XII. 10. The pleasures of the memory are the pleasures which, after having enjoyed such and such pleasures, or even in some case 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.
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 results 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 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. 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 offense 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 offense. 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.
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, maybe 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 anywhere in his body. In point of general sensibility, a man who is under the pressure of any bodily indisposition, or, as the 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 no 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 differences 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 stores 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 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 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 antipathetic 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 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 n 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 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 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 yours will
give birth to in the bosom of your friend: and this idea excites again
in yours 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 primeval and constant source of antipathy in a 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 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 coeval 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 a external occurrences that may befall 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 groundwork 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. 5 Many men can command the external appearances of sensibility with very little real feeling. The female sex 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 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 its 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 part, 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 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 antipathetic 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 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 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 offense.. 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, maybe 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 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 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 nor 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 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.
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 (or of importance) 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, 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.
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 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 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 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 (or entities) 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 be one of four ways: 1. In the way of causation or production. 2. In the way of derivation. 3. In the way of collateral condition. 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 maladministration of which that minister was accused, went down from London to Portsmouth, where Buckingham happened then to be, made his way into his antechamber, 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, 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 offense. Together with this act, under the notion of the same offense, are included certain circumstances: which circumstances enter into the essence of the offense, 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 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 offense with them, and with the act respectively, in the way of derivation: the consequences of the modified offense, 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 offense, in the way of production: and with one another (in respect of the consequences of the modified act or offense) in the way of conjunct influence. Lastly, whatever circumstances can be seen to be connected with the consequences of the offense, 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 offense 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 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 yours: 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 yours, at a future time: or else, without any intention, a bare wish to see such event take place. The second man, suppose, 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 or 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 (or concurrently) 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.
XI. One example will make all this clear. William II. king of England, being
out a stag-hunting, received from Sir Walter Tyrrel a wound, of which
he died . 6 Let us take this case, and diversify it with a variety of
suppositions, correspondent to the distinctions just laid down.
I. 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 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. 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.
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 mis-advised, with respect to such imagined circumstance: and it maybe 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 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 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 mis-advised,
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
mis-advised, 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 be but 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 nonexistence, 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's 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 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, concealments, 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 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 eliminative 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 offense, 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 actions 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 account 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, ls 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 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 thug 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, 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 yours; 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.
2. 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 most 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 very 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 show 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 anything 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: 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. 7 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 or 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, maybe 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. 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 consequence 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 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 respects 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 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 s, 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 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, 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 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 its rise, 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 call it by some such name as cruelty.
3. To save the expense of a halfpenny, 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 order to 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 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 bead 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 e 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 those 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 commonplace 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 begs placed the
articles of,
1. Good-will.
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 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 nor less than the dictates of the most extensive 8 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 (or valuable) 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 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 practice 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 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 paribas, 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 visier at Constantinople, or of a naib in Indostan.
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 recognize 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 tests, 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, 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 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
maybe 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 offenses 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: Human Dispositions in General
I. In the foregoing chapter it has been shown at large. that goodness or badness can not, with any propriety, be predicated of motives. Is there nothing then about a man that may 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 sued 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 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 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 it 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 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 of 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. < BR>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
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.
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 inordinate 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.
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 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 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 these
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.
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, 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. 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 nowadays. 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 offenses: 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 character; 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 (love of the pleasures of the palate), 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 (pecuniary interest); 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 may be, on the event of his detection; any
may, therefore, be all of them comprised under the article of the danger of detection.
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 to 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 or 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 offense, 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 offense 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 offense 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:
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 apprised 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.
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 it 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 befall 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 yours, who expected you to pay him with part of that money, and a son of yours, who expected you to have given him another part, are in consequence disappointed. You are obliged to have recourse to 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 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 offense, without undergoing the punishment. This, of course, will be the case with every offense 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 offense 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 offense tends to pave the way for the commission of a future Hence, whether by suggesting the idea of committing it, or by adding to the strength of the temptation, in both cases it 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 be the former. In some cases, where the primary consequences of the act are attended with a mischief, the secondary consequences be 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 produce 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
1. With regard to its nature, it may be either simple or complex
2: 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 maybe 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 of the
chapter which exhibits the division of offenses.
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 considerable degree of harm:
more or less according to his constitution and other circumstances:
for this is no more than what experience manifests every day. It is
also certain, that one act of this sort, by one means or other, tends
considerably to increase the disposition a man may be in to practise
other acts of the same sort: for this also is verified by experience.
This, therefore, is one instance where the mischief producible by the
act is contingent in other words, in which the tendency of the act is
no otherwise mischievous than in virtue of its producing a chance
of mischief. This chance depends upon the concurrence of other
acts of the same kind; and those such as must be practiced by the same
person. The object of the mischief is that very person himself who is
the author of it, and he only, unless by accident. The mischief is
therefore private and self-regarding. As to its secondary mischief,
alarm, it produces none: it produces indeed a certain quantity of
danger by the influence of example: but it is not often that this
danger will amount to a quantity worth regarding.
XVII. Again. A man omits paying his share to a public tax. This
we see is an act of the negative kind. Is this then to be placed upon
the list of mischievous acts? Yes, certainly. Upon what grounds? Upon
the following. To defend the community against its external as well as
its internal adversaries are tasks, not to mention others of a less
indispensable nature which cannot be fulfilled but at a considerable
expense. But whence is the money for defraying this expense to come?
It can be obtained in no other manner than by contributions to be
collected from individuals; in a word, by taxes. The produce then of
these taxes is to be looked upon as a kind of benefit which it
is necessary the governing part of the community should receive for
the use of the whole. This produce, before it can be applied to its
destination, requires that there should be certain persons
commissioned to receive and to apply it. Now if these persons, had
they received it, would have applied it to its proper destination, it
would have been a benefit: the not putting them in a way to receive
it, is then a mischief. But it is possible, that if received, it might
not have been applied to its proper destination; or that the services,
in consideration of which it was bestowed, might not have been
performed. It is possible, that the under-officer, who collected the
produce of the tax, might not have paid it over to his principal: it
is possible that the principal might not have forwarded it on
according to its farther destination; to the judge, for instance, who
is to protect the community against its clandestine enemies from
within, or the soldier, who is to protect it against its open
enemies from without: it is possible that the judge, or the soldier,
had they received it, would not however have been induced by it to
fulfil their respective duties: it is possible, that the judge would
not have sat for the punishment of criminals, and the decision of
controversies: it is possible that the soldier would not have drawn
his sword in the defense of the community. These, together with an
infinity of other intermediate acts, which for the sake of brevity I
pass over, form a connected chain of duties, the discharge of which is
necessary to the preservation of the community. They must every one of
them be discharged, ere the benefit to which they are contributory can
be produced. If they are all discharged, in that case the benefit
subsists, and any act, by tending to intercept that benefit, may
produce a mischief. But if any of them are not, the benefit fails: it
fails of itself: it would not have subsisted, although the act in
question (the act of non-payment) had not been committed. The benefit
is therefore contingent; and, accordingly, upon a certain supposition,
the act which consists in the averting of it is not a mischievous one.
But this supposition, in any tolerably-ordered government, will rarely
indeed be verified. In the very worst ordered government that exists,
the greatest part of the duties that are levied are paid over
according to their destination: and, with regard to any particular
sum, that is attempted to be levied upon any particular person upon
any particular occasion, it is therefore manifest, that, unless it be
certain that it will not be so disposed of, the act of withholding it
is a mischievous one.
The act of payment, when referable to any particular sum,
especially if it be a small one, might also have failed of proving
beneficial on another ground: and, consequently, the act of
nonpayment, of proving mischievous. It is possible that the same
services, precisely, might have been rendered without the money as
with it. If, then, speaking of any small limited sum, such as the
greatest which any one person is called upon to pay at a time, a man
were to say, that the non-payment of it would be attended with
mischievous consequences; this would be far from certain: but what
comes to the same thing as if it were, it is perfectly certain when
applied to the whole. It is certain, that if all of a sudden the
payment of all taxes was to cease, there would no longer be anything
effectual done, either for the maintenance of justice, or for the
defence of the community against its foreign adversaries: that
therefore the weak would presently be oppressed and injured in all
manner of ways, by the strong at home, and both together overwhelmed
by oppressors abroad. Upon the whole, therefore, it is manifest, that
in this case, though the mischief is remote and contingent, though in
its first appearance it consists of nothing more than the interception
of a benefit, and though the individuals, in whose favour that
benefit would have been reduced into the explicit form of pleasure or
security, are altogether unassignable, yet the mischievous tendency of
the act is not on all these accounts the less indisputable. The
mischief, in point of intensity and duration, is indeed
unknown: it is uncertain: it is remote. But in point of
extent it is immense; and in point of fecundity,
pregnant to a degree that baffles calculation.
XVIII. It may now be time to observe, that it is only in the case where the mischief
is extra-regarding, and has an assignable person or persons for its
object, that so much of the secondary branch of it as consists in
alarm can have place. When the individuals it affects are
uncertain, and altogether out of sight, no alarm can be produced: as
there is nobody whose sufferings you can see, there is nobody whose
sufferings you can be alarmed at. No alarm, for instance, is produced
by nonpayment to a tax. If at any distant and uncertain period of time
such offence should chance to be productive of any kind of alarm, it
would appear to proceed, as indeed immediately it would proceed, from
a very different cause. It might be immediately referable, for
example, to the act of a legislator, who should deem it necessary to
lay on a new tax, in order to make up for the deficiency occasioned in
the produce of the old one. Or it might be referable to the act of an
enemy, who, under favour of a deficiency thus created in the fund
allotted for defense, might invade the country, and exact from it much
heavier contributions than those which had been thus withholden from
the sovereign.
As to any alarm which such an offence might raise among the few
who might chance to regard the matter with the eyes of statesmen, it
is of too slight and uncertain a nature to be worth taking into the
account.
§2. How intentionality, etc;. may influence the mischief of an
act.
XIX. We have seen the nature of the secondary mischief, which is
apt to be reflected, as it were, from the primary, in the cases where
the individuals who are the objects of the mischief are assignable. It
is now time to examine into the circumstances upon which the
production of such secondary mischief depends. These circumstances are
no others than the four articles which have formed the subjects of the
four last preceding chapters: viz.,
1. The intentionality,
2. The consciousness.
3. The motive.
4. The disposition.
It is to be observed all along, that it is only the danger that is immediately
governed by the real state of the mind in respect to those
articles: it is by the apparent state of it that the alarm
is governed. It is governed by the real only in as far as the
apparent happens, as in most cases it may be expected to do, to
quadrate with the real. The different influences of the articles of
intentionality and consciousness may be represented in the several
cases following.
XX. Case 1. Where the act is so completely unintentional, as to
be altogether involuntary. In this case it is attended with no
secondary mischief at all.
A bricklayer is at work upon a house: a passenger is walking in
the street below. A fellow-workman comes and gives the bricklayer a
violent push, in consequence of which he falls upon the passenger, and
hurts him. It is plain there is nothing in this event that can give
other people, who may happen to be in the street, the least reason to
apprehend any thing in future on the part of the man who fell,
whatever there may be with regard to the man who pushed him.
XXI. Case 2. Where the act, though not unintentional, is
unadvised, insomuch that the mischievous part of the
consequences is unintentional, but the unadvisedness is attended with
heedlessness. In this case the act is attended with some small
degree of secondary mischief, in proportion to the degree of
heedlessness.
A groom being on horseback, and riding through a frequented
street, turns a corner at a full pace, and rides over a passenger, who
happens to be going by. It is plain, by this behaviour of the groom,
some degree of alarm may be produced, less or greater, according to
the degree of heedlessness betrayed by him: according to the quickness
of his pace, the fullness of the street, and so forth. He has done
mischief, it may be said, by his carelessness, already: who knows but
that on other occasions the like cause may produce the like effect.
XXII. Case 3. Where the act is misadvised with respect
to a circumstance, which, had it existed, would fully have
excluded or (what comes to the same thing) outweighed the primary
mischief: and there is no rashness in the case. In this case the act
attended with no secondary mischief at all.
It is needless to multiply examples any farther.
XXIII. Case 4. Where the act is misadvised with respect to a circumstance which would have excluded or counterbalanced the primary mischief in part, but not entirely: and still there is no rashness. In this case the set is attended with some degree of secondary mischief, in proportion to that part of the primary which remains unexcluded or uncounterbalanced.
XXIV. Case 5. Where the act is misadvised with respect to a circumstance, which, had it existed, would have excluded or counterbalanced the primary mischief entirely, or in part: and there is a degree of rashness in the supposal. In this case, the act is also attended with a farther degree of secondary mischief, in proportion to the degree of rashness.
XXV. Case 6. Where the consequences are completely intentional, and there is no mis-supposal in the case. In this case the secondary mischief is at the highest.
XXVI. Thus much with regard to intentionality and
consciousness. We now come to consider in what manner the secondary
mischief is affected by the nature of the motive.
Where an act is pernicious in its primary consequences,
the secondary mischief is not obliterated by the goodness of
the motive; though the motive be of the best kind. For,
notwithstanding the goodness of the motive, an act of which the
primary consequences are pernicious, is produced by it in the instance
in question, by the supposition. It may, therefore, in other
instances: although this is not so likely to happen from a good motive
as from a bad one.
XXVII. An act, which, though pernicious in its primary consequences, is rendered in other respects beneficial upon the whole, by virtue of its secondary consequences, is not changed back again, and rendered pernicious upon the whole by the badness of the motive: although the motive be of the worst kind.
XXVIII. But when not only the primary consequences of an act are pernicious, but, in other respects, the secondary likewise, the secondary mischief may be aggravated by the nature of the motive: so much of that mischief, to wit, as respects the future behaviour of the same person.
XXIX. It is not from the worst kind of motive, however, that the secondary mischief of an act receives its greatest aggravation.
XXX. The aggravation which the secondary mischief of an act, in as far as it respects the future behaviour of the same person, receives from the nature of a motive in an individual case, is as the tendency of the motive to produce, on the part of the same person, acts of the like bad tendency with that of the act in question.
XXXI. The tendency of a motive to produce acts of the like kind, on the part of any given person, is as the strength and constancy of its influence on that person, as applied to the production of such effects. P>XXXII. The tendency of a species of motive to give birth to acts of any kind, among persons in general, is as the strength, constancy, and extensiveness of its influence, as applied to the production of such effects.
XXXIII. Now the motives, whereof the influence is at once most powerful, most constant, and most extensive, are the motives of physical desire, the love of wealth, the love of ease, the love of life, and the fear of pain: all of them self-regarding motives. The motive of displeasure, whatever it may be in point of strength and extensiveness, is not near so constant in its influence (the case of mere antipathy excepted) as any of the other three. A pernicious act, therefore, when committed through vengeance. or otherwise through displeasure, is not near so mischievous as the same pernicious act, when committed by force of any one of those other motives.
XXXIV. As to the motive of religion, whatever it may sometimes prove to be in point of strength and constancy, it is not in point of extent so universal, especially in its application to acts of a mischievous nature, as any of the three preceding motives. It may, however, be as universal in a particular state, or in a particular district of a particular state. It is liable indeed to be very irregular in its operations. It is apt, however, to be frequently as powerful as the motive of vengeance, or indeed any other motive whatsoever. It will sometimes even be more powerful than any other motive. It is, at any rate, much more constant. A pernicious act, therefore, when committed through the motive of religion, is more mischievous than when committed through the motive of ill-will.
XXXV. Lastly, The secondary mischief, to wit, so much of it as hath respect to the future behaviour of the same person, is aggravated or lessened by the apparent depravity or beneficence of his disposition: and that in the proportion of such apparent depravity or beneficence.
XXXVI. The consequences we have hitherto been speaking of, are the natural consequences, of which the act, and the other articles we have been considering, are the causes: consequences that result from the behaviour of the individual, who is the offending agent, without the interference of political authority. We now come to speak of punishment: which, in the sense in which it is here considered, is an artificial consequence, annexed by political authority to an offensive act, in one instance, in the view of putting a stop to the production of events similar to the obnoxious part of its natural consequences, in other instances.
Chapter XIII: Cases Unmeet for Punishment
§ 1. General view
of cases unmeet for punishment.
I. The general object which all laws have, or ought to have, in
common, is to augment the total happiness of the community; and
therefore, in the first place, to exclude, as far as may be, every
thing that tends to subtract from that happiness: in other words, to
exclude mischief.
II. But all punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.
III. It is plain, therefore, that in the following cases
punishment ought not to be inflicted.
7. Where it is groundless: where there is no mischief
for it to prevent; the act not being mischievous upon the whole.
8. Where it must be inefficacious: where it cannot act
so as to prevent the mischief.
9. Where it is unprofitable, or too expensive:
where the mischief it would produce would be greater than what it
prevented.
10. Where it is needless: where the mischief may be
prevented, or cease of itself, without it: that is, at a cheaper rate.
§ 2. Cases in which punishment is groundless.
These are,
IV. 1. Where there has never been any mischief: where no mischief has been
produced to any body by the act in question. Of this number are those
in which the act was such as might, on a some occasions, be
mischievous or disagreeable, but the person whose interest it concerns
gave his consent to the performance of it. This consent,
provided it be free, and fairly obtained, is the best proof that can
be produced, that, to the person who gives it, no mischief, at least
no immediate mischief, upon the whole, is done. For no man can be so
good a judge as the man himself, what it is gives him pleasure or
displeasure.
V. 2. Where the mischief was outweighed: although a mischief was produced by that act, yet the same act was necessary to the production of a benefit which was of greater value than the mischief. This may be the case with any thing that is done in the way of precaution against instant calamity, as also with any thing that is done in the exercise of the several sorts of powers necessary to be established in every community, to wit, domestic, judicial, military, and supreme.
VI. 3. Where there is a certainty of an adequate compensation:
and that in all cases where the offense can be committed. This
supposes two things:
1. That the offence is such as admits of an adequate compensation:
2. That such a compensation is sure to be forthcoming.
Of these suppositions, the latter will be found to be a merely ideal one: a
supposition that cannot, in the universality here given to it, be
verified by fact. It cannot, therefore, in practice, be numbered
amongst the grounds of absolute impunity. It may, however, be admitted
as a ground for an abatement of that punishment, which other
considerations, standing by themselves, would seem to dictate.
§ 3. Cases in which punishment must be inefficacious
These are,
VII. 1. Where the penal provision is not established until
after the act is done.
Such are the cases, 1. Of an ex-post-facto law; where the legislator himself appoints not a punishment till
after the act is done.
2. Of a sentence beyond the law; where the judge, of his own authority, appoints a punishment which the
legislator had not appointed.
VIII. 2. Where the penal provision, though established, is not conveyed to the notice of the person on whom it seems intended that it should operate. Such is the case where the law has omitted to employ any of the expedients which are necessary, to make sure that every person whatsoever, who is within the reach of the law, be apprised of all the cases whatsoever, in which (being in the station of life he is in) he can be subjected to the penalties of the law.
IX. 3. Where the penal provision, though it were conveyed to a
man's notice, could produce no effect on him, with respect to
the preventing him from engaging in any act of the sort in
question. Such is the case,
1. In extreme infancy; where a man has not yet attained that state or disposition of mind in which the
prospect of evils so distant as those which are held forth by the law,
has the effect of influencing his conduct.
2. In insanity; where the person, if he has attained to that disposition, has
since been deprived of it through the influence of some permanent
though unseen cause.
3. In intoxication; where he has been a
deprived of it by the transient influence of a visible cause: such as
the use of wine, or opium, or other drugs, that act in this manner on
the nervous system: which condition is indeed neither more nor less
than a temporary insanity produced by an assignable cause.
X. 4. Where the penal provision (although, being conveyed to the party's
notice, it might very well prevent his engaging in acts of the sort in
question, provided he knew that it related to those acts) could not
have this effect, with regard to the individual act he is about
to engage in: to wit, because he knows not that it is of the number of
those to which the penal provision relates. This may happen,
1. In the case of unintentionality; where he intends not to engage, and
thereby knows not that he is about to engage, in the act in
which eventually he is about to engage.
2. In the case of unconsciousness; where, although he may know that he is about
to engage in the act itself, yet, from not knowing all the
material circumstances attending it, he knows not of the
tendency it has to produce that mischief, in contemplation of
which it has been made penal in most instances
3. In the case of missupposal; where, although he may know of the tendency the
act has to produce that degree of mischief, he supposes it, though
mistakenly, to be attended with some circumstance, or set of
circumstances, which, if it had been attended with, it would either
not have been productive of that mischief, or have been productive of
such a greater degree of good, as has determined the legislator in
such a case not to make it penal.
XI. 5. Where, though the penal clause might exercise a full and prevailing influence, were it to act
alone, yet by the predominant influence of some opposite cause
upon the will, it must necessarily be ineffectual; because the evil
which he sets himself about to undergo, in the case of his not
engaging in the act, is so great, that the evil denounced by the penal
clause, in case of his engaging in it, cannot appear greater. This may
happen,
1. In the case of physical danger; where the evil is
such as appears likely to be brought about by the unassisted powers of
nature.
2. In the case of a threatened mischief; where it is
such as appears likely to be brought about through the intentional and
conscious agency of man.
XII. 6. Where (though the penal clause may exert a full and prevailing influence over the will of the party) yet his physical faculties (owing to the predominant influence of some physical cause) are not in a condition to follow the determination of the will: insomuch that the act is absolutely involuntary. Such is the case of physical compulsion or restraint, by whatever means brought about; where the man's hand, for instance, is pushed against some object which his will disposes him not to touch; or tied down from touching some object which his will disposes him to touch.
§ 4. Cases where punishment is unprofitable.
These are,
XIII. 1. Where, on the one hand, the nature of the offense, on the other
hand, that of the punishment, are, in the ordinary state of things,
such, that when compared together, the evil of the latter will
turn out to be greater than that of the former.
XIV. Now the evil of the punishment divides itself into four
branches, by which so many different sets of persons are affected.
1. The evil of coercion or restraint: or the pain
which it gives a man not to be able to do the act, whatever it be,
which by the apprehension of the punishment he is deterred from doing.
This is felt by those by whom the law is observed.
2. The evil of apprehension: or the pain which a man, who has exposed
himself to punishment, feels at the thoughts of undergoing it. This is
felt by those by whom the law has been broken, and who feel
themselves in danger of its being executed upon them.
3. The evil of sufferance: or the pain which a man feels, in virtue of
the punishment itself, from the time when he begins to undergo it.
This is felt by those by whom the law is broken, and upon whom it
comes actually to be executed.
4. The pain of sympathy, and the other
derivative evils resulting to the persons who are in
connection with the several classes of original sufferers just
mentioned. Now of these four lots of evil, the first will be greater
or less, according to the nature of the act from which the party is
restrained: the second and third according to the nature of the
punishment which stands annexed to that offence.
XV. On the other hand, as to the evil of the offense, this will also, of course, be greater or less, according to the nature of each offense. The proportion between the one evil and the other will therefore be different in the case of each particular offence. The cases, therefore, where punishment is unprofitable on this ground, can by no other means be discovered, than by an examination of each particular offense; which is what will be the business of the body of the work.
XVI. 2. Where, although in the ordinary state of
things, the evil resulting from the punishment is not greater than the
benefit which is likely to result from the force with which it
operates, during the same space of time, towards the excluding the
evil of the offenses, yet it may have been rendered so by the
influence of some occasional circumstances. In the number of
these circumstances may be,
1. The multitude of delinquents at a particular juncture;
being such as would increase, beyond the ordinary measure, the
quantum of the second and third lots, and thereby also of a
part of the fourth lot, in the evil of the punishment.
2. The extraordinary value of the services of some one
delinquent; in the case where the effect of the punishment would be to
deprive the community of the benefit of those services.
3. The displeasure of the people; that is, of an indefinite
number of the members of the same community, in cases where
(owing to of the influence of some occasional incident) they happen to
conceive, that the offense or the offender ought not to be punished at
all, or at least ought not to be punished in the way in question.
4. The displeasure of foreign powers; that is, of the
governing body, or a considerable number of the members of some
foreign community or communities, with which the community in
question is connected.
§ 5. Cases where punishment is needless. These are,
XVII. 1. Where the purpose of putting an end to the practice may be attained as
effectually at a cheaper rate: by instruction, is for instance, as
well as by terror: by informing the understanding, as well as by
exercising an immediate influence on the will. This seems to be the
case with respect to all those offenses which consist in the
disseminating pernicious principles in matters of duty; of
whatever kind the duty be; whether political, or moral, or religious.
And this, whether such principles be disseminated under, or
even without; a sincere persuasion of their being beneficial. I
say, even without: for though in such a case it is not
instruction that can prevent the writer from endeavouring to inculcate
his principles, yet it may the readers from adopting them: without
which, his endeavouring to inculcate them will do no harm. In such a
case, the sovereign will commonly have little need to take an active
part: if it be the interest of one individual to inculcate
principles that are pernicious, it will as surely be the interest of
other individuals to expose them. But if the sovereign must
needs take a part in the controversy, the pen is the proper weapon to
combat error with, not the sword.
Chapter XIV: Of the Proportion between Punishments and Offences
I. We have seen that the general object of all laws is to prevent mischief; that is to say, when it is worth while; but that, where there are no other means of doing this than punishment, there are four cases in which it is not worth while.
II. When it is worth while, there are four subordinate designs or objects, which, in the course of his endeavours to compass, as far as may be, that one general object, a legislator, whose views are governed by the principle of utility, comes naturally to propose to himself.
III. 1. His first, most extensive, and most eligible object, is to prevent, in as far as it is possible, and worth while, all sorts of offenses whatsoever: in other words, so to manage, that no offense whatsoever may be committed.
IV. 2. But if a man must needs commit an offense of some kind or other, the next object is to induce him to commit an offense less mischievous, rather than one more mischievous: in other words, to choose always the least mischievous, of two offenses that will either of them suit his purpose.
V. 3. When a man has resolved upon a particular offense, the next object is to dispose him to do no more mischief than is necessary to his purpose: in other words, to do as little mischief as is consistent with the benefit he has in view.
VI. 4. The last object is, whatever the mischief be, which it is proposed to prevent, to prevent it at as cheap a rate as possible.
VII. Subservient to these four objects, or purposes, must be the rules or canons by which the proportion of punishments to offenses is to be governed.
VIII. Rule 1. The first object, it has been seen, is to prevent, in as far as it is worth while, all sorts of offenses; therefore, The value of the punishment must not less in any case than what is sufficient to outweigh that of the profit of the offense. If it be, the offence (unless some other considerations, independent of the punishment should intervene and operate efficaciously in the character of tutelary motives) will be sure to be to committed notwithstanding: the whole lot of punishment will be thrown away: it will be altogether inefficacious.
IX. The above rule has been often objected to, on account of its
seeming harshness: but this can only have happened for want of its
being properly understood. The strength of the temptation, cæteris
paribas, is as the profit of the offense: the quantum of the
punishment must rise with the profit of the offense: cæteris
paribas, it must therefore rise with the strength of the
temptation. This there is no disputing. True it is, that the stronger
the temptation, the less conclusive is the indication which the act of
delinquency affords of the depravity of the offender's disposition. So
far then as the absence of any aggravation, arising from extraordinary
depravity of disposition, may operate, or at the utmost, so far as the
presence of a ground of extenuation, resulting from the innocence or
beneficence of the offender's disposition, can operate, the strength
of the temptation may operate in abatement of the demand for
punishment. But it can never operate so far as to indicate the propriety of making the punishment ineffectual, which it is sure to be when brought below the level of the apparent profit of the offense.
The partial benevolence which should prevail for the reduction of it below this level, would counteract as well those purposes which such a motive would actually have in view, as those more extensive purposes which benevolence ought to have in view; it would be cruelty not only to the public, but the very persons in whose behalf in pleads: in its effects, I mean, however opposite in its intention. Cruelty to the public, that is cruelty to the innocent, by suffering them, for wnat of an adequate protection, to lie exposed to the mischief of the offense: cruelty even the offender himself, by punishing him to no purpose, and without the chance of compassing that beneficial end, by which alone the introduction of the evil of punishment is to be justified.
X. Rule 2. But whether a given offence shall be prevented in a given degree by a given quantity of punishment, is never any thing better than a chance; for the purchasing of which, whatever punishment is employed, is so much expended into advance. However, for the sake of giving it the better chance of outweighing the profit of the offence, The greater the mischief of the offense, the greater is the expense which it may be worth while to be at, in the way of punishment.
XII. Rule 4. When a man has resolved upon a particular
offense, the next object is, to induce him to do no more mischief than
what is necessary for his purpose: therefore
XIII. Rule 5. The last object is, whatever mischief is
guarded against, to guard against it at as cheap a rate as possible:
therefore
XIV. Rule 6. It is further to be observed, that owing to
the different manners and degrees in which persons under different
circumstances are affected by the same exciting cause, a punishment
which is the same in name will not always either really produce, or
even so much as appear to others to produce, in two different persons
the same degree of pain: therefore
XV. Of the above rules of proportion, the first four, we
may perceive serve to mark out limits on the side of diminution; the
limits below which a punishment ought not to be diminished:
the fifth the limits on the side of increase; the limits above
which it ought not to be increased. The five first are
calculated to serve as guides to the legislator: the sixth is
calculated in some measure, indeed, to the same purpose; but
principally for guiding the judge in his endeavors to conform, on both
sides, to the intentions of the legislator.
