is certainly not obliged to use the word intention: it is at least as well to use the word motive. By the supposition he means the motive; and very likely he may not mean the intention. For what is true of the one is very often not true of the other. The motive may be good when the intention is bad: the intention may be good when the motive is bad: whether they are both good or both bad, or the one good and the other bad, makes, as we shall see hereafter, a very essential difference with regard to the consequences.* It is therefore much better, when motive is meant, never to say intention.

XV.

An example will make this clear. Out of malice a man prosecutes you for a crime of which he believes you to be guilty, but of which in fact you are not guilty. Here the consequences of his conduct are mischievous: for they are mischievous to you at any rate, in virtue of the shame and anxiety which you are made to suffer while the prosecution is depending: to which is to be added, in case of your being convicted, the evil of the punishment. To you therefore they are mischievous; nor is there any one to whom they are beneficial. The man’s motive was also what is called a bad one: for malice will be allowed by every body to be a bad motive. However, the consequences of his conduct, had they proved such as he believed them likely to be, would have been good: for in them would have been included the punishment of a criminal, which is a benefit to all who are exposed to suffer by a crime of the like nature. The intention, therefore, in this case, though not, in a common way of speaking, the motive, might be styled a good one. But of motives more particularly in the next chapter.

XVI.

In the same sense, the intention, whether it be positively good or no, so long as it is not bad, may be termed innocent. Accordingly, let the consequences have proved mischievous, and let the motive have been what it will, the intention may be termed innocent in either of two cases: 1. In the case of un-advisedness with respect to any of the circumstances on which the mischievousness of the consequences depended: 2. In the case of mis-advisedness with respect to any circumstance, which, had it been what it appeared to be, would have served either to prevent or to outweigh the mischief.

XVII.

A few words for the purpose of applying what has been said to the Roman law. Unintentionality, and innocence of intention, seem both to be included in the case of infortunium, where there is neither dolus nor culpa. Unadvisedness coupled with heedlessness, and mis-advisedness coupled with rashness, correspond to the culpa sine dolo. Direct intentionality corresponds to dolus. Oblique intentionality seems hardly to have been distinguished from direct: were it to occur, it would probably be deemed also to correspond to dolus. The division into culpa lata, levis, and levissima, is such as nothing certain can correspond to. What is it that it expresses? A distinction, not in the case itself, but only in the sentiments which any person (a judge, for instance) may find himself disposed to entertain with relation to it; supposing it already distinguished into three subordinate cases by other means.

The word dolus seems ill enough contrived: the word culpa as indifferently. Dolus, upon any other occasion, would be understood to imply deceit, concealment, clandestinity: but here it is extended to open force. Culpa, upon any other occasion, would be understood to extend to blame of every kind: it would therefore include dolus.

XVIII.

The above-mentioned definitions and distinctions Edition: current; Page: [46] are far from being mere matters of speculation. They are capable of the most extensive and constant application, as well to moral discourse as to legislative practice. Upon the degree and bias of a man’s intention, upon the absence or presence of consciousness or mis-supposal, depend a great part of the good and bad, more especially of the bad consequences of an act; and on this, as well as other grounds, a great part of the demand for punishment.* The presence of intention with regard to such or such a consequence, and of consciousness with regard to such or such a circumstance, of the act, will form so many criminative circumstances, or essential ingredients in the composition of this or that offence: applied to other circumstances, consciousness will form a ground of aggravation, annexable to the like offence. In almost all cases, the absence of intention with regard to certain consequences, and the absence of consciousness, or the presence of mis-supposal, with regard to certain circumstances, will constitute so many grounds of extenuation.§

CHAPTER X.: OF MOTIVES.

§ 1.: Different Senses of the word, Motive.

I.

It is an acknowledged truth, that every kind of act whatever, and consequently every kind of offence, is apt to assume a different character, and be attended with different effects, according to the nature of the motive which gives birth to it. This makes it requisite to take a view of the several motives by which human conduct is liable to be influenced.

II.

By a motive, in the most extensive sense in which the word is ever used with reference to a thinking being, is meant any thing that can contribute to give birth to, or even to prevent, any kind of action. Now the action of a thinking being is the act either of the body, or only of the mind: and an act of the mind is an act either of the intellectual faculty, or of the will. Acts of the intellectual faculty will sometimes rest in the understanding merely, without exerting any influence in the production of any acts of the will. Motives, which are not of a nature to influence any other acts than those, may be styled purely speculative motives, or motives resting in speculation. But as to these acts, neither do they exercise any influence over external acts, or over their consequences, nor consequently over any pain or any pleasure that may be in the number of such consequences. Now it is only on acount of their tendency to produce either pain or pleasure, that any acts can be material. With acts, therefore, that rest purely in the understanding, we have not here any concern: nor therefore with any object, if any such there be, which, in the character of a motive, can have no influence on any other acts than those.

III.

The motives with which alone we have any concern, are such as are of a nature to act upon the will. By a motive, then, in this sense of the word, is to be understood any thing whatsoever, which, by influencing the will of a sensitive being, is supposed to serve as a means of determining him to act, or voluntarily to forbear to act, upon any occasion. Motives of this sort, in contradistinction to the former, may be styled practical motives, or motives applying to practice.

IV.

Owing to the poverty and unsettled state of language, the word motive is employed indiscriminately to denote two kinds of objects, which, for the better understanding of the subject, it is necessary should be distinguished. On some occasions it is employed to denote any of those really existing incidents from whence the act in question is supposed to take its rise. The sense it bears on these occasions may be styled its literal or unfigurative sense. On other occasions it is employed to denote a certain fictitious entity, a passion, an affection of the mind, an ideal being, which upon the happening of any such incident is considered as operating upon Edition: current; Page: [47] the mind, and prompting it to take that course, towards which it is impelled by the influence of such incident. Motives of this class are Avarice, Indolence, Benevolence, and so forth; as we shall see more particularly farther on. This latter may be styled the figurative sense of the term motive.

V.

As to the real incidents to which the name of motive is also given, these too are of two very different kinds. They may be either, 1. The internal perception of any individual lot of pleasure or pain, the expectation of which is looked upon as calculated to determine you to act in such or such a manner; as the pleasure of acquiring such a sum of money, the pain of exerting yourself on such an occasion, and so forth: Or, 2. Any external event, the happening whereof is regarded as having a tendency to bring about the perception of such pleasure or such pain: for instance, the coming up of a lottery ticket, by which the possession of the money devolves to you; or the breaking out of a fire in the house you are in, which makes it necessary for you to quit it. The former kind of motives may be termed interior, or internal: the latter exterior, or external.

VI.

Two other senses of the term motive need also to be distinguished. Motive refers necessarily to action. It is a pleasure, pain, or other event, that prompts to action. Motive, then, in one sense of the word, must be previous to such event. But, for a man to be governed by any motive, he must in every case look beyond that event which is called his action; he must look to the consequences of it: and it is only in this way that the idea of pleasure, of pain, or of any other event, can give birth to it. He must look, therefore, in every case, to some event posterior to the act in contemplation: an event which as yet exists not, but stands only in prospect. Now, as it is in all cases difficult, and in most cases unnecessary, to distinguish between objects so intimately connected, as the posterior possible object which is thus looked forward to, and the present existing object or event which takes place upon a man’s looking forward to the other, they are both of them spoken of under the same appellation, motive. To distinguish them, the one first mentioned may be termed a motive in prospect, the other a motive in esse: and under each of these denominations will come as well exterior as internal motives. A fire breaks out in your neighbour’s house: you are under apprehension of its extending to your own: you are apprehensive, that if you stay in it, you will be burnt: you accordingly run out of it. This then is the act: the others are all motives to it. The event of the fire’s breaking out in your neighbour’s house is an external motive, and that in esse: the idea or belief of the probability of the fire’s extending to your own house, that of your being burnt if you continue, and the pain you feel at the thought of such a catastrophe, are all so many internal events, but still in esse: the event of the fire’s actually extending to your own house, and that of your being actually burnt by it, external motives in prospect: the pain you would feel at seeing your house a-burning, and the pain you would feel while you yourself were burning, internal motives in prospect: which events, according as the matter turns out, may come to be in esse: but then of course they will cease to act as motives.

VII.

Of all these motives, which stand nearest to the act to the production of which they all contribute, is that internal motive in esse which consists in the expectation of the internal motive in prospect: the pain or uneasiness you feel at the thoughts of being burnt.* All other motives are more or less remote: the motives in prospect, in proportion as the period at which they are expected to happen is more distant from the period at which the act takes place, and consequently later in point of time: the motives in esse, in proportion as they also are more distant from that period, and consequently earlier in point of time.

VIII.

It has already been observed, that with motives of which the influence terminates altogether in the understanding, we have nothing here to do. If, then, amongst objects that are spoken of as motives with reference to the understanding, there be any which concern us here, it is only in as far as such objects may, through the medium of the understanding, Edition: current; Page: [48] exercise an influence over the will. It is in this way, and in this way only, that any objects, in virtue of any tendency they may have to influence the sentiment of belief, may in a practical sense act in the character of motives. Any objects, by tending to induce a belief concerning the existence, actual, or probable, of a practical motive; that is, concerning the probability of a motive in prospect, or the existence of a motive in esse; may exercise an influence on the will, and rank with those other motives that have been placed under the name of practical. The pointing out of motives such as these, is what we frequently mean when we talk of giving reasons. Your neighbour’s house is on fire as before. I observe to you, that at the lower part of your neighbour’s house is some wood-work, which joins on to your’s; that the flames have caught this wood-work, and so forth; which I do in order to dispose you to believe as I believe, that if you stay in your house much longer you will be burnt. In doing this, then, I suggest motives to your understanding; which motives, by the tendency they have to give birth to or strengthen a pain, which operates upon you in the character of an internal motive in esse, join their force, and act as motives upon the will.

§ 2.: No Motives either constantly good, or constantly bad.

IX.

In all this chain of motives, the principal or original link seems to be the last internal motive in prospect; it is to this that all the other motives in prospect owe their materiality: and the immediately acting motive its existence. This motive in prospect, we see, is always some pleasure, or some pain: some pleasure, which the act in question is expected to be a means of continuing or producing: some pain which it is expected to be a means of discontinuing or preventing. A motive is substantially nothing more than pleasure or pain, operating in a certain manner.

X.

Now, pleasure is in itself a good; nay, even setting aside immunity from pain, the only good: pain is in itself an evil; and, indeed, without exception, the only evil; or else the words good and evil have no meaning. And this is alike true of every sort of pain, and of every sort of pleasure. It follows, therefore, immediately and incontestibly, that there is no such thing as any sort of motive that is in itself a bad one.*

XI.

It is common, however, to speak of actions as proceeding from good or bad motives: in which case the motives meant are such as are internal. The expression is far from being an accurate one; and as it is apt to occur in the consideration of almost every kind of offence, it will be requisite to settle the precise meaning of it, and observe how far it quadrates with the truth of things.

XII.

With respect to goodness and badness, as it is with every thing else that is not itself either pain or pleasure, so is it with motives. If they are good or bad, it is only on account of their effects: good, on account of their tendency to produce pleasure, or avert pain: bad, on account of their tendency to produce pain or avert pleasure. Now the case is, that from one and the same motive, and from every kind of motive, may proceed actions that are good, others that are bad, and others that are indifferent. This we shall proceed to shew with respect to all the different kinds of motives, as determined by the various kinds of pleasures and pains.

XIII.

