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damage, suffering due to the peculiar sensibility of the injured person." The alarm inspired by offences (evil of the second order) is due to the extent of evil of the first order, the offender's intention (gauged by his state of mind—knowledge, ignorance, or misinformation),” the position which has given him an opportunity to commit the offence (e.g. the amount of trust or power placed in him),” his motive, his character, the facility to prevent like offences or to conceal them, the condition of the injured party, by virtue of which those in a like condition may or may not be inspired with fear." As to the effect of motives on alarm, Bentham says that if the offence proceeds from a rare motive, belonging to a class of motives small in number, the alarm will be small; if from a motive common, frequent and powerful, the alarm will be greater, in that a larger number of persons will be affected. To speak of motives as good or bad is erroneous; for every motive is, ulti- | mately, the prospect of a pleasure to be procured, or of a pain to be avoided. The same motive may give rise to laudable, as well as to criminal, actions. Motives may be classified according to the tendency they seem to have to unite or to disunite the interests of the individual and of the community; social (benevolence), semi-social (religion, desire of friendship or of reputation), anti-social (antipathy), personal (pleasures of sense, pecuniary interest, desire of self-preservation, love of power). The first two classes may be called “tutelary” motives, the second two “seduc- || tive" motives. To judge an action, we must look first at its y effects; though a motive may raise or lower its moral quality. A tutelary motive will not justify or excuse, but may extenuate." Next Bentham considers the facility or difficulty of preventing ~ offences, the influence thereof on alarm, and the varying circumstances of the time and place of the offence. As it is easy to guard against domestic theft, wherefore there is less alarm, the rigorous laws against it are unjustifiable; the severity of punishment prescribed gives masters a repugnance to prosecute, and thus favours impunity." On the other hand, the alarm is greater when, by the nature or the circumstances of the crime, it is more difficult to discover it or to find out its author.” The amount of alarm depends also on the delinquent’s character, and so the
* Treatise on Legislation, Principles of the Penal Code, chap. v. * Ibid., chap, vi. * Chap. vii. * Chap. iv. * Chap. viii. "Chap. ix. * Chap. x.
grounds of aggravation (i.e. the indexes of a dangerous character) are oppression of the weak, aggravation of distress, disrespect towards superiors, gratuitous cruelty, premeditation, conspiracy, falsehood, violation of confidence. Such circumstances do not necessarily justify an increase in the penalty; it may suffice to modify it conformably to the particular aggravation, so as to excite in the minds of the citizens an antipathy to the aggravating circumstance.” Similarly, the grounds of extenuation, lessening the alarm and admitting of a diminution in the punishment, are absence of bad intention, provocation, self-preservation, preservation of some near friend, transgressing the limit of selfdefence, submission to authority or to menaces, drunkenness, childhood. In some cases, again, alarm is absent, i.e. where the only persons exposed to danger are incapable of fear. An example is infanticide, which ought not to be punished as a principal offence, and in any case the infliction of death therefor is barbarous. “It is not possible to fortify too strongly the sentiments of respect for humanity, or to inspire too much repugnance against everything that conduces to cruel habits. This offence ought, then, to be punished by branding it with disgrace. It is commonly the fear of shame which is its cause; it needs a greater shame to repress it.” ” Finally, the grounds of justification are consent (if there be no case of coercion, fraud, concealment, insanity, intoxication, childhood), repulsion of a greater evil (where the evil to be avoided is certain, less costly means are inapplicable, and the means employed will be efficacious), medical practice (a subdivision of the preceding), self-defence (a modification of the same), and lawful power, political or domestic.”
(ii) REMEDIES 4
Offences are diseases in the body politic; remedies are means
* of preventing or repairing them. Remedies may be divided into four classes: preventive, including direct means (aiming at a particular offence), and indirect (general precautions against a whole class of offences); suppressive (to put a stop to an offence begun but not completed); satisfactory (reparations or indemnities); penal." (Penal remedies are considered in the next section.) Direct means of prevention include functions of police, assignable to all citizens or to authorised persons, magisterial supervision, discretionary powers of public officers and judges, subject to such instructions of the legislature as will render arbitrary abuses impossible. Bentham gives various maxims which should underlie these instructions, and says there is one limit which must never be passed: “Never use a preventive means of a nature, to do more evil than the offence to be prevented.”" This is a rule, obvious and indisputable; but are we sure that we, even at the present day, are faithfully observing it? After dealing with chronic offences,” and the suppressive remedies therefor,” Bentham condemns the execution of the Riot Act. “The magistrate is obliged to go into the midst of the tumult; he must pronounce a long drawling formula, which nobody understands. This statute, dangerous for the innocent and difficult to be executed against the guilty, is a mixture of weakness and violence. . . . In such a moment of disorder, the magistrate ought to announce his presence by some extraordinary signal. . . . The orders given should not be ‘by. command of the king,' but in the name of justice.” “ Satisfaction (apart from punishment) should be made in proportion to the injury received," and should be complete in the eyes of observers, if not to the persons interested.” The different kinds are: pecuniary, restitution in kind (applicable everywhere, but especially where the property possesses a peculiar value),” attestative (where an evil due to spreading a falsehood is followed by publication of the truth)," honorary (maintaining or re-establishing in favour of an individual a position of honour, of which the offence had deprived or threatened to deprive him), vindictive, substitutive (at the expense of a third party, responsible in his fortune for the offender, e.g. master and servant, guardian and ward, parent and child, husband and wife, etc.).” In determining our choice as to the kind of satisfaction, we must consider the facility of furnishing it, the nature of the evil to be repaired, and the probable feelings of the party injured.” To prevent a deficiency in the satisfaction, two rules should be observed. First, follow the evil of the offence in all its ramifications and among all parties to it, and proportion the
* Treatise on Legislation, Principles of the Penal Code, chap. xi. * Ibid., chap. xii. * Chap. xiv. • This section forms Part I of Principles of Penal Law, in Works, vol. i. pp. 365 seq., and Part II in Dumont's Traités. * Treatise (Dumont), Part II, chap. i.
