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should not be a sufficient reason for rejecting it altogether. In the civil courts plaintiff and defendant were condemned to sit as silent spectators, even in the event of a gross miscarriage of justice; Bentham deems it barbarous to prohibit them from testifying to facts within their knowledge. He shows how the trustworthiness of evidence may be affected by the various “springs of action ” and “sanctions,” and points out the means available for securing truthful evidence, and for estimating the probability of its truth. He considers the administration of oaths to be a valueless proceeding.” Further, not only should the law of evidence be refashioned, but poor litigants should be supplied gratuitously with legal aid. The duties and fees of advocates should be specifically prescribed. None from among their ranks should be appointed judges—to do so is as expedient as putting a procuress at the head of a girls' school.” Judges should everywhere be accessible, and always under the supervision of the public. They should not be permitted to lay down a new rule of law; but when matters arose for which the existing law was inadequate, they should suggest amendments to the legislation. Thus it may be said briefly that as against the technical, inconsistent, unintelligible, fee-extorting concoction of English law —by which money and knavery were enabled to triumph over
poverty and honesty — Bentham demanded a simple, clear, , ,
systematic code based on utility, and aiming at equality and
One or two other matters remain to be mentioned. The laws relating to bankruptcy, insolvency, and imprisonment for debt were shown by Bentham to be needlessly complicated, outworn, and badly administered. The assets of debtors, instead of being used for the “undignified purpose" of paying their debts, were diverted to “the dignified function of contributing to the fund provided for the remuneration of legal science.” The debtor's estate was plundered by the assignees; and the severe penal provisions proved, through their extreme rigour, to be ineffective —for defrauded persons frequently refrained from prosecuting rather than set in motion the ferocious and blood-thirsty law. Bentham demanded a simplification of the distinction between insolvency and bankruptcy; the confusing rules had brought only suffering to suitors and emoluments to lawyers. The power of the creditor to imprison indefinitely an insolvent debtor should
"Cf. supra, Swear not at all. * Works, vol. ix, p. 594.
be ended; and the exaction of fees by gaolers should be forbidden. Bentham did not advocate the entire discontinuance of imprisonment for debt; but he assailed the practice of arrest on mesne process, and condemned all punishment where there was no blame.
His attack on the poor law and on the law of settlement has already been referred to; and we have seen that his suggestions for a reconstruction of the entire law on the subject constitute a luminous and comprehensive contribution to one of the most difficult portions of national jurisprudence and political economy.
(iv) CRIMINAL LAW
Writers like Montesquieu, Voltaire, Beccaria had on the Continent prepared the way for more rational conceptions of criminal law, and for a more humane treatment of criminals. In England we find echoes of Beccaria in Blackstone's Commentaries, of which the first volume appeared the year after the publication of the Italian writer's treatise (1765). Blackstone (like his predecessor) considers it wrong and absurd to apply the same punishment to totally different offences and to the same kind of crimes varying in heinousness; he holds that certainty of punishment has a greater deterrent effect than severity, which not infrequently means impunity; he deplores the existence on the statute-book of such a great number of felonies without benefit of clergy. But he failed to detect the fatal fallacies that punishment ought to be increased in proportion to the increase of temptation, and that the degree of culpability ought to be made to depend on the facility with which the crime might be committed. William Eden,” afterwards Lord Auckland, made some little advance by his book Principles of Penal Law, published in 1771; he declared himself an opponent of the barbarous practice of the criminal law. Lord Kames” attacked the system which permitted the infliction of capital punishment for numerous offences, some of them comparatively trivial, and condemned harshness and severity in general. The protests of laymen were not wanting. Dr. Johnson,” who was far from being a sentimentalist or an innovator, advocated the restriction of the supreme penalty to cases of murder, and found fault with the prevailing “disproportion between crimes and punishments,” the “capricious distinctions of guilt,” the “confusion of remissness and severity,” the multiplication of capital