Such an analysis, useful as it is, will be found to be a matter of no small difficulty; owing, in great measure, to a certain perversity of structure which prevails more or less throughout all languages. To speak of motives, as of any thing else, one must call them by their names. But the misfortune is, that it is rare to meet with a motive of which the name expresses that and nothing more. Commonly along with the very name of the motive, is tacitly involved a proposition imputing to it a certain quality; a quality which, in many cases, will appear to include that very goodness or badness, concerning which we are here inquiring whether, properly speaking, it be or be not imputable to motives. To use the common phrase, in most cases, the name of the motive is a word which is employed either only in a good sense, or else only in a bad sense. Now, when a word is spoken of as being used in a good sense, all that is necessarily meant is this: that in conjunction with the idea of the object it is put to signify, it conveys an idea of approbation; that is, of a pleasure or satisfaction, entertained by the person who employs the term, at the thoughts of such object. In like manner, when a word is spoken of as being used in a bad sense, all that is necessarily meant is this: that, in conjunction with the idea of the object it is put to signify, it conveys an idea of disapprobation: Edition: current; Page: [49] that is, of a displeasure entertained by the person who employs the term at the thoughts of such object. Now, the circumstance on which such approbation is grounded will, as naturally as any other, be the opinion of the goodness of the object in question, as above explained: such, at least, it must be, upon the principle of utility: so, on the other hand, the circumstance on which any such disapprobation is grounded, will, as naturally as any other, be the opinion of the badness of the object: such, at least, it must be, in as far as the principle of utility is taken for the standard.

Now there are certain motives which, unless in a few particular cases, have scarcely any other name to be expressed by but such a word as is used only in a good sense. This is the case, for example, with the motives of piety and honour. The consequence of this is, that if, in speaking of such a motive, a man should have occasion to apply the epithet bad to any actions which he mentions as apt to result from it, he must appear to be guilty of a contradiction in terms. But the names of motives which have scarcely any other name to be expressed by, but such a word as is used only in a bad sense, are many more.* This is the case, for example, with the motives of lust and avarice. And accordingly, if, in speaking of any such motive, a man should have occasion to apply the epithets good on indifferent to any actions which he mentions as apt to result from it, he must here also appear to be guilty of a similar contradiction.

This perverse association of ideas cannot, it is evident, but throw great difficulties in the way of the inquiry now before us. Confining himself to the language most in use, a man can scarce avoid running, in appearance, into perpetual contradictions. His propositions will appear, on the one hand, repugnant to truth; and on the other hand, adverse to utility. As paradoxes, they will excite contempt: as mischievous paradoxes, indignation. For the truths he labours to convey, however important, and however salutary, his reader is never the better: and he himself is much the worse. To obviate this inconvenience completely, he has but this one unpleasant remedy; to lay aside the old phraseology and invent a new one. Happy the man whose language is ductile enough to permit him this resource. To palliate the inconvenience, where that method of obviating it is impracticable, he has nothing left for it but to enter into a long discussion, to state the whole matter at large, to confess, that for the sake of promoting the purposes, he has violated the established laws of language, and to throw himself upon the mercy of his readers.

§ 3.: Catalogue of Motives corresponding to that of Pleasures and Pains.

XIV.

From the pleasures of the senses, considered in the gross, results the motive which, in a neutral sense, may be termed physical desire: in a bad sense, it is termed sensuality. Name used in a good sense it has none. Of this, nothing can be determined, till it be considered separately, with reference to the several species of pleasures to which it corresponds.

XV.

In particular, then, to the pleasures of the taste or palate corresponds a motive, which in a neutral sense having received no name that can serve to express it in all cases, can only be termed, by circumlocution, the love of the pleasures of the palate. In particular cases it is styled hunger: in others, thirst. Edition: current; Page: [50] The love of good cheer expresses this motive, but seems to go beyond: intimating, that the pleasure is to be partaken of in company, and involving a kind of sympathy. In a bad sense, it is styled in some cases greediness, voraciousness, gluttony: in others, principally when applied to children, lickerishness. It may in some cases also be represented by the word daintiness. Name used in a good sense it has none. 1. A boy, who does not want for victuals, steals a cake out of a pastry-cook’s shop, and eats it. In this case his motive will be universally deemed a bad one: and if it be asked what it is, it may be answered, perhaps, lickerishness. 2. A boy buys a cake out of a pastry-cook’s shop, and eats it. In this case his motive can scarcely be looked upon as either good or bad, unless his master should be out of humour with him; and then perhaps he may call it lickerishness, as before. In both cases, however, his motive is the same. It is neither more nor less than the motive corresponding to the pleasures of the palate.*

XVI.

To the pleasures of the sexual sense corresponds the motive which, in a neutral sense, may be termed sexual desire. In a bad sense, it is spoken of under the name of lasciviousness, and a variety of other names of reprobation. Name used in a good sense, it has none.

1. A man ravishes a virgin. In this case the motive is, without scruple, termed by the name of lust, lasciviousness, and so forth; and is universally looked upon as a bad one. 2. The same man, at another time, exercises the rights of marriage with his wife. In this case the motive is accounted, perhaps, a good one, or at least indifferent: and here people would scruple to call it by any of those names. In both cases, however, the motive may be precisely the same. In both cases it may be neither more nor less than sexual desire.

XVII.

To the pleasures of curiosity corresponds the motive known by the same name: and which may be otherwise called the love of novelty, or the love of experiment; and, on particular occasions, sport, and sometimes play.

1. A boy, in order to divert himself, reads an improving book: the motive is accounted, perhaps, a good one: at any rate, not a bad one. 2. He sets his top a-spinning: the motive is deemed, at any rate, not a bad one. 3. He sets loose a mad ox among a crowd: his motive is now, perhaps, termed an abominable one. Yet in all three cases the motive may be the very same: it may be neither more nor less than curiosity.

XVIII.

As to the other pleasures of sense, they are of too little cousequence to have given any separate denominations to the corresponding motives.

XIX.

To the pleasures of wealth corresponds the sort of motive which, in a neutral sense, may be termed pecuniary interest. In a bad sense, it is termed, in some cases, avarice, covetousness, rapacity, or lucre: in other cases, niggardliness: in a good sense, but only in particular cases, economy and frugality; and in some cases the word industry may be applied to it: in a sense nearly indifferent, but rather bad than otherwise, it is styled, though only in particular cases, parsimony.

1. For money you gratify a man’s hatred, by putting his adversary to death. 2. For money you plough his field for him. In the first case your motive is termed lucre, and is accounted corrupt and abominable: and in the second, for want of a proper appellation, it is styled industry; and is looked upon as innocent at least, if not meritorious. Yet the motive is in both cases precisely the same; it is neither more nor less than pecuniary interest.

XX.

The pleasures of skill are neither distinct enough, nor of consequence enough, to have given any name to the corresponding motive.

XXI.

To the pleasures of amity corresponds a motive which, in a neutral sense, may be termed the desire of ingratiating one’s self. In a bad sense, it is in certain cases styled servility: in a good sense it has no name that is peculiar to it: in the cases in which it has been looked on with a favourable eye, it has seldom been distinguished from the motive of sympathy or benevolence, with which, in such cases, it is commonly associated.

1. To acquire the affections of a woman before marriage, to preserve them afterwards, you do every thing, that is consistent with other duties, to make her happy: in this case your motive is looked upon as laudable, though there is no name for it. 2. For the Edition: current; Page: [51] same purpose, you poison a woman with whom she is at enmity: in this case, your motive is looked upon as abominable, though still there is no name for it. 3. To acquire or preserve the favour of a man who is richer or more powerful than yourself, you make yourself subservient to his pleasures. Let them even be lawful pleasures, if people choose to attribute your behaviour to this motive, you will not get them to find any other name for it than servility. Yet in all three cases the motive is the same: it is neither more nor less than the desire of ingratiating yourself.

XXII.

To the pleasures of the moral sanction, or, as they may otherwise be called, the pleasures of a good name, corresponds a motive which, in a neutral sense, has scarcely yet obtained any adequate appellative. It may be styled the love of reputation. It is nearly related to the motive last preceding: being neither more nor less than the desire of ingratiating one’s self with, or, as in this case we should rather say, of recommending one’s self to, the world at large. In a good sense, it is termed honour, or the sense of honour; or rather, the word honour is introduced somehow or other upon the occasion of its being brought to view: for in strictness the word honour is put rather to signify that imaginary object, which a man is spoken of as possessing upon the occasion of his obtaining a conspicuous share of the pleasures that are in question. In particular cases, it is styled the love of glory. In a bad sense, it is styled, in some cases, false honour; in others, pride; in others, vanity. In a sense not decidedly bad, but rather bad than otherwise, ambition. In an indifferent sense, in some cases, the love of fame; in others, the sense of shame. And, as the pleasures belonging to the moral sanction run undistinguishably into the pains derived from the same source,* it may also be styled, in some cases, the fear of dishonour, the fear of disgrace, the fear of infamy, the fear of ignominy, or the fear of shame.

1. You have received an affront from a man: according to the custom of the country, in order, on the one hand, to save yourself from the shame of being thought to bear it patiently; on the other hand, to obtain the reputation of courage; you challenge him to fight with mortal weapons. In this case your motive will by some people be accounted laudable, and styled honour: by others it will be accounted blameable, and these, if they call it honour, will prefix an epithet of improbation to it, and call it false honour. 2. In order to obtain a post of rank and dignity, and thereby to increase the respect paid you by the public, you bribe the electors who are to confer it, or the judge before whom the title to it is in dispute. In this case your motive is commonly accounted corrupt and abominable, and is styled, perhaps, by some such name as dishonest or corrupt ambition, as there is no single name for it. 3. In order to obtain the good-will of the public, you bestow a large sum in works of private charity or public utility. In this case people will be apt not to agree about your motive. Your enemies will put a bad colour Edition: current; Page: [52] upon it, and call it ostentation: your friends, to save you from this reproach, will choose to impute your conduct not to this motive but to some other; such as that of charity (the denomination in this case given to private sympathy), or that of public spirit. 4. A king, for the sake of gaining the admiration annexed to the name of conqueror (we will suppose power and resentment out of the question), engages his kingdom in a bloody war. His motive, by the multitude (whose sympathy for millions is easily overborne by the pleasure which their imagination finds in gaping at any novelty they observe in the conduct of a single person), is deemed an admirable one. Men of feeling and reflection, who disapprove of the dominion exercised by this motive on this occasion, without always perceiving that it is the same motive which in other instances meets with their approbation, deem it an abominable one; and because the multitude, who are the manufacturers of language, have not given them a simple name to call it by, they will call it by some such compound name as the love of false glory or false ambition. Yet in all four cases the motive is the same: it is neither more nor less than the love of reputation.

XXIII.

To the pleasures of power corresponds the motive which, in a neutral sense, may be termed the love of power. People, who are out of humour with it, sometimes call it the lust of power. In a good sense, it is scarcely provided with a name. In certain cases this motive, as well as the love of reputation, are confounded under the same name, ambition. This is not to be wondered at, considering the intimate connexion there is between the two motives in many cases: since it commonly happens, that the same object which affords the one sort of pleasure, affords the other sort at the same time; for instance, offices, which are at once posts of honour and places of trust: and since at any rate reputation is the road to power.

1. If, in order to gain a place in administration, you poison the man who occupies it. 2. If, in the same view, you propose a salutary plan for the advancement of the public welfare; your motive is in both cases the same. Yet in the first case it is accounted criminal and abominable: in the second case allowable, and even laudable.

XXIV.

To the pleasures as well as to the pains of the religious sanction corresponds a motive which has, strictly speaking, no perfectly neutral name applicable to all cases, unless the word religion be admitted in this character: though the word religion, strictly speaking, seems to mean not so much the motive itself, as a kind of fictitious personage, by whom the motive is supposed to be created, or an assemblage of acts, supposed to be dictated by that personage: nor does it seem to be completely settled into a neutral sense. In the same sense it is also, in some cases, styled religious zeal: in other cases, the fear of God. The love of God, though commonly contrasted with the fear of God, does not come strictly under this head. It coincides properly with a motive of a different denomination; viz. a kind of sympathy or good-will, which has the Deity for its object. In a good sense, it is styled devotion, piety, and pious zeal. In a bad sense, it is styled, in some cases, superstition, or superstitious zeal; in other cases, fanaticism, or fanatic zeal in a sense not decidedly bad, because not appropriated to this motive, enthusiasm, or enthusiastic zeal.

