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An
Introduction to the Principles
of Morals and Legislation
Jeremy
Bentham 1781
Contents
Preface
I:
Of The Principle of Utility
II:
Of Principles Adverse to that of Utility
III:
Of the Four Sanctions or Sources of Pain and Pleasure
IV:
Value of a Lot of Pleasure or Pain, How to be Measured
V:
Pleasures and Pains, Their Kinds
VI:
Of Circumstances Influencing Sensibility
VII:
Of Human Actions in General
VIII:
Of Intentionality
IX:
Of Consciousness
X:
Of Motives
XI:
Human Dispositions in General
XII:
Of the Consequences of a Mischievous Act
XIII:
Cases Unmeet for Punishment
XIV:
Of the Proportion between Punishments and Offences
XV:
Of the Properties to be Given to a Lot of Punishment
XVI:
Division of Offenses
XVII:
Of the Limits of the Penal Branch of Jurisprudence
Notes
Preface
The following
sheets were, as the note on the opposite page expresses, printed so
long ago as the year 1780. The design, in pursuance of which they were
written, was not so extensive as that announced by the present title.
They had at that time no other destination than that of serving as an
introduction to a plan of a penal code in terminus, designed to follow
them, in the same volume.
The body of the
work had received its completion according to the then present extent
of the author's views, when, in the investigation of some flaws he had
discovered, he found himself unexpectedly entangled in an unsuspected
corner of the metaphysical maze. A suspension, at first not apprehended
to be more than a temporary one, necessarily ensued: suspension brought
on coolness, and coolness, aided by other concurrent causes, ripened
into disgust.
Imperfections
pervading the whole mass had already been pointed out by the sincerity
of severe and discerning friends; and conscience had certified the
justness of their censure. The inordinate length of some of the
chapters, the apparent inutility of others, and the dry and
metaphysical turn of the whole, suggested an apprehension, that, if
published in its present form, the work would contend under great
disadvantages for any chance, it might on other accounts possess, of
being read, and consequently of being of use.
But, though in
this manner the idea of completing the present work slid insensibly
aside, that was not by any means the case with the considerations which
had led him to engage in it. Every opening, which promised to afford
the lights he stood in need of, was still pursued: as occasion arose
the several departments connected with that in which he had at first
engaged, were successively explored; insomuch that, in one branch or
other of the pursuit, his researches have nearly embraced the whole
field of legislation.
Several causes
have conspired at present to bring to light, under this new title, a
work which under its original one had been imperceptibly, but as it had
seemed irrevocably, doomed to oblivion. In the course of eight years,
materials for various works, corresponding to the different branches of
the subject of legislation, had been produced, and some nearly reduced
to shape: and, in every one of those works, the principles exhibited in
the present publication had been found so necessary, that, either to
transcribe them piecemeal, or to exhibit them somewhere where they
could be referred to in the lump, was found unavoidable. The former
course would have occasioned repetitions too bulky to be employed
without necessity in the execution of a plan unavoidably so voluminous:
the latter was therefore indisputably the preferable one.
To publish the
materials in the form in which they were already printed, or to work
them up into a new one, was therefore the only alternative: the latter
had all along been his wish, and, had time and the requisite degree of
alacrity been at command, it would as certainly have been realised.
Cogent considerations, however, concur, with the irksomeness of the
task, in placing the accomplishment of it at present at an unfathomable
distance.
Another
consideration is, that the suppression of the present work, had it been
ever so decidedly wished, is no longer altogether in his power. In the
course of so long an interval, various incidents have introduced copies
into various hands, from some of which they have been transferred by
deaths and other accidents, into others that are unknown to him.
Detached, but considerable extracts, have even been published, without
any dishonourable views (for the name of the author was very honestly
subjoined to them), but without his privity, and in publications
undertaken without his knowledge.
It may perhaps be
necessary to add, to complete his excuse for offering to the public a
work pervaded by blemishes, which have not escaped even the author's
partial eye, that the censure, so justly bestowed upon the form, did
not extend itself to the matter.
In sending it
thus abroad into the world with all its imperfections upon its head, he
thinks it may be of assistance to the few readers he can expect, to
receive a short intimation of the chief particulars, in respect of
which it fails of corresponding with his maturer views. It will thence
be observed how in some respects it fails of quadrating with the design
announced by its original title, as in others it does with that
announced by the one it bears at present.
An introduction
to a work which takes for its subject the totality of any science,
ought to contain all such matters, and such matters only, as belong in
common to every particular branch of that science, or at least to more
branches of it than one. Compared with its present title, the present
work fails in both ways of being conformable to that rule. As an
introduction to the principles of morals, in
addition to the analysis it contains of the extensive ideas signified
by the terms pleasure, pain, motive, and disposition,
it ought to have given a similar analysis of the not
less extensive, though much less determinate, ideas annexed to the
terms emotion, passion, appetite, virtue, vice, and
some others, including the names of the particular virtues and
vices. But as the true, and, if he
conceives right, the only true groundwork for the development of the
latter set of terms, has been laid by the explanation of the former,
the completion of such a dictionary, so to style it, would, in
comparison of the commencement, be little more than a mechanical
operation.
Again, as an
introduction to the principles of legislation in general, it
ought rather to have included matters belonging exclusively to the civil
branch, than matters more particularly applicable to
the penal: the latter being but a means of
compassing the ends proposed by the former. In preference therefore, or
at least in priority, to the several chapters which will be found
relative to punishment, it ought to have exhibited
a set of propositions which have since presented themselves to him as
affording a standard for the operations performed by government, in the
creation and distribution of proprietary and other civil rights. He
means certain axioms of what may be termed mental pathology, expressive
of the connection betwixt the feelings of the parties concerned, and
the several classes of incidents, which either call for, or are
produced by, operations of the nature above mentioned. 1
The consideration of the division of offences, and every thing else
that belongs to offences, ought, besides, to have preceded the
consideration of punishment: for the idea of punishment presupposes
the idea of offence: punishment, as such, not
being inflicted but in consideration of offence.
Lastly, the
analytical discussions relative to the classification of offences
would, according to his present views, be transferred to a separate
treatise, in which the system of legislation is considered solely in
respect of its form: in other words, in respect of its method
and terminology.
In these respects
the performance fails of coming up to the author's own ideas of what
should have been exhibited in a work, bearing the title he has now
given it. viz., that of an Introduction to the Principles of
Morals and Legislation. He knows however of no other that
would be less unsuitable: nor in particular would so adequate an
intimation of its actual contents have been given, by a title
corresponding to the more limited design, with which it was written:
viz., that of serving as an introduction to a penal code.
Yet more. Dry and
tedious as a great part of the discussions it contains must unavoidably
be found by the bulk of readers, he knows not how to regret the having
written them, nor even the having made them public. Under every head,
the practical uses, to which the discussions contained under that head
appeared applicable, are indicated: nor is there, he believes, a single
proposition that he has not found occasion to build upon in the penning
of some article or other of those provisions of detail, of which a body
of law, authoritative or unauthoritative, must be composed. He will
venture to specify particularly, in this view, the several chapters
shortly characterized by the words Sensibility, Actions,
Intentionality, Consciousness, Motives, Dispositions, Consequences.