XVI. Let us look back a little. The first rule, in order to
render it more conveniently applicable to practice, may need perhaps
to be a little more particularly unfolded. It is to be observed, then,
that for the sake of accuracy, it was necessary, instead of the word
quantity to make use of the less perspicuous term value.
For the word quantity will not properly include and the
circumstances either of certainty or proximity: circumstances which,
in estimating the value of a lot of pain or pleasure, must always be
taken into the account. Now, on the one hand, a lot of punishment is a
lot of pain; on the other hand, the profit of an offense is a lot of
pleasure, or what is equivalent to it. But the profit of the offense
is commonly more certain than the punishment, or, what
comes to the same thing, appears so at least to the offender.
It is at any rate commonly more immediate. It follows,
therefore, that, in order to maintain its superiority over the profit
of the offense, the punishment must have its value made up in some
other way, in proportion to that whereby it falls short in the two
points of certainty and proximity. Now there is no other
way in which it can receive any addition to its value, but by
receiving an addition in point of magnitude. Wherever then the
value of the punishment falls short, either in point of certainty,
or of proximity, of that of the profit of the offence, it
must receive a proportionable addition in point of magnitude.
XVII. Yet farther. To make sure of giving the value of
the punishment the superiority over that of the offence, it may be of
necessary, in some cases, to take into account the profit not only of
the individual offence to which the punishment is to be
annexed, but also of such other offences of the same sort
as the offender is likely to have already committed without
detection. This random mode of calculation, severe as it is, it will
be impossible to avoid having recourse to, in certain cases: in such,
to wit, in which the profit is pecuniary, the chance of detection very
small, and the obnoxious act of such a nature as indicates a habit:
for example, in the case of frauds against the coin. If it be not
recurred to, the practice of committing the offence will be sure
to be, upon the balance of the account, a gainful practice. That being
the case, the legislator will be absolutely sure of not being
able to suppress it, and the whole punishment that is bestowed upon it
will be thrown away. In a word (to keep to the same expressions we set
out with) that whole quantity of punishment will be inefficacious
.
XVIII. Rule 7. These things being considered, the three
following rules may be laid down by way of supplement and explanation
to Rule 1.
XIX. Rule 8. Punishment must be further increased in
point of magnitude, in proportion as it falls short in point of
proximity.
XX. Rule 9. Where the act is conclusively indicative
of a habit, such an increase must be given to the punishment as may
enable it to outweigh the profit not only of the individual offence,
but of such other like offenses as are likely to have been committed
with impunity by the same offender.
XXII. Rule 10. When a punishment, which in point of quality
is particularly well calculated to answer its intention cannot exist
in less than a certain quantity, it may sometimes be of use, for the
sake of employing it, to stretch a little beyond that quantity which,
on other accounts, would be strictly necessary.
XXIII. Rule 11. In particular, this may sometimes be
the case, where the punishment proposed is of such a nature as to be
particularly well calculated to answer the purpose of a moral lesson.
XXIV. Rule 12. The tendency of the above considerations
is to dictate an augmentation in the punishment: the following rule
operates in the way of diminution. There are certain cases (it has
been seen) in which, by the influence of accidental circumstances,
punishment may be rendered unprofitable in the whole: in the same
cases it may chance to be rendered unprofitable as to a part only.
Accordingly, In adjusting the quantum of punishment, the
circumstances; by which all punishment may be rendered unprofitable,
ought to be attended to.
XXVI. It may be remembered, that the political sanction,
being that to which the sort of punishment belongs, which in this
chapter is all along in view, is but one of four sanctions, which may
all of them contribute their share towards producing the same effects.
It maybe expected, therefore, that in adjusting the quantity of
political punishment, allowance should be made for the assistance it
may meet with from those other controlling powers. True it is, that
from each of these several sources a very powerful assistance may
sometimes be derived. But the case is, that (setting aside the moral
sanction, in the case where the force of it is expressly adopted into
and modified by the political) the force of those other powers is
never determinate enough to be depended upon. It can never be reduced,
like political punishment, into exact lots, nor meted out in number,
quantity, and value. The legislator is therefore obliged to provide
the full complement of punishment, as if he were sure of not receiving
any assistance whatever from any of those quarters. If II. On the part of the punishment:
III. On the part of the offender:
IV. On the part of the public, at any particular
conjuncture:
V. On the part of the law: that is, of the public for a
continuance:
XXVIII. There are some, perhaps, who, at first sight, may look
upon the nicety employed in the adjustment of such rules, as so much
labour lost: for gross ignorance, they will say, never, troubles
itself about laws, and passion does not calculate. But, the evil of
ignorance admits of cure: and as to the proposition that passion does
not calculate, this, like most of these very general and oracular
propositions, is not true. When matters of such importance as pain and
pleasure are at stake, and these in the highest degree (the only
matters, in short, that can be of importance) who is there that does
not calculate? Men calculate, some with less exactness, indeed, some
with more: but all men calculate. I would not say, that even a madman
does not calculate. Passion calculates, more or less, in every man: in
different men, according to the warmth or coolness of their
dispositions: according to the firmness or irritability of their
minds: according to the nature of the motives by which they are acted
upon. Happily, of all passions, that is the most given to calculation,
from the excesses of which, by reason of its strength, constancy, and
universality, society has most to apprehend: I mean that which
corresponds to the motive of pecuniary interest: so that these
niceties, if such they are to be called, have the best chance of being
efficacious, where efficacy is of the most importance.
I. It has been shown what the rules are, which ought to be observed
in adjusting the proportion between the punishments and the offense.
The properties to be given to a lot of punishment, in every instance,
will of course be such as it stands in need of, in order to be capable
of being applied, in conformity to those rules: the quality will be
regulated by the quantity.
II. The first of those rules, we may remember, was, that the
quantity of punishment must not be less, in any case, than what is
sufficient to outweigh the profit of the offence: since, as often as
it is less, the whole lot (unless by accident the deficiency should be
supplied from some of the other sanctions) is thrown away: it is
inefficacious. The fifth was, that the punishment ought in no
case to be more than what is required by the several other rules:
since, if it be, all that is above that quantity is needless.
The fourth was, that the punishment should be adjusted in such
manner to each individual offence, that every part of the mischief of
that offence may have a penalty (that is, a tutelary motive) to
encounter it: otherwise, with respect to so much of the offense as has
not a penalty to correspond to it, it is as if there were no
punishment in the case. Now to none of those rules can a lot of
punishment be conformable, unless, for every variation in point of
quantity, in the mischief of the species of offense to which it is
annexed, such lot of punishment admits of a correspondent variation.
To prove this, let the profit of the offence admit of a multitude of
degrees. Suppose it, then, at any one of these degrees: if the
punishment be less than what is suitable to that degree, it will be
inefficacious; it will be so much thrown away: if it be more,
as far as the difference extends, it will be needless; it will
therefore be thrown away also in that case.
III. A second property, intimately connected with the
former, may be styled equability. It will avail but little,
that a mode of punishment (proper in all other respects) has been
established by the legislator; and that capable of being screwed up or
let down to any degree that can be required; if, after all, whatever
degree of it be pitched upon, that same degree shall be liable,
according to circumstances, to produce a very heavy degree of pain, or
a very slight one, or even none at all. In this case, as in the
former, if circumstances happen one way, there will be a great deal of
pain produced which will be needless: if the other way, there
will be no pain at all applied, or none that will be efficacious.
A punishment, when liable to this irregularity, may be styled an
unequable one: when free from it, an equable one. The quantity of pain
produced by the punishment will, it is true, depend in a considerable
degree upon circumstances distinct from the nature of the punishment
itself: upon the condition which the offender is in, with respect to
the circumstances by which a man's sensibility is liable to be
influenced. But the influence of these very circumstances will in many
cases be reciprocally influenced by the nature of the punishment: in
other words, the pain which is produced by any mode of punishment,
will be the joint effect of the punishment which is applied to him,
and the circumstances in which he is exposed to it. Now there are some
punishments, of which the effect may be liable to undergo a greater
alteration by the influence of such foreign circumstances, than the
effect of other punishments is liable to undergo. So far, then, as
this is the case, equability or unequability may be regarded as
properties belonging to the punishment itself.
IV. An example of a mode of punishment which is apt to be
unequable, is that of banishment, when the locus a quo
(or place the party is banished from) is some determinate place
appointed by the law, which perhaps the offender cares not whether he
ever see or no. This is also the case with pecuniary, or
quasi-pecuniary punishment, when it respects some particular
species of property, which the offender may have been possessed of, or
not, as it may happen. All these punishments may be split down into
parcels, and measured out with the utmost nicety: being divisible by
time, at least, if by nothing else. They are not, therefore, any of
them defective in point of variability: and yet, in many cases, this
defect in point of equability may make them as unfit for use as if
they were.
V. The third rule of proportion was, that where two offenses
come in competition, the punishment for the greater offenses must be
sufficient to induce a man to prefer the less. Now, to be sufficient
for this purpose, it must be evidently and uniformly greater: greater,
not in the eyes of some men only, but of all men who are liable to be
in a situation to take their choice between the two offenses; that is,
in effect, of all mankind. In other words, the two punishments must be
perfectly commensurable. Hence arises a third property, which may be termed
commensurability: to wit, with reference to other punishments.
VI. But punishments of different kinds are in very few
instances uniformly greater one than another; especially when the
lowest degrees of that which is ordinarily the greater, are compared
with the highest degrees of that which is ordinarily the less: in
other words, punishments of different kinds are in few instances
uniformly commensurable. The only certain and universal means of
making two lots of punishment perfectly commensurable, is by making
the lesser an ingredient in the composition of the greater. This may
be done in either of two ways.
VII. Again: Punishment cannot act any farther than in as far as
the idea of it, and of its connection with the offense, is present in
the mind. The idea of it, if not present, cannot act at all; and then
the punishment itself must be inefficacious. Now, to be
present, it must be remembered, and to be remembered it must have been
learnt. But of all punishments that can be imagined, there are none of
which the connection with the offense is either so easily learnt, or
so efficaciously remembered, as those of which the idea is already in
part associated with some part of the idea of the offense: which is
the case when the one and the other have some circumstance that
belongs to them in common. When this is the case with a punishment and
an offense, the punishment is said to bear an analogy to, or to
be characteristic of, the offence. Characteristicalness
is, therefore, a fourth property, which on this account ought to
be given, whenever it can conveniently be given, to a lot of
punishment. VIII. It is obvious, that the effect of this contrivance
will be the greater, as the analogy is the closer. The analogy will be
the closer, the more material that circumstance is, which is in
common. Now the most material circumstance that can belong to an
offense and a punishment in common, is the hurt or damage which they
produce. The closest analogy, therefore, that can subsist between an
offense and the punishment annexed to it, is that which subsists
between them when the hurt or damage they produce is of the same
nature: in other words, that which is constituted by the circumstance
of identity in point of damage. Accordingly, the mode of punishment,
which of all others bears the closest analogy to the offense, is that
which in the proper and exact sense of the word is termed
retaliation. Retaliation, therefore, in the few cases in which
it is practicable, and not too expensive, will have one great
advantage over every other mode of punishment.
IX. Again: It is the idea only of the punishment (or, in other
words, the apparent punishment) that really acts upon the mind;
the punishment itself (the real punishment) acts not any
farther than as giving rise to that idea. It is the apparent
punishment, therefore, that does all the service, I mean in the way of
example, which is the principal object. It is the real punishment that
does all the mischief. Now the ordinary and obvious way of increasing
the magnitude of the apparent punishment, is by increasing the
magnitude of the real. The apparent magnitude, however, may to a
certain degree be increased by other less expensive means: whenever,
therefore, at the same time that these less expensive means would have
answered that purpose, an additional real punishment is employed, this
additional real punishment is needless. As to these less
expensive means, they consist,
X. A mode of punishment, according as the appearance of it
bears a greater proportion to the reality, may be said to be the more
exemplary. Now as to what concerns the choice of the punishment
itself, there is not any means by which a given quantity of punishment
can be rendered more exemplary, than by choosing it of such a sort as
shall bear an analogy to the offense. Hence another reason for
rendering the punishment analogous to, or in other words
characteristic of, the offense.
XI. Punishment, it is still to be remembered, is in itself an
expense: it is in itself an evil. Accordingly the fifth rule of
proportion is, not to produce more of it than what is demanded by the
other rules. But this is the case as often as any particle of pain is
produced, which contributes nothing to the effect proposed. Now if any
mode of punishment is more apt than another to produce any such
superfluous and needless pain, it may be styled unfrugal; if
less, it may be styled frugal. Frugality, therefore, is a
sixth property to be wished for in a mode of punishment.
XII. The perfection of frugality, in a mode of punishment, is
where not only no superfluous pain is produced on the part of the
person punished, but even that same operation, by which he is
subjected to pain, is made to answer the purpose of producing pleasure
on the part of some other person. Understand a profit or stock of
pleasure of the self-regarding kind: for a pleasure of the dissocial
kind is produced almost of course, on the part of all persons in whose
breasts the offence has excited the sentiment of ill-will. Now this is
the case with pecuniary punishment, as also with such punishments of
the quasi-pecuniary kind as consist in the subtraction of such
a species of possession as is transferable from one party to another.
The pleasure, indeed, produced by such an operation, is not in general
equal to the pain: it may, however, be so in particular circumstances,
as where he, from whom the thing is taken, is very rich, and he, to
whom it is given, very poor: and, be it what it will, it is always so
much more than can be produced by any other mode of punishment.
XIII. The properties of exemplarity and frugality seem to
pursue the same immediate end, though by different courses. Both are
occupied in diminishing the ratio of the real suffering to the
apparent: but exemplarity tends to increase the apparent; frugality to
reduce the real.
XIV. Thus much concerning the properties to be given to
punishments in general, to whatsoever offenses they are to be applied.
Those which follow are of less importance, either as referring only to
certain offenses in particular, or depending upon the influence of
transitory and local circumstances.
XV. A seventh property, therefore, to be wished for in a
mode of punishment, is that of subserviency to reformation, or
reforming tendency. Now any punishment is subservient to
reformation in proportion to its quantity: since the greater
the punishment a man has experienced, the stronger is the tendency it
has to create in him an aversion towards the offense which was the
cause of it: and that with respect to all offenses alike. But there
are certain punishments which, with regard to certain offenses, have a
particular tendency to produce that effect by reason of their
quality: and where this is the case, the punishments in
question, as applied to the offenses in question, will pro tanto
have the advantage over all others. This influence will depend
upon the nature of the motive which is the cause of the offence: the
punishment most subservient to reformation will be the sort of
punishment that is best calculated to invalidate the force of that
motive.
XVI. Thus, in offenses originating from the motive of ill-will,
that punishment has the strongest reforming tendency, which is best
calculatedto weaken the force of the irascible affections. And more
particularly, in that sort of offense which consists in an obstinate
refusal, on the part of the offender, to do something which is
lawfully required of him, and in which the obstinacy is in great
measure kept up by his resentment against those who have an interest
in forcing him to compliance, the most efficacious punishment seems to
be that of confinement to spare diet.
XVII. Thus, also, in offenses which owe their birth to the
joint influence of indolence and pecuniary interest, that punishment
seems to possess the strongest reforming tendency, which is best
calculated to weaken the force of the former of those dispositions.
And more particularly, in the cases of theft, embezzlement, and every
species of defraudment, the mode of punishment best adapted to this
purpose seems, in most cases, to be that of penal labour.
XVIII. An eighth property to be given to a lot of punishment in
certain cases, is that of efficacy with respect to disablement,
or, as it might be styled more briefly, disabling efficacy.
This is a property which may be given in perfection to a lot of
punishment; and that with much greater certainty than the property of
subserviency to reformation. The inconvenience is, that this property
is apt, in general, to run counter to that of frugality: there being,
in most cases, no certain way of disabling a man from doing mischief,
without, at the same time, disabling him, in a great measure, from
doing good, either to himself or others. The mischief therefore of the
offense must be so great as to demand a very considerable lot of
punishment, for the purpose of example, before it can warrant the
application of a punishment equal to that which is necessary for the
purpose of disablement.
XIX. The punishment, of which the efficacy in this way is the
greatest, is evidently that of death. In this case the efficacy of it
is certain . This accordingly is the punishment peculiarly adapted to
those cases in which the name of the offender, so long as he lives,
may be sufficient to keep a whole nation in a flame. This will now and
then be the case with competitors for the sovereignty, and leaders of
the factions in civil wars: though, when applied to offenses of so
questionable a nature, in which the question concerning criminality
turns more upon success than any thing else; an infliction of this
sort may seem more to savour of hostility than punishment. At the same
time this punishment, it is evident, is in an eminent degree
unfrugal; which forms one among the many objections there are
against the use of it, in any but very extraordinary cases.
XX. In ordinary cases the purpose maybe sufficiently answered by one or other
of the various kinds of confinement and banishment: of which,
imprisonment is the most strict and efficacious. For when an offense
is so circumstanced that it cannot be committed but in a certain
place, as is the case, for the most part, with offenses against the
person, all the law has to do, in order to disable the offender from
committing it, is to prevent his being in that place. In any of the
offenses which consist in the breach or the abuse of any kind of
trust, the purpose may be compassed at a still cheaper rate, merely by
forfeiture of the trust: and in general, in any of those offenses
which can only be committed under favour of some relation in which the
offender stands with reference to any person, or sets of persons,
merely by forfeiture of that relation: that is, of the right of
continuing to reap the advantages belonging to it. This is the case,
for instance, with any of those offences which consist in an abuse of
the privileges of marriage, or of the liberty of carrying on any
lucrative or other occupation.
XXI. The ninth property is that of subserviency to
compensation. This property of punishment, if it be vindictive
compensation that is in view, will, with little variation, be in
proportion to the quantity: if lucrative, it is the peculiar
and characteristic property of pecuniary punishment.
XXII. In the rear of all these properties may be introduced
that of popularity; a very fleeting and indeterminate kind of
property, which may belong to a lot of punishment one moment, and be
lost by it the next. By popularity is meant the property of being
acceptable, or rather not unacceptable, to the bulk of the people,
among whom it is proposed to be established. In strictness of speech,
it should rather be called absence of unpopularity: for it
cannot be expected, in regard to such a matter as punishment, that any
species or lot of it should be positively acceptable and grateful to
the people: it is sufficient, for the most part, if they have no
decided aversion to the thoughts of it. Now the property of
characteristicalness, above noticed, seems to go as far towards
conciliating the approbation of the people to a mode of punishment, as
any; insomuch that popularity may be regarded as a kind of secondary
quality, depending upon that of characteristicalness. The use of
inserting this property in the catalogue, is chiefly to make it serve
by way of memento to the legislator not to introduce, without a cogent
necessity, any mode or lot of punishment, towards which he happens to
perceive any violent aversion entertained by the body of the people.
XXIII. The effects of unpopularity in a mode of punishment are
analogous to those of unfrugality. The unnecessary pain which
denominates a punishment unfrugal, is most apt to be that which is
produced on the part of the offender. A portion of superfluous pain is
in like manner produced when the punishment is unpopular: but in this
case it is produced on the part of persons altogether innocent, the
people at large. This is already one mischief; and another is, the
weakness which it is apt to introduce into the law. When the people
are satisfied with the law, they voluntarily lend their assistance in
the execution: when they are dissatisfied, they will naturally
withhold that assistance; it is well if they do not take a positive
part in raising impediments. This contributes greatly to the
uncertainty of the punishment; by which, in the first instance, the
frequency of the offense receives an increase. In process of time that
deficiency, as usual, is apt to draw on an increase in magnitude: an
addition of a certain quantity which otherwise would be needless.
XXIV. This property, it is to be observed, necessarily
supposes, on the part of the people, some prejudice or other, which it
is the business of the legislator to endeavour to correct. For if the
aversion to the punishment in question were grounded on, the principle
of utility, the punishment would be such as, on other accounts, ought
not to be employed: in which case its popularity or unpopularity would
never be worth drawing into question. It is properly therefore a
property not so much of the punishment as of the people: a disposition
to entertain an unreasonable dislike against an object which merits
their approbation. It is the sign also of another property, to wit.
indolence or weakness, on the part of the legislator: in suffering the
people for the want of some instruction, which ought to be and might
be given them, to quarrel with their own interest. Be this as it may,
so long as any such dissatisfaction subsists, it behoves the
legislator to have an eye to it, as much as if it were ever so well
grounded. Every nation is liable to have its prejudices and its
caprices which it is the business of the legislator to look out for,
to study, and to cure.
XXV. The eleventh and last of all the properties that seem to
be requisite in a lot of punishment, is that of remissibility.
The general presumption is, that when punishment is applied,
punishment is needful: that it ought to be applied, and therefore
cannot want to be remitted. But in very particular, and those
always very deplorable cases, it may by accident happen otherwise. It
may happen that punishment shall have been inflicted, where, according
to the intention of the law itself, it ought not to have been
inflicted: that is, where the sufferer is innocent of the offense. At
the time of the sentence passed he appeared guilty: but since then,
accident has brought his innocence to light. This being the case, so
much of the destined punishment as he has suffered already, there is
no help for. The business is then to free him from as much as is yet
to come. But is there any yet to come? There is very little chance of
there being any, unless it be so much as consists of chronical
punishment: such as imprisonment, banishment, penal labour, and
the like. So much as consists of acute punishment, to wit where
the penal process itself is over presently, however permanent the
punishment may be in its effects, may be considered as irremissible.
This is the case, for example, with whipping, branding, mutilation,
and capital punishment. The most perfectly irremissible of any is
capital punishment. For though other punishments cannot, when they are
over, be remitted, they may be compensated for; and although the
unfortunate victim cannot be put into the same condition, yet possibly
means may be found of putting him into as good a condition, as he
would have been in if he had never suffered. This may in general be
done very effectually where the punishment has been no other than
pecuniary.
XXVI. Upon taking a survey of the various possible modes of
punishment, it will appear evidently, that there is not any one of
them that possesses all the above properties in perfection. To do the
best that can be done in the way of punishment, it will therefore be
necessary, upon most occasions, to compound them, and make them into
complex lots, each consisting of a number of different modes of
punishment put together: the nature and proportions of the constituent
parts of each lot being different, according to the nature of the
offence which it is designed to combat.
XXVII. It may not be amiss to bring together, and exhibit in
one view, the eleven properties above established. They are as
follows:
A fourth contributes to place the punishment in that situation
in which alone it can be efficacious; and at the same time to be
bestowing on it the two farther properties of exemplarity and
popularity; viz.,
Two others are concerned in excluding all useless punishment;
the one indirectly, by heightening the efficacy of what is useful; the
other in a direct way; viz.,
Three others contribute severally to the three inferior ends of
punishment; viz.,
Another property tends to exclude a collateral mischief, which
a particular mode of punishment is liable accidentally to produce;
viz.,
The remaining property tends to palliate a mischief, which all
punishment, as such is liable accidentally to produce; viz.,
The properties of commensurability, characteristicalness,
exemplarity, subserviency to reformation, and efficacy in disabling,
are more particularly calculated to augment the profit which is to be
made by punishment: frugality, subserviency to compensation,
popularity, and remissibility, to diminish the expense: variability
and equability are alike subservient to both those purposes.
XXVIII. We now come to take a general survey of the system of offences: that is, of such acts to which, on account of the mischievous consequences they have a natural tendency to produce, and in the view of putting a stop to those consequences, it may be proper to annex a certain artificial consequence, consisting of punishment, to be inflicted on the authors of such acts according to the principles just established.
§1. Classes of Offences
I. It is necessary, at the outset, to make a distinction between such acts as are or may be,
and such as ought to be offences.
II. The good of the community cannot require, that any act
should be made an offence, which is not liable. in some way or other,
to be detrimental to the community. For in the case of such an act,
all punishment is groundless. III. But if the whole assemblage of any number of
individuals be considered as constituting an imaginary compound
body, a community or political state; any act that is
detrimental to any one or more of those members is, as to so
much of its effects, detrimental to the state. IV. An act cannot be detrimental to a state, but
by being detrimental to some one or more of the individuals
that compose it. But these individuals may either be assignable
or unassignable. V. When there is any assignable individual to whom an
offence is detrimental, that person may either be a person other
than the offender, or the offender himself. VI. Offences that are detrimental, in the first
instance, to assignable persons other than the offender, may be termed
by one common name, offences against individuals. And of these
may be composed the 1st class of offences. To contrast them with
offences of the 2nd and 4th classes, it may also sometimes be
convenient to style them private offences. To contrast them at the same time with offences of the 3rd
class, they may be styled private extra-regarding offences.
VII. When it appears, in general, that there are persons to
whom the act in question may be detrimental, but such persons cannot
be individually assigned, the circle within which it appears that they
may be found, is either of less extent than that which comprises the
whole community, or not. If of less, the persons comprised within this
lesser circle may be considered for this purpose as composing a body
of themselves; comprised within, but distinguishable from, the greater
body of the whole community. The circumstance that constitutes the
union between the members of this lesser body, may be either their
residence within a particular place, or, in short, any other less
explicit principle of union, which may serve to distinguish them from
the remaining members of the community. In the first case, the act may
be styled an offence against a neighbourhood: in the second, an
offence against a particular class of persons in the community.
Offenses, then, against a class or neighbourhood, may, together,
constitute the 2nd class of offences. To contrast them with private
offences on the one hand, and public on the other, they may also be
styled semi-public offences. VIII. Offences, which in the first instance are detrimental to
the offender himself, and to no one else, unless it be by their being
detrimental to himself, may serve to compose a third class. To
contrast them the better with offences of the first, second, and
fourth classes, all which are of a transitive nature, they
might be styled intransitive offences; but still better,
self-regarding. IX. The fourth class may be composed of such acts as
ought to be made offences, on account of the distant mischief which
they threaten to bring upon an unassignable indefinite multitude of
the whole number of individuals, of which the community is composed:
although no particular individual should appear more likely to be a
sufferer by them than another. These may be called public
offences, or offences against the state. X. A fifth class, or appendix, may be composed of such
acts as, according to the circumstances in which they are committed,
or and more particularly according to the purposes to which they are
applied, may be detrimental in any one of the ways in which the act of
one man can be detrimental to another. These may to be termed
multiform, or heterogeneous offences. Offences that are
in this case may be reduced to two great heads:
§2. Divisions and sub-divisions
XI. Let us see by what method these classes may be farther subdivided.
Where there is no such particular connection, or (what comes to
the same thing) where the disposition, whatever it may be, which a man
is in to render you service, is not considered as depending upon such
connection, but simply upon the good-will he bears to you; in such
case, in order to express what chance you have of deriving a benefit
from his services, a kind of fictitious object of property is spoken
of, as being constituted in your favour, and is called your
reputation. An offence, therefore, the tendency of which is to
lessen the facility you might otherwise have had of deriving happiness
or security from the services of persons at large, whether connected
with you or not by any special tie, may be styled an offence against
your reputation. It appears, therefore, that if by any offence
an individual becomes a sufferer, it must be in one or other of the
four points above mentioned; viz., his person, his property, his
condition in life, or his reputation. These sources of distinction,
then, may serve to form so many subordinate divisions. If any offences
should be found to affect a person in more than one of these points at
the same time, such offences may respectively be put under so many
separate divisions; and such compound divisions may be subjoined to
the preceding simple ones The several divisions (simple and compound
together) which are hereinafter established, stand as follows:
XII. Next with regard to semi-public offences. Pain, considered with reference to the time of the act from
which it is liable to issue, must, it is evident, be either present,
past, or future. In as far as it is either present or past, it cannot
be the result of any act which comes under the description of a
semi-public offence: for if it be present or past, the individuals who
experience, or who have experienced, it are assignable. There
remains that sort of mischief, which, if it ever come to exist at all,
is as yet but future: mischief, thus circumstanced, takes the name of
danger. Now, then, when by means of the act of any person a
whole neighbourhood, or other class of persons, are exposed to danger,
this danger must either be intentional on his part, or
unintentional. If unintentional, such danger, when it is
converted into actual mischief, takes the name of a calamity:
offences, productive of such danger, may be styled semi-public
offences operating through calamity; or, more briefly, offences
through calamity. If the danger be intentional, insomuch that it
might be produced, and might convert itself into actual mischief,
without the concurrence of any calamity, it may be said to originate
in mere delinquency: offences, then, which, without the
concurrence of any calamity, tend to produce such danger as disturbs
the security of a local, or other subordinate class of persons, may be
styled semi-public offences operating merely by delinquency,
or more briefly, offences of mere delinquency.
' XIII. With regard to any farther sub-divisions, offences
through calamity will depend upon the nature of the several calamities
to which man, and the several things that are of use to him, stand
exposed. These will be considered in another place.
XIV. Semi-public offences of mere delinquency will follow the
method of division applied to offences against individuals. It will
easily be conceived, that whatever pain or inconvenience any given
individual may be made to suffer, to the danger of that pain or
inconvenience may any number of individuals, assignable or not
assignable, be exposed. Now there are four points or articles, as we
have seen, in respect to which an individual may be made to suffer
pain or inconvenience. If then, with respect to any one of them, the
connection of causes and effects is such, that to the danger of
suffering in that article a number of persons, who individually are
not assignable, may, by the delinquency of one person, be exposed,
such article will form a ground of distinction on which a particular
sub-division of semi-public offences may be established: if, with
respect to any such article, no such effect can take place, that
ground of distinction will lie for the present unoccupied: ready,
however, upon any change of circumstances, or in the manner of viewing
the subject, to receive a correspondent subdivision of offences, if
ever it should seem necessary that any such offences should be
created.