1. In order to obtain the favour of the Supreme Being, a man assassinates his lawful sovereign. In this case the motive is now almost universally looked upon as abominable, and is termed fanaticism: formerly it was by great numbers accounted laudable, and was by them called pious zeal. 2. In the same view, a man lashes himself with thongs. In this case, in yonder house, the motive is accounted laudable, and is called pious zeal: in the next house it is deemed contemptible, and called superstition. 3. In the same view, a man eats a piece of bread (or at least what to external appearance is a piece of bread) with certain ceremonies. In this case, in yonder house, his motive is looked upon as laudable, and is styled piety and devotion: in the next house it is deemed abominable, and styled superstition, as before: perhaps even it is absurdly styled impiety. 4. In the same view, a man holds a cow by the tail while he is dying. On the Thames the motive would in this case be deemed contemptible, and called superstition: on the Ganges it is deemed meritorious, and called piety. 5. In the same view, a man bestows a large sum in works of charity, or public utility. In this case the motive is styled laudable, by those at least to whom the works in question appear to come under this description; and by these at least it would be styled piety. Yet in all these cases the motive is precisely the same: it is neither more nor less than the motive belonging to the religious sanction.*

XXV.

To the pleasures of sympathy corresponds Edition: current; Page: [53] the motive which, in a neutral sense, is termed good-will. The word sympathy may also be used on this occasion; though the sense of it seems to be rather more extensive. In a good sense, it is styled benevolence: and in certain cases, philanthropy: and, in a figurative way, brotherly love; in others, humanity; in others, charity; in others, pity and compassion; in others, mercy; in others, gratitude; in others, tenderness; in others, patriotism; in others, public spirit. Love is also employed in this as in so many other senses. In a bad sense, it has no name applicable to it in all cases: in particular cases it is styled partiality. The word zeal, with certain epithets prefixed to it, might also be employed sometimes on this occasion, though the sense of it be more extensive; applying sometimes to ill as well as to good will. It is thus we speak of party zeal, national zeal, and public zeal. The word attachment is also used with the like epithets: we also say family-attachment. The French expression, esprit de corps, for which as yet there seems to be scarcely any name in English, might be rendered, in some cases, though rather inadequately, by the terms corporation-spirit, corporation-attachment, or corporation-zeal.

1. A man who has set a town on fire is apprehended and committed: out of regard or compassion for him, you help him to break prison. In this case the generality of people will probably scarcely know whether to condemn your motive or to applaud it: those who condemn your conduct, will be disposed rather to impute it to some other motive: if they style it benevolence or compassion, they will be for prefixing an epithet, and calling it false benevolence or false compassion.* 2. The man is taken again, and is put upon his trial; to save him, you swear falsely in his favour. People, who would not call your motive a bad one before, will perhaps call it so now. 3. A man is at law with you about an estate: he has no right to it: the judge knows this, yet, having an esteem or affection for your adversary, adjudges it to him. In this case the motive is by every body deemed abominable, and is termed injustice and partiality. 4. You detect a statesman in receiving bribes: out of regard to the public interest, you give information of it, and prosecute him. In this case, by all who acknowledge your conduct to have originated from this motive, your motive will be deemed a laudable one, and styled public spirit. But his friends and adherents will not choose to account for your conduct in any such manner: they will rather attribute it to party enmity. 5. You find a man on the point of starving: you relieve him; and save his life. In this case your motive will by every body be accounted laudable, and it will be termed compassion, pity, charity, benevolence. Yet in all these cases the motive is the same: it is neither more nor less than the motive of good-will.

XXVI.

To the pleasures of malevolence, or antipathy, corresponds the motive which, in a neutral sense, is termed antipathy or displeasure: and, in particular cases, dislike, aversion, abhorrence, and indignation: in a neutral sense, or perhaps a sense leaning a little to the bad side, ill-will: and, in particular cases, anger, wrath, and enmity. In a bad sense, it is styled, in different cases, wrath, spleen, ill-humour, animosity, hatred, malice, rancour, rage, fury, cruelty, tyranny, envy, jealousy, revenge, misanthropy, and by other names, which it is hardly worth while to endeavour to collect. Like good-will, it is used with epithets expressive of the persons who are the objects of the affection. Hence we hear of party enmity, party rage, and so forth. In a good sense, there seems to be no single name for it. In compound expressions it may be spoken of in such a sense, by epithets, such as just and laudable, prefixed to words that are used in a neutral or nearly neutral sense.

1. You rob a man: he prosecutes you, and gets you punished: out of resentment you set upon him, and hang him with your own hands. In this case your motive will universally be deemed detestable, and will be called malice, cruelty, revenge, and so forth. 2. A man has stolen a little money from you: out of resentment you prosecute him, and get him hanged by course of law. In this case people will probably be a little divided Edition: current; Page: [54] in their opinions about your motive: your friends will deem it a laudable one, and call it a just or laudable resentment: your enemies will perhaps be disposed to deem it blameable, and call it cruelty, malice, revenge, and so forth: to obviate which, your friends will try perhaps to change the motive, and call it public spirit. 3. A man has murdered your father: out of resentment you prosecute him, and get him put to death in course of law. In this case your motive will be universally deemed a laudable one, and styled, as before, a just or laudable resentment: and your friends, in order to bring forward the more amiable principle from which the malevolent one, which was your immediate motive, took it srise, will be for keeping the latter out of sight, speaking of the former only, under some such name as filial piety. Yet in all these cases the motive is the same: it is neither more nor less than the motive of ill-will.

XXVII.

To the several sorts of pains, or at least to all such of them as are conceived to subsist in an intense degree, and to death, which, as far as we can perceive, is the termination of all the pleasures, as well as all the pains we are acquainted with, corresponds the motive which, in a neutral sense, is styled, in general, self-preservation; the desire of preserving one’s self from the pain or evil in question. Now in many instances the desire of pleasure, and the sense of pain, run into one another undistinguishably. Self-preservation, therefore, where the degree of the pain which it corresponds to is but slight, will scarcely be distinguishable, by any precise line, from the motives corresponding to the several sorts of pleasures. Thus in the case of the pains of hunger and thirst: physical want will in many cases be scarcely distinguishable from physical desire. In some cases it is styled, still in a neutral sense, self-defence. Between the pleasures and the pains of the moral and religious sanctions, and consequently of the motives that correspond to them, as likewise between the pleasures of amity, and the pains of enmity, this want of boundaries has already been taken notice of.* The case is the same between the pleasures of wealth, and the pains of privation corresponding to those pleasures. There are many cases, therefore, in which it will be difficult to distinguish the motive of self-preservation from pecuniary interest, from the desire of ingratiating one’s self, from the love of reputation, and from religious hope: in which cases, those more specific and explicit names will naturally be preferred to this general and inexplicit one. There are also a multitude of compound names, which either are already in use, or might be devised, to distinguish the specific branches of the motive of self-preservation from those several motives of a pleasurable origin: such as the fear of poverty, the fear of losing such or such a man’s regard, the fear of shame, and the fear of God. Moreover, to the evil of death corresponds, in a neutral sense, the love of life; in a bad sense, cowardice: which corresponds also to the pains of the senses, at least when considered as subsisting in an acute degree. There seems to be no name for the love of life that has a good sense; unless it be the vague and general name of prudence.

1. To save yourself from being hanged, pilloried, imprisoned, or fined, you poison the only person who can give evidence against you. In this case your motive will universally be styled abominable: but as the term self-preservation has no bad sense, people will not care to make this use of it: they will be apt rather to change the motive, and call it malice. 2. A woman, having been just delivered of an illegitimate child, in order to save herself from shame, destroys the child, or abandons it. In this case, also, people will call the motive a bad one; and, not caring to speak of it under a neutral name, they will be apt to change the motive, and to call it by some such name as cruelty. 3. To save the expense of a half-penny, you suffer a man, whom you could preserve at that expense, to perish with want, before your eyes. In this case your motive will be universally deemed an abominable one; and, to avoid calling it by so indulgent a name as self-preservation, people will be apt to call it avarice and niggardliness, with which indeed in this case it indistinguishably coincides: for the sake of finding a more reproachful appellation, they will be apt likewise to change the motive, and term it cruelty. 4. To put an end to the pain of hunger, you steal a loaf of bread. In this case your motive will scarcely, perhaps, be deemed a very bad one; and, in to order express more indulgence for it, people will be apt to find a stronger name for it than self-preservation, terming it necessity. 5. To save yourself from drowning, you beat off an innocent man who has got hold of the same plank. In this case your motive will in general be deemed neither good nor bad; and it will be termed self-preservation, or necessity, or the love of life. 6. To save your life from a gang of robbers, you kill them in the conflict. In this case the motive may, perhaps, be deemed rather laudable than otherwise; and, besides self-preservation, is styled also self-defence. 7. A soldier is sent out upon a party against a weaker party of the enemy: before he gets up with them, to save his life, he runs away. In this case the motive Edition: current; Page: [55] will universally be deemed a contemptible one, and will be called cowardice. Yet in all these various cases, the motive is still the same: it is neither more nor less than self-preservation.

XXVIII.

In particular, to the pains of exertion corresponds the motive which, in a neutral sense, may be termed the love of ease, or by a longer circumlocution, the desire of avoiding trouble. In a bad sense, it is termed indolence.* It seems to have no name that carries with it a good sense.

1. To save the trouble of taking care of it, a parent leaves his child to perish. In this case the motive will be deemed an abominable one, and because indolence will seem too mild a name for it, the motive will, perhaps, be changed, and spoken of under some such term as cruelty. 2. To save yourself from an illegal slavery, you make your escape. In this case the motive will be deemed certainly not a bad one; and, because indolence, or even the love of ease, will be thought too unfavourable a name for it, it will, perhaps, be styled the love of liberty. 3. A mechanic, in order to save his labour, makes an improvement in his machinery. In this case, people will look upon his motive as a good one; and finding no name for it that carries a good sense, they will be disposed to keep the motive out of sight: they will speak rather of his ingenuity, than of the motive which was the means of his manifesting that quality. Yet in all these cases the motive is the same: it is neither more nor less than the love of ease.

XXIX.

It appears, then, that there is no such thing as any sort of motive which is a bad one in itself: nor, consequently, any such thing as a sort of motive, which in itself is exclusively a good one. And as to their effects, it appears too that these are sometimes bad, at other times either indifferent or good: and this appears to be the case with every sort of motive. If any sort of motive, then, is either good or bad on the score of its effects, this is the case only on individual occasions, and with individual motives; and this is the case with one sort of motive as well as with another. If any sort of motive, then, can, in consideration of its effects, be termed with any propriety a bad one, it can only be with reference to the balance of all the effects it may have had of both kinds within a given period, that is, of its most usual tendency.

XXX.

What then? (it will be said) are not lust, cruelty, avarice, bad motives? Is there so much as any one individual occasion, in which motives like these can be otherwise than bad? No, certainly: and yet the proposition, that there is no one sort of motive but what will on many occasions be a good one, is nevertheless true. The fact is, that these are names which, if properly applied, are never applied but in the cases where the motives they signify happen to be bad. The names of these motives, considered apart from their effects, are sexual desire, displeasure, and pecuniary interest. To sexual desire, when the effects of it are looked upon as bad, is given the name of lust. Now lust is always a bad motive. Why? Because if the case be such that the effects of the motive are not bad, it does not go, or at least ought not to go, by the name of lust. The case is, then, that when I say, “Lust is a bad motive,” it is a proposition that merely concerns the import of the word lust; and which would be false if transferred to the other word used for the same motive, sexual desire. Hence we see the emptiness of all those rhapsodies of common-place morality, which consist in the taking of such names as lust, cruelty, and avarice, and branding them with marks of reprobation: applied to the thing, they are false; applied to the name, they are true, indeed, but nugatory. Would you do a real service to mankind, show them the cases in which sexual desire merits the name of lust; displeasure, that of cruelty; and pecuniary interest, that of avarice.