Even in the
enormous chapter on the division of offenses, which, notwithstanding
the forced compression the plan has undergone in several of its parts,
in manner there mentioned, occupies no fewer than one hundred and four
closely printed quarto pages, the ten concluding ones are employed in a
statement of the practical advantages that may be reaped from the plan
of classification which it exhibits. Those in whose sight the Defence
of Usury has been fortunate enough to find favour, may
reckon as one instance of those advantages the discovery of the
principles developed in that little treatise. In the preface to an
anonymous tract published so long ago as in 1776, 2
he had hinted at the utility of a natural classification of offenses,
in the character of a test for distinguishing genuine from spurious
ones. The case of usury is one among a number of instances of the truth
of that observation. A note at the end of Sect. xxxv. chap. xvi. of the
present publication, may serve to show how the opinions, developed in
that tract, owed their origin to the difficulty experienced in the
attempt to find a place in his system for that imaginary offense. To
some readers, as a means of helping them to support the fatigue of
wading through an analysis of such enormous length, he would almost
recommend the beginning with those ten concluding pages.
One good at least
may result from the present publication; viz., that the more he has
trespassed on the patience of the reader on this occasion, the less
need he will have so to do on future ones: so that this may do to
those, the office which is done, by books of pure mathematics, to books
of mixed mathematics and natural philosophy. The narrower the circle of
readers is, within which the present work may be condemned to confine
itself, the less limited may be the number of those to whom the fruits
of his succeeding labours may be found accessible. He may therefore in
this respect find himself in the condition of those philosophers of
antiquity, who are represented as having held two bodies of doctrine, a
popular and an occult one: but, with this difference, that in his
instance the occult and the popular will, he hopes, be found as
consistent as in those they were contradictory; and that in his
production whatever there is of occultness has been the pure result of
sad necessity, and in no respect of choice.
Having, in the
course of this advertisement, had such frequent occasion to allude to
different arrangements, as having been suggested by more extensive and
maturer views, it may perhaps contribute to the satisfaction of the
reader, to receive a short intimation of their nature: the rather, as,
without such explanation, references, made here and there to
unpublished works, might be productive of perplexity and mistake. The
following then are the titles of the works by the publication of which
his present designs would be completed. They are exhibited in the order
which seemed to him best fitted for apprehension, and in which they
would stand disposed, were the whole assemblage ready to come out at
once: but the order, in which they will eventually appear, may probably
enough be influenced in some degree by collateral and temporary
considerations.
Part the 1st.
Principles of legislation in matters of civil, more
distinctively termed private distributive, or for
shortness, distributive, law.
Part the 2nd.
Principles of legislation in matters of penal law.
Part the 3rd.
Principles of legislation in matters of procedure: uniting
in one view the criminal and civil branches,
between which no line can be drawn, but a very indistinct one, and that
continually liable to variation.
Part the 4th.
Principles of legislation in matters of reward.
Part the 5th.
Principles of legislation in matters of public distributive, more
concisely as well as familiarly termed constitutional, law.
Part the 6th.
Principles of legislation in matters of political tactics: or
of the art of maintaining order in the proceedings
of political assemblies, so as to direct them to the end of their
institution: viz., by a system of rules, which are to the
constitutional branch, in some respects, what the law of procedure is
to the civil and the penal.
Part the 7th.
Principles of legislation in matters betwixt nation and nation, or, to
use a new though not inexpressive appellation, in matters of international
law.
Part the 8th.
Principles of legislation in matters of finance.
Part the 9th.
Principles of legislation in matters of political economy.
Part the 10th.
Plan of a body of law, complete in all its branches, considered in
respect of its form; in other words, in respect of
its method and terminology; including a view of the origination and
connexion of the ideas expressed by the short list of terms, the
exposition of which contains all that can be said with propriety to
belong to the head of universal jurisprudence.
The use of the
principles laid down under the above several heads is to prepare the
way for the body of law itself exhibited in terminis; and
which to be complete, with reference to any political state, must
consequently be calculated for the meridian, and adapted to the
circumstances, of some one such state in particular.
Had he an
unlimited power of drawing upon time, and every
other condition necessary, it would be his wish to postpone the
publication of each part to the completion of the whole. In particular,
the use of the ten parts, which exhibit what appear to him the dictates
of utility in every line, being no other than to furnish reasons for
the several corresponding provisions contained in the body of law
itself, the exact truth of the former can never be precisely
ascertained, till the provisions, to which they are destined to apply,
are themselves ascertained, and that in terminis. But
as the infirmity of human nature renders all plans precarious in the
execution, in proportion as they are extensive in the design, and as he
has already made considerable advances in several branches of the
theory, without having made correspondent advances in the practical
applications, he deems it more than probable, that the eventual order
of publication will not correspond exactly with that which, had it been
equally practicable, would have appeared most eligible. Of this
irregularity the unavoidable result will be, a multitude of
imperfections, which, if the execution of the body of law in
terminis had kept pace with the development of the
principles, so that each part had been adjusted and corrected by the
other, might have been avoided. His conduct however will be the less
swayed by this inconvenience, from his suspecting it to be of the
number of those in which the personal vanity of the author is much more
concerned, than the instruction of the public: since whatever
amendments may be suggested in the detail of the principles, by the
literal fixation of the provisions to which they are relative, may
easily be made in a corrected edition of the former, succeeding upon
the publication of the latter.
In the course of
the ensuing pages, references will be found, as already intimated, some
to the plan of a penal code to which this work was meant as an
introduction, some to other branches of the above-mentioned general
plan, under titles somewhat different from those, by which they have
been mentioned here. The giving this warning is all which it is in the
author's power to do, to save the reader from the perplexity of looking
out for what has not as yet any existence. The recollection of the
change of plan will in like manner account for several similar
incongruities not worth particularizing.
Allusion was
made, at the outset of this advertisement, to some unspecified
difficulties, as the causes of the original suspension, and unfinished
complexion, of the present work. Ashamed of his defeat, and unable to
dissemble it, he knows not how to reface himself the benefit of such an
apology as a slight sketch of the nature of those difficulties may
afford.. The discovery of them was produced by the attempt to solve the
questions that will be found at the conclusion of the volume: Wherein
consisted the identity and completeness of a law?
What the distinction, and where the separation, between a penal
and a civil law? What the
distinction, and where the separation, between the penal and
other branches of the law?
To give a
complete and correct answer to these questions, it is but too evident
that the relations and dependencies of every part of the legislative
system, with respect to every other, must have been comprehended and
ascertained. But it is only upon a view of these parts themselves, that
such an operation could have been performed. To the accuracy of such a
survey one necessary condition would therefore be, the complete
existence of the fabric to be surveyed. To the performance of this
condition no example is as yet to be met with any where. Common
law, as it styles itself in England, judiciary law
as it might aptly be styled every where. that fictitious composition
which has no known person for its author, no known assemblage of words
for its substance, forms every where the main body of the legal fabric:
like that fancied ether, which, in default of sensible matter, fills up
the measure of the universe. Shreds and scraps of real law, stuck on
upon that imaginary ground, compose the furniture of every national
code. What follows?— that he who, for the purpose just
mentioned or for any other, wants an example of a complete body of law
to refer to, must begin with making one.