* Ibid., chap. ii. * Chap. iii. * Chap. iv. • Chap. v. * Chap. vi. * Chap. vii. * Chap. xii. * Chap. xiii. * Chap. xvii, * Chap. viii, p P
satisfaction accordingly; e.g. in case of homicide, the heirs of the deceased ought to receive compensation. Secondly, in uncertain cases give the benefit of the doubt to the injured party; thus, accidents should be placed to the account of the delinquent. “Laws are everywhere very imperfect upon this point. On the side of punishments there has been little fear of excess; on the side of satisfaction, a deficiency has caused little concern. Punishment, which, if it goes beyond the limit of necessity, is a pure evil, has been scattered with a prodigal hand. Satisfaction, which is purely a good, has been dealt out with a grudging parsimony.”" Further, in order that the satisfaction may be certain, and to avoid therefore hope of impunity, it ought not to be extinguished by the death of either the offender or the injured person.” As to the kinds of satisfaction. Pecuniary reparation is most proper where the damage to the injured party and the advantage of the offender are alike of a pecuniary nature, e.g. in theft, peculation, extortion. It should be proportioned to the wealth of the offender and to the degree of criminality. Thus the remedy and the evil are homogeneous. Where the satisfaction and the injury have no common measure, the effect of satisfaction or punishment is precarious. “There is still in existence an English law which is a true relic of barbarous times. A daughter is considered as the servant of her father; if she is seduced, the father cannot obtain any other satisfaction than a sum of money, the price of the domestic services which he is supposed to have lost by the pregnancy of his daughter.” ” In the case of honorary satisfaction, Bentham argues, amongst other things, against duelling as an inexpedient measure, but says the law has blundered in displacing it by disproportioned and inefficacious means." A large variety of remedies are suggested for offences against honour, and some of them are indeed “new” and “singular” (as he admits)—experience having shown the old ones to be inadequate. Besides simple admonition, apology of the offender, reading aloud his own sentence, a term of banishment from the injured party or from the public place where the insult was offered, the list contains such impossible remedies as kneeling before the injured party, putting on emblematical dresses and masks, for a corporal insult a retort of the same kind inflicted by the complainant, or, if he prefer it, by the hand of the executioner, for an insult to a woman muffling up the offender in a woman's headdress, and inflicting the retort by the hand of a woman.” Bentham maintains that the contempt the offender desired to fix on an innocent person ought to be transferred to himself; and he naively believes that public satisfactions, turned into spectacles, would furnish to the injured party such pleasures as would repair the mortification of the insult! He goes on to say that vindictive satisfaction is a pleasure, therefore a gain; it is honey gathered from the lion's carcase; it is an enjoyment to be cultivated, if restrained within the limits of the law. “It is not vengeance that is to be regarded as the most malignant and dangerous passion of the human heart; it is antipathy, it is intolerance—the hatreds of pride, of prejudice, of religion, of politics.” ” But the least excess for the sole object of vengeance must be avoided. Forgiveness of injuries is a virtue only after justice has done its work; otherwise, to forgive offences is often to invite their perpetration.” (We may obviously take exception to some of the expressions of Bentham; but he is not obsessed by any weak sentimentality or vague, ill-directed philanthropy, and rightly demands, in addition to measures of prevention and reformation, the salutary application of retributive justice, provided useless or excessive vengeance be avoided. Once let the state surrender to the plaintive clamourings of inexperienced sentimentalists, and begin to treat deliberate, malicious criminals as though they were but naughty children or hospital patients, and as surely as night follows day the whole penal law will be
* Treatise (Dumont), Part II, chap. ix. * Chap. x. "Chap. xi, “Chap. xiv.
come a farce, and chaos and destruction will ensue.) Finally,
Bentham advocates subsidiary satisfaction out of the public treasury, where the offender is without means; that is, the state is to assume the position of an insurer. But care is to betaken to avoid abuses through fraud, negligence, or collusion, and to prescribe such penalties as will not be readily incurred by a would-be offender for the sake of a doubtful gain to the person injured." (iii) PUNISHMENTS5
Having dealt with remedies mainly from the point of view
of the persons injured, Bentham now considers penal remedies
* Ibid., chap. xv. * Chap. xvi. * Ibid. * Chap. xviii.
* This section forms Part III of the Treatise (Dumont), and is Part II of Principles of Penal Law, in Works, vol. i. pp. 388 seq. In the Treatise, the first three chapters (dealing with the definition, classification, and ends of punishment) given in the Works are wanting.