XXXI.

If it were necessary to apply such denominations as good, bad, and indifferent, to motives, they might be classed in the following manner, in consideration of the most frequent complexion of their effects. In the class of good motives might be placed the articles of, 1. Goodwill. 2. Love of reputation. 3. Desire of amity. And, 4. Religion. In the class of bad motives, 5. Displeasure. In the class of neutral or indifferent motives, 6. Physical desire. 7. Pecuniary interest. 8. Love of power. 9. Self-preservation; as including the fear of the pains of the senses, the love of ease, and the love of life.

XXXII.

This method of arrangement, however, cannot but be imperfect; and the nomenclature belonging to it is in danger of being fallacious. For by what method of investigation can a man be assured, that with regard to the motives ranked under the name of good, the good effects they have had, from the beginning of the world, have, in each of the four species comprised under this name, been superior to the bad? Still more difficulty would a man find in assuring himself, that with regard to those which are ranked under the name of neutral or indifferent, the effects Edition: current; Page: [56] they have had have exactly balanced each other, the value of the good being neither greater nor less than that of the bad. It is to be considered, that the interests of the person himself can no more be left out of the estimate, than those of the rest of the community. For what would become of the species, if it were not for the motives of hunger and thirst, sexual desire, the fear of pain, and the love of life? Nor in the actual constitution of human nature is the motive of displeasure less necessary, perhaps, than any of the others: although a system, in which the business of life might be carried on without it, might possibly be conceived. It seems, therefore, that they could scarcely, without great danger of mistakes, be distinguished in this manner, even with reference to each other.

XXXIII.

The only way, it should seem, in which a motive can with safety and propriety be styled good or bad, is with reference to its effects in each individual instance; and principally from the intention it gives birth to: from which arise, as will be shown hereafter, the most material part of its effects. A motive is good, when the intention it gives birth to is a good one; bad, when the intention is a bad one: and an intention is good or bad, according to the material consequences that are the objects of it. So far is it from the goodness of the intention’s being to be known only from the species of the motive. But from one and the same motive, as we have seen, may result intentions of every sort of complexion whatsoever. This circumstance, therefore, can afford no clue for the arrangement of the several sorts of motives.

XXXIV.

A more commodious method, therefore, it should seem, would be to distribute them according to the influence which they appear to have on the interests of the other members of the community, laying those of the party himself out of the question; to wit, according to the tendency which they appear to have to unite, or disunite, his interests and theirs. On this plan they may be distinguished into social, dissocial, and self-regarding. In the social class may be reckoned, 1. Good-will. 2. Love of reputation. 3. Desire of amity. 4. Religion. In the dissocial may be placed, 5. Displeasure. In the self-regarding class, 6 Physical desire. 7. Pecuniary interest. 8. Love of power. 9. Self-preservation; as including the fear of the pains of the senses, the love of ease, and the love of life.

XXXV.

With respect to the motives that have been termed social, if any farther distinction should be of use, to that of good-will alone may be applied the epithet of purely-social; while the love of reputation, the desire of amity, and the motive of religion, may together be comprised under the division of semi-social: the social tendency being much more constant and unequivocal in the former than in any of the three latter. Indeed these last, social as they may be termed, are self-regarding at the same time.*

§ 4.: Order of Pre-eminence among Motives.

XXXVI.

Of all these sorts of motives, good-will is that of which the dictates, taken in a general view, are surest of coinciding with those of the principle of utility. For the dictates of utility are neither more nor less than the dictates of the most extensive and enlightened (that is well-advised) benevolence. The dictates of the other motives may be conformable to those of utility, or repugnant, as it may happen.

XXXVII.

In this, however, it is taken for granted, that in the case in question the dictates of benevolence are not contradicted by those of a more extensive, that is enlarged, benevolence. Now when the dictates of benevolence, as respecting the interests of a certain set of persons, are repugnant to the dictates of the same motive, as respecting the more important§ interests of another set of persons, the former dictates, it is evident, are repealed, as it were, by the latter: and a man, were he to be governed by the former, could scarcely, with propriety, be said to be governed by the dictates of benevolence. On this account, were the motives on both sides sure to be alike present to a man’s mind, the case of such a repugnancy would hardly be worth distinguishing, since the partial benevolence might be considered as swallowed up in the more extensive: if the former prevailed, and governed the action, it must be considered as not owing its birth to benevolence, but to some other motive: if the latter prevailed, the former might be considered as having no effect. But the case is, that a partial benevolence may govern the action, without entering into any direct competition with the more extensive benevolence which would forbid it; because the interests of the less numerous assemblage of persons Edition: current; Page: [57] may be present to a man’s mind, at a time when those of the more numerous are either not present, or, if present, make no impression. It is in this way that the dictates of this motive may be repugnant to utility, yet still be the dictates of benevolence. What makes those of private benevolence conformable upon the whole to the principle of utility, is, that in general they stand unopposed by those of public: if they are repugnant to them, it is only by accident. What makes them the more conformable, is, that in a civilized society, in most of the cases in which they would of themselves be apt to run counter to those of public benevolence, they find themselves opposed by stronger motives of the self-regarding class, which are played off against them by the laws; and that it is only in cases where they stand unopposed by the other more salutary dictates, that they are left free. An act of injustice or cruelty, committed by a man for the sake of his father or his son, is punished, and with reason, as much as if it were committed for his own.

XXXVIII.

After good-will, the motive of which the dictates seem to have the next best chance for coinciding with those of utility, is that of the love of reputation. There is but one circumstance which prevents the dictates of this motive from coinciding in all cases with those of the former. This is, that men in their likings and dislikings, in the dispositions they manifest to annex to any mode of conduct their approbation or their disapprobation, and in consequence to the person who appears to practise it, their good or their ill will, do not govern themselves exclusively by the principle of utility. Sometimes it is the principle of asceticism they are guided by: sometimes the principle of sympathy and antipathy. There is another circumstance, which diminishes, not their conformity to the principle of utility, but only their efficacy in comparison with the dictates of the motive of benevolence. The dictates of this motive will operate as strongly in secret as in public: whether it appears likely that the conduct which they recommend will be known or not: those of the love of reputation will coincide with those of benevolence only in proportion as a man’s conduct seems likely to be known. This circumstance, however, does not make so much difference as at first sight might appear. Acts, in proportion as they are material, are apt to become known:* and in point of reputation, the slightest suspicion often serves for proof. Besides, if an act be a disreputable one, it is not any assurance a man can have of the secrecy of the particular act in question, that will of course surmount the objections he may have against engaging in it. Though the act in question should remain secret, it will go towards forming a habit, which may give birth to other acts, that may not meet with the same good fortune. There is no human being, perhaps, who is at years of discretion, on whom considerations of this sort have not some weight: and they have the more weight upon a man, in proportion to the strength of his intellectual powers, and the firmness of his mind. Add to this, the influence which habit itself, when once formed, has in restraining a man from acts towards which, from the view of the disrepute annexed to them, as well as from any other cause, he has contracted an aversion. The influence of habit, in such cases, is a matter of fact, which, though not readily accounted for, is acknowledged and indubitable.

XXXIX.

After the dictates of the love of reputation come, as it should seem, those of the desire of amity. The former are disposed to coincide with those of utility, inasmuch as they are disposed to coincide with those of benevolence. Now those of the desire of amity are apt also to coincide, in a certain sort, with those of benevolence. But the sort of benevolence, with the dictates of which the love of reputation coincides, is the more extensive; that with which those of the desire of amity coincide, the less extensive. Those of the love of amity have still, however, the advantage of those of the self-regarding motives. The former, at one period or other of his life, dispose a man to contribute to the happiness of a considerable number of persons: the latter, from the beginning of life to the end of it, confine themselves to the care of that single individual. The dictates of the desire of amity, it is plain, will approach nearer to a coincidence with those of the love of reputation, and thence with those of utility, in proportion, cæteris paribus, to the number of the persons whose amity a man has occasion to desire: and hence it is, for example, that an English member of parliament, with all his own weaknesses, and all the follies of the people whose amity he has to cultivate, is probably, in general, a better character than the secretary of a vizier at Constantinople, or of a naib in Indostan.

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XL.

The dictates of religion are, under the infinite diversity of religions, so extremely variable, that it is difficult to know what general account to give of them, or in what rank to place the motive they belong to. Upon the mention of religion, people’s first thoughts turn naturally to the religion they themselves profess. This is a great source of miscalculation, and has a tendency to place this sort of motive in a higher rank than it deserves. The dictates of religion would coincide, in all cases, with those of utility, were the Being, who is the object of religion, universally supposed to be as benevolent as he is supposed to be wise and powerful; and were the notions entertained of his benevolence, at the same time, as correct as those which are entertained of his wisdom and his power. Unhappily, however, neither of these is the case, He is universally supposed to be all-powerful: for by the Deity, what else does any man mean than the Being, whatever he be, by whom every thing is done? And as to knowledge, by the same rule that he should know one thing, he should know another. These notions seem to be as correct, for all material purposes, as they are universal. But among the votaries of religion (of which number the multifarious fraternity of Christians is but a small part) there seem to be but few (I will not say how few) who are real believers in his benevolence. They call him benevolent in words, but they do not mean that he is so in reality. They do not mean that he is benevolent as man is conceived to be benevolent: they do not mean that he is benevolent in the only sense in which benevolence has a meaning. For if they did, they would recognise that the dictates of religion could be neither more nor less than the dictates of utility: not a tittle different: not a tittle less or more. But the case is, that on a thousand occasions they turn their backs on the principle of utility. They go astray after the strange principles its antagonists: sometimes it is the principle of asceticism: sometimes the principle of sympathy and antipathy.* Accordingly, the idea they bear in their minds, on such occasions, is but too often the idea of malevolence; to which idea, stripping it of its own proper name, they bestow the specious appellation of the social motive. The dictates of religion, in short, are no other than the dictates of that principle which has been already mentioned under the name of the theological principle. These, as has been observed, are just as it may happen, according to the biases of the person in question, copies of the dictates of one or other of the three original principles: sometimes, indeed, of the dictates of utility; but frequently of those of asceticism, or those of sympathy and antipathy. In this respect they are only on a par with the dictates of the love of reputation: in another they are below it. The dictates of religion are in all places intermixed more or less with dictates unconformable to those of utility, deduced from texts, well or ill interpreted, of the writings held for sacred by each sect: unconformable, by imposing practices sometimes inconvenient to a man’s self, sometimes pernicious to the rest of the community. The sufferings of uncalled martyrs, the calamities of holy wars and religious persecutions, the mischiefs of intolerant laws, (objects which can here only be glanced at, not detailed), are so many additional mischiefs over and above the number of those which were ever brought into the world by the love of reputation. On the other hand, it is manifest, that with respect to the power of operating in secret, the dictates of religion have the same advantage over those of the love of reputation and the desire of amity, as is possessed by the dictates of benevolence.

XLI.

Happily, the dictates of religion seem to approach nearer and nearer to a coincidence with those of utility every day. But why? Because the dictates of the moral sanction do so: and those coincide with or are influenced by these. Men of the worst religions, influenced by the voice and practice of the surrounding world, borrow continually a new and a new leaf out of the book of utility: and with these, in order not to break with their religion, they endeavour, sometimes with violence enough, to patch together and adorn the repositories of their faith.

XLII.

As to the self-regarding and dissocial motives, the order that takes place among these, and the preceding one, in point of extra-regarding influence, is too evident to need insisting on. As to the order that takes place among the motives of the self-regarding class, Edition: current; Page: [59] considered in comparison with one another, there seems to be no difference which on this occasion would be worth mentioning. With respect to the dissocial motive, it makes a difference (with regard to its extra-regarding effects) from which of two sources it originates; whether from self-regarding or from social considerations. The displeasure you conceive against a man may be founded either on some act which offends you in the first instance, or on an act which offends you no otherwise than because you look upon it as being prejudicial to some other party on whose behalf you interest yourself; which other party may be, of course, either a determinate individual, or any assemblage of individuals, determinate or indeterminate.* It is obvious enough, that a motive, though in itself dissocial, may, by issuing from a social origin, possess a social tendency; and that its tendency, in this case, is likely to be the more social, the more enlarged the description is of the persons whose interests you espouse. Displeasure, venting itself against a man, on account of a mischief supposed to be done by him to the public, may be more social in its effects than any good-will, the exertions of which are confined to an individual.