XV. We come next to self-regarding offences; or, more properly, to
acts productive in the first instance of no other than a
self-regarding mischief: acts which, if in any instance it be thought
fit to constitute them offences, will come under the denomination of
offences against one's self. This class will not for the present give
us much trouble. For it is evident, that in whatever points a man is
vulnerable by the hand of another, in the same points may he be
conceived to be vulnerable by his own. Whatever divisions therefore
will serve for the first class, the same will serve for this. As to
the questions, What acts are productive of a mischief of this stamp?
and, among such as are, which it may, and which it may not, be
worth while to treat upon the footing of offences? these are
points, the latter of which at least is too unsettled, and too open to
controversy, to be laid down with that degree of confidence which is
implied in the exhibition of properties which are made use of as the
groundwork of an arrangement. Properties for this purpose ought to
be such as show themselves at first glance, and appear to belong to
the subject beyond dispute.
XVI. Public offences may be distributed under eleven divisions.
XVII. Mischief by which the interest of the public as above
defined may be affected, must, if produced at all, be produced either
by means>of an influence exerted on the operations of government,
or by other means, without the exertion of such influence. To begin
with the latter case: mischief, be it what it will, and let it happen
to whom it will, must be produced either by the unassisted powers of
the agent in question, or by the instrumentality of some other agents.
In the latter case, these agents will be either persons or things.
Persons again must be either not members of the community in question,
or members. Mischief produced by the instrumentality of persons, may
accordingly be produced by the instrumentality either of external
or of internal adversaries. Now when it is produced by
the agent's own unassisted powers, or by the instrumentality of
internal adversaries, or only by the instrumentality of things, it is
seldom that it can show itself in any other shape (setting aside any
influence it may exert in the operations of government) than either
that of an offence against assignable individuals, or that of an
offence against a local or other subordinate class of persons. If
there should be a way in which mischief can be produced, by any of
these means, to individuals altogether unassignable, it will scarcely
be found conspicuous or important enough to occupy a title by itself:
it may accordingly be referred to the miscellaneous head of
offences against the national interest in general. The only
mischief, of any considerable account, which can be made to impend
indiscriminately over the whole number of members in the community, is
that complex kind of mischief which results from a state of war, and
is produced by the instrumentality of external adversaries; by their
being provoked, for instance, or invited, or encouraged to invasion.
In this way may a man very well bring down a mischief, and that a very
heavy one, upon the whole community in general, and that without
taking a part in any of the injuries which came in consequence to be
offered to particular individuals.
From this analysis, by which the connection between the several
above-mentioned heads of offences is exhibited, we may now collect a
definition for each article. By offences against external security,
we may understand such offences whereof the tendency is to bring
upon the public a mischief resulting from the hostilities of foreign
adversaries. By offences against justice, such offences whereof
the tendency is to impede or misdirect the operations of that power
which is employed in the business of guarding the public against the
mischiefs resulting from the delinquency of internal adversaries, as
far as it is to be done by expedients, which do not come to be applied
in any case till after the discovery of some particular design
of the sort of those which they are calculated to prevent. By
offences against the preventive branch of the police, such
offences whereof the tendency is to impede or misdirect the operations
of that power which is employed in guarding against mischiefs
resulting from the delinquency of internal adversaries, by expedients
that come to be applied beforehand; or of that which is
employed in guarding against the mischiefs that might be occasioned by
physical calamities. By offences against the public force, such
offences whereof the tendency is to impede or misdirect the operations
of that power which. destined to guard the public from the mischiefs
which may result from the hostility of foreign adversaries, and, in
case of necessity, in the capacity of ministers of justice, from
mischiefs of the number of those which result from the delinquency of
internal adversaries. By offences against the increase of the
national felicity, such offences whereof the tendency is to impede
or misapply the operations of those powers that are employed in the
conducting of various establishments, which are calculated to make, in
so many different ways, a positive addition to the stock of public
happiness.
XVIII. In this deduction, it may be asked, what place is left
for religion. This we shall see presently. For combating the various
kinds of offences above enumerated, that is, for combating all the
offences (those not excepted which we are now about considering) which
it is in man's nature to commit, the state has two great engines,
punishment and reward: punishment, to be applied to all,
and upon all ordinary occasions: reward, to be applied to a few, for
particular purposes, and upon extraordinary occasions. But whether or
no a man has done the act which renders him an object meet for
punishment or reward, the eyes of those, whosoever they be, to whom
the management of these engines is entrusted cannot always see, nor,
where it is punishment that is to be administered, can their hands be
always sure to reach him. To supply these deficiencies in point of
power, it is thought necessary, or at least useful (without
which the truth of the doctrine would be nothing to the
purpose), to inculcate into the minds of the people the belief of the
existence of a power applicable to the same purposes, and not liable
to the same deficiencies: the power of a supreme invisible being, to
whom a disposition of contributing to the same ends to which the
several institutions already mentioned are calculated to contribute,
must for this purpose be ascribed. It is of course expected that this
power will, at one time or other, be employed in the promoting of
those ends: and to keep up and strengthen this expectation among men,
is spoken of as being the employment of a kind of allegorical
personage, feigned, as before, for convenience of discourse, and
styled religion. To diminish, then, or misapply the influence
of religion, is pro tanto to diminish or misapply what power
the state has of combating with effect any of the before enumerated
kinds of offences; that is, all kinds of offences whatsoever. Acts
that appear to have this tendency may be styled offences against
religion. Of these then may be composed the tenth division of the
class of offences against the state,
XIX. If there be any acts which appear liable to affect the
state in any one or more of the above ways, by operating in prejudice
of the external security of the state, or of its internal security; of
the public force; of the increase of the national felicity; of the
public wealth; of the rational population; of the national wealth; of
the sovereignty; or of religion; at the same time that it is not clear
in which of all these ways they will affect it most, nor but that,
according to contingencies, they may affect it in one of these ways
only or in another; such acts may be collected together under a
miscellaneous division by themselves, and styled offences against
the national interest in general. Of these then may be composed
the eleventh and last division of the class of offences against the
state.
XX. We come now to class the fifth: consisting of multiform
offences. These, as has been already intimated, are either.
offences by falsehood, or offences concerning trust.
Under the head of offences by falsehood, may be comprehended,
XXI. Offences by falsehood, however diversified in
other particulars, have this in common, that they consist in some
abuse of the faculty of discourse, or rather, as we shall see
hereafter, of the faculty of influencing the sentiment of belief in
other men, whether by discourse or otherwise. The use of discourse is
to influence belief, and that in such manner as to give other men to
understand that things are as they are really. Falsehoods, of whatever
kind they be, agree in this: that they give men to understand that
things are otherwise than as in reality they are.
XXII. Personation, forgery, and perjury, are each of them distinguished from
other modes of uttering falsehood by certain special circumstances.
When a falsehood is not accompanied by any of those circumstances, it
maybe styled simple falsehood. These circumstances are,
XXIII. We come now to the sub-divisions of offences by
falsehood. These will bring us back into the regular track of
analysis, pursued, without deviation, through the four preceding
classes.
XXIV. It is the common property, then, of the offences that
belong to this division, to run over the same ground that is occupied
by those of the preceding classes. But some of them, as we shall see,
are apt, on various occasions, to drop or change the names which bring
them under this division: this is chiefly the ease with regard to
simple falsehoods. Others retain their names unchanged; and even
thereby supersede the names which would otherwise belong to the
offences which they denominate: this is chiefly the case with regard to personation, forgery,
and perjury. When this circumstance then, the circumstance of
falsehood, intervenes, in some cases the name which takes the lead is
that which indicates the offence by its effect; in other cases, it is
that which indicates the expedient or instrument as it were by the
help of which the offence is committed. Falsehood, take it by itself,
consider it as not being accompanied by any other material
circumstances, nor therefore productive of any material effects, can
never, upon the principle of utility, constitute any offence at all.
Combined with other circumstances, there is scarce any sort of
pernicious effect which it may not be instrumental in producing. It is
therefore rather in compliance with the laws of language, than in
consideration of the nature of the things themselves, that falsehoods
are made separate mention of under the name and in the character of
distinct offences. All this would appear plain enough, if it were now
a time for entering into particulars: but that is what cannot be done,
consistently with any principle of order or convenience, until the
inferior divisions of those other classes shall have been previously
exhibited.
XXV. We come now to offences against trust. A trust is, where there
is any particular act which one party, in the exercise of some
power, or some right, which is conferred on him, is
bound to perform for the benefit of another. Or, more fully, thus: A
party is said to be invested with a trust, when, being invested
with a power, or with a right, there is a certain
behaviour which, in the exercise of that power, or of that right, he
is bound to maintain for the benefit of some other party. In such
case, the party first mentioned is styled a trustee: for the other
party, no name has ever yet been found: for want of a name, there
seems to be no other resource than to give a new and more extensive
sense to the word beneficiary, or to say at length the party
to be benefited.
XXVI. Now it may occur, that a trust is oftentimes
spoken of as a species of condition: that a trust is also
spoken of as a species of property: and that a condition itself
is also spoken of same light. It may be thought, therefore, that in
the first class, the division of offences against condition should
have been included under that of the offences against property: and
that at any rate, so much of the fifth class now before us as contains
offences against trust, should have been included under one or other
of those two divisions of the first class. But upon examination it
will appear, that no one of these divisions could with convenience,
nor even perhaps with propriety, have been included under either of
the other two. It will appear at the same time, that there is an
intimate connection subsisting amongst them all: insomuch that of the
lists of the offences to which they are respectively exposed, any one
may serve in great measure as a model for any other. There are certain
offences to which all trusts as such are exposed: to all these
offences every sort of condition will be found exposed: at the same
time that particular species of the offences against trust will, upon
their application to particular conditions, receive different
particular denominations. It will appear also, that of the two groups
of offences into which the list of those against trust will be found
naturally to divide itself, there is one, and but one, to which
property, taken in its proper and more confined sense, stands exposed:
and that these, in their application to the subject of property, will
be found susceptible of distinct modifications, to which the usage of
language, and the occasion there is for distinguishing them in point
of treatment, make it necessary to find names.
XXVI. In the first place, as there are, or at least may be (as
we shall see) conditions which are not trusts, so there are trusts of
which the idea would not be readily and naturally understood to be
included under the word condition: add to which, that of those
conditions which do include a trust, the greater number include other
ingredients along with it: so that the idea of a condition, if on the
one hand it stretches beyond the idea of a trust, does on the other
hand fall short of it. Of the several sorts of trusts, by far the most
important are those in which it is the public that stands in the
relation of beneficiary. Now these trusts, it should seem,
would hardly present themselves at first view upon the mention of the
word condition. At any rate, what is more material, the most
important of the offences against these kinds of trust would not seem
to be included under the denomination of offences against condition.
The offences which by this latter appellation would be brought to
view, would be such only as seemed to affect the interests of an
individual: of him, for example, who is considered as being invested
with that condition. But in offences against public trust, it is the
influence they have on the interests of the public that constitutes by
much the most material part of their pernicious tendency: the
influence they have on the interests of any individual, the only part
of their influence which would be readily brought to view by the
appellation of offences against condition, is comparatively as
nothing. The word trust directs the attention at once to the interests
of that party for whom the person in question is trustee: which party,
upon the addition of the epithet public, is immediately understood to
be the body composed of the whole assemblage, or an indefinite portion
of the whole assemblage of the members of the state. The idea
presented by the words public trust is clear and unambiguous:
it is but an obscure and ambiguous garb that that idea could be
expressed in by the words public condition. It appears,
therefore, that the principal part of the offences, included under the
denomination of offences against trust, could not, commodiously at
least have been included under the head of offences against condition.
XXVI. It is evident enough, that for the same reasons neither
could they have been included under the head of offences against
property. It would have appeared preposterous, and would have argued a
total inattention to the leading principle of the whole work, the
principle of utility, to have taken the most mischievous and alarming
part of the offences to which the public stands exposed, and forced
them into the list of offences against the property of an individual:
of that individual, to wit, who in that case would be considered as
having in him the property of that public trust, which by the offences
in question is affected.
XXVI. If after all, notwithstanding the rule here given for
separating conditions from articles of property, any object should
present itself which should appear to be referable, with equal
propriety, to either head, the inconvenience would not be material;
since in such cases, as will be seen a little farther on, whichever
appellation were adopted, the list of the offences, to which the
object stands exposed, would be substantially the same.
XXVII. Offences against trust may be distinguished, in the
first place, into such as concern the existence of the trust in the
hands of such or such a person, and such as concern the exercise of
the functions that belong to it. First then, with regard to such as
relate to its existence. An offence of this description, like one of
any other description, if an offence it ought to be, must to some
person or other import a prejudice. This prejudice maybe distinguished
into two branches:
So much for the offences which concern the existence or possession of a trust: those with concern the exercise of the functions that belong to it may be thus conceived. You are in possession of a trust: the time then for your acting in it must, on any given occasion, (neglecting, for simplicity's sake, the then present instant) be either past or yet to come. If past, your conduct on that occasion must have been either conformable to the purposes for which the trust was instituted, or uncomformable: if comformable, there has been no mischief in the case: if unconformable, the fault has been either in yourself alone, or in some other person, or in both: in as far as it has lain in yourself, it has consisted either in your not doing something which you ought to do, in which case it may be styled negative breach of trust; or in your doing something which you ought not to do: if in the doing something which you ought not to do, the party to whom the prejudice has accrued is either the same for whose benefit the trust was instituted, or in some other party at large: in the former of these cases, the offence may be styled positive breach of trust. Supposing the time for your acting in the trust to be yet to come, the effect of any act which tends to render it actually and eventually unconformable, or to produce a chance of its being so. IN the former of these cases, it can do no otherwise than take one or other of the shapes that have just been mentioned. In the latter case, the blame must lie either in yourself alone, or in some other person, or in both together, as before. If in another person, the acts whereby he may tend to render your conduct
unconformable, must be exercised either on yourself, or on other
objects at large. If exercised on yourself, the influence they possess
must either be such as operates immediately on your body, or such as
operates immediately on your mind. In the latter case, again, the
tendency of them must be to deprive you either of the knowledge, or of
the power, or of the inclination, which would be necessary to your
maintaining such a conduct as shall be conformable to the purposes in
question. If they be such, of which the tendency is to deprive you of the
inclination in question, it must be by applying to your will the force
of some seducing motive.
And thus we have thirteen sub-divisions of offences
against trust: viz.,
XXVIII. From what has been said, it appears that there cannot
be any other offences, on the part of a trustee, by which a
beneficiary can receive on any particular occasion any
assignable specific prejudice. One sort of acts, however, there are by
which a trustee may be put in some danger of receiving a
prejudice, although neither the nature of the prejudice, nor the
occasion on which he is in danger of receiving it, should be
assignable. These can be no other than such acts, whatever they may
be, as dispose the trustee to be acted upon by a given bribe with
greater effect than any with which he could otherwise be acted upon:
or in other words, which place him in such circumstances as have a
tendency to increase the quantum of his sensibility to the action of
any motive of the sort in question. Of these acts, there seem to be no
others, that will admit of a description applicable to all places and
times alike, than acts of prodigality on the part of the
trustee. But in acts of this nature the prejudice to the
beneficiary is contingent only and unliquidated; while the
prejudice to the trustee himself is certain and liquidated. If
therefore on any occasion it should be found advisable to treat it on
the footing of an offence, it will find its place more naturally in
the class of self-regarding ones.
XXIX. As to the subdivisions of offences against trust, these
are perfectly analogous to those of offences by falsehood. The trust
may be private, semi-public, or public: it may concern property,
person, reputation, or condition; or any two or more of those articles
at a time: as will be more particularly explained in another place.
Here too the offence, in running over the ground occupied by the three
prior classes, will in some instances change its name, while in others
it will not.
XXX. Lastly, if it be asked, What sort of relation there
subsists between falsehoods on one hand, and offences concerning trust
on the other hand; the answer is, they are altogether disparate.
Falsehood is a circumstance that may enter into the composition of any
sort of offence, those concerning trust, as well as any other: in some
as an accidental, in others as an essential instrument. Breach or
abuse of trust are circumstances which, in the character of accidental
concomitants, may enter into the composition of any other offences
(those against falsehood included) besides those to which they
respectively give name.
§3. Genera of Class I
XXXI. Returning now to class the first, let
us pursue the distribution a step farther, and branch out the several
divisions of that class, as above exhibited, into their respective
genera, that is, into such minuter divisions as are capable of
being characterised by denominations of which a great part are already
current among the people. In this place the analysis must stop. To
apply it in the same regular form to any of the other classes seems
scarcely practicable: to semi-public, as also to public offences, on
account of the interference of local circumstances: to self-regarding
ones, on account of the necessity it would create of deciding
prematurely upon points which may appear liable to controversy: to
offences by falsehood, and offences against trust, on account of the
dependence there is between this class and the three former. What
remains to be done in this way, with reference to these four classes,
will require discussion, and will therefore be introduced with more
propriety in the body of the work, than in a preliminary part, of
which the business is only to draw outlines.
XXXII. An act, by which the happiness of an individual is
disturbed, is either simple in its effects or complex.
It may be styled simple in its effects, when it affects him in one
only of the articles or points in which his interest, as we have seen,
is liable to be affected: complex, when it affects him in several of
those points at once. Such as are simple in their effects must of
course be first considered.
XXXIII. In a simple way, that is in one way at a time, a man's
happiness is liable to be disturbed either
And thus we have nine genera or kinds of personal injuries; which, when ranged in
the order most commodious for examination, will stand as follows;
viz.,
XXXIV. We come now to offences against reputation merely. These
require but few distinctions. In point of reputation there is but one
way of suffering, which is by losing a portion of the good-will of
others. Now, in respect of the good-will which others bear you, you
may be a loser in either of two ways:
XXXV. If the property of one man suffers by the delinquency of
another, such property either was in trust with the offender, or it
was not: if it was in trust, the offence is a breach of trust, and of
whatever nature it may be in other respects, may be styled
dissipation in breach of trust, or dissipation of property
in trust. This is a particular case: the opposite one is the more
common: in such case the several ways in which property may, by
possibility, become the object of an offence, may be thus conceived.
Offences against property, of whatever kind it be, may be
distinguished, as hath been already intimated, into such as concern
the legal possession of it, or right to it, and such as concern only
the enjoyment of it, or, what is the same thing, the exercise of that
right. Under the former of these heads come, as hath been already
intimated, the several offences of wrongful non-investment,
wrongful interception, wrongful divestment, usurpation, and
wrongful attribution. When in the commission of any of these
offences a falsehood has served as an instrument, and that, as it is
commonly called, a wilful, or as it might more properly be
termed, an advised one, the epithet fraudulent may be
prefixed to the name of the offence, or substituted in the room of the
word wrongful. The circumstance of fraudulency then may serve
to characterise a particular species, comprisable under each of those
generic heads: in like manner the circumstance of force, of
which more a little farther on, may serve to characterize another.
With respect to wrongful interception in particular, the
investitive event by which the title to the thing in question
should have accrued to you, and for want of which such title is,
through the delinquency of the offender, as it were, intercepted,
is either an act of his own, expressing it as his will, that you
should be considered by the law as the person who is legally in
possession of it, or it is any other event at large: in the former
case, if the thing, of which you should have been put into possession,
is a sum of money to a certain amount, the offence is that which has
received the name of insolvency; which branch of delinquency,
in consideration of the importance and extent of it, may be treated on
the footing of a distinct genus of itself.
We proceed now to consider offences which are complex in their
effects. Regularly, indeed, we should come to offences against
condition; but it will be more convenient to speak first of offences
by which a man's interest is affected in two of the preceding points
at once.
XXXVI. First, then, with regard to offences which affects
person and reputation together. When any man, by a mode of treatment
which affects the person, injures the reputation of another, his end
and purpose must have been either his own immediate pleasure, or that
sort of reflected pleasure, which in certain circumstances may be
reaped from the suffering of another. Now the only immediate pleasure
worth regarding, which any one can reap from the person of another,
and which at the same time is capable of affecting the reputation of
the latter, is the pleasure of the sexual appetites. This pleasure,
then, if reaped at all, must have been reaped either against the
consent of the party, or with consent. If with consent, the consent
must have been obtained either freely and fairly both, or freely but
not fairly, or else not even freely; in which case the fairness is out
of the question. If the consent be altogether wanting, the offence is
called rape: if not fairly obtained, seduction simply:
if not freely, it may be called forcible seduction. In any
case, either the offence has gone the length of consummation, or has
stopped short of that period; if it has gone that length, it takes one
or other of the names just mentioned: if not, it may be included alike
in all cases under the denomination of a simple lascivious injury.
Lastly, to take the case where a man injuring you in your
reputation, by proceedings that regard your person, does it for the
sake of that sort of pleasure which will sometimes result from the
contemplation of another's pain. Under these circumstances either the
offence has actually gone the length of a corporal injury, or it has
rested in menacement: in the first case it may be styled a corporal
insult; in the other, it may come under the name of insulting
menacement. And thus we have six genera, or kind of offences,
against person and reputation together; which, when ranged in the
order most commodious for consideration, will stand thus:
XXXVII. Secondly, with respect to those which affect person and
property together. That a force put upon the person of a man may be
among the means by which the title to property may be unlawfully taken
away or acquired, has been already stated. A force of this sort then
is a circumstance which may accompany the offences of wrongful
interception, wrongful divestment, usurpation, and wrongful
investment. But in these cases the intervention of this circumstance
does not happen to have given any new denomination to the offence. In
all or any of these cases, however, by prefixing the epithet
forcible, we may have so many names of offences, which may
either be considered as constituting so many species of the genera
belonging to the division of offences against property, or as so many
genera belonging to the division now before us. Among the offences
that concern the enjoyment of the thing, the case is the same with
wrongful destruction and wrongful endamagement; as also with wrongful
occupation and wrongful detainment. As to the offence of wrongful
occupation, it is only in the case where the thing occupied belongs to
the class of immovables, that, when accompanied by the kind of force
in question, has obtained a particular name which is in common use: in
this case it is called forcible entry: forcible detainment, as
applied also to immovables, but only to immovables, has obtained,
among lawyers at least, the name of forcible detainer. And thus
we may distinguish ten genera, or kinds of offences, against person
and property together, which, omitting for conciseness' sake the
epithet wrongful, will stand thus:
XXXVIII. We come now to offences against condition. A
man's condition or station in life is constituted by the legal
relation he bears to the persons who are about him; that is, as we
have already had occasion to show, by duties, which, by being
imposed on one side, give birth to rights or powers on
the other. These relations, it is evident, may be almost infinitely
diversified. Some means, however, may be found of circumscribing the
field within which the varieties of them are displayed. In the first
place, they must either be such as are capable of displaying
themselves within the circle of a private family, or such as require a
larger space. The conditions constituted by the former sort of
relations may be styled domestic: those constituted by the
latter, civil.
XXXIX. As to domestic conditions, the legal relations by
which they are constituted may be distinguished into
XL. We come now to consider the domestic or family relations,
which are purely of legal institution. It is to these in effect, that
both kinds of domestic conditions, considered as the work of law, are
indebted for their origin. When the law, no matter for what purpose,
takes upon itself to operate, in a matter in which it has not operated
before, it can only be by imposing obligation. Now when a legal
obligation is imposed on any man, there are but two ways in which it
can in the first instance be enforced. The one is by giving the power
of enforcing it to the party in whose favour it is imposed: the other
is by reserving that power to certain third persons, who, in virtue of
their possessing it, are styled ministers of justice. In the first
case, the party favoured is said to possess not only a right as
against the party obliged, but also a power over him: in the
second case, a right only, uncorroborated by power. In the
first case, the party favoured may be styled a superior, and as
they are both members of the same family, a domestic superior,
with reference to the party obliged: who, in the same case, may be
styled a domestic inferior, with reference to the party
favoured. Now in point of possibility. it is evident, that domestic
conditions, or a kind of fictitious possession analogous to domestic
conditions, might have been looked upon as constituted, as well by
rights alone, without powers on either side, as by powers. But in
point of utility it does not seem expedient: and in point of fact,
probably owing to the invariable perception which men must have had of
the inexpediency, no such conditions seem ever to have been
constituted by such feeble bands. Of the legal relationships then,
which are capable of being made to subsist within the circle of a
family, there remain those only in which the obligation is enforced by
power. Now then, wherever any such power is conferred, the end or
purpose for which it was conferred (unless the legislator can be
supposed to act without a motive) must have been the producing of a
benefit to somebody: in other words, it must have been conferred for
the sake of somebody. The person then, for whose sake it is
conferred, must either be one of the two parties just mentioned, or a
third party: if one of these two, it must be either the superior or
the inferior. If the superior, such superior is commonly called a
master; and the inferior is termed his servant: and the
power may be termed a beneficial one. If it be for the sake of
the inferior that the power is established, the superior is termed a
guardian; and the inferior his ward: and the power,
being thereby coupled with a trust, may be termed a fiduciary
one. If for the sake of a third party, the superior may be termed
a superintendent; and the inferior his subordinate. This
third party will either be an assignable individual or set of
individuals, or a set of unassignable individuals. In this latter case
the trust is either a public or a semi-public one: and the condition
which it constitutes is not of the domestic, but of the civil kind. In
the former case, this third party or principal, as he may be
termed, either has a beneficial power over the superintendent, or he
has not: if he has, the superintendent is his servant, and
consequently so also is the subordinate: if not, the superintendent is
the master of the subordinate; and all the advantage which the
principal has over his superintendent, it that of possessing a set of
rights, uncorroborated by power; and therefore, as we have seen, not
fit to constitute a condition of the domestic kind. But be the
condition what it may which is constituted by these rights, of what
nature can the obligations be, to which the superintendent is capable
of being subjected by means of them? They are neither more nor less
than those which a man is capable of being subjected to by powers. It
follows, therefore, that the functions of a principal and his
superintendent coincide with those of a master and his servant; and
consequently that the offences relative to the two former conditions
will coincide with the offences relative to the two latter.
XLI. Offences to which the condition of a master, like any
other kind of condition, is exposed, may, as hath been already
intimated be distinguished into such as concern the existence a of the
condition itself, and such as concern the performance of the functions
of it, while subsisting.
XLII. As to the power by which the condition of a master is
constituted, this may be either limited or unlimited.
When it is altogether unlimited, the condition of the servant is
styled pure slavery. But as the rules of language are as far as
can be conceived from being steady on this head, the term slavery is
commonly made use of wherever the limitations prescribed to the power
of the master are looked upon as inconsiderable. Whenever any such
limitation is prescribed, a kind of fictitious entity is thereby
created, and, in quality of an incorporeal object of possession, is
bestowed upon the servant: this object is of the class of those which
are called rights: and in the present case is termed, in a more
particular manner, a liberty; and sometimes a privilege,
an immunity, or an exemption. Now those limitations
on the one hand, and these liberties on the other, may, it is evident,
be as various as the acts (positive or negative) which the master may
or may not have the power of obliging the servant to submit to or to
perform. Correspondent then to the infinitude of these liberties, is
the infinitude of the modifications which the condition of mastership
(or, as it is more common to say in such a case, that of servitude)
admits of. These modifications, it is evident, may, in different
countries, be infinitely diversified. Indifferent countries,
therefore, the offences characterised by the above names will, if
specifically considered, admit of very different descriptions. If
there be a spot upon the earth so wretched as to exhibit the spectacle
of pure and absolutely unlimited slavery, on that spot there will be
no such thing as any abuse of mastership; which means neither more nor
less than that no abuse of mastership will there be treated on the
footing of an offence. As to the question, Whether any, and what,
modes of servitude ought to XLIII. Next, with regard to the offences that may concern the
condition of a servant. It might seem at first sight, that a condition
of this kind could not have a spark of benefit belonging to it: that
it could not be attended with any other consequences than such as
rendered it a mere burthen. But a burthen itself may be a benefit, in
comparison of a greater burthen. Conceive a man's situation then to be
such, that he must, at any rate, be in a state of pure slavery. Still
may it be material to him, and highly material, who the person is whom
he has for his master. A state of slavery then, under one master, may
be a beneficial state to him, in comparison with a state of slavery
under another master. The condition of a servant then is exposed to
the several offences to which a condition, in virtue of its being a
beneficial one, is exposed. More than this, where the power of the
master is limited, and the limitations annexed to it, and thence the
liberties of the servant, are considerable, the servitude may even be
positively eligible. For amongst those limitations may be such as are
sufficient to enable the servant to possess property of his own: being
capable then of possessing property of his own, he may be capable of
receiving it from his master: in short, he may receive wages, or other
emoluments, from his master; and the benefit resulting from these
wages may be so considerable as to outweigh the burthen of the
servitude, and, by that means, render that condition more beneficial
upon the whole, and more eligible, than that of one who is not in any
respect under the control of any such person as a master. Accordingly,
by these means the condition of the servant may be so eligible, that
his entrance into it, and his continuance in it, may have been
altogether the result of his own choice. That the nature of the two
conditions may be the more clearly understood, it may be of use to
show the sort of correspondency there is between the offences which
affect the existence of the one, and those which affect the existence
of the other. That this correspondency cannot but be very intimate is
obvious at first sight. It is not, however, that a given offence in
the former catalogue coincides with an offence of the same name in the
latter catalogue: usurpation of servantship with usurpation of
mastership, for example. But the case is, that an offence of one
denomination in the one catalogue coincides with an offence of a
different denomination in the other catalogue. Nor is the coincidence
constant and certain: but liable to contingencies, as we shall see.