There is, or
rather there ought to be, a logic of the will.
as well as of the understanding: the
operations of the former faculty, are neither less susceptible, nor
less worthy, then those of the latter, of being delineated by rules. Of
these two branches of that recondite art, Aristotle saw only the
latter: succeeding logicians, treading in the steps of their great
founder, have concurred in seeing with no other eyes. Yet so far as a
difference can be assigned between branches so intimately connected,
whatever difference there is, in point of importance, is in favour of
the logic of the will. Since it is only by their capacity of directing
the operations of this faculty, that the operations of the
understanding are of any consequence. Of this logic of the will, the
science of law, considered in respect of its form,
is the most considerable branch,— the most
important application. It is, to the art of legislation, what the
science of anatomy is to the art of medicine: with this difference,
that the subject of it is what the artist has to work with, instead
of being what he has to operate upon. Nor is the
body politic less in danger from a want of acquaintance with the one
science, than the body natural from ignorance in the other. One
example, amongst a thousand that might be adduced in proof of this
assertion, may be seen in the note which terminates this volume. Such
then were the difficulties: such the preliminaries:— an
unexampled work to achieve, and then a new science to create: a new
branch to add to one of the most abstruse of sciences.
Yet more: a body
of proposed law, how complete soever, would be comparatively useless
and uninstructive, unless explained and justified, and that in every
tittle, by a continued accompaniment, a perpetual commentary of
reasons: which reasons, that the comparative value of such as point in
opposite directions may be estimated, and the conjunct force, of such
as point in the same direction may be felt. must be marshalled, and put
under subordination to such extensive and leading ones as are termed principles.
There must be therefore, not one system only, but two
parallel and connected systems, running on together. the one of
legislative provisions, the other of political reasons, each affording
to the other correction and support.
Are enterprises
like these achievable? He knows not. This only he knows, that they have
been undertaken, proceeded in, and that some progress has been made in
all of them. He will venture to add, if at all achievable, never at
least by one, to whom the fatigue of attending to discussions, as arid
as those which occupy the ensuing pages, would either appear useless,
or feel intolerable. He will repeat it boldly (for it has been said
before him), truths that form the basis of political and moral science
are not to be discovered but by investigations as severe as
mathematical ones, and beyond all comparison more intricate and
extensive. The familiarity of the terms is a presumption, but is a most
fallacious one, of the facility of the matter. Truths in general have
been called stubborn things: the truths just mentioned are so in their
own way. They are not to be forced into detached and general
propositions, unincumbered with explanations and exceptions. They will
not compress themselves into epigrams. They recoil from the tongue and
the pen of the declaimer. They flourish not in the same soil with
sentiment. They grow among thorns; and are not to be plucked, like
daisies, by infants as they run. Labour, the inevitable lot of
humanity, is in no track more inevitable than here. In vain would an
Alexander bespeak a peculiar road for royal vanity, or a Ptolemy, a
smoother one, for royal indolence. There is no King's Road, no
Stadtholder's Gate, to legislative, any
more than to mathematic science.
Chapter I: Of The Principle of Utility
I. Nature has
placed mankind under the governance of two sovereign masters, pain
and pleasure. It is for them
alone to point out what we ought to do, as well as to determine what we
shall do. On the one hand the standard of right and wrong, on the other
the chain of causes and effects, are fastened to their throne. They
govern us in all we do, in all we say, in all we think: every effort we
can make to throw off our subjection, will serve but to demonstrate and
confirm it. In words a man may pretend to abjure their empire: but in
reality he will remain subject to it all the while. The principle
of utility recognizes this subjection, and assumes it for
the foundation of that system, the object of which is to rear the
fabric of felicity by the hands of reason and of law. Systems which
attempt to question it, deal in sounds instead of sense, in caprice
instead of reason, in darkness instead of light.
But enough of
metaphor and declamation: it is not by such means that moral science is
to be improved.
II. The principle
of utility is the foundation of the present work: it will be proper
therefore at the outset to give an explicit and determinate account of
what is meant by it. By the principle of utility is meant that
principle which approves or disapproves of every action whatsoever.
according to the tendency it appears to have to augment or diminish the
happiness of the party whose interest is in question: or, what is the
same thing in other words to promote or to oppose that happiness. I say
of every action whatsoever, and therefore not only of every action of a
private individual, but of every measure of government.
III. By utility
is meant that property in any object, whereby it tends to produce
benefit, advantage, pleasure, good, or happiness, (all this in the
present case comes to the same thing) or (what comes again to the same
thing) to prevent the happening of mischief, pain, evil, or unhappiness
to the party whose interest is considered: if that party be the
community in general, then the happiness of the community: if a
particular individual, then the happiness of that individual.
IV. The interest
of the community is one of the most general expressions that can occur
in the phraseology of morals: no wonder that the meaning of it is often
lost. When it has a meaning, it is this. The community is a fictitious body,
composed of the individual persons who are considered
as constituting as it were its members. The
interest of the community then is, what is it?— the sum of
the interests of the several members who compose it.
V. It is in vain
to talk of the interest of the community, without understanding what is
the interest of the individual. A thing is said to promote the
interest, or to be for the interest, of an
individual, when it tends to add to the sum total of his pleasures: or,
what comes to the same thing, to diminish the sum total of his pains.
VI. An action
then may be said to be conformable to then principle of utility, or,
for shortness sake, to utility, (meaning with respect to the community
at large) when the tendency it has to augment the happiness of the
community is greater than any it has to diminish it.
VII. A measure of
government (which is but a particular kind of action, performed by a
particular person or persons) may be said to be conformable to or
dictated by the principle of utility, when in like manner the tendency
which it has to augment the happiness of the community is greater than
any which it has to diminish it.
VIII. When an
action, or in particular a measure of government, is supposed by a man
to be conformable to the principle of utility, it may be convenient,
for the purposes of discourse, to imagine a kind of law or dictate,
called a law or dictate of utility: and to speak of the action in
question, as being conformable to such law or dictate.
IX. A man may be
said to be a partizan of the principle of utility, when the approbation
or disapprobation he annexes to any action, or to any measure, is
determined by and proportioned to the tendency which he conceives it to
have to augment or to diminish the happiness of the community: or in
other words, to its conformity or unconformity to the laws or dictates
of utility.
X. Of an action
that is conformable to the principle of utility one may always say
either that it is one that ought to be done, or at least that it is not
one that ought not to be done. One may say also, that it is right it
should be done; at least that it is not wrong it should be done: that
it is a right action; at least that it is not a wrong action. When thus
interpreted, the words ought, and right and
wrong and others of that stamp, have a
meaning: when otherwise, they have none.
XI. Has the
rectitude of this principle been ever formally contested? It should
seem that it had, by those who have not known what they have been
meaning. Is it susceptible of any direct proof? it should seem not: for
that which is used to prove every thing else, cannot itself be proved:
a chain of proofs must have their commencement somewhere. To give such
proof is as impossible as it is needless.
XII. Not that
there is or ever has been that human creature at breathing, however
stupid or perverse, who has not on many, perhaps on most occasions of
his life, deferred to it. By the natural constitution of the human
frame, on most occasions of their lives men in general embrace this
principle, without thinking of it: if not for the ordering of their own
actions, yet for the trying of their own actions, as well as of those
of other men. There have been, at the same time, not many perhaps, even
of the most intelligent, who have been disposed to embrace it purely
and without reserve. There are even few who have not taken some
occasion or other to quarrel with it, either on account of their not
understanding always how to apply it, or on account of some prejudice
or other which they were afraid to examine into, or could not bear to
part with. For such is the stuff that man is made of: in principle and
in practice, in a right track and in a wrong one, the rarest of all
human qualities is consistency.
XIII. When a man
attempts to combat the principle of utility, it is with reasons drawn,
without his being aware of it, from that very principle itself. His
arguments, if they prove any thing, prove not that the principle is wrong,
but that, according to the applications he supposes
to be made of it, it is misapplied. Is it possible
for a man to move the earth? Yes; but he must first find out another
earth to stand upon.