§ 5.: Conflict among Motives.

XLIII.

When a man has it in contemplation to engage in any action, he is frequently acted upon at the same time by the force of divers motives: one motive, or set of motives, acting in one direction; another motive, or set of motives, acting as it were in an opposite direction: the motives on one side disposing him to engage in the action; those on the other, disposing him not to engage in it. Now, any motive the influence of which tends to dispose him to engage in the action in question, may be termed an impelling motive: any motive, the influence of which tends to dispose him not to engage in it, a restraining motive. But these appellations may of course be interchanged, according as the act is of the positive kind, or the negative.

XLIV.

It has been shown, that there is no sort of motive but may give birth to any sort of action. It follows, therefore, that there are no two motives but may come to be opposed to one another. Where the tendency of the act is bad, the most common case is for it to have been dictated by a motive either of the self-regarding, or of the dissocial class. In such case the motive of benevolence has commonly been acting, though ineffectually, in the character of a restraining motive.

XLV.

An example may be of use, to show the variety of contending motives, by which a man may be acted upon at the same time. Crillon, a Catholic (at a time when it was generally thought meritorious among Catholics to extirpate Protestants), was ordered by his king, Charles IX. of France, to fall privately upon Coligny, a Protestant, and assassinate him: his answer was, “Excuse me, Sire: but I’ll fight him with all my heart.” Here, then, were all the three forces above mentioned, including that of the political sanction, acting upon him at once. By the political sanction, or at least so much of the force of it as such a mandate, from such a sovereign, issued on such an occasion, might be supposed to carry with it, he was enjoined to put Coligny to death in the way of assassination: by the religious sanction, that is, by the dictates of religious zeal, he was enjoined to put him to death in any way: by the moral sanction, or in other words, by the dictates of honour, that is, of the love of reputation, he was permitted (which permission, when coupled with the mandates of his sovereign, operated, he conceived, as an injunction) to fight the adversary upon equal terms: by the dictates of enlarged benevolence (supposing the mandate to be unjustifiable) he was enjoined not to attempt his life in any way, but to remain at peace with him: supposing the mandate to be unjustifiable, by the dictates of private benevolence he was enjoined not to meddle with him at any rate. Among this confusion of repugnant dictates, Crillon, it seems, gave the preference, in the first place, to those of honour: in the next place, to those of benevolence. He would have fought, had his offer been accepted: as it was not, he remained at peace.

Here a multitude of questions might arise. Supposing the dictates of the political sanction to follow the mandate of the sovereign, of what kind were the motives which they afforded him for compliance? The answer is, of the self-regarding kind at any rate: inasmuch as, by the supposition, it was in the power of the sovereign to punish him for non-compliance, or reward him for compliance. Did they afford him the motive of religion? (I mean independently of the circumstance of heresy above mentioned.) The answer is, Yes, if his notion was, that it was God’s pleasure he should comply with them: No, if it was not. Did they afford him the motive of the love of reputation? Yes, if it was his notion that the world would expect and require that he should comply with them. No, if it was not. Did they afford him that of benevolence? Yes, if it was his notion Edition: current; Page: [60] that the community would, upon the whole be the better for his complying with them. No, if it was not. But did the dictates of the political sanction, in the case in question, actually follow the mandates of the sovereign; in other words, was such a mandate legal? This, we see, is a mere question of local jurisprudence, altogether foreign to the present purpose.

XLVI.

What is here said about the goodness and badness of motives, is far from being a mere matter of words. There will be occasion to make use of it hereafter for various important purposes. I shall have need of it for the sake of dissipating various prejudices, which are of disservice to the community, sometimes by cherishing the flame of civil dissensions,* at other times by obstructing the course of justice. It will be shown, that in the case of many offences, the consideration of the motive is a most material one: for that, in the first place, it makes a very material difference in the magnitude of the mischief. in the next place, that it is easy to be ascertained; and thence may be made a ground for a difference in the demand for punishment: but that in other cases it is altogether incapable of being ascertained; and that, were it capable of being ever so well ascertained, good or bad, it could make no difference in the demand for punishment: that in all cases, the motive that may happen to govern a prosecutor is a consideration totally immaterial: whence may be seen the mischievousness of the prejudice that is so apt to be entertained against informers; and the consequence it is of that the judge, in particular, should be proof against the influence of such delusions.

Lastly, the subject of motives is one with which it is necessary to be acquainted, in order to pass a judgment on any means that may be proposed for combating offences in their source.

But before the theoretical foundation for these practical observations can be completely laid, it is necessary we should say something on the subject of disposition: which, accordingly, will furnish matter for the ensuing chapter.

CHAPTER XI.: OF HUMAN DISPOSITIONS IN GENERAL.

I.

In the foregoing chapter it has been shown at large, that goodness or badness cannot, with any propriety, be predicated of motives. Is there nothing, then, about a man that can properly be termed good or bad, when, on such or such an occasion, he suffers himself to be governed by such or such a motive? Yes, certainly: his disposition. Now disposition is a kind of fictitious entity, feigned for the convenience of discourse, in order to express what there is supposed to be permanent in a man’s frame of mind, where, on such or such an occasion, he has been influenced by such or such a motive, to engage in an act, which, as it appeared to him, was of such or such a tendency.

II.

It is with disposition as with every thing else: it will be good or bad according to its effects; according to the effects it has in augmenting or diminishing the happiness of the community. A man’s disposition may accordingly be considered in two points of view: according to the influence it has, either, 1. On his own happiness: or, 2. On the happiness of others. Viewed in both these lights together, or in either of them indiscriminately, it may be termed, on the one hand, good; on the other, bad; or, in flagrant cases, depraved.§ Viewed in the former of these lights, it has scarcely any peculiar name which has as yet been appropriated to it. It might be termed, though but inexpressively, frail or infirm, on the one hand: sound or firm, on the other. Viewed in the other light, it might be termed beneficent or meritorious, on the one hand: pernicious or mischievous, on the other. Now of that branch of a man’s disposition, the effects of which regard in the first instance only himself, there needs not much to be said here. To reform it when bad, is the business rather of the moralist than the legislator: nor is it susceptible of those various modifications which make so material a difference in the effects of the other. Again, with respect to that part of it, the effects whereof regard others in the first instance, it is only in as far as it is of a mischievous nature that the penal branch of law has any immediate concern with it: in as far Edition: current; Page: [61] as it may be of a beneficent nature, it belongs to a hitherto but little cultivated, and as yet unnamed branch of law, which might be styled the remuneratory.

III.

A man, then, is said to be of a mischievous disposition, when, by the influence of no matter what motives, he is presumed to be more apt to engage, or form intentions of engaging, in acts which are apparently of a pernicious tendency, than in such as are apparently of a beneficial tendency: of a meritorious or beneficent disposition, in the opposite case.

IV.

I say presumed: for, by the supposition, all that appears is one single action, attended with one single train of circumstances: but from that degree of consistency and uniformity which experience has shown to be observable in the different actions of the same person, the probable existence (past or future) of a number of acts of a similar nature is naturally and justly inferred from the observation of one single one. Under such circumstances, such as the motive proves to be in one instance, such is the disposition to be presumed to be in others.

V.

I say apparently mischievous; that is, apparently with regard to him; such as to him appear to possess that tendency: for from the mere event, independent of what to him it appears beforehand likely to be, nothing can be inferred on either side. If to him it appears likely to be mischievous, in such case, though in the upshot it should prove innocent, or even beneficial, it makes no difference; there is not the less reason for presuming his disposition to be a bad one: if to him to appears likely to be beneficial or innocent, in such case, though in the upshot it should prove pernicious, there is not the more reason on that account for presuming his disposition to be a good one. And here we see the importance of the circumstances of intentionality,* consciousness, unconsciousness, and mis-supposal.

VI.

The truth of these positions depends upon two others, both of them sufficiently verified by experience: The one is, that in the ordinary course of things the consequences of actions commonly turn out conformable to intentions. A man who sets up a butcher’s shop, and deals in beef, when he intends to knock down an ox, commonly does knock down an ox; though by some unlucky accident he may chance to miss his blow and knock down a man: he who sets up a grocer’s shop, and deals in sugar, when he intends to sell sugar, commonly does sell sugar; though by some unlucky accident he may chance to sell arsenic in the room of it.

VII.

The other is, that a man who entertains intentions of doing mischief at one time is apt to entertain the like intentions at another.

VIII.

There are two circumstances upon which the nature of the disposition, as indicated by any act, is liable to depend: 1. The apparent tendency of the act: 2. The nature of the motive which gave birth to it. This dependency is subject to different rules, according to the nature of the motive. In stating them, I suppose all along the apparent tendency of the act to be, as it commonly is, the same as the real.

IX.

1. Where the tendency of the act is good, and the motive is of the self-regarding kind. In this case, the motive affords no inference on either side. It affords no indication of a good disposition: but neither does it afford any indication of a bad one.

A baker sells his bread to a hungry man who asks for it. This, we see, is one of those acts of which, in ordinary cases, the tendency is unquestionably good. The baker’s motive is the ordinary commercial motive of pecuniary interest. It is plain, that there is nothing in the transaction, thus stated, that can afford the least ground for presuming that the baker is a better or a worse man than any of his neighbours.

X.

2. Where the tendency of the act is bad, and the motive, as before, is of the self-regarding kind. In this case, the disposition indicated is a mischievous one.

A man steals bread out of a baker’s shop: this is one of those acts of which the tendency will readily be acknowledged to be bad. Why, and in what respects it is so, will be stated farther on. His motive, we will say, is that of pecuniary interest; the desire of getting the value of the bread for nothing. His disposition, accordingly, appears to be a bad one: for every one will allow a thievish disposition to be a bad one.

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XI.

3. Where the tendency of the act is good, and the motive is the purely social one of good-will. In this case the disposition indicated is a beneficent one.

A baker gives a poor man a loaf of bread. His motive is compassion; a name given to the motive of benevolence, in particular cases of its operation. The disposition indicated by the baker, in this case, is such as every man will be ready enough to acknowledge to be a good one.

XII.

4. Where the tendency of the act is bad, and the motive is the purely social one of good-will. Even in this case, the disposition which the motive indicates is dubious: it may be a mischievous or a meritorious one, as it happens; according as the mischievousness of the act is more or less apparent.

XIII.

It may be thought, that a case of this sort cannot exist; and that to suppose it, is a contradiction in terms. For the act is one which, by the supposition, the agent knows to be a mischievous one. How, then, can it be, that good-will, that is, the desire of doing good, could have been the motive that led him into it? To reconcile this, we must advert to the distinction between enlarged benevolence and confined.* The motive that led him into it, was that of confined benevolence. Had he followed the dictates of enlarged benevolence, he would not have done what he did. Now, although he followed the dictates of that branch of benevolence, which in any single instance of its exertion is mischievous, when opposed to the other, yet, as the cases which call for the exertion of the former are, beyond comparison, more numerous than those which call for the exertion of the latter, the disposition indicated by him, in following the impulse of the former, will often be such as in a man, of the common run of men, may be allowed to be a good one upon the whole.

XIV.

A man with a numerous family of children, on the point of starving, goes into a baker’s shop, steals a loaf, divides it all among the children, reserving none of it for himself. It will be hard to infer that that man’s disposition is a mischievous one upon the whole. Alter the case: give him but one child, and that hungry perhaps, but in no imminent danger of starving: and now let the man set fire to a house full of people, for the sake of stealing money out of it to buy the bread with. The disposition here indicated will hardly be looked upon as a good one.

XV.