First, then, wrongful non-investment of the condition of a servant, if
it be the offence of one who should have been the master, coincides
with wrongful detrectation of mastership: if it be the offence of a
third person, it involves in it non-investment of mastership, which,
provided the mastership be in the eyes of him who should have been
master a beneficial thing, but not otherwise, is wrongful.
XLIV. We now come to the offences to which the condition of of a
guardian is exposed. A guardian is one who is invested with power over
another, living within the compass of the same family, and called a
ward; the power being to be exercised for the benefit of the ward. Now
then, what are the cases in which it can be for the benefit of one
man, that another, living within the compass of the same family,
should exercise power over him? Consider either of the parties by
himself, and suppose him, in point of understanding, to be on a level
with the other, it seems evident enough that no such cases can ever
exist. To the production of happiness on the part of any given person
(in like manner as to the production of any other effect which is the
result of human agency) three things it is necessary should concur:
knowledge, inclination, and physical power. Now as there is no man who
is so sure of being inclined, on all occasions, to promote your
happiness as you yourself are, so neither is there any man who upon
the whole can have had so good opportunities as you must have had of
knowing what is most conducive to that purpose. For who should
know so well as you do what it is that gives you pain or pleasure?
Moreover, as to power, it is manifest that no superiority in this
respect, on the part of a stranger, could, for a constancy, make up
for so great a deficiency as he must lie under in respect of two such
material points as knowledge and inclination. If then there be a case
where it can be for the advantage of one man to be under the power of
another, it must be on account of some palpable and very considerable
deficiency, on the part of the former, in point of intellects, or
(which is the same thing in other words) in point of knowledge or
understanding. Now there are two cases in which such palpable
deficiency is known to take place. These are,
XLV. The line then being drawn, or supposed to be so, it is
expedient to a man who cannot, with safety to himself, be left in his
own power, that he should be placed in the power of another. How long
then should he remain so? Just so long as his inability is supposed to
continue: that is, in the case of infancy, till he arrives at that
period at which the law deems him to be of full age: in the case of
insanity, till he be of sound mind and understanding. Now it is
evident, that this period, in the case of infancy, may not arrive for
a considerable time: and in the case of insanity, perhaps never. The
duration of the power belonging to this trust must therefore, in the
one case, be very considerable; in the other case, indefinite.
XLVI. The next point to consider, is what may be the
extent of it? for as to what ought to be, that is a matter to
be settled, not in a general analytical sketch, but in a particular
and circumstantial dissertation. By possibility, then, this power may
possess any extent that can be imagined: it may extend to any acts
which, physically speaking, it may be in the power of the ward to
perform himself, or be the object of if exercised by the guardian.
Conceive the power, for a moment, to stand upon this footing: the
condition of the ward stands now exactly upon a footing with pure
slavery. Add the obligation by which the power is turned into a trust:
the limits of the power are now very considerably narrowed. What then
is the purport of this obligation? Of what nature is the course of
conduct it prescribes? It is such a course of conduct as shall be best
calculated for procuring to the ward the greatest quantity of
happiness which his faculties, and the circumstances he is in, will
admit of: saving always, in the first place, the regard which the
guardian is permitted to show to his own happiness; and, in the second
place, that which he is obliged, as well as permitted, to show to that
of other men. This is, in fact, no other than that course of conduct
which the ward, did he but know how, ought, in point of prudence,
to maintain of himself: so that the business of the former is to
govern the latter precisely in the manner in which this latter ought
to govern himself. Now to instruct each individual in what manner to
govern his own conduct in the details of life, is the particular
business of private ethics: to instruct individuals in what manner to
govern the conduct of those whose happiness, during nonage, is
committed to their charge, is the business of the art of private
education. The details, therefore, of the rules to be given for that
purpose, any more than the acts which are capable of being committed
in violation of those rules, belong not to the art of legislation:
since, as will be seen more particularly hereafter, such details could
not, with any chance of advantage, be provided for by the legislator.
Some general outlines might indeed be drawn by his authority: and, in
point of fact, some are in every civilized state. But such
regulations, it is evident, must be liable to great variation: in the
first place, according to the infinite diversity of civil conditions
which a man may stand invested with in any given state: in the next
place, according to the diversity of local circumstances that may
influence the nature of the conditions which may chance to be
established in different states. On this account, the offences which
would be constituted by such regulations could not be comprised under
any concise and settled denominations, capable of a permanent and
extensive application. No place, therefore, can be allotted to them
here.
XLVII. By what has been said, we are the better prepared for
taking an account of the offences to which the condition in question
stands exposed. Guardianship being a private trust, is of course
exposed to those offences, and no others, by which a private trust is
liable to be affected. Some of them, however, on account of the
special quality of the trust, will admit of some further particularity
of description.
XLVIII. Next, with regard to offences to which the condition of
wardship is exposed. Those which first affect the existence of the
condition itself are as follows:
XLIX. We come now to the offences to which the condition or
of a parent stands exposed: and first, with regard to those by which
the very existence of the condition is affected. On this occasion, in
order to see the more clearly into the subject, it will be necessary
to distinguish between the natural relationship, and the legal
relationship which is superinduced as it were upon the natural one.
The natural one being constituted by a particular event, which, either
on account of its being already past, or on some other account, is
equally out of the power of the law neither is, nor can be made, the
subject of an offence. Is a man your father? It is not any
offence of mine that can make you not his son. Is he not your
father? It is not any offence of mine that can render him so. But
although he does in fact bear that relation to you, I, by an offence
of mine, may perhaps so manage matters, that he shall not be
thought to bear it: which, with respect to any legal advantages
which either he or you could derive from such relationship, will be
the same thing as if he did not. In the capacity of a witness, I may
cause the judges to believe that he is not your father, and to decree
accordingly: or, in the capacity of a judge, I may myself decree him
not to be your father. Leaving then the purely natural relationship as
an object equally out of the reach of justice and injustice, the legal
condition, it is evident, will stand exposed to the same offences,
neither more nor less, as every other condition, that is capable of
being either beneficial or burthensome, stands exposed to. Next, with
regard to the exercise of the functions belonging to this condition,
considered as still subsisting. In parentality there must be two
persons concerned, the father and the mother. The condition of a
parent includes, therefore, two conditions; that of a father, and that
of a mother, with respect to such or such a child. Now it is evident,
that between these two parties, whatever beneficiary powers, and other
rights, as also whatever obligations, are annexed to the condition of
a parent, may be shared in any proportions that can be imagined. But
if in these several objects of legal creation, each of these two
parties have severally a share, and if the interests of all these
parties are in any degree provided for, it is evident that each of the
parents will stand, with relation to the child, in two several
capacities: that of a master, and that of a guardian. The condition of
a parent then, in as far as it is the work of law, may be considered
as a complex condition, compounded of that of a guardian, and that of
a master. To the parent then, in quality of guardian, results a set of
duties, involving, as necessary to the discharge of them, certain
powers: to the child, in the character of a ward, a set of rights
corresponding to the parent's duties, and a set of duties
corresponding to his powers. To the parent again, in quality of
master, a set of beneficiary powers, without any other necessary
limitation (so long as they last) than what is annexed to them by the
duties incumbent on him in quality of a guardian: to the child, in the
character of a servant, a set of duties corresponding to the parent's
beneficiary powers, and without any other necessary limitation (so
long as they last) than what is annexed to them by the rights which
belong to the child in his capacity of ward. The condition of a parent
will therefore be exposed to all the offences to which either that of
a guardian or that of a master are exposed: and, as each of the
parents will partake, more or less, of both those characters, the
offences to which the two conditions are exposed may be nominally, as
they will be substantially, the same. Taking them then all together,
the offences to which the condition of a parent is exposed will stand
as follows:
L. Next with regard to the offences to which the filial
condition, the condition of a son or daughter, stands exposed. The
principles to be pursued in the investigation of offences of this
description have already been sufficiently developed. It will be
sufficient, therefore, to enumerate them without further discussion.
The only peculiarities by which offences relative to the condition in
question stand distinguished from the offences relative to all the
preceding conditions, depend upon this one circumstance; viz., that it
is certain every one must have had a father and a mother: at the same
time that it is not certain that every one must have had a master, a
servant, a guardian, or a ward. It will be observed all along, that
where a person, from whom, if alive, the benefit would be taken, or on
whom the burthen would be imposed, be dead, so much of the mischief is
extinct along with the object of the offence. There still, however,
remains so much of the mischief as depends upon the advantage or
disadvantage which might accrue to persons related, or supposed to be
related, in the several remoter degrees, to him in question. The
catalogue then of these offences stands as follows:
LI. We shall now be able to apply ourselves with some advantage
to the examination of the several offences to which the marital
condition, or condition of a husband, stands exposed. A husband is a
man, between whom and a certain woman, who in this case is called his
wife, there subsists a legal obligation for the purpose of their
living together, and in particular for the purpose of a sexual
intercourse to be carried on between them This obligation will
naturally be considered in four points of view:
LII. The offences then to which the condition of a husband of
will be exposed, will be the sum of those to which the two conditions
of master and guardian are exposed. Thus far the condition of a
husband, with respect to the general outlines of it, stands upon the
same footing as that of a parent. But there are certain reciprocal
services, which being the main subject of the matrimonial contract,
constitute the essence of the two matrimonial relations, and which
neither a master nor guardian, as such, nor a parent, at any rate,
have usually been permitted to receive. These must of course have been
distinguished from the indiscriminate train of services at large which
the husband in his character of master is empowered to exact, and of
those which in his character of guardian he is bound to render. Being
thus distinguished, the offences relative to the two conditions have,
in many instances, in as far as they have reference to these peculiar
services, acquired particular denominations.
LIII. Next with regard to the offences to which the condition
of a wife stands exposed. From the patterns that have been exhibited
already, the coincidences and associations that take place between the
offences that concern the existence of this condition and those which
concern the existence of the condition of a husband, may easily enough
be apprehended without farther repetitions. The catalogue of those now
under consideration will be precisely the same in every article as the
catalogue last exhibited.
LIV. Thus much for the several sorts of offences relative to
the several sorts of domestic conditions: those which are constituted
by such natural relations as are contiguous being included. There
remain those which are uncontiguous: of which, after so much as has
been said of the others, it will naturally be expected that some
notice should be taken. These, however, do not afford any of that
matter which is necessary to constitute a condition. In point of fact,
no power seems ever to be annexed to any of them. A grandfather,
perhaps, may be called by the law to take upon him the guardianship of
his orphan grandson: but then the power he has belongs to him not as
grandfather, but as guardian. In point of possibility, indeed, power
might be annexed to these relations, just as it might to any other.
But still no new sort of domestic condition would result from it:
since it has been shown that there can be no others, that, being
constituted by power, shall be distinct from those which have been
already mentioned. Such as they are, however, they have this in common
with the before-mentioned relations, that they are capable of
importing either benefit or burthen: they therefore stand exposed to
the several offences whereby those or any other relations are liable
to be affected in point of existence. It might be expected, therefore,
that in virtue of these offences, they should be added to the list of
the relations which are liable to be objects of delinquency. But the
fact is, that they already stand included in it: and although not
expressly named, yet as effectually as if they were. On the one hand,
it is only by affecting such or such a contiguous relation that any
offence affecting uncontiguous relations can take place. On the other
hand, neither can any offence affecting the existence of the
contiguous relations be committed, without affecting the existence of
an indefinite multitude of such as are uncontiguous. A false witness
comes, and causes it to be believed that you are the son of a woman,
who, in truth, is not your mother. What follows? An endless tribe of
other false persuasions – that you are the grandson of the father and
of the mother of this supposed mother: that you are the son of some
husband of hers, or, at least, of some man with whom she has
cohabited: the grandson of his father and his mother; and so on: the
brother of their other children, if they have any: the brother-in-law
of the husbands and wives of those children, if married: the uncle of
the children of those children: and so on. – On the other hand, that
you are not the son of your real mother, nor of your real father: that
you are not the grandson of either of your real grandfathers or
grandmothers; and so on without end: all which persuasions result
from, and are included in, the one original false persuasion of your
being the son of this your pretended mother.
LV. We come now to civil conditions: these, it may well be
imagined, may be infinitely various: as various as the acts which a
man may be either commanded or allowed, whether for his own benefit,
or that of others, to abstain from or to perform. As many different
denominations as there are of persons distinguished with a view to
such commands and allowances (those denominations only excepted which
relate to the conditions above spoken of under the name of domestic
ones) so many civil conditions one might enumerate. Means however,
more or less explicit, may be found out of circumscribing their
infinitude.
Now the case is, as hath been already intimated, that of these
civil conditions, those which are wont to be considered under that
name, are not distinguished by any uniform and explicit line from
those of which the materials are wont to be carried to the head of
property: a set of rights shall, in one instance, be considered as
constituting an article of property rather than a condition: while, in
another instance, a set of rights of the same stamp is considered as
constituting rather a condition than an article of property. This will
probably be found to be the case in all languages: and toe usage is
different again in one language from what it is in another. From these
causes it seems to be impracticable to subject the class of civil
conditions to any exhaustive method: so that for making a complete
collection of them there seems to be no other expedient than that of
searching the language through for them, and taking them as they come.
To exemplify this observation, it may be of use to lay open the
structure as it were of two or three of the principal sorts or classes
of conditions, comparing them with two or three articles of property
which appear to be nearly of the same complexion: by this means the
nature and generation, if one may so call it, of both these classes of
ideal objects may be the more clearly understood.
§ 4. Advantages of the present method
It was necessary that it should have two purposes in view: the
one, to exhibit, upon a scale more or less minute, a systematical
enumeration of the several possible modifications of delinquency,
denominated or undenominated; the other, to find places in the list
for such names of offences as were in current use: for the first
purpose, nature was to set the law; for the other, custom. Had the
nature of the things themselves been the only guide, every such
difference in the manner of perpetration, and such only, should have
served as a ground for a different denomination, as was attended with
a difference in point of effect. This however of itself would never
have been sufficient; for as on one hand the new language, which it
would have been necessary to invent, would have been uncouth, and in a
manner unintelligible: so on the other hand the names, which were
before in current use, and which, in spite of all systems, good or
bad, must have remained in current use, would have continued
unexplained. To have adhered exclusively to the current language,
would have been as bad on the other side; for in that case the
catalogue of offences, when compared to that of the mischiefs that are
capable of being produced, would have been altogether broken and
uncomplete.
LVII. A natural method, such as it hath been here attempted to
exhibit, seems to possess four capital advantages; not to mention
others of inferior note. In the first place, it affords such
assistance to the apprehension and to the memory, as those faculties
would in vain look for in any technical arrangement. That arrangement
of the objects of any science may, it should seem, be termed a
natural one, which takes such properties to characterise them
by, as men in general are, by the common constitution of man's nature,
independently of any accidental impressions they may have received
from the influence of any local or other particular causes, accustomed
to attend to: such, in a word, as naturally, that is readily
and at first sight, engage, and firmly fix, the attention of any one
to whom they have once been pointed out. Now by what other means
should an object engage or fix a man's attention, unless by
interesting him? and what circumstance belonging to any action can be
more interesting, or rather what other circumstance belonging to it
can be at all interesting to him, than that of the influence it
promises to have on his own happiness, and the happiness of those who
are about him? By what other mark then should he more easily find the
place which any offence occupies in the system, or by what other clue
should he more readily recall it?
LVIII. In the next place, it not only gives at first glance a general intimation of the nature
of each division of offences, in as far as that nature is determined
by some one characteristic property, but it gives room for a number of
general propositions to be formed concerning the particular offences
that come under that division, in such manner as to exhibit a variety
of other properties that may belong to them in common. It gives room
therefore, for the framing of a number of propositions concerning
them, which, though very general, because predicated of a great number
of articles, shall be as generally true.
LIX. In the third place, it is so contrived, that the very
place which any offence is made to occupy, suggests the reason of its
being put there. It serves to indicate not only that such and such
acts are made offences, but why they ought to be. By
this means, while it addresses itself to the understanding, it
recommends itself in some measure to the affections. By the intimation
it gives of the nature and tendency of each obnoxious act, it accounts
for, and in some measure vindicates, the treatment which it may be
thought proper to bestow upon that act in the way of punishment. To
the subject then it is a kind of perpetual apology: showing the
necessity of every defalcation, which, for the security and prosperity
of each individual, it is requisite to make from the liberty of every
other. To the legislator it is a kind of perpetual lesson: serving at
once as a corrective to his prejudices, and as a check upon his
passions. Is there a mischief which has escaped him? in a natural
arrangement, if at the same time an exhaustive one, he cannot fail to
find it. Is he tempted ever to force innocence within the pale of
guilt? the difficulty of finding a place for it advertises him of his
error. Such are the uses of a map of universal delinquency, laid down
upon the principle of utility: such the advantages, which the
legislator as well as the subject may derive from it. Abide by it, and
every thing that is arbitrary in legislation vanishes. An
evil-intentioned or prejudiced legislator durst not look it in the
face. He would proscribe it, and with reason: it would be a satire on
his laws.
LX. In the fourth place, a natural arrangement, governed as it
is by a principle which is recognised by all men, will serve alike for
the jurisprudence of all nations. In a system of proposed law, framed
in pursuance of such a method, the language will serve as a glossary
by which all systems of positive law might be explained, while the
matter serves as a standard by which they might be tried. Thus
illustrated, the practice of every nation might be a lesson to every
other: and mankind might carry on a mutual interchange of experiences
and improvements as easily in this as in every other walk of science.
If any one of these objects should in any degree be attained, the
labour of this analysis, severe as it has been, will not have been
thrown away.
§ 5. Characters of the five classes
LXI. It has been mentioned as an advantage possessed by this method, and not possessed by any other,
that the objects comprised under it are cast into groups, to which a
variety of propositions may be applied in common. A collection of
these propositions, as applied to the several classes, may be
considered as exhibiting the distinctive characters of each class. So
many of these propositions as can be applied to the offences belonging
to any given class, so many properties are they found to have in
common: so many of these common properties as may respectively be
attributed to them, so many properties may be set down to serve as
characters of the class. A collection of these characters it
may here be proper to exhibit. The more of them we can bring together,
the more clearly and fully will the nature of the several classes, and
of the offences they are composed of, be understood.
LXII. Characters of Class 1; composed of PRIVATE offences, or
offences against assignable individuals.
LXIII. Characters of Class 2; composed of SEMI-PUBLIC offences,
or offences affecting a whole subordinate class of persons.
LXIV. Characters of Class 3; consisting of SELF REGARDING
offences: offences against one's self.
LXV. Characters of Class 4; consisting of PUBLIC offences,
offences against the state in general.
LXVI. Characters of Class 5, or appendix: composed of MULTIFORM
or ANOMALOUS offences; and containing offences by FALSEHOOD, and
offences concerning TRUST.
§1. Limits between Private Ethics and the Art of legislation
II. Ethics at large may be defined, the art of directing men's
actions to the production of the greatest possible quantity of
happiness, on the part of those whose interest is in view.
III. What then are the actions which it can be in a man's power
to direct? They must be either his own actions, or those of other
agents. Ethics, in as far as it is the art of directing a man's own
actions, may be styled the art of self-government, or
private ethics.
IV. What other agents then are there, which, at the same
time that they are under the influence of man's direction, are
susceptible of happiness. They are of two sorts:
V. Now human creatures, considered with respect to the maturity
of their faculties, are either in an adult, or in a
non-adult state. The art of government, in as far as it
concerns the direction of the actions of persons in a non-adult state,
may be termed the art of education. In as far as this business
is entrusted with those who, in virtue of some private relationship,
are in the main the best disposed to take upon them, and the best able
to discharge, this office, it may be termed the art of private
education: in as far as it is exercised by those whose province it
is to superintend the conduct of the whole community, it may be termed
the art of public education.
VI. As to ethics in general, a man's happiness will
depend, in the first place, upon such parts of his behaviour as none
but himself are interested in; in the next place, upon such parts of
it as may affect the happiness of those about him. In as far as his
happiness depends upon the first-mentioned part of his behaviour, it
is said to depend upon his duty to himself. Ethics then, in as
far as it is the art of directing a man's actions in this respect, may
be termed the art of discharging one's duty to one's self: and the quality with which a man manifests by the discharge of this branch of duty (if duty it is to be called) is the of prudence. In as far as his happiness, and that of any other person or persons whose interests are considered, depends upon such parts of his behaviour as may affect the interests of those about, it may be said to depend on his duty to others ;or, to use a phrase now somewhat antiquated,
his duty to his neighbour. Ethics then, in as far as it is
the art of directing a man's actions in this respect, may be
termed the art of discharging one's duty to one's neighbour. Now
the happiness of one's neighbour may be consulted in two ways:
VII. It may here be asked, How it is that upon the
principle of private ethics, legislation and religion out of the
question, a man's happiness depends upon such parts of his conduct as
affect, immediately at least, the happiness of no one but himself:
this is as much as to ask, What motives (independent of such as
legislation and religion may chance to furnish) can one man have to
consult the happiness of another by what motives, or, which comes to
the same thing, by what obligations, can he be bound to obey the
dictates of probity and beneficence. In answer to this,
it cannot but be admitted, that the only interests which a man at all
times and upon all occasions is sure to find adequate motives
for consulting, are his own. Notwithstanding this, there are no
occasions in which a man has not some motives for consulting the
happiness of other men. In the first place, he has, on all occasions,
the purely social motive of sympathy or benevolence: in the next
place, he has, on most occasions, the semi-social motives of love of
amity and love of reputation. The motive of sympathy will act upon him
with more or less effect, according to the bias of his
sensibility: the two other motives, according to a variety of
circumstances, principally according to the strength of his
intellectual powers, the firmness and steadiness of his mind, the
quantum of his moral sensibility, and the characters of the people he
has to deal with.
VIII. Now private ethics has happiness for its end: and
legislation can have no other. Private ethics concerns every member,
that is, the happiness and the actions of every member, of any
community that can be proposed; and legislation can concern no more.
Thus far, then, private ethics and the art of legislation go hand in
hand. The end they have, or ought to have, in view, is of the same
nature. The persons whose happiness they ought to have in view, as
also the persons whose conduct they ought to be occupied in directing,
are precisely the same. The very acts they ought to be conversant
about, are even in a great, measure the same. Where then lies the
difference? In that the acts which they ought to be conversant about,
though in a great measure, are not perfectly and throughout
the same. There is no case in which a private man ought not to
direct his own conduct to the production of his own happiness, and of
that of his fellow-creatures: but there are cases in which the
legislator ought not (in a direct way at least, and by means of
punishment applied immediately to particular individual acts)
to attempt to direct the conduct of the several other members of the
community. Every act which promises to be beneficial upon the whole to
the community (himself included) each individual ought to perform of
himself: but it is not every such act that the legislator ought to
compel him to perform. Every act which promises to be pernicious upon
the whole to the community (himself included) each individual ought to
abstain from of him: but it is not every such act that the legislator
ought to compel him to abstain from.
IX. Where then is the line to be drawn? – We shall not have far to seek for it. The business is to give
an idea of the cases in which ethics ought, and in which legislation
ought not (in a direct manner at least) to interfere. If legislation
interferes in a direct manner, it must be by punishment. Now the cases in which punishment, meaning the punishment of
the political sanction, ought not to be inflicted, have been already
stated. 2. If then there be any of these cases in which, although
legislation ought not, private ethics does or ought to interfere,
these cases will serve to point out the limits between the two arts or
branches of science. These cases. it may be remembered, are of four
sorts:
X. 1. First then, as to the cases where punishment would be
groundless. In these cases it is evident, that the restrictive
interference of ethics would be groundless too. It is because, upon
the whole, there is no evil in the act, that legislation ought not to
endeavour to prevent it. No more, for the same reason, ought private
ethics.
XI. 2. As to the cases in which punishment would be
inefficacious. These, we may observe, may be divided into two
sets or classes. The first do not depend at all upon the natured of
the act: they turn only upon a defect in the timing of the punishment.
The punishment in question is no more than what, for any thing that
appears, ought to have been applied to the act in question. It ought,
however, to have been applied at a different time; viz., not till
after it had been properly denounced. These are the cases of an
ex-post-facto law; of a judicial sentence beyond the law; and
of a law not sufficiently promulgated.
The acts here in question then
might, for anything that appears, come properly under the department
even of coercive legislation: of course do they under that of private ethics. As to the other set of cases, in which punishment would be inefficacious; neither do these depend upon the nature of the act, that is, of the sort of act: they turn only upon some extraneous circumstances, with which an act of any sort may chance to be accompanied. These, however, are of such a nature as not only to exclude the application of legal punishment, but in general to leave little room
for the influence of private ethics. These are the cases where the
will could not be deterred from any act, even by the extraordinary
force of artificial punishment: as in the cases of extreme infancy,
insanity, and perfect intoxication: of course, therefore, it could not
by such slender and precarious force as could be applied by private
ethics. The case is in this respect the same, under the circumstances
of unintentionality with respect to the event of the action,
unconsciousness with regard to the circumstances, and mis-supposal
with regard to the existence of circumstances which have not existed;
as also where the force, even of extraordinary punishment, is rendered
inoperative by the superior force of a physical danger or threatened
mischief. It is evident, that in these cases, if the thunders of the
law prove impotent, the whispers of simple morality can have but
little influence.
XII. 3. As to the cases where punishment would be
unprofitable. These are the cases which constitute the great
field for the exclusive interference of private ethics. When a
punishment is unprofitable, or in other words too expensive, it is
because the evil of the punishment exceeds that of the offence. Now
the evil of the punishment, we may remember, is distinguishable into
four branches:
XIII. Punishment then, as applied to delinquency, may be
unprofitable in both or either of two ways:
XIV. Secondly, with regard to the cases in which political
punishment, as applied to delinquency, may be unprofitable, in virtue
of the danger there may be of its involving the innocent in the fate
designed only for the guilty. Whence should this danger then arise?
From the difficulty there may be of fixing the idea of the guilty
action: that is. of subjecting it to such a definition as shall be
clear and precise enough to guard effectively against misapplication.
This difficulty may arise from either of two sources: the one
permanent, to wit, the nature of the actions themselves: the
other occasional, I mean the qualities of the men who may have
to deal with those actions in the way of government. In as far as it
arises from the latter of these sources, it may depend partly upon the
use which the legislator may be able to make of
language; partly upon the use which, according to the apprehension of
the legislators the judge may be disposed to make of it.
As far as legislation is concerned, it will depend upon the degree of
perfecting to which the arts of language may have been carried, in the
first place, in the nation in general; in the next place. by the
legislator in particular. It is to a sense of this difficulty, as it
should seem, that we may attribute the caution with which most
legislators have abstained from subjecting to censure, on the part of
the law, such actions as come under the notion of rudeness, for
example, or treachery, or ingratitude. The attempt to bring acts of so
vague and questionable a nature under the control of law, will argue
either a very immature age, in which the difficulties which give birth
to that danger are not descried; or a very enlightened age, in which
they are overcome.
XV. For the sake of obtaining the clearer idea of the limits
between the art of legislation and private ethics, it may now be time
to call to mind the distinctions above established with regard to
ethics in general. The degree in which private ethics stands in need
of the assistance of legislation is different in the three branches of
duty above distinguished. Of the rules of moral duty, those which seem
to stand least in need of the assistance of legislation are the rules
of prudence. It can only be through some defect on the part of
the understanding, if a man be ever deficient in point of duty to
himself. If he does wrong, there is nothing else that it can be owing
to but either some inadvertence or some mis-supposal
with regard to the circumstances on which his happiness depends.
It is a standing topic of complaint, that a man knows too little of
himself. Be it so: but is it so certain that the legislator must know
more? It is plain, that of individuals the legislator can know
nothing: concerning those points of conduct which depend upon the
particular circumstances of each individual, it is plain, therefore,
that he can determine nothing to advantage. It is only with respect to
those broad lines of conduct in which all persons, or very large and
permanent descriptions of persons, may be in a way to engage, that he
can have any pretense for interfering; and even here the propriety of
his interference will, in most instances, lie very open to dispute. At
any rate, he must never expect to produce a perfect compliance by the
mere force of the sanction of which he is himself the author. All he
can hope to do, is to increase the efficacy of private ethics, by
giving strength and direction to the influence of the moral sanction.
With what chance of success, for example, would a legislator go about
to extirpate drunkenness and fornication by dint of legal punishment?
Not all the tortures which ingenuity could invent would compass it:
and, before he had made any progress worth regarding, such a mass of
evil would be produced by the punishment, as would exceed, a
thousandfold, the utmost possible mischief of the offence.. The great
difficulty would be in the procuring evidence; an object which could
not be attempted, with any probability of success, without spreading
dismay through every family, tearing the bonds of sympathy asunder,
and rooting out the influence of all the social motives. All that he
can do then, against offences of this nature, with any prospect of
advantage, in the way of direct legislation, is to subject them, in
cases of notoriety, to a slight censure, so as thereby to cover them
with a slight shade of artificial disrepute.
XVI. It may be observed, that with regard to this branch of
duty, legislators have, in general, been disposed to carry their
interference full as far as is expedient. The great difficulty here
is, to persuade them to confine themselves within bounds. A thousand
little passions and prejudices have led them to narrow the liberty of
the subject in this line, in cases in which the punishment is either
attended with no profit at all, or with none that will make up for the
expense.