XIV. To disprove
the propriety of it by arguments is impossible; but, from the causes
that have been mentioned, or from some confused or partial view of it,
a man may happen to be disposed not to relish it. Where this is the
case, if he thinks the settling of his opinions on such a subject worth
the trouble, let him take the following steps, and at length, perhaps,
he may come to reconcile himself to it.
1. Let him settle
with himself, whether he would wish to discard this principle
altogether; if so, let him consider what it is that all his reasonings
(in matters of politics especially) can amount to?
2. If he would, let him settle with himself, whether he would judge and
act without any principle, or whether there is any other he would judge
an act by?
3. If there be, let him examine and satisfy himself whether the
principle he thinks he has found is really any separate intelligible
principle; or whether it be not a mere principle in words, a kind of
phrase, which at bottom expresses neither more nor less than the mere
averment of his own unfounded sentiments; that is, what in another
person he might be apt to call caprice?
4. If he is inclined to think that his own approbation or
disapprobation, annexed to the idea of an act, without any regard to
its consequences, is a sufficient foundation for him to judge and act
upon, let him ask himself whether his sentiment is to be a standard of
right and wrong, with respect to every other man, or whether every
man's sentiment has the same privilege of being a standard to itself?
5. In the first case, let him ask himself whether his principle is not
despotical, and hostile to all the rest of human race?
6. In the second case, whether it is not anarchial, and whether at this
rate there are not as many different standards of right and wrong as
there are men? and whether even to the same man, the same thing, which
is right today, may not (without the least change in its nature) be
wrong tomorrow? and whether the same thing is not right and wrong in
the same place at the same time? and in either case, whether all
argument is not at an end? and whether, when two men have said, "I like
this," and "I don't like it," they can (upon such a principle) have any
thing more to say?
7. If he should have said to himself, No: for that the sentiment which
he proposes as a standard must be grounded on reflection, let him say
on what particulars the reflection is to turn? if on particulars having
relation to the utility of the act, then let him say whether this is
not deserting his own principle, and borrowing assistance from that
very one in opposition to which he sets it up: or if not on those
particulars, on what other particulars?
8. If he should be for compounding the matter, and adopting his own
principle in part, and the principle of utility in part, let him say
how far he will adopt it?
9. When he has settled with himself where he will stop, then let him
ask himself how he justifies to himself the adopting it so far? and why
he will not adopt it any farther?
10. Admitting any other principle than the principle of utility to be a
right principle, a principle that it is right for a man to pursue;
admitting (what is not true) that the word right can
have a meaning without reference to utility, let him say whether there
is any such thing as a motive that a man can have
to pursue the dictates of it: if there is, let him say what that motive
is, and how it is to be distinguished from those which enforce the
dictates of utility: if not, then lastly let him say what it is this
other principle can be good for?
Chapter II: Of Principles Adverse to that of Utility
I. If the
principle of utility be a right principle to be governed by, and that
in all cases, it follows from what has been just observed, that
whatever principle differs from it in any case must necessarily be a
wrong one. To prove any other principle, therefore, to be a wrong one,
there needs no more than just to show it to be what it is, a principle
of which the dictates are in some point or other different from those
of the principle of utility: to state it is to confute it.
II. A principle
may be different from that of utility in two ways: 1. By being
constantly opposed to it: this is the case with a principle which may
be termed the principle of asceticism. 2. By being
sometimes opposed to it, and sometimes not, as it may happen: this is
the case with another, which may be termed the principle of sympathy
and antipathy.
III. By the
principle of asceticism I mean that principle, which, like the
principle of utility, approves or disapproves of any action, according
to the tendency which it appears to have to augment or diminish the
happiness of the party whose interest is in question; but in an inverse
manner: approving of actions in as far as they tend to diminish his
happiness; disapproving of them in as far as they tend to augment it.
IV. It is evident
that any one who reprobates any the least particle of pleasure, as
such, from whatever source derived, is pro tanto a
partizan of the principle of asceticism. It is only upon that
principles and not from the principle of utility, that the most
abominable pleasure which the vilest of malefactors ever reaped from
his crime would be to be reprobated, if it stood alone. The case is,
that it never does stand alone; but is necessarily followed by such a
quantity of pain (or, what comes to the same thing, such a chance for a
certain quantity of pain) that, the pleasure in comparison of it, is as
nothing: and this is the true and sole, but perfectly sufficient,
reason for making it a ground for punishment.
V. There are two
classes of men of very different complexions, by whom the principle of
asceticism appears to have been embraced; the one a set of moralists,
the other a set of religionists. Different accordingly have been the
motives which appears to have recommended it to the notice of these
different parties. Hope, that is the prospect of pleasure, seems to
have animated the former: hope, the aliment of philosophic pride: the
hope of honour and reputation at the hands of men. Fear, that is the
prospect of pain, the latter: fear, the offspring of superstitious
fancy: the fear of future punishment at the hands of a splenetic and
revengeful Deity. I say in this case fear: for of the invisible future,
fear is more powerful than hope. These circumstances characterize the
two different parties among the partisans of the principle of
asceticism; the parties and their motives different, the principle the
same.
VI. The religious
party, however, appear to have carried it farther than the
philosophical: they have acted more consistently and less wisely. The
philosophical party have scarcely gone farther than to reprobate
pleasure: the religious party have frequently gone so far as to make it
a matter of merit and of duty to court pain. The philosophical party
have hardly gone farther than the making pain a matter of indifference.
It is no evil, they have said: they have not said, it is a good. They
have not so much as reprobated all pleasure in the lump. They have
discarded only what they have called the gross; that is, such as are
organical, or of which the origin is easily traced up to such as are
organical: they have even cherished and magnified the refined. Yet
this, however, not under the name of pleasure: to cleanse itself from
the sordes of its impure original, it was necessary it should change
its name: the honourable, the glorious, the reputable, the becoming,
the honestum, the decorum it
was to be called: in short, any thing but pleasure.
VII. From these
two sources have flowed the doctrines from it which the sentiments of
the bulk of mankind have all along received a tincture of this
principle; some from the philosophical, some from the religious, some
from both. Men of education more frequently from the philosophical, as
more suited to the elevation of their sentiments: the vulgar more
frequently from the superstitious, as more suited to the narrowness of
their intellect, undilated by knowledge and to the abjectness of their
condition, continually open to the attacks of fear. The tinctures,
however, derived from the two sources, would naturally intermingle,
insomuch that a man would not always know by which of them he was most
influenced: and they would often serve to corroborate and enliven one
another. It was this conformity that made a kind of alliance between
parties of a complexion otherwise so dissimilar: and disposed them to
unite upon various occasions against the common enemy, the partizan of
the principle of utility, whom they joined in branding with the odious
name of Epicurean.