offences, the infliction of the same penalty for crimes “very different in their degrees of enormity,” the assumption that “inflexible rigour and sanguinary justice,” and a “periodical havoc of our fellowbeings” will prevent crimes or lead to reformation. He observes that “from this conviction of the inequality of the punishment to the offence proceeds the frequent solicitation of pardons.” “Whatever may be urged by casuists or politicians, the greaterp's ena part of mankind, as they can never think that to pick the pocket' — and to pierce the heart is equally criminal, will scarcely believe that two malefactors so different in guilt can be justly doomed to the same punishment. . . . Till we mitigate the penalties for mere violations of property, information will always be hated and prosecution dreaded.” Thus relaxation in the laws, argues Johnson, will obviate the frequent impunity that obtains. Similarly, Goldsmith could not “avoid even questioning the validity of that right which social combinations have assumed of capitally punishing offences of a slight nature.”" Again, Fielding thought the increase of crimes due to the great abuse of pardons (a practice resulting unavoidably from the excessive rigour of the criminal law), and suggested that the number of executions should be diminished, and that the tragic farce of public executions should be abolished.” Howard, too, condemned the evils of public executions, recommended the restriction of capital punishment to only three or four offences, exposed the scandalous conditions in gaols, and proposed various measures of amelioration. What of Bentham? Once more he proved himself, in the field of criminal jurisprudence as in many other departments: of law and politics, a sounder, more rational, a more systematic and comprehensive thinker than his predecessors. This will be seen more fully in the next chapter; for the present it will suffice to point out very briefly some of his leading principles. Montesquieu had maintained that laws were “rapports nécessaires qui dérivent de la nature des choses,” and had insisted on the existence of certain equitable relationships as being prior to all positive law, in that “un étre intelligent qui a fait du mal A un étre intelligent mérite de recevoir le même mal.” The imposition of
* See supra, on Beccaria, chap. iv.
* Historical Law Tracts. Criminal Law (1776). * The Rambler, No. 114 (1751).
* Vicar of Wakefield, chap. xxvii. Cf. his Citizen of the World, letter lxxix. "Cf. Enquiry into the late increase of Robbers (1751).
penalties, he held, must proceed not from the caprice of the
Tiegislator but "de la nature de la chose.” Bentham rejects . these fundamental conceptions. He considers Montesquieu's
implies pain, and pain is an evil; therefore, punishment is, from the point of view of utility, intrinsically an evil, and to that extent is not distinguishable from the offence. The infliction of a penalty is a kind of counter-offence committed under sanction of the law. Pain is common to the two; but the difference between them is a difference in the direction and incidence of the pain. For in the case of the offence one person inflicts suffering (including the consequent alarm) on many, that is on the community at large, for his own personal profit; whilst in the case of the penalty many, that is the community, inflict pain on one for the sake of the general good. Accordingly punishment is to be imposed only when it excludes greater evil. With this view and to this extent is punishment indubitably justifiable. It will clearly be unjustifiable if it is “groundless,” “inefficacious,” “unprofitable,” or “needless"—as, for example, where the object may be attained “as effectually at a cheaper rate"—for in
* Cf. Esprit des lois, liv. i, chap. ii liv. xii, chap. iv. See also supra, on Beccaria, chap. ii.
certain cases reason rather than physical force may be the
penalty must be of such a kind as to cause a would-be malefactor
to choose a less rather than a greater offence, as, for example, larceny rather than robbery with, violence. The penalty must fit the crime. It must be capable of adaptation to the varying sensibility of criminals, so that different offenders may receive different penalties for similar offences. In proportion as it decreases in certainty, it must increase in “value,” that is in severity. The punishment should follow the offence as closely as possible. There are certain punishments which, though customarily inflicted, are obviously mistaken or misapplied. To preserve due proportion, and achieve the essential object of all penal provisions, a “lot” of punishment must be characterised by certain properties: it must be variable, equable, commensurable, characteristic, exemplary, frugal, revocable, reformatory, dis
abling (from future offences), compensatory (to the persons
injured), not unpopular, capable of simple description.