XVII. The mischief of this sort of interference is more
particularly conspicuous in the article of religion. The reasoning, in
this case, is of the following stamp. There are certain errors, in
matters of belief, to which all mankind are prone: and for these
errors in judgment, it is the determination of a Being of infinite
benevolence, to punish them with an infinity of torments. But from
these errors the legislator himself is necessarily free: for the men,
who happen to be at hand for him to consult with, being men perfectly
enlightened, unfettered, and unbiased, have such advantages over all
the rest of the world, that when they sit down to enquire out the
truth relative to points so plain and so familiar as those in
question, they cannot fail to find it. This being the case, when the
sovereign sees his people ready to plunge headlong into an abyss of
fire, shall he not stretch out a hand to save them? Such, for example,
seems to have been the train of reasoning, and such the motives, which
led Lewis the XIVth into those coercive measures which he took for the
conversion of heretics and the confirmation of true believers. The
groundwork, pure sympathy and loving-kindness: the superstructure, all
the miseries which the most determined malevolence could have devised.
XVIII. The rules of probity are those, which in point of
expediency stand most in need of assistance on the part of the
legislator, and in which, in point of fact, his interference has been
most extensive. There are few cases in which it would be
expedient to punish a man for hurting himself: but there are
few cases, if any, in which it would not be expedient to punish a man
for injuring his neighbour. With regard to that branch of probity
which is opposed to offences against property, private ethics depends
in a manner for its very existence upon legislation. Legislation must
first determine what things are to be regarded as each man's property,
before the general rules of ethics, on this head, can have any
particular application. The case is the same with regard to offences
against the state. Without legislation there would be no such thing as
a state: no particular persons invested with powers to be
exercised for the benefit of the rest. It is plain, therefore, that in
this branch the interference of the legislator cannot any where be
dispensed with. We must first know what are the dictates of
legislation, before we can know what are the dictates of private
ethics.
XIX. As to the rules of beneficence, these, as far as concerns
matters of detail, must necessarily be abandoned in great measure to
the jurisdiction of private ethics. In many cases the beneficial
quality of the act depends essentially upon the disposition of the
agent; that is, upon the motive by which he appears to have been
prompted to perform it: upon their belonging to the head of sympathy,
love of amity, or love of reputation; and not to any head of
self-regarding motives. brought into play by the force of political
constraint: in a word, upon their being such as denominate his conduct
free and voluntary, according to one of the many senses
given to those ambiguous expressions. The limits of the law on this
head seem, however, to be capable of being extended a good deal
farther than they seem ever to have been extended hitherto. In
particular, in cases where the person is in danger, why should it not
be made the duty of every man to save another from mischief, when it
can be done without prejudicing himself, as well as to abstain from
bringing it on him? This accordingly is the idea pursued in the body
of the work.
XX. To conclude this section, let us recapitulate and
bring to a point the difference between private ethics. considered as
an art or science, on the one hand, and that branch of jurisprudence
which contains the art or science of legislation, on the other.
Private ethics teaches how each man may dispose himself to pursue the
course most conducive to his own happiness, by means of such motives
as offer of themselves: the art of legislation (which may be
considered as one branch of the science of jurisprudence) teaches how
a multitude of men, composing a community, may be disposed to pursue
that course which upon the whole is the most conducive to the
happiness of the whole community, by means of motives to be applied by
the legislator.
§ 2. Jurisprudence, its branches
XXII. A book of expository jurisprudence, is either
authoritative or unauthoritative. It is styled
authoritative, when it is composed by him who, by representing the
state of the law to be so and so, causeth it so to be; that is, of the
legislator himself: unauthoritative, when it is the work of any other
person at large.
XXIII. Now law, or the law, taken indefinitely,
is an abstract and collective term; which, when it means any thing,
can mean neither more nor less than the sum total of a number of
individual laws taken together. It follows, that of whatever other
modifications the subject of a book of jurisprudence is susceptible,
they must all of them be taken from some circumstance or other of
which such individual laws, or the assemblages into which they may be
sorted, are susceptible. The circumstances that have given rise to the principal branches of jurisprudence we are wont to hear of, seem to be as follows:
XXIV. In the first place, in point of extent, what is delivered
concerning the laws in question, may have reference either to the laws
of such or such a nation or nations in particular, or to the laws of
all nations whatsoever: in the first case, the book may be said to
relate to local, in the other, to universal jurisprudence.
XXV. In the second place, with regard to the political quality of the persons whose conduct is
the object of the law. These may, on any given occasion, be considered
either as members of the same state, or as members of different
states: in the first ease, the law may be referred to the head of
internal, in the second case, to that of international
jurisprudence.
XXVI. Internal jurisprudence, again, may either concern all the
members of a state indiscriminately, or such of them only as are
connected in the way of residence, or otherwise, with a particular
district. Jurisprudence is accordingly sometimes distinguished into
national and provincial. But as the epithet
provincial is hardly applicable to districts so small as many
of those which have laws of their own are wont to be, such as towns,
parishes, and manors; the term local (where universal
jurisprudence is plainly out of the question) or the term
particular, though this latter is not very characteristic,
might either of them be more commodious.
XXVII. Thirdly, with respect to time. In a work of the
expository kind, the laws that are in question may either be such as
are still in force at the time when the book is writing, or such as
have ceased to be in force. In the latter case the subject of it might
be termed ancient; in the former, present or living
jurisprudence: that is, if the substantive jurisprudence,
and no other, must at any rate be employed, and that with an
epithet in both cases. But the truth is, that a book of the former
kind is rather a book of history than a book of jurisprudence; and, if
the word jurisprudence be expressive of the subject, it is only
with some such words as history or antiquities prefixed.
And as the laws which are any where in question are supposed, if
nothing appears to the contrary, to be those which are in force, no
such epithet as that of present or living commonly
appears.
XXVIII. Fourthly, in point of expression, the laws in
question may subsist either in the form of statute or in that
of customary law. As to the difference between these two
branches (which respects only the article of form or expression) it
cannot properly be made appear till some progress has been made in the
definition of a law.
XXIX. Lastly, The most intricate distinction of
all, and that which comes most frequently on the carpet, is that which
is made between the civil branch of jurisprudence and the
penal, which latter is wont, in certain circumstances, to
receive the name of criminal.
1. For example. – It is worse to lose time than simply not to
gain. – A loss falls the lighter by being divided. – The suffering, of a
person hurt in gratification of enmity, is greater than the
gratification produced by the same course. – These, and a few others
which he will have occasion to exhibit at the head of another
publication, having the same claim to the appellation of axioms, as
those given by mathematicians under that name; since, referring to
universal experience as their immediate basis, they are incapable of
demonstration, and require only to be developed and illustrated, in
order to be recognised as incontestable.
The third, fourth, and fifth sections intended, as expressed in the text, to have been added to
this chapter, will not here, nor now be given; because to give them in
a manner tolerably complete and satisfactory, might require a
considerable volume. This volume will form a work of itself, closing
the series of works mentioned in the preface.
II. What is a law? What the parts of a law? The subject of these questions it is to be observed,
is the logical, the ideal, the intellectual whole
not the physical one: the law, and not the statute.
An enquiry, directed to the latter sort of object, could neither
admit of difficulty nor afford instruction. In this sense whatever is
given for law by the person or persons recognized as possessing the
power of making laws, is law. The Metamorphoses of Ovid,
if thus given, would be law. So much as was embraced by one and the
same act of authentication, so much as received the touch of the
sceptre at one stroke, is one law: a whole law, and nothing
more. A statute of George II made to substitute an or instead
of an and in a former statute is a complete law; a statute
containing an entire body of laws, perfect in all its parts, would not
be more so. By the word law then, as often as it occurs in the
succeeding pages is meant that ideal object, of which the part, the
whole, or the multiple, or an assemblage of parts, wholes, and
multiples mixed together, is exhibited by a statute; not the statute
which exhibits them.
III. Every law, when complete, is either of a coercive or an uncoercive nature. A coercive law is a command. An uncoercive, or rather a discoercive, law is
the revocation, in whole or in part, of a coercive law.
IV. What has been termed a declaratory law, sofar as it stands
distinguished from either a coercive or a discoercive law, is not
properly speaking a law. It is not the expression of an act of the
will exercised at the time: it is a mere notification of the existence
of a law, either of the coercive or the discoercive kind, as already
subsisting: of the existence of some document expressive of some act
of the will, exercised, not at the time, but at some former period. If
it does any thing more than give information of this fact, viz., of
the prior existence of a law of either the coercive or the discoercive
kind, it ceases pro tanto to be what is meant by a declaratory
law, and assuming either the coercive or the discoercive quality.
V. Every coercive law creates an offence, that is, converts
an act of some sort, or other into an offence. It is only by so
doing that it can impose obligation, that it can produce
coercion.
VI. A law confining itself to the creation of an offence, and a law commanding a punishment to be administered in case of the commision of such an offense, are two distinct laws, not parts (as they seem to have been generally accounted hitherto) of one and the same law. The acts they command are altogether different; the persons they are addressed to are altogether different. Instance, Let no man steal; and, Let the judge cause whoever is convicted of stealing to be hanged.
VII. A law of the discoercive kind, considered in itself, can have no
punitory law belonging to it: to receive the assistance and support of
a punitory in law, it must flrst receive that of a simply imperative
or coercive law, and it is to this latter that the punitory law will
attach itself, and not to the discoercive one. Example, discoercive
law. The sheriff has power to hang all such as the judge,
proceeding in due course of law, shall order him to hang. Example
of a coercive law, made in support of the above discoereive one.
Let no man hinder the sheriff from hanging such as the judge,
proceeding in due course of law, shall order him to hang. Example
of a punitory law, made in support of the above coercive one. Let
the judge cause to be imprisoned whosoever attempts to hinder the
sheriff from hanging one, whom the judge, proceeding in due course of
law, has ordered him to hang.
VIII. But though a simply imperative law, and the punitory law attached to it, are so far
distinct laws, that the former contains nothing of the latter, and the
latter, in its direct tenor, contains nothing of the former; yet by
implication, and that a necessary one, the punitory does
involve and include the import of the simply imperative law to which
it is appended. To say to the judge Cause to be hanged whoever in
due form of law is convicted of stealing, is, though not a direct,
yet as intelligible a way of intimating to men in general that
they must not steal, as to say to them directly, Do not steal:
and one sees, how much more likely to be efficacious.
IX. It should seem then, that, wherever a simply imperative law is to have a
punitory one appended to it, the former might be spared altogether:
in, which case, saving the exception (which naturally should seem not
likely to be a frequent one) of a law capable of answering its purpose
without such an appendage, there should be no occasion in the whole
body of the law for any other than punitory, or in other words than
penal, laws. And this, perhaps, would be the case, were it not for the
necessity of a large quantity of matter of the expository kind,
of which we come now to speak.
X. It will happen in the instance of many, probably of most, possibly of all commands endued with the
force of a public law, that, in the expression, given to such a
command it shall be necessary to have recourse to terms too complex in
their signification to exhibit the requisite ideas, without the
assistance of a greater or less quantity of matter of an expository
nature. Such terms, like the symbols used in algebraical notation, are
rather substitutes and indexes to the terms capable of themselves of
exhibiting the ideas in question, than the real and immediate
representatives of those ideas. Take for instance the law, Thou
shalt not steal. Such a command, were it to rest there, could
never sufficiently answer the purpose of a law. A word of so vague and
unexplicit a meaning cannot otherwise perform this office, than by
giving a general intimation of a variety of propositions, each
requiring, to convey it to the apprehension, a more particular and
ample assemblage of terms. Stealing, for example (according to a
definition not accurate enough for use, but sufficiently so for the
present purpose), is the taking of a thing which is another's, by
one who has no TITLE so to do, and is conscious of his
having none. Even after this exposition, supposing it a correct
one, can the law beregarded as completely expressed? Certainly not.
For what is meant by a man's having a TITLE to take a thing?
To be complete, the law must have exhibited, amongst a multitude
of other things, two catalogues: the one of events to which it has
given the quality of conferring title in such a case; the other
of the events to which it has given the quality of taking it away.
What follows? That for a man to have stolen, for a man to
have had no title to what he took, either no one of the
articles contained in the first of those lists must have happened
in his favour, or if there has, some one of the number of those
contained in the second must have happened to his prejudice.
XI. Such then is the nature of a general law, that while the imperative
part of it, the punctum saliens as it may be termed, of this
artificial body, shall not take up above two or three words, its
expository appendage, without which that imperative part could not
rightly perform its office, may occupy a considerable volume. But this
may equally be the case with a private order given in a family. Take
for instance one from a bookseller to his foreman. Remove, from
this shop to my new one, my whole stock, according to this printed
catalogue. – Remove, from this shop to my new one, my whole stock,
is the imperative matter of this order; the catalogue referred to
contains the expository appendage.
XII. The same mass of expository matter may serve in common for, may appertain in common to,
many commands, many masses of imperative matter. Thus, amongst other
things, the catalogue of collative and ablative events,
with respect to titles above spoken of (see No. X of this
note), will belong in common to all or most of the laws constitutive
of the various offences against property. Thus, in mathematical
diagrams, one and the same base shall serve for a whole cluster of
triangles.
XIII. Such expository matter, being of a complexion so different
from the imperative it would be no wonder if the connection of the
former with the latter should escape the observation: which.
indeed, is perhaps pretty generally the case. And so long as any mass
of legislative matter presents itself, which is not itself imperative
or the contrary, or of which the connection with matter of one of
those two descriptions is not apprehended, so long and so far the
truth of the proposition, That every law is a command or its
opposite, may remain unsuspected, or appear questionable; so long
also may the incompleteness of the greater part of those masses of
legislative matter, which wear the complexion of complete laws upon
the face of them, also the method to be taken for rendering them
really complete, remain undiscovered.
XIV. A circumstance, that will naturally contribute to increase the difficulty of the discovery,
is the great variety of ways in which the imperation of a law maybe
conveyed – the great variety of forms which the imperative part of a
law may indiscriminately assume: some more directly, some less
directly expressive of the imperative quality. Thou shalt not
steal. Let so man steal. Whoso stealeth shall be punished so and so.
If any man steal, he shall be punished so and so. Stealing is where a
man does so and so; the punishment for stealing is so and so. To
judges so and so named, and so and so constituted, belong the
cognizance of such and such offences; viz., stealing – and
so on. These are but part of a multitude of forms of words, in any of
which the command by which stealing is prohibited might equally be
couched: and it is manifest to what a degree, in some of them, the
imperative quality is clouded and concealed from ordinary
apprehension.
XV. After this explanation, a general proposition or two, that may be laid down, may help to afford some little insight into the structure and contents of a complete body of laws. – So many
different sorts of offences created, so many different laws of the
coercive kind: so many exceptions taken out of the
descriptions of those offences, so many laws of the discoercive
kind.
XVI. From the obscurity in which the limits of a law, and the distinction betwixt a law of the civil
or simply imperative kind and a punitory law, of are naturally
involved, results the obscurity of the limits betwixt a civil and a
penal code, betwixt a civil branch of the law and the penal.
Suppose two masses of legislative matter to be drawn up at this
time of day, the one under the name of a civil code, the other of a
penal code, each meant to be complete in its kind – in what general
way, is it natural to suppose, that the different sorts of matter, as
above distinguished, would be distributed between them?
XVII. The civil code would consist chiefly of mere masses of
expository matter. The imperative matter, to which those masses of
expository matter respectively appertained, would be found – not in
that same code – not in the civil code – nor in a pure state, free from
all admixture of punitory laws; but in the penal code – in a state of
combination – involved, in manner as above explained, in so many
correspondent punitory laws.
XVIII. The penal code then would consist principally of punitive laws, involving the imperative matter
of the whole number of civil laws: along with which would probably
also be found various masses of expository matter, appertaining not to
the civil, but to the punitory laws. The body of penal law enacted by
the Empress-Queen Maria Theresa, agrees pretty well with this account.
XX. In that enormous mass of confusion and inconsistency, the ancient Roman, or, as it is termed by
way of eminence, the civil law, the imperative matter, and even all
traces of the imperative character, seem at last to have been
smothered in the expository. Esto had been the language of
primaeval simplicity: esto had been the language of the twelve
tables. By the time of Justinian (so thick was the darkness raised by
clouds of commentators) the penal law had been crammed into an odd
corner of the civil – the whole catalogue of offences, and even of
crimes, lay buried under a heap of obligations – will was hid in
opinion – and the original esto had transformed itself
into videtur, in the mouths even of the most despotic
sovereigns.
P>XXI. Among the barbarous nations that grew up out of
the ruins of the Roman Empire, Law, emerging from under the mountain
of expository rubbish, reassumed for a while the language of command:
and then she had simplicity at least, if nothing else, to recommend
her.
XXII. Besides the civil and the penal, every complete body of
law must contain a third branch, the constitutional.
XXIII. Thus it is, that one and the same law, one and the
same command, will have its matter divided, not only between two great
codes, or main branches of the whole body of the laws, the civil and
the penal; but amongst three such branches, the civil, the penal and
the constitutional.
XXIV. In countries, where a great part of the law exists in no
other shape, than that of which in England is called common law
but might be more expressively termed judiciary, there must be
a great multitude of laws, the import of which cannot be sufficiently
made out for practice, without referring to this common law, for more
or less of the expository matter belonging to them. Thus in England
the exposition of the word title, that basis of the of whole
fabric of the laws of property, is nowhere else to be found. And, as
uncertainty is of the very essence of every particle of law so
denominated (for the instant it is clothed in a certain authoritative
form of words it changes its nature, and passes over to the other
denomination) hence it is that a great part of the laws in being in
such countries remain uncertain and incomplete. What are those
countries? To this hour, every one on the surface of the globe.
XXV. Had the science of architecture no fixed nomenclature
belonging to it – were there no settled names for distinguishing the
different sorts of buildings nor the different parts of the same
building from each other – what would it be? It would be what the
science of legislation, considered with respect to its form,
remains at present. Were there no architects who could distinguish
a dwelling-house from a barn, or a side-wall from a ceiling, what
would architects be? They would be what all legislators are at
present.
XXVI. From this very slight and imperfect sketch, may be
collected not an answer to the questions in the text but an
intimation, and that but an imperfect one, of the course to be taken
for giving such an answer; and, at any rate, some idea of the
difficulty, as well as of the necessity, of the, task.
Take, for instance, so many well-meant endeavours on the part of popular
bodies, and so many well-meant recommendations in ingenious books, to
restrain supreme representative assemblies from making laws in such
and such cases, or to such and such an effect. Such laws, to answer
the intended purpose, require a perfect mastery in the science of law
considered in respect of its form – in the sort of anatomy spoken of in
the preface to this work: but a perfect, or even a moderate insight
into that science, would prevent their being couched in those loose
and inadequate terms, in which they may be observed so frequently to
be conceived; as a perfect acquaintance with the dictates of utility
on that head would, in many, if not in most, of those instances,
discounsel the attempt. Keep to the letter, and in attempting to
prevent the making of bad laws, you will find them prohibiting the
making of the most necessary laws, perhaps even of all laws: quit the
letter, and they express no more than if each man were to say, Your
laws shall become ipso facto void, as often as they contain any thing which is not to my mind.
Of such unhappy attempts, examples may be
met with in the legislation of many nations: but in none more
frequently than in that newly-created nation, one of the most
enlightened, if not the most enlightened, at this day on the globe.
XXVII. Take for instance the Declaration of Rights, enacted
by the State of North Carolina, in convention, in or about the month
of September, 1788, and said to be copied, with a small exception,
from one in like manner enacted by the State of Virginia.
The following, to go no farther, is the first and fundamental article:
Not to dwell on the oversight of confining to
posterity the benefit of the rights thus declared, what follows? That –
as against those whom the protection, thus meant to be afforded,
includes – every law, or other order, divesting a man of the
enjoyment of life or liberty, is void.
Therefore this is the case, amongst others, with every coercive law.
Therefore, as against the persons thus protected, every order, for example, to pay money on the
score of taxation, or of debt from individual to, individual, or
otherwise, is void: for the effect of it, if complied with, is to
"deprive and divest him", pro tanto, of the enjoyment of
liberty, viz., the liberty of paying or not paying as he thinks
proper: not to mention the species opposed to imprisonment, in the
event of such a mode of coercion's being resorted to: likewise of property, which is itself a "means of acquiring, possessing and protecting property, and of pursuing and obtaining happiness and saftey.
Therefore also, as against such persons, every order to attack an armed enemy, in time of war, is also
void: for, the necessary effect of such an order is to "deprive some
of them of the enjoyment of life."
The above-mentioned consequences may suffice for examples, amongst an endless train of
similar ones.
Leaning on his elbow, in an attitude of profound and
solemn meditation, "What a multitude of things there are "
(exclaimed the dancing-master Marcel) "in a minuet! " – May we
now add? – and in a law.
The punishment should be adjusted in such manner to each particular offence, that for every
part of the mischief there may be a motive to restrain the offender
frown giving birth to it.
The punishment ought in no case to be more than what is
necessary to bring it into conformity with the rules here given.
That the quantity actually indicted on each individual
offender nay correspond to the quantity intended for similar offenders
in general, the several circumstances influencing sensibility ought
always to be taken into account.
To enable the value of the punishment to outweigh that of
the profit of the offense, it must be increased, in point of
magnitude, in proportion as it falls short in point of certainty.
XXI. There may be a few other circumstances or
considerations which may influence, in some small degree, the demand
for punishment: but as the propriety of these is either not so
demonstrable, or not so constant, or the application of them not so
determinate, as that of the foregoing, it may be doubted whether they
be worth putting on a level with the others.
he does, so
much the better: but lest he should not, it is necessary he should, at
all events, make that provision which depends upon himself.
XXVII.
It may be of use, in this place, to recapitulate the several
circumstances, which, in establishing the proportion betwixt
punishments and offenses, are to be attended to. These seem to be as
follows:
I. On the part of the offence:
1. The profit of the offense;
2. The mischief of the offense;
3. The profit and mischief of other greater or lesser offences,
of different sorts, which the offender may have to choose out of;
4. The profit and mischief of other offenses, of the same sort,
which the same offender may probably have been guilty of already.
5. The magnitude of the punishment: composed of its
intensity and duration;
6. The deficiency of the punishment in point of certainty;
7. The deficiency of the punishment in point of proximity;
8. The quality of the punishment;
9. The accidental advantage in point of quality of a
punishment, not strictly needed in point of quantity;
10. The use of a punishment of a particular quality, in the
character of a moral lesson.
11. The responsibility of the class of persons in a way
to offend;
12. The sensibility of each particular offender
13. The particular merits or useful qualities of any particular
offender, in case of a punishment which might deprive the community of
the benefit of them;
14. The multitude of offenders on any particular occasion.
15. The inclinations of the people, for or against any quantity
or mode of punishment;
16. The inclinations of foreign powers.
17. The necessity of making small sacrifices, in point of
proportionality, for the sake of simplicity.
Chapter XV: Of the Properties to be Given to a Lot of Punishment
The first property, therefore, that ought to be given to a lot
of punishment, is that of being variable in point of quantity, in
conformity to every variation which can take place in either the
profit or mischief of the offense. This property might, perhaps, be
termed, in a single word, variability.
1. By adding to the lesser punishment
another quantity of punishment of the same kind.
2. By adding to it another quantity of a different kind. The latter mode is not less
certain than the former: for though one cannot always be absolutely
sure, that to the same person a given punishment will appear greater
than another given punishment; yet one may be always absolutely sure,
that any given punishment, so as it does but come into contemplation,
will appear greater than none at all.
1. In the choice of a particular mode
of punishment, a punishment of a particular quality, independent of
the quantity.
2. In a particular set of solemnities distinct
from the punishment itself, and accompanying the execution of it.
In the first place, the four distinct ends into which the main
and general end of punishment is divisible, may give rise to so many
distinct properties, according as any particular mode of punishment
appear to be more particularly adapted to the compassing of one or of
another of those ends. To that of example, as being the
principal one, a particular property has already been adapted.
There remains the three inferior ones of reformation,
disablement, and compensation.
There is another case in which the property of remissibility
may appear to be of use: this is, where, although the offender has
been justly punished, yet on account of some good behaviour of his,
displayed at a time subsequent to that of the commencement of the
punishment, it may seem expedient to remit a part of it. But this it
can scarcely be, if the proportion of the punishment is, in other
respects, what it ought to be. The purpose of example is the more
important object, in comparison of that of reformation. It is not very
likely, that less punishment should be required for the former purpose
than for the latter. For it must be rather an extraordinary case, if a
punishment, which is sufficient to deter a man who has only thought of
it for a few moments, should not be sufficient to deter a man who has
been feeling it all the time. Whatever, then, is required for the
purpose of example, must abide at all events: it is not any
reformation on the part of the offender, that can warrant the
remitting of any part of it: if it could, a man would have nothing to
do but to reform immediately, and so free himself from the greatest
part of that punishment which was deemed necessary. In order, then, to
warrant the remitting of any part of a punishment upon this ground, it
must first be supposed that the punishment at first appointed was more
than was necessary for the purpose of example, and consequently that a
part of it was needless upon the whole. This, indeed, is apt
enough to be the case, under the imperfect systems that are as yet on
foot: and therefore, during the continuance of those systems, the
property of remissibility may, on this second ground likewise, as well
as on the former, be deemed a useful one. But this would not be the
case in any new-constructed system, in which the rules of
proportion above laid down should be observed. In such a system,
therefore, the utility of this property would rest solely on the
former ground.
Two of them are concerned in establishing a proper proportion
between a single offense and its punishment; viz.,
1. Variability.
2. Equability.
One, in establishing a proportion, between more offences than
one, and more punishments than one; viz.,
3. Commensurability.
4. Characteristicalness.
5. Exemplarity.
6. Frugality.
7. Subserviency to reformation.
8. Efficacy in disabling.
9. Subserviency to compensation.
10. Popularity.
11. Remissibility.
Chapter XVI: Division of Offenses
Any act may be an offence, which they whom the community of are in the habit of obeying shall be
pleased to make one: that to is, any act which they shall be pleased
to prohibit or to punish. But, upon the principle of utility, such
acts alone ought to be made offences, as the good of the
community requires should be made so.
1. Offences by falsehood: and
2. Offenses against trust.
First, then, with regard to offences against individuals.
In the present period of existence, a man's being and wellbeing, his
happiness and his security; in a word, his pleasures and his immunity
from pains, are all dependent, more or less, in the first place, upon
his own person; in the next place, upon the exterior objects
that surround him. These objects are either things, or
other persons. Under one or other of these classes must
evidently be comprised every sort of exterior object, by means of
which his interest can be affected. If then, by means of any offence,
a man should on any occasion become a sufferer, it must be in one or
other of two ways:
1. absolutely, to wit, immediately in his
own person; in which case the offence may be said to be an offence
against his person: or,
2. relatively, by reason of some
material relation which the before mentioned exterior objects
may happen to bear, in the way of causality to his happiness.
Now in as far as a man is in a way to derive either happiness or
security from any object which belongs to the class of things,
such thing is said to be his property, or at least he is
said to have a property or an interest therein: an
offence, therefore, which tends to lessen the facility he might
otherwise have of deriving happiness or security from an object which
belongs to the class of things may be styled an offence against his
property. With regard to persons, in as far as, from objects of this
class, a man is in a way to derive happiness or security, it is in
virtue of their services: in virtue of some services, which, by
one sort of inducement or another, they may be disposed to render him.
Now, then, take any man, by way of example, and the disposition,
whatever it may be, which he may be in to render you service, either
has no other connection to give birth or support to it, than the
general one which binds him to the whole species, or it has some other
connection more particular. In the latter case, such a connection may
be spoken of as constituting, in your favour, a kind of fictitious or
incorporeal object of property, which is styled your condition.
An offence, therefore, the tendency of which is to lessen the
facility you might otherwise have of deriving happiness from the
services of a person thus specially connected with you, may be styled
an offence against your condition in life, or simply against your
condition. Conditions in life must evidently be as various as the
relations by which they are constituted. This will be seen more
particularly farther on. In the mean time those of husband, wife,
parent, child, master, servant, citizen of such or such a city,
natural-born subject of such or such a country, may answer the purpose
of examples.
1. Offenses against person.
2. Offenses against reputation.
3. Offenses against property.
4. Offenses against condition.
5. Offenses against person and property together.
6. Offenses against person and reputation together.
1. Offences against external security.
2. Offences against justice.
3. Offences against the preventive branch of the police.
4. Offences against the public force.
5. Offences against the positive increase of the national felicity.
6. Offences against the public wealth.
7. Offences against population.
8. Offences against the national wealth.
9. Offences against the sovereignty.
10. Offences against religion.
11. Offences against the national interest in general. The way in which these several sorts of offences connect with one another, and with the interest of the public, that is, of an unassignable multitude of the individuals of which that body is
composed, may be thus conceived.
Next with regard to the mischief which an offence may bring
upon the public by its influence on the operations of the government.
This it may occasion either,
1. In a more immediate way, by its influence on those operations themselves:
2. In a more remote way, by its influence on the instruments by or by the help of
which those operations should be performed: or
3. In a more remote way still, by its influence on the sources from whence such
instruments are to be derived.