Another case will appear more difficult to decide than either. Ravaillac assassinated one of the best and wisest of sovereigns, at a time when a good and wise sovereign, a blessing at all times so valuable to a state, was particularly precious; and that to the inhabitants of a populous and extensive empire. He is taken, and doomed to the most excruciating tortures. His son, well persuaded of his being a sincere penitent, and that mankind, in case of his being at large, would have nothing more to fear from him, effectuates his escape: Is this, then, a sign of a good disposition in the son, or of a bad one? Perhaps some will answer, of a bad one; for, besides the interest which the nation has in the sufferings of such a criminal, on the score of the example, the future good behaviour of such a criminal is more than any one can have sufficient ground to be persuaded of.

XVI.

Well, then, let Ravaillac, the son, not facilitate his father’s escape; but content himself with conveying poison to him, that at the price of an easier death he may escape his torments. The decision will now, perhaps, be more difficult. The act is a wrong one, let it be allowed, and such as ought by all means to be punished: but is the disposition manifested by it a bad one? Because the young man breaks the laws in this one instance, is it probable, that if let alone, he would break the laws in ordinary instances, for the satisfaction of any inordidate desires of his own? The answer of most men would probably be in the negative.

XVII.

5. Where the tendency of the act is good, and the motive is a semi-social one, the love of reputation. In this case, the disposition indicated is a good one.

In a time of scarcity, a baker, for the sake of gaining the esteem of the neighbourhood, distributes bread gratis among the industrious poor. Let this be taken for granted: and let it be allowed to be a matter of uncertainty, whether he had any real feeling for the sufferings of those whom he has relieved, or no. His disposition, for all that, cannot, with any pretence of reason, be termed otherwise than a good and beneficent one. It can only be in consequence of some very idle prejudice, if it receives a different name.

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XVIII.

6. Where the tendency of the act is bad, and the motive, as before, is a semi-social one, the love of reputation. In this case, the disposition which it indicates is more or less good or bad: in the first place, according as the tendency of the act is more or less mischievous: in the next place, according as the dictates of the moral sanction, in the society in question, approach more or less to a coincidence with those of utility. It does not seem probable, that in any nation, which is in a state of tolerable civilization, in short, in any nation in which such rules as these can come to be consulted, the dictates of the moral sanction will so far recede from a coincidence with those of utility (that is, of enlightened benevolence) that the disposition indicated in this case can be otherwise than a good one upon the whole.

XIX.

An Indian receives an injury, real or imaginary, from an Indian of another tribe. He revenges it upon the person of his antagonist with the most excruciating torments: the case being, that cruelties inflicted on such an occasion gain him reputation in his own tribe. The disposition manifested in such a case can never be deemed a good one, among a people ever so few degrees advanced, in point of civilization, above the Indians.

XX.

A nobleman (to come back to Europe) contracts a debt with a poor tradesman. The same nobleman, presently afterwards, contracts a debt, to the same amount, to another nobleman, at play. He is unable to pay both: he pays the whole debt to the companion of his amusements, and no part of it to the tradesman. The disposition manifested in this case can scarcely be termed otherwise than a bad one. It is certainly, however, not so bad as if he had paid neither. The principle of love of reputation, or (as it is called in the case of this partial application of it) honour, is here opposed to the worthier principle of benevolence, and gets the better of it. But it gets the better also of the self-regarding principle of pecuniary interest. The disposition, therefore, which it indicates, although not so good a one as that in which the principle of benevolence predominates, is better than one in which the principle of self-interest predominates. He would be the better for having more benevolence: but would he be the better for having no honour? This seems to admit of great dispute.*

XXI.

7. Where the tendency of the act is good, and the motive is the semi-social one of religion. In this case, the disposition indicated by it (considered with respect to the influence of it on the man’s conduct towards others) is manifestly a beneficent and meritorious one.

A baker distributes bread gratis among the industrious poor. It is not that he feels for their distresses: nor is it for the sake of gaining reputation among his neighbours. It is for the sake of gaining the favour of the Deity; to whom, he takes for granted, such conduct will be acceptable. The disposition manifested by such conduct is plainly what every man would call a good one.

XXII.

8. Where the tendency of the act is bad, and the motive is that of religion, as before. In this case the disposition is dubious. It is good or bad, and more or less good or bad, in the first place, as the tendency of the act is more or less mischievous; in the next place, according as the religious tenets of the person in question approach more or less to a coincidence with the dictates of utility.

XXIII.

It should seem from history, that even in nations in a tolerable state of civilization in other respects, the dictates of religion have been found so far to recede from a coincidence with those of utility; in other words, from those of enlightened benevolence; that the disposition indicated in this case may even be a bad one upon the whole. This, however, is no objection to the inference which it affords of a good disposition in those countries (such as perhaps are most of the countries of Europe at present) in which its dictates respecting the conduct of a man towards other men approach very nearly to a coincidence with those of utility. The dictates of religion, in their application to the conduct of a man in what concerns himself alone, seem in most European nations to savour a good Edition: current; Page: [64] deal of the ascetic principle: but the obedience to such mistaken dictates indicates not any such disposition as is likely to break out into acts of pernicious tendency with respect to others. Instances in which the dictates of religion lead a man into acts which are pernicious in this latter view, seem at present to be but rare: unless it be acts of persecution, or impolitic measures on the part of government, where the law itself is either the principal actor, or an accomplice in the mischief. Ravaillac, instigated by no other motive than this, gave his country one of the most fatal stabs that a country ever received from a single hand: but happily the Ravaillacs are but rare. They have been more frequent, however, in France, than in any other country during the same period: and it is remarkable, that in every instance it is this motive that has produced them. When they do appear, however, nobody, I suppose, but such as themselves, will be for terming a disposition, such as they manifest, a good one. It seems hardly to be denied, but that they are just so much the worse for their notions of religion; and that had they been left to the sole guidance of benevolence, and the love of reputation, without any religion at all, it would have been but so much the better for mankind. One may say nearly the same thing, perhaps, of those persons who, without any particular obligation, have taken an active part in the execution of laws made for the punishment of those who have the misfortune to differ with the magistrate in matters of religion, much more of the legislator himself, who has put it in their power. If Louis XIV, had had no religion, France would not have lost 800,000 of its most valuable subjects. The same thing may be said of the authors of the wars called holy ones; whether waged against persons called Infidels, or persons branded with the still more odious name of Heretics. In Denmark, not a great many years ago, a a sect is said to have arisen, who by a strange perversion of reason took it into their heads, that, by leading to repentance, murder, or any other horrid crime, might be made the road to heaven. It should all along, however, be observed, that instances of this latter kind were always rare; and that, in almost all the countries of Europe, instances of the former kind, though once abundantly frequent, have for some time ceased. In certain countries, however, persecution at home (or what produces a degree of restraint, which is one part of the mischiefs of persecution; I mean the disposition to persecute whensoever occasion happens) is not yet at an end: insomuch that if there is no actual persecution, it is only because there are no heretics; and if there are no heretics, it is only because there are no thinkers.*

XXIV.

9. Where the tendency of the act is good, and the motive (as before) is the dissocial one of ill-will. In this case, the motive seems not to afford any indication on either side: it is no indication of a good disposition; but neither is it any indication of a bad one.

You have detected a baker in selling short weight: you prosecute him for the cheat. It is not for the sake of gain that you engaged in the prosecution; for there is nothing to be got by it: it is not from public spirit: it is not for the sake of reputation; for there is no reputation to be got by it: it is not in the view of pleasing the Deity: it is merely on account of a quarrel you have with the man you prosecute. From the transaction, as thus stated, there does not seem to be any thing to be said either in favour of your disposition or against it. The tendency of the act is good: but you would not have engaged in it, had it not been from a motive which there seems no particular reason to conclude will ever prompt you to engage in an act of the same kind again. Your motive is of that sort which may, with least impropriety, be termed a bad one: but the act is of that sort, which, were it engaged in ever so often, could never have any evil tendency; nor indeed any other tendency than a good one. By the supposition, the motive it happened to be dictated by was that of ill-will: but the act itself is of such a nature as to have wanted nothing but sufficient discernment on your part in order to have been dictated by the most enlarged benevolence. Now, from a man’s having suffered himself to be induced to gratify his resentment by means of an act of which the tendency is good, it by no means follows that he would be ready on another occasion, through the influence of the same sort of motive, to engage in any act of which the tendency is a bad one. The motive that impelled you was a dissocial one: but what social motive could there have been to restrain you? None, but what might have been outweighed by a more enlarged motive of the same kind. Now, because the dissocial motive prevailed when it stood alone, it by no means follows that it would prevail when it had a social one to combat it.

XXV.

10. Where the tendency of the act is bad, and the motive is the dissocial one of malevolence. In this case, the disposition it indicates is of course a mischievous one.

The man who stole the bread from the baker, as before, did it with no other view than merely to impoverish and afflict him: accordingly, when he had got the bread, he did not eat, or sell it; but destroyed it. That the disposition, evidenced by such a transaction, is a bad one, is what every body must perceive immediately.

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XXVI.

Thus much with respect to the circumstances from which the mischievousness or meritoriousness of a man’s disposition is to be inferred in the gross: we come now to the measure of that mischievousness or meritoriousness, as resulting from those circumstances. Now with meritorious acts and dispositions we have no direct concern in the present work. All that penal law is concerned to do, is to measure the depravity of the disposition where the act is mischievous. To this object, therefore, we shall here confine ourselves.

XXVII.

It is evident, that the nature of a man’s disposition must depend upon the nature of the motives he is apt to be influenced by; in other words, upon the degree of his sensibility to the force of such and such motives. For his disposition is, as it were, the sum of his intentions: the disposition he is of during a certain period, the sum or result of his intentions during that period. If, of the acts he has been intending to engage in during the supposed period, those which are apparently of a mischievous tendency bear a large proportion to those which appear to him to be of the contrary tendency, his disposition will be of the mischievous cast: if but a small proportion, of the innocent or upright.

XXVIII.

Now intentions, like every thing else, are produced by the things that are their causes: and the causes of intentions are motives. If, on any occasion, a man forms either a good or a bad intention, it must be by the influence of some motive.

XXIX.

When the act, which a motive prompts a man to engage in, is of a mischievous nature, it may, for distinction’s sake, be termed a seducing or corrupting motive: in which case also any motive which, in opposition to the former, acts in the character of a restraining motive, may be styled a tutelary, conservatory, preservatory, or preserving motive.

XXX.

Tutelary motives may again be distinguished into standing or constant, and occasional. By standing tutelary motives, I mean such as act with more or less force in all, or at least in most cases, tending to restrain a man from any mischievous acts he may be prompted to engage in; and that with a force which depends upon the general nature of the act, rather than upon any accidental circumstance with which any individual act of that sort may happen to be accompanied. By occasional tutelary motives, I mean such motives as may chance to act in this direction or not, according to the nature of the act, and of the particular occasion on which the engaging in it is brought into contemplation.

XXXI.

Now it has been shown, that there is no sort of motive by which a man may not be prompted to engage in acts that are of a mischievous nature; that is, which may not come to act in the capacity of a seducing motive. It has been shown, on the other hand, that there are some motives which are remarkably less likely to operate in this way than others. It has also been shown, that the least likely of all is that of benevolence or good-will: the most common tendency of which, it has been shown, is to act in the character of a tutelary motive. It has also been shown, that even when by accident it acts in one way in the character of a seducing motive, still in another way it acts in the opposite character of a tutelary one. The motive of good-will, in as far as it respects the interests of one set of persons, may prompt a man to engage in acts which are productive of mischief to another and more extensive set: but this is only because his good-will is imperfect and confined; not taking into contemplation the interests of all the persons whose interests are at stake. The same motive, were the affection it issued from more enlarged, would operate effectually, in the character of a constraining motive, against that very act to which, by the supposition, it gives birth. This same sort of motive may therefore, without any real contradiction or deviation from truth, be ranked in the number of standing tutelary motives, notwithstanding the occasions in which it may act at the same time in the character of a seducing one.

