ment of regular chaplains for the English county gaols. The following year Howard gave evidence before a parliamentary committee concerning the conditions of incarceration; the materials laid before them having been laboriously acquired by his personal examination of some fifty prisons. As a result-to which the zeal and philanthropic spirit of the Evangelicals had contributed much-two highly beneficent acts were immediately passed; one 1 prescribed elaborate regulations for the cleanliness and ventilation of prisons; the other 2 was directed against the practice of holding in confinement, because of fees due to sheriffs, gaolers and keepers of prisons, such men as had not been indicted or had been acquitted; it prohibited the exaction of such fees, and provided for their being paid out of the county rates. In 1778 Howard again gave evidence before a select committee of the House of Commons appointed to investigate the working of the hulk system established in 1776 by the act above referred to. He expressed his conviction that buildings were more suitable than vessels for the incarceration of prisoners. Several persons urged too that places of confinement should be erected like the Rasp- and Spin-Houses of Holland. Accordingly, Blackstone's and Eden's bill was passed in 1799.* It embodies the first public recognition of a general principle of prison treatment. Its aim was "by sobriety, cleanliness, and medical assistance, by a regular series of labour, by solitary confinement during the intervals of work and by due religious instruction to preserve and amend the health of the unhappy offenders, to inure them to habits of industry, to guard them from pernicious company, to accustom them to serious reflection, and to teach them both the principles and practice of every Christian and moral duty." This bill has already been referred to in connection with Bentham's Panopticon scheme, and we have seen the delay and failure to carry it out.

It may be noted that at this time Pitt recognised the necessity of discriminating between the different kinds of offenders and the different degrees of criminality, and of averting the contagion of vice incidental to the prevailing conditions of prison administration."

How to help discharged prisoners and what to do with them apparently presented insoluble problems. In 1799 Colquhoun issued a pamphlet in which he suggested the establishment of 14 Geo. III, c. 59. 3 16 Geo. III, c. 43. Cf. Parliamentary History, xxviii, 1224.

1 14 Geo. III, c. 20. • $19 Geo. III, c. 74.

M

a kind of charity organisation society to control the available funds and use them to the best advantage. He also advocated various remedies to alleviate the penal chaos, e.g. the institution of a metropolitan police force, the appointment of a public prosecutor, and even a large revision of the criminal law-which he saw, however, would not quickly come to pass. He was at this time in close communication with Bentham, who assisted him by drafting the Thames Police Act, which was passed in 1800 and gave effect to some of the plans for amelioration advanced by the great reformer.

But the governments of those days were not equal to establishing comprehensive and fundamental measures of criminal reform. Here and there we find, in the sphere of statesmanship, an ardent soul and penetrative mind-Burke, for examplecondemning the existing confusion and irrationality of the law. This great political philosopher was in this, as in many other matters, an exception to the spirit of the time. He advocated the thorough revision of the penal code, which he denounced as "radically defective" and "abominable," and consistently opposed the creation of new capital offences.1 In 1773, in a speech on a bill for the relief of protestant dissenters, he referred to the criminal law, pointed out the absurdity of retaining criminal laws that frequently remained inoperative, the evils arising out of the desultory execution of such laws, which thus became in arbitrary hands instruments of oppression, and urged the necessity of bringing the law into harmony with the best sentiment and manners of the time. "The question. . . is," he observed, "whether in a well-constitutioned commonwealth, which we desire ours to be thought, and I trust intend that it should be, whether in such a commonwealth it is wise to retain those laws, which it is not proper to execute. A penal law, not ordinarily put in execution, seems to me to be a very absurd and a very dangerous thing. For if its principle be right, if the object of its prohibitions and penalties be a real evil, then you do in effect permit that very evil, which not only the reason of the thing, but your very law, declares ought not to be permitted; and thus it reflects exceedingly on the wisdom, and consequently derogates not a little from the authority, of a legislature, who can at once forbid and suffer, and in the same breath promulgate penalty and indemnity to the same persons, and for the very same actions. But if the 1 Cf. Parliamentary History, xxviii, 146.

object of the law be no moral or political evil, then you ought not to hold even a terror to those, whom you ought certainly not to punish-for if it is not right to hurt, it is neither right nor wise to menace. Such laws, therefore, as they must be defective either in justice or wisdom, or both, so they cannot exist without a considerable degree of danger. Take them which way you will, they are pressed with ugly alternatives. First: All penal laws are either upon popular prosecution, or on the part of the Crown. Now if they may be roused from their sleep, whenever a minister thinks proper, as instruments of oppression, then they put vast bodies of men into a state of slavery and court dependence; since their liberty of conscience and their power of executing their functions depend entirely on his will. I would have no man derive his means of continuing any function, or his being restrained from it, but from the laws only; they should be his only superior and sovereign lords. Second: They put statesmen and magistrates into an habit of playing fast and loose with the laws, straining or relaxing them as may best suit their political purposes; and in that light tend to corrupt the executive power through all its offices. Third: If they are taken up on popular actions, their operation in that light also is exceedingly evil. They become the instruments of private malice, private avarice, and not of public regulation; they nourish the worst of men to the prejudice of the best, punishing tender consciences, and rewarding informers. Shall we, as the honourable gentleman tells us we may with perfect security, trust to the manners of the age? I am well pleased with the general manners of the times; but the desultory execution of penal laws, the thing I condemn, does not depend on the manners of the times. I would however have the laws tuned in unison with the manners;-very dissonant are a gentle country and cruel laws; very dissonant, that your reason is furious, but your passions moderate, and that you are always equitable except in your courts of justice." 1