First then, as to the operations of government, the tendency of these, in as far as it is conformable to
what on the principle of utility it ought to be, is in every case
either to avert mischief from the community, or to make an addition to
the sum of positive good. Now mischief, we have seen, must come either
from external adversaries, from internal adversaries, or from
calamities. With regard to mischief from external adversaries, there
requires no further division. As to mischief from internal
adversaries, the expedients employed for averting it may be
distinguished into such as may be applied before the discovery
of any mischievous design in particular, and such as cannot be
employed but in consequence of the discovery of some such design: the
former of these are commonly referred to a branch which may be styled
the preventive branch of the police: the latter to that
of justice.
Secondly, As to the instruments which government,
whether in the averting of evil or in the producing of positive good,
can have to work with, these must be either persons or
things. Those which are destined to the particular function of
guarding against mischief from adversaries in general, but more
particularly from external adversaries, may be distinguished from the
rest under the collective appellation of the public military force,
and, for conciseness' sake, the military force. The rest
may be characterized by the collective appellation of the
public wealth.
Thirdly, with regard to the sources or funds
from whence these instruments, howsoever applied, must be derived,
such of them as come under the denomination of persons must be
taken out of the whole number of persons that are in the community,
that is, out of the total population of the state: so that the
greater the population, the greater may cæteris paribus be this
branch of the public wealth; and the less, the less. In like manner,
such as come under the denomination of things may be, and most
of them commonly are, taken out of the sum total of those things which
are the separate properties of the several members of the community:
the sum of which properties may be termed the national wealth
so that the greater the national wealth, the greater cæteris
paribus may be this remaining branch of the public wealth; and the
less, the less. It is here to be observed, that if the influence
exerted on any occasion by any individual over the operations of the
government be pernicious, it must be in one or other of two ways:
1. By causing, or tending to cause, operations not to be performed
which ought to be performed; in other words, by impeding
the operations of government. Or,
2. By causing operations to be performed which ought not to be performed; in other
words, by misdirecting them.
Lastly, to the total assemblage of the persons by whom the several political operations above mentioned
come to be performed, we set out with applying the collective
appellation of the government. Among these persons there
commonly is some one person, or body of persons whose office it
is to assign and distribute to the rest their several departments, to
determine the conduct to be pursued by each in the performance of the
particular set of operations that belongs to him, and even upon
occasion to exercise his function in his stead. Where there is any
such person, or body of persons, he or it may, according
as the turn of the phrase requires, be termed the sovereign, or
the sovereignty. Now it is evident, that to impede or misdirect
the operations of the sovereign, as here described, may be to impede
or misdirect the operations of the several departments of government
as described above.
By offences against the public wealth, such offences
whereof the tendency is to diminish the amount or misdirect the
application of the money, and other articles of wealth, which the
government reserves as a fund, out of which the stock of instruments
employed in the service above mentioned may be kept up. By offences
against population, such offences whereof the tendency is to
diminish the numbers or impair the political value of the sum total of
the members of the community. By offences against the national
wealth, such offences whereof the tendency is to diminish the
quantity, or impair the value, of the things which compose the
separate properties or estates of the several members of the
community.
1. Simple falsehoods.
2. Forgery.
3. Personation.
4. Perjury.
Let us observe in what particulars these four kinds of falsehood agree, and
in what they differ.
1. The form in which the falsehood is uttered.
2. The circumstance of its relating or not to the identity of the person
of him who utters it.
3. The solemnity of the occasion on which it is uttered. The particular application of these distinctive characters may more commodiously be reserved for another place.
By whatever means a mischief is brought about, whether
falsehood be or be not of the number, the individuals liable to be
affected by it must either be assignable or unassignable. If
assignable, there are but four material articles in respect to which
they can be affected: to wit, their persons, their properties, their
reputations, and their conditions in life. The case is the same, if,
though unassignable, they are comprisable in any class subordinate to
that which is composed of the whole number of members of the state. If
the falsehood tend to the detriment of the whole state, it can only be
by operating in one or other of the characters, which every act that
is an offence against the state must assume; viz., that of an offence
against external Security, against justice, against the preventive
branch of the police, against the public force, against the increase
of the national felicity, against the public wealth, against the
national population, against the national wealth, against the
sovereignty of the state, or against its religion.
The trustee is also said to have a trust conferred
or imposed upon him, to be invested with a trust, to
have had a trust given him to execute, to perform, to discharge, or to
fulfil. The party to be benefited, is said to have a trust established
or created in his favour: and so on through a ariety of other phrases.
Nor would it have been less improper to have
included conditions, all of them, under the head of property: and
thereby the whole catalogue of offences against condition, under the
catalogue of offences against property. True it is, that there are
offences against condition, which perhaps with equal propriety, and
without any change in their nature, might be considered in the light
of offences against property: so extensive and so vague are the ideas
that are wont to be annexed to both these objects. But there are other
offences which though with unquestionable propriety they might be
referred to the head of offences against condition, could not, without
the utmost violence done to language, be forced under the appellation
of offences against property. Property, considered with respect to the
proprietor, implies invariably a benefit, and nothing else: whatever
obligations or burthens may, by accident, stand annexed to it, yet in
itself it can never be otherwise than beneficial. On the part of the
proprietor, it is created not by any commands that are laid on him,
but by his being left free to do with such or such an article as he
likes. The obligations it is created by, are in every instance laid
upon other people. On the other hand, as to conditions, there are
several which are of a mixed nature, importing as well a burthen to
him who stands invested with them as a benefit: which indeed is the
case with those conditions which we hear most of under that name, and
which make the greatest figure.
There are even conditions which import nothing but burthen,
without any spark of benefit. Accordingly, when between two parties
there is such a relation, that one of them stands in the place of an
object of property with respect to the other; the word property
is applied only on one side; but the word condition is
applied alike to both: it is but one of them that is said on that
account to be possessed of property; but both of them are alike spoken
of as being possessed of or being invested with a condition: it is the
master alone that is considered as possessing a property, of which the
servant, in virtue of the services he is bound to render, is the
object: but the servant, not less than the master, is spoken of as
possessing or being invested with a condition.
The case is, that if a man's condition is ever spoken of as
constituting an article of his property, it is in the same
loose and indefinite sense of the word in which almost every other
offence that could be imagined might be reckoned into the list of
offences against property. If the language indeed were in every
instance, in which it made use of the phrase, object of property,
perspicuous enough to point out under that appellation the
material and really existent body, the person or the thing
in which those acts terminate, by the performance of which the
property is said to be enjoyed; if, in short, in the import
given to the phrase object of property, it made no other use of
it than the putting it to signify what is now called a corporeal
object, this difficulty and this confusion would not have
occurred. But the import of the phrase object of property, and
in consequence the import of the word property, has been made
to take a much wider range. In almost every case in which the law does
any thing for a man's benefit or advantage, men are apt to speak of
it, on some occasion or other, as conferring on him a sort of
property. At the same time, for one reason or other, it has in several
cases been not practicable, or not agreeable, to bring to view, under
the appellation of the object of his property, the thing in
which the acts, by the performance of which the property is said to be
enjoyed, have their termination, or the person in whom they have
their commencement. Yet something which could be spoken of under
that appellation was absolutely requisite. The expedient then has been
to create, as it were, on every occasion, an ideal being, and to
assign to a man this ideal being for the object of his property: and
these are the sort of objects to which men of science, in taking a
view of the operations of the law in this behalf, came, in process of
time, to give the name of incorporeal. Now of these incorporeal
objects of property the variety is prodigious. Fictitious entities of
this kind have been fabricated almost out of every thing: not
conditions only (that of a trustee included), but even
reputation have been of the number. Even liberty has
been considered in this same point of view: and though on so many
occasions it is contrasted with property, yet on other
occasions, being reckoned into the catalogue of possessions, it seems
to have been considered as a branch of property. Some of these
applications of the words property, object of property (the
last, for instance), are looked upon, indeed, as more figurative, and
less proper than the rest: but since the truth is, that where the
immediate object is incorporeal, they are all of them improper, it is
scarce practicable any where to draw the line.
Notwithstanding all this latitude, yet, among the relations in
virtue of which you are said to be possessed of a condition, there is
one at least which can scarcely, by the most forced construction, be
said to render any other man, or any other thing, the object of your
property. This is the right of persevering in a certain course of
action; for instance, in the exercising of a certain trade. Now to
confer on you this right, in a certain degree at least, the law has
nothing more to do than barely to abstain from forbidding you to
exercise it. Were it to go farther, and, for the sake of enabling you
to exercise your trade to the greater advantage, prohibit others from
exercising the like, then, indeed, persons might be found, who in a
certain sense, and by a construction rather forced than otherwise,
might be spoken of as being the objects of your property: viz., by
being made to render you that sort of negative service which consists
in the forbearing to do those acts which would lessen the profits of
your trade. But the ordinary right of exercising any such trade or
profession, as is not the object of a monopoly, imports no such thing;
and yet, by possessing this right, a man is said to possess a
condition: and by forfeiting it, to forfeit his condition.
After all, it will be seen, that there must be cases in which,
according to the usage of language, the same offence may, with more or
less appearance of propriety, be referred to the head of offences
against condition, or that of offences against property,
indifferently. In such cases the following rule may serve for drawing
the line. Wherever, in virtue of your possessing a property, or being
the object of a property possessed by another you are characterised,
according to the usage of language, by a particular name, such as
master, servant, husband, wife, steward, agent, attorney, or the like,
there the word condition may be employed in exclusion of the
word property: and an offence in which, in virtue of your
bearing such relation, you are concerned, either in the capacity of an
offender, or in that of a party injured, may be referred to the head
of offences against condition, and not to that of offences against
property. To give an example: Being bound, in the capacity of land
steward to a certain person, to oversee the repairing of a certain
bridge, you forbear to do so: in this case, as the services you are
bound to render are of the number of those which give occasion to the
party, from whom they are due, to be spoken of under a certain
generical name, viz., that of land steward, the offence of withholding them may be referred to the class of offences against condition. But suppose that, without being engaged in that general and miscellaneous course of service, which with reference to a particular person would denominate you his land steward, you were bound, whether by usage or by contract, to render him that single sort of service, you stand aggregated (for that of architect, mason, or the like, is not here in question), the offence you commit by withholding such service cannot with propriety be referred to the class of offences against condition: it can only therefore be referred to the class of offences against property.
By way of further distinction, it may be remarked, that where a man, in virtue
of his being bound to render, or of others being bound to render him,
certain services, is spoken of as possessing a condition, the
assemblage of services is generally so considerable, in point of
duration, as to constitute a course of considerable length, so as on a
variety of occasions to come to be varied and repeated: and in most
cases, when the condition is not of a domestic nature, sometimes for
the benefit of one person, sometimes for that of another. Services
which come to be rendered to a particular person on a particular
occasion, especially if they be of short duration, have seldom the
effect of occasioning either party to be spoken of as being
invested with a condition. The particular occasional services which
one man may come, by contract or otherwise, to be bound to render to
another, are innumerably various: but the number of conditions which
have names may be counted, and are, comparatively, but few.
These difficulties being cleared up, we now proceed to exhibit
an analytical view of the several possible offences against trust.
1. That which may fall on such persons as are or
should be invested with the trust:
2. That which may fall on the persons for whose sake it is or should be instituted, or on other
persons at large. To begin with the former of these branches. Let any
trust be conceived. The consequences which it is in the nature of it
to be productive of to the possessor, must, in as far as they are
material, be either of an advantageous or of a disadvantageous
nature: in as far as they are advantageous, the trust may be
considered as a benefit or privilege: in as far as they are
disadvantageous, it may be considered as a burthen. To consider
it then upon the footing of a benefit. The trust either is of the
number of those which ought by law to subsist; that is, which the
legislator meant should be established; or is not. If it is, the
possession which at any time you may be deprived of, with respect to
it, must at that time be either present or to come: if to come (in
which case it maybe regarded either as certain or as contingent), the
investitive event, or event from whence your possession of it should
have taken its commencement, was either an event in the production of
which the will of the offender should have been instrumental, or any
other event at large: in the former case, the offence may be termed
wrongful non-investment of trust: in the latter case,
wrongful interception of trust. If at the time of the offence
whereby you are deprived of it, you were already in possession of it,
the offence may be styled wrongful divestment of trust. In any
of these cases, the effect of the offence is either to put somebody
else into the trust, or not: if not, it is wrongful divestment,
wrongful interception, or wrongful divestment, and nothing more: if it
be, the person put in possession is either the wrong-doer himself, in
which case it may be styled usurpation of trust; or some other
person, in which case it may be styled wrongful investment, or
attribution, of trust. If the trust in question is not
of the number of those which ought to subsist, it depends upon the
manner in which one man deprives another of it, whether such
deprivation shall or shall not be an offence, and, accordingly,
whether non-investment, interception, or divestment, shall or shall
not be wrongful. But the putting any body into it must at any rate be
an offence: and this offence may be either usurpation or wrongful
investment, as before.
In the next place, to consider it upon the
footing of a burthen. In this point of view, if no other interest than
that of the persons liable to be invested with it were considered, it
is what ought not, upon the principle of utility, to subsist: if it
ought, it can only be for the sake of the persons in whose favour it
is established. If then it ought not on any account to subsist,
neither non-investment, interception, nor divestment, can be wrongful
with relation to the persons first mentioned, whatever they may be on
any other account, in respect of the manner in which they happen to be
performed: for usurpation, though not likely to be committed, there is
the same room as before: so likewise is there for wrongful investment;
which, in as far as the trust is considered as a burthen, may be
styled wrongful imposition of trust. If the trust, being still of the
burthensome kind, is of the number of those which ought to
subsist, any offence that can be committed, with relation to the
existence of it, must consist either in causing a person to be
in possession of it, who ought not to be, or in causing a
person not to be in possession of it who ought to be: in
the former case, it must be either usurpation or wrongful divestment,
as before: in the latter case, the person who is caused to be not in
possession, is either the wrong-doer himself, or some other: if the
wrong-doer himself, either at the time of the offence he was in
possession of it, or he was not: if he was, it may be termed
wrongful abdication of trust; if not, wrongful detrectation
or non-assumption: if the person, whom the offence causes
not to be in the trust, is any other person, the offence must be
either wrongful divestment, wrongful non-investment, or wrongful
interception, as before: in any of which cases to consider the trust
in the light of a burthen, it might also be styled wrongful
exemption from trust.
Lastly, with regard to the prejudice which the persons for
whose benefit the trust is instituted, or any other persons whose
interests may come to be affected by its existing or not existing in
such or such hands, are liable to sustain. Upon examination it will
appear, that by every sort of offence whereby the persons who are or
should be in possession of it are liable, in that respect, to sustain
a prejudice, the persons now in question are also liable to sustain a
prejudice. The prejudice, in this case, is evidently of a very
different nature from what it was of in the other: but the same
general names will be applicable in this case as in that. If the
beneficiaries, or persons whose interests are at stake upon the
exercise of the trust, or any of them, are liable to sustain a
prejudice, resulting from the quality of the person by whom it may be
filled, such prejudice must result from the one or the other of two
causes:
1. From a person's having the possession of it who ought not
to have it: or
2. From a person's not having it who ought: whether it
be a benefit or burthen to the possessor, is a circumstance that to
this purpose makes no difference. In the first of these cases the
offences from which the prejudice takes its rise are those of
usurpation of trust, wrongful attribution of trust, and wrongful
imposition of trust: in the latter, wrongful non-investment of trust,
wrongful interception of trust, wrongful divestment of trust, wrongful
abdication of trust, and wrongful detrectation of trust.
Lastly, This motive must be either of the coercive, or of the alluring kind; in other words,
it must present itself either in the shape of a mischief or of an
advantage. Now in none of all the cases that have been mentioned,
except the last, does the offence receive any new denomination;
according to the event it is either a disturbance of trust, or an
abortive attempt to be guilty of that offence. In this last it is
termed bribery; and it is that particular species of it which
may be termed active bribery, or bribe-giving. In this
case, to consider the matter on your part, either you accept of the
bribe, or you do not: if not, and you do not afterwards commit, or go
about to commit, either a breach or an abuse of trust, there is no
offence, on your part, in the case: if you do accept it, whether you
eventually do or do not commit the breach or the abuse which it is the
bribe-giver's intention you should commit, you at any rate commit an
offence which is also termed bribery: and which, for distinction sake,
may be termed passive bribery, or bribe-taking. As to
any farther distinctions, they will depend upon the nature of the
particular sort of trust in question, and therefore belong not to the
present place.
1. Wrongful non-investment of trust.
2. Wrongful interception of trust.
3. Wrongful divestment of trust.
4. Usurpation of trust.
5. Wrongful investment or attribution of trust.
6. Wrongful abdication of trust.
7. Wrongful detrectation of trust.
8. Wrongful imposition of trust.
9. Negative breach of trust.
10. Positive breach of trust.
11. Abuse of trust.
12. Disturbance of trust.
13. Bribery.
1. By actions referring to his own person itself; or
2. By actions referring to such external objects on which his happiness is more or less dependent. As to his
own person, it is composed of two different parts, or reputed parts,
his body and his mind. Acts which exert a pernicious influence on his
person, whether it be on the corporeal or on the mental part of it,
will operate thereon either immediately, and without affecting his
will, or mediately, through the intervention of that faculty: viz., by
means of the influence which they cause his will to exercise over his
body. If with the intervention of his will, it must be by mental
coercion: that is, by causing him to will to maintain, and
thence actually to maintain, a certain conduct which it is
disagreeable, or in any other way pernicious, to him to maintain. This
conduct may either be positive or negative: when positive, the
coercion is styled compulsion or constraint: when
negative, restraint. Now the way in which the coercion is
disagreeable to him, may be by producing either pain of body, or only
pain of mind. If pain of body is produced by it, the offence will come
as well under this as under other denominations, which we shall come
to presently. Moreover, the conduct which a man, by means of the
coercion, is forced to maintain, will be determined either
specifically and originally, by the determination of the particular
acts themselves which he is forced to perform or to abstain from, or
generally and incidentally, by means of his being forced to be or not
to be in such or such a place. But if he is prevented from being in
one place, he is confined thereby to another. For the whole
surface of the earth, like the surface of any greater or lesser body,
may be conceived to be divided into two, as well as into any other
number of parts or spots. If the spot then, which he is confined to,
be smaller than the spot which he is excluded from, his condition may
be called confinement: if larger, banishment. Whether an
act, the effect of which is to exert a pernicious influence on the
person of him who suffers by it operates with or without the
intervention of an act of his will, the mischief it produces will
either be mortal or not mortal. If not mortal, it will
either be reparable, that is temporary, or irreparable,
that is perpetual. If reparable, the mischievous act may be termed
a simple corporal injury; if irreparable, an irreparable
corporal injury. Lastly, a pain that a man experiences in his mind
will either be a pain of actual sufferance, or a pain of
apprehension. If a pain of apprehension, either the offender
himself is represented as intending to bear a part in the production
of it, or he is not. In the former case the offence may be styled
menacement: in the latter case, as also where the pain is a
pain of actual sufferance, a simple mental injury.
1. Simple corporal injuries.
2. Irreparable corporal injuries.
3. Simple injurious restrainment.
4. Simple injurious compulsion.
5. Wrongful confinement.
6. Wrongful banishment.
7. Wrongful homicide.
8. Wrongful menacement.
9. Simple mental injuries.
1. By the manner in which you
are thought to behave yourself; and
2. By the manner in which others behave, or are thought to behave, towards you.
To cause people to think that you yourself have so behaved, as to have been
guilty of any of those acts which cause a man to possess less than he
did before of the good-will of the community, is what may be styled
defamation.
But such is the constitution of human nature, and
such the force of prejudice, that a man merely by manifesting his own
want of good-will towards you, though ever so unjust in itself, and
ever so unlawfully expressed, may in a manner force others to withdraw
from you a part of theirs. When he does this by words, or by such
actions as have no other effect than in as far as they stand in the
place of words, the offence may be styled vilification. When it
is done by such actions as, besides their having this effect, are
injuries to the person, the offence may be styled a personal
insult: if it has got the length of reaching the body, a
corporal insult: if it stopped short before it reached that
length, it may be styled insulting menacement. And thus we have
two genera or kinds of offences against reputation merely; to
wit,
1. Defamation: and,
2. Vilification, or Revilement.
As to corporal insults, and insulting menacement, they belong to the
compound title of offences against person and reputation both
together.
Next, with regard to such of the offences against property as
concern only the enjoyment of the object in question. This object must
be either a service, or set of services, which should have been
rendered by some person, or else an article belonging to the
class of things. In the former ease, the offence may be styled
wrongful withholding of services. In the latter case it may
admit of farther modifications, which may be thus conceived: When any
object which you have had the physical occupation or enjoyment of,
ceases, in any degree, in consequence of the act of another man, and
without any change made in so much of that power as depends upon the
intrinsic physical condition of your person, to be subject to that
power; this cessation is either owing to change in the intrinsic
condition of the thing itself, or in its exterior situation with
respect to you, that is, to its being situated out of your reach.
In the former case, the nature of the change is either such as to put
it out of your power to make any use of it at all, in which case the
thing is said to be destroyed, and the offence whereby it is so
treated may be termed wrongful destruction: or such only as to
render the uses it is capable of being put to of less value than
before, in which case it is said to be damaged, or to have
sustained damage, and the offence may be termed wrongful
endamagement. Moreover, in as far as the value which a thing is of
to you is considered as being liable to be in some degree impaired, by
any act on the part of any other person exercised upon that thing,
although on a given occasion no perceptible damage should ensue, the
exercise of any such act is commonly treated on the footing of an
offence, which may be termed wrongful using or occupation.
If the cause of the thing's failing in its capacity of
being of use to you, lies in the exterior situation of it with
relation to you, the offence may be styled wrongful detainment.
Wrongful detainment, or detention, during any given period of
time, may either be accompanied with the intention of detaining the
thing for ever (that is for an indefinite time), or not: if it be, and
if it be accompanied at the same time with the intention of not being
amenable to law for what is done, it seems to answer to the idea
commonly annexed to the word embezzlement, an offence which is
commonly accompanied with breach of trust. In the case of wrongful
occupation, the physical faculty of occupying may have been obtained
with or without the assistance or consent of the proprietor, or other
person appearing to have a right to afford such assistance or consent.
If without such assistance or consent, and the occupation be
accompanied with the intention of detaining the thing for ever,
together with the intention of not being amenable to law for what is
done, the offence seems to answer to the idea commonly annexed to the
word theft or stealing. If in the same circumstances a
force is put upon the body of any person who uses, or appears to be
disposed to use, any endeavours to prevent the act, this seems to be
one of the cases in which the offence is generally understood to come
under the name of robbery.
If the physical faculty in question was obtained with
the assistance or consent of a proprietor or other person above spoken
of, and still the occupation of the thing is an offence, it may have
been either because the assistance or consent was not fairly or
because it was not freely obtained. If not fairly obtained, it
was obtained by falsehood, which, if advised, is in such a case
termed fraud: and the offence, if accompanied with the
intention of not being amenable to law, may be termed fraudulent
obtainment or defraudment. If not freely obtained,
it was obtained by force: to wit, either by a force put upon
the body, which has been already mentioned, or by a force put upon the
mind. If by a force put upon the mind, or in other words, by the
application of coercive motives, it must be by producing the
apprehension of some evil: which evil, if the act is an offence, must
be some evil to which on the occasion in question the one person has
no right to expose the other. This is one case in which, if the
offence be accompanied with the intention of detaining the thing for
ever, whether it be or be not accompanied with the intention of not
being amenable to law, it seems to agree with the idea of what is
commonly meant by extortion. Now the part a man takes in
exposing another to the evil in question, must be either a positive or
a negative part. In the former case, again, the evil must either be
present or distant. In the case then where the assistance or consent
is obtained by a force put upon the body, or where, if by a force put
upon the mind, the part taken in the exposing a man to the
apprehension of the evil is positive, the evil present, and the object
of it his person, and if at any rate the extortion, thus applied, be
accompanied with the intention of not being amenable to law, it seems
to agree with the remaining case of what goes under the name of
robbery.
As to dissipation in breach of trust, this, when
productive of a pecuniary profit to the trustee, seems to be one
species of what is commonly meant by peculation. Another, and
the only remaining one, seems to consist in acts of occupation
exercised by the trustee upon the things which are the objects of the
fiduciary property, for his own benefit, and to the damage of the
beneficiary. As to robbery, this offence, by the manner in which the
assistance or consent is obtained, becomes an offence against property
and person at the same time. Dissipation in breach of trust, and
peculation, may perhaps be more commodiously treated of under the head
of offences against trust. After these exceptions, we have thirteen
genera or principal kinds of offences against property, which, when
ranged in the order most commodious for examination, may stand as
follows, viz.,
I. Wrongful non-investment of property.
2. Wrongful interception of property.
3. Wrongful divestment of property.
4. Usurpation of
5. Wrongful investment of property.
6. Wrongful withholding of services.
7. Wrongful destruction or endamagement.
8. Wrongful occupation.
9. Wrongful detainment.
10. Embezzlement.
11. Theft.
12. Defraudment.
13. Extortion.
1. Corporal insults.
2. Insulting menacement.
3. Seduction.
4. Rape.
5. Forcible seduction.
6. Simple lascivious injuries.
1. Forcible interception of property.
2. Forcible divestment of property.
3. Forcible usurpation.
4. Forcible investment.
5. Forcible destruction or endamagement.
6. Forcible occupation of movables.
7. Forcible entry.
8. Forcible detainment of movables.
9. Forcible detainment of immovables.
10. Robbery.
1. Such as are superadded to relations purely natural: and
2. Such as, without any such natural basis, subsist purely by institution.
By relations purely natural, I mean those which may be said to subsist between certain
persons in virtue of the concern which they themselves, or certain
other persons, have had in the process which is necessary to the
continuance of the species. These relations may be distinguished, in
the first place, into contiguous and uncontiguous. The uncontiguous
subsist through the intervention of such as are contiguous. The
contiguous may be distinguished, in the first place, into
connubial, and post-connubial. Those which may be termed
connubial are two:
1. That which the male bears towards the female:
2. That which the female bears to the male. The
post-connubial are either productive or derivative. The
productive is that which the male and female above-mentioned bear each
of them towards the children who are the immediate fruit of their
union; this is termed the relation of parentality. Now as the
parents must be, so the children may be, of different sexes.
Accordingly the relation of parentality may be distinguished into four
species:
1. That which a father bears to his son: this is termed
paternity.
2. That which a father bears to his daughter: this
also is termed paternity.
3. That which a mother bears to her son:
this is called maternity.
4. That which a mother bears to her
daughter: this also is termed maternity. Uncontiguous natural
relations may be distinguished into immediate and remote.
Such as are immediate, are what one person bears to another in
consequence of their bearing each of them one simple relation to some
third person. Thus the paternal grandfather is related to the paternal
grandson by means of the two different kinds, which together they bear
to the father: the brother on the father's side, to the brother, by
means of the two relations of the same kind, which together they bear
to the father. In the same manner we might proceed to find places in
the system for the infinitely diversified relations which result from
the combinations that may be formed by mixing together the several
sorts of relationships by ascent, relationships by descent,
collateral relationships, and relationships by affinity:
which latter, when the union between the two parties through whom
the affinity takes place is sanctioned by matrimonial solemnities, are
termed relationships by marriage. But this, as it would be a
most intricate and tedious task, so happily is it, for the present
purpose, an unnecessary one. The only natural relations to which it
will be necessary to pay any particular attention, are those which,
when sanctioned by law, give birth to the conditions of husband and
wife, the two relations comprised under the head of parentality, and
the corresponding relations comprised under the head of filiality or
filiation.
What then are the relations of a legal kind which can be
superinduced upon the above-mentioned natural relations? They must be
such as it is the nature of law to give birth to and establish. But
the relations which subsist purely by institution exhaust, as we shall
see, the whole stock of relationships which it is in the nature of the
law to give birth to and establish. The relations then which can be
superinduced upon those which are purely natural, cannot be in
themselves any other than what are of the number of those which
subsist purely by institution: so that all the difference there can be
between a legal relation of the one sort, and a legal relation of the
other sort, is, that in the former case the circumstance which gave
birth to the natural relation serves as a mark to indicate where the
legal relation is to fix: in the latter case, the place where the
legal relation is to attach is determined not by that circumstance but
by some other. From these considerations it will appear manifestly
enough, that for treating of the several sorts of conditions, as
well natural as purely conventional, in the most commodious order, it
will be necessary to give the precedence to the latter. Proceeding
throughout upon the same principle, we shall all along give the
priority, not to those which are first by nature, but to those which
are most simple in point of description. There is no other way of
avoiding perpetual anticipations and repetitions.
First then, with regard to such as affect its existence. It is
obvious enough that the services of one man may be a benefit to
another: the condition of a master may therefore be a beneficial one.