VIII. The
principle of asceticism, however, with whatever warmth it may have been
embraced by its partizans as a rule of Private conduct, seems not to
have been carried to any considerable length, when applied to the
business of government. In a few instances it has been carried a little
way by the philosophical party: witness the Spartan regimen. Though
then, perhaps, it maybe considered as having been a measure of
security: and an application, though a precipitate and perverse
application, of the principle of utility. Scarcely in any instances, to
any considerable length, by the religious: for the various monastic
orders, and the societies of the Quakers, Dumplers, Moravians, and
other religionists, have been free societies, whose regimen no man has
been astricted to without the intervention of his own consent. Whatever
merit a man may have thought there would be in making himself
miserable, no such notion seems ever to have occurred to any of them,
that it may be a merit, much less a duty, to make others miserable:
although it should seem, that if a certain quantity of misery were a
thing so desirable, it would not matter much whether it were brought by
each man upon himself, or by one man upon another. It is true, that
from the same source from whence, among the religionists, the
attachment to the principle of asceticism took its rise, flowed other
doctrines and practices, from which misery in abundance was produced in
one man by the instrumentality of another: witness the holy wars, and
the persecutions for religion. But the passion for producing misery in
these cases proceeded upon some special ground: the exercise of it was
confined to persons of particular descriptions: they were tormented,
not as men, but as heretics and infidels. To have inflicted the same
miseries on their fellow believers and fellow-sectaries, would have
been as blameable in the eyes even of these religionists, as in those
of a partizan of the principle of utility. For a man to give himself a
certain number of stripes was indeed meritorious: but to give the same
number of stripes to another man, not consenting, would have been a
sin. We read of saints, who for the good of their souls, and the
mortification of their bodies, have voluntarily yielded themselves a
prey to vermin: but though many persons of this class have wielded the
reins of empire, we read of none who have set themselves to work, and
made laws on purpose, with a view of stocking the body politic with the
breed of highwaymen, housebreakers, or incendiaries. If at any time
they have suffered the nation to be preyed upon by swarms of idle
pensioners, or useless placemen, it has rather been from negligence and
imbecility, than from any settled plan for oppressing and plundering of
the people. If at any time they have sapped the sources of national
wealth, by cramping commerce, and driving the inhabitants into
emigration, it has been with other views, and in pursuit of other ends.
If they have declaimed against the pursuit of pleasure, and the use of
wealth, they have commonly stopped at declamation: they have not, like
Lycurgus, made express ordinances for the purpose of banishing the
precious metals. If they have established idleness by a law, it has
been not because idleness, the mother of vice and misery, is itself a
virtue, but because idleness (say they) is the road to holiness. If
under the notion of fasting, they have joined in the plan of confining
their subjects to a diet, thought by some to be of the most nourishing
and prolific nature, it has been not for the sake of making them
tributaries to the nations by whom that diet was to be supplied, but
for the sake of manifesting their own power, and exercising the
obedience of the people. If they have established, or suffered to be
established, punishments for the breach of celibacy, they have done no
more than comply with the petitions of those deluded rigorists, who,
dupes to the ambitious and deep-laid policy of their rulers, first laid
themselves under that idle obligation by a vow.
IX. The principle
of asceticism seems originally to have been the reverie of certain
hasty speculators, who having perceived, or fancied, that certain
pleasures, when reaped in certain circumstances, have, at the long run,
been attended with pains more than equivalent to them, took occasion to
quarrel with every thing that offered itself under the name of
pleasure. Having then got thus far, and having forgot the point which
they set out from, they pushed on, and went so much further as to think
it meritorious to fall in love with pain. Even this, we see, is at
bottom but the principle of utility misapplied.
X. The principle
of utility is capable of being consistently pursued; and it is but
tautology to say, that the more consistently it is pursued, the better
it must ever be for humankind. The principle of asceticism never was,
nor ever can be, consistently pursued by any living creature. Let but
one tenth part of the inhabitants of this earth pursue it consistently,
and in a day's time they will have turned it into a hell.
XI. Among
principles adverse to that of utility, that which at this day seems to
have most influence in matters of government, is what may be called the
principle of sympathy and antipathy. By the principle of sympathy and
antipathy, I mean that principle which approves or disapproves of
certain actions, not on account of their tending to augment the
happiness, nor yet on account of their tending to diminish the
happiness of the party whose interest is in question, but merely
because a man finds himself disposed to approve or disapprove of them:
holding up that approbation or disapprobation as a sufficient reason
for itself, and disclaiming the necessity of looking out for any
extrinsic ground. Thus far in the general department of morals: and in
the particular department of politics, measuring out the quantum (as
well as determining the ground) of punishment, by the degree of the
disapprobation.
XII. It is
manifest, that this is rather a principle in name than in reality: it
is not a positive principle of itself, so much as a term employed to
signify the negation of all principle. What one expects to find in a
principle is something that points out some external consideration, as
a means of warranting and guiding the internal sentiments of
approbation and disapprobation: this expectation is but ill fulfilled
by a proposition, which does neither more nor less than hold up each of
those sentiments as a ground and standard for itself.
XIII. In looking
over the catalogue of human actions (says a partizan of this principle)
in order to determine which of them are to be marked with the seal of
disapprobation, you need but to take counsel of your own feelings:
whatever you find in yourself a propensity to condemn, is wrong for
that very reason. For the same reason it is also meet for punishment:
in what proportion it is adverse to utility, or whether it be adverse
to utility at all, is a matter that makes no difference. In that same proportion
also is it meet for punishment: if you hate much,
punish much: if you hate little, punish little: punish as you hate. If
you hate not at all, punish not at all: the fine feelings of the soul
are not to be overborne and tyrannized by the harsh and rugged dictates
of political utility.
XIV. The various
systems that have been formed concerning the standard of right may all
be reduced to the principle of sympathy and antipathy. One account may
serve to for all of them. They consist all of them in so many
contrivances for avoiding the obligation of appealing to any external
standard, and for prevailing upon the reader to accept of the author's
sentiment or opinion as a reason for itself. The phrases different, but
the principle the same.
XV. It is
manifest, that the dictates of this principle will frequently coincide
with those of utility, though perhaps without intending any such thing.
Probably more frequently than not: and hence it is that the business of
penal justice is carried upon that tolerable sort of footing upon which
we see it carried on in common at this day. For what more natural or
more general ground of hatred to a practice can there be, than the
mischievousness of such practice? What all men are exposed to suffer
by, all men will be disposed to hate. It is far yet, however, from
being a constant ground: for when a man suffers, it is not always that
he knows what it is he suffers by. A man may suffer grievously, for
instance, by a new tax, without being able to trace up the cause of his
sufferings to the injustice of some neighbour, who has eluded the
payment of an old one.
XVI. The
principle of sympathy and antipathy is most apt to err on the side of
severity. It is for applying punishment in many cases which deserve
none: in many cases which deserve some, it is for applying more than
they deserve. There is no incident imaginable, be it ever so trivial,
and so remote from mischief, from which this principle may not extract
a ground of punishment. Any difference in taste: any difference in
opinion: upon one subject as well as upon another. No disagreement so
trifling which perseverance and altercation will not render serious.
Each becomes in the other's eyes an enemy, and, if laws permit, a
criminal. This is one of the circumstances by which the human race is
distinguished (not much indeed to its advantage) from the brute
creation.
XVII. It is not,
however, by any means unexampled for this principle to err on the side
of lenity. A near and perceptible mischief moves antipathy. A remote
and imperceptible mischief, though not less real, has no effect.
Instances in proof of this will occur in numbers in the course of the
work. 4 It would be breaking in upon the order of it to give them here.