Later, as we shall see, Romilly made herculean efforts to mitigate the severity of the law, and to place the penal system on a reasonable basis. But the generality of legislators and statesmen were for a long time indifferent to the crying scandals of this portion of English jurisprudence; and the debates on the subject in parliament were thinly attended and badly reported.

1" Speech on the second reading of a bill for the relief of protestant dissenters" (1773), ad init.

CHAPTER III

BENTHAM'S FUNDAMENTAL DOCTRINES. RELATION OF CRIMINAL LAW TO THE PRINCIPLE OF UTILITY. BENTHAM'S AIM AND METHOD

We are now concerned mainly with Bentham's work in the sphere of criminal law. But to understand thoroughly his views and achievements in this respect, it is desirable to make a few observations on his fundamental doctrines regarding ethics, politics and government, and civil law. We shall then see that his work in penal jurisprudence is not an isolated portion of his prolific activity, but is indissolubly connected with the rest of his system, and is indeed a logical outcome of his basic principles.

(i) ETHICS-UTILITARIAN BASIS

It has already been pointed out that Bentham was not the first propounder of the utilitarian principle, which is throughout considered by him as the indispensable criterion of all legislation and all conduct. He avows, indeed, his indebtedness to Paley for the phrase, "the greatest happiness of the greatest number," but through his lack of the historical sense and through his stupendous confidence in his own data and logical processes, he almost entirely disregarded previous investigators of similar or cognate fields of inquiry; and so he failed to take due cognisance of the contributions of writers like Priestley, Abraham Tucker, John Gay, Hutcheson, and others. The influence of Hume, Helvétius, and Beccaria, however, he did not neglect to acknowledge; and it was with delight he met at Bucharest a young man reading the De l'Esprit.1 Gay and Tucker had already, in their exposition of sanctions, eliminated to a large extent theological accessories. But Bentham's originality lay in emphasising and extending this point of view, in an uncompromising deduction of conclusions from his premises, in insisting throughout that the promotion of general happiness must necessarily be the invariable aim of the legislator and the moralist, in requiring the 1 Works, vol. x, p. 56.

nature of conduct to be estimated by its consequences and not by obscure underlying motives, and, generally, in the thoroughgoing application of his essential doctrine to all departments of human thought and human activity. Bentham did not, in fact, come to proclaim a new system of conduct; for the morality prevailing in his time was really utilitarian in subHis distinctive message lies more in his method than in his positive doctrine.

stance.

The utilitarian principle, then, claimed as self-evident, is for Bentham the essential guide, the test and measure of all virtue; and the principles inconsistent with it, for example, those of sympathy, antipathy, asceticism, and the like, he rejects entirely. The "ascetic" view, he holds, appears to condemn pleasure as a whole, whereas it really does nothing more than assume that certain pleasures can be procured only at an excessive cost of pain. On non-hedonistic systems of ethics in general he pours contempt; they make morality arbitrary, and disregard "eternal standards." He contends that the only sovereign masters to which conscious beings are subject are pleasure and pain, which are facts, real things, whose manifestations are indisputable, ubiquitous, perceptible by all sentient creatures; and which are worthy, therefore, of furnishing a proper foundation for a science. The greatest happiness of the greatest number is to be the universal rule and the unfailing object; and the various means that lead to it constitute "justice." It is to be the permanent foundation on which the whole edifice of morality as well as of law and of politics is to be erected. The sole aim, the true good, of man is found in happiness. The moral judgment is only a way of judging happiness. Happiness is the "sum of pleasures." And all pleasures are, at bottom, equal in value; that is, there are no qualitative distinctions, as all concrete differences are determined by differences of intensity and quantity or permanence. Every person is inevitably and ceaselessly engaged in the quest of his own happiness-not necessarily by the pursuit of immediate pleasure, but by doing that which, even at the cost of present pain, would eventually secure him a balance of pleasure-and each one is the best judge as to what will procure him happiness. So when each individual member of the community succeeds in attaining the greatest happiness possible to him, it follows that the greatest aggregate of happiness would accrue to the community. And this greatest totality