It stands exposed, therefore, to the offences of wrongful
non-investment, wrongful interception, usurpation, wrongful
investment, and wrongful divestment. But how should it
stand exposed to the offences of wrongful abdication, wrongful
detrectation, and wrongful imposition? Certainly it cannot
of itself; for services, when a man has the power of exacting them or
not, as he thinks fit, can never be a burthen. But if to the powers,
by which the condition of a master is constituted, the law thinks fit
to annex any obligation on the part of the master; for instance, that
of affording maintenance, or giving wages, to the servant, or paying
money to anybody else; it is evident that in virtue of such obligation
the condition may become a burthen. In this case, however, the
condition possessed by the master will not properly speaking, be the
pure and simple condition of a master: it will be a kind of complex
object, resolvable into the beneficial condition of a master, and the
burthensome obligation which is annexed to it. Still however, if the
nature of the obligation lies within a narrow compass, and does not,
in the manner of that which constitutes a trust, interfere with the
exercise of those powers by which the condition of the superior is
constituted, the latter, notwithstanding this foreign mixture, will
still retain the name of mastership. In this case therefore, but not
otherwise, the condition of a master may stand exposed to the offences
of wrongful abdication, wrongful detrectation, and wrongful
imposition. Next as to the behaviour of persons with reference to
this condition, while considered as subsisting. In virtue of its being
a benefit, it is exposed to disturbance. This disturbance
will either be the offence of a stranger, or the offence of the
servant himself. Where it is the offence of a stranger, and is
committed by taking the person of the servant, in circumstances in
which the taking of an object belonging to the class of things would
be an act of theft, or (what is scarcely worth distinguishing from
theft) an act of embezzlement: it may be termed servant-stealing.
Where it is the offence of the servant himself, it is styled
breach of duty. Now the most flagrant species of breach of
duty, and that which includes indeed every other, is that which
consists in the servant's withdrawing himself from the place in which
the duty should be performed.
This species of breach of duty is termed elopement.
Again, in virtue of the power belonging to this condition, it is
liable, on the part of the master to abuse. But this power is
not coupled with a trust. The condition of a master is therefore not
exposed to any offence which is analogous to breach of trust. Lastly,
on account of its being exposed to abuse, it may be conceived to
stand, in point of possibility, exposed to bribery. But
considering how few, and how insignificant, the persons are who are
liable to be subject to the power here in question, this is an offence
which, on account of the want of temptation, there will seldom be any
example of in practice. We may therefore reckon thirteen sorts of
offences to which the condition of a master is exposed; viz.,
1. Wrongful non-investment of mastership.
2. Wrongful interception of mastership.
3. Wrongful divestment of mastership.
4. Usurpation of mastership.
5. Wrongful investment of mastership.
6. Wrongful abdication of mastership.
7. Wrongful detrectation of mastership.
8. Wrongful imposition of mastership.
9. Abuse of mastership.
10. Disturbance of mastership.
11. Breach of duty in servants.
12. Elopement of servants.
13. Servant-stealing.
be established or kept on foot? this
is a question, the solution of which belongs to the civil branch of
the art of legislation.
2. Wrongful interception of the condition of a servant, if it be the offence of
him who should have been master, coincides with wrongful detrectation
of mastership: if it be the offence of a third person, and the
mastership be a beneficial thing, it involves in it wrongful
interception of mastership.
3. Wrongful divestment of servantship, if
it be the offence of the master, but not otherwise, coincides with
wrongful abdication of mastership: if it be the offence of a stranger,
it involves in it divestment of mastership, which, in as far as the
mastership is a beneficial thing, is wrongful.
4. Usurpation of servantship coincides necessarily with wrongful imposition of
mastership: it will be apt to involve in it wrongful divestment of
mastership: but this only in the case where the usurper, previously to
the usurpation, was in a state of servitude under some other master.
5. Wrongful investment of servantship (the servantship being
considered as a beneficial thing) coincides with imposition of
mastership; which, if in the eyes of the pretended master the
mastership should chance to be a burthen, will be wrongful.
6. Wrongful abdication of servantship coincides with wrongful divestment
of mastership.
7. Wrongful detrectation of servantship, with wrongful
non-investment of mastership.
8. Wrongful imposition of servantship, if it be the offence of the pretended master, coincides with
usurpation of mastership: if it be the offence of a stranger, it
involves in it imposition of mastership, which, if in the eyes of the
pretended master the mastership should be a burthen, will be wrongful.
As to abuse of mastership, disturbance of mastership, breach of duty
in servants, elopement of servants, and servant-stealing, these are
offences which, without any change of denomination, bear equal
relation to both conditions. And thus we may reckon thirteen sorts of
offences to which the condition of a servant stands exposed: viz.,
1. Wrongful non-investment of servantship.
2. Wrongful interception of servantship.
3. Wrongful divestment of servantship.
4. Usurpation of servantship.
5. Wrongful investment of servantship.
6. Wrongful abdication of servantship.
7. Wrongful detrectation of servantship.
8. Wrongful imposition of servantship.
9. Abuse of mastership.
10. Disturbance of mastership.
11. Breach of duty in servants.
12. Elopement of servants.
13. Servant-stealing.
1. Where a man's intellect is not yet arrived at that state in which it is capable of
directing his own inclination in the pursuit of happiness: this is the
case of infancy.
2. Where by some particular known or unknown
circumstance his intellect has either never arrived at that state, or
having arrived at it has fallen from it: which is the case of
insanity.
By what means then is it to be ascertained whether a
man's intellect is in that state or no? For exhibiting the quantity of
sensible heat in a human body we have a very tolerable sort of
instrument, the thermometer; but for exhibiting the quantity of
intelligence, we have no such instrument. It is evident, therefore,
that the line which separates the quantity of intelligence which is
sufficient for the purposes of self-government from that which is not
sufficient, must be, in a great measure, arbitrary. Where the
insufficiency is the result of want of age, the sufficient quantity of
intelligence, be it what it may, does not accrue to all at the same
period of their lives. It becomes therefore necessary for legislators
to cut the gordian knot, and fix upon a particular period, at which
and not before, truly or not, every person whatever shall be deemed,
as far as depends upon age, to be in possession of this sufficient
quantity. In this case then a line is drawn which may be the same for
every man, and in the description of which, such as it is, whatever
persons are concerned may be certain of agreeing: the circumstance of
time affording a mark by which the line in question may be traced with
the utmost degree of nicety. On the other hand, where the
insufficiency is the result of insanity, there is not even this
resource: so that here the legislator has no other expedient than to
appoint some particular person or persons to give a particular
determination of the question, in every instance in which it occurs,
according to his or their particular and arbitrary discretion.
Arbitrary enough it must be at any rate, since the only way in which
it can be exercised is by considering whether the share of
intelligence possessed by the individual in question does or does not
come up to the loose and indeterminate idea which persons so appointed
may chance to entertain with respect to the quantity which is deemed
sufficient.
In the first place, breach of this species of trust
may be termed mismanagement of guardianship: in the second
place, of whatever nature the duties are which are capable of being
annexed to this condition, it must often happen, that in order to
fulfil them, it is necessary the guardian should be at a certain
particular place. Mismanagement of guardianship, when it consists in
the not being, on the occasion in question, at the place in question,
may be termed desertion of guardianship.
Thirdly, It is
manifest enough, that the object which the guardian ought to propose
to himself, in the exercise of the powers to which those duties are
annexed, is to procure for the ward the greatest quantity of happiness
which can be procured for him, consistently with the regard which is
due to the other interests that have been mentioned: for this is the
object which the ward would have proposed to himself, and might and
ought to have been allowed to propose to himself, had he been capable
of governing his own conduct. Now, in order to procure this happiness,
it is necessary that he should possess a certain power over the
objects on the use of which such happiness depends. These objects are
either the person of the ward himself, or other objects that are
extraneous to him. These other objects are either things or persons.
As to things, then, objects of this class, insofar as a man's
happiness depends upon the use of them, are styled his property.
The case is the same with the services of any persons over
whom he may happen to possess a beneficial power, or to whose services
he may happen to possess a beneficial right. Now when property of any
kind, which is in trust, suffers by the delinquency of him with whom
it is in trust, such offence, of whatever nature it is in other
respects, may be styled dissipation in breach of trust: and if
it be attended with a profit to the trustee, it may be styled
peculation.
Fourthly, For one person to exercise a power of any
kind over another, it is necessary that the latter should either
perform certain acts, upon being commanded so to do by the former, or
at least should suffer certain acts to be exercised upon himself. In
this respect a ward must stand upon the footing of a servant: and the
condition of a ward must, in this respect, stand exposed to the same
offences to which that of a servant stands exposed: that is, on the
part of a stranger, to disturbance, which, in particular
circumstances, will amount to theft: on the part of the ward,
to breach of duty: which, in particular circumstances, maybe
effected by elopement.
Fifthly, There does not seem to be any
offence concerning guardianship that corresponds to abuse of trust:
I mean in the sense to which the last-mentioned denomination has
been here confined. The reason is, that guardianship, being a trust of
a private nature, does not, as such, confer upon the trustee any
power, either over the persons or over the property of any party,
other than the beneficiary himself. If by accident it confers
on the trustee a power over any persons whose services constitute a
part of the property of the beneficiary, the trustee becomes thereby,
in certain respects, the master of such servants.
Sixthly, Bribery also is a sort of offence to which, in this case, there is not
commonly much temptation. It is an offence, however, which by
possibility is capable of taking this direction: and must therefore be
aggregated to the number of the offences to which the condition of a
guardian stands exposed. And thus we have in all seventeen of these
offences: viz.,
1. Wrongful non-investment of guardianship.
2. Wrongful interception of guardianship.
3. Wrongful divestment of guardianship.
4 Usurpation of guardianship.
5. Wrongful investment of guardianship.
6. Wrongful abdication of guardianship.
7. Detrectation of guardianship.
8. Wrongful imposition of guardianship.
9. Mismanagement of guardianship.
10. Desertion of guardianship.
11. Dissipation in prejudice of wardship.
12. Peculation in prejudice of wardship.
13. Disturbance of guardianship.
14. Breach of duty to guardians.
15. Elopement from guardians.
16. Ward-stealing.
17. Bribery in prejudice of wardship.
1. Wrongful non-investment of the condition of a ward. This, if it be the offence of one who should have
been guardian, coincides with wrongful detrectation of guardianship:
if it be the offence of a third person, it involves in it
non-investment of guardianship, which, provided the guardianship is,
in the eyes of him who should have been guardian, a desirable thing,
is wrongful.
2. Wrongful interception of wardship. This, if it be the
offence of him who should have been guardian, coincides with wrongful
detrectation of guardianship: if it be the offence of a third person,
it involves in it interception of guardianship, which, provided the
guardianship is, in the eyes of him who should have been guardian, a
desirable thing, is wrongful.
3. Wrongful divestment of wardship.
This, if it be the offence of the guardian, but not otherwise,
coincides with wrongful abdication of guardianship: if it be the
offence of a third person, it involves in it divestment of
guardianship, which, if the guardianship is, in the eyes of the
guardian, a desirable thing, is wrongful.
4. Usurpation of the condition of a ward: an offence not very likely to be committed. This
coincides at any rate with wrongful imposition of guardianship; and if
the usurper were already under the guardianship of another guardian,
it will involve in it wrongful divestment of such guardianship.
5. Wrongful investment of wardship (the wardship being considered as a
beneficial thing): this coincides with imposition of guardianship,
which, if in the eyes of the pretended guardian the guardianship
should be a burthen, will be wrongful.
6. Wrongful abdication of wardship. This coincides with wrongful divestment of guardianship.
7. Wrongful detrectation of wardship. This coincides with wrongful
interception of guardianship.
8. Wrongful imposition of wardship. This, if the offender be the pretended guardian, coincides with
usurpation of guardianship: if a stranger, it involves in it wrongful
imposition of guardianship. As to such of the offences relative to
this condition, as concern the consequences of it while subsisting,
they are of such a nature that, without any change of denomination,
they belong equally to the condition of a guardian and that of a ward.
We may therefore reckon seventeen sorts of offences relative to the condition of a ward:
1. Wrongful non-investment of wardship.
2. Wrongful interception of wardship.
3. Wrongful divestment of wardship.
4. Usurpation of wardship.
5. Wrongful investment of wardship.
6. Wrongful abdication of wardship.
7. Wrongful detrectation of wardship.
8. Wrongful interception of wardship.
9. Mismanagement of guardianship.
10. Desertion of guardianship.
11. Dissipation in prejudice of wardship.
12. Peculation in prejudice of wardship.
13. Disturbance of guardianship.
14. Breach of duty to guardians.
15. Elopement from guardians.
16. Ward-stealing.
17. Bribery in prejudice of wardship.
1. Wrongful non-investment of parentality.
2. Wrongful interception of parentality.
3. Wrongful divestment of parentality.
4. Usurpation of parentality.
5. Wrongful investment of parentality.
6. Wrongful abdication of parentality.
7. Wrongful detrectation of parentality.
8. Wrongful imposition of parentality.
9. Mismanagement of parental guardianship.
10. Desertion of parental guardianship.
11. Dissipation in prejudice of filial wardship.
12. Peculation in prejudice of filial wardship.
13. Abuse of parental powers.
14. Disturbance of parental guardianship.
15. Breach of duty to parents.
16. Elopement from parents.
17. Child-stealing.
18. Bribery in prejudice of filial wardship.
1. Wrongful non-investment of filiation. This, if it be the offence of him or her
who should have been recognized as the parent, coincides with wrongful
detrectation of parentality: if it be the offence of a third person,
it involves in it non-investment of parentality, which, provided the
parentality is, in the eyes of him or her who should have been
recognised as the parent, a desirable thing, is wrongful.
2. Wrongful interception of filiation. This, if it be the offence of him or her
who should have been recognised as the parent, coincides with wrongful
detrectation of parentality: if it be the offence of a third person,
it involves in it interception of parentality, which, provided the
parentality is, in the eyes of him or her who should have been
recognized as parent, a desirable thing, is wrongful.
3. Wrongful divestment of filiation. This, if it be the offence of him or her who
should be recognized as parent, coincides with wrongful abdication of
parentality: if it be the offence of a third person, it involves in it
divestment of parentality; to wit, of paternity, or of maternity, or
of both; which, if the parentality is, in the eyes of him or her who
should be recognized as parent, a desirable thing, are respectively
wrongful.
4. Usurpation of filiation. This coincides with wrongful
imposition of parentality; to wit, either of paternity, or of
maternity, or of both: and necessarily involves in it divestment of
parentality, which, if the parentality thus divested were, in the eyes
of him or her who are thus divested of it, a desirable thing, is
wrongful.
5. Wrongful investment of filiation: (the filiation being
considered as a beneficial thing.) This coincides with imposition of
parentality, which, if in the eyes of the pretended father or mother
the parentality should be an undesirable thing, will be wrongful.
6. Wrongful abdication of filiation. This necessarily coincides with
wrongful divestment of parentality; it also is apt to involve in it
wrongful imposition of parentality; though not necessarily either to
the advantage or to the prejudice of any certain person. For if a man,
supposed at first to be your son, appears afterwards not to be yours,
it is certain indeed that he is the son of some other man, but it may
not appear who that other man is.
7. Wrongful detrectation of filiation. This coincides with wrongful noninvestment or wrongful
interception of parentality.
8. Wrongful imposition of filiation. This, if it be the offence of the pretended parent, coincides
necessarily with usurpation of parentality: if it be the offence of a
third person, it necessarily involves imposition of parentality; as
also divestment of parentality: either or both of which, according to
the circumstance above mentioned, may or may not be wrongful.
9. Mismanagement of parental guardianship.
10. Desertion of parental guardianship.
11. Dissipation in prejudice of filial wardship.
12. Peculation in prejudice of filial wardship.
13. Abuse of parental power.
14. Disturbance of parental guardianship.
15. Breach of duty to parents.
16. Elopement from parents.
17. Child-stealing.
18. Bribery in prejudice of parental guardianship.
1. In respect of its commencement.
2. In respect of the placing of it.
3. In respect of the nature of it.
4. In respect of its duration.
First then, it is evident, that in point of possibility, one method of commencement is
as conceivable as another: the time of its commencement might have
been marked by one sort of event (by one sort of signal, as it
may here be called) as well as by another. But in practice the signal
has usually been, as in point of utility it ought constantly to be, a
contract entered into by the parties: that is, a set of signs, pitched
upon by the law, as expressive of their mutual consent, to take
upon them this condition.
Secondly, and thirdly, with regard to the placing of the
obligations which are the result of the contract, it is evident that
they must rest either solely on one side, or mutually on both. On the
first supposition, the condition is not to be distinguished from pure
slavery. In this case, either the wife must be the slave of the
husband, or the husband of the wife. The first of these suppositions
has perhaps never been exemplified; the opposing influence of physical
causes being too universal to have ever been surmounted: the latter
seems to have been exemplified but too often; perhaps among the first
Romans; at any rate, in many barbarous nations.
Thirdly, with regard to the nature of the obligations. If they are not suffered to rest all
on one side, certain rights are thereby given to the other. There
must, therefore, be rights on both sides. Now, where there are mutual
rights possessed by two persons, as against each other, either there
are powers annexed to those rights, or not. But the persons in
question are, by the supposition, to live together: in which case we
have shown, that it is not only expedient, but in a manner necessary,
that on one side there should be powers. Now it is only on one side
that powers can be: for suppose them on both sides, and they destroy
one another. The question is then, In which of the parties these
powers shall be lodged? we have shown, that on the principle of
utility they ought to be lodged in the husband. The powers then which
subsist being lodged in the husband, the next question is, Shall the
interest of one party only, or of both, be consulted in the exercise
of them? it is evident, that on the principle of utility the interests
of both ought alike to be consulted: since in two persons taken
together, more happiness is producible than in one. This being the
case, it is manifest, that the legal relation which the husband will
bear to the wife will be a complex one: compounded of that of master
and that of guardian.
In the first place, with regard to the contract, from the
celebration of which the legal condition dates its existence. It is
obvious that in point of possibility, this contract might, on the part
of either sex, subsist with respect to several persons of the other
sex at the same time: the husband might have any number of wives: the
wife might have any number of husbands: the husband might enter into
the contract with a number of wives at the same time: or, if with only
one at a time, he might reserve to himself a right of engaging in a
similar contract with any number, or with only such or such a number
of other women afterwards, during the continuance of each former
contract. This latter accordingly is the footing upon which, as is
well known, marriage is and has been established in many extensive
countries: particularly in all those which profess the Mahometan
religion. In point of possibility, it is evident that the like liberty
might be reserved on the part of the wife: though in point of practice
no examples of such an arrangement seem ever to have occurred. Which
of all these arrangements is in point of utility the most expedient,
is a question which would require too much discussion to answer in the
course of an analytical process like the present, and which belongs
indeed to the civil branch of legislation, rather than to the penal.
In Christian countries, the solemnization of any such contract is made
to exclude the solemnization of any subsequent one during the
continuance of a former: and the solemnization of any such subsequent
contract is accordingly treated as an offence, under the name of
Polygamy.
Polygamy then is at any rate, on the part of the man, a
particular modification of that offence which may be styled usurpation
of the condition of a husband. As to its other effects, they will be
different, according as it was the man only, or the woman only, or
both, that were in a state of matrimony at the time of the commission
of the offence. If the man only, then his offence involves in it
pro tanto that of wrongful divestment of the condition of a
wife, in prejudice of his prior wife. If the woman only, then it
involves in it pro tanto that of wrongful divestment of the
condition of a husband, in prejudice of her prior husband. If both
were already married, it of course involves both the wrongful
divestments which have just been mentioned. And on the other hand
also, the converse of all this may be observed with regard to polygamy
on the part of the woman.
Secondly, As the engaging not to enter into
any subsequent engagement of the like kind during the continuance of
the first, is one of the conditions on which the law lends its
sanction to the first; so another is, the inserting as one of the
articles of this engagement an undertaking not to render to, or accept
from, any other person the services which form the characteristic
object of it: the rendering or acceptance of any such services is
accordingly treated as an offence, under the name of adultery:
under which name is also comprised the offence of the stranger,
who, in the commission of the above offence, is the necessary
accomplice.
Thirdly, Disturbing either of the parties to this
engagement, in the possession of these characteristic services, may,
in like manner, be distinguished from the offence of disturbing them
in the enjoyment of the miscellaneous advantages derivable from the
same condition; and on whichever side the blame rests, whether that of
the party, or that of a third person, may be termed wrongful
withholding of connubial services. And thus we have one-and-twenty
sorts of offences to which, as the law stands at present in Christian
countries, the condition of a husband stands exposed: viz.,
1. Wrongful non-investment of the condition of a husband.
2. Wrongful interception of the condition of a husband.
3. Wrongful divestment of the condition of a husband.
4. Usurpation of the condition of a husband.
5. Polygamy.
6. Wrongful investment of the condition of a husband.
7. Wrongful abdication of the condition of a husband.
8. Wrongful detrectation of the condition of a husband.
9. Wrongful imposition of the condition of a husband.
10. Mismanagement of marital guardianship.
11. Desertion of marital guardianship.
12. Dissipation in prejudice of matrimonial wardship.
13. Peculation in prejudice of matrimonial wardship.
14. Abuse of marital power.
15. Disturbance of marital guardianship.
16. Wrongful withholding of connubial services.
17. Adultery.
18. Breach of duty to husbands.
19. Elopement from husbands.
20. Wife-stealing.
21. Bribery in prejudice of marital guardianship.
It should seem, therefore, at first sight, that none of the
offences against these uncontiguous relations could ever come
expressly into question: for by the same rule that one ought, so it
might seem ought a thousand others: the offences against the
uncontiguous being merged as it were in those which affect the
contiguous relations. So far, however, is this from being the case,
that in speaking of an offence of this stamp, it is not uncommon to
hear a great deal said of this or that uncontiguous relationship which
it affects, at the same time that no notice at all shall
be taken
of any of those which are contiguous. How happens this? Because, to
the uncontiguous relation are annexed perhaps certain remarkable
advantages or disadvantages, while to all the intermediate relations
none shall be annexed which are in comparison worth noticing. Suppose
Antony or Lepidus to have contested the relationship of Octavius
(afterwards Augustus) to Caius Julius Cæsar. How could it have been
done? It could only have been by contesting, either Octavius's being
the son of Atia, or Atia's being the daughter of Julia, or Julia's
being the daughter of Lucius Julius Cæsar, or Lucius Julius Cæsar's
being the father of Caius. But to have been the son of Atia, or the
grandson of Julia, or the great grandson of Lucius Julius Cæsar, was,
in comparison, of small importance. Those intervening relationships
were, comparatively speaking, of no other use to him than in virtue of
their being so many necessary links in the genealogical chain which
connected him with the sovereign of the empire.
As to the advantages and disadvantages which may happen to be
annexed to any of those uncontiguous relationships, we have seen
already that no powers over the correlative person, nor any
corresponding obligations, are of the number. Of what nature then can
they be? They are, in truth, no other than what are the result either
of local and accidental institutions, or of some spontaneous bias that
has been taken by the moral sanction. It would, therefore, be to
little purpose to attempt tracing them out a priori by any
exhaustive process: all that can be done is, to pick up and lay
together some of the principal articles in each catalogue by way of
specimen. The advantages which a given relationship is apt to impart,
seem to be referable chiefly to the following heads:
1. Chance of succession to the property, or a part of the property, of the
correlative person.
2. Chance of pecuniary support, to be yielded by
the correlative person, either by appointment of law, or by
spontaneous donation.
3. Accession of legal rank; including any legal
privileges which may happen to be annexed to it: such as capacity of
holding such and such beneficial offices; exemption from such and such
burthensome obligations; for instance, paying taxes, serving
burthensome offices..
4. Accession of rank by courtesy; including the sort of reputation which is customarily and
spontaneously annexed to distinguished birth and family alliance:
whereon may depend the chance of advancement in the way of marriage,
or in a thousand other ways less obvious. The disadvantages which a
given relation is liable to impart, seem to be referable chiefly to
the following heads:
1. Chance of being obliged, either by law, or by
force of the moral sanction, to yield pecuniary support to the
correlative party.
2. Loss of legal rank: including the legal
disabilities, as well as the burthensome obligations, which the law is
apt to annex, sometimes with injustice enough, to the lower stations.
3. Loss of rank by courtesy: including the loss of the advantages
annexed by custom to such rank.
4. Incapacity of contracting matrimony
with the correlative person, where the supposed consanguinity or
affinity lies within the prohibited degrees.
What the materials are, if so they may be called, of which
conditions, or any other kind of legal possession, can be made up, we
have already seen: beneficial powers, fiduciary powers, beneficial
rights, fiduciary rights, relative duties, absolute duties. But as
many conditions as import a power or right of the fiduciary kind, as
possessed by the person whose condition is in question, belong to the
head of trusts. The catalogue of the offences to which these
conditions are exposed, coincides therefore exactly with the catalogue
of offences against trust: under which head they have been considered
in a general point of view under the head of offences against trust:
and such of them as are of a domestic nature, in a more particular
manner in the character of offences against the several domestic
conditions. Conditions constituted by such duties of the relative
kind, as have for their counterparts trusts constituted by fiduciary
powers, as well as rights on the side of the correlative party, and
those of a private nature, have also been already discussed under the
appellation of domestic conditions. The same observation maybe applied
to the conditions constituted by such powers of the beneficial kind
over persons as are of a private nature: as also to the subordinate
correlative conditions constituted by the duties corresponding to
those rights and powers. As to absolute duties, there is no instance
of a condition thus created, of which the institution is upon the
principle of utility to be justified; unless the several religious
conditions of the monastic kind should be allowed of as examples.
There remain, as the only materials out of which the conditions which
yet remain to be considered can be composed, conditions constituted by
beneficial powers over things; conditions constituted by beneficial
rights to things (that is, rights to powers over things) or by rights
to those rights, and so on; conditions constituted by rights to
services; and conditions constituted by the duties corresponding to
those respective rights. Out of these are to be taken those of which
the materials are the ingredients of the several modifications of
property, the several conditions of proprietorship. These are the
conditions, if such for a moment they may be styled, which having but
here and there any specific names, are not commonly considered on the
footing of conditions: so that the acts which, if such conditions were
recognised might be considered as offences against those conditions,
are not wont to be considered in any other light than that of offences
against property.
The several sorts of civil conditions that are not fiduciary may all, or at least the
greater part of them, be comprehended under the head of rank,
or that of profession; the latter word being taken in its
most extensive sense, so as to include not only what are called the
liberal professions, but those also which are exercised by the several
sorts of traders, artists, manufacturers, and other persons of
whatsoever station, who are in the way of making a profit by their
labour. Among ranks then, as well as professions, let us, for the sake
of perspicuity, take for examples such articles as stand the clearest
from any mixture of either fiduciary or beneficial power. The rank of
knighthood is constituted, how? by prohibiting all other persons from
performing certain acts, the performance of which is the symbol of the
order, at the same time that the knight in question, and his
companions, are permitted: for instance, to wear a ribbon of a certain
colour in a certain manner: to call himself by a certain title: to use
an armorial seal with a certain mark on it. By laying all persons but
the knight under this prohibition, the law subjects them to a set of
duties: and since from the discharge of these duties a benefit results
to the person in whose favour they are created, to wit, the benefit of
enjoying such a share of extraordinary reputation and respect as men
are wont to yield to a person thus distinguished, to discharge them is
to render him a service: and the duty being a duty of the negative
class, a duty consisting in the performance of certain acts of the
negative kind, the service is what may be called a service of
forbearance. It appears then, that to generate this condition
there must be two sorts of services: that which is the immediate cause
of it, a service of the negative kind, to be rendered by the community
at large: that which is the cause again of this service, a service of
the positive kind, to be rendered by the law.
The condition of a professional man stands upon a narrower
footing. To constitute this condition there needs nothing more than a
permission given him on the part of the legislator to perform those
acts, in the performance of which consists the exercise of his
profession: to give or sell his advice or assistance in matters of law
or physic: to give or sell his services as employed in the executing
or overseeing of a manufacture or piece of work of such or such a
kind: to sell a commodity of such or such a sort. Here then we see
there is but one sort of service requisite; a service which may be
merely of the negative kind, to be rendered by the law: the service of
permitting him to exercise his profession: a service which, if there
has been no prohibition laid on before, is rendered by simply
forbearing to prohibit him.
Now the ideal objects, which in the cases above specified are
said to be conferred upon a man by the services that are respectively
in question, are in both cases not articles of property but
conditions. By such a behaviour on the part of the law, as shall be
the reverse of that whereby they were respectively produced, a man may
be made to forfeit them: and what he is then said to forfeit is in
neither case his property; but in one case, his rank or dignity: in
the other case, his trade or his profession: and in both cases, his
condition.
Other cases there are again in which the law, by a process of
the same sort with that by which it constituted the former of the two
above-mentioned conditions, confers on him an ideal object, which the
laws of language have placed under the head of property. The law
permits a man to sell books: that is, all sorts of books in general.
Thus far all that it has done is to invest him with a condition: and
this condition he would equally possess, although everybody else in
the world were to sell books likewise. Let the law now take an active
part in his favour, and prohibit all other persons from selling books
of a certain description, he remaining at liberty to sell them as
before. It therefore confers on him a sort of exclusive privilege or
monopoly, which is called a copyright. But by investing him
with this right, it is not said to invest him with any new sort of
condition: what it invests him with is spoken of as an article of
property; to wit, of that sort of property which is termed
incorporeal: and so on in the case of an engraving, a mechanical
engine, a medicine; or, in short, of a saleable article of any other
sort. Yet when it gave him an exclusive right of wearing a particular
sort of ribbon, the object which it was then considered as conferring
on him was not an article of property but a condition.
By forbearing to subject you to certain disadvantages, to which
it subjects an alien, the law confers on you the condition of a
natural-born subject: by subjecting him to them, it imposes on him the
condition of an alien: by conferring on you certain privileges or
rights, which it denies to a roturier, the law confers on you
the condition of a gentilhomme; by forbearing to confer on him
those privileges, it imposes on him the condition of a roturier.