XVIII. It may be
wondered, perhaps, that in all this no mention has been made of the theological
principle; meaning that principal which professes to
recur for the standard of right and wrong to the will of God. But the
case is, this is not in fact a distinct principle. It is never any
thing more or less than one or other of the three before-mentioned
principles presenting itself under another shape. The will of
God here meant cannot be his revealed will, as contained in the sacred
writings: for that is a system which nobody ever thinks of recurring to
at this time of day, for the details of political administration: and
even before it can be applied to the details of private conduct, it is
universally allowed, by the most eminent divines of all persuasions, to
stand in need of pretty ample interpretations; else to what use are the
works of those divines? And for the guidance of these interpretations,
it is also allowed, that some other standard must be assumed. The will
then which is meant on this occasion, is that which may be called the presumptive
will: that is to say, that which is presumed to be
his will by virtue of the conformity of its dictates to those of some
other principle. What then may be this other principle? it must be one
or other of the three mentioned above: for there cannot, as we have
seen, be any more. It is plain, therefore, that, setting revelation out
of the question, no light can ever be thrown upon the standard of right
and wrong, by any thing that can be said upon the question, what is
God's will. We may be perfectly sure, indeed, that whatever is right is
conformable to the will of God: but so far is that from answering the
purpose of showing us what is right, that it is necessary to know first
whether a thing is right, in order to know from thence whether it be
conformable to the will of God.
XIX. There are
two things which are very apt to be confounded, but which it imports us
carefully to distinguish:— the motive or cause, which, by
operating on the mind of an individual, is productive of any act: and
the ground or reason which warrants a legislator, or other bystander,
in regarding that act with an eye of approbation. When the act happens,
in the particular instance in question, to be productive of effects
which we approve of, much more if we happen to observe that the same
motive may frequently be productive, in other instances, of the like
effects, we are apt to transfer our approbation to the motive itself,
and to assume, as the just ground for the approbation we bestow on the
act, the circumstance of its originating from that motive. It is in
this way that the sentiment of antipathy has often been considered as a
just ground of action. Antipathy, for instance, in such or such a case,
is the cause of an action which is attended with good effects: but this
does not make it a right ground of action in that case, any more than
in any other. Still farther. Not only the effects are good, but the
agent sees beforehand that they will be so. This may make the action
indeed a perfectly right action: but it does not make antipathy a right
ground of action. For the same sentiment of antipathy, if implicitly
deferred to, may be, and very frequently is, productive of the very
worst effects. Antipathy, therefore, can never be a right ground of
action. No more, therefore, can resentment, which, as will be seen more
particularly hereafter, is but a modification of antipathy. The only
right ground of action, that can possibly subsist, is, after all, the
consideration of utility which, if it is a right principle of actions
and of approbation any one case, is so in every other. Other principles
in abundance, that is, other motives, may be the reasons why such and
such an act has been done: that is, the reasons or
causes of its being done: but it is this alone that can be the reason
why it might or ought to have been done. Antipathy or resentment
requires always to be regulated, to prevent it doing mischief: to be
regulated what? always by the principle of utility. The principle of
utility neither requires nor admits of any another regulator than
itself.
Chapter III: Of the Four Sanctions or Sources of Pain
and Pleasure
I. It has been
shown that the happiness of the individuals, of whom a community is
composed, that is their pleasures and their security, is the end and
the sole end which the legislator ought to have in view: the sole
standard, in conformity to which each individual ought, as far as
depends upon the legislator, to be made to fashion
his behaviour. But whether it be this or any thing else that is to be done,
there is nothing by which a man can ultimately be made
to do it, but either pain or pleasure. Having taken a
general view of these two grand objects (viz., pleasure, and what comes
to the same thing, immunity from pain) in the character of final
causes; it will be necessary to take a view of
pleasure and pain itself, in the character of efficient causes
or means.
II. There are
four distinguishable sources from which pleasure and pain are in use to
flow: considered separately they may be termed the physical, the
political, the moral and
the religious: and inasmuch as the pleasures and
pains belonging to each of them are capable of giving a binding force
to any law or rule of conduct, they may all of them termed sanctions.
III. If it be in
the present life, and from the ordinary coursed of nature, not
purposely modified by the interposition of these will of any human
being, nor by any extraordinary interposition of any superior invisible
being, that the pleasure or the pain takes place or is expected, it may
be said to issue from or to belong to the physical sanction.
IV. If at the
hands of a particular person or set of persons in
the community, who under names correspondent to that of judge,
are chosen for the particular purpose of dispensing
it, according to the will of the sovereign or supreme ruling power in
the state, it may be said to issue from the political
sanction.
V. If at the
hands of such chance persons in the community, as the party in question
may happen in the course of his life to have concerns with, according
to each man's spontaneous disposition, and not according to any settled
or concerted rule, it may be said to issue from the moral or
popular sanction.
VI. If from the
immediate hand of a superior invisible being, either in the present
life, or in a future, it may be said to issue from the religious
sanction.
VII. Pleasures or
pains which may be expected to issue from the physical,
political, or moral sanctions, must all
of them be expected to be experienced, if ever, in the present
life: those which may be expected to issue from the religious
sanction, may be expected to be experienced either in
the present life or in a future.
VIII. Those which
can be experienced in the present life, can of course be no others than
such as human nature in the course of the present life is susceptible
of: and from each of these sources may flow all the pleasures or pains
of which, in the course of the present life, human nature is
susceptible. With regard to these then (with which alone we have in
this place any concern) those of them which belong to any one of those
sanctions, differ not ultimately in kind from those which belong to any
one of the other three: the only difference there is among them lies in
the circumstances that accompany their production. A suffering which
befalls a man in the natural and spontaneous course of things, shall be
styled, for instance, a calamity; in which case,
if it be supposed to befall him through any imprudence of his, it may
be styled a punishment issuing from the physical sanction. Now this
same suffering, if inflicted by the law, will be what is commonly
called a punishment; if incurred for want of any
friendly assistance, which the misconduct, or supposed misconduct, of
the sufferer has occasioned to be withholden, a punishment issuing from
the moral sanction; if through the immediate
interposition of a particular providence, a punishment issuing from the
religious sanction.
IX. A man's
goods, or his person, are consumed by fire. If this happened to him by
what is called an accident, it was a calamity: if by reason of his own
imprudence (for instance, from his neglecting to put his candle out) it
may be styled a punishment of the physical sanction: if it happened to
him by the sentence of the political magistrate, a punishment belonging
to the political sanction; that is, what is commonly called a
punishment: if for want of any assistance which his neighbour
withheld from him out of some dislike to his moral
character, a punishment of the moral sanction:
if by an immediate act of God's displeasure,
manifested on account of some sin committed by
him, or through any distraction of mind, occasioned by the dread of
such displeasure, a punishment of the religious sanction.
X. As to such of
the pleasures and pains belonging to the religious sanction, as regard
a future life, of what kind these may be we cannot know. These lie not
open to our observation. During the present life they are matter only
of expectation: and, whether that expectation be derived from natural
or revealed religion, the particular kind of pleasure or pain, if it be
different from all those which he open to our observation, is what we
can have no idea of. The best ideas we can obtain of such pains and
pleasures are altogether unliquidated in point of quality. In what
other respects our ideas of them may be liquidated
will be considered in another place.
XI. Of these four
sanctions the physical is altogether, we may observe, the groundwork of
the political and the moral: so is it also of the religious, in as far
as the latter bears relation to the present life. It is included in
each of those other three. This may operate in any case, (that is, any
of the pains or pleasures belonging to it may operate) independently of
them: none of them can
operate but by means of this. In a word, the powers of nature may
operate of themselves; but neither the magistrate, nor men at large, can
operate, nor is God in the case in question supposed
to operate, but through the powers of nature.