XXXII.

The same observation, nearly, may be applied to the semi-social motive of love of reputation. The force of this, like that of the former, is liable to be divided against itself. As in the case of good-will, the interests of some of the persons, who may be the objects of that sentiment, are liable to be at variance with those of others: so in the case of love of reputation, the sentiments of some of the persons, whose good opinion is desired, may be at variance with the sentiments of other persons of that number. Now in the case of an act, which is really of a mischievous nature, it can scarcely happen that there shall be no persons whatever who will look upon it with an eye of disapprobation. It can scarcely ever happen, therefore, that an act really mischievous shall not have some part at least, if not the whole, of the force of this motive to oppose it; nor, therefore, that this motive should not act with some degree of force in the character of a tutelary motive. Edition: current; Page: [66] This, therefore, may be set down as another article in the catalogue of standing tutelary motives.

XXXIII.

The same observation may be applied to the desire of amity, though not in altogether equal measure. For, notwithstanding the mischievousness of an act, it may happen, without much difficulty, that all the persons for whose amity a man entertains any particular present desire which is accompanied with expectation, may concur in regarding it with an eye rather of approbation than the contrary. This is but too apt to be the case among such fraternities as those of thieves, smugglers, and many other denominations of offenders. This, however, is not constantly, nor indeed most commonly the case; insomuch that the desire of amity may still be regarded, upon the whole, as a tutelary motive, were it only from the closeness of its connexion with the love of reputation. And it may be ranked among standing tutelary motives, since, where it does apply, the force with which it acts depends not upon the occasional circumstances of the act which it opposes, but upon principles as general as those upon which depend the action of the other semi-social motives.

XXXIV.

The motive of religion is not altogether in the same case with the three former. The force of it is not, like theirs, liable to be divided against itself; I mean in the civilized nations of modern times, among whom the notion of the unity of the Godhead is universal. In times of classical antiquity it was otherwise. If a man got Venus on his side, Pallas was on the other: if Æolus was for him, Neptune was against him. Æneas, with all his piety, had but a partial interest at the court of heaven. That matter stands upon a different footing now-a-days. In any given person, the force of religion, whatever it be, is now all of it on one side. It may balance, indeed, on which side it shall declare itself: and it may declare itself, as we have seen already in but too many instances, on the wrong as well as on the right. It has been, at least till lately, perhaps is still accustomed so much to declare itself on the wrong side, and that in such material instances, that on that account it seemed not proper to place it, in point of social tendency, on a level altogether with the motive of benevolence. Where it does act, however, as it does in by far the greatest number of cases, in opposition to the ordinary seducing motives, it acts, like the motive of benevolence, in an uniform manner, not depending upon the particular circumstances that may attend the commission of the act; but tending to oppose it, merely on account of its mischievousness, and therefore with equal force, in whatsoever circumstances it may be proposed to be committed. This, therefore, may also be added to the catalogue of standing tutelary motives.

XXXV.

As to the motives which may operate occasionally in the character of tutelary motives, these, it has been already intimated, are of various sorts, and various degrees of strength in various offences: depending not only upon the nature of the offence, but upon the accidental circumstances in which the idea of engaging in it may come in contemplation. Nor is there any sort of motive which may not come to operate in this chaacter; as may be easily conceived. A thief, for instance, may be prevented from engaging in a projected scheme of house-breaking, by sitting too long over his bottle,* by a visit from his doxy, by the occasion he may have to go elsewhere, in order to receive his dividend of a former booty; and so on.

XXXVI.

There are some motives, however, which seem more apt to act in this character than others; especially as things are now constituted, now that the law has every where opposed to the force of the principal seducing motives, artificial tutelary motives of its own creation. Of the motives here meant it will be necessary to take a general view. They seem to be reducible to two heads, viz. 1. The love of ease; a motive put into action by the prospect of the trouble of the attempt; that is, the trouble which it may be necessary to bestow in overcoming the physical difficulties that may accompany it. 2. Self-preservation, as opposed to the dangers to which a man may be exposed in the prosecution of it.

XXXVII.

These dangers may be either, 1. Of a purely physical nature: or, 2. Dangers resulting from moral agency; in other words, from the conduct of any such persons to whom the act, if known, may be expected to prove obnoxious. But moral agency supposes knowledge with respect to the circumstances that are to have the effect of external motives in giving birth to it. Now the obtaining such knowledge, with respect to the commission of any obnoxious act, on the part of any persons who may be disposed to make the agent suffer for it, is called detection, and the agent concerning whom such knowledge is obtained, is said to be detected. The dangers, therefore, which may threaten an offender from this quarter, depend, whatever they be, on the event of his detection; and may, therefore, be all of them comprised under the article of the danger of detection.

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XXXVIII.

The danger depending upon detection may be divided again into two branches: 1. That which may result from any opposition that may be made to the enterprise by persons on the spot; that is, at the very time the enterprise is carrying on: 2. That which respects the legal punishment, or other suffering, that may await at a distance upon the issue of the enterprise.

XXXIX.

It may be worth calling to mind on this occasion, that among the tutelary motives, which have been styled constant ones, there are two, of which the force depends (though not so entirely as the force of the occasional ones which have been just mentioned, yet in a great measure) upon the circumstance of detection. These, it may be remembered, are, the love of reputation, and the desire of amity. In proportion, therefore, as the chance of being detected appears greater, these motives will apply with the greater force: with the less force, as it appears less. This is not the case with the two other standing tutelary motives, that of benevolence, and that of religion.

XL.

We are now in a condition to determine, with some degree of precision, what is to be understood by the strength of a temptation, and what indication it may give of the degree of mischievousness in a man’s disposition in the case of any offence. When a man is prompted to engage in any mischievous act, we will say, for shortness, in an offence, the strength of the temptation depends upon the ratio between the force of the seducing motives on the one hand, and such of the occasional tutelary ones, as the circumstances of the case call forth into action, on the other. The temptation, then, may be said to be strong, when the pleasure or advantage to be got from the crime is such as in the eyes of the offender must appear great in comparison of the trouble and danger that appear to him to accompany the enterprise: slight or weak, when that pleasure or advantage is such as must appear small in comparison of such trouble and such danger. It is plain, the strength of the temptation depends not upon the force of the impelling (that is, of the seducing) motives altogether: for let the opportunity be more favourable, that is, let the trouble, or any branch of the danger, be made less than before, it will be acknowledged, that the temptation is made so much the stronger: and on the other hand, let the opportunity become less favourable, or, in other words, let the trouble, or any branch of the danger, be made greater than before, the temptation will be so much the weaker.

Now, after taking account of such tutelary motives as have been styled occasional, the only tutelary motives that can remain are those which have been termed standing ones. But those which have been termed the standing tutelary motives, are the same that we have been styling social. It follows, therefore, that the strength of the temptation, in any case, after deducting the force of the social motives, is as the sum of the forces of the seducing, to the sum of the forces of the occasional tutelary motives.

XLI.

It remains to be inquired, what indication concerning the mischievousness or depravity of a man’s disposition is afforded by the strength of the temptation, in the case where any offence happens to have been committed. It appears, then, that the weaker the temptation is, by which a man has been overcome, the more depraved and mischievous it shows his disposition to have been. For the goodness of his disposition is measured by the degree of his sensibility to the action of the social motives:* in other words, by the strength of the influence which those motives have over him. Now, the less considerable the force is by which their influence on him has been overcome, the more convincing is the proof that has been given of the weakness of that influence.

Again, the degree of a man’s sensibility to the force of the social motives being given, it is plain that the force with which those motives tend to restrain him from engaging in any mischievous enterprise will be as the apparent mischievousness of such enterprise, that is, as the degree of mischief with which it appears to him likely to be attended. In other words, the less mischievous the offence appears to him to be, the less averse he will be, as far as he is guided by social considerations, to engage in it: the more mischievous, the more averse. If, then, the nature of the offence is such as must appear to him highly mischievous, and yet he engages in it notwithstanding, it shows, that the degree of his sensibility to the force of the social motives is but slight; and consequently that his disposition is proportionably depraved. Moreover, the less the strength of the temptation was, the more pernicious and depraved does it show his disposition to have been. For the less the strength of the temptation was, the less was the force which the influence of those motives had to overcome: the clearer, therefore, is the proof that has been given of the weakness of that influence.

XLII.

From what has been said, it seems that, for judging of the indication that is afforded concerning the depravity of a man’s disposition by the strength of the temptation, compared with the mischievousness of the enterprise, the following rules may be laid down:

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Rule 1. The strength of the temptation being given, the mischievousness of the disposition manifested by the enterprise, is as the apparent mischievousness of the act.

Thus, it would show a more depraved disposition, to murder a man for a reward of a guinea, or falsely to charge him with a robbery for the same reward, than to obtain the same sum from him by simple theft: the trouble he would have to take, and the risk he would have to run, being supposed to stand on the same footing in the one case as in the other.

Rule 2. The apparent mischievousness of the act being given, a man’s disposition is the more depraved, the slighter the temptation is by which he has been overcome.

Thus, it shows a more depraved and dangerous disposition, if a man kill another out of mere sport, as the Emperor of Morocco, Muley Mahomet, is said to have done great numbers; than out of revenge, as Sylla and Marius did thousands; or in the view of self-preservation, as Augustus killed many; or even for lucre, as the same Emperor is said to have killed some. And the effects of such a depravity, on that part of the public which is apprized of it, run in the same proportion. From Augustus, some persons only had to fear, under some particular circumstances: from Muley Mahomet, every man had to fear at all times.

Rule 3. The apparent mischievousness of the act being given, the evidence which it affords of the depravity of a man’s disposition is the less conclusive, the stronger the temptation is by which he has been overcome.

Thus, if a poor man, who is ready to die with hunger, steal a loaf of bread, it is a less explicit sign of depravity, than if a rich man were to commit a theft to the same amount. It will be observed, that in this rule all that is said is, that the evidence of depravity is in this case the less conclusive: it is not said that the depravity is positively the less. For in this case it is possible, for any thing that appears to the contrary, that the theft might have been committed, even had the temptation been not so strong. In this case, the alleviating circumstance is only a matter of presumption; in the former, the aggravating circumstance is a matter of certainty.

Rule 4. Where the motive is of the dissocial kind, the apparent mischievousness of the act, and the strength of the temptation, being given, the depravity is as the degree of deliberation with which it is accompanied.

For in every man, be his disposition ever so depraved, the social motives are those which, wherever the self-regarding ones stand neuter, regulate and determine the general tenor of his life. If the dissocial motives are put in action, it is only in particular circumstances, and on particular occasions; the gentle but constant force of the social motives being for a while subdued. The general and standing bias of every man’s nature is, therefore, towards that side to which the force of the social motives would determine him to adhere. This being the case, the force of the social motives tends continually to put an end to that of the dissocial ones; as, in natural bodies, the force of friction tends to put an end to that which is generated by impulse. Time, then, which wears away the force of the dissocial motives, adds to that of the social. The longer, therefore, a man continues, on a given occasion, under the dominion of the dissocial motives, the more convincing is the proof that has been given of his insensibility to the force of the social ones.

Thus, it shows a worse disposition, where a man lays a deliberate plan for beating his antagonist, and beats him accordingly, than if he were to beat him upon the spot, in consequence of a sudden quarrel: and worse again, if, after having had him a long while together in his power, he beats him at intervals, and at his leisure.*

XLIII.

The depravity of disposition indicated by an act is a material consideration in several respects. Any mark of extraordinary depravity, by adding to the terror already inspired by the crime, and by holding up the offender as a person from whom there may be more mischief to be apprehended in future, adds in that way to the demand for punishment. By indicating a general want of sensibility on the part of the offender, it may add in another way also to the demand for punishment. The article of disposition is of the more importance, inasmuch as, in measuring out the quantum of punishment, the principle of sympathy and antipathy is apt to look at nothing else. A man who punishes because he hates, and only because he hates, such a man, when he does not find any thing odious in the disposition, is not for punishing at all; and when he does, he is not for carrying the punishment further than his hatred carries him. Hence the aversion we find so frequently expressed against the maxim, that the punishment must rise with the strength of the temptation; a maxim, the contrary of which, as we shall see, would be as cruel to offenders themselves, as it would be subversive of the purposes of punishment.