The rights, out of which the two advantageous conditions here
exemplified are both of them as it were composed, have for their
counterpart a sort of services of forbearance, rendered, as we have
seen, not by private individuals, but by the law itself. As to the
duties which it creates in rendering you these services, they are to
be considered as duties imposed by the legislator on the ministers of
justice.
It may be observed, with regard to the greater part of the
conditions here comprised under the general appellation of civil,
that the relations corresponding to those by which they are
respectively constituted, are not provided with appellatives. The
relation which has a name, is that which is borne by the party
favoured to the party bound: that which is borne by the party bound to
the party favoured has not any. This is a circumstance that may help
to distinguish them from those conditions which we have termed
domestic. In the domestic conditions, if on the one side the party
to whom the power is given is called a master; on the other
side, the party over whom that power is given, the party who is
the object of that power, is termed a servant. In the civil conditions
this is not the case. On the one side, a man, in virtue of certain
services of forbearance, which the rest of the community are bound to
render him, is denominated a knight of such or such an order: but on
the other side, these services do not bestow any particular
denomination on the persons from whom such services are due. Another
man, in virtue of the legislator's rendering that sort of negative
service which consists in the not prohibiting him from exercising a
trade, invests him at his option with the condition of a trader: it
accordingly denominates him a farmer, a baker, a weaver, and so on:
but the ministers of the law do not, in virtue of their rendering the
man this sort of negative service, acquire for themselves any
particular name. Suppose even that the trade you have the right of
exercising happens to be the object of a monopoly, and that the
legislator, besides rendering you himself those services which you
derive from the permission he bestows on you, obliges other persons to
render you those farther services which you receive from their
forbearing to follow the same trade; yet neither do they, in virtue of
their being thus bound, acquire any particular name.
After what has been said of the nature of the several sorts of
civil conditions that have names, the offences to which they are
exposed may, without much difficulty, be imagined. Taken by itself,
every condition which is thus constituted by a permission granted to
the possessor, is of course of a beneficial nature: it is, therefore,
exposed to all those offences to which the possession of a benefit is
exposed. But either on account of a man's being obliged to persevere
when once engaged in it, or on account of such other obligations as
may stand annexed to the possession of it, or on account of the
comparative degree of disrepute which may stand annexed to it by the
moral sanction, it may by accident be a burthen: it is on this account
liable to stand exposed to the offences to which, as hath been seen,
every thing that partakes of the nature of a burthen stands exposed.
As to any offences which may concern the exercise of the functions
belonging to it, if it happens to have any duties annexed to it, such
as those, for instance, which are constituted by regulations touching
the exercise of a trade, it will stand exposed to so many breaches of
duty; and lastly, whatsoever are the functions belonging to it, it
will stand exposed at any rate to disturbance.
In the forming however of the catalogue of these
offences, exactness is of the less consequence, inasmuch as an act, if
it should happen not to be comprised in this catalogue, and yet is in
any respect of a pernicious nature, will be sure to be found in some
other division of the system of offences: if a baker sells bad bread
for the price of good, it is a kind of fraud upon the buyer; and
perhaps an injury of the simple corporal kind done to the health of an
individual, or a neighbourhood: if a clothier sells bad cloth for good
at home, it is a fraud; if to foreigners abroad, it may, over and
above the fraud put upon the foreign purchaser, have pernicious
effects perhaps in the prosperity of the trade at home, and become
thereby an offence against the national wealth. So again with regard
to disturbance: if a man be disturbed in the exercise of his
trade, the offence will probably be a wrongful interception of the
profit he might be presumed to have been in a way to make by it:
and were it even to appear in any case that a man exercised a trade,
or what is less unlikely, a liberal profession, without having profit
in his view, the offence will still be reducible to the head of
simple injurious restrainment, or simple injurious
compulsion.
LVI. A few words, for the purpose of giving a general view of the method of division here
pursued, and of the advantages which it possesses, may have their use.
The whole system of offences, we may observe, is branched out into
five classes. In the three first, the subordinate divisions are taken
from the same source; viz., from the consideration of the different
points, in respect whereof the interest of an individual is exposed to
suffer. By this uniformity, a considerable degree of light seems to be
thrown upon the whole system; particularly upon the offences that come
under the third class: objects which have never hitherto been brought
into any sort of order. With regard to the fourth class, in settling
the precedence between its several subordinate divisions, it seemed
most natural and satisfactory to place those first, the connection
whereof with the welfare of individuals seemed most obvious and
immediate. The mischievous effects of those offences, which tend in an
immediate way to deprive individuals of the protection provided for
them against the attacks of one another, and of those which tend to
bring down upon them the attacks of foreign assailants, seem alike
obvious and palpable. The mischievous quality of such as tend to
weaken the force that is provided to combat those attacks, but
particularly the latter, though evident enough, is one link farther
off in the chain of causes and effects. The ill effects of such
offences as are of disservice only by diminishing the particular fund
from whence that force is to be extracted, such effects, I say, though
indisputable, are still more distant and out of sight. The same thing
may be observed with regard to such as are mischievous only by
affecting the universal fund. Offences against the sovereignty in
general would not be mischievous, if offences of the several
descriptions preceding were not mischievous. Nor in a temporal view
are offences against religion mischievous, except in as far as, by
removing, or weakening, or misapplying one of the three great
incentives to virtue, and checks to vice, they tend to open the door
to the several mischiefs, which it is the nature of all those other
offences to produce. As to the fifth class, this, as hath already been
observed, exhibits, at first view, an irregularity, which however
seems to be unavoidable. But this irregularity is presently corrected,
when the analysis returns back, as it does after a step or two, into
the path from which the tyranny of language had forced it a while to
deviate.
To reconcile these two objects, in as far as they seemed
to be reconcilable, the following course has therefore been pursued.
The logical whole, constituted by the sum total of possible offences,
has been bisected in as many different directions as were necessary,
and the process in each direction carried down to that stage at which
the particular ideas thus divided found names in current use in
readiness to receive them. At that period I have stopped; leaving any
minuter distinctions to be enumerated in the body of the work, as so
many species of the genus characterised by such or such a name. If in
the course of any such process I came to a mode of conduct which,
though it required to be taken notice of, and perhaps had actually
been taken notice of, under all laws, in the character of an offence,
had hitherto been expressed under different laws, by different
circumlocutions, without ever having received any name capable of
occupying the place of a substantive in a sentence, I have frequently
ventured so far as to fabricate a new name for it, such an one as the
idiom of the language, and the acquaintance I happened to have with
it, would admit of. These names consisting in most instances, and that
unavoidably, of two or three words brought together, in a language too
which admits not, like the German and the Greek, of their being melted
into one, can never be upon a par, in point of commodiousness, with
those univocal appellatives which make part of the established stock.
In the choice of names in current use, care has been taken to avoid
all such as have been grounded on local distinctions, ill founded
perhaps in the nation in which they received their birth, and at any
rate not applicable to the circumstances of other countries.
The analysis, as far as it goes, is as applicable to the legal
concerns of one country as of another: and where, if it had descended
into further details, it would have ceased to be so, there I have
taken care always to stop: and thence it is that it has come to be so
much more particular in the class of offences against individuals,
than in any of the other classes. One use then of this arrangement, if
it should be found to have been properly conducted, will be its
serving to point out in what it is that the legal interests of all
countries agree, and in what it is that they are liable to differ: how
far a rule that is proper for one, will serve, and how far it will not
serve, for another. That the legal interests of different ages and
countries have nothing in common, and that they have every thing, are
suppositions equally distant from the truth.
1. When arrived at their last stage (the stage of
consumation) they produce, all of them, a primary mischief as
well as a secondary.
2. The individuals whom they affect in the first instance (that
is, by their primary mischief) are constantly assignable. This
extends to all; to attempts and preparations, as well as
to such as have arrived at the stage of consummation.
3. Consequently they admit of compensation: in which
they differ from the offences of all the other classes, as such.
4. They admit also of retaliation; in which also they
differ from the offences of all the other classes.
5. There is always some person who has a natural and peculiar
interest to prosecute them. In this they differ from self-regarding
offences: also from semi-public and public ones; except in as far as
the two latter may chance to involve a private mischief.
6. The mischief they produce is obvious: more so than that of
semi-public offences: and still more so than that of self-regarding
ones, or even public.
7. They are every where, and must ever be, obnoxious to the
censure of the world: more so than semi-public offences as such; and
still more so than public ones.
8. They are more constantly obnoxious to the censure of
the world than self-regarding offences: and would be so universally,
were it not for the influence of the two false principles; the
principle of asceticism, and the principle of antipathy.
9. They are less apt than semi-public and public offences to
require different descriptions in different states and countries: in
which respect they are much upon a par with self-regarding ones.
10. By certain circumstances of aggravation, they are liable to
be transformed into semi-public offences; and by certain others, into
public.
11. There can be no ground for punishing them, until they can
be proved to have occasioned, or to be about to occasion some
particular mischief to some particular individual. In this they differ
from semi-public offences, and from public.
12. In slight cases, compensation given to the
individual affected by them may be a sufficient ground for remitting
punishment: for if the primary mischief has not been sufficient to
produce any alarm, the whole of the mischief may be cured by
compensation. In this also they differ from semi-public offences, and
from public ones.
1. As such, they produce no primary mischief. The mischief they
produce consists of one or other or both branches of the secondary
mischief produced by offences against individuals, without the
primary.
2. In as far as they are to be considered as belonging to this
class, the persons whom they affect in the first instance are not
individually assignable.
3. They are apt, however, to involve or terminate in some
primary mischief of the first order; which when they do, they advance
into the first class, and become private offences.
4. They admit not, as such, of compensation.
5. Nor of retaliation
6. As such, there is never any one particular individual whose
exclusive interest it is to prosecute them: a circle of persons may,
however, always be marked out, within which may be found some who have
a greater interest to prosecute than any who are out of that circle
have.
7. The mischief they produce is in general pretty obvious: not
so much so indeed as that of private offences, but more so upon the
whole than that of self-regarding and public ones.
8. They are rather less obnoxious to the censure of the world
than private offences; but they are more so than public ones: they
would also be more so than self-regarding ones, were it not for the
influence of the two false principles, the principle of sympathy and
antipathy, and that of asceticism.
9. They are more apt than private and self-regarding offences
to require different descriptions in different countries: but less so
than public ones.
10. There may be ground for punishing them before they have
been proved to have occasioned, or to be about to occasion, mischief
to any particular individual; which is not the case with private
offences.
11. In no cases can satisfaction given to any particular
individual affected by them be a sufficient ground for remitting
punishment: for by such satisfaction it is but a part of the mischief
of them that is cured. In this they differ from private offences; but
agree with public.
1. In individual instances it will often be
questionable, whether they are productive of any primary mischief at
all: secondary, they produce none.
2. They affect not any other individuals, assignable or not
assignable, except in as far as they affect the offender himself;
unless by possibility in particular cases; and in a very slight and
distant manner the whole state.
3. They admit not, therefore, of compensation,
4. Nor of retaliation.
5. No person has naturally any peculiar interest to
prosecute them: except in as far as in virtue of some connection
he may have with the offender, either in point of sympathy
or of interest, a mischief of the derivative kind
may happen to devolve upon him.
6. The mischief they produce is apt to be unobvious and in
general more questionable than that of any of the other classes.
7. They are however apt, many of them, to be more obnoxious to
the censure of the world than public offences; owing to the influence
of the two false principles; the principle of asceticism, and the
principle of antipathy. Some of them more even than semi-public, or
even than private offence.
8. They are less apt than offences of any other class to
require different descriptions in different states and countries,
9. Among the inducements to punish them, antipathy against the
offender is apt to have a greater share than sympathy for the public.
10. The best plea for punishing them is founded on a
faint probability there may be of their being productive of a
mischief, which, if real, will place them in the class of public ones:
chiefly in those divisions of it which are composed of offences
against population, and offences against the national wealth.
1. As such, they produce not any primary mischief; and the
secondary mischief they produce, which consists frequently of danger
without alarm, though great in value, is in specie very
indeterminate.
2. The individuals whom they affect, in the first instance, are
constantly unassignable; except in as far as by accident they happen
to involve or terminate in such or such offences against individuals.
3. Consequently they admit not of compensation.
4. Nor of retaliation.
5. Nor is there any person who has naturally any particular
interest to prosecute them; except in as far as they appear to affect
the power, or in any other manner the private interest, of some person
in authority.
6. The mischief they produce, as such, is comparatively
unobvious; much more so than that of private offences, and more so
likewise, than that of semi-public ones.
7. They are, as such, much less obnoxious to the censure of the
world, than private offences; less even than semi-public, or even than
self-regarding offences; unless in particular cases, through sympathy
to certain persons in authority, whose private interests they may
appear to affect.
8. They are more apt than any of the other classes to admit of
different descriptions, in different states and countries.
9. They are constituted, in many cases, by some circumstances
of aggravation superadded to a private offence: and therefore, in
these cases, involve the mischief and exhibit the other characters
belonging to both classes. They are however, even in such cases,
properly enough ranked in the 4th class, inasmuch as the mischief they
produce in virtue of the properties which aggregate them to that
class, eclipses and swallows up that which they produce in virtue of
those properties which aggregate them to the 1st.
10. There may be sufficient ground for punishing them, without
their being proved to have occasioned, or to be about to occasion, any
particular mischief to any particular individual. In this they differ
from private offences, but agree with semi-public ones. Here, as in
semi-public offences, the extent of the mischief makes up for
the uncertainty of it.
11. In no case can satisfaction, given to any particular
individual affected by them, be a sufficient ground for remitting
punishment. In this they differ from private offences; but agree with
semi-public.
1. Taken collectively, in the parcels marked out by their
popular appellations, they are incapable of being aggregated to any
systematical method of distribution, grounded upon the mischief of the
offence.
2. They may, however, be thrown into sub-divisions, which may
be aggregated to such a method of distribution.
3. These sub-divisions will naturally and readily rank under
the divisions of the several preceding classes of this system.
4. Each of the two great divisions of this class spreads itself
in that manner over all the preceding classes.
5. In some acts of this class, the distinguishing circumstance
which constitutes the essential character of the offence, will in some
instances enter necessarily, in the character of a criminative
circumstance, into the constitution of the offence; insomuch that,
without the intervention of this circumstance, no offence at all, of
that denomination, can be committed. In other instances, the offence
may subsist without it; and where it interferes, it comes in as an
accidental independent circumstance, capable of constituting a ground
of aggravation.
Chapter XVII: Of the Limits of the Penal Branch of Jurisprudence
I. So much for the division of offenses in general. Now an offense is an act
prohibited, or (what comes to the same thing) an act of which the
contrary is commanded, by the law: and what is it that the law can be
employed in doing, besides prohibiting and commanding? It should seem
then, according to this view of the matter, that were we to have
settled what may be proper to be done with relation to offences, we
should thereby have settled every thing that may be proper to be done
in the way of law. Yet that branch which concerns the method of
dealing with offences, and which is termed sometimes the criminal,
sometimes the penal, branch, is universally understood to
be but one out of two branches which compose the whole subject of the
art of legislation; that which is termed the civil being the
other. Between these two branches then, it is evident enough, there
cannot but be a very intimate connection; so intimate is it indeed,
that the limits between them are by no means easy to mark out. The
case is the same in some degree between the whole business of
legislation (civil and penal branches taken together) and that of
private ethics. Of these several limits however it will be in a manner
necessary to exhibit some idea: lest, on the one hand, we should seem
to leave any part of the subject that does belong to as
untouched, or, on the other hand, to deviate on any side into a track
which does not belong to us.
In the course of this enquiry, that part of it I mean which concerns the limits between the civil and the penal
branch of law, it will be necessary to settle a number of points, of
which the connection with the main question might not at first sight
be suspected. To ascertain what sort of a thing a law is; what
the parts are that are to be found in it; what it must contain
in order to be complete; what the connection is between that
part of a body of laws which belongs to the subject of procedure
and the rest of the law at large: – all these, it will be seen, are
so many problems, which must be solved before any satisfactory answer
can be given to the main question above mentioned.
Nor is this their only use: for it is evident enough, that the
notion of a complete law must first be fixed, before the legislator
can in any case know what it is he has to do, or when his work is
done.
1. Other human beings who are styled persons.
2. Other animals, which, on account of their interests having
been neglected by the insensibility of the ancient jurists, stand
degraded into the class of things. As to other human beings,
the art of directing their actions to the above end is what we mean,
or at least the only thing which, upon the principle of utility, we
ought to mean, by the art of government: which, in as far as
the measures it displays itself in are of a permanent nature, is
generally distinguished by the name of legislation: as it is by
that of administration, when they are of a temporary nature,
determined by the occurrences of the day.
1. In a negative way, by forbearing to diminish it.
2. In a positive way, by studying to increase it. A man's duty to
his neighbour is accordingly partly negative and partly positive: to
discharge the negative branch of it, is probity: to discharge
the positive branch, beneficence.
1. Where punishment would be groundless.
2. Where it would be
inefficacious.
3. Where it would be unprofitable.
4. Where it would be
needless. Let us look over all these cases, and see whether in any of
them there is room for the interference of private ethics, at the same
time that there is none for the direct interference of legislation.
1. The evil of coercion, including constraint or
restraint, according as the act commanded is of the positive kind or
the negative.
2. The evil of apprehension.
3. The evil of sufferance.
4. The derivative evils resulting to persons in connection with
those by whom the three above-mentioned original evils are sustained.
Now with respect to those original evils, the persons who lie exposed
to them may be two very different sets of persons. In the first place,
persons who may have actually committed, or been prompted to commit,
the acts really meant to be prohibited. In the next place, persons who
may have performed, or been prompted to perform, such other acts as
they fear may be in danger of being involved in the punishment
designed only for the former. But of these two sets of acts, it is the
former only that are pernicious: it is, therefore, the former only
that it can be the business of private ethics to endeavour to prevent.
The latter being by the supposition not mischievous, to prevent them
is what it can no more be the business of ethics to endeavour at, than
of legislation. It remains to show how it may happen, that there
should be acts really pernicious, which, although they may very
properly come under the censure of private ethics, may yet be no fit
objects for the legislator to control.
1. By the expense it would
amount to, even supposing the application of it to be confined
altogether to delinquency:
2. By the danger there may be of its involving the innocent in
the fate designed only for the guilty.
First then, with regard to the
cases in which the expense of the punishment, as applied to the
guilty, would outweigh the profit to be made by it. These cases, it is
evident, depend upon a certain proportion between the evil of the
punishment and the evil of the offence. Now were the offence of such a
nature, that a punishment which, in point of magnitude, should
but just exceed the profit of it, would be sufficient to prevent it,
it might be rather difficult perhaps to find an instance in which such
punishment would clearly appear to be unprofitable. But the fact is,
there are many cases in which a punishment, in order to have any
chance of being efficacious, must, in point of magnitude, be raised a
great deal above that level. Thus it is, wherever the danger of
detection is, or, what comes to the same thing, is likely to appear to
be, so small, as to make the punishment appear in a high degree
uncertain. In this case it is necessary, as has been shown, if
punishment be at all applied, to raise it in point of magnitude as
much as it falls short in point of certainty. It is evident, however,
that all this can be but guesswork: and that the effect of such a
proportion will be rendered precarious, by a variety of circumstances:
by the want of sufficient promulgation on the part of the laws: by the
particular circumstances of the temptation: and by the circumstances
influencing the sensibility of the several individuals who are exposed
to it. Let the seducing motives be strong, the offence then
will at any rate be frequently committed. Now and then indeed, owing to a coincidence of circumstances
more or less extraordinary, it will be detected, and by that means
punished. But for the purpose of example, which is the principal one,
an act of punishment, considered in itself, is of no use: what use it
can be of, depends altogether upon the expectation it raises of
similar punishment, in future cases of similar delinquency. But this
future punishment, it is evident, must always depend upon detection.
If then the want of detection is such as must in general (especially
to eyes fascinated by the force of the seducing motives) appear too
improbable to be reckoned upon, the punishment, though it should be
inflicted, may come to be of no use. Here then will be two opposite
evils running on at the same time, yet neither of them reducing the
quantum of the other: the evil of the disease and the evil of the
painful and inefficacious remedy. It seems to be partly owing to some
such considerations, that fornication, for example, or the illicit
commerce between the sexes, has commonly either gone altogether
unpunished, or been punished in a degree inferior to that in which, on
other accounts, legislators might have been disposed to punish it.
But of this more fully in another place.
We come now to exhibit the limits between penal and civil
jurisprudence. For this purpose it may be of use to give a distinct
though summary view of the principal branches into which
jurisprudence, considered in its utmost extent, is wont to be divided.
XXI. Jurisprudence is a fictitious
entity: nor can any meaning be found for the word, but by placing it
in company with some word that shall be significative of a real
entity. To know what is meant by jurisprudence, we must know, for
example, what is meant by a book of jurisprudence. A book of
jurisprudence can have but one or the other of two objects:
1. To ascertain what the law is:
2. to ascertain what it ought to be.
In the former case it may be styled a book of expository
jurisprudence; in the latter, a book of censorial
jurisprudence: or, in other words, a book on
the art of
legislation.
1. The extent of the laws in question in point of dominion.
2. The political quality of the persons whose conduct they undertake to regulate.
3. The time of their being in force.
4. The manner in which they are expressed.
5. The concern which they have with the article of punishment
Now of the infinite variety of nations there are upon
the earth, there are no two which agree exactly in their laws:
certainly not in the whole: perhaps not even in any single article:
and let them agree today, they would disagree tomorrow. This is
evident enough with regard to the substance of the laws: and it
would be still more extraordinary if they agreed in point of form;
that is, if they were conceived in precisely the same strings of
words. What is more, as the languages of nations are commonly
different, as well as their laws, it is seldom that, strictly
speaking, they have so much as a single word in common.
However, among the words that are appropriated to the subject of law,
there are some that in all languages are pretty exactly correspondent
to one another: which comes to the same thing nearly as if they were
the same. Of this stamp, for example, are those which correspond to
the words power, right, obligation, liberty, and many others.
It follows, that if there are any books which can, properly
speaking, be styled books of universal jurisprudence, they must be
looked for within very narrow limits. Among such as are expository,
there can be none that are authoritative: nor even, as far as the
substance of the laws is concerned, any that are
unauthoritative. To be susceptible of an universal application, all
that a book of the expository kind can have to treat of, is the import
of words: to be, strictly speaking, universal, it must confine itself
to terminology. Accordingly the definitions which there has been
occasion here and there to intersperse in the course of the present
work, and particularly the definition hereafter given of the word
law, may be considered as matter belonging to the head of
universal jurisprudence. Thus far in strictness of speech: though in
point of usage, where a man, in laying down what he apprehends to be
the law, extends his views to a few of the nations with which his own
is most connected, it is common enough to consider what he writes as
relating to universal jurisprudence.
It is in the censorial line that there is the greatest room for
disquisitions that apply to the circumstances of all nations alike:
and in this line what regards the substance of the laws in question is
as susceptible of an universal application, as what regards the words.
That the laws of all nations, or even of any two nations, should
coincide in all points, would be as ineligible as it is impossible:
some leading points, however, there seem to be, in respect of which
the laws of all civilized nations might, without inconvenience, be the
same. To mark out some of these points will, as far as it goes, be the
business of the body of this work.
Now as to any transactions which may take place between individuals
who are subjects of different states, these are regulated by the
internal laws, and decided upon by the internal tribunals, of the one
or the other of those states: the case is the same where the sovereign
of the one has any immediate transactions with a private member of the
other: the sovereign reducing himself, pro re natâ, to the
condition of a private person, as often as he submits his cause to
either tribunal; whether by claiming a benefit, or defending himself
against a burthen. There remain then the mutual transactions between
sovereigns, as such, for the subject of that branch of jurisprudence
which may be properly and exclusively termed international.
With what degree of propriety rules for the conduct of
persons of this description can come under the appellation of laws,
is a question that must rest till the nature of the thing called
a law shall have been more particularly unfolded.
It is evident enough, that international jurisprudence may, as
well as internal, be censorial as well as expository, unauthoritative
as well as authoritative.
Where a book is so circumstanced, that the laws which form the
subject of it, though in force at the time of its being written, are
in force no longer, that book is neither a book of living
jurisprudence, nor a book on the history of jurisprudence: it is no
longer the former, and it never was the latter. It is evident that,
owing to the changes which from time to time must take place, in a
greater or less degree, in every body of laws, every book of
jurisprudence, which is of an expository nature, must in the course of
a few years, come to partake more or less of this condition.
The most common and most useful object of a history of jurisprudence, is to
exhibit the circumstances that have attended the establishment of laws
actually in force. But the exposition of the dead laws which have been
superseded, is inseparably interwoven with that of the living ones
which have superseded them. The great use of both these branches of
science, is to furnish examples for the art of
legislation.
What is a penal code of laws? What a civil code? Of what nature are their contents? Is it that there
are two sorts of laws, the one penal the other civil, so that the laws
in a penal code are all penal laws, while the laws in a civil code are
all civil laws? Or is it, that in every law there is some matter which
is of a penal nature, and which therefore belongs to the penal code;
and at the same time other matter which is of a civil nature, and
which therefore belongs to the civil code? Or is it, that some laws
belong to one code or the other exclusively, while others are divided
between the two? To answer these questions in any manner that shall be
tolerably satisfactory, it will be necessary to ascertain what a
law is; meaning one entire but single law: and what are the parts
into which a law, as such, is capable of being distinguished: or, in
other words, to ascertain what the properties are that are to be found
in every object which can with propriety receive the appellation of a
law. This then will be the business of the third and fourth sections:
what concerns the import of the word criminal, as applied to
law, will be discussed separately in the fifth.
2. A Fragment on Government, etc., reprinted 1822.
3. Such as obligation, right, power, possession, title, exemption, immunity, franchise,
privilege, nullity, validity, and the like.
4. See ch. xvi. [Division], par. 42, 44.
5. Hume's History.
6. Hume's History.
7. For the reason, see chap. xi. [Dispositions],
par. xvii. note.
8. See ch. iv. and ch. vi. par. xxi.
9. See B. I. tit. [Offences against Religion]
10. Here ends the original
work, in the state into which it was brought in 5 November, 1780. What
follows is now added in January, 1789.
What follows here may serve to give a slight intimation of the nature of the task, which
such a work will have to achieve: it will at the same time furnish,
not any thing like a satisfactory answer to the questions mentioned in
the text, but a slight and general indication of the course to be
taken for giving them such an answer.
They might be styled, the former, a simply imperative law; the other a punitory:
but the punitory, if it commands the punishment to be inflicted,
and does not merely permit it, is as truly imperative as the
other: only it is punitory besides, which the other is not.
To class offences, as hath been attempted to be done
in the preceding chapter, is therefore to class laws: to exhibit a
complete catalogue of all the offences created by law, including the
whole mass of expository matter necessary for fixing and exhibiting
the import of the terms contained in the several laws, by which
those offences are respectively created, would be to exhibit a complete collection of the laws in force: in a word a complete body of law; a pannomion,if so it might be termed.
The question, What parts of the total mass of legislative matter
belong to the civil branch, and what to the penal? supposes that
divers political states, or at least that some one such state, are to
be found, having as well a civil code as a penal code, each of them
complete in its kind, and marked out by certain limits. But no one
such state has ever yet existed.
To put a question to which a true answer can be given, we must substitute to the foregoing question some such a one as that which follows:
To this question the following answer seems likely to come as near as any
other to the truth. The civil code would not consist of a
collection of civil laws, each complete in itself, as well as clear of
all penal ones: Neither would the penal code (since we have
seen that it could not) consist of a collection of punitive
laws, each not only complete in itself, but clear of all civil ones.
But
XIX. The mass of legislative matter published in French as well as
German under the auspices of Frederic II. of Prussia, by the name of
Code Frederic, but never established with force of law, appears, for
example, to be almost wholly composed of masses of expository matter,
the relation of which to any imperative matter appears to have been
but very imperfectly apprehended.
The constitutional branch is chiefly employed in conferring, on particular
classes of persons, powers, to be exercised for the good of the
whole society, or of considerable parts of it, and prescribing
duties to the persons invested with those powers.
The powers are principally constituted, in the first instance, by discoercive or
permissive laws operating as exceptions to certain laws of the
coercive or imperative kind. Instance: A tax-gatherer, as such,
may, on such and such an occasion, take such and such things, without
any other
The duties are created by imperative laws,
addressed to the persons on whom the powers are conferred. Instance:
On such and such an occasion, such and such a tax-gatherer shall
take such and such things. Such and such a judge shall, in such and
such a case, cause persons so and so offending to be hanged.
The parts which perform the function of indicating who the individuals
are, who, in every case, shall be considered as belonging to those
classes, have neither a permissive complexion, nor an imperative.
They are so many masses of expository matter, appertaining in common to all
laws, into the texture of which, the names of those classes of persons
have occasion to be inserted. Instance; imperative matter: – Let the
judge cause whoever, in due course of law, is convicted of stealing,
to be hanged. Nature of the expository matter: – Who is the person
meant by the word judge? He who has been invested with
that office in such a manner: and in respect of whom no event
has happened, of the number of those, to which the effect is
given, of reducing him to the condition of one divested of that
office.
If it were thought necessary to recur to experience for proofs of this
difficulty, and this necessity, they need not be long wanting.
"That there are certain natural rights, of which men, when they form a
social compact, cannot deprive or divest their posterity, among which
are the enjoyment of life and liberty, with the means of acquiring,
possessing and protecting property, and pursuing and obtaining
happiness and safety."