XII. For these
four objects, which in their nature have so much in common, it seemed
of use to find a common name. It seemed of use, in the first place, for
the convenience of giving a name to certain pleasures and pains, for
which a name equally characteristic could hardly otherwise have been
found: in the second place, for the sake of holding up the efficacy of
certain moral forces, the influence of which is apt not to be
sufficiently attended to. Does the political sanction exert an
influence over the conduct of mankind? The moral, the religious
sanctions do so too. In every inch of his career are the operations of
the political magistrate liable to be aided or impeded by these two
foreign powers: who, one or other of them, or both, are sure to be
either his rivals or his allies. Does it happen to him to leave them
out in his calculations? he will be sure almost to find himself
mistaken in the result. Of all this we shall find abundant proofs in
the sequel of this work. It behoves him, therefore, to have them
continually before his eyes; and that under such a name as exhibits the
relation they bear to his own purposes and designs.
Chapter IV: Value of a Lot of Pleasure or Pain, How to
be Measured
I. Pleasures
then, and the avoidance of pains, are the ends that
the legislator has in view; it behoves him therefore to understand
their value. Pleasures and pains are the
instruments he has to work with: it behoves him therefore to understand
their force, which is again, in other words, their value.
II. To a person
considered by himself, the value of a pleasure or
pain considered by itself, will be greater or
less, according to the four following circumstances:
1. Its intensity.
2. Its duration.
3. Its certainty or uncertainty.
4. Its propinquity or remoteness.
III. These are
the circumstances which are to be considered in estimating a pleasure
or a pain considered each of them by itself. But when the value of any
pleasure or pain is considered for the purpose of estimating the
tendency of any act by which it is produced, there
are two other circumstances to be taken into the account;
these are,
5. Its fecundity, or the chance it has of being
followed by sensations of the same kind: that is,
pleasures, if it be a pleasure: pains, if it be a pain.
6. Its purity, or the chance it has of not being
followed by sensations of the opposite kind: that
is, pains, if it be a pleasure: pleasures, if it be a pain.
These two last,
however, are in strictness scarcely to be deemed properties of the
pleasure or the pain itself; they are not, therefore, in strictness to
be taken into the account of the value of that pleasure or that pain.
They are in strictness to be deemed properties only of the act, or
other event, by which such pleasure or pain has been produced; and
accordingly are only to be taken into the account of the tendency of
such act or such event.
IV. To a number
of persons, with reference to each of whom to the
value of a pleasure or a pain is considered, it will be greater or
less, according to seven circumstances: to wit, the six preceding ones;
viz.,
1. Its intensity.
2. Its duration.
3. Its certainty or uncertainty.
4. Its propinquity or remoteness.
5. Its fecundity.
6. Its purity.
And one other; to wit:
7. Its extent; that is, the number of persons to
whom it extends; or (in other words) who are
affected by it.
V. To take an
exact account then of the general tendency of any act, by which the
interests of a community are affected, proceed as follows. Begin with
any one person of those whose interests seem most immediately to be
affected by it: and take an account,
1. Of the value of each distinguishable pleasure which
appears to be produced by it in the first instance.
2. Of the value of each pain which appears to be
produced by it in the first instance.
3. Of the value of each pleasure which appears to be produced by it after
the first. This constitutes the fecundity of
the first pleasure and the impurity of
the first pain.
4. Of the value of each pain which
appears to be produced by it after the first. This constitutes the fecundity
of the first pain, and the impurity
of the first pleasure.
5. Sum up all the values of all the pleasures on
the one side, and those of all the pains on the other. The balance, if
it be on the side of pleasure, will give the good tendency
of the act upon the whole, with respect to the interests of that individual
person; if on the side of pain, the bad tendency
of it upon the whole.
6. Take an account of the number of persons whose
interests appear to be concerned; and repeat the above process with
respect to each. Sum up the numbers expressive of
the degrees of good tendency, which the act has,
with respect to each individual, in regard to whom the tendency of it
is good upon the whole: do this again with respect
to each individual, in regard to whom the tendency of it is good
upon the whole: do this again with respect to each
individual, in regard to whom the tendency of it is bad upon
the whole. Take the balance which if on the side
of pleasure, will give the general good
tendency of the act, with respect to the total number or
community of individuals concerned; if on the side of pain, the general
evil tendency, with respect to the same
community.
VI. It is not to
be expected that this process should be strictly pursued previously to
every moral judgment, or to every legislative or judicial operation. It
may, however, be always kept in view: and as near as the process
actually pursued on these occasions approaches to it, so near will such
process approach to the character of an exact one.
VII. The same
process is alike applicable to pleasure and pain, in whatever shape
they appear: and by whatever denomination they are distinguished: to
pleasure, whether it be called good (which is
properly the cause or instrument of pleasure) or profit (which
is distant pleasure, or the cause or instrument of, distant pleasure,)
or convenience, or advantage, benefit,
emolument, happiness, and so forth: to pain, whether it be
called evil, (which corresponds to good)
or mischief, or inconvenience
or disadvantage, or loss, or unhappiness,
and so forth.
VIII. Nor is this
a novel and unwarranted, any more than it is a useless theory. In all
this there is nothing but what the practice of mankind, wheresoever
they have a clear view of their own interest, is perfectly conformable
to. An article of property, an estate in land, for instance, is
valuable, on what account? On account of the pleasures of all kinds
which it enables a man to produce, and what comes to the same thing the
pains of all kinds which it enables him to avert. But the value of such
an article of property is universally understood to rise or fall
according to the length or shortness of the time which a man has in it:
the certainty or uncertainty of its coming into possession: and the
nearness or remoteness of the time at which, if at all, it is to come
into possession. As to the intensity of the
pleasures which a man may derive from it, this is never thought of,
because it depends upon the use which each particular person may come
to make of it; which cannot be estimated till the particular pleasures
he may come to derive from it, or the particular pains he may come to
exclude by means of it, are brought to view. For the same reason,
neither does he think of the fecundity or purity
of those pleasures. Thus much for pleasure and pain,
happiness and unhappiness, in general. We come now
to consider the several particular kinds of pain and pleasure.
Chapter V: Pleasures and Pains, Their Kinds
I. Having
represented what belongs to all sorts of pleasures and pains alike, we
come now to exhibit, each by itself, the several sorts of pains and
pleasures. Pains and pleasures may be called by one general word,
interesting perceptions. Interesting perceptions are either simple or
complex. The simple ones are those which cannot any one of them be
resolved into more: complex are those which are resolvable into divers
simple ones. A complex interesting perception may accordingly be
composed either, 1. Of pleasures alone: 2. Of pains alone: or, 3. Of a
pleasure or pleasures, and a pain or pains together. What determines a
lot of pleasure, for example, to be regarded as one complex pleasure,
rather than as divers simple ones, is the nature of the exciting cause.
Whatever pleasures are excited all at once by the action of the same
cause, are apt to be looked upon as constituting all together but one
pleasure.
II. The several
simple pleasures of which human nature is susceptible, seem to be as
follows:
1. The pleasures of sense.
2. The pleasures of wealth.
3. The pleasures of skill.
4. The pleasures of amity.
5. The pleasures of a good name.
6. The pleasures of power.
7. The pleasures of piety.
8. The pleasures of benevolence.
9. The pleasures of malevolence.
10. The pleasures of memory.
11. The pleasures of imagination.
12. The pleasures of expectation.
13. The pleasures dependent on association.
14. The pleasures of relief.
III. The several
simple pains seem to be as follows:
1. The pains of privation.
2. The pains of the senses.
3. The pains of awkwardness.
4. The pains of enmity.
5. The pains of an ill name.
6. The pains of piety.
7. The pains of benevolence.
8. The pains of malevolence.
9. The pains of the memory.
10. The pains of the imagination.
11. The pains of expectation
12. The pains dependent on association.
IV. 1. The
pleasures of sense seem to be as follows:
1. The pleasures of the taste or palate; including whatever pleasures
are experienced in satisfying the appetites of hunger and thirst.