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CHAPTER XII.: OF THE CONSEQUENCES OF A MISCHIEVOUS ACT.

§ 1.: Shapes in which the Mischief of an Act may show itself.

I.

Hitherto we have been speaking of the various articles or objects on which the consequences or tendency of an act may depend: of the bare act itself: of the circumstances it may have been, or may have been supposed to be, accompanied with: of the consciousness a man may have had with respect to any such circumstances: of the intentions that may have preceded the act: of the motives that may have given birth to those intentions: and of the disposition that may have been indicated by the connexion between such intentions and such motives. We now come to speak of consequences or tendency: an article which forms the concluding link in all this chain of causes and effects, involving in it the materiality of the whole. Now, such part of this tendency as is of a mischievous nature, is all that we have any direct concern with; to that, therefore, we shall here confine ourselves.

II.

The tendency of an act is mischievous when the consequences of it are mischievous; that is to say, either the certain consequences or the probable. The consequences, how many and whatsoever they may be, of an act, of which the tendency is mischievous, may, such of them as are mischievous, be conceived to constitute one aggregate body, which may be termed the mischief of the act.

III.

This mischief may frequently be distinguished, as it were, into two shares or parcels: the one containing what may be called the primary mischief; the other, what may be called the secondary. That share may be termed the primary, which is sustained by an assignable individual, or a multitude of assignable individuals. That share may be termed the secondary, which, taking its origin from the former, extends itself either over the whole community, or over some other multitude of unassignable individuals.

IV.

The primary mischief of an act may again be distinguished into two branches: 1. The original: and, 2. The derivative. By the original branch, I mean that which alights upon and is confined to any person who is a sufferer in the first instance, and on his own account; the person, for instance, who is beaten, robbed, or murdered. By the derivative branch, I mean any share of mischief which may befal any other assignable persons in consequence of his being a sufferer, and no otherwise. These persons must, of course, be persons who, in some way or other, are connected with him. Now, the ways in which one person may be connected with another, have been already seen: they may be connected in the way of interest (meaning self-regarding interest) or merely in the way of sympathy. And again, persons connected with a given person, in the way of interest, may be connected with him either by affording support to him, or by deriving it from him.*

V.

The secondary mischief, again, may frequently be seen to consist of two other shares or parcels: the first consisting of pain; the other of danger. The pain which it produces is a pain of apprehension; a pain grounded on the apprehension of suffering such mischiefs or inconveniences, whatever they may be, as it is the nature of the primary mischief to produce. It may be styled, in one word, the alarm. The danger is the chance, whatever it may be, which the multitude it concerns may, in consequence of the primary mischief, stand exposed to, of suffering such mischiefs or inconveniences. For danger is nothing but the chance of pain, or, what comes to the same thing, of loss of pleasure.

VI.

An example may serve to make this clear. A man attacks you on the road, and robs you. You suffer a pain on the occasion of losing so much money: you also suffered a pain at the thoughts of the personal ill-treatment you apprehended he might give you, in case of your not happening to satisfy his demands. These together constitute the original branch of the primary mischief, resulting from the act of robbery. A creditor of your’s, who expected you to pay him with part of that money, and a son of your’s, who expected you to have given him another part, are in consequence disappointed. You are obliged to have recourse to the bounty of your father, to make good part of the deficiency. These mischiefs together make up the derivative branch. The report of this robbery circulates from hand to hand, and spreads itself in the neighbourhood. It finds its way into the newspapers, and is propagated over the whole country. Various people, on this occasion, call to mind the danger which they and their friends, as it appears from this example, stand exposed to in travelling; especially such as may have occasion to travel the same road. On this occasion they naturally feel a certain degree of pain: slighter Edition: current; Page: [70] or heavier, according to the degree of ill-treatment they may understand you to have received; the frequency of the occasion each person may have to travel in that same road, or its neighbourhood; the vicinity of each person to the spot; his personal courage; the quantity of money he may have occasion to carry about with him; and a variety of other circumstances. This constitutes the first part of the secondary mischief, resulting from the act of robbery; viz. the alarm. But people of one description or other, not only are disposed to conceive themselves to incur a chance of being robbed, in consequence of the robbery committed upon you, but (as will be shown presently) they do really incur such a chance. And it is this chance which constitutes the remaining part of the secondary mischief of the act of robbery; viz. the danger.

VII.

Let us see what this chance amounts to; and whence it comes. How is it, for instance, that one robbery can contribute to produce another? In the first place, it is certain that it cannot create any direct motive. A motive must be the prospect of some pleasure, or other advantage, to be enjoyed in future: but the robbery in question is past: nor would it furnish any such prospect were it to come; for it is not one robbery that will furnish pleasure to him who may be about to commit another robbery. The consideration that is to operate upon a man, as a motive or inducement to commit a robbery, must be the idea of the pleasure he expects to derive from the fruits of that very robbery: but this pleasure exists independently of any other robbery.

VIII.

The means, then, by which one robbery tends, as it should seem, to produce another robbery, are two: 1. By suggesting to a person exposed to the temptation, the idea of committing such another robbery (accompanied, perhaps, with the belief of its facility.) In this case the influence it exerts applies itself, in the first place, to the understanding. 2. By weakening the force of the tutelary motives which tend to restrain him from such an action, and thereby adding to the strength of the temptation.* In this case the influence applies itself to the will. These forces are, 1. The motive of benevolence, which acts as a branch of the physical sanction. 2. The motive of self-preservation, as against the punishment that may stand provided by the political sanction. 3. The fear of shame; a motive belonging to the moral sanction. 4. The fear of the divine displeasure; a motive belonging to the religious sanction. On the first and last of these forces it has, perhaps, no influence worth insisting on; but it has on the other two.

IX.

The way in which a past robbery may weaken the force with which the political sanction tends to prevent a future robbery, may be thus conceived. The way in which this sanction tends to prevent a robbery, is by denouncing some particular kind of punishment against any who shall be guilty of it: the real value of which punishment will of course be diminished by the real uncertainty: as also, if there be any difference, the apparent value by the apparent uncertainty. Now this uncertainty is proportionably increased by every instance in which a man is known to commit the offence, without undergoing the punishment. This, of course, will be the case with every offence for a certain time; in short, until the punishment allotted to it takes place. If punishment takes place at last, this branch of the mischief of the offence is then at last, but not till then, put a stop to.

X.

The way in which a past robbery may weaken the force with which the moral sanction tends to prevent a future robbery, may be thus conceived. The way in which the moral sanction tends to prevent a robbery is by holding forth the indignation of mankind as ready to fall upon him who shall be guilty of it. Now this indignation will be the more formidable, according to the number of those who join in it: it will be the less so, the fewer they are who join in it. But there cannot be a stronger way of showing that a man does not join in whatever indignation may be entertained against a practice, than the engaging in it himself. It shows not only that he himself feels no indignation against it, but that it seems to him there is no sufficient reason for apprehending what indignation may be felt against it by others. Accordingly, where robberies are frequent, and unpunished, robberies are committed without shame. It was thus amongst the Grecians formerly. It is thus among the Arabs still.

XI.

In whichever way, then, a past offence tends to pave the way for the commission of a future offence, whether by suggesting the idea of committing it, or by adding to the strength of the temptation, in both cases it Edition: current; Page: [71] may be said to operate by the force or influence of example.

XII.

The two branches of the secondary mischief of an act, the alarm and the danger, must not be confounded: though intimately connected, they are perfectly distinct: either may subsist without the other. The neighbourhood may be alarmed with the report of a robbery, when, in fact, no robbery either has been committed, or is in a way to be committed: a neighbourhood may be on the point of being disturbed by robberies, without knowing any thing of the matter. Accordingly, we shall soon perceive, that some acts produce alarm without danger: others, danger without alarm.

XIII.

As well the danger as the alarm may again be divided, each of them, into two branches: the first, consisting of so much of the alarm or danger as may be apt to result from the future behaviour of the same agent: the second, consisting of so much as may be apt to result from the behaviour of other persons: such others, to wit, as may come to engage in acts of the same sort and tendency.*

XIV.

The distinction between the primary and the secondary consequences of an act, must be carefully attended to. It is so just, that the latter may often be of a directly opposite nature to the former. In some cases, where the primary consequences of the act are attended with a mischief, the secondary consequences may be beneficial, and that to such a degree, as even greatly to outweigh the mischief of the primary. This is the case, for instance, with all acts of punishment, when properly applied. Of these, the primary mischief being never intended to fall but upon such persons as may happen to have committed some act which it is expedient to prevent; the secondary mischief, that is, the alarm and the danger, extends no farther than to such persons as are under temptation to commit it: in which case, in as far as it tends to restrain them from committing such acts, it is of a beneficial nature.

XV.

Thus much with regard to acts that produce positive pain, and that immediately. This case, by reason of its simplicity, seemed the fittest to take the lead. But acts may preduce mischief in various other ways, which, together with those already specified, may all be comprised by the following abridged analysis.

Mischief may admit of a division in any one of three points of view: 1. According to its own nature. 2. According to its cause. 3. According to the person, or other party, who is the object of it. With regard to its nature, it may be either simple or complex: when simple, it may either be positive or negative: positive, consisting of actual pain: negative, consisting of the loss of pleasure. Whether simple or complex, and whether positive or negative, it may be either certain or contingent. When it is negative, it consists of the loss of some benefit or advantage: this benefit may be material in both or either of two ways: 1. By affording actual pleasure: or, 2. By averting pain or danger, which is the chance of pain; that is, by affording security. In as far, then, as the benefit which a mischief tends to avert is productive of security, the tendency of such mischief is to produce insecurity. 2. With regard to its cause, mischief may be produced either by one single action, or not without the concurrence of other actions: if not without the concurrence of other actions, these others may be the actions either of the same person, or of other persons: in either case, they may be either acts of the same kind as that in question, or of other kinds. 3. Lastly, with regard to the party who is the object of the mischief, or, in other words, who is in a way to be affected by it, such party may be either an assignable individual, or assemblage of individuals, or else a multitude of unassignable individuals. When the object is an assignable individual, this individual may either be the person himself, who is the author of the mischief, or some other person. When the individuals, who are the objects of it, are an unassignable multitude, this multitude may be either the whole political community or state, or some subordinate division of it. Now, when the object of the mischief is the author himself, it may be styled self-regarding: when any other party is the object, extra-regarding: when such other party is an individual, it may be styled private: when a subordinate branch of the community, semi-public: when the whole community, public. Here, for the present, we must stop. To pursue the subject through its inferior distinctions, will be the business Edition: current; Page: [72] of the chapter which exhibits the division of offences.*

The cases which have been already illustrated, are those in which the primary mischief is not necessarily otherwise than a simple one, and that positive: present, and therefore certain: producible by a single action, without any necessity of the concurrence of any other action, either on the part of the same agent, or of others; and having for its object an assignable individual, or, by accident, an assemblage of assignable individuals: extra-regarding, therefore, and private. This primary mischief is accompanied by a secondary; the first branch of which is sometimes contingent and sometimes certain, the other never otherwise than contingent: both extra-regarding and semi-public: in other respects, pretty much upon a par with the primary mischief; except that the first branch, viz. the alarm, though inferior in magnitude to the primary, is, in point of extent, and therefore, upon the whole, in point of magnitude, much superior.

XVI.

Two instances more will be sufficient to illustrate the most material of the modifications above exhibited.

A man drinks a certain quantity of liquor, and intoxicates himself. The intoxication in this particular instance does him no sort of harm: or, what comes to the same thing, none that is perceptible. But it is probable, and, indeed, next to certain, that a given number of acts of the same kind would do him a very cons