2. The pleasure of intoxication.
3. The pleasures of the organ of smelling.
4. The pleasures of the touch.
5. The simple pleasures of the ear; independent of association. 6. The
simple pleasures of the eye; independent of association.
7. The pleasure of the sexual sense.
8. The pleasure of health: or, the internal pleasureable feeling or
flow of spirits (as it is called), which accompanies a state of full
health and vigour; especially at times of moderate bodily exertion.
9. The pleasures of novelty: or, the pleasures derived from the
gratification of the appetite of curiosity, by the application of new
objects to any of the senses.
V. 2. By the
pleasures of wealth may be meant those pleasures which a man is apt to
derive from the consciousness of possessing any article or articles
which stand in the list of instruments of enjoyment or security, and
more particularly at the time of his first acquiring them; at which
time the pleasure may be styled a pleasure of gain or a pleasure of
acquisition: at other times a pleasure of possession.
3. The pleasures
of skill, as exercised upon particular objects, are those which
accompany the application of such particular instruments of enjoyment
to their uses, as cannot be so applied without a greater or less share
of difficulty or exertion.
VI. 4. The
pleasures of amity, or self-recommendation, are the pleasures that may
accompany the persuasion of a man's being in the acquisition or the
possession of the good-will of such or such assignable person or
persons in particular: or, as the phrase is, of being upon good terms
with him or them: and as a fruit of it, of his being in a way to have
the benefit of their spontaneous and gratuitous services.
VII. 5. The
pleasures of a good name are the pleasures that accompany the
persuasion of a man's being in the acquisition or the possession of the
good-will of the world about him; that is, of such members of society
as he is likely to have concerns with; and as a means of it, either
their love or their esteem, or both: and as a fruit of it, of his being
in the way to have the benefit of their spontaneous and gratuitous
services. These may likewise be called the pleasures of good repute,
the pleasures of honour, or the pleasures of the moral sanction.
VIII. 6. The
pleasures of power are the pleasures that accompany the persuasion of a
man's being in a condition to dispose people, by means of their hopes
and fears, to give him the benefit of their services: that is, by the
hope of some service, or by the fear of some disservice, that he may be
in the way to render them.
IX. 7. The
pleasures of piety are the pleasures that accompany the belief of a
man's being in the acquisition or in possession of the good-will or
favour of the Supreme Being: and as a fruit of it, of his being in a
way of enjoying pleasures to be received by God's special appointment,
either in this life, or in a life to come. These may also be called the
pleasures of religion, the pleasures of a religious disposition, or the
pleasures of the religious sanction.
X. 8. The
pleasures of benevolence are the pleasures resulting from the view of
any pleasures supposed to be possessed by the beings who may be the
objects of benevolence; to wit, the sensitive beings we are acquainted
with; under which are commonly included,
1. The Supreme Being.
2. Human beings.
3. Other animals. These may also be called the pleasures of good-will,
the pleasures of sympathy, or the pleasures of the benevolent or social
affections.
XI. 9. The
pleasures of malevolence are the pleasures resulting from the view of
any pain supposed to be suffered by the beings who may become the
objects of malevolence: to wit, 2. Other animals. These may also be
styled the pleasures of ill-will, the pleasures of the irascible
appetite, the pleasures of antipathy, or the pleasures of the
malevolent or dissocial affections.
XII. 10. The
pleasures of the memory are the pleasures which, after having enjoyed
such and such pleasures, or even in some 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.
Chapter IX: Of Consciousness
I. So far with
regard to the ways in which the will or intention may be concerned in
the production of any incident: we come now to consider the part which
the understanding or perceptive faculty may have borne, with relation
to such incident.
II. A certain act
has been done, and that intentionally: that act was attended with
certain circumstances: upon these circumstances depended certain of its
consequences; and amongst the rest, all those which were of a nature
purely physical. Now then, take any one of these circumstances, it is
plain, that a man, at the time of doing the act from whence such
consequences ensued, may have been either conscious, with respect to
this circumstance, or unconscious. In other words, he may either have
been aware of the circumstance, or not aware: it may either have been
present to his mind, or not present. In the first case, the act may be
said to have been an advised act, with respect to
that circumstance: in the other case, an unadvised one.
III. There are
two points, with regard to which an act may have been advised or
unadvised: 1. The existence of the circumstance
itself. 2. The materiality of it.
IV. It is
manifest, that with reference to the time of the act, such circumstance
may have been either present, past, or future.
V. An act which
is unadvised, is either heedless, or not heedless.
It is termed heedless, when the case is thought to be such, that a
person of ordinary prudence, if prompted by an ordinary share of
benevolence, would have been likely to have bestowed such and so much
attention and reflection upon the material circumstances, as would have
effectually disposed him to prevent the mischievous incident from
taking place: not heedless, when the case is not thought to be such as
above mentioned.
VI. Again.
Whether a man did or did not suppose the existence or materiality of a
given circumstance, it may be that he did suppose
the existence and materiality of some circumstance, which either did
not exist, or which, though existing, was not material. In such case
the act may be said to be 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.
Where two
offences come in competition, the punishment for the greater offence
must be sufficient to induce a man to prefer the less.
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
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.
XIII. Rule 5. The
last object is, whatever mischief is guarded against, to guard against
it at as cheap a rate as possible: therefore
The punishment ought in no case to be more than what
is necessary to bring it into conformity with the rules here given.
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
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.
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.
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.
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.
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.
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.
Among
provisions designed to perfect the proportion between punishments and
offences, if any occur, which, by their own particular good effects,
would not make up for the harm they would do by adding to the intricacy
of the Code, they should be omitted.
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
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.
II. On
the part of the punishment:
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.
III. On
the part of the offender:
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.
IV. On
the part of the public, at any particular conjuncture:
15. The inclinations of the people, for or against any quantity or mode
of punishment;
16. The inclinations of foreign powers.
V. On
the part of the law: that is, of the public for a
continuance:
17. The necessity of making small sacrifices, in point of
proportionality, for the sake of simplicity.
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.
Chapter XV: Of the Properties to be Given to a Lot of
Punishment
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.
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.
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.
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.
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,
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.
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.
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.
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.
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.
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:
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.
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.,
4. Characteristicalness.
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.,
5. Exemplarity.
6. Frugality.
Three others
contribute severally to the three inferior ends of punishment; viz.,
7. Subserviency to reformation.
8. Efficacy in disabling.
9. Subserviency to compensation.
Another property
tends to exclude a collateral mischief, which a particular mode of
punishment is liable accidentally to produce; viz.,
10. Popularity.
The remaining
property tends to palliate a mischief, which all punishment, as such is
liable accidentally to produce; viz.,
11. Remissibility.
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.
Chapter XVI: Division of Offenses
§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.
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.
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:
1. Offences by falsehood: and
2. Offenses against trust.
§2.
Divisions and sub-divisions
XI. Let us see by
what method these classes may be farther subdivided.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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,
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.
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,
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.
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.
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.
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.
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.
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.
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.
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.
These difficulties being cleared up, we now proceed to exhibit an
analytical view of the several possible offences against trust.
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:
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.
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.
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.
And thus we have
thirteen sub-divisions of offences against trust: viz.,
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.
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